Sit Kwong Lam v Management Corporation Strata Title Plan No 2645

• Jurisdiction: Singapore
• Judge: Kannan Ramesh JC
• Judgment Date: 27 March 2017
• Neutral Citation: [2017] SGHC 57
• Citation: [2017] SGHC 57
• Court: High Court (Singapore)
• Published date: 09 March 2018
• Docket Number: Originating Summons 246 of 2016
• Plaintiff Counsel: Alvin Yeo SC, Candy Agnes Sutedja and Hannah Lee (WongPartnership LLP)
• Defendant Counsel: Subramanian s/o Ayasamy Pillai and Perera Randall Mingyang (Colin Ng & Partners LLP)
• Subject Matter: Land,Strata titles,By-laws,Common property,Management corporation
• Hearing Date: 04 August 2016,23 August 2016,27 September 2016,13 January 2017,29 June 2016

Kannan Ramesh JC: Introduction

Originating Summons 246 of 2016 (“the Application”) was the appellant’s appeal against the decision of the Strata Titles Board (“the Board”) in STB No 40 of 2015 (“the STB Application”) on points of law, pursuant to section 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the Act”). The Application raises several interesting questions, the principal of which is the correct interpretation of common property in s 2(1) of the Act.

The appellant is the subsidiary proprietor of unit #29-01, a penthouse unit occupying the 29th and 30th floors of Tower 15 of the condominium at 13 Ardmore Park (“the Unit”). The respondent is the management corporation of the development.

The STB Application concerned the appellant’s installation of three works in different areas of the development. The respondent, upon discovering these works, demanded that the appellant remove the works and/or obtain the requisite approval. It took the position that the works had been installed on common property in breach of various by-laws. Substantial correspondence passed between the parties culminating in the appellant commencing the STB Application to obtain, inter alia, a declaration that he had not breached the by-laws by installing the works and in the alternative, an order that the respondent consent to the works. The Board dismissed the STB Application.

I dismissed the Application and gave detailed oral grounds. The appellant has appealed my decision, and I set out the full grounds of my decision.

Background to the dispute

Sometime around November 2011, the appellant submitted an application through his appointed representative, Glory Sky Technology Ltd (“Glory”), for the following works to be carried out at the Unit: 1. Demolition of non structural walls. 2. Removal of unwanted existing trunking, cable trays, wires, AC ductings. 3. Laying of new electrical, data, water, ACMV, telephony services. 4. Erection of new walls & partitions. 5. Replacement of doors & window panels. 6. Laying of new wall & floor finishes. 7. Install new ceiling, painting works & install new cabinetry.

The appellant had also indicated “Yes” in response to a question on the application form asking whether there would be any “Additions/alterations to electrical system including air-conditioning system”, but did not elaborate.

It was not stated in the application that the works were to be carried out in areas not within the Unit. The works were to commence on 14 November 2011 and be completed by 13 March 2012. The application was approved but the works were not completed by the completion date and the appellant made numerous applications for extensions of time.

In August 2013, in the course of inspections, the respondent discovered that the fixed glass panels bordering two areas of the Unit had been replaced with sliding panels, and the appellant had installed timber decking on two wide ledges beyond those panels outside the Unit on the 29th floor (“Work 1”). Figures 1 and 2 depict Work 1:

The two wide ledges each ran along a segment of the Unit’s external façade and were enclosed by a low parapet merely 0.75m in height which it would appear had been constructed by the developer. Though the ledges resembled balconies, it was common ground that they were not. The parapet did not meet the required safety standards for balconies, not being of sufficient height. Fixed glass panels originally separated the wide ledges from the Unit such that they could not be physically accessed by the occupants of the Unit. It is clear that the wide ledges were not meant to be accessed by them. It was also common ground that the ledges were demarcated in the strata title plan as common property, as shown in Figure 3 (the respondent’s annotations in red):

The respondent sent an e-mail to Glory on 26 August 2013, stating that Work 1 was unauthorised and requesting that the appellant restore the fixed glass panels. The parties corresponded and on 28 August 2013, the respondent advised the appellant to submit a formal application to install timber decking on the ledges. The appellant submitted an application to the respondent by way of a letter dated 3 September 2013 from Glory to the respondent. However, the management council took the view that Work 1 was tantamount to exclusive use of common property, which it had no jurisdiction to authorise. The appellant was thus advised to sponsor a 90% resolution at the upcoming Annual General Meeting (“AGM”) in April 2014 to acquire exclusive use of the ledges pursuant to s 33(1)(c) of the Act. He did not do so.

