Installation of Roof Coverings over Private Enclosed Space and Air Well at Kentish Lodge — An Overview (2005)
Background information
The owners of two adjacent units of ground-floor apartments in Kentish Lodge built a roof covering over the private enclosed spaces and the air well. Additional air-conditioning condensers were also installed partially on common property. A mandatory injunction was granted by the District Court to the MCST requiring the owners of the two units to remove the illegal structures within four months.
An appeal against the order was made by the owners and the High Court allowed the appeal and reversed the decision of the District Court.
Points raised by the High Court judge
We will examine the points raised by the High Court individually and in detail to better reflect the decision.
1. Do the by-laws apply retrospectively?
The by-laws in this case would only have taken effect on 7 April 2000 when the strata title plan for Kentish Lodge was registered and the MCST came into existence. The interpretation also accords with common sense as the two by-laws alleged to have been breached are by-laws that provide that subsidiary proprietors must obtain approval of the MCST before carrying out the types of works specified in those by-laws. The appellants were not subsidiary proprietors when they did the works and there was no MCST to whom they could have applied for approval.
It does not mean that prior to 7 April 2000, the appellants or other purchasers were entirely free to do whatever they liked with their units. In the sale and purchase agreement that the appellants made with the developer, there was a clause (No. 21) that bound the appellants to comply with the restrictions in Schedule A to the sale agreement from the date they took possession of the units until the MCST took over management of the condominium.
Schedule A contained restrictions that were similar to the by-laws set out in the First Schedule of the Act. In particular, clause 2(m) of Schedule A provided that the purchaser was not to ‘mark, paint, drive nails or screws or the like into, or otherwise damage or deface any structure that forms part of the common property without the approval in writing of the developer’.
The developer could, therefore, have forbidden the appellants to carry out any erections or installations that would have damaged or defaced the common property.
When the developer received the appellants’ request for approval of their intended works, the developer chose to sit on the fence and decline either to approve or specifically disapprove the works. If the developer had rejected the works outright, the appellants would not be in their present position. In any case, even if the appellants were in breach of contract because they did not get specific approval from the developer before proceeding with their works, that breach could only be acted on by the developer and the MCST could not have relied on it in its action before the District judge.
Breach of the appellants’ contractual obligations under the sale and purchase agreement could not be considered breach of by-laws as those were not in force at the time the acts constituting the breach took place. The conclusion on this issue is, therefore, that no breach of the by-laws occurred when the appellants did their works in 1999. The works done by the appellants in September 2000 have to be considered separately.
2. Were the appellants in breach of the by-laws after the same came into force?
The judge decided that if the action is started and completed at a time when there is no MCST, then the taking of the action is not a breach of the by-laws. By the time the by-laws come into effect, the action is no longer taking place and therefore cannot fall within their purview.
3. Did the erection of the roofs over the terrace and landscape areas amount to exclusive use of common property?
Each developer building a development in Singapore has to conform with the overall gross floor area (usually referred to as GFA) as specified by the URA. The GFA of each development is determined by the approved plot ratio for the land. The plot ratio is in accordance with the master plan and it determines the land premium or the development charge payable by the developer. Based on that fee, the URA will permit the developer to develop the site up to a limit that is permissible.
In a decision by District judge Wong Peck in MCST Plan No. 1375 v Han Soon Juan, it was decided that GFA does not belong to the defendants nor the plaintiffs. It was stated that the GFA and Plot Ratio are within the purview of URA for planning purposes. They are planning guidelines that limit the extent to which the land can be built up. It is URA which ensures compliance by enforcing these guidelines.
It is the legal owner of the land who has the duty to ensure that he does not run foul of these guidelines. In this instance, it is the collective responsibility of all the subsidiary proprietors to ensure that the guidelines are met. GFA and GPR cannot be owned by any subsidiary proprietor and do not form part of common property. Being planning guidelines which do not reflect or determine title ownership, they are not reflected in the SSCT nor are they included in the definition of common property in Sect 3 of the LTSA.
