好安樓業主立案法團 v. Leung Kam Chung Kenneth

LDBM 129/2020

[2023] HKLdT 26

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 129 OF 2020

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BETWEEN

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JUDGMENT

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The Application

1.The applicant is the incorporated owners of Ho On Mansion (“the said Building”) and the respondent is the owner of car park number 44 of the said Building (“the Car Park”).

2.The owners of the said Building are subject to the rights and obligations imposed by a Deed of Mutual Covenant dated 3 December 1973 (“the DMC”).

3.The applicant issued these proceedings and claims that the respondent has, in breach of the DMC, used the Car Park, and some of the common areas adjacent to the Car Park, for storage of personal belongings. The applicant claims that the respondent’s act created nuisance and obstruction. Some combustible goods have been stored and the act is in breach of the DMC.

4.The applicant applies for an order that the respondent shall remove his personal belongings and reinstate the areas affected by his act.

5.In the Notice of Opposition, the respondent claims that the Car Park is a privately owned property. He said all the things that are placed at the Car Park is within the boundary of the Car Park and denies having occupied any common areas. It is also denied that the things he placed at the Car Park are easily combustible and there is no violation of the terms of the DMC. The respondent also said the placing of personal things at the car park areas by individual owners has been in practice for a long time.

6.In the Reply, the applicant contends that the Car Park shall only be used for parking of vehicle, and shall not be used for storage of personal belongings. It is also claimed that because of the stored personal belongings, the car parked by the respondent therein has to protrude into common areas, and is in breach of the DMC.

The Issues

7.There are two issues in dispute. It appears that the respondent does not dispute that he is not entitled to place his things at common areas, but claims that he has not. Hence it is a finding of fact if he has and/or still is keeping his personal belongings at any part of the common areas. This would include the complaint of his car protruding over the common areas.

8.The second issue is the interpretation of the DMC. The respondent is not denying that he has placed his personal belongings within the boundary of the Car Park, occupying part of it. Is that prohibited by the DMC?

9.I shall come to the legal principle later. I shall first consider the oral evidence of the parties.

The Applicant’s Case

10.The applicant has one witness, Mr Tse Ka Lun (“Mr Tse”). He adopted his witness statement dated 23 August 2022 as his evidence-in-chief.

11.Mr Tse is a manager of 高信物業服務有限公司, the current management company of the said Building, the company being so appointed on 1 July 2022.

12.After taking over the management, Mr Tse was informed by the Chairperson of the applicant, Madam Chiu, that the respondent has been placing personal belongings and things at the Car Park since 2018, including plastic storage boxes, plastic chairs, detergent, bicycles, piping accessories, trolley, paper boxes and plastic bags, and other miscellaneous items.

13.Mr Tse checked the records of the former management companies of the said Building, being 恒益物業管理有限公司 and 威格斯物業管理服務(香港)有限公司. He said the former management companies have issued notices in 2018 and 2021 respectively to the owner of the Car Park requiring him to remove all the personal belongings kept there.

14.Two notices dated 9 May 2018 and 10 August 2019 respectively are produced which shows that the management office has served notice to all owners to remove personal belongings from common areas and car park area of the said Building. And a further notice dated 20 July 2020 is produced which refers to complaints from owners that miscellaneous goods and chattels have been stored at the car park area creating fire safety concern. The car park owners have again been required to remove all personal properties from the car park.

15.Mr Tse also produced a Notice dated 17 August 2020 from the management office of the said Building to the owner of the Car Park requesting him to remove all the personal belongings. There is a photograph attached to the notice which shows that a lot of personal belongings has been stored at the rear area of the Car Park close to the wall.

16.A bundle of photographs has been produced showing that there are personal belongings kept at the Car Park and at the common areas adjacent to it on different dates. From the dates of the photographs, these should be obtained from records of previous management company. And it could be seen that personal belongings have been stored at the end of Car Park near the wall. Some of the belongings are kept outside the boundary of the Car Park.

17.Mr Tse also produced a copy letter from the applicant to the respondent dated 25 July 2020 when the applicant requested the respondent to remove all his personal belongings from the Car Park. He was further informed by the said Madam Chiu that after the notice to car park owners, most of the car park owners have removed their personal belongings from the car parks.

18.Mr Tse said he has instructed his staff to check the Car Park on 2 July, 5 August, 7 August, and 11 August of 2022 and found that there are personal belongings kept at the Car Park. The management company has also issued notices requesting all car park owners to remove their personal belongings from their car parks. But the respondent has not removed his personal belongings from the Car Park.

19.A copy of the DMC has been produced. He refers in particular to paragraph 8(b) (f) & (j) of the DMC which reads as follows: -

“(b) Not to commit or suffer to be committed on the said Premises or the said Building anything which should be a nuisance or annoyance to the owners or occupiers thereof or of the lands or buildings adjacent thereto or in the neighbourhood.

