Wu Chiu Lin v Management Corporation Strata Title Plan No 2874

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 28 February 2018
• Neutral Citation: [2018] SGHC 43
• Date: 28 February 2018
• Docket Number: Tribunal Appeal No 13 of 2017
• Published date: 03 March 2018
• Plaintiff Counsel: Toh Kok Seng and Chen Chongguang, Daniel (Lee & Lee)
• Defendant Counsel: Lee Swee Sian and Peh Bee Tien
• Court: High Court (Singapore)
• Hearing Date: 14 August 2017
• Subject Matter: Common property,Land,By-laws,Strata titles,Exclusive use and enjoyment,Strata Titles Board

Chan Seng Onn J: Introduction

This is an appeal brought by the appellant, Ms Wu Chiu Lin (“Ms Wu”), pursuant to s 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“the Act”), against the decision of the Strata Titles Board (“the Board”) on points of law. The Board had dismissed the application in Strata Title Board No 86 of 2016 (“the STB Application”) brought by various subsidiary proprietors of Strata Title Plan No 2874, which is a condominium development known as “SunGlade” (“the Development”), to install coverings over the trellises of their respective units in the Development.

The key controversy before me, amongst the various purported questions of law raised by Ms Wu on appeal, is the thorny issue of whether the proposed installation of the coverings over the trellises amounts to an exclusive use and enjoyment of common property within the ambit prescribed by the Act. This invited considerations, in particular, of the proper interpretation of both “common property” as defined under s 2(1) of the Act, as well as “exclusive use and enjoyment” within the meaning of s 33(1). Before me, only Ms Wu made submissions on appeal. The respondent, which is the management corporation of the Development (“the Management Corporation”), did not take a position in the appeal although it had opposed the STB Application during the proceedings before the Board below.

Following the hearing, I reserved judgment. I now furnish my decision for this appeal and the accompanying reasons.

Background The dispute

Ms Wu is the sole subsidiary proprietor of a penthouse unit located on the 13th floor (which is the topmost floor) of Block 7 of the Development.¹

The strata lots in the Development are designed such that there are trellises installed above the private enclosed spaces (“PES”) or balconies of some of the ground floor units (“PES trellises”), as well as above the balconies of some of the penthouse units (“roof trellises”).²

At the 11th Annual General Meeting (“the 11th AGM”) of the Management Corporation held on 28 May 2016, there was a special resolution to adopt a by-law drafted by the managing agent of the Management Corporation, Savills Property Management Pte Ltd, that subjected the installation of coverings over all PES trellises and roof trellises to certain conditions (“the trellis by-law”). These conditions were:³ (i) The width of the PES/Roof Trellis covering shall be no more than 2 metres from the external wall of the unit, unless exempted by URA. (ii) The design of the PES/Roof Trellis covering must be of approved design in Appendix A. (iii) The design of the PES/Roof Trellis covering must be certified by a Qualified Person at resident’s own cost. (iv) The design of the PES/Roof Trellis covering must be submitted for approval by Urban Redevelopment Authority (URA), Building & Construction Authority (BCA) and any other regulatory bodies as may be required, at resident’s own cost. (v) The PES/Roof Trellis covering will be removed at the Subsidiary Proprietor’s own cost should there be a change of property ownership, unless the new owner undertakes the ownership and maintenance of the PES/Roof Trellis covering. (vi) The Subsidiary Proprietor will be responsible for proper maintenance, including cleaning the top of the PES/Roof Trellis on a regular basis, failing which the Management will engage a cleaning contractor and recover the cleaning costs from the Subsidiary Proprietor concerned after due notice is given. The “approved design” referred to in condition (ii) above has been reproduced in the Annex to this judgment.⁴ The resolution was passed by a majority of 83.06% of the votes cast by share value, which was greater than the minimum of 75% required to pass the special resolution.⁵

On 19 August 2016, Ms Wu, along with the subsidiary proprietors of ten other units in the Development, sent an email requesting approval from the Management Corporation for the installation of coverings over the trellises of their respective units. In that email, the relevant subsidiary proprietors committed to using the same contractor and professional engineer, as well as adhering to the approved design referred to in the trellis by-law adopted at the 11th AGM, so as to achieve standardisation and uniformity.⁶ Of the 11 units for which the subsidiary proprietors were seeking to install coverings over their respective trellises, three were penthouse units, while the remaining eight were ground floor units with PES or balconies.

