Soo Hoo Khoon Peng v Management Corporation Strata Title Plan No. 2906

• Jurisdiction: Singapore
• Judge: Sim Mei Ling
• Judgment Date: 01 August 2023
• Neutral Citation: [2023] SGDC 162
• Court: District Court (Singapore)
• Docket Number: District Court Originating Application No. 41 of 2023
• Hearing Date: 20 June 2023,11 July 2023
• Citation: [2023] SGDC 162
• Year: 2023
• Plaintiff Counsel: Joseph Tay Weiwen and Lin Ruizi (Shook Lin & Bok LLP)
• Defendant Counsel: Chen Chongguang, Daniel and Tan Hong Xun, Enzel (Lee & Lee)
• Subject Matter: Land,Strata titles,Common property,By-laws
• Published date: 04 January 2024

District Judge Sim Mei Ling:

The claimant is a subsidiary proprietor of a top-floor unit of a condominium known as Stevens Loft (“Development”). The Development is made up of a single block of flats. The claimant’s unit occupies the 4th and 5th floors of the building. The defendant is the management corporation of the Development.

The claimant wanted to install zip blinds at 2 balconies of his unit: one on the 4th floor, and the other on the 5th floor of the building. In the course of these proceedings, the claimant clarified that he was specifically seeking to install a brand of zip blinds known as Renson Fixscreen (“Fixscreen”).

The claimant sought the defendant’s permission to install the zip blinds. As the defendant refused his request, the claimant therefore filed the present Originating Application for the following orders: (a) That, pursuant to s 37(4) read with s 88(1)(a) of the Building Maintenance and Strata Management Act 2004 (“BMSMA") the defendant's decision to reject the claimant's renovation request for the installation of a Ziptrak blind system in the balcony of his unit be restrained; (b) That, pursuant to s 88(1)(b) of the BMSMA, the defendant pay damages of $2,400 to the claimant; (c) Interest and costs.

At the hearing, claimant’s counsel orally applied to amend the application, to include a further and/or alternative prayer for an order: (d) That the defendant consents to the claimant’s installation of Fixscreen (pursuant to s 111(a) of the BMSMA or otherwise).

After considering the parties’ evidence and submissions, I dismiss the claimant’s application. These are the reasons for my decision.

The parties’ cases

I first summarise parties’ respective cases.

It is the claimant’s case that he is entitled to install Fixscreen on the following grounds: Installing Fixscreen would not amount to exclusive use or enjoyment of common property, and therefore a 90% resolution under s 33(1) of the Building Maintenance and Strata Management Act 2004 (2020 Rev Ed). (“BMSMA”) is not required. By-law 5(3) of the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005 (“BMSMR”) (“by-law 5(3)”) entitles a subsidiary proprietor to install various devices or structures on common property without a management corporation’s approval. These include a screen or other device to prevent entry of animals or insects on the lot, and a structure or device to prevent harm to children. Fixscreen complies with by-law 5(4) of the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005 (“by-law 5(4)”) as it is in keeping with the appearance of the Development. S 37A of the BMSMA allows a subsidiary proprietor to install safety equipment on a lot or, as part of any opening on the lot which is facing outdoors, without requiring a management corporation’s approval. The defendant ought to have authorised the claimant’s installation of Fixscreen pursuant to s 37(4) of the BMSMA, as Fixscreen will not detract from the appearance or is in keeping with the rest of the development and will not affect the structural integrity of the building. Fixscreen complies with the Urban Redevelopment Authority (“URA”)’s regulations on balcony screens.

The claimant argues that the defendant breached s 37 by unreasonably refusing the claimant’s request to install Fixscreen. It is on this basis that the claimant seeks an order to restrain the defendant’s breach and for an order of damages pursuant to s 88 of the BMSMA. Further and/or in the alternative, the claimant seeks an order pursuant to s 111(a) of the BMSMA that the defendant consents to the claimant’s proposal to install Fixscreen, on the ground that the defendant has unreasonably refused to consent to the claimant’s proposal.

The defendant contends that the present application should be dismissed with costs, on the following grounds: The proposed Fixscreen would amount to exclusive use or enjoyment of common property, for which a 90% resolution by the defendant is required. The claimant is not entitled to avail himself of by-law 5(3) as Fixscreen does not comply with the requirements in by-law 5(4) that such device or structure must have an appearance, after it is installed, in keeping with such guidelines as the defendant may prescribe in respect of such installations, and with the appearance of the Development. The claimant is not entitled to rely on s 37A as Fixscreen does not amount to safety equipment as defined therein, nor is it in keeping with the defendant’s guidelines or the appearance of the building. Fixscreen detracts from the appearance of the building and/or will not be in keeping with the rest of the buildings, in breach of s 37(4) of the BMSMA. Installing Fixscreen would result in enclosing the claimant’s balconies, which breaches URA regulations.

