The Management Corporation Strata Title Plan No. 4131 v Elly and another

• Jurisdiction: Singapore
• Judge: Fong King Man
• Judgment Date: 31 October 2017
• Neutral Citation: [2017] SGDC 295
• Court: District Court (Singapore)
• Docket Number: District Court Originating Summons No 64 of 2017
• Published date: 14 December 2017
• Year: 2017
• Hearing Date: 07 September 2017,04 October 2017
• Plaintiff Counsel: Leo Cheng Suan (Infinitus Law Corporation)
• Defendant Counsel: Adrian Ee and Joanne Chew (Ramdas & Wong)
• Subject Matter: Land,Strata titles,Common property,By-laws,Injunction,Mandatory injunction
• Citation: [2017] SGDC 295

District Judge Fong King Man: Introduction

The Plaintiff is the Management Corporation of a condominium known as The Belysa at 55 Pasir Ris Drive 1 Singapore 519530.

The Defendants are the subsidiary proprietors of 59 Pasir Ris Drive 1 #18-15 Singapore 519532, which is a penthouse unit in The Belysa (“the Unit”).

The Plaintiff took up the present Originating Summons (“OS”) for the following orders: That the 1st and 2nd Defendants, who are the subsidiary proprietors of 59 Pasir Ris Drive 1 #18-15 Singapore 519532, be ordered to remove the unauthorised installation, namely a swing door connecting the 1st and 2nd Defendants’ roof terrace and the common property (belonging to the Plaintiffs) and to reinstate the common property to its original state and condition. An injunction to restrain the 1st and 2nd Defendants, whether by themselves, their servants or agents or otherwise howsoever, from obstructing or interfering with the lawful use and enjoyment of or encroaching upon the common property. An Order that the 1st and 2nd Defendants do forthwith remove all things or articles placed, stored, attached or affixed on or to the common property by the 1st and 2nd Defendants, whether by themselves, their servants or agents. An Order that the 1st and 2nd Defendants do take all reasonable steps to ensure that their invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the subsidiary proprietor or occupier of another lot or of any person lawfully using the common property, and not encroach onto the common property. That the 1st and 2nd Defendants pay damages to be assessed and/or indemnify the Plaintiffs against any claims whatsoever by any Authority, Development charges and/or losses owing to the above mentioned breaches committed by the 1st and 2nd Defendants. That the 1st and 2nd Defendants bear all costs including legal fees on an indemnity basis, disbursements and other incidental costs incurred by the Plaintiffs for this application pursuant to the resolution passed at the Annual General Meeting of the Plaintiffs. Any further directions as the Court deems fit.

I dismissed the Plaintiff’s claim in prayer 1 for a mandatory injunction to remove a swing door and to reinstate a wall. However, I ordered the Defendants to indemnify the Plaintiff against (a) any claims by any authority, (b) development charges and/or (c) losses relating to the common property on the roof, owing to the installation of that swing door. The terms of the indemnity were based on what was sought in prayer 5.

At the time of the hearing, prayers 2 and 3 were no longer live issues, as the Defendants had complied with the substance of the orders sought after the OS was filed. The Defendants were also willing to provide an undertaking in that regard. Accordingly, no orders were made for prayers 2 and 3.

Prayer 4 was dismissed because the Plaintiff did not provide sufficient evidence that the Defendants or their invitees behaved in a manner that was likely to interfere with the peaceful enjoyment of the subsidiary proprietor or occupier of another lot or of any person lawfully using the common property.

Insofar as the Plaintiff was seeking damages in prayer 5, that portion of the claim was dismissed as no evidence was adduced by the Plaintiff on damages.

In light of the various orders made, I accepted the Plaintiff’s costs submission that each party should bear its own costs for the OS.

The Plaintiff has appealed against my decision to dismiss prayer 1 as well as my costs order.

The dispute

As part of their penthouse Unit, the Defendants have a roof terrace which can be accessed through the Unit itself. It is a private area belonging to the Defendants which is cordoned off by walls. This roof terrace is surrounded by the roof of Block 59 (the Unit is in Block 59) (see Figures 1 to 3). This surrounding roof of Block 59 is common property.

Back to back with the roof terrace is a ledge area which is part of the Defendants’ lot (“the Ledge Area”) (see Figure 4).

As seen in Figures 1 to 3 above, the Defendants had erected a swing door at one of the walls surrounding the roof terrace (which I will refer to as “the Swing Door” and “the Wall”).

