Mu Qi v MCST Plan No 1849

• Jurisdiction: Singapore
• Judge: Ang Cheng Hock J
• Judgment Date: 22 July 2021
• Court: High Court (Singapore)
• Docket Number: Tribunal Appeal No 18 of 2020

Mu Qi and another

and

Management Corporation Strata Plan No 1849

[2021] SGHC 180

Ang Cheng Hock J

Tribunal Appeal No 18 of 2020

General Division of the High Court

Land — Strata titles — Common property — Annual general meeting resolutions purporting to authorise exclusive uses and special privileges in relation to common property — Whether resolutions legally effective — Section 33(1) Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Land — Strata titles — Common property — Whether external walls of condominium development constituted common property — Section 2(1) Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed)

Land — Strata titles — Strata Titles Board — Application by subsidiary proprietors for management corporation to undo alterations to common property by other subsidiary proprietors — Whether other subsidiary proprietors should have been named as respondents to application

Held, allowing the appeal:

(1) The STB had erred in not granting the orders on the basis that the 14th floor SPs had not been given an opportunity to be heard. The MCST was the statutorily empowered body that managed the common property of the development, and was the correct party to defend claims related to that common property. In the STB proceedings, there had been no dispute that the external walls of the development were common property, and that the 14th floor units' SPs had installed structures and made alterations to the common property. The appellant SPs had therefore been correct to name only the MCST – and not the 14th floor SPs – as the party to defend the STB proceedings. That the 14th floor SPs would be affected by the orders sought by the appellant was a simple consequence of the fact that they had erected illegal structures and demolished common property: at [46] to [50].

(2) The respondent's belated assertion upon appeal that the external walls of the development were actually not common property could not be accepted. The external walls contributed to the appearance of the development, and were hence capable of being enjoyed by some or even all SPs of the development. As such, they fell squarely into the definition of “common property” as set out in the BMSMA. In any case, it was too late for the respondent to make this assertion, given that it had in the STB proceedings consistently accepted that the external walls were common property. The appellants would be prejudiced if the respondent's belated assertion were to be accepted: at [52] to [60].

(3) Section 33(1) BMSMA demonstrated an implied recognition of the rights of other SPs to the use and enjoyment of the common property. By requiring higher majority approvals for longer periods of exclusive use or special privileges over common property, s 33(1) BMSMA set out a carefully considered balance between the rights of SPs as a whole to the use and enjoyment of the common property and the conferring of rights of exclusive use or special privileges over common property to individual SPs. To preserve this balancing of rights, the requirements of s 33 had to be strictly complied with whenever exclusive use of, or special privileges over, common property in a development was contemplated. Resolutions under s 33 BMSMA which conferred on a SP the exclusive use of, or special privileges over, common property had to identify the SP in question, specify the period of time over which the exclusive use or special privilege should last, and identify clearly the nature of the exclusive use or special privilege: at [65] and [66].

(4) The November 2019 resolution, which was passed with 89% approval, was not a valid authorisation of the installation of the fixed awnings or the demolition of the external walls. It was a clear attempt to provide a blanket whitewash approval in respect of all unauthorised structures on common property, by giving carte blanche to SPs to submit a list of exclusive uses and special privileges and allowing the management office to grant these without further question. It also did not specify the duration over which the exclusive uses or special privileges were to last. It was clear that the awnings and the demolition which the November 2019 resolution was meant to address were intended to be permanent. Accordingly, the November 2019 resolution had to be passed with 90% approval, as required by s 33(1)(c) BMSMA. Following the failure of the November 2019 resolution to attain this threshold, the awnings and the demolition could not simply be deemed to be authorised for a period of three years under s 33(1)(b) BMSMA. In any case, it would be an improper and illegal use of the procedures set out in s 33(1) BMSMA if one could effectively accord to SPs exclusive use of, or special privileges over, common property indefinitely by the passing of special, but not 90%, resolution, every three years, in cases where the intended use or privilege involved changes to the common property that were permanent in nature. The November 2019 resolution was therefore a cynical abuse of the approach envisaged by Parliament and set out in s 33 BMSMA: at [63], [64] and [66] to [70].

