What are “sub-divided” flats?

Sub-division of flat unit, commonly known as “sub-divided flat”, has recently become an issue of serious concern among the public.Generally speaking, sub-divided flats refer to the sub-division of a single flat into two or more individual flats or cubicles.In most cases, the following building works are commonly associated with such sub-division:-

l removal or erection of partition walls;

l installation of new toilets;

l conversion of balcony into cubicles;

l alteration or addition of internal drainage;

l thickening of floor screeding to accommodate the diverted drainage;

l addition of door openings;

l removal of kitchen’s door for an open design;

It is unlikely that a flat can be sub-divided without contravening any of the building regulations, fire safety rules or land lease conditions.Likewise, the Deed of Mutual Covenant (the “DMC”) of a building usually contains provisions forbidding subdivision of flats.For example, under the Fire Safety (Buildings) Ordinance (Cap. 572) (the “Fire Regulations”), kitchens in domestic units are required to have proper enclosure wall and door with certain fire resistance period.Removal of such enclosure wall or fire resistant door not only may impose fire hazard to the occupants but would also constitute a breach of such Fire Regulations.For balconies, since almost all of them are designated as “non-enclosable areas” in the DMC of the building, enclosing them for domestic purpose would be a clear violation of the related DMC.In addition, since balconies are invariably sensitive to additional loads, enclosing them by adding enclosure walls would increase the floor loads and thus generally will not be permitted under the Building (Planning) Regulations (the “Planning Regulations”).

The Buildings Ordinance (Cap. 123)

Besides the above regulations, most of the building works associated with sub-divided flats are also subject to the control of the Building Ordinance (Cap. 123) (the “BO”).Under the BO, if any building works would involve the structure of the building, flat owner is required by law to appoint an authorized person, and where necessary a registered structural engineer, to prepare plans for the approval of the Building Authority (the “BA”) in accordance with the BO.After obtaining the approval of plans and consent to the commencement of works from the BA, those building works would then be carried out by a registered contractor in accordance with such approved plans.

Exempted Building Works vs.
Unauthorized Building Works (UBW)

Pursuant to sections 41(3) and 41(3C) of the BO, certain building works and drainage works that do not involve the structure of the building will be classified as Exempted Building Works (the “EBW”) and can be carried out without the prior approval of the BA.The erection of non-structural partition wall is an example of this kind.

However, even if those building works fall within the category of EBW, such works should still comply with all the building standards stipulated in the building regulations, including the requirements of not causing overloading to the building structure and not affecting the means of escape in case of fire.Any building works that fall outside the definition of EBW and contravene any of the building regulations would be regarded as unauthorized building works (the “UBW”).

Legal Consequences

Removal or reinstatement order (the “Order”) will be issued by the BA for the removal or reinstatement of UBW.If the flat owner fails to comply with the Order, the BA may initiate prosecution under the power in the BO.Under s24(1) of the BO, any flat owner once being convicted may be liable to a maximum fine of $200,000 and imprisonment for one year, and to a further fine of $20,000 for each day during which the failure to comply with the Order has continued.

In the event that the required removal or reinstatement works have not been completed by the due date, the BA may, under the BO, employ a government contractor to carry out any required works on the owner’s behalf, and subsequently recover the cost of the works.Furthermore, if the owner fails to settle the account, the BA may register a certificate with the Land Registry against the relevant property.Legal action can be taken by the Government against the owner to recover all the costs incurred.

From the insurance perspective, policy coverage of the premises would become critical when it comes to the issue of public liability, especially where the flat owner may be legally liable in respect of any accidental loss or damage to third party.Almost all insurance policies would stipulate that any regulations and requirements as laid down by laws and government authorities should be duly complied with, and more importantly, any change in the nature of occupancy or circumstances which could involve the change in risk should receive the prior approval of the insurance companies.Should the flat subdivision involves any UBW, it may lead to a violation of the laws which would invalidate the insurance policy.Even if no UBW are involved in the subdivision, flat owner would run the risk of losing the benefits under the insurance policy if prior approval of change of occupancy or circumstances has not been obtained from the insurance company.

The “Break-in” Power under
the Building Ordinance

Under s22 of the BO, the BA may at any time enter and where necessary, in the presence of a police officer, break into any premises to, inter alia, ascertain whether any building or structure is dangerous or liable to become dangerous.In addition, as stipulated under s40(2AAA), any person who obstructs the BA in the exercise of power under the BO would be guilty of a criminal offence and shall be liable on conviction to a maximum fine of $10,000 and to imprisonment for six months.

These stringent enforcement actions would inevitably cause inconvenience to owners and occupants, who may have concerns over the interference of their private property rights.There were suggestions that the law should be amended so that the BA will have to obtain a warrant from the court before entering any premises for inspection.The court would decide whether breaking into the premises is necessary.

Conclusion

Flat subdivisions occur mostly in old buildings while buildings in Hong Kong are undoubtedly ageing at an alarming rate.Continued soaring rents and inadequate housing supply for the low income sector are forcing more people into such dwellings.As illustrated in the above, such sub-divided flats pose serious safety and hygienic hazards.It is time for the Government to review or make strategic long term housing planning for the low income sector.