The issues before me were: Whether the Wall is common property; Whether, by erecting the Swing Door, the Defendants breached the Building Maintenance and Strata Management Act (Cap. 30C) (“BMSMA”), its by-laws and/or any other applicable by-law; and If the answer to (b) is yes, whether a mandatory injunction should be granted in the Plaintiff’s favour.

Whether the Wall is common property

Common property is defined in section 2(1) BMSMA as: (a) in relation to any land and building comprised or to be comprised in a strata title plan, such part of the land and building — (i) not comprised in any lot or proposed lot in that strata title plan; and (ii) used or capable of being used or enjoyed by occupiers of 2 or more lots or proposed lots; or (b) in relation to any other land and building, such part of the land and building — (i) not comprised in any non-strata lot; and (ii) used or capable of being used or enjoyed by occupiers of 2 or more non-strata lots within that land or building

The interpretation of this section was considered by Kannan Ramesh JC (as he then was) in the recent case of Sit Kwong Lam v Management Corporation Strata Title Plan No 2645 [2017] SGHC 57. After examining the relevant case law, literature and legislative history, Ramesh JC concluded that the two requirements set out in section 2(1) BMSMA are conjunctive: 77 In the final analysis, I agreed with the appellant that the two limbs in the definition of common property in s2(1) of the [BMSMA] are to be read conjunctively. Common property refers to that part of the land which is both “not comprised in any lot or proposed lot in that strata title plan”, and “used or capable of being used or enjoyed by occupiers of 2 or more lots or proposed lots”. (Emphasis original)

Similarly, in Management Corporation Strata Title Plan No 367 v Lee Siew Yuen and another [2014] 4 SLR 445, Tan Siong Thye J held at [27] that for a structure to be common property under section 2(1) BMSMA, it has to satisfy both requirements.

In its submissions on whether the Wall is common property, the Plaintiff did not base its arguments on the two conjunctive requirements in section 2(1) BMSMA.

Instead, the Plaintiff’s overarching submission is that according to section 29(1)(b)(ii) BMSMA, the inner half of the Wall belonged to the Defendants and the outer half of the Wall is common property.

However, section 29(1)(b)(ii) BMSMA does not define what constitutes common property. Instead, it sets out what a management corporation should or can do in respect of property, specifically in relation to certain fixtures or fittings:

Duties and powers of management corporation in respect of property

29.—(1) Except as otherwise provided in subsection (3), it shall be the duty of a management corporation —

… (b) to properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof) — … (ii) any fixture or fitting (including any pipe, pole, wire, cable or duct) comprised in the common property or within any wall, floor or ceiling the centre of which forms a boundary of a lot, not being a fixture or fitting (including any pipe, pole, wire, cable or duct) that is used for the servicing or enjoyment of any lot exclusively (Emphasis added in bold and underline)

While the underlined portion above refers to the centre of a wall forming the boundary of a lot, section 29(1)(b)(ii) BMSMA provides for the duties and powers of a management corporation in respect of a fixture or fitting within the said wall. The Plaintiff did not explain how this sub-section is directly relevant to the present case, as the Wall is not a “fixture or fitting”.

In any case, I requested parties to submit further submissions on whether Rule 41 of the Boundaries and Survey Maps (Conduct of Cadastral Surveys) Rules (“Rule 41”) applies. Rule 41 states:

Unless otherwise stipulated on the strata certified plan, the common boundary of any lot with another lot or with the common property shall be the centre of the floor, wall or ceiling, as the case may be.

The Plaintiff submitted that Rule 41 supports its interpretation of section 29(1)(b)(ii) BMSMA.

The Defendants submitted that to ascertain what constitutes “common property”, one should look at the primary legislation which defines the term i.e. the BMSMA. That is because Rule 41 itself refers to the strata certified plan, and that would bring us back to one of the two conjunctive requirements under section 2 BMSMA.

I agreed with the Defendants. Rule 41 is subject to what is stated in the strata certified plan, and the application of Rule 41 to the present case depends on whether the strata certified plan shows that the Wall is comprised in the Defendants’ lot.

The Defendants submitted that it is unclear from the plans adduced by both parties in evidence whether the Wall is comprised in the Defendants’ lot. The Plaintiff did not raise any argument to contest the Defendants’ submission.

The parties tendered the floor plan and the building and structural plan from the Building and Construction Authority (“BCA”) in their respective affidavits. As the exhibited plans were repeated or simply enlarged or reduced versions of the same plan, I will only reproduce the clearest two below (see Figures 5 and 6).

There is no clear marking on the plans to indicate whether the Wall forms part of the Defendants’ lot. Although different colours were used on the plan from BCA, there was no accompanying legend which explained the significance of the colours used.

Neither party submitted on whether the...