Read the full judgment text of CACV 003622/2001 on BabelCite. This Court of Appeal judgment was delivered on 24 May 2002 before Rogers VP, Le Pichon JA, Yeung JA.
Land law – Deed of Mutual Covenant – multi-storey building – exterior walls – whether opening of windows amounts to 'structural alteration' – whether owner of unit owns exterior walls – interpretation of restrictive covenant – appeal – Incorporated Owners of Elite Garden v Profit More Company Limited. The respondent, owner of the first floor of a Hong Kong multi-storey building governed by a Deed of Mutual Covenant, opened large windows on the external walls of the first floor in 1994 and 1997. The Incorporated Owners of Elite Garden sought a declaration and reinstatement order under para. 3(d) of the Second Schedule to the DMC, which contained two limbs: a prohibition on 'structural alteration' to any unit, and a prohibition on cutting, maiming, injuring, damaging, altering or interfering with any part of the building. The Lands Tribunal (Deputy Judge Tong) held that the opening of windows was a structural alteration and ordered reinstatement. The respondent appealed, arguing that 'structural' bore a technical meaning relating to stability and the load-bearing fabric of the building, and that the owner of a unit owned the exterior walls, so the second limb did not apply. Held, appeal dismissed. On the first limb, the court followed Cheung J in Incorporated Owners of Tuen Mun Hung Cheung Industrial Centre v United Hong Kong Ltd and held that 'structural' should be given its natural and ordinary meaning, encompassing permanent physical alteration to the fabric of the building, whether or not load-bearing, and including alteration to its visual aspect, as held in Pearlman v Harrow School. The opening of large windows was plainly a structural alteration. On the second limb, the court held that under Hong Kong's system of multi-storey landholding, owners hold undivided shares with exclusive possession of a unit; ownership of the surface of exterior walls is not ownership of the walls themselves, and the exterior walls are an integral part of the 'building' for the purposes of the second limb. Bickmore v Dimmer, Granada Theatres Ltd v Freehold Investment Ltd, and Hope Brothers Ltd v Cowan considered and distinguished or held inapplicable. Outcome: appeal dismissed; declaration of the applicant's enforcement rights upheld; respondent ordered to reinstate the exterior walls of the first floor within three months.
Legal issues: Whether opening windows in exterior walls constituted a 'structural alteration' under the first limb of para. 3(d) · Whether opening windows breached the second limb of para. 3(d) regarding exterior walls
Outcome: Appeal dismissed. The Court of Appeal upheld the Lands Tribunal's declaration that the applicant was entitled to enforce its rights under the Deed of Mutual Covenant and the order directing the respondent to reinstate the exterior walls of the first floor of Elite Garden within three months.
Cited by 4 cases · Cites 1 case