KAI SHING MANAGEMENT SERVICES LTD. v. CHIN YAU PING

LDBM 493/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 493 of 2001

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J U D G M E N T

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Background

1. The Applicant was at all material times and still is the Manager of Greenfield Garden erected on the Remaining Portion of Tsing Yi Town Lot No. 111 ("the Development") and was so appointed under a Deed of Mutual Covenant and Management Agreement dated 14 December 1989 and registered at the Tsuen Wan District Land Office by Memorial No. 626064 ("the DMC"). The Respondent was at all material times and still is the registered owner of Flat E, 14/F., Tower 4, Greenfield Garden, No. 1 Fung Shue Wo Road, Tsing Yi, New Territories, Hong Kong ("the Premises"), which forms part of the Development.

2. On a day unknown to the Applicant, the Respondent erected a metal structure at the terrace of the Premises. The Applicant came to know about the metal structure in or about May 2001 after a complaint was received at the management office that the metal structure posed serious security threat to the residents of the upper floors. Upon investigation, the Applicant discovered that the metal structure did pose serious security threat, particularly to the unit immediately above the Premises, as it could easily facilitate the climbing from below. The Applicant also discovered that the metal structure had altered the external appearance of the Development and it was erected without any prior knowledge or consent of the Applicant. Despite repeated requests made by the Applicant to the Respondent for the removal of the metal structure, the Respondent has refused to do so.

3. The Applicant contends that the Respondent has been in breach of the DMC by erecting the metal structure and thus in this Application seeks for the following reliefs:-

"(a) An injunction that the Respondent whether by himself, his servants, agents, tenants, sub-tenants, licensees or any of them or otherwise howsoever be restrained from placing or erecting a metal structure or any other structure at the terrace of the Premises;

(b) An order that the Respondent do forthwith remove at his own cost and expense the unauthorized metal structure from the terrace of the Premises within 14 days of the order to be made herein;

(c) Further to (b) hereof, an order that the Applicant shall be entitled to remove the unauthorized metal structure from the terrace of the Premises, if the Respondent fails to remove the same as stipulated in (b) of the order hereof, whereupon any such costs and expenses incurred by the Applicant in the removal shall be fully indemnified by the Respondent;

(d) Damages for breach of the DMC to be assessed;

(e) Further or other relief; and

(f) Costs."

4. The Respondent admits that the metal structure was erected by him without any prior knowledge or consent of the Applicant, but raises the following matters as his defence:-

(1) The metal structure is just a removable 2 feet-high fence for child safety;

(2) It is installed inside the terrace which is a private area;

(3) It does not damage or interfere with the use and enjoyment of the Development;

(4) It does not alter the external appearance of the Development in any significant way;

(5) The private terrace area is only accessible through his flat and hence no security problems are created to residents of the upper floors;

(6) The existing fence is too low for preventing children from climbing over; and

(7) He will remove the metal structure when his daughter grows up to a safer age.

Whether there is any breach of the DMC

5. There is no dispute that the Respondent, as an owner of a part of the Development, is bound by the terms of the DMC. In fact Clause 2.4 of the DMC stipulates that:-

"Every Owner shall at all times hereafter be bound by and shall observe and perform the covenants, provisions and restrictions herein contained and the benefit and burden thereof shall be annexed to every part of the Land and the Development and the Undivided Shares therewith."

6. Clause 5.1.21 of the DMC provides that :-

"No Owner shall

(i) make any structural or other alterations to any part of the Development which may damage or interfere with the use and enjoyment of any other part thereof;

(ii) do or permit to be done any act or thing which may or will alter the external appearance of the Development without the prior consent in writing of the Manager and any Government authorities if required."

7. The Applicant contends that the Respondent has been in breach of Clause 5.1.21 by erecting the metal structure without the Applicant's written consent. There are 3 issues here :-

(1) Whether the metal structure is an alteration to any part of the Development;

(2) Whether the alteration may damage or interfere with the use and enjoyment of any other part of the Development; and

(3) Whether the metal structure alters the external appearance of the Development.

