published in the 2025 Yearbook of Chartered Institute of Housing (Asia Pacific Branch)
Hong Kong’s urban landscape is among the world’s most densely developed, with the vast majority of residents living in multi-storey buildings under divided ownership. The fragmented ownership frequently leads to disputes over who bears the responsibility to repair and maintain the various parts of the building, ranging from external walls, water pipes, fire services installations and equipment and so on. Over the years, the Hong Kong courts have through a substantial body of case law clarified the scope of “common parts” and how repair obligations and costs are allocated among the Incorporated Owners (“IO”), the property managers (“Manager”) and the individual owners.
- Identifying Common Parts
Generally speaking, it would be the IO’s duty under section 18(1)(a) of the Building Management Ordinance (Cap. 344) (the “BMO”) to maintain the common parts of the development in a state of good and serviceable repair and clean condition. The Manager would also in general have a duty to keep the common parts of the development in proper repair and conditions under the respective Deed of Mutual Covenant (“DMC”) or the Management Agreement.
On the other hand, if a certain part of a building is for an owner’s exclusive use and possession, then irrespective of what the DMC says, it would be for that owner to repair and maintain that part under section 34H of BMO. Section 34H of the BMO provides as follows:-
“34H. Duty to maintain property
- Where a person who owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.
- The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant.”
Section 34H, like other provisions contained in Part VIA of the BMO, were introduced in 1993 to re-write retrospectively all DMCs in Hong Kong primarily to remove unfair provisions to protect individual owners’ interest. As provided under section 34C of the BMO, these provisions contained in Part VIA of the BMO prevail over contrary provisions in the DMC (section 34C of the BMO).
Definition of “common part”
“Common parts” is defined in section 2 of the BMO: “(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and (b) unless so specified or designated, those parts specified in Schedule 1.” Other than more specific facilities such as roofs, chimneys, water tanks, lifts etc., Schedule 1 also covers, as some examples, “installations intended for the use and benefit of all of the owners generally…” (paragraph 10 of Schedule 1) and “Fixtures situated in a flat which are used in connection with the enjoyment of any other flat or other portion of the building” (paragraph 11 of Schedule 1).
The definition of “common parts” or “common areas and facilities” may differ in different DMCs. However, more recent DMCs likely adopted the definition in the BMO as described above. Very often, the definition will not be detailed enough to cover specifically individual facilities and areas.
The “Benefit” Test
Where the DMC does not clearly specify whether a certain part or facility of the building is a common part or for an owner’s exclusive use, case laws often take into account whether it benefits a particular unit or more than one unit in determining that question. Structures and facilities which benefit more than one unit are likely found to be common parts. The location of such part or facility (i.e. whether it is situated within a unit) may be less important.
Some decided cases on the “benefit” test
Therefore, waterproofing membranes have been regarded as common part and facilities even if they are situated beneath roof floors which are for an owner’s exclusive use in many decided cases. For example, in I.O. of Hong Leong Industrial Complex & Anor. v HL Resources Ltd. & Anor. [2010] CACV 89/2009, the plaintiffs are the IO and the owner of a workshop on the ground floor of a 8-storey industrial building comprising workshop and godowns. They, on behalf of all owners, claimed against the developer and the previous management company for damages for breach of DMC and breach of statutory duty. The plaintiff’s claim arouse out of repair of the waterproof layer and system at the top of the building and the maintenance and repair of the walls of the building. The Plaintiffs alleged that the management company had wrongly used sums in the management funds for the repair and maintenance of the roof and external walls of the building. The Court held that the waterproof layer beneath the roof which was exclusively owned by the 1st Defendant is a common part as it is an installation intended for the use and benefit of all the owners generally, which also comes under the definition of paras 10 and 11 of Sch. 1 of the BMO.
Also in Barnes & Noble Property Management Ltd. v IO of Kwan Yick Building Phase III (LDBM 104/2001, 19 Dec 2001), a structural column in the basement car park which is for an owner’s exclusive use were held to be common part for the IO to repair and maintain, as the columns are integral parts of the structural frame for the support and benefit of the entire building. As such, those columns could not be for the exclusive use and enjoyment of the owners of the Basement. Otherwise, it would mean that the applicants might remove these structural columns as they wished. Accordingly, the columns are common parts and all owners shall contribute to the cost of repairing such columns through IO.
