施華芬 v. 基達花園第一期業主立案法團

LDBM000429/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 429 of 2000

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Coram: Deputy Judge TONG

Dates of Hearing: 4 May 2001

Date of Judgment: 21 August 2001

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J U D G M E N T

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Background

1.The Applicant Madam SEE Wah Fan was the owner of Ground Floor and a garden of Block 5, Ki Tat Garden Phase 1, Ping Tong Street West, Ping Shan, Yuen Long, New Territories. The Respondent on the other hand was the Incorporated Owners of the said development in Pang Shan, Yuen Long, New Territories. This development consisted of 7 blocks of buildings separated from one another. Each block was sold to 2 different owners; i.e. the owner of the first floor together with the roof and the owner of the ground floor together with the annexed garden. The problem faced by the Applicant was about the use of a staircase leading from the ground floor to the first floor and the roof. The Applicant maintained that the staircase was part of the common area in the said development. As such, the first floor owner could not convert it to his own use by (1) constructing an iron gate and a wooden door at the staircase landing two flights of stairs below the first floor, (2) building a wall to seal off the void space between the flights of stairs above the first floor landing and (3) leaving miscellaneous items and rubbish in the staircase area. The construction work of the door and the wall also affected the normal functioning of the TV antenna cable feeding TV broadcasting signal to the ground floor. The work also affected the electricity circuit supplying power to a light switch at the ground floor entrance. This was not the first time that the Applicant was seeking remedies for these problems. In the case SEE Wah-fan v TAM Kam-yuk LDBM 300 of 1999, she sued the first floor owner for remedies. The first floor owner in that case contented that if the Applicant was bringing an action on the basis that he had converted the common area to his own use, the Applicant would have no locus standi to bring the action after an incorporated owners had been formed. It was because after the incorporation, the incorporated owners, as a result of section 16 of the Building Management Ordinance Cap. 344 Laws of Hong Kong, shall have exclusive control over the affairs in relation to the common area of the building concerned. I upheld this contention and the action was struck out. In the present case, the Applicant sought an order to compel the Respondent to enforce the relevant provisions in the Deed of Mutual Covenants and those in the Building Management Ordinance to stop the first floor owner from further converted use of the staircase.

2.Initially, the Respondent's case could not be readily appreciated from the Notice of Opposition (Form 7). The Notice only said "1. The Respondent denies paragraph 1 of the Applicant's claim. 2. The Respondent denies that he is responsible to take the action demanded in paragraph 2 of the Applicant's claim or any action at all." However, just before the trial commenced, Mr. Oderbergk counsel for the Respondent had come to agreement with the Applicant in relation to the rubbish in the staircase, the obstruction of TV signals and electricity supply for the entrance light. The agreement took the form of the Respondent giving certain undertakings to the Applicant to resolve those matters. With those issues having been disposed of, the only remaining issue before me was "Can the Respondent be compelled to take action against the first floor owner so as to remove the iron gate, the wooden door and the wall mentioned in the foregoing?" The Respondent said it had no such power because all the items were not constructed on common area of the development but were on the area of the building to which the first floor owner enjoyed exclusive possession. To support its contention, the Respondent produced the assignment through which the first floor owner acquired his proprietary interest of the flat. The assignment, dated 15th March, 1993, could be seen from pages 27 to 34 in the bundle of documents. The Applicant took no issue on the authenticity of the assignment so produced.

Evidence in the case

3.The Applicant gave evidence and she was the only witness in the trial. Her evidence on the physical lay out of the staircases and the floors were not in dispute. Apart from the ground floor and the annexed garden, the Applicant in fact had obtained a cockloft built by the developer when she purchased her flat in question. There was no plan showing this cockloft in the Applicant's assignment and this cockloft was only accessible from within the Applicant's ground floor premises. There was a concrete wall built between the cockloft and the staircases leading to the first floor of the block. It was the Applicant's plan to break open this partition wall so that a door could be constructed to provide direct ingress and egress to and from the cockloft via the staircase. The Applicant had also planed to route the heat exchange hose of her split type air-conditioner through the staircase. The sealing off of the staircase by way of a locked door and a locked gate by the first floor owner rendered her plans impossible. The applicant also relied on clause 2 of the Deed of Mutual Covenants to maintain that the first floor owner had no right to block off her right way in going to the roof.

Who own the staircases?

4.In the Notice of Application, the Applicant based her action on the fact that the first floor owner had converted the staircases (which formed part of the common area) to his own use and that the Respondent was not taking any action about it. Hence if it could be proved that the first floor owner in fact owned those part of the staircase in question, the Applicant must fail. In order to determine the ownership (or more accurately refers to as a right of exclusive possession) of the staircase, I have examined the assignment of the first floor owner in detail. I notice that in the schedule of the assignment, the property assigned to the first floor by the developer was described as:

"ALL THOSE 640 equal undivided 8,960th parts or shares of and in ALL THAT piece or parcel of ground ........TOGETHER with the sole and exclusive right and privileges to hold use occupy and enjoy ALL THAT FIRST FLOOR together with the Roof thereover of BLOCK 5 of the Building which said Floor and the Roof are shown on the First Floor Plan and Roof Floor Plan hereto annexed and thereon coloured Pink." (underline added)

