漢宮大廈業主立案法團 v. NEW WIDE DEVELOPMENT LTD.

LDBM 407/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 407 OF 2001

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JUDGEMENT

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1. The Applicant The Incorporated Owners of Han Palace Building has resolved in an owners' meeting on 31st October, 1994 to raise $3,250,920.00 for maintenance of the building. This sum was made up of $2,880,120.00 for maintenance in general and $370,800.00 for maintenance and renewal of the 2 lifts. The owners' meeting further resolved to raise the sum of $3,250,920.00 from the owners in accordance with the provisions in the Deed of Mutual Covenant.

2. The DMC divided the Han Palace Building and the lot on which it stands into 126 ownership shares. But the 2nd Schedule provides that the 8 ownership shares on the ground floor would be given 2 management shares and the 24 ownership shares for the 1st to 4th commercial floors would be given 8 management shares. For upper floors, 1 ownership share would be given 1 management share. The 2nd Schedule further provides that the costs and charges for maintenance and repair of all common parts and common facilities should be shared in proportion with the management shares rather than the ownership shares. The only exception is that the ground floor owners are not required to bear the maintenance and renewal of the lifts.

3. There is a Sub-DMC which divided the management liability of the owners of the 1st and 2nd Floors into 8,420 shares and the unit in question was allocated 136 shares.

4. The Tribunal apportioned the $2,880,120.00 for general maintenance and the $370,800.00 for maintenance of the maintenance and renewal of the lifts in accordance with the management shares and came to the sum of $2,024.09 for the subject unit and both sides agree that the arithmetics of the Tribunal are correct. The Applicant also agrees with this approach and does not insist on sharing per the ownership shares.

5. The Respondent however argues that since the lifts do not serve the 1st and 2nd floors, of which the subject unit forms part, the Respondent should not be required to contribute to the costs for maintenance and repair of the lifts.

6. A perusal of the plans annexed to the DMC shows that as a matter of design, the lifts were not supposed to serve the 1st floor, but the lifts should provide access to the 2nd floor. Both the Applicant and the Respondent however confirm that access through the lifts to the 2nd floor has also been blocked.

7. Bearing in mind the fact that the lifts do not serve the 1st and 2nd floors, the Tribunal still thinks that the 1st and 2nd floor owners should bear a share of the costs for maintaining and renewing the lifts in accordance with their management shares as the DMC only excused the Ground Floor owners from such liability. If I should accede to the Respondent's argument, there will be endless arguments among the owners on what service they have been given and how much more or less they should pay for the management. I am of the view that I must follow the DMC.

Conclusion

8. The Tribunal therefore orders that the Respondent do pay the Applicant $2,024.09.

9. Since the Respondent has already paid $1,789.30, the balance payable is $234.79.

10. I order that costs of the Application be to the Applicant.