YU Chau Yeung v. Incorporated Owners of Yee Hong Building

L.T. Case No. BM76 of 1995

- H E A D N O T E -

Deed of Mutual Covenant-Building Management Ordinance-Powers of Owners Incorporated-Interpretation of DMC.

With permission of the respondent owners incorporated, antenna equipment was fixed to the upper level roof structure of the building and wired to transmitting equipment set up in premises on the First Floor of the building. The respondent receives a monthly fee for permitting such installation and use. The applicant owner of a flat in the building complained that the installation was an unauthorized user under the DMC and in breach of building safety regulations. Held: (1) there is a general principle that every owners incorporated must act according to the law and within its powers granted by law and the governing deed of mutual covenant; (2) the applicant made a negative averment specifically referring to breach of building regulations, the balance of convenience lies on the owners incorporated to prove compliance with those regulations; (3) in the absence of express stipulation in the DMC as to user, the common parts of the building must be maintained solely for the common enjoyment with unrestricted access of all occupiers of the building; in other words, to use common parts in the building for any specific user, express provision in the DMC or in the Ordinance to that effect is required; (4) the respondent has acted ultra vires section 18 of the Building Management Ordinance, for an owners incorporated is empowered to make better use of the commons parts only by establishing lawns, gardens and playgrounds, the antenna installation cannot possibly fall within the use allowed by the Ordinance; and (5) adopting a modern expansive interpretation of Clause 5(t) of the DMC which prohibits "any name, sign, signboard, neon sign, or any other sign or any flag, decoration, notice, advertisement or any other thing .... on any common part of the building", the antenna installation for the purpose of propagation of information and messages by radio waves falls within the class of things prohibited.

L.T. Case No. BM76 of 1995

IN THE LANDS TRIBUNAL OF HONG KONG

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REASONS FOR DECISION

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1. The parties came before me on 18th October, 1995 for determination of a building management dispute. After hearing the parties, in view of the urgency for a mandatory injunction to be granted the same day, I gave only brief and short reasons for my decision. This is the full reasons for the decision.

2. The parties were in agreement over all the essential facts. The applicant is at all material times the owner and occupier of the unit situate and known as Flat B, 21st Floor, Yee Hong Building, 212 Wanchai Road, Hong Kong. The respondent is at all material times the registered owners corporation for the said Yee Hong Building ("the building"). The 21st Floor of the building happens to be immediately below the roof of the building.

3. It is common ground that not long ago antenna equipment ("the installation") was fixed to the upper level roof structure of the building and wired to transmitting equipment set up in premises on the First Floor of the building. It is admitted by the respondent that the respondent receives a monthly fee from the owner and operators of the installation for permitting such installation and use. In other words, the roof has been turned into business or commercial use.

4. The applicant made a number of complaints about the hazards brought about by the existence and use of the installation. In particular and more cogently, he contended that the installation is in breach of building regulations in respect of load bearing or construction safety and the deed of mutual covenant for the building ("the DMC"). He prayed for an order by the Tribunal to remove the installation.

5. Neither party has called any evidence as to whether the installation is in breach of building regulations. The applicant explained that he had complained to the Building Ordinance Office about the installation but the Office indicated that it was too busy with other work to be able to spare inspectors to examine the installation. Both parties in effect based their respective case on the interpretation of provisions in the DMC and the Building Management Ordinance, Cap. 344 ("the Ordinance"). The applicant relied on Clause 5(v) and Clause 11(d) of the DMC. Miss Chan for the respondent contended that the installation does not contravene any of the provisions in the DMC. If there was breach of the building regulations, she said, the burden of proof is on the applicant which he had not discharged. Furthermore, the respondent is entitled under the DMC and the Ordinance to manage the common parts of the building as its sees fit.

6. The parties referred to these clauses in the DMC:-

5(v) No owner shall cause suffer or permit the erection on the roof the flat roof or the external walls or any part thereof structures of any kind which contravenes the provisions of the Building Ordinance of Hong Kong and all other Ordinances.

