Read the full judgment text of LDBM232/2011, LDBM233/2011, LDBM235/2011 on BabelCite. This Land Tribunal judgment was delivered on 25 July 2012 before 黃一鳴.
Building management – common parts – owners' corporation – application for injunction to restrain owners from distributing letters/flyers in ground floor lobbies into owners' mailboxes – Deed of Mutual Covenant Schedule 4 paragraph 14 and Building Management Ordinance s.34I(1)(b) – whether respondents occupied common parts – whether respondents' conduct caused nuisance to other owners – validity of management committee resolution banning promotional materials in mailboxes – whether respondents' owner-to-owner communication is constrained by such resolution – District Court Land Tribunal – three consolidated applications LDBM232/2011, LDBM233/2011 and LDBM235/2011. Facts: On the nights of 26 October 2010 and 5 July 2011, three flat owners of Yuen Long Tin Shing Court together with other owners entered the ground floor lobbies (common parts) of the various blocks to distribute letters/flyers into individual owners' mailboxes. The Incorporated Owners (applicant) sought an injunction restraining such conduct, relying on a 2009 management committee resolution prohibiting promotional materials from being placed in mailboxes, Schedule 4 paragraph 14 of the DMC (no disturbing noise or interference with rights, comfort or conveniences of other owners) and s.34I(1)(b) of the Building Management Ordinance (unreasonable interference with use and enjoyment of common parts or nuisance/danger). Issues and holdings: (1) Whether respondents occupied the common parts – No; brief presence in the lobbies of at most ten-plus minutes to distribute letters, without obstructing other owners' passage or access to mailboxes, was an exercise of the right of use under DMC clause 2(a) and Schedule 2 paragraph 2 rather than occupation. (2) Whether respondents' conduct caused nuisance to other owners in breach of DMC Schedule 4 paragraph 14 and BMO s.34I(1)(b) – No; the applicant failed to prove that any owner was directly interfered with by the act of distributing letters, since the applicant did not call the two complaining residents (Block A and Block G) to give evidence, the Block A complaint was directed at the security guard's conduct, and the Block G dispute was not shown to have been caused by the act of letter distribution itself. (3) Validity of the 2009 management committee resolution – No; under DMC clause 5(b) and BMO s.18(1)(c), the management committee's powers relate to maintenance, management, control and administration of the estate, but private mailboxes are not common parts, and BMO Schedule 7 paragraph 9 only requires the manager to consult the corporation on communication channels and does not require individual owners to consult the corporation when communicating with other owners. The applicant therefore had no power to restrict owner-to-owner communications, and the resolution was invalid. (4) Whether respondents' letter distribution is constrained by the 2009 resolution – No; given the resolution's invalidity, the respondents could not be bound by it; further, even if valid, the resolution's scope was directed at external organisations' promotional materials and could not extend to owner-to-owner communications about the estate's management, even where such communications had a promotional character. Outcome: All three applications dismissed; applicant to pay the respondents' costs of the three cases on a District Court basis (taxed if not agreed); the interim costs order to become final if no costs application is made within 14 days.
Legal issues: Whether respondents occupied common areas of the estate · Whether respondents' conduct caused nuisance to other owners · Validity of the 2009 management committee resolution banning promotional materials in mailboxes · Whether respondents' letter distribution is constrained by the 2009 resolution
Outcome: Application dismissed in all three consolidated cases (LDBM232/2011, LDBM233/2011 and LDBM235/2011); the respondents are not restrained by any injunction from distributing letters into mailboxes in the ground floor lobbies of the estate.