8. On the first issue, the Respondent contends that the metal structure is just a removable 2 feet-high fence for child safety and it can be removed in a few minutes by loosening the fixing bolts of the fence. However, from the photographs produced by the Respondent, i.e. Exhibits "R2(1)" to "R2(4)" , it is clear to me that the metal structure is not so easily removable as suggested by the Respondent. It is quite a large metal frame affixed to the original fence enclosing 2 sides of the terrace of the Premises. Although the metal frame is fixed by some bolts to the original fence, it does not appear to me that the bolts can be removed or loosened at any time so easily as suggested by the Respondent. The evidence of the Respondent is that he has instructed a contractor to install this metal structure. It seems to me that the removal of it may also require a contractor or a skilled worker's assistance. In any event, I do not find the metal structure being a temporary or easily detachable structure at all. It is in fact quite a permanent structure that has extended the height of the original fence. I therefore find that the metal structure is an alteration to the original fence at the terrace of the Premises.

9. The Respondent also contends that the metal structure is installed inside the terrace, which is a private area. The Applicant does not dispute this matter. Mr. NG for the Applicant, however, submits that it does not matter whether the metal structure is erected within a private area or a common area because Clause 5.1.21 stipulates that there should not be any alterations to any part of the Development. Mr. NG further relies on Clause 5.2.7 to say that the Respondent cannot erect the metal structure on the terrace without the Applicant's prior written approval. The relevant part of Clause 5.2.7 reads as follows:-

"No owner of any Unit shall erect affix or install or cause to be erected affixed or installed any structure on any terrace save and except with the prior written approval of the Manager and the relevant Government Authorities."

10. I accept Mr. NG's submission. The phrase "any part of the Development" in Clause 5.1.21 covers private areas as well as common areas of the Development and it includes the terrace of the Premises.

11. On the second issue, the Respondent contends that the metal structure does not damage or interfere with the use and enjoyment of the Development because it does not give any support to a person who wants to climb from the Premises to the floor above. He also contends that the private terrace area is only accessible though his flat and hence no security problems are created to residents of the upper floors. The Respondent further submits that if a person wants to climb from the terrace of the Premises to the floor above, he can easily do that by using a chair rather than the metal structure.

12. I do not accept the Respondent's contentions. The metal structure, as I find it, is quite firmly affixed to the original fence and can support some weight, otherwise it would not be used to prevent children from climbing over. Since it can support some weight, it can facilitate a person to use it to climb to the floor above. Whether there can be other means to climb to the floor above, e.g. by using a chair, is neither here nor there. The question is whether the metal structure facilitates people climbing to the floor above and thus creating security problems. It is my finding that it does. Even if the terrace area is accessible only through the Premises, it still poses security problems to the floor above. If there is an intruder who has broken into the Premises, he can escape from the Premises or further his intrusion to the floor above. Thus, it is my finding that the metal structure may damage or interfere with the use and enjoyment of the floor above by posing the security problems as aforesaid.

13. On the third issue, the Respondent submits that the metal structure does not alter the external appearance of the Development in any significant way. He produces a photograph, exhibit "R2(5)" to show that the metal structure is hardly noticeable from the building. On the other hand, the Applicant's evidence is that there are terraces in a number of units of the Development. Apart from the Premises, none of them has any metal structure at the terrace. Thus, the Applicant submits that the metal structure at the Premises does alter the external appearance of the Development.

14. It is my finding that the metal structure does alter the external appearance of the Development significantly, as it is quite a large structure surrounding 2 sides of the terrace. It is visible from the outside of the building and is different from the other terraces without any metal structure, as can be seen in the photographs produced by the Applicant in item 11 of exhibit "A2". The Respondent's photograph, exhibit "R2(5)", is rather misleading as it is taken at a distance away from the building and only shows the far away view of the building. In such a small photograph, the metal structure, of course, will not show up clearly.

