From Aircons to Ziptracks – Exclusive Use of Common Property

This article discusses the different approaches taken by the courts when dealing with the issue of exclusive use and enjoyment of common property, mapping out developments in this area of the law from Poh Kiong Kok v MCST Plan No 581 [1990] 1 SLR(R) 617, to the recent decision of Soo Hoo Khoon Peng v The MCST Plan No. 2906 [2023] SGHC 355.

Introduction

1. The question of whether a subsidiary proprietor (SP) of a strata-titled development may install awnings and air conditioner compressors outside his unit is interestingly still not quite settled.
2. Section 33(1) of the Building Maintenance and Strata Management Act 2004 (BMSMA) provides that a management corporation (MCST) may make a by-law pursuant to an appropriate resolution, conferring on an SP the exclusive use and enjoyment or special privileges in respect of the whole or any part of the common property.
3. The BMSMA does not provide a definition of what constitutes “exclusive use and enjoyment”. The plain meaning of “exclusion” in the Oxford Learner’s Dictionary is “the act of preventing somebody/something from entering a place or taking part in something”.
4. Logically, there should be a difference between “use and enjoyment” and “exclusive use and enjoyment”. To amount to “exclusive use and enjoyment” of common property, the use and enjoyment should operate to the exclusion of other SPs or the MCST from doing something that they would have been able to do. Where there is “exclusive use and enjoyment”, the requisite resolution (ordinary, special or 90%) under section 33 BMSMA to be obtained depends on the period of exclusivity.
5. If an SP uses common property which the MCST and no other SP would want to use, this would be mere “use and enjoyment”, and not “exclusive use and enjoyment”. However, consent of the MCST still has to be obtained.
6. An example of “exclusive use and enjoyment” would be where a childcare centre situated on the ground floor cordons off a part of the common playground to the exclusion of other SPs.

Decisions That Considered the Exclusive Use and Enjoyment Issue

7. The meaning of “exclusive use and enjoyment” was first considered by the High Court in Poh Kiong Kok v MCST Plan No 581 [1990] 1 SLR(R) 617. The MCST had a parking scheme where every SP was allocated a specific lot exclusive to him. Mr Poh was allocated a lot and excluded from parking in any other lot.
8. The Court held that in the absence of an exclusive use unanimous resolution under section 41(8) Land Titles Strata Act, the prevailing legislation, the MCST had no right to exclude Mr Poh from parking in any of the other lots.¹Poh Kiong Kok v MCST Plan No 581 [1990] 1 SLR(R) 617, at [20] – [21].
9. In Wu Chiu Lin v MCST Plan No. 2874 [2018] 4 SLR 966 (Sunglade), the issue was whether awnings sought to be installed by SPs in their private enclosed spaces (PES) and balconies would constitute exclusive use and enjoyment of common property. The High Court held that absent a 90% exclusive use resolution under section 33 BMSMA, Ms Wu was not allowed to build an awning in her balcony despite the fact that: –
   1. the MCST had by a special resolution at an AGM approved installation of the awnings following an approved design for all SPs;²Wu Chiu Lin v MCST Plan No. 2874 [2018] 4 SLR 966 (“Sunglade”), at [6].
   2. out of 12 SPs who made applications to install such awnings, the MCST had before the Strata Titles Board (STB) consented to let the SPs of nine ground floor units proceed with their awnings on the basis that they constituted a safety device;³Sunglade, at [12] – [13].
   3. the MCST made clear to the STB that they recognized that 83.06% of the general body voted in favour of the awnings, that their intention was simply to seek guidance and ensure the purported approval granted to the SPs to install the awnings was valid and regular, and not to unreasonably prohibit them from installing them;⁴Sunglade, at [6].
   4. there was no evidence that any other SP was being excluded from putting up awnings in their PES or balcony, and/or that anyone would want to put up an awning in Ms Wu’s balcony.
10. Sunglade was followed in MCST Plan No. 508 v Loh Sook Cheng (Loh Sook Cheng) (HC/RAS 13 of 2020, unreported). Mdm Loh sought several orders from the Court including, inter alia, that she be allowed to install two air conditioning compressors just outside the rear exterior wall of her unit (a location proposed by the MCST), an upgrade to her unit’s electrical supply and ancillary plumbing works for the installation of fire hose reels (to comply with SCDF requirements).

    Aircon compressors on the exterior common property wall of the subject property involved in the case of Loh Sook Cheng.

11. The District Court held that the works did not confer on Mdm Loh exclusive use and enjoyment of common property and furthermore many other SPs including the Chairperson and Secretary had installed air conditioning compressors, piping and cable ducts on common property without any 90% exclusive use resolution under section 33 BMSMA.⁵MCST Plan No. 508 v Loh Sook Cheng (“Loh Sook Cheng”) [2020] SGDC 159, at [22] – [23].
12. However, the High Court overturned the decision, noting that the air conditioning compressors, additional electric cables and water pipe were permanent structures installed on common property for the sole benefit of Mdm Loh, which would deprive other SPs from using and enjoying the same.

