Hon Empire Investments Ltd. v. The Incorporated Owners of Arts Mansion

DCCJ013675/1989

HEAD NOTE

Tenants in Common - rights - assignment of part of an undivided part or share with exclusive right - unnecessary for vendor to reserve the rights not conveyed.

The Plaintiff purchased a number of car parking spaces at a multi-storey building. The Defendant, the Incorporated Owners erected certain structures which trespassed into the space above the car parking spaces. Defendant contended that an owner of another parking space who acquired the title from the same vendor gave consent to the erections. She had a right to give consent as a tenant in common because the vendor had not reserved the right to the exclusive use of the car parking spaces the Plaintiff bought. Further there was no evidence as to the actual boundaries of the car parking spaces.

Held 1) In the absence of the actual approved plan the Court can rely on the evidence of a plan annexed to the assignment registered in the Land Office.

2) There is no need for a vendor to reserve his vested right and interest in the properties he does not convey.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION NO. 13675 OF 1989

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BETWEEN

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Coram: H.H. Judge W. Wong in Court.

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J U D G M E N T

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1. On the 29th November 1970 Aik San Realty Ltd. owned 14-20/90th equal undivided 338th parts or shares of and in the said premises known as Arts Mansion situate at No. 31 Conduit Road, Hong Kong together with exclusive use of 32 allotted car parking spaces. It assigned 1-40/90th share of the undivided 338th parts together with the exclusive use of car parking space No. 90 to Madam Kwong Hui Lai Ching.

2. In the Deed of Mutual Covenant a Car parking space was notionally allotted 40/90 equal undivided 338th parts or shares of the land.

3. On the 18th November 1985 Aik San Realty Ltd. assigned 13-40/90th equal undivided 338th parts together with full right to use 13 car parking spaces, namely car parking spaces Nos. 32, 34, 37, 39, 46, 52, 55, 56, 57, 59, 64, 74 and 76 to the Plaintiff.

4. On a date unknown to the Plaintiff after it acquired those car parking spaces the Defendant erected a metal fence which allegedly protruded into car parking space No. 55.

5. Sometimes in 1987 the Defendant installed a pipe some 7 inches in diameter running horizontally at a distance of 22" from the floor in the upper basement at the rear end of car parking spaces No. 32 and 34. The Plaintiff alleges that this pipe protruded a distance of 2 inches into the air space of car parking space No. 32 and the bracket supporting the said pipe protruded to a distance of 1 inch into No. 32's air space.

6. That pipe also allegedly protruded 7 inches into the air space above car parking space No. 34.

7. On the 18th November 1989 the Defendant erected a further pipe which allegedly protruded into the air space of car parking space No. 32 over an area measuring approximately 16" x 24".

8. The Plaintiff further complained the Defendant's servants or agents have placed desk, chair, electric fans, cardboard boxes and various objects inside and within the vicinity of car parking space No. 34 to the annoyance of the Plaintiff

9. The Plaintiff purchased those car parking spaces intending to let them out for gain. By reason of the fence at car parking space No. 55 and the erection of the pipe over the space of car parking spaces Nos. 32 and 34 and also because of the Defendant's servants or agents placing various articles in and adjacent to car parking space No. 34 the Plaintiff was not able to let out those 4 parking spaces and had thereby suffered loss and damage. The Plaintiff also seeks damages for trespass and nuisance. In addition the Plaintiff seeks an order compelling the Defendant to remove the metal fence at car parking space No. 55, the metal bracket and pipes at car parking spaces No. 32 and 34 and an injunction to restrain the Defendant's servants to place any object inside car parking space No. 34 or its vicinity.

The Defence is based on 2 limbs namely:

1) the Plaintiff has failed to prove the boundaries of the 4 car parking spaces in question and

2) the Plaintiff has no exclusive right to use those 4 car parking spaces.

