Does the right to free and uninterrupted passage to water confer rights to construct pipes over common parts?
383HK Ltd v The Incorporated Owners of Tak Bo Building  HKCA 164
This case involves a building management dispute over the common parts of a building.
Tak Bo Building ("Building") is a multi-purpose building with both residential and commercial use floors. The building was built in the 1970s with no fresh water or drainage pipes to the individual shops on the ground floor shopping arcade. The Appellant, 383HK Limited ("383 HK"), was the registered owner of a shop on the ground floor shopping arcade of the Building. The Respondents were the incorporated owners of the Building ("IO").
During 2009, 383HK bought unit 17 located on the ground floor of the Building. 383HK sought consent from the IO for the installation works in respect of fresh water and drainage pipes for the shop unit on the basis that under the Building's Deed of Mutual Covenant ("DMC"), it had a right to access the main pipes of the Building for water supply and drainage (on the condition that no damage is caused to the Building). The IO withheld consent.
It was common ground that the installation works, which would include installing pipes on the surface of the ceiling canopy of the ground floor and the external walls of the Building (i.e. the common parts of the Building) constituted unauthorized building work.
Court of First Instance ("CFI")
383HK claimed against the IO in the CFI on grounds that the IO had breached the terms of the DMC by unreasonably withholding consent to the proposed works. The Deputy High Court Judge held that the drilling of the holes through the canopy ceiling would damage the Building, and that the Building Management Ordinance (Cap. 344) ("BMO") and the DMC do not provide for, or entitle an owner the right to encroach on the common parts of the Building.
Court of Appeal
383HK appealed against the CFI's decision and argued that under the proper construction of the DMC, it has a right to free and uninterrupted passage and running of water and sewage.
Clause 3(c) of the DMC provides that:-
"Each owner shall hold his part of the said building and the said premises subject to and with the benefit of the following rights privileges and obligations namely:-
(c) The free and uninterrupted passage and running of water sewage gas and electricity from and to his part of the said building through the sewers, drains, watercourses … which now are or may at any time hereinafter be in under or passing through the said premises and building or any part or parts thereof" [emphasis added].
The Court of Appeal upheld the CFI's decision that Clause 3(c) of the DMC did not create a right for individual owners of the ground floor units to install pipes over common parts of the Building. Clause 3(c) of the DMC set out the Appellant's right to free and uninterrupted passage and running of water and sewage from and to its unit either through (1) water and drainage pipes already constructed at the time of the DMC or, (2) any future pipes to be installed in the Building. There was no mention under the DMC or Clause 3(c), of the right for individual owners of the ground units to install future water and drainage facilities.
The Court of Appeal decided that it was unlikely that the contractual intention of the DMC was that owners of the Building's ground floor units had a right to make a connection to the main water supply and drainage pipes, seeing as the installation of the pipes would concern common parts of the building.
Under section 34I of the BMO, an owner is deemed to be in breach of an obligation imposed by the DMC if he/she uses or converts a common part of a building for his/her own exclusive use. In circumstances where the DMC provides a right of free and uninterrupted passage and running of water, an owner is not in breach if existing pipe lines are used in exercising his/her rights to access water. However, no separate right is conferred to construct new pipes. Any construction of new pipes over common areas of the Building by individual owners should be in breach the DMC and the BMO.
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