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Singapore – Real Estate: MCST Plan No 367 V Lee Siew Yuen & Anor [2014] SGHC 161.

26 November, 2014

Structural defects in beams located between a subsidiary proprietor’s unit and the unit above were an integral part of the structure of a condominium development and therefore part of the common property; the appellant management corporation was accordingly responsible for rectifying the defects in the beams:

— MCST Plan No 367 v Lee Siew Yuen & Anor [2014] SGHC 161 (Singapore, High Court, 18 August 2014)

 
Facts

 
The appellant is the management corporation of a condominium development in Singapore (the “Development”) and the respondents are subsidiary proprietors of a unit in the Development (the “Unit”). The Unit is a single level apartment in the Development, with other units above it. The respondents’ contractor found serious cracks in the structural beams above the ceiling of the Unit and these were referred to the appellant for its necessary action.

 
A dispute then arose as to who was responsible for the rectification of the defects and payment for the same. The appellant referred the dispute to the Strata Titles Board (“STB”) seeking an order that the respondents make good the defects in the beams inside the Unit at their own cost. The STB held that the beams were not part of the common property of the Development as defined under section 2(1) of the Building Maintenance and Strata Management Act (“BMSMA”). However, it found that the appellant was duty bound to rectify the defects as they were “structural defects” within the meaning of section 30(5)(a) of the BMSMA.

 
The appellant appealed to the Singapore High Court against the STB’s decision.

 

Decision

 
The Court held that the appellant was responsible for rectifying the defects in the beams as:

 

  • The beams were part of the “common property” of the Development under the BMSMA; and
  • Alternatively, the defects in the beams were “structural defects” under the BMSMA.

 
The Court first considered the definition of “common property” under the BMSMA. The BMSMA provides that “common property” in relation to a strata title building means:

 

“such part of the land and building:

(i) not comprised in any lot or proposed lot in that strata title plan; and

(ii) used or capable of being used or enjoyed by occupiers of two or more lots or proposed lots”

 
After a review of the legislative history of the definition, the Court held that the beams in question constituted “common property” as defined in the BMSMA.

 

  • The Court stated that the term “comprised” in the first part of the definition of “common property” meant “included”. The beams in the present case were located in between the Unit and the unit above. In the view of the Court, therefore, the apartment did not “include” the beams that were located on top of the Unit and were part of the supporting infrastructure that held the entire building together.
  • The Court noted that the second part of the definition of “common property” was easily fulfilled on the facts of this case. Observing that the purpose behind the definition of “common property” was to exclude those objects that were solely constructed within the subsidiary proprietor’s unit for the enjoyment of the subsidiary proprietor only, the beams in this case served the purpose of supporting the building blocks of the Development and the units above the respondents’ Unit. They were therefore being used or capable of being used or enjoyed by occupiers of two or more lots.

 
The Court then considered whether the defects in the beams fell under section 30(5) of the BMSMA. This section makes it the duty of the management corporation to carry out repairs to “any part of a building comprised in a lot [that] contains any structural defect which affects or is likely to affect the support or shelter provided by that lot for another lot in that building or the common property” unless the defects were due to a breach of a duty imposed on the respondents under section 63(a) of the BMSMA.

 
The Court first held that it was clear that the beams were part of the structure of the Development, and accordingly section 30(5) of the BMSMA was engaged. It then had to consider whether the respondents came under a duty pursuant to section 63(a) of the BMSMA. This section provides that:

 

“[a] subsidiary proprietor … of a lot shall not do anything or permit anything to be done on or in relation to that lot so that any support or shelter provided by that lot for another lot or common property is interfered with”

 
The Court held that section 63(a) required that the subsidiary proprietor had engaged in a positive willful act, or an illegal omission, being a conscious, willful, or deliberate omission with the knowledge that such an omission would result in a structural defect. In this case, the beams were located in the false ceiling of the Unit and were not visible to the respondents. Furthermore, the defects in the beam were due to spalling concrete, which had resulted from water seepage from the apartment above the respondents’ Unit. There was therefore no evidence that the respondents had caused or permitted anything to be done that resulted in the structural defects to the beams.

 
Our Comments / Analysis

 
The Court noted in its decision that the current definition of “common property” has “given rise to confusion and ambiguity as to what common property consists of, especially in relation to beams and support”. It further noted:

 
“This concern was in fact recently expressed by the [Building and Construction Authority] in a 2013 report made pursuant to a public consultation on the proposed amendments to the BMSMA and the [Land Titles (Strata) Act]. The report found that the definition of common property is unclear as to whether foundations, beams, columns are included as part of the common property.”

 
This case has usefully clarified how the definition of “common property” is to be construed, and confirmed that structural beams are indeed a part of “common property”.

 

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For further information, please contact:

 

Dorothy Marie Ng, Partner, WongPartnership
dorothymarie.ng@wongpartnership.com

 
Carol Anne Tan, Partner, WongPartnership
carolanne.tan @wongpartnership.com

 

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