…

(f) Not to place anything or cause any obstruction on the main roof or any part of the said Building intended for common use and in particular not to erect or place or display or cause to be erected or placed or displayed on any part of the entrance halls, staircases, landings, common passages and corridors of the said Building any fittings or fixtures, materials or things including any of the following :- (1) air condition machines (2) exhaust fans (3) altars for religious worshipping or burning of incenses (4) advertising materials (5) flags (6) notices or (7) signboards and not to use such parts of the said Building otherwise than for access to and egress from its portion of the said Building.

…

(j) Not to store or permit or suffer to be stored in any part of the said Building any hazardous dangerous or combustible goods or materials.”

20.Mr Tse said the owners shall not create nuisance, such as placing personal belongings at the car park areas, as It would affect the hygiene of the car park areas.

21.Mr Tse said, by placing the personal belongings at the Car Park, it would also obstruct and affect the daily management of the said Building, including maintenance and cleaning.

22.A copy of the occupation permit is produced and Mr Tse submits that the Car Park is for parking of vehicle and shall not be used for storage of personal belongings.

23.The occupation permit provides that at the lower basement and basement of the said Building, there shall be covered car-park for a total of 69 cars. I shall come back to the occupation permit later.

24.On cross-examination, Mr Tse explained that they could not find the former witness Mr So. As Mr So has not attended the trial, his witness statement would not be considered.

25.The respondent queries why the applicant has also placed items in its car park and some photographs have been produced with the respondent’s witness statement. Mr Tse said the said Building was under renovation and the items placed in the car park is building material, or equipment. As the renovation is for the whole building, the applicant allowed the contractor to keep the material there temporarily and shall be removed after completion of the renovation. The respondent complains that the applicant has double standard which Mr Tse denies.

26.The respondent questions how he could create nuisance. Mr Tse said he kept paper boxes in the Car Park. The area is wet and there could be fungus/mould on the boxes creating hygiene problem.

27.The respondent puts to Mr Tse that the detergent is not inflammable. But Mr Tse said it should be kept safely.

28.Mr Tse also mentioned that the Fire Services Department (“FSD”) has checked the car park areas as late as in August 2022. Yet no evidence is adduced that any warning or order has been given by FSD.

29.This is the applicant’s case.

The Respondent’s case

30.The respondent gives evidence himself. He adopted his witness statement dated 24 December 2021 and reply witness statement dated 20 September 2022 as his evidence-in-chief.

31.The respondent stresses that he is the legal owner of the Car Park and he is entitled to place his personal belongings or things there. He denies placing any things at common areas.

32.The respondent also said other owners have been placing things inside car park areas of the said Building, including the applicant. Photographs have been produced with his witness statement.

33.From appendix 2, the respondent tries to show that he only stores his things at the rear area of the Car Park, all within the boundary lines. There appears to be paper boxes with one holding one bicycles, some plastic boxes, and one is holding some barbecue forks. The respondent further elaborated in his witness statement that he only kept some soap solution for cleaning purpose, and there is no alcohol content. There is some detergent for cleaning purpose and again there is no alcohol.

34.In his reply witness statement, the respondent produced a photograph to show that he parked his car within the Car Park. Yet it shows that part of the vehicle protrudes outside the front boundary line.

35.And the respondent repeats that he has not put any inflammable things at the Car Park.

36.In respect of the occupation permit, he submits that the meaning of “non-domestic use” implies that one cannot sleep there nor does any cooking inside the car parks.

37.Mr Tse cross-examined the respondent and suggested that the ground could become slippery if the detergent leaks. The respondent said it is kept inside the Car Park.

38.This is the respondent’s case.

Occupation of Common Areas

39.It is not disputed that the respondent should not occupy the common areas. I only need to refer to section 34I of the Building Management Ordinance which provides: -

“Common parts

(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

40.As mentioned above, whether the respondent has occupied any common areas is finding of facts. Mr Tse relies on the photographs produced which are taken by employees of different management companies at different period. In some of the photographs, it shows that some personal belongings are kept outside the boundary of the Car Park. There is no direct evidence that they belong to the respondent, but given the proximity of where they were kept, it could be inferred that they are left there by the respondent.

41.The respondent has submitted that these photographs are not reliable as the person who took the photographs has not given evidence. This only goes to the weight of the evidence and the photographs are admissible as evidence. And there is no other reason to suggest these photographs are not taken at the time by employees of the management companies.

42.On the balance, I rely on these photographs and infer that at the time of the photographs, there were personal belongings at the adjacent area of the Car Park. The photographs are taken over a long period of time and it could be inferred that the respondent has been occupying the adjacent area at the rear of his Car Park, which are common areas.