On 9 September 2016, the Management Corporation rejected the applications on the ground that trellises are common property, such that the making of the trellis by-law fell within the ambit of s 33(1) of the Act, which regulates exclusive use by-laws. Section 33(1)(c) requires a by-law to be passed pursuant to a 90% resolution if the by-law conferred on subsidiary proprietors exclusive use and enjoyment of common property for a period exceeding three years. Hence, the special resolution passed at the 11th AGM was determined to be insufficient to enact the trellis by-law.⁷

On 14 September 2016, the counsel for the subsidiary proprietors of the 11 units wrote to the Management Corporation, taking the position that the Management Corporation had no legal basis to reject the applications because:⁸ the strata title plan drawings of the units in question clearly showed that the proposed coverings would be within the units; the special resolution passed at the 11th AGM was sufficient to authorise the installation of the coverings even if the trellises are common property; it was incorrect that the installation of the coverings would constitute exclusive use of common property because the trellises are not common property, and even if they are, such installation would not amount to exclusive use because the subsidiary proprietors could not set up garden or deck chairs on top of the coverings; and the Management Corporation could not prevent the subsidiary proprietors of the ground floor units from installing coverings over the PES trellises, given that those coverings were intended as safety devices to keep them safe from killer litter.

The proceedings before the Board

On 12 October 2016, the subsidiary proprietors of the 11 units, along with the subsidiary proprietor of another ground floor unit (collectively, “the Applicants”), brought the STB Application pursuant to ss 101(1)(c) and 111(a) of the Act,⁹ seeking an order that they be permitted to install coverings over their respective PES trellises and roof trellises in accordance with the conditions laid out under the trellis by-law adopted at the 11th AGM, and an order for the Management Corporation to pay them the costs of the STB Application.¹⁰

The Management Corporation tendered its written submissions in response to the STB Application on 28 November 2016.¹¹ In its submissions, the Management Corporation stated that:¹²

The crux of the dispute is the issue of whether the trellises in the Development constitute common property and whether the installation of coverings over the [t]rellises by the subsidiary proprietors would constitute exclusive use pursuant to [s] 33(1) of the [Act]. [emphasis added in italics and bold italics]

The Management Corporation’s position, as before, was that the trellises constitute common property and the installation of coverings over the trellises would amount to exclusive use of the common property. Hence, the resolution passed at the 11th AGM was invalid and irregular since exclusive use would require the necessary resolutions to be passed pursuant to s 33(1).¹³ The Management Corporation also emphasised that its intention was to “ensure that the purported approval granted to the Applicants by way of the Resolution [was] valid and regular”, and “not to unreasonably prohibit the Applicants from installing coverings on the [t]rellises”.¹⁴

Thereafter at a direction hearing before the Board on 21 February 2017, the counsel for both parties informed the Board that settlement between the subsidiary proprietors of the nine ground floor units and the Management Corporation was imminent. The counsel also indicated that:¹⁵ it was not in dispute that the trellises are common property; and the issue identified was whether the installation of the coverings over the trellises would amount to exclusive use of common property. Those indications from the counsel were confirmed by way of a letter from the Board to the counsel dated 22 February 2017.

At a mediation before the Board on 22 February 2017,¹⁶ the Management Corporation agreed to authorise the subsidiary proprietors of the ground floor units with PES trellises (including, but not limited to, the Applicants who occupied the nine ground floor units) to install coverings over the PES trellises, on the grounds that, inter alia:¹⁷ the parties agreed that the installation of coverings over the PES trellises constituted the installation of safety devices for the improvement of safety within those strata lots under para 5(3) of the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005 (S 192/2005) (“the Regulations”); the coverings would be installed in accordance with the design and conditions identical to those set out in the trellis by-law; and the costs incurred would be reserved to the Board. These terms were recorded by the Board in a consent order dated 20 March 2017. The subsidiary proprietors of the remaining three penthouse units were unable to similarly reach an agreement with the Management Corporation.

On 6 March 2017, the Applicants and the Management Corporation proceeded to file their written submissions.¹⁸ In the Applicants’ written submissions, it was stated that the issue to be determined by the Board was:¹⁹

… whether the installation of the coverings over the trellises amounts to ‘exclusive use’ of common...