LUNG PO KWAN AND ANOTHER v. TANG KAM SHEUNG AND ANOTHER

BETWEEN

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 309 OF 2005

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BETWEEN

(Tried together as ordered by Deputy Judge WONG (as he then was) on 18 May 2006)

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JUDGMENT

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Background

1.  The 1^st and 2^nd Applicants in LDBM 243/2005, namely Mr Lung Po Kwan (“Mr Lung”) and Ms Lee Karen Yuk Lun (“Ms Lee”) are the registered owners of Car Park No. 27 (“CP27”) on the Lower Carport, Y.Y. Mansion (“the Building”), 96 Pok Fu Lam Road, Hong Kong.  The 1^st Respondent in LDBM 243/2005, namely Ms Tang Kam Sheung (“Ms Tang”) is the registered owner of Car Park No. 25 (“CP25”) on the Lower Carport of the Building.  The 2^nd Respondent in LDBM 243/2005, namely the Incorporated Owners of Y.Y. Mansion (“the IO”), is the owners’ corporation of the Building.  Ms Tang is also the Applicant in LDBM 305/2005 and the IO is the Respondent in LDBM 305/2005.  LDBM 243/2005 and LDBM 309/2005 are tried together as they involve the same material issue, namely the liability of Ms Tang and/or the IO in causing obstruction of the passageway to and from CP27 by vehicle parked at CP25.

2.  There are not many factual issues in dispute in these 2 cases.  The Building was developed by Yue Yan Investment Company (“the Developer”) and the occupation permit was issued on 26 January 1967.  The Building has 4 residential blocks, namely Blocks A, B, C and D, and 3 levels of car parks, namely the Lower Carport, the Middle Carport and the Upper Carport.  The IO was incorporated in 1971 and became the manager of the Building since then.

3.  During the period from March 1995 to November 1995, the Building had a large-scale renovation.  One of the works involved was to re-align the boundaries of the car parks in the Building in accordance with the approved car parking lay out plan registered in the Land Registry (“the Approved Plan”).  Before the renovation, the boundaries of the car parks were not marked according to the Approved Plan, and this was a clear breach of the terms of the government grant.

4.  However, in re-aligning the boundaries of the car parks, the architect responsible for the renovation discovered that the existing wall at the rear part of the Lower Carport (“the Wall”) was built in a position that cut across the rear portion of CP25, rendering about one third of the area of CP25 hidden behind the Wall.  The Wall is not shown in the Approved Plan but has been in existence since about 1968.  There is no evidence as to who built the Wall or when exactly it was built.

5.  As a result of the re-alignment, the usable area of CP25 is reduced substantially and Ms Tang cannot park her van at CP25 without protruding the front of her van from the boundary of CP25.

6.  Mr Lung and Ms Lee became the registered owners of CP27 in April 1997.  Since then, Mr Lung has difficulty in parking his car at CP27, which is adjacent to CP25, because Ms Tang’s van is obstructing the passageway to and from CP27.  It is not disputed that the passageway is part of the common part of the Building.

7.  After many attempts to resolve the dispute amicably, the parties failed to reach a solution acceptable to all of them.  Thus, the matter came to the Lands Tribunal for determination.

8.  In LDBM 243/2005, Mr Lung and Ms Lee are claiming for an injunction against Ms Tang that she be restrained from parking a vehicle at CP25 in such a manner that obstructs the passageway to and from CP27, as well as damages for obstructing the exclusive right to peaceful and quiet enjoyment of CP27.  They also claim against the IO for an order that the IO do carry out such action as necessary in order to prevent Ms Tang from parking a vehicle at CP25 in such a manner that obstructs the passageway to and from CP27, as well as for damages in failing to do so.

9.  In LDBM 309/2005, Ms Tang is claiming against the IO for an order that the IO do re-modify the boundary of CP25 so that it matches the size as reflected in the Approved Plan, and for damages to be assessed.