11(d) Not to use or permit or suffer to be used any part of the First to Twenty-First floors (both inclusive) of the said building otherwise than for private residential purposes only and not to use or permit or suffer to be used any part of the Ground Floor and Lower Ground Floor of the said building otherwise than for non-domestic purposes only and in accordance with the user permitted under the Crown Lease and designated by the Occupation Permit of the said building.

7. In my view, Clause 5(v)simpliciter does not assist the applicant unless he comes up with specific proof of breach of the Building Ordinance. However, I would hold that there is a general principle that every owners incorporated must act according to the law and within its powers granted by law and the governing deed of mutual covenant. There is nothing bold or novel about this principle for every person is obliged to obey the law and to act lawfully.

8. However, there is the complication of burden of proof. It is unfair and impracticable to require an owners incorporated to produce proof of compliance with every law in force in Hong Kong and every clause in the deed of mutual covenant whenever an interested party challenges an act or omission of the owners incorporated. Where a party is alleged to have breached the law, the general rule is that the burden of proof lies on the party who asserts the breach. However, there is also a well established exception that the burden is shifted to the defending party if the assertion constitutes in effect a negative averment and the balance of convenience lies on the defending party to produce proof of compliance with the law. In this case, the applicant made a negative averment specifically referring to building regulations. I think the balance of convenience lies on the owners incorporated to prove compliance with those regulations. This can be done by the respondent either calling upon the Building Ordinance Office to give evidence or producing expert evidence from qualified engineers in private practice. In the premises, until the respondent has produced evidence to my satisfaction regarding compliance with building regulations within a reasonable period of time, I am prepared to order the removal and discontinuance of use of the installation.

9. Clause 11(d) also does not appear to assist the applicant at first sight. However, on further and better reading of that paragraph, I found that on the true interpretation of that paragraph, in the absence of express stipulation in the DMC as to user, other parts of the building may not be used for residential or business purposes; the common parts of the building have to be maintained solely for the common enjoyment with unrestricted access of all occupiers of the building. In other words, to use common parts in the building for any specific user, express provision in the DMC or in the Ordinance to that effect is required. This view is re-inforced by, for example, Clause 4 which reserves the right to the First Owners to erect signboard or advertisement on the external walls of the building.

10. It may be argued that whereas Clause 11(d) does not expressly permit the installation on the roof, it does not expressly prohibit the installation on the roof either. In this respect, I find the following provision in the DMC relevant:-

5(t) No owner shall paint affix install construct exhibit display or fit up any name, sign, signboard, neon sign, or any other sign or any flag, decoration, notice, advertisement or any other thing on any part of the common entrances, staircases, landings, common passages or any other common part of the said building......

11. The literal interpretation of this paragraph is that it prohibits the erection or construction of any thing on any common part of the building that may be used for the propagation of information or messages. The antenna installation in question here is also a device for the propagation of information and messages. I do not think it is appropriate to draw an artificial distinction between propagation through visual contact and propagation through radio waves. A modern expansive interpretation of Clause 5(t) should be adopted. It follows that the installation comes within the prohibition by Clause 5(t). And there is no doubt that the respondent as owners incorporated is bound by the DMC as any other individual owner.

12. Turning to the Ordinance, I find that the only relevant provision in this context is section 18. There, under section 18(1), an owners incorporated is empowered to maintain common parts, to carry out works only when required by a public authority and to enforce the deed of mutual covenant only (emphasis added). There is discretion given to owners incorporated by section 18(2)(f) to make better use of the commons parts only by establishing lawns, gardens and playgrounds. In this case, the installation cannot possibly fall within the discretion allowed by the Ordinance. In regard to the installation in question here, I find that the respondent has acted ultra vires its powers under the Ordinance.

13. Accordingly, I ordered that the respondent do by itself, its agents or otherwise cause the termination of use of the antenna installation on the roof of the building within 21 days from the date of the order and to remove the said installation within 2 months from the date of the order. And I made no order as to costs.

Dated this 23th day of October, 1995.