43.As the respondent is not opposing that he is not entitled to use the common areas for personal storage, I would later give the appropriate directions against using common areas.

Storage of Personal Belongings INSIDE the Car Park

44.It cannot be disputed that the right to use and occupy the Car Park is subject to the terms of the DMC. The more difficult part of the ruling is on how to interpret the DMC. As mentioned above, the applicant relies on paragraph 8(b), (f) and (j) of the DMC to argue that the respondent is not entitled to store his personal belongings in the Car Park.

45.With paragraph 8(b) of the DMC, the applicant’s argument is the storage of personal goods create a nuisance to other occupiers of the said Building. Or in addition, the goods stored in the Car Park may create fungus/mould, affecting the hygiene and would create nuisance.

46.The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. I refer to paragraph 19-01 of Clerk & Lindsell on Tort 23^rd Ed :

“The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land. In ordinary speech, smells and smoke and a variety of different things may amount to a nuisance in fact but whether they are actionable as the tort of nuisance will depend upon a variety of considerations and a balancing of conflicting interest. An actionable nuisance is incapable of exact definition, and it may overlay with some other heading of liability in tort such as negligence. …..”

47.I also refer to the judgment of DHCJ To given in Lam Suk Yee and another v The Incorporated Owners of Kam Kin Mansion [2018] HKCFI 2760, at paragraph 155: -

“155. Private nuisance is basically unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. Generally, the essence of a nuisance is a state of affairs that is either continuous or recurrent, a condition or activity which unduly interferes with the use or enjoyment of land. ….”

48.The question is whether the storage of goods would create a nuisance to the said Building interfering with the right of the co-owners to use the said Building, and this has to be answered in light of the facts.

49.Looking at the evidence, the storage itself should not affect the usage of the said Building by other owners. The only obstruction would be the usual maintenance and cleaning of the car park area which must include the Car Park. Generally, I assume the management office would notify the owners concerned, if they have to carry out maintenance or cleaning, to remove their cars or belongings during maintenance or cleaning. There is no suggestion that the respondent has been un-cooperative in this aspect.

50.There is no suggestion that the personal belongings of the respondent would emit smell or smoke, or in any way interfere with the right of co-owners to use the land where the said Building is erected. Mr Tse suggests that the boxes may attract fungus/mould but there is no evidence. It does not appear on the photograph and I presume if hygiene is affected by fungus in the past, action would be taken much earlier by the management office.

51.On the balance, I do not agree that the applicant has established that the storage is a nuisance to other owners of the said Building.

52.I do not think that paragraph 8(f) would assist the applicant. It covers the common areas, and not the Car Park. If it is the common areas, as I mentioned, there is no dispute that the respondent should not place any belongings there without approval of the applicant under section 34I of the Building Management Ordinance.

53.And for paragraph 8(j), the meaning of hazardous dangerous or combustible goods or materials is simple English and there is no reason to adopt any special meaning. They are also used for specific purpose in some Ordinances. Mr Tse has not referred me to any or to suggest any special meaning that should be adopted.

54.Most things are combustible. The restriction would be more against easily inflammable goods, such as kerosene or alcohol. From the evidence, the respondent placed some detergent in the Car Park. There is no evidence that they are combustible. There is no suggestion that there has been leakage causing slippery floor over the years. The other things stored are plastic chairs, barbecue forks and paper boxes.

55.It may be argued that a large quantity of paper boxes could be dangerous if a fire breaks out for any reason. But from the limited evidence before me, I am not convinced that the quantity of paper boxes, and other material placed in the Car Park could fall within the category of hazardous or dangerous material.

56.The applicant also relies on the occupation permit and submits that the respondent is in breach of the provision therein. An occupation permit is issued under the Buildings Ordinance. It has to be noted that it is not a direct restriction on the use of the said Building. Under section 25 of the Buildings Ordinance, one month’s notice in the specified form shall be given to the Building Authority of any intended material change in the use of a building by the person intending to carry out or authorizing the carrying out of such change. And on receiving such notice, the Building Authority may prohibit such intended use. And “building” includes the whole or any part of the building, by definition.

57.It has to be considered if the keeping of personal belongings in the Car Park is a change of use. The occupation permit provides that:

“Lower Basement : Covered car-park for 26 cars, 1 store and 1 meter room for non-domestic use.

Basement : Covered car-park for 43 cars and 2 entrance lobbies for non-domestic use.”

58.I believe the phase “for non-domestic use” is to qualify the store, meter room and entrance lobbies. The covered car-park at the 2 basements is for parking of cars. The use has been changed when part is used for storage. The question is whether this is prohibited by the DMC. The claim by the applicant must be based on contract or tort.