(5) The November 2018 resolution, which was passed with 86.6% approval, did not deal with the fixed awnings that had been installed by the 14th floor units' SPs or the demolition of the external walls of the development. However, even if it could be read to apply to those alterations, it suffered from the same infirmities as the November 2019 resolution, in that it did not specify any SPs, the nature of the exclusive use or special privilege, or the period of time over which this use or privilege was to last. It had also not been passed with the 90% approval required by s 33(1)(c) BMSMA: at [71] and [72].

(6) In the premises, the court remitted the matter to the STB for it to make the necessary orders for the respondent to remove the fixed awnings and restore the demolished external walls, if the respondent could not obtain the necessary 90% resolutions approving the alterations within a three-month period: at [80].

Case(s) referred to

Mark Wheeler v The MCST Plan No 751 [2003] SGSTB 5 (refd)

MCST Plan No 1272 v Ocean Front Pte Ltd [1994] 3 SLR(R) 787; [1995] 1 SLR 751 (refd)

Ng Eng Ghee v Mamata Kapildev Dave [2009] 3 SLR(R) 109; [2009] 3 SLR 109 (folld)

Poh Kiong Kok v MCST Plan No 581 [1990] 1 SLR(R) 617; [1990] SLR 634 (refd)

Rosalina Soh Pei Xi v Hui Mun Wai and The MCST Plan No 4396 [2019] SGSTB 5 (refd)

Sit Kwong Lam v MCST Plan No 2645 [2018] 1 SLR 790 (refd)

Wu Chiu Lin v MCST Plan No 2874 [2018] 4 SLR 966 (refd)

Facts

This was an appeal by two subsidiary proprietors (“SPs”) of a 15th floor unit of a condominium development against a decision of the Strata Titles Board (the “STB”). The appellant SPs had applied to the STB for orders against the respondent management corporation (“MCST”) of the condominium development, to: (a) remove awnings installed by certain 14th floor units' SPs on the external walls of the development; and (b) reinstate external walls demolished by certain 14th floor units' SPs when installing sliding glass doors.

The STB had found in its decision that these alterations to the external walls had been performed without the required 90% approval under s 33(1)(c) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (the “BMSMA”). However, the STB nonetheless declined to grant the orders sought, because the respective 14th floor units' SPs were not parties to the proceedings, and so had not been afforded an opportunity to be heard.

The appellants filed the present appeal, arguing, inter alia, that the STB had erred in taking into account the consideration that the respective 14th floor units' SPs had not been given an opportunity to be heard.

Meanwhile, the respondent argued that, contrary to the STB's finding, it had been unnecessary to obtain a 90% resolution approving the alterations to the external walls under s 33 BMSMA, since the external walls were not common property. Alternatively, the respondent submitted, the external walls had in truth been authorised under s 33 BMSMA by resolutions passed at annual general meetings in November 2018 and November 2019 (the “November 2018 resolution” and the “November 2019 resolution” respectively).

Legislation referred to

Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) ss 2(1), 33 (consd); ss 24, 24(2), 29, 29(1)(d), 32, 32(4), 33(1), 33(1)(b), 33(1)(c), 37, 37(4), 37(4)(a), 63, 98(1), 98(2)

Building Maintenance (Strata Management) Regulations 2005 Second Schedule para 5(3)

Land Titles (Strata) Act (Cap 158, 1988 Rev Ed) ss 33(2), 41(8)

Lee Xiancong (Taylor Vinters Via LLC) for the appellants;

Lim Seng Siew and Lip Wei De Eric (OTP Law Corporation) for the respondent.

22 July 2021

Judgment reserved.

Ang Cheng Hock J:

1 This is an appeal by two subsidiary proprietors (“SPs”) of a 15th floor unit in the condominium development located at 170 Lentor Loop called “Bullion Park” (the “development”). This appeal, made under s 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (the “BMSMA”), concerns certain points of law arising from a decision of the Strata Titles Board (“STB”) in STB No 87 of 2019 (“STB 87/2019”).

2 In its decision, the STB found that certain SPs of the 14th floor units had erected permanent structures on the common property of the development without the required 90% approval under s 33(1)(c) of the BMSMA (STB's grounds of decision dated 2 November 2020 (“STB's Decision”) at [14]). However, the STB declined to order the respondent, which is the management corporation (or “MCST”) of the development, to remove the unauthorised structures because the affected 14th floor SPs were not parties to STB 87/2019 (STB's Decision at [16]–[17]). Whether the STB erred in law in coming to this conclusion is the main issue in the appeal before me.

3 Other related issues that arise...