The same presiding judge held in IO of Tin Shing Court v. Cheng Yuk Mui and others (LDBM 232, 233 & 235/2000, 25 Jul 2012) that the letter-boxes of individual units at the Ground Floor lobby of the buildings of the development are not common parts. The purported resolution passed by IOMC prohibiting the placing of promotional materials into the letter-boxes was void. The IO’s application for injunction restraining certain owners from doing that was dismissed. The Tribunal did not discuss the function or the benefit served by the letter-boxes. However, at least the decision demonstrates that the facilities situated outside a unit can still be for the exclusive use and benefit of the unit and not a common part or facility.
In the recent Court of Final Appeal’s decision in Donora Company Limited v The IO of Tsuen Kam Centre (FACV 6/2023, 8 Feb 2024), the court held that the external walls of the residential buildings of the suit development are common parts. In arriving at such conclusion, one of the factors the court has taken into account is the inherent structural or architectural functions of the external walls which benefit all owners: –
(a) Holding and supporting the building;
(b) Preventing damage to the building’s interior;
(c) Enabling the co-owners to have peaceful enjoyment of their respective units.
The principle derived from the “benefit” test can be seen when the court decides on the apportionment of management expeneses. In Hong Kong Housing Society v. IO of Heya Star (HCA 874/2019, 22 Aug 2023), the Plaintiff was the developer and retained the non-residential portion of the subject estate. It challenged the IO’s decision to allocate the management expenses for the fire service system and security guard cost to the ECA (estate common area) rather than RCA (residential common area). The most relevant DMC provisions are extracted as below:
“The Management Expenses shall be apportioned between the Owners of the Estate in the following manner:-
(a) Where any expenditure relates to the Residential Common Areas or the Residential Common Facilities providing services to the Owners of the Flats, the expenditure… shall be borne by the Owners of the Flats ….
…
(d) Where any expenditure relates to (i) the Estate Common Areas or the Estate Common Facilities, or (ii) does not fall under any of the sub-clauses (a), (b) and (c) of this Clause 6.4.2, the expenditure… shall be borne by all Owners of the Estate ….
(e) Notwithstanding anything contained in sub-clauses (a) to (d) hereof… where any expenditure relates solely to or is solely for the benefit of a group of Owners but does not relate or is not for the benefit of the other Owners, the full amount of such expenditure shall be apportioned between such Owners in proportion to their respective Management Shares.”
On the smaller amount of the expenses for the fire service system, the court considered that if a fire broke out, the entire building might be affected. Therefore, it held that even though certain fire service equipment was installed only within the residential towers, they were estate common facilities benefiting all owners who should be liable for their repair and maintenance.
For the more significant item of the staff cost of the security guard stationed at the lobby of each residential tower, the security guards were responsible for monitoring and controlling access to the residences and patrolled in the residential towers. The IO allocated all expenses for their staff costs to ECA instead of RCA and argued that those guards also served the Plaintiff as the owner of the carpark and shops, as they might handle matters in respect of those areas like answering inquiries. The court held that even if the guards might answer some occasional inquiry they would just pass on the complaints received to the Manager of the carpark or their supervisor (whose remuneration was paid out of the ECA expenses as he admittedly worked for the whole estate) and not handle them. The court therefore considered that as the services of the guards were for the general benefit and service of the residential flats only, and their remuneration should be paid out of the RCA management expenses.
Water pipes – a less settled area
Water pipes serving a building or development situated outside any units for individual owners’ exclusive use and serving more than one such units are likely common parts and facilities.