59.So taking the case of the applicant to the highest, the respondent would be in breach of section 25 of the Buildings Ordinance without serving notice to the Building Authority. There is no direct evidence if the respondent has failed to serve such notice. And assuming he has not served any notice, I also proceed to consider if he could be in breach of the DMC.

60.And that takes me to paragraph 8(a) of the DMC which provides that the owners shall not use the said Building for “illegal or immoral purpose”. In the event of failing to serve the notice on Building Authority when the respondent changed the use, is the act of storage illegal?

61.Similar issues have been considered in the judgments I refer to later, which suggests that it is not a crime for failing to serve the notice, and hence not illegal. It would be an offence under section 40 of the Buildings Ordinance for failing to comply with any order served by the Building Authority under section 25(2) prohibiting the change. No evidence is adduced that the Building Authority has issued a notice to the respondent to reinstate the use of the Car Park.

62.It has been held by Louis Chan J (as he then was) in Wing Hong Investment Company Limited v Fung Sok Han [2016] 1 HKLRD 1, that the failure to serve the notice is not a crime and is not illegal. The term “illegal” has been further considered in the judgment by DHCJ To in the Lam Suk Yee’s case. Having considered the authorities, DHCJ To said:-

“78. I would not attempt to define the impossible. While the words ‘illegal’ and ‘unlawful’ are sometimes or often used interchangeably, they do have different and overlapping meanings. The word ‘illegal’ is often used in relation to prohibition under criminal law or statute, while the word ‘unlawful’ has a wider import and encompasses criminality and defiance of the law generally, whether enacted by statute or evolved under common law and whether criminal or civil in nature. As always, the meaning of these words depends on the context.”

63.In the Lam Suk Yee’s case, the relevant clause in the DMC include both “illegal” and “unlawful”, which the clause in Wing Hong Investment’s case only includes “illegal”. And in our case, the DMC only prohibits against “illegal purpose”. And I refer further to paragraph 82 of the judgment of DHCJ To: -

“82. On my construction of the words ‘illegal’ and ‘unlawful’, I concur with the approach of Louis Chan J in determining whether breach of the user stipulation in the occupation permit is illegal and agree with his conclusion on the facts of that case. As a matter of basic legal principle, an act is not illegal or unlawful unless made illegal or unlawful by law. While the Buildings Ordinance laid down what may be done and what may not, there is no provision which makes the change of user criminal. What is made criminal under section 40 is the failure to give notice of such intended change or to comply with an order of the Building Authority. If a change is effected without giving notice to the Building Authority, it is unlawful but not illegal. If the Building Authority has issued a notice to the owner requiring rectification and is not complied with, the non-compliance becomes illegal. The issue of unlawfulness had not been explored in Wing Hong Investment Co Ltd. The conclusion in that case must be confined to the facts of that case and cannot be taken as a statement of over sweeping principle that any breach of the occupation permit is neither illegal nor unlawful.” [my emphasis as underlined]

64.DHCJ To ruled that the change of use in his case is not illegal, but unlawful. Injunctive relief was granted. I respectfully follow the interpretation of DHCJ To in the meaning of “illegal” and “unlawful” in my judgment herein.

65.Following the authority, I cannot agree with Mr Tse that the mere change of use would be an illegal act that is prohibited by the DMC. It may be unlawful, but it is not prohibited by the DMC of the said Building. There could be other areas of restriction, including building plans and Government lease. But these have not been relied on for this application.

66.Further, any injunctive relief must be proportionate. The breach, if any, committed by the respondent is the failure to report the change of use of the Car Park. At the highest, he would be required to serve the notice with Building Authority under section 25 of the Buildings Ordinance. Hence it would not support the relief as claimed by the applicant.

Discussion and Ruling

67.In summing up, while I agree that the storage is a change of use, it is not an illegal act that is prohibited by the DMC. I understand some modern deed of mutual covenants would expressly provide for restriction that car park owners may not store any personal belongings in their car park, or that the use must be in compliance with the occupation permit. These are not provided for in the DMC of the said Building.

68.As I also found against the applicant on allegation of nuisance and storage of hazardous, dangerous or combustible goods or materials, in conclusion, I dismiss the applicant’s claim for an order that the respondent do remove his personal belongings and reinstate the part of his Car Park that was used for storage.

69.And as for the common areas, I do give an order that the respondent shall not store or keep his personal belongings in any of the common areas, including the areas outside the boundary of the Car Park. This would include not to occupy any common areas with his motor vehicle.

70.And finally, as for costs, I believe the fair order is no order as to costs and I give an order nisi accordingly which shall become absolute within 14 days unless any of parties apply to vary the same by summons.

Mr Tse Ka Lun, representative of the applicant

The respondent appeared in person