Rights of Tenants in Common

10. Mr. Chain for the Defendant argued that by the assignment of car parking space No. 90 by Aik San Realty Ltd. to Madam Kwong, Aik San assigned to Madam Kwong 40/90th share of undivided 338th part of the land with exclusive use of car parking space No. 90. By that assignment Aik San did not reserve the right to exclusive use of the remaining car parking space it then held. Madam Kwong by virtue of the assignment has therefore a non-exclusive right to use whatever car parking spaces retained by Aik San. From then on Aik San had no exclusive right to use whatever car parking spaces it retained. Aik San could therefore only assign to Plaintiff whatever right it had. Counsel for Defence invited me to look carefully from the assignment of the car parking spaces from Aik San to the Plaintiff. He said that from the assignment there was no mention of any grant of exclusive right from Aik San to the Plaintiff. By virtue of the assignment to Madam Kwong she gave consent to the erection of the pipes, brackets and fence.

11. He referred to paras. 547 & 548 of Halsbury 4th edition Vol. 39. He submitted that Madam Kwong is a legal tenant in common and the occupation was undivided. An equitable tenant in common has the same right to the possession of the land and to use and enjoyment of it in a proper manner as a legal tenant in common. One tenants in common is not entitled to turn out the other.

12. He also cited Bull v. Bull 1955 Q.B. 234 concerning the rights of legal owners in common. At p.237 per Denning L.J. "Each of them is entitled to the possession of the land and to use and enjoyment of it in a proper manner. Neither can turn out the other ..... if one of them should go so far as to oust the other he is guilty of a trespass".

13. At p.238 Denning L.J. went on to say, "My conclusion, therefore, is that, where there are two equitable tenants in common, then, until the place is sold, each of them is entitled concurrently with the other to the possession of the land and to the use and enjoyment of it in a proper manner; and that neither of them is entitled to turn out the other".

14. With respect this is a rather ingenius argument which I do not agree. Aik San assigned only 40/90th equal undivided 338th part or share of the land to Madam Kwong with exclusive use of car parking space No. 90. Aik San did not convey the use of the other car parks to Madam Kwong. Her right to the use and enjoyment is defined and limited to that of car parking space No. 90. Albeit that she is a legal tenant in common of the land, that assignment dealt only with car parking space No. 90, the other car parking spaces were not involved. In my judgment Aik San did not have to reserve any right or interest which Aik San had already been vested with in respect of properties it did not intend to part with. It is only necessary to state clearly in an assignment the rights and interests the vendor wanted to reserve in the property to be conveyed.

15. From the assignment of the car parking spaces from Aik San to the Plaintiff, the Plaintiff was assigned the relevant undivided shares together with "the full right and privilege to hold use occupy and enjoy all those parking spaces .....". The full right to use must necessarily mean the right to use to the exclusive of others. The dictionary meaning of the word "full" from the Shorter Oxford English Dictionary is "complete, entire, perfect". I cannot see how it can be said that Aik San had not conveyed to the Plaintiff the exclusive right to use those car parking spaces.

16. By reasons aforesaid Madam Kwong had no right to give consent to the Defendant in respect of properties which she had no right to use.

Boundaries

17. In the agreed bundle there were 3 sets of plans showing the relative positions of the car parking spaces. The first one was the plan annexed to the assignment from the Developer Lock Yuen to Aik San. The car parking spaces were not drawn to scale. It only showed the relative positions. The second one was annexed to the assignment from Aik San to Madam Kwong. Again the car parking spaces were not drawn to scale. The third one was annexed to the assignment from Aik San to the Plaintiff. The car parking spaces were drawn to scale. All those 3 assignments are registered in the Land Office and they are public documents. Mr. Chain argued that the assignment plans are not accurate. If this is the case then it is for the Defendant to prove and produce evidence to say where the boundaries should be. In the absence of any evidence from the Defendant and since they are the only evidence produced, I accept on balance the plan annexed to the assignment from Aik San to the Plaintiff as it was the only one which was drawn to scale. I accept therefore that the boundaries of the car parking spaces are as shown on the plans annexed to the assignment from Aik San to the Plaintiff. The Plaintiff called Mr. W.Y. Yuen an authorised person to give evidence. He went to the site and took measurements based on the plan annexed to the assignment from Aik San to the Plaintiff. He also took measurements of the pipes, the bracket and the metal fence erected by the Defendant (subject matters of the Plaintiff's complaint) and prepared plans showing the positions of the fence, bracket and pipes. I had a site inspection on the first day of the trial before the application for adjournment. At that time the pipes and brackets were still there. I am satisfied on balance that those things had trespassed into the space of the Plaintiff's car parking spaces.

