德發大廈業主立案法團 v.SILVER CARNIVAL LTD.

LDBM 374/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 374 OF 2001

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JUDGEMENT

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1. This is an application by the Applicant against the Respondent in relation to alleged trespass by 3 wireless transmitters affixed to the wall of the water tank at the L-14 to L-15 level of 德發大廈. These transmitters face Russell Street. There are 3 other transmitters facing another direction and are above the roof of side B of the building. There is no complaint against those 3 transmitters.

2. The Applicant also complains that the transmitters have protruded and trespassed into the air space of common areas.

3. The Respondent opposes the application by saying that the 3 transmitters are hung on the external wall of the building which is not common part but is for the exclusive occupation and enjoyment of the Respondent and another owner.

4. The Applicant accepts the exclusive right on the use of external wall but says that the wall in question is not external wall. Mr. Li for the Applicant says that the wall in question is the wall of the water tank of the building, the water tank sits in the middle and the wall in question is withdrawn into the flat roof and is not a continuation from the lower part of the external wall.

5. The Respondent has called an authorized person Mr. Yuen whose evidence is that the wall of the water tank is part of the external wall as it is part of the original design.

6. I agree with Mr. Yuen. The external wall is part of the external wall of the building as it encloses part of the building - the water tank. It does not cease to be part of the external wall simply because it has receded from the edge of the building.

7. Regarding the area below the 3 transmitters, that is coloured yellow in plan L-13 attached to a Deed of Mutual Grant. The Respondent accepts as correct the colouring of the plans attached to the copy of the Deed of Mutual Grant of memorial no. 2430239 produced by the Applicant and also the colouring at p.61 of the Respondent's Bundle.

8. These plans show that common areas like staircases, lift and lift lobbies are all coloured yellow. The yellow part underneath the 3 transmitters is in plan L-13. It is hatched in black with the letters "R.O.W.".

9. The Deed of Mutual Grant, which preceded the DMC, did not provide for any mutual grant for the yellow hatched area. So after the Deed of Mutual Grant was made, the yellow hatched area was of the same status as the other yellow areas. They were all common areas. That status remained up to this date.

10. Mr. Yue, counsel for the Respondent submitted that the "R.O.W." means a right of way. The yellow area hatched on L-13 should be divided in the middle into A side and B side for exclusive occupation purpose with the B side having a right of way over A side and vice versa.

11. To boost his argument, he referred to clause 24(ⅲ) of DMC on p.18 of Respondent's bundle to show that there was also a right of way over the yellow hatched area for all other owners to repair the water tank and machine room.

12. I am of the view that clause 24(ⅲ) of the DMC could contain an assumption that the exclusive occupation right of the roof belonged to somebody, hence it provided a quasi right of way for the repair purposes. But the DMC in fact did not confer or create any exclusive right to the yellow portion as hatched. It was also a document created after the Deed of Mutual Grant. The possible assumption in the DMC could not thereby confer on anyone the exclusive right to occupy the yellow hatched area. The common area status upon the making of the Deed of Mutual Grant remained. Furthermore, the assumption in clause 24(ⅲ) can be correct as parts of the roof are subject to exclusive occupation of some owners.

13. I take the yellow hatched area as common area partly because all areas for exclusive occupation are in pink colours and all common areas are in yellow.

14. Regarding the letters "R.O.W." and the hatching, Mr. Yuen says that they make a difference. I disagree. No evidence has been called on who caused the printing of the hatching and the letters "R.O.W." on the plan. It seems that they were made as part of the printing processing and not part of the later colouring process. It is possible that at one stage, the developers intended that the roof should be subject to exclusive occupation, but the deliberate yellow colouring only shows that this part was, at the stage of the Deed of Mutual Grant, made common areas.

15. I have supplied to the parties pages 30 to 36 of Kelvin Gray's Element of Land Law, 2001 Edition and Kelson v. Imperial Tobacco Co. [1957] 2 Q.B. 334 on trespass to air space. Mr. Yue did not submit against these authorities.

Conclusion

16. I therefore hold that the Respondent has trespassed into the air-space of the common area on the roof as shown in yellow hatched colour on p.61 of the Respondent's bundle. The wall in question is part of the external wall and the Applicant has no right of possession over this.

17. Regarding the remedies, I see no urgency in this matter as it has been hanging in the air since 1997. I therefore adjourned the matter of assessment of damages and consideration of whether injunction should be granted to a date to be fixed.

18. If the parties can make use of the time available to resolve the difference, the case need not be refixed, otherwise, the parties can come back for directions on assessment. I therefore grant a liberty to apply for directions for assessment of damages and other remedies, if any.

19. Costs of the Application be to the Applicant.