15. In view of my findings above and the admission made by the Respondent that the metal structure was erected by him without any prior knowledge or consent of the Applicant, the Respondent has clearly been in breach of Clause 5.1.21. There is no excuse that the metal structure was erected for the safety of his daughter. I fully appreciate the Respondent's concerns and the danger that the original fence was too low and could not prevent his daughter from climbing over. However, the DMC does not provide such an exception. It may be a different situation if the Respondent has sought for the Applicant's consent before the erection of the metal structure, because the Applicant seems to have discretion to give such consent. Since the Respondent has not sought for such consent from the Applicant, he is clearly in breach of Clause 5.1.21.

Whether the Applicant is entitled to the reliefs claimed

16. Clause 6.2.1 of the DMC stipulates that:-

"During the term of its appointment as the Manager hereunder, the Manager will manage the Development in a proper manner and in accordance with the provisions of this Deed the Manager shall be responsible for and shall have full and unrestricted authority to do all such acts and things as may be necessary or requisite for the proper management of the Development. Without in any way limiting the generality of the foregoing the Manager shall have the following duties:-

...

(17) To remove any structure, installation, signboard, sunshade, bracket, fitting or other things in or on the Development (including any Roof and/or Upper Roof and/or terraces) which have been erected in contravention of the terms of the Conditions or this Deed or Regulations of the Buildings Ordinance or Regulations of Fire Services Department and/or without the written permission of the Manager (or if such permission has been given upon the expiration or withdrawal of the same) and to demand and recover from the person by whom such structure or other thing as aforesaid was erected or installed the cost of such removal and the making good of any damages thereby caused.

...

(33) To enforce the due observance and performance by the Owners or any person occupying any part of the Development through under or with the consent of any such Owner of the terms and conditions of this Deed and the Development Rules, Domestic Rules and the Commercial and Carpark Rules made hereunder and to take action including the commencement and conduct of legal proceedings to enforce the due observance and performance thereof and/or to recover damages for any breach non-observance or non-performance thereof and the registration and enforcement of charges as hereinafter mentioned."

17. It is clear from Clause 6.2.1(17) of the DMC that the Applicant has a duty to remove any structure in the Development including terraces which has been erected in contravention of the terms of the DMC and without the written permission of the Applicant, and to demand and recover from the person by whom such structure was erected the cost of such removal and the making good of any damages thereby caused. It is also clear from Clause 6.2.1(33) of the DMC that the Applicant has a duty to enforce the due observance and performance by the Owners of the terms and conditions of the DMC and to take action including the commencement and conduct of legal proceedings to enforce the due observance and performance thereof and/or to recover damages for any breach thereof.

18. Since it is my finding that the Respondent has been in breach of the DMC, the Applicant is entitled to bring the present proceedings and seek the reliefs claimed against the Respondent pursuant to Clause 6.2.1 of the DMC. There is no ground for the Respondent to ask this Tribunal to order the removal of the structure only when the Respondent's daughter grows up to a safer age. When there is a breach of the DMC, the Applicant is entitled and indeed under a duty to enforce the DMC forthwith. However, as there is no evidence adduced by the Applicant in respect of any damages suffered by them, I shall grant reliefs only in relation to paragraphs (a), (b), (c) and (f) of the Application.

Orders

19. I therefore grant the following orders:-

(a) An injunction that the Respondent whether by himself, his servants, agents, tenants, sub-tenants, licensees or any of them or otherwise howsoever be restrained from placing or erecting a metal structure or any other structure at the terrace of the Premises;

(b) An order that the Respondent do forthwith remove at his own cost and expense the unauthorized metal structure from the terrace of the Premises within 14 days of the order to be made herein;

(c) An order that the Applicant shall be entitled to remove the unauthorized metal structure from the terrace of the Premises, if the Respondent fails to remove the same as stipulated in (b) of the orders hereof, whereupon any such costs and expenses incurred by the Applicant in the removal shall be fully indemnified by the Respondent; and

(d) An order nisi that the Respondent shall pay the costs of this Application to the Applicant, to be taxed, if not agreed. If there is no further application in relation to costs within 14 days from the date hereof, the costs order nisi shall become absolute.