Damages

(i)Car Parking Spaces Nos. 55 & 56

18. In respect of these 2 car parking spaces, car parking space No. 55 is immediately in front of No. 56. The width of the space is very narrow and it is possible to park only small cars. The fence only intruded about 1-½ into the space of car parking space No. 55. The trespass was minimal and could not have rendered that parking space useless or unfit for its purpose.

19. Mr. Lee Man Chung gave evidence for the Plaintiff. He owned a Honda Accord. He rented car parking space No. 55 from the Plaintiff at $500 a month. He rented it for only 1 month. He said the parking space was too narrow with the party wall on one side and the bracket on the other. It was difficult to park his car. After 1 month he found another place in Kotewall Road. He rented car parking space No. 55 because there was a shortage of car park in that area and the rent was low. He had no alternative. He left because there was an alternative.

20. Lam Hon Man, a Director of the Plaintiff gave evidence and said that after Mr. Lee left he was not able to rent out those 2 parking spaces even though there were enquiries from other people. He attributed that to the inconvenience due to the bracket. Having inspected the site I am of the view that the failure to let these 2 parking spaces was due to the fact that the space was too narrow for comfort even for small cars. The inconvenience due to the bracket was minimal and could not have been the cause of the Plaintiff's failure to let out those 2 spaces.

(ii)Car Parking Spaces Nos. 32 & 34

21. These 2 spaces are immediately behind No. 31 and 33 respectively. At the time of my visit Lam Hon Man's car was parked at space No. 32. His car was covered with dust and did not seem to have been used for some considerable time. I am informed that since my visit the bracket and the pipes have been removed. From my observation during the inspection, Lam's car had been parked within the boundaries. The pipes and the bracket could not have contributed to the loss of revenue to the Plaintiff in respect of space No. 32. As to space No. 34 the trespass into the space was minimal and could not have been the cause for the failure by the Plaintiff to let it out. These 2 spaces are land locked by the 2 spaces in front. It would be extremely inconvenient to have access to those 2 parking spaces. Further there was no evidence that the failure to let those 2 parking spaces was due to the bracket and the pipes.

22. For those reasons I do not find that the Plaintiff had suffered loss and damage by reason of the erections of the fence, bracket and metal pipes by the Defendant.

23. As to the objects and articles placed on the space of No. 34 and its vicinity, there was no evidence that those were the Defendant's properties. It cannot be argued that the Defendant has to be responsible because they were placed there by the caretakers. Obviously they did not place those articles there in the course of their employment. The Defendant is therefore not vicariously liable for the acts of its servants which did not arise out of or in the course of employment.

24. I have previously ordered the Plaintiff which is a Limited Company to pay a sum of money into Court by way of security for costs. That sum should be released forthwith to the Plaintiff.

In view of my finding there be judgment for Plaintiff for -

1) an order that the Defendant do forthwith dismantle and remove the metal fence in car parking space No. 55;

2) nominal damage of $1;

3) Costs and Certificate for Counsel;

4) Order for payment out of monies paid into Court to the Plaintiff forthwith.

Representation:

Mr. Andrew Chung inst'd by Y.T. Wong & Co. for Plaintiff.

Mr. Benjamin Chain inst'd by W.K. Lore & Co. for Defendant.