5.I then turned to pages 33 and 34 of the bundle of document. The two pages show respectively the floor plans of the roof and the first floor. In each of the two pages, apart from the floor areas concerned, the pink colour was also applied to two flights of stairs going in opposite direction with a staircase landing in between. In my judgment, since the roof was the highest point in the building, the two flights of stairs included in the roof floor plan can only mean that they are the two flights of stairs going down from the roof. If so, the two flights of stairs included in the first floor plan must mean the two flights of stairs going down from the first floor. References to the floor areas were also included in the floor plans in pages 33, 34 (for the roof and the first floor) and 43 (for the ground floor). The floor areas for the roof and the stairs were 59.09 square meters. The floor areas for the first floor and the stairs were 59.09 square meters. Finally, the floor area for the ground floor was 56.04 square meters. Furthermore, no pink colour was applied to the stairs of the ground floor plan. All these observation can only lead to the inescapable conclusion that the staircase on which the first floor owner built a door, a metal gate and a wall belonged to the first floor owner. As such, the Respondent could not be compelled to take action against the first floor owner to have those items removed. This part of the Application must be dismissed.

The effect of clause 2 in the Deed of Mutual Covenants

6.My reasons given in the foregoing paragraphs should have disposed of the present application. However, as the Applicant had mentioned clause 2 in the DMC in her evidence, I think I am obliged to deal with the clause at least in brief. Clause 2 of the Deed was worded in the following form (see page 13 in the bundle of documents):

"Each of the parties hereto and his tenants licensees shall in common with his co-owners of the whole of the Land and the Building and their licensees have mutual right of access to the building and their licensees have mutual right of access to and be entitled to use all footpath service lanes the entrance-hall staircases landings and the common passages of and in the Land and the Building together with the portion of land as more particularly shown and coloured yellow on the Plan hereto annexed for all purposes connected with the proper use and enjoyment of the unit of the Building of which he is entitled to the exclusive use occupation and enjoyment for the purpose of ingress to and egress from such unit Provided that the owner for the time being of any unit of or in the First Floor in Block 1, Block 2, Block 3, Block 4, Block 5, Block 6 and Block 7 shall have the right to the exclusive use occupation and enjoyment of the corresponding Roof thereover Subject to a right of way being conferred upon the owner or occupiers of the other units of the Building or his or their authorised agents to pass and repass for the purposes of carrying out maintenance, repairing, installation, replacement or other similar works to the common part of the Building, pump room, water tanks, water meters, electricity or gas meters and the television aerials or antenna and for the purposes of escaping from fire or other calamity in case of emergency and necessity and Also Subject to the right of the owners or occupiers or their authorised agents of other units of the Building to fix or erect television aerials or antenna at such part of the Roof of the Building as the owner of the related unit of the First Floor in Block 1, Block 2, Block 3, Block 4, Block 5, Block 6 and Block 7 shall decide."

7.It could be seen that by virtue of the former part of this clause, the Applicant is empowered to "have mutual right of access to and be entitled to use all 'staircases' in the Land and the Building". Yet such entitlement is not without qualifications. The qualifications are (1) "for all purposes connected with the proper use and enjoyment of the unit of the Building of which he (here referred to the Applicant) is entitled to the exclusive use occupation and enjoyment" and (2) "for the purpose of ingress to and egress from such unit". The staircases now in question only lead to the first floor and the roof to which the first floor owner enjoys exclusive right of possession. The qualifications imposed by the former part of this clause have not been met. For this reason, this part of the clause does not help the Applicant's case at all.

8.The second part of the clause started with the word "Provided". The clause then goes on to give the first floor owners of the individual blocks a right to the exclusive use, occupation and enjoyment of the their respective roof subject to right of access of two types. The two types of access can handily be described as access for repair and access in case of emergency. In my judgment, the construction of a door, a gate and a staircase partition wall is not inconsistent with access for repair for the first floor owner can always grant such access to the Applicant subject to reasonable notice. The items, however, posed a greater problem for access in case of emergency. While an emergency access to the roof for the ground floor occupants may not be very useful during a fire, it might be of some use in case of flooding. If the door or gate in the staircase are locked in case of such emergency, the first floor owner would have committed a breach of this clause. Yet, if the door and gate were unlocked all the time or if keys were provided to the ground floor occupants before hand, the mere existence of the door and the gate should not constitute a breach by the first floor owner. Any way, my analysis on clause 2 seems academic for the Applicant is not seeking keys to the door and the gate but their removal. For this, she must fail in her application.

Orders:

For the reasons I have given in the foregoing, I dismiss those parts of the application which had not been dealt with by way of undertakings given by the Respondent. I also order the Applicant to pay the Respondent's cost with counsel certificate awarded. In the absence of further application by the parties, such cost order to become absolute in 21 days from the day on which judgment is handed down.

Representation:

The applicant, in person

Mr. ODERBERGK, Counsel instructed by M/S Jal N. Karbhari & Co., for the respondent

Remarks:
Appeal by Applicant to Court of Appeal. Appeal allowed. Please refer to appeal judgment of CACV000389/2002.