The Devil of Common Parts
Members may recall that I conducted a CPD event on 5 September 2011 jointly with the Chairman of the Board of Professional Development, Mr James Pong. It was indeed the third occasion of the same named CPD, owing to overwhelming response. I was deeply ashamed as I had only taken very little effort on preparing the presentation materials, relying entirely on James. The September event focused on whether the whole or part of the inter-partition wall between two adjoining flats is considered as common part and can be removed by the owner who had acquired ownership of both units. As there remains ambiguity of this issue, I would like to summarize some key decisions of the court in order to catalyze discussion.

It appears little doubt if the inter-partition wall is a load bearing structure. Conventionally, DMC prohibits owners to carry out structural alteration, hence, providing sufficient ground for the DMC manager to enforce non-compliance action.

In Chi Fu Fa Yuen Ltd. v. Cho Wai Man Raymond (LDBM
108/2007), the Lands Tribunal granted an injunction requiring the owner of two adjoining flats to reinstate a load bearing partition wall. Clause 5 of the DMC provides that: "The owner or owners shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions contained herein and in the Second Schedule hereto." and paragraph 4 of the Second Schedule further provides that: "Save as provided in Clause 16(d) hereof, not to make any structural alteration to any flat or shop of which he is the owner which may damage, or affect or interfere with the use and enjoyment of any other part of any building on the Estate whether in separate or common occupation or use ……" Although the Tribunal agreed that the building was still structurally safe after removal of the inter-partition wall as approval and consent were granted by the Building Authority, it considered that the real question should be whether the opening has damaged, affected or interfered with the use and enjoyment of the Building. The Tribunal also ruled that the partition wall is a common part pursuant to Section 2 and Schedule 1 of the BMO in addition to the DMC. Under Section 34I of the BMO, owner is restricted from converting any common part to his own use.

Similar outcome was noted in Central Management Ltd. v. Light Field Investment Ltd. and Another (CACV30/2010). In the plan annex with the assignment, there are three legends describing the inter-partition wall. The first part is coloured pink describing the elements of construction between different occupancies at odd number floors only and can be removed/altered unless the two adjoining units are in same occupancy. The second part is coloured yellow and the same as the first part but for even numbers floors only. The third part is marked by thick black lines and described as "Structural or other elements of construction shall not be removed/altered unless and until it is approved by the Building Authority."

Hon Cheung JA considered that the areas marked pink and yellow are the areas known as the permitted area in the inter-partition wall of respectively odd and even numbers floors which can be opened up by a common owner of two adjoining flats. Although Building Authority had given approval and consent to demolish the part of partition marked black so as to create a larger opening, Hon Cheung JA did not regard the third legend as an indication by the developer that it had intended to assign the partition wall to the owner. The areas indicated by the thick black lines are the structural parts, and under the DMC, defines as "Common Areas and Facilities" which includes "……load bearing walls, foundations, columns, beams and other structural supports of the Development ……" and he also considered that "……such areas within the meaning of 'common parts' as defined by Section 2 and Schedule 1 of the BMO". Clause 1 of the Fourth Schedule of the DMC provides that: "No Owner or the Manager shall make any structural alteration to any part of the Development …… which may damage or affect or interfere with the use and enjoyment of any other part or parts of the Development whether in separate or common occupation …..". Section 34I (1) of BMO was similarly quoted.

Hon Cheung JA also emphasized the importance of construction of a document. He considered that "It would be most odd if something as important as the rights and obligations of the owners is found on a legend in the plan and not in the body of the assignment and clearly expressed in words". What if the inter-partition wall in question is not a load bearing wall? The outcome may be different by making reference to the two cases discussed below.

In Tam Sze Man and Another v. The I.O. of Shan Tsui Court (HCA989/2010), the inter-partition wall in question was coloured pink in both assignment plans of the two adjoining units. And if the Housing Authority (as developer) had already assigned the wall to the first owner, how could it also assign the same wall to the subsequent adjoining owner? The court commented that a clear descriptive text instead of a coloured plan is required to define the exclusive rights of an owner. Something as important as the exclusive rights of an owner should be clearly expressed in words and not just in the legend of a plan. The court considered that, "On a true construction of the First Assignments and the DMC, I find that neither plaintiff was severally or jointly the owner of the Partition Wall." Deputy High Court Judge Au-Yeung further explained that Clause 3 and paragraph 4 to the Second Schedule of the DMC prohibits alteration to the structure of a flat as: "Not to make any structural alteration to any flat of which he is the owner (1st limb) nor cut injure damage alter or interfere which any part or parts of the Estate in common use (2nd limb) or any of the sewers ……" The first limb of this clause applies where the plaintiffs have ownership of The Partition Wall. The 2nd limb applies where the Partition Wall falls within common parts.

