Hong Kong Mansion, Causeway Bay (IO) v Bothlink Ltd ([2014] 2 HKLRD 78, CA) concerned the ownership of roof voids. The incorporated owners argued that they were common parts and sought to recover them from the defendant (B) who argued that they had been assigned to his predecessor in title. The voids were in the roof space and were the lower portion of a space, the upper portion of which housed the maintenance platform for the lifts.
The Court of Appeal looked at the question as being one that turned on the construction of the first assignment in the building. This had included the right to ‘the remaining self-contained portions’, flat roofs and other roofs. It had not included property intended to be used for the common enjoyment of co-owners and co-occupiers. The question was as to whether the roof voids had been included in the first assignment or were property intended for common enjoyment. The Court of Appeal (like the Court of First Instance) held that the roof voids were intended for common enjoyment.
The question was as to the parties’ contractual intention at the time of the first assignment. The elements of the factual matrix all supported the incorporated owners’ contention that the voids were common parts: they were not included in the calculation of the gross floor area or building volume calculations in the approved building plans; the plans did not distinguish between the upper and the lower levels of the spaces in question (and it was agreed that the upper levels were common parts); the plans suggested that the relevant structures (in their entirety) were intended to house lift machinery; and at the time of the first assignment there was no means of access to the lower levels of the voids ([29] – [30]).
Michael Lower