There are also water pipes which should be for the exclusive use of a unit and for the owner of that unit to repair and maintain at his cost, for example pipes situated within a unit and serve exclusively that unit. In case of IO of Mount Trio v Chan Ming Chu (HCSA 26/2010, 19 August 2010), leakage occurred at some flushing pipes (a pipe which entered the defendant’s toilet through the wall and another pipe underneath the toilet floor) serving only her toilet, causing damage to some common parts of the building. The Court held that the defendant was liable for the repair cost incurred by the IO as she refused to conduct any repair despite repeated demands. Those pipes were found to be located in areas of the defendant’s exclusive use and possession, and were regarded as fixtures inside her flat.
Pipes situated in a unit but serving more than one unit, according to the “benefit” test and related decided cases discussed above, will likely be common parts in the absence of contrary specification in the DMC or other relevant instrument registered in the Land Registry (see also the presumption under para 11 of Schedule 1 of the BMO set out above).
As can be demonstrated from the cases below, the court is not entirely consistent when it comes to determining whether water pipes situating outside a unit but serving that unit exclusively are common parts or not.
In John So v Lau Hon Man (CACV 110/1993, 5 October 1993), a fresh water pipe serving exclusively a flat burst leading to flooding and damage to the flat immediately below. The pipe was situated in the concrete floor slab separating the two flats. There were prior incidents of leakage occurring. While acknowledging that the floor slab might be a common part, the Court of Appeal upheld the decision of the trial judge that as the pipe was constructed for the exclusive benefit of the upper floor flat, it should be regarded as part of the flat and the flat owner should be responsible for its repair and maintenance. After looking at the definitions of “common parts” in the DMC and BMO, the Court of Appeal had this to say:
“As the respondents are the ones to get the exclusive benefit from the use of their fresh water pipe, it is not unreasonable they should bear the exclusive burden of the cost of repairing it if it becomes defective. Such was the common intent of those entering into the DMC … By allowing their pipe to fall into disrepair with the result that water escaped to the Appellants’ flat, the respondents were in clear breach of their obligation under s.10(c) of the DMC not to permit anything in their flat which might be a nuisance to other occupiers of the building, escape of water from one person’s premises to another’s being a classic instance of nuisance in the eyes of the law. ”
This case suggests that the function and benefit of the facilities are more significant than their locations in deciding whether the facilities are common parts of a building.
However, in IO of Summit Court v Full Surplus Investment Ltd. & Anor (CACV 198/2005, 22 June 2007), the issue was whether various portions of water pipes serving exclusively one unit of the building but situated on such part of the Roof the Defendant has exclusive possession were common parts or for the exclusive use of the said unit. The Defendant applied to the IO for supply of electricity to the Roof, and was rejected by the IO. The Defendant shut down water supply to some flats in the suit building and threatened to cut off water supply to different flats. The IO applied for injunctions restraining the Defendants from disconnecting or interfering with the water supply system and from obstructing or interfering with the IO’s access to water supply system as well as declarations that the water pipes on the Roof were common parts. The Court of Appeal took the view that even after the branching out to the portion serving a unit exclusively, the pipes “would still fall within the definition of common parts because although they were for the exclusive use of the individual owners … It is common sense that … pipes would branch out into individual flats and that such branch pipes would serve each individual flat exclusively. In John So, it happened that the burst water pipe was embedded in a concrete slab. The replacement pipe installed by the respondents ran within the respondents’ flat. In that case, it was obvious that the new pipe was physically in the respondents’ part of the building. The burst pipe was embedded in the floor / roof. But we do not regard John So as deciding that the installation of separate water meters was determinative”. The court ruled in favour of the IO and held that the IO shall have the right of access at any time to the Roof for the purpose of maintaining the water pipes, including those pipes which were branched out after the water meters, which were all common parts and facilities of the buildings.
The decision in Summit Court does not fit into the “benefit” test, although it might do justice between the parties before the court in that case. Also, the reasoning given by the court in distinguishing the case from John So is not easy to understand. The conflict between Summit Court and John So above may result in confusion on whether management fund can be applied to repair and maintenance of water pipes situating outside but serving exclusively one unit.
