Case Summaries

Sit Kwong Lam v Management Corporation Strata Title Plan No 2645

SUPREME COURT OF SINGAPORE

5 March 2018

Case summary

Sit Kwong Lam v Management Corporation Strata Title Plan No 2645                [2018] SGCA 14
Civil Appeal No 28 of 2017

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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):

Outcome: CoA dismissed appeal against decision that the appellant had breached various by-laws by carrying out works on the common property of a condominium development without the necessary approvals.

Pertinent and significant points of the judgment

· CoA held that the fact that an area had been demarcated as common property on the strata title plan established that it was, at least on a presumptive basis, part of the common property of the development: at [39].

· The two limbs of the statutory definition of “common property” under s 2(1) of the Building Maintenance and Strata Management Act were to be read conjunctively: at [44].

· The second limb of the definition was to be interpreted broadly. It did not require an area to be physically accessible by any of the subsidiary proprietors. Nor did it require the area to be currently used or enjoyed the occupiers of two or more lots: at [60], [61].

· The appeal was dismissed. The areas in which the appellant had carried out works were common property. Since the appellant had carried out the works without prior authorisation of the respondent, such installation was in breach of the relevant by-laws. The exception in by-law 5(3)(c) did not apply: at [71], [80].

Background to the appeal

1         Civil Appeal No 29 of 2017 was an appeal by Sit Kwong Lam (“the Appellant”) against the decision of Justice Kannan Ramesh (“the Judge”) in Sit Kwong Lam v MCST Plan No 2645 [2017] SGHC 57.

Facts

2          The Appellant was a subsidiary proprietor of a penthouse unit (“the Unit”) of one of the towers of a condominium development (“the Development”). The respondent was the management corporation of the Development (“the Respondent”).

3          In August 2013, the Respondent discovered that the Appellant had installed timber decking on two ledges that bordered segments of the Unit’s external facades (“Work 1”). The Respondent concluded that Work 1 entailed the exclusive use of the common property of the Development, which it had no jurisdiction to authorise. Thus, the Respondent advised the Appellant to seek the necessary approval for Work 1 at the next Annual General Meeting (“AGM”). The Appellant initially did not pursue this course.

4          In May 2014, the Respondent discovered that the Appellant had covered the entirety of a flat roof outside the Unit with similar timber decking (“Work 2”). Further, the Appellant had installed an air-conditioning ventilation unit on an external wall enclosing the Unit (“Work 3”). Works 1, 2, and 3 are collectively referred to as “the Works”. The Respondent requested that the Appellant remove or demolish “all unauthorised works”, but there was no resolution.

5          In April 2015, the Appellant tabled motions at an AGM seeking the exclusive use and enjoyment of, and/or special privileges in respect of, the areas where the Works had been carried out (collectively, “the Areas”). However, he failed to secure the requisite number of votes on any of the motions.

6          On 30 June 2015, the Appellant applied to the Strata Titles Board (“STB”) seeking a number of orders, including a declaration that he had not breached any of the by-laws in having executed the Works. On 11 February 2016, the STB dismissed his application.

7          On 10 March 2016, the Appellant filed an appeal against the STB’s decision pursuant to s 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”). The Judge dismissed the appeal. He held that the two limbs of the statutory definition of “common property” under s 2(1) of the BMSMA were to be read conjunctively. Further, the correct way to construe the second limb of the definition was to ask whether the area in question was for the exclusive use of the occupiers of the unit in question, in which case it would not be common property. Applying that test, the Judge found that the Areas were all common property. Further, the Judge found that the Appellant had, by installing the Works without the prior approval of the Respondent, breached by-laws 8.1.1 and 8.2.5 of the Additional By-Laws and by-law 5 of the Prescribed By-Laws of the Development.

Decision on appeal

8          The Court of Appeal dismissed the Appellant’s appeal.

9          As a preliminary matter, the Court of Appeal noted that the fact that an area in a development had been demarcated as common property on the relevant strata title plan established that it was, at least on a presumptive basis, part of the common property of the development. In such circumstances, it would be for the party contending otherwise to prove that the strata title plan was in error (at [39]).

10          The two limbs of the definition of “common property” under s 2(1)(a) of the BMSMA were to be read conjunctively (at [44]). This accorded with the text and structure of the definition (at [46]), and nothing in the relevant extraneous materials suggested that there was any legislative purpose behind the definition that pointed away from its plain and clear meaning (at [47]).

11        The BMSA did not envisage a third category of property in strata developments that was neither part of the common property nor the property of any individual subsidiary proprietor (at [54]). However, the Judge’s interpretation of the second limb of the definition of “common property” could not be sustained (at [59]). The second limb should be interpreted broadly (at [60]). Any area or feature that could affect the appearance of a building in the development, or that was part and parcel of the fabric of the building, could, by its mere presence, be “enjoyed” by the subsidiary proprietors of the development. In order to be considered common property, there was no need for the area or feature to be physically accessible by any of the subsidiary proprietors (at [61]), or for it to be currently used or enjoyed by the occupiers of two or more lots (at [62]).

12         Any area or feature in respect of which the management corporation had assumed a duty to control, manage, administer, or maintain would presumptively be taken to have satisfied the second limb of the statutory definition of “common property”, unless it was shown that the management corporation ought not to have assumed such a duty (at [63] ).

13          On the facts, the ledges on which Work 1 had been constructed were part and parcel of the fabric of the building. It did not matter that the ledges were not physically accessible by any subsidiary proprietor. The ledges were also not comprised in any lot. Thus, the definition of “common property” in s 2(1) of the BDSMA was satisfied (at [66]). The flat roof and wall on which Works 2 and 3 had been installed were also part and parcel of the building’s fabric, and the Respondent had assumed responsibility for their maintenance. They were not comprised in any lot. Thus, flat roof and wall both satisfied the definition of “common property” (at [67]).

14          Works 2 and 3 did not fall within the exception in by-law 5(3)( c) of the Prescribed By-Laws. Having regard to the other exceptions in by-laws 5(3)(a), (b), and (d), by-law 5(3)(c) must be limited to the situation where a subsidiary proprietor erected a structure or device on common property in order to prevent harm to children while they were within his lot (at [74]). Work 2 was not installed to prevent harm to the Appellant’s children while they were within his Unit (at [76]). In respect of Work 3, there was insufficient evidence of a direct correlation between the installation of the air-conditioning ventilation unit and the prevention of harm to the Appellant’s children within the Unit (at [80]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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