Shortly after the AGM, around 5 May 2014, the respondent discovered that the appellant had installed timber decking on the flat roof on the 30th floor outside the Unit (“Work 2”), as seen in Figures 4 and 5 (respondent’s annotations in red):

The timber decking covered the flat roof entirely, including the floor trap and drainage system, thus making it difficult for the respondent to properly upkeep the area. The flat roof was accessible to the appellant via the back door of the kitchen of the Unit, and also accessible to all subsidiary proprietors in the condominium via a common staircase. It was common ground that the flat roof was in an area demarcated as common property in the strata title plan, as shown in Figure 7.

Around 12 May 2014, the respondent discovered that the appellant had installed an air-conditioning ventilation unit on the outside wall of Tower 15, the external wall enclosing the Unit, in the same vicinity as Work 2 (“Work 3”). Work 3 is shown in the following photograph:

Work 3 would have required the appellant to hack through the common property wall to connect the air-conditioning unit vent to the interior of the Unit. It was common ground that the flat roof was in an area demarcated as common property in the strata title plan, as shown below (the respondent’s annotations in red):

A closer view of the location of the air-conditioning ventilation unit can be seen in Figure 8 (the respondent’s annotations in red):

On 12 May 2014, the respondent wrote to Glory requesting the immediate removal of Works 1, 2 and 3 (collectively “the Works”). No reply was received. On 28 May 2014, the respondent again wrote to Glory, giving 14 days’ notice to remove the Works failing which the respondent would remove or demolish “all unauthorised works”. Glory replied on 30 May 2014, communicating the appellant’s intention to “table the appropriate proposal under Section 34 of [the Act] for the conversion of the common area to private usage”. The respondent advised the appellant to obtain the approval of the general body at a general meeting but he did not do so.

On 29 August 2014, the appellant was again given 14 days’ notice to remove the Works. More correspondence passed between the parties (and, subsequently, their appointed solicitors) but the Works remained unremoved. The appellant was again advised to table any necessary resolution at the AGM in April 2015.

At the AGM on 25 April 2015, the appellant tabled three motions seeking exclusive use and enjoyment and/or special privileges in respect of the common property where the Works had been carried out: (a) for more than three years (to be passed by a 90% resolution); (b) for three years (to be passed by a special resolution, ie, 75% vote); or (c) for one year (to be passed by an ordinary resolution, ie, a bare majority). He was unable to succeed on any of his three motions, with the vote count as set out below:

No	Resolution	Vote count
1	Seeking exclusive use and enjoyment and/or special privileges of the relevant areas for more than three years	26% for; 74% against
2	Seeking exclusive use and enjoyment and/or special privileges of the relevant areas for three years	26% for; 74% against
3	Seeking exclusive use and enjoyment and/or special privileges of the relevant areas for one year	30% for; 70% against

On 30 June 2015, the appellant commenced the STB Application seeking the following orders: a declaration that he had not breached any by-laws by virtue of the Works; in the alternative, a declaration that the Works did not amount to exclusive use and enjoyment of or the conferment of special privileges in respect of common property within the meaning of s 33 of the Act; an order pursuant to s 111(a) of the Act that the respondent consent to the Works; a declaration pursuant to s 101(1)(c) read with s 101(4) of the Act that the respondent failed to exercise its powers under s 37(4) of the Act; and an order pursuant to s 111(b) of the Act that the respondent authorise the Works under s 37(4) of the Act, on such terms as the appellant or the Board proposed.

On 11 February 2016, the Board dismissed the STB Application with costs to the respondent. The Board expressed doubts regarding its competence to make declarations as sought by the appellant, but this did not arise for decision as the Board dismissed the application on its merits. The appellant filed the Application on 10 March 2016.

The Board’s decision The Works were situated on common property

The first issue the Board had to determine was whether the Works were situated on common property. This assumed greatest significance in relation to Work 1 as it was not a matter of serious disagreement that Works 2 and 3 were indeed situated on common property.

The Board construed the definition of “common property” in s 2(1) of the Act to mean any area which was both (i) not comprised in any lot or proposed lot in a strata title plan and (ii) used or capable of being used or enjoyed by the occupiers of two or more lots. In other words, the Board read the twin limbs of s 2(1) as conjunctive requirements. As it was not disputed that none of the areas housing the Works was comprised...