10.  In addition, Ms Tang also seeks for the following reliefs in LDBM 243/2005 :-

(a) a declaration that the IO is not entitled to trespass on CP25;

(b) an injunction to restrain the IO from interfering with Ms Tang’s possession, use and enjoyment of CP25;

(c) a declaration that Ms Tang is not responsible for the obstructions (if any) caused to the passageway of CP27;

(d) (i)   an order that the IO do re-mark the car parks within 6 months so that the length and width of CP25 resemble that as described in the Lower Carport Plan annexed to the Deed of Mutual Covenant of the Building (“the DMC”);

(d) (ii)   an order for the IO to remove all objects erected in the Lower Carport that would interfere with the reasonable use of the car park spaces including and surrounding CP25 and to reinstate a passageway of not less than 7 feet in width for the car park spaces within the Lower Carport;

(e) a mandatory injunction for the IO to remove all objects erected on CP25 within 6 months;

(f) damages in the sum of $1,442,000 being a sum representing the decrease in value of Ms Tang’s property due to the IO’s trespass; and

(g) interests.

11.  It is rather unusual for a respondent to make a claim against another respondent in the same action without taking out any Third Party Proceedings.  However, as Ms Tang has already made a claim against the IO in LDBM 309/2005, and these 2 cases are tried together, I will treat these additional claims as the other remedies sought by Ms Tang in LDBM 309/2005.  There is also no Notice of Opposition filed by the IO in LDBM 309/2005, but the IO has raised their defence to Ms Tang’s claims in the Amended Notice of Opposition filed in LDBM 243/2005.  I will treat the Amended Notice of Opposition filed in LDBM 243/2005 as the Notice of Opposition to Ms Tang’s claims in LDBM 309/2005 in addition to being the Notice of Opposition to Mr Lung and Ms Lee’s claims in LDBM 243/2005.

Issues

12.  The parties have made some concessions at the trial.  Thus, not all the issues raised in the pleadings are relied upon.  Now, Mr Lung and Ms Lee’s case is that :-

(1) Ms Tang is in breach of Clause 17 of the DMC by continuing to park her van on the passageway protruding the boundary of CP25 and hence unreasonably obstructs Mr Lung and Ms Lee’s right of access to and from CP27.

(2) The IO has breached Section 18(1)(c) of the Building Management Ordinance (“the BMO”) by failing to do all such things reasonably necessary to enforce the obligations contained in the DMC, in particular, to prevent any obstruction and/or occupation of any of the common parts of the Building.

(3) The IO has breached Clause 21(i) of the DMC by failing to prevent Ms Tang from obstructing the passageway, a common part of the Building.

(4) The IO has breached Clause 21(l) of the DMC by failing to prevent Ms Tang from occupying any of the common parts or spaces of the Building.

13.  Ms Tang’s case is that:-

(1) If her way of parking obstructs Mr Lung and Ms Lee’s right of access to and from CP27, it is due to the mistake of the IO, in particular, the re-marking of CP25 in 1995.  The re-marking of CP25 was not in accordance with the Lower Carport Plan annexed to the DMC.  She has lodged complaints to the IO but has not received any constructive response from the IO.

(2) Further or alternatively, even if the IO’s re-marking of CP25 was in accordance with the Lower Carport Plan annexed to the DMC, the Wall was built upon a substantial part of CP25, trespassing her property.  It was therefore the IO who has breached the conditions of the DMC.

14.  The IO’s case is that :-

(1) The IO has on many occasions requested Ms Tang not to cause obstruction to the passageway.  The IO has suggested to Ms Tang to park her van in CP25 in a tilted direction to avoid causing obstruction to and from the access of CP27.  The proposal was not accepted by Ms Tang.

(2) The IO has made arrangements for Mr Lung and Ms Lee by permitting their tenant to park his car in another parking space in the Lower Carport of the Building on a temporary basis.

(3) The IO has therefore taken all reasonable courses of action to resolve the matter and to attempt to prevent the obstruction of the passageway by Ms Tang.

Ms Tang’s breach

15.  Clause 17 of the DMC stipulates that:-

“Each of the parties hereto shall not use or cause or suffer or permit to be used the flat or space of which he is entitled to the exclusive use, occupation and enjoyment or any part thereof for any illegal, unlawful or immoral purpose and shall not do or cause or suffer or permit to be done anything therein or thereupon which may create unnecessary noise or which may be or which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other parts of the said building or of the premises in the neighborhood.”

16.  I do not think that Clause 17 is applicable to this case.  It concerns with the use of the space of which the owner in question “is entitled to the exclusive use, occupation and enjoyment” or anything done “therein or thereupon” which may become a nuisance, annoyance or inconvenience to other occupiers.  However, what is objectionable in this case is just the protruding part of the van parked at CP25.  The use of CP25 within its boundary does not cause any nuisance, annoyance or inconvenience to Mr Lung or Ms Lee.  The protruding part, however, is on the common part of the Building, not a space of which Ms Tang is entitled to the exclusive use, occupation and enjoyment.  Ms Tang may be criticized for occupying the common part of the Building, but that is not the same as creating nuisance, annoyance or inconvenience within the boundary of CP25.  Thus, I do not find that Ms Tang is in breach of Clause 17 of the DMC.