The Lands Tribunal has the chance to rule on whether such water pipes were common parts of the building again in the latest case of Ng Choy Leung v 信和物業管理有限公司 (LDBM 93/2022, 19 January 2024 and 26 June 2024). This case concerns water leakage from fresh water pipes at the corridor, which run through the corridor and serve exclusively to each unit. The Respondent manager sought legal opinion saying that such pipes were common parts (citing Summit Court). An owner’s resolution was passed to resolve that the manager shall be responsible for all maintenance and repair of such pipes. For a few years, a sum of over $2 million had been incurred for repairing the pipes concerning 94 units. The Applicant was the owner of a unit and was dissatisfied with this arrangement. He therefore sought ruling that these pipes were exclusively owned by the respective owners who should bear the respective repair fee. The application was dismissed and the water pipes were held to be common parts. Therefore, the Manager had the duty to repair and maintain them under the DMC with the building funds. The application and its subsequent review were dismissed. The Tribunal’s reasoning is as follows. Under section 2 of the BMO, all parts of the building were common parts unless specified in a registered land instrument for exclusive use, occupation and enjoyment of specific owner. Here, “common parts and facilities” was defined in the DMC to include also “other facilities whether ducted or otherwise through which fresh or salt water … are supplied to”. – The Tribunal took the view that the concerned fresh water pipe at the corridor falls within this definition. There was no provision in the DMC or Assignment which specifies that the pipes at the corridor were for the exclusive use, occupation and enjoyment by respective owner. In reconciling the rulings under Summit Court (as relied by the Respondent) and John So (as relied by the Applicant), the Tribunal said as follows:
- In Summit Court case – water was supplied from roof running downwards to other floors through 20 branch pipes, each branch together with an independent water meter only serve 1 unit. Despite so, these branches of pipes were held to be common parts as they belong to the same set of water supply system.
- In John So case – the pipes having leakage issues located below the concrete slab of the concerned unit. Given this distinct features, the pipes were therefore regarded as part of the leaking unit. However, the Court in this case made clear that it did not set down any hard and fast rule that all pipes supplying water to one unit could not be regarded as common parts.
- The Tribunal took the view that the physical location of the concerned pipes was part of the consideration. However, the presence of an independent water meter itself has never been a determining factor.
Here, as the pipes located in the corridor, Summit Court should apply. Further, the DMC should be interpreted to give business efficacy. It would simply bring about absurd results if the DMC intended for each unit owner to repair and maintain their respective water pipes at the corridor. Given the difference in progress of the construction works taken by each unit, it might mean that there would be continual construction works taking place at the corridor near the lift lobby, hindering the co-owners’ effective use of the same. This simply could not have been what the DMC intended. The Tribunal further considered that even if the water pipes at the corridor were not common parts, the Manager would be under a duty to repair it if the owners refused to under the DMC provisions. The DMC also provided that the Manager could recover the costs and losses in carrying out the said works. The owners had no rights under this DMC to obtain any refund from the Manager of the management fees paid for the repair works.
If location of the water pipe (or indeed any other structures and facilities concerned) is the decisive or even a significant factor in determining whether it is a common part, and not its function or benefit, this will be against the line of decided cases discussed above. The reasoning in support of the decision in Ng Choy Leung’s case is at least arguable. That case was decided by the Lands Tribunal and cannot overrule the Court of Appeal’s decision in John So’s case in any event.
In short, the following general principles may be derived from the above cases (subject to contrary provisions in the DMC):
- If the pipe is within the Defendant’s premises and is serving the premises exclusively, it will likely be for the Defendant to repair and maintain (section 34H and the Mount Trio’s case)
- If the pipe is within the Defendant’s premises but is serving the Defendant and other owners as well, the structure will likely be a common part
- If the pipe is outside the Defendant’s premises and is not for the Defendant’s exclusive benefit, then it will likely a common part.
- If the pipe is outside the Defendant’s premises but is serving the Defendant and other owners as well, the position unwell be less clear as it may be difficult to reconcile the decision in the John So’s case and Summit Court’s case, although the recent Ng Choy Leung’s case seem to suggest that the pipe may be a common part.
