THE INCORPORATED OWNERS OF ODEON BUILDING AND OTHERS v. SKY FIELD DEVELOPMENT LTD

THE INCORPORATED OWNERS OF ODEON BUILDING AND OTHERS v. SKY FIELD DEVELOPMENT LTD

The court held the Original Lavatories formed common parts of the building (relevant to the DMC and BMO and supported by the approved plans and statutory sanitary fitment scheme) and that an implied covenant by necessity existed requiring successive owners of B1 to permit G/F and B2 users to use the lavatories; the...

Source-derived case information.

Citation
THE INCORPORATED OWNERS OF ODEON BUILDING AND OTHERS v. SKY FIELD DEVELOPMENT LTD
Parties
1st Plaintiff: The Incorporated Owners of Odeon Building; 2nd Plaintiff: Chan Yick Kwok; Chan Hock Kwun; Yeung Mei Mei; Chu Shui Yuk; Defendant: Sky Field Development Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 August 2007
Case Number
HCA217/2005
Procedural Posture
Civil Building Management / Property Covenant Dispute / Judgment (court of First Instance)
Outcome
1st plaintiff awarded negative injunction restraining defendant from interfering with use of the lavatory spaces; mandatory injunction for reinstatement refused; implied covenant by necessity found as alternative; defendant liable to yield possession/access but not to reinstate prior demolition/conversion.
Legal Topics
Deed of Mutual Covenant, Common Parts, Implied Covenant by Necessity, Successor in Title Liability, Negative and Mandatory Injunctions
Source Language
en
Building Management Law Property Law Contract Law Civil Remedies (injunction) Statutory Interpretation Deed of Mutual Covenant Common Parts Implied Covenant by Necessity +2 more

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Parties

The Incorporated Owners of Odeon Building

1st Plaintiff

Chan Yick Kwok; Chan Hock Kwun; Yeung Mei Mei; Chu Shui Yuk

2nd Plaintiff

Sky Field Development Limited

Defendant

Procedural Posture

Civil Building Management / Property Covenant Dispute / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the lavatories on B1 were reserved to the exclusive use of the owner of B1 under the DMC or constituted common parts of the building under the Building Management Ordinance
  2. 2 Whether the DMC is subject to an implied covenant by necessity obliging successive owners of B1 to allow owners, tenants, staff and customers of G/F and B2 use of the lavatories
  3. 3 Whether the defendant as successor in title is liable to reinstate the original lavatories or otherwise restrained from interfering with their use

Ratio Decidendi

The court held the Original Lavatories formed common parts of the building (relevant to the DMC and BMO and supported by the approved plans and statutory sanitary fitment scheme) and that an implied covenant by necessity existed requiring successive owners of B1 to permit G/F and B2 users to use the lavatories; the defendant, as successor in title, must yield possession and not interfere (negative injunction) but is not ordered to reinstate the lavatories because the demolition/conversion was carried out before the defendant's acquisition and reinstatement was not justified.

Court Disposition

1st plaintiff awarded negative injunction restraining defendant from interfering with use of the lavatory spaces; mandatory injunction for reinstatement refused; implied covenant by necessity found as alternative; defendant liable to yield possession/access but not to reinstate prior demolition/conversion.

Orders

  • Negative injunction restraining the defendant from interfering with the use of the space of the Original Male Lavatory and the Converted Lavatories by owners, tenants, staff and customers of G/F and B2
  • Mandatory injunction for reinstatement of the Original Lavatories refused