17.  As to the occupation of the common part of the Building, Mr Lung and Ms Lee have no right to take action against Ms Tang because the right belongs to the IO by the operation of Section 16 of the BMO, which stipulates that:-

“When the owners of a building have been incorporated … the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by … the corporation to the exclusion of the owners …”

18.  Thus, Mr Lung and Ms Lee’s claims against Ms Tang cannot be established at all.

The IO’s breach

19.  Not only that the IO has a right to take action against Ms Tang in respect of the common parts that she occupies, the IO has in fact a duty to enforce the obligations contained in the DMC by virtue of Section 18(1)(c) of the BMO, which provides that:-

“The corporation shall … do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building.”

20.  Clauses 21(i) and (l) of the DMC impose the following duties on the IO:-

“(i) To prevent obstruction of any of the common parts of the said premises and any unnecessary obstruction of the private roadway.”

“(l) To prevent any person occupying any of the common parts or spaces of or in the said premises or the said Building.”

21.  Thus, it is clear that the IO has a duty to clear the passageway between CO25 and CP27.  From the evidence and having the benefit of site inspection, I have no doubt that the protruding part of Ms Tang’s van is blocking Mr Lung and Ms Lee’s car from going in and out of CP27.  The IO should have taken actions to clear this blockage for Mr Lung and Ms Lee.

22.  However, the IO contends that they have already taken all reasonable courses of action to resolve the matter and to attempt to prevent the obstruction of the passageway by Ms Tang.  The actions taken by the IO were that they had on many occasions requested Ms Tang not to cause obstruction to the passageway, suggested to Ms Tang to park her vehicle in CP25 in a tilted direction to avoid causing obstruction to and from the access of CP27, which was not accepted by Ms Tang, and made arrangement with Mr Lung and Ms Lee to permit their tenant to park his car in another parking space in the Lower Carport of the Building on a temporary basis.

23.  I do not consider that these measures were sufficient for the IO to say that they have performed their duties under the DMC.  I agree that the IO’s duties under the DMC and the BMO are not absolute.  What they are required to do is just to take any steps “reasonably necessary” in the circumstances (see Section 18(1)(c) and The Incorporated Owners of King’s Court, Consort Rise v. Gunning, LDBM 104/2004 & 115/2005).  However, what they have done so far are just temporary measures which cannot resolve the disputes permanently.  It is not right for Mr Lung and Ms Lee or their tenants to park their cars at another parking space permanently.  They have the right to use CP27.  Likewise, Ms Tang has her right to use CP25 to park her van within the boundary.  She is prevented to do so simply because of the Wall that was built upon CP25.  Parking at a tilted direction is just a temporary measure.  In fact, during the site inspection, I could observe that Ms Tang has genuine difficulty in parking her van at a tilted direction as directed.  It would be impracticable and unfair to Ms Tang to require her to park her van at the suggested tilted direction everyday.

24.  There is a factual dispute about whether there were a few days in the past when Ms Tang was asked to park her van at a tilted direction towards CP27 there was no blockage to the passageway for CP27.  Ms Tang alleges that at that time she was told to park her van at a tilted direction towards Car Park No. 24 rather CP27, but she received complaints from the owner of Car Park 24 and hence she stopped doing it again.  In this regard, I believe that Mr Lee Chi Kwok, the then secretary of the IO, had asked Ms Tang to park her van in a tilted direction towards CP27 and not the opposite direction.  However, I do not consider this fact material.  As aforesaid, I find that Ms Tang had genuine difficulty in parking her van in such a position.  It is impracticable and unfair to her if she is required to go through this difficult task everyday, after all she has the right to use CP25 with its full size and with the Wall removed.

25.  Thus, the ultimate question is whether the IO should remove the Wall.  In my view, it is reasonably necessary for the IO to remove the Wall because once the Wall is removed, all the problems caused to Mr Lung, Ms Lee and Ms Tang will be resolved permanently.