- IO’s/Manager’s potential liability due to failure to repair and maintain the common parts and facilities
In cases of water leakage, if the source of water leakage is common part and facility, it will be for the IO/ Manager to do all necessary repairs to stop the leakage. IO’s duty is to take reasonable measures to prevent such leakage only. Of course, they are not insurance companies and are under no duty to compensate the victims for all losses due to water leakage. However, if the IO fails to take reasonable measures within reasonable time and fulfill such duty, they may be held liable for breach of their statutory duty under section 18(1)(a) of the BMO or even nuisance at common law. For Managers, their primary duty is also to repair and maintain the common parts same or similar to the IO. Often, any claims made against them arising from disrepair of the common parts rises and falls with the claims against IO. Of course, the precise duty and obligation of the Managers are defined by the DMC or Management Agreements by which they are appointed. There may also be some exemption or limiting provisions in the DMC or Management Agreement concerning their liability. However, whether those exemption or limiting provisions assist the Manager in an individual case may involve not simple legal issues. Breach of duty may also lead to complaints to the Property Management Services Authority (PMSA) whether or not the manager is liable in law for compensation. Further, Managers as professionals may have to remind IO their duties and potential liability and urge them to seek legal advice.
Some decided cases
The following two cases which lead to different results can be contrasted.
In Lee Ming Yueh v IO of Mei Foo Sun Chuen Stage VII & another (CACV 265/2008; Date of decision: 19th September 2012), the Manager engaged contractors to replace the waterproof membrane underneath the roof. One year after the project had been completed, leakage occurred in a top floor unit. At first, the Manager mistakenly believed that the source of water seepage was the external walls, and arranged another contractor to do repair there. However, leakage continued. Later, after performing some tests, they found that the roof was the source of leakage. As there was 10 years’ DLP under the roof waterproofing contract, the Manager called upon the contractor to perform rectification works. About one year later, leakage occurred in the unit again. The Manager office asked the same contractor to do the repair, and after two more rounds of further repair works, the leakage ceased. The owner of the top floor unit sued the IO and the Manager for having breached their duty to repair and maintain the common facility (i.e. the waterproofing membrane) which caused her nuisance and loss (including loss of rental during the period when the unit could not be let out due to the leakage problem). The Lands Tribunal said that the Manager and IO had taken reasonable measures to maintain the common areas and facilities, they would not assume any liability. The Manager dealt with the complaints swiftly every time, although they had mistaken as to the cause of leakage initially which caused some delay, it could not be said that they had failed to take reasonable measures to fulfill their responsibilities. Therefore, the claim was rejected. The owner appealed to the Court of Appeal, where she argued that the Manager had failed to appoint a competent contractor to carry out repairs, or to properly supervise the works. The Court of Appeal held that there was no evidence to show that the management office hired an incompetent contractor to carry out the roof waterproofing project in the first place. Later, since there was a 10-year DLP, they reasonably asked the same contractor to follow up with the works. Although the problem did recur, after the first two rounds of maintenance, leakage did stop for about a year. It was not unreasonable for the Manager to ask the same contractor to attend to the subsequent follow up repairs. The Court considered other decided cases and said that the DMC or section 18(1) of the BMO did not require the Manager or IO to make compensation whenever problems and damage occurred as if they were insurance companies. Their liabilities in law were based on fault, or, when a problem arose and they failed to rectify it for more than a reasonable time.
In Lau Chun Wing Rod v IO of Po On Building (CACV 20/2007; Date of decision: 1st November 2007), the building underwent renovation after which water leakage was found to persist in the Plaintiff’s flat. The Defendant referred the Plaintiff‘s complaint to the renovation contractors who alleged that it was the Plaintiff’s own works in his unit which had caused the problem. The Defendant denied liability and relied on the contractor’s reply without taking active steps to investigate into the matter. The case went to the Court of Appeal which held that IO was liable to the Plaintiff caused by water leakage into his unit (including loss of rental), as every time the IO simply referred the owner’s complaint to the contractor, even though the problem had persisted for a few years. Therefore, the IO had not taken reasonable and appropriate measures to solve the problem. The IO’s appeal is dismissed with costs, and is required to pay the plaintiff damages to be assessed.
