LDBM 129/2020

[2023] HKLdT 26

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 129 OF 2020

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BETWEEN

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JUDGMENT

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The Application

1. The applicant is the incorporated owners of Ho On Mansion (“the said Building”) and the respondent is the owner of car park number 44 of the said Building (“the Car Park”).

2. The owners of the said Building are subject to the rights and obligations imposed by a Deed of Mutual Covenant dated 3 December 1973 (“the DMC”).

3. The applicant issued these proceedings and claims that the respondent has, in breach of the DMC, used the Car Park, and some of the common areas adjacent to the Car Park, for storage of personal belongings. The applicant claims that the respondent’s act created nuisance and obstruction. Some combustible goods have been stored and the act is in breach of the DMC.

4. The applicant applies for an order that the respondent shall remove his personal belongings and reinstate the areas affected by his act.

5. In the Notice of Opposition, the respondent claims that the Car Park is a privately owned property. He said all the things that are placed at the Car Park is within the boundary of the Car Park and denies having occupied any common areas. It is also denied that the things he placed at the Car Park are easily combustible and there is no violation of the terms of the DMC. The respondent also said the placing of personal things at the car park areas by individual owners has been in practice for a long time.

6. In the Reply, the applicant contends that the Car Park shall only be used for parking of vehicle, and shall not be used for storage of personal belongings. It is also claimed that because of the stored personal belongings, the car parked by the respondent therein has to protrude into common areas, and is in breach of the DMC.

The Issues

7. There are two issues in dispute. It appears that the respondent does not dispute that he is not entitled to place his things at common areas, but claims that he has not. Hence it is a finding of fact if he has and/or still is keeping his personal belongings at any part of the common areas. This would include the complaint of his car protruding over the common areas.

8. The second issue is the interpretation of the DMC. The respondent is not denying that he has placed his personal belongings within the boundary of the Car Park, occupying part of it. Is that prohibited by the DMC?

9. I shall come to the legal principle later. I shall first consider the oral evidence of the parties.

The Applicant’s Case

10. The applicant has one witness, Mr Tse Ka Lun (“Mr Tse”). He adopted his witness statement dated 23 August 2022 as his evidence-in-chief.

11. Mr Tse is a manager of 高信物業服務有限公司, the current management company of the said Building, the company being so appointed on 1 July 2022.