THE INCORPORATED OWNERS OF YUE SUN MANSION v. LAKE SIDE ELDERLY CENTRE LIMITED

THE INCORPORATED OWNERS OF YUE SUN MANSION v. LAKE SIDE ELDERLY CENTRE LIMITED

The Tribunal found as a fact that the dominant or primary use of the Premises, whether described as a RCHE or RCHD, is to provide residential accommodation (residential/home setting) with care ancillary; accordingly that use is domestic and not a permitted non-domestic use under the OP and falls within the prohibition in the Government Lease and Clause 10(c) of the DMC; breach of the Government Lease is illegal under the Summary Offences Ordinance and the intended use was likely to cause nuisance or annoyance to other occupiers, making a quia timet injunction necessary; the application for restoration of lift service was dismissed because no lift service to 1/F had been provided...

Citation
THE INCORPORATED OWNERS OF YUE SUN MANSION v. LAKE SIDE ELDERLY CENTRE LIMITED
Parties
Applicant in LDBM 26/2015; Respondent in LDBM 32/2015: The Incorporated Owners of Yue Sun Mansion; Respondent in LDBM 26/2015; Party Associated With LDBM 32/2015: Lake Side Elderly Centre Limited; Applicant in LDBM 32/2015; Tenant of the Premises; Director and Shareholder of Lake Side: Tong
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
9 December 2016
Case Number
LDBM26/2015
Procedural Posture
Building Management Applications Before Lands Tribunal Concerning Use of Premises, DMC and Lift Access / Judgment Delivered 9 December 2016
Outcome
Declaration and quia timet injunction granted for IO; application for restoration of lift service dismissed
Legal Topics
Occupation Permit (op) Compliance, Deed of Mutual Covenant (dmc) Breach, Government Lease Covenants, Use Classification Domestic Vs Non Domestic, Quia Timet Injunction, Lift/common Parts Access (bmo S34 I), Residential Care Home Licensing
Source Language
EN
Building Management Property/land Law Administrative Law Civil Injunctions Occupation Permit (op) Compliance Deed of Mutual Covenant (dmc) Breach Government Lease Covenants Use Classification Domestic Vs Non Domestic +3 more

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Parties

The Incorporated Owners of Yue Sun Mansion

Applicant in LDBM 26/2015; Respondent in LDBM 32/2015

Lake Side Elderly Centre Limited

Respondent in LDBM 26/2015; Party Associated With LDBM 32/2015

Tong

Applicant in LDBM 32/2015; Tenant of the Premises; Director and Shareholder of Lake Side

Procedural Posture

Building Management Applications Before Lands Tribunal Concerning Use of Premises, DMC and Lift Access / Judgment Delivered 9 December 2016

Legal Issues

  1. 1 What is the intended use of the Premises (RCHE or RCHD)?
  2. 2 Whether the intended use is non-domestic
  3. 3 Whether the intended use breaches the Occupation Permit (OP), the Deed of Mutual Covenant (DMC) or the Government Lease

Ratio Decidendi

The Tribunal found as a fact that the dominant or primary use of the Premises, whether described as a RCHE or RCHD, is to provide residential accommodation (residential/home setting) with care ancillary; accordingly that use is domestic and not a permitted non-domestic use under the OP and falls within the prohibition in the Government Lease and Clause 10(c) of the DMC; breach of the Government Lease is illegal under the Summary Offences Ordinance and the intended use was likely to cause nuisance or annoyance to other occupiers, making a quia timet injunction necessary; the application for restoration of lift service was dismissed because no lift service to 1/F had been provided...

Court Disposition

Declaration and quia timet injunction granted for IO; application for restoration of lift service dismissed

Orders

  • Declaration that use of the Premises for the operation of either a residential care home for elderly persons (RCHE) or a residential care home for persons with disabilities (RCHD) is in breach of the Occupation Permit, the Deed of Mutual Covenant and the Government Lease
  • An injunction restraining Lake Side and Tong and their agents, employees or authorized persons from operating a RCHE or RCHD or any business at the Premises for domestic purposes