Interplay between ss 33(1), 37(3), 37(4), 37A, 88(1), 111 of the BMSMA and by-law 5 of BMSMR

Given the number of statutory provisions in issue, it would be useful to first set the relevant statutory framework and how these provisions relate to one another.

Which provisions are engaged depends on whether the proposed works would take place on “common property”, as defined in s 2(1) of the BMSMA.

Where the proposed works would take place on common property

The Second Schedule to the BMSMR contains prescribed by-laws which the Development has incorporated into its by-laws. By-law 5(1) provides that a subsidiary proprietor shall not amongst other things, drive nails or screws or the like into any structure that forms part of the common property except with prior written approval of the management corporation.

Moreover, if such works would confer on the subsidiary proprietor exclusive use or enjoyment of common property, the subsidiary proprietor must seek approval of the management corporation, by way of a specific by-law. The majority required to pass such a resolution would depend on the duration for which the subsidiary proprietor wishes to exclusively use or enjoy the whole or any part of common property. Where this is for 3 years or more, a 90% resolution is required: s 33(1)(c) of the BMSMA.

The above is subject to the exception contained in by-law 5(3). This sets out specific circumstances where alterations to common property may be made without a management corporation’s prior approval. In particular, by-law 5(3)(b) and (c) permits without a management corporation’s prior approval, the installation of “any screen or other device to prevent entry of animals or insects on the lot”, or “any structure or device to prevent harm to children”.

This exception is however subject to conditions in by-law 5(4), namely, that any such locking or safety device, screen, other device or structure: (1) must be installed in a competent and proper manner, and (2) “must have an appearance after it has been installed, in keeping with such guidelines as the management corporation may prescribe after such installations, and with the appearance of the rest of the building.”

Where the proposed works would not take place on common property

On the other hand, if the proposed works would not take place on common property but would instead be comprised in or upon a subsidiary proprietor’s lot, different statutory provisions apply.

A subsidiary proprietor cannot effect any improvement in or upon his lot if the proposed works affect the appearance of any building comprised in the strata title plan, unless this relates to installation of “safety equipment” as defined in s 37A(3) of the BMSMA or if the management corporation authorises the improvement: s 37(3) of the BMSMA.

To be entitled to install safety equipment on the lot, or as part of any window, door or opening on the lot which is facing outwards, the subsidiary proprietor must satisfy various conditions, including ensuring that the safety equipment has an appearance, after it has been installed, “in keeping with the appearance of the building”: s 37A(2)(b) of the BMSMA.

A management corporation can only authorise a subsidiary proprietor to effect an improvement which affects the appearance of any building comprised in the strata tile plan if the criteria in both ss 37(4)(a) and (b) of the BMSMA are satisfied. These are: (1) the improvement will not detract from the appearance of any of the buildings comprised in the strata title plan or will be “in keeping with the rest of the buildings”; and (2) will not affect the structural integrity of any of the buildings comprised in a strata title plan.

Statutory safeguards

There are various statutory safeguards to prevent minority oppression in management corporations. For instance, s 88(1) of the BMSMA provides that if a management corporation commits a breach of Part 5 of the BMSMA (which ss 37 and 37A fall within), a subsidiary proprietor is entitled to apply to the court for an order to restrain the breach and to recover damages for any loss or injury arising out of the breach.

Further and/or in the alternative, a management corporation can also be ordered to consent to a proposal by a subsidiary proprietor to either effect alterations to common property (s 111(a) of the BMSMA) or to make any improvement in or upon a lot which affects the appearance of any building comprised in the strata title plan (s 111(b) of the BMSMA). This can be made where a management corporation has unreasonably refused to consent to a proposal to make alterations to common property (in the case of s 111(a) of the BMSMA) or where it has unreasonably refused to authorise under s 37(4) any improvement in or upon a lot which affects the appearance of any building comprised in the strata title plan (in the case of s 111(b) of the BMSMA).

Issues

Having regard to the above statutory framework and parties’ submissions, the broad issues to be decided are as follows: Would installing Fixscreen amount to exclusive use...