It should be noted that damages for nuisance include a general damages for distress and inconvenience as well as special damages. If the Plaintiff has been letting and receiving rental for the affected premises, there may be a claim and award for loss of rental at a substantial sum, if the premises becomes unlettable or can only be let at a substantially reduced rental.
Some examples on the award of damages for distress and inconvenience can be shown in the table below:
| Plaintiff/ (Year of Judgment | Duration | Damage circumstances | Amount of Damages | |
| Chen Fei Lung (1990) | Around 2 months | The unit sustained significant damage. During the repair period, the premises were filled with dust, with building workers frequently coming and going, and there was no supply of water or gas. | $25,000 | Major maintenance |
| John So (1993) | Around 1.5 months | Minor leaks have affected the dining room, bedrooms and bathrooms. Following the burst pipe, the ceilings and walls in the dining room and living room require rewiring and new wallpaper. | $10,000 | Slight dripping |
| Leung Yung Chun (2000) | Around 2 years | Water leakage in two bedrooms and the corridor requires the property owner to drill through the walls to drain accumulated water and re-lay electrical wiring to prevent short circuits. | $80,000 | More serious |
| Cheng Chi Wing (2007) | Around 1 year and 1 month | The bathroom first showed signs of leakage, with prolonged dampness leading to mould growth and foul odours. Subsequently, water stains appeared in the kitchen, attracting insect infestations, and the occupant developed a skin condition. | $45,000 | |
| Chung Che Sum (2007) | Around 3 years | Water leakage in the master bedroom and guest room; Damaged extractor fan in the toilet; Water stains appearing on the kitchen ceiling. | $80,000 | Considerable length of time |
| Lau Ting Hang (2008) | Around 1 year | Water seepage in the master bedroom and kitchen requires the property owner to install drainage pipes to collect accumulated water, with daily cleaning to be carried out three times. | $30,000 | Water-dripping |
| Yan Wing Fai (2011) | Around 2.5 years | Water seeped through the ceiling of the guest toilet, initially dripping approximately every five seconds. Over the subsequent fifty days or so, the seepage became quite severe, ultimately deteriorating to a very unpleasant level. | $40,000 | Water-dripping |
| Leung Wai Kee (2012) | Around 2 months | Water dripping was observed from the ceiling to the partition wall separating the two bedrooms. Traces of water leakage were also noted on the ceiling outside the bathroom and within the corridor. The interior decorative paintwork and wallpaper exhibited significant peeling. | $25,000 | Water-dripping |
| Cosmos Legal Consultant (2013) | Around 2.5 years | Water seepage has been detected in the ceilings of the master bedroom and guest room. Although the leakage issue has persisted for over two years, the property experienced a prolonged period of vacancy. | $60,000 | |
| Wong Kwai Hei (2015) | Around 2 years | Swage has accumulated within the electrical switchboard, causing cracks, flaking, water stains and mould to form on the unit’s interior walls and ceiling due to leakage, accompanied by a foul odour. The situation has become so severe that the applicant and their family have been compelled to vacate the premises. | $50,000 | |
| Tsai Hsiu Yun (2016) | Around 3 years | Water seepage has appeared on the ceiling and living room walls, with the situation worsening over time and causing damage to the toilet and kitchen. The tenant terminated the tenancy early, and the property has since remained unrented. | $20,000 | |
| Lam Kit Yee (2017) | Around 1 year and 3 months | Sewage has affected the master bedroom, master bathroom and living room, and there is also an unpleasant odour from the sewage. | $50,000 | |
| Yeung Chiu Wing (2017) | Around 3 years and 3 months | Sewage has affected the balcony, bathroom and kitchen ceiling, causing peeling and unpleasant odours on the interior walls and ceiling due to water leakage. | $50,000 | |
| Sum Wing Sung v Kwok Wing Yan Vivian (2021) | Over 7 months | Water seepage affecting bedroom, with moulds and black spots found, created odour | $30,000 |
Even if the source of water leakage is identified to be areas and facilities for the exclusive use of the owner of a particular unit, IO and Manager may still be obligated to take appropriate action. An example is when the DMC contains the usual provisions that an owner shall not cause any nuisance, annoyance and disturbance etc. to other owners/ occupiers. It is incumbent on IO to enforce the DMC under section 18(1)(c) of BMO. If the defaulting owner fails to take reasonable steps to abate the nuisance, IO may have to take action to compel him to do that. Again, as the DMC or Management Agreement also empowers and requires the Manager to enforce the DMC, the Manager often stands in a similar position to IO, subject to the precise provisions in the DMC or Management Agreement including any exemption clauses. In MTR Corporation Ltd v. Cheung Ching Kin (2015) where complaints were made by various flat occupiers against noise produced from a flat often at small hours repeatedly, the DMC Manager took action and successfully obtained an injunction against the owner of the said flat concerned restraining him from causing or permitting to be produced any noise or vibration or to be done acts causing a nuisance to other owners, occupiers or members of public. If the manager fails to take action for breach of the DMC against the defaulting owner, individual owners may apply for court order compelling the IO/Manager to do that.
