Poh Kiong Kok v Management Corporation Strata Title Plan No 581

• Jurisdiction: Singapore
• Judgment Date: 19 July 1990
• Date: 19 July 1990
• Docket Number: Originating Summons No 180 of 1990
• Court: High Court (Singapore)

Poh Kiong Kok

Plaintiff

and

Management Corporation Strata Title Plan No 581

Defendant

[1990] SGHC 46

Chan Sek Keong J

Originating Summons No 180 of 1990

High Court

Land–Strata titles–Common property–Permanent allocation of car park lots with each subsidiary proprietor being granted exclusive use of one lot–Whether scheme contrary to statute–Section 41 (8) and First Schedule by-law 8 Land Titles (Strata) Act (Cap 158, 1988 Rev Ed)

The plaintiff and his wife were joint subsidiary proprietors of a unit in a condominium while the defendant was the condominium's management corporation (“the MC”). Under the condominium's parking scheme, each subsidiary proprietor was only allowed to park his car at the parking lot allocated to him and at no other. No resident was without a reserved lot, but some lots were better than others. The plaintiff complained that he was allocated an inferior parking lot and about the unfairness of the scheme. He then proceeded to commence an action seeking a declaration that no subsidiary proprietor was to be excluded from the use and enjoyment of any part of the common property.

Held, allowing the plaintiff's application:

(1) The plaintiff was permanently deprived of the use and enjoyment of all the parking lots save that which had been allocated and those on which he might park without the objection of the relevant proprietors: at [9].

(2) Each proprietor had the same right as the other to park his car in any of the parking lots. At common law, all co-proprietors had a unity of possession of common property and no proprietor could claim possession of a separate part of the property against his co-proprietor. In the absence of any statutory provision which abrogated or modified the common law rights of co-owners of land, or any statutory power vested in the management corporation to enable it to do so, the MC had no power to prevent any proprietor from parking his car at any parking lot: at [10].

(3) Section 41 (8) Land Titles (Strata) Act (Cap 158, 1988 Rev Ed) (“the Act”) became law well after the establishment of the scheme. Any existing arrangement, even if binding on the proprietorsvis-à-vis the developers, which was incompatible with s 41 (8) of the Act ceased to have effect when s 41 (8) came into force: at [13].

(4) There was no apparent inconsistency between s 41 (8) and by-law 8 in Part II of the First Schedule of the Act. Section 41 (8) was concerned with the grant of exclusive use and enjoyment of common property. The byelaw, where it operated, cut down but did not deprive existing non-exclusive rights and privileges of the proprietors, and had to be exercised for the benefit of the proprietors as a whole: at [16].

(5) As the plaintiff was seeking a declaratory order for infringement of his private law rights, O 53 of The Rules of the Supreme Court 1970 did not apply: at [19].

(6) The plaintiff was allowed to park his car at any parking lot in the condominium on a “first come first served basis”. Further, the plaintiff was entitled to costs on a full indemnity basis to be paid by the MC, as the action was brought not solely for his personal benefit but also in the interest of the subsidiary proprietors as a whole: at [20] and [21].

Ong Hoo Yong v Kok Yin Weng [1965] 2 MLJ 97 (refd)

Preston, In re [1985] AC 835 (distd)

R v Disciplinary Committee of the Jockey Club [1990] Times LR 3 January (refd)

R v Epping & Harlow General Commissioners [1983] 3 All ER 257; 57 TC 536 (distd)

Thomas Jacobs v William Seward (1872) LR 5 HL 464 (refd)

Land Titles (Strata) Act (Cap 158, 1988Rev Ed)s 41 (8), First Scheduleby-law 8 (consd);ss 3,13 (1), 96,97, 104

Rules of the Supreme Court 1970, TheO 53

B Rengarajoo (B Rengarajoo & Associates) for the plaintiff

Chia Ee Lin (Spencer Gwee & Co) for the defendant.

Judgment reserved.

Chan Sek Keong J

1 The plaintiff is jointly with his wife a subsidiary proprietor of a residential unit in Pandan Valley, a condominium which is made up of more than 600 residential and shopping units housed in seven separate blocks of buildings called Acacia, Bauhinia, Camellia, Chempaka, Eugenia, Poinciana and Poinsetta. The defendant is the management corporation of Pandan Valley.

2 The following facts are not in dispute. Pandan Valley has a total of 781 car park lots (“the parking lots”), 495 of which are housed in four multi-storey buildings and the remainder are located on ground level land. The use and enjoyment of the parking lots by the subsidiary proprietors (“the proprietors”) is regulated by a scheme, which operates for an indefinite duration (or, in the opinion of the defendant, until it is withdrawn or modified by a resolution of the majority of the proprietors) whereby each proprietor may only park his car at a parking lot allocated to him and at no other parking lot. The use is exclusive to him. Six hundred and forty-one parking lots have been reserved for the use of the proprietors and the remaining 140 for the use of visitors. No resident is without a reserved parking lot, but some parking lots are considered better than others in terms of location and the quality of shelter, eg covered lots are better than uncovered lots, and those at road level and on the lower floors are more convenient than those on the upper floors, etc.

3 The plaintiff's reserved parking lot is located on the top floor of the multi-storey car park, and although the building is adjacent to his residential unit, the parking lot is considered by him as inferior. The plaintiff has complained to the council about the unfairness of the current scheme. He has also written to the Commissioner of Buildings and obtained the Commissioner's opinion dated 12 July 1989 (which he has transmitted to the council) that residents should be allowed to park at any available car park lots on a “first come first serve” basis unless the management corporation has pursuant to a unanimous resolution under s 41 (8) of the Land Titles (Strata) Act (Cap 158, 1988 Rev Ed) (“the Act”) made the relevant by-laws in granting subsidiary proprietors the exclusive use of the respective car park...