The High Court judge agreed that GFA does not belong to anyone and is not a right of such a nature that it is capable of being owned by anyone. GFA is simply an administrative tool. It was solely up to the URA to increase or decrease the GFA for any particular parcel of land and to decide what it would do if construction on the land resulted in it being built up beyond the GFA.
Since GFA cannot be common property, Sect 41(8) of the LTSA calling for a unanimous resolution to support exclusive use of the common property would not have applied in relation to the erection of roofs over the appellants’ PES areas.
Of note is that, with the passing of the Building Maintenance and Strata Management Act 2004 (BMSMA), the situation has now changed. Sect 37 of the BMSMA provides:
(i) Except pursuant to an authority granted under subsection (2), no subsidiary proprietor of a lot that is comprised in a strata title plan shall effect any improvement in or upon his lot for his benefit which increases or is likely to increase the floor area of the land and building comprised in the strata title plan.
(ii) A management corporation may, at the request of the subsidiary proprietor of any lot comprised in its strata title plan and upon such terms as it considers appropriate, by 90% resolution, authorise the subsidiary proprietor to effect any improvement in or upon his lot referred to in subsection (1).
Thus, under the present legislation, the subsidiary proprietors who wish to cover their PES areas would require the authorisation of the MCST supported by a resolution of 90% of the subsidiary proprietors in order to do so.
4. The air-conditioning compressors installed in September 2000
In September 2000, the appellants installed the new compressors on the external wall of the building above the landscape/air well area. At that time, the appellants were bound by the by-laws. The MCST was then in existence but had not had its first annual general meeting yet and the appellants carried out the work without waiting to seek its approval. The District judge decided that these compressors above the air well were installed onto external walls that formed part of the common property. She held that the appellants were clearly in breach of by-law 11.
The developer had written to the appellants to inform them that the compressors were installed without prior approval from the MCST. The appellants were also informed that the MCST, when it is formed, may require the appellants to undo the installation works should they be found to be obstructive and jarring.
The High Court judge concurred with the District judge that the new compressors were partially installed in walls that formed part of common property of the condominium and that by so installing them, the appellants were in breach of the by-laws.
5. Should the mandatory injunction be continued in respect of the new compressors alone?
The law in Singapore as established by the cases of Chen Ee Yueh and Tay Tuan Kiat v Pritnam Singh Brar (1986) is that even where there is an encroachment by one land owner on the property of another or a subsidiary proprietor has erected structures without the permission of the management corporation, a mandatory injunction will not necessarily be issued to force the removal of the structures or end the encroachment.
There was also evidence that a number of other compressors had been erected by various subsidiary proprietors either completely or partially on common property.
These, together with the earlier compressors installed by the appellants which the District judge found to have been installed entirely on common property, will remain in place even if the new compressors are removed. Balancing all the circumstances, the High Court judge did not think it would be a fair result if an order was given to remove the new compressors.
What to do in future?
Mr Chan Kok Hong, MD, comments...
* The judge held that the developers could have stopped the owners from installing the roof and walls during the period before the formation of the MCST. This restriction was provided in the sale and purchase contract and it would have been appropriate for them to do so.
For estates where the MCST has not been formed and managed by our Company, we should restrict and not allow any alterations of, or installations on, common property until after the MCST is formed. Strict enforcement is necessary to prevent such occurrence.
If an owner makes any unauthorised installation, then immediate action should be taken by giving notice and subsequently issuing a writ of summons for breach of contract under the sale and purchase agreement and seek a court order to have the installation removed.
* The judge held that the ‘surplus GFA’ is not common property. However, she did add that under the BMSMA, with effect from 1 April 2005, owners will require a 90% resolution from the MCST at an AGM to approve such installations which increase the floor area of the unit.
This would mean that all owners still require approval from the MCST. They cannot rely on this case as a ‘free-for-all’ and start building roof cover over their PES without prior approval from the MCST.
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