The court rejected the argument that the removal of a nonloadbearing partition wall is not structural alteration: "The notion that structural alteration must involve the load-bearing fabric of the building is rejected." and further explains: "In the context of the DMC in question, structural alteration must include permanent physical alteration to the fabric of the building, affecting the common interests of the owners." It was concluded that "…… the demolition of the Partition Wall undoubtedly pertains to the framework and structure …… It removes one boundary wall of each Flat and thus alters the structure. The plaintiffs are in breach of the 1st limb."

By operation of Section 2 and Schedule 1 of BMO, the Partition Wall is a common part because it is a "boundary wall" that sets apart the two units. On the other hand if the Partition Wall falls within the common parts, its demolition is clearly damage, alteration or interference within the Estate in common use in breach of the 2nd limb.

The "boundary wall" principle was however overruled within a month by a higher court in "The Incorporated Owners of Westlands Garden v. Oey Chiou Ling and Another (CACV155/2010)." Clause 4 of Schedule 2 of the DMC restricts an owner: "Not to make any structural alteration to any shop, roof, flat or carparking space of which he is the owner which may damage, or affect or interfere with the use and enjoyment of any other part of any building on the said land whether in separate or common occupation or use, nor cut, injure, damage, alter or interfere with any part or part of any building in common use ……" The Applicant also submitted that the partition wall has been specified in the BMO Schedule 1 including making reference to "boundary walls". However, in paragraph 26 of the judgment, the court does not believe that the expression “boundary wall” covers an internal partition wall. Rather the court believes it refers to a wall at a boundary of a relevant site or development. The Chinese version of "boundary wall" in BMO Schedule 1 is "邊界牆" which supports this view.

It is noted that in the present case, there was no specific reference to the wall, in the assignment or in the DMC, that it was a common area. In the assignment plan, the actual wall itself had not been coloured over in pink. The court also does not believe the case “Elite Garden”, concerning the view of an external wall was part of the fabric of a first floor unit of a building, has any relevance to an internal partition wall, and therefore there involved no structural alteration.

In paragraph 55 of the judgment: "Now if the partition wall was not common parts and had been reserved by the Developer, who are the owners of the partition wall now? Since the Applicant does not claim to have obtained title to the partition wall from the Developer, it probably does not matter who owns the partition wall." The court went on to agree that the partition wall is owned by the owner of the two adjoining units by operation of Section 17 of the Conveyancing and Property Ordinance (Cap 219) which provides: "Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign all the estate, right and interest in the land assigned which the assignor has in that land and which he has the power to assign."

Personally I have doubt having arrived to such a decision. If the owner of the two adjoining unit was assigned with the ownership of the inter-partition wall, and assume he disposes the two units to two separate owners in the future, can he assign the interpartition wall to either one of the subsequent owners? If the answer is affirmative, can the other owner, who does not possess the ownership of the inter-partition wall, claims to use the said wall as an enclosure of his unit? Nevertheless, the "Westlands Garden" case result a significant impact to a DMC manager. There may be unpredictable resistance from owner of combined unit who intended to remove non-loadbearing inter-partition wall. Needless to say, whether a non-loadbearing partition wall is a common part still depends on the proper construction of the assignment and the DMC, and each case should be judged on its own merits.

The above discussion only reflects the personal opinion of the writer by reference to the judgment of those named cases. Readers should not construe it as any form of legal opinion particularly when taking action against owners. It is advised that legal advice should always be sought whenever in doubt.

Property & Facility Management Division Conference 2011
Date: 3 December 2011 (Saturday)
Time:09:00 – 16:30
Venue:Harbour Grand Kowloon – Tak Fung Street, Whampoa Garden, Hunghom, Kowloon

About the Conference
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