The IO and the Manager’s duty to take action can be illustrated in the following cases. In See Wah-fan v I.O. of Ki Tat Garden CACV 389/2002 decided by the Court of Appeal on 2nd April 2003), an iron gate was erected by an owner at the common part which prevented other owners from accessing the staircase to roof level. The Plaintiff was another owner of the Estate. Her action against the owner who erected the gate failed, as the court held that pursuant to s.16 of the BMO, only IO could take action in respect of the common part. However, IO did not take any action. The Plaintiff sued the IO. The Court of Appeal said that IO was both empowered and obligated to enforce the DMC and ordered that the IO should take actions, including legal actions against the faulted owner to prevent him from erecting the iron gate or causing or permitting any interruption to passage by other owners or occupiers through the staircase.
In Law Bik Ling v Kai Shing Management Services Ltd. LDBM 42/2010 (decided on 15th September 2010), a metal frame was constructed on the external wall of the suit estate supporting the split-type air-conditioning units. Under the DMC, no owner shall use or permit or suffer any part of the Estate owned by him except in accordance with any applicable Building Regulations or any Government Ordinances, and no structures extending outside the exterior of the building shall be erected or installed. The Applicant was an owner in the estate who had complained to the Respondent Manager of the existence of those structures but no legal action has been taken against the defaulting owners, as the Manager was of the view that the metal frame is permissible under the DMC and therefore no enforcement action is required As there was an IO for the estate, the Applicant has no right to request the owner of the suit flat to remove the metal frame directly because of s.16 of the BMO, even if such installation is in breach of the DMC. The Applicant applied to the Lands Tribunal seeking an order requiring the Manager to take legal action to remove the unauthorized building work erected at the external wall. The Lands Tribunal referred to See Wah Fun’s case, and held that similar duty to those of the IO was owed by the Manager who was compelled by an injunction to take action against the defaulting owners
Conclusion
As demonstrated above, it has been consistently decided in various cases that waterproofing membranes beneath the floors of the roof tops, structural elements such columns and external walls which protect or support the building as a whole are common parts and facilities for the IO/Manager to repair and maintain.
The position is less clear as to the water pipes outside but serving one unit exclusively. While the Ng Choy Leung’s case seems to suggest that such water pipes may be common parts, it cannot be said the law is settled on this point, at least not until the Court of Appeal has the chance to review or overrule John So.
As discussed above, even if the water pipes at the corridor were not common parts, the Tribunal in Ng Choy Leung’s case considered that the Manager would be under a duty to repair it if the owners refused to under the DMC provisions. The DMC also provided that the Manager could recover the costs in carrying out the said works. It was held in that particular case that the owners had no right to obtain any refund from the Manager of the management fees paid for the repair works.
In practice, there may be cases where the IO or Manager is obligated to conduct repair on certain water pipes even if they are for the exclusive use or benefit of the owner of a particular unit. For example, when there is another provision in the DMC requiring the IO or Manager to do so, or the lack of repair would cause nuisance and damage to the owners or other common parts and facilities.
“This article is for general reference only and should not be acted upon in any actual case. Further, the information contained in the article may not be updated. The readers should consult their solicitors for legal opinion.”