Hong Kong Mansion, Causeway Bay (IO) v Bothlink Ltd
Court of Appeal
Civil Appeal No 184 of 2012
Lam V-P, Cheung and Yuen JJA
Land Law
11 February 2014

Land law - building management - common parts - “voids” in building - whether common areas - whether reserved to developer or assigned to defendant’s predecessor-in-title

P was the incorporated owners of a 23-storey building which had two roof levels on 19th and 23rd floors, each housing an enclosed structure with a horizontal platform dividing it into an upper level and lower level. The upper levels housed machine rooms for lift equipment and were common parts. D occupied the areas in the lower levels below (the “Voids”). A memorial of the first assignment executed before the deed of mutual covenant provided that the purchaser granted to “the vendor ... the full right and privilege to hold, use, occupy and enjoy all those remaining self-contained portions ... the flat roofs and other roofs ... and other portions (not otherwise intended to be used for the common enjoyment of the co-owners and co-occupiers ...)”. P brought proceedings against D, arguing that the entirety of the structures including the Voids were common areas and D was a trespasser. D contended that as a matter of conveyancing and proper construction of the relevant title deeds, the developer had assigned the exclusive rights to use and occupy the lower levels of the structures to its predecessor-in-title. Given the first assignment, the approved building plans and expert evidence, the Deputy Judge found the developer did not reserve to itself the excepted areas intended for use and common enjoyment of the co-owners and co-occupiers; and that the Voids were excepted portions because they were intended for use for common enjoyment, taking into account that: (a) as built, they were sealed off from the rest of respective roofs and inaccessible from the outside; and (b) they were used only to provide for the lift shaft overrun extensions and to support the maintenance platforms. D appealed.

Held, dismissing the appeal, that:

• The first purchaser was entitled to access his property as soon as the first assignment was executed and so the parties must have agreed what would constitute common areas by then. Thus, the words “intended to be used for the common enjoyment of the co-owners and co-occupiers” must refer to the parties’ intention at the time the first assignment was executed.

• The factual matrix at the time of the first assignment favoured P. None of the floor area covered by the structures was included in the gross floor area and building volume calculations in the approved building plans. Nor did the plans differentiate between use of the upper and lower levels. The plans showed that the developer regarded the structures only as enclosures for the lift machinery which were common parts. Further, there was no means of access to the lower levels of the structures. This showed that at the time of the first assignment, there was no intention to use the lower levels other than as mere enclosures for the lift machinery.

• Accordingly, the Judge was entitled to hold that the entire structures (both lower and upper levels) were intended for common enjoyment, that the developer had not reserved them to its own use and hence had no title to assign the Voids to D’s predecessors.

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