26.  Nevertheless, the IO contends that they are not liable to remove the Wall, the Wall is not an illegal structure and that it would not be safe to remove it as it might affect the structure of the Building.  I accept that from the evidence available, it is more likely than not that the Wall was built by the Developer.  Although the IO concedes that the Wall is a common part of the Building, they argue that they would not immediately upon incorporation commit an act of trespass simply by operation of law (Section 16 of the BMO), even when the Developer might have committed an act of trespass on CP25.  In this regard, I totally agree with Mr Poon, counsel for Ms Tang, that even though the construction of the Wall was a tort of the Developer, there is a separate tort of “continuing trespass” on the part of the IO in allowing the Wall to remain on CP25 (see paragraphs 19-32 of Clerk and Lindsell on Torts, 19^th ed.).

27.  Relying on Hang Yick Properties Management Ltd. v. Incorporated Owners of Tuen Mun Kar Wah Building [2005] 2 HKLRD 499, the IO argues that they would not be liable for such tortuous act being committed by only one of the co-owners, i.e. the Developer, before the IO’s incorporation.  I disagree with this contention.  The Developer must have been the only owner of the land in question at the initial stage when the Building was built.  The Developer at that stage was equivalent to all the owners of the Building.  Thus, the IO will be responsible for the Developer’s act by virtue of Section 16 of the BMO.

28.  I have no doubt that the Wall is an illegal structure, as it is not referred to in the Approved Plan.  The fact that the Buildings Department did not take any action for its removal does not make the Wall legal.  At the highest, it could only mean that the Buildings Department has tolerated the existence of the Wall, but it is still an illegal structure.

29.  I do not consider safety is an issue at all.  The IO can always engage experts to submit plans for the removal of the Wall to the Buildings Department for approval and remove the Wall with all the professional safety measures in place to prevent any possibility of collapse during the removal.  After removal, there can be other structures built around the area of CP25, if necessary, to ensure that the Building is as safe as before, but allowing CP25 to be used with its full size unblocked.  The cost involved in these works could be substantial, but it should not be a factor to allow the trespass on CP25 to continue.

30.  Thus, I find that the IO is in breach of their duties under Clauses 21(i) and (l) of the DMC and Section 18(1)(c) of the BMO in not removing the Wall when it is reasonably necessary to do so to resolve the disputes in the occupation of the passageway between CP25 and CP27.

Reliefs

31.  By reasons aforesaid, I am prepared to grant a mandatory injunction requiring the IO to remove the Wall.  As the works involved will take some time to complete, I will give the IO 9 months to comply with the mandatory injunction.

32.  However, I do not think that the other reliefs required by Mr Lung , Ms Lee and Ms Tang are necessary.  In particular, I do not agree that they have suffered the damages claimed by them.  There was another car parking space offered to Mr Lung and Ms Lee, which can substitute CP27 temporarily.  Although it is not a permanent solution, it can still eliminate all the alleged loss claimed by Mr Lung and Ms Lee.  I do not find that this alternative car parking space is in any way inferior to CP27.  Thus, it is unreasonable for Mr Lung and Ms Lee not to mitigate their losses by taking up this offer.  I also do not consider Ms Tang has suffered any damages or loss in value of her property.  She has been using CP25 together with the common area adjacent to CP25 all along.  So it is not a case that she has been deprived of a car park.  When the Wall is removed, she will be able to use CP25 with its full size.  There should not be any diminution of the value of her property.

Orders

33.  Thus, I order as follows:-

(1)     In both LDBM 243/2005 and LDBM 309/2005, I order that the IO do within 9 months from the date of this order remove the part of the Wall that is situated within the boundary of CP25 as stipulated in the Approved Plan so that it will not cause any blockage to the use of CP25.

(2)     All the other reliefs, save as to costs, claimed in both cases are refused.

(3)     Costs orders nisi:  In LDBM 243/2005, Mr Lung and Ms Lee do pay Ms Tang her costs in respect of their claims against her, including counsel’s certificate, to be taxed on High Court Scale, if not agreed.  In LDBM 243/2005, the IO do pay Mr Lung and Ms Lee their costs in respect of their claims against the IO, including counsel’s certificate, to be taxed on High Court Scale if not agreed.  In both LDBM 243/2005 and LDBM 309/2005, the IO do pay Ms Tang her costs in respect of her claims against the IO, including counsel’s certificate, to be taxed on High Court Scale if not agreed.  The aforesaid costs orders nisi shall become absolute if there is no further application on costs within 14 days from today.