Decisions That Did Not Consider the Exclusive Use Issue

13. In Choo Kok Lin and anor v MCST Plan No. 2045 [2005] 4 SLR(R) 175 (Kentish Lodge), the SPs erected, inter alia, air-conditioning compressors on the external wall above their landscape/air well area without the MCST’s consent.⁶Choo Kok Lin and anor v MCST Plan No. 2045 [2005] 4 SLR(R) 175 (“Kentish Lodge”), [6] – [16]. The High Court dealt with this as a case of use and enjoyment of common property without the MCST’s consent. The issue was whether the compressors should be ordered to be removed. Balancing all the circumstances, the Court decided not to order their removal.⁷Kentish Lodge, at [59].
14. In Prem N Shamdasani v MCST Plan No 920 [2022] SGHC 280 (Hawaii Tower), the Appellant carried out renovation works including, inter alia, the replacement of the air conditioner compressor on the external wall, without MCST approval. The Court held that the MCST ought to have approved the renovation works, including the replacement of the air conditioner compressor, as it did not detract from the appearance of the building since there were six other units with similar air conditioner compressors on the external walls which the MCST could not do anything about.⁸Prem N Shamdasani v MCST Plan No 920 [2022] SGHC 280 (“Hawaii Tower”), at [152] – [153].
15. It is not surprising that in Kentish Lodge, Hawaii Tower and numerous cases over the years, no court or counsel considered the installation of air conditioning compressor units outside your own window, balcony or unit to amount to “exclusive use and enjoyment” of common property requiring an exclusive use resolution under section 33 BMSMA. These are all ordinary and reasonable instances of use and enjoyment of common property.

Different Tests Applied Depending on Whether Works Carried Out

16. In Kentish Lodge, the High Court was asked to grant a mandatory injunction requiring the SP to remove air-conditioning compressors erected on common property without the MCST’s approval.⁹Kentish Lodge, at [4]. Following The MCST Plan No. 1378 v Chen Ee Yueh Rachel [1993] 3 SLR(R) 630, the Court in Kentish Lodge declined to grant the order sought as it would not benefit the MCST.¹⁰The MCST Plan No. 1378 v Chen Ee Yueh Rachel [1993] 3 SLR(R) 630; Kentish Lodge, at [59]. The Court held that the MCST did not consider that the appearance of the condominium had been adversely affected by the compressors. This was especially so since other SPs had similarly installed their compressors on common property.¹¹Kentish Lodge, at [59].
17. However, in Sunglade and Loh Sook Cheng, where the SPs sought the MCST’s approval before carrying out the installations, the High Court took a different approach.
18. In Sunglade, there was evidence of awnings put up by SPs of six or seven other units similar to Ms Wu’s, all without approval and no action was taken for many years.¹²Sunglade, at [91]. This was in addition to the ground floor units which were allowed put up the awnings. Nevertheless, the High Court held that “two wrongs do not make a right” and that the obligation is on the SP to obtain a 90% exclusive resolution under section 33 BMSMA.¹³Sunglade, at [91].
19. In Loh Sook Cheng, the external wall of the building had many air conditioning compressor units put up by other SPs. There were also piping and cable ducts running outside of the units of several SPs. The District Court took the view that a party who has come to Court to seek approval of works involving the common property should be in no worse a position than a SP who had proceeded to undertake the same works without authorisation and for which the MCST is seeking a mandatory injunction.¹⁴Loh Sook Cheng, at [20].
20. The High Court in Loh Sook Cheng, in reversing the District Court’s decision, stated that the Court, in the exercise of its discretion, may consider the even-handedness of the MCST in dealing with the SPs only in cases involving the grant of a mandatory injunction. However, where a SP applies to court to compel the MCST to consent to works, the Court observed that the question is whether the works may be consented to by the MCST and that this answer does not change because other SPs might have acted in breach of section 33 BMSMA.
21. The unfortunate result from the different approaches taken is that it appears you may be better off proceeding to carry out the unauthorised works first instead of seeking proper approval before carrying out the works. This cannot be right.

Prescriptive or Descriptive Approach

22. Even if the works amount to “exclusive use and enjoyment” of common property, it should not follow that an exclusive use resolution must necessarily be passed before it can be allowed. Whilst the MCST “may” make a by-law pursuant to a 90% resolution conferring on a SP “exclusive use and enjoyment” of common property for a period exceeding three years, in which case the SP’s “exclusive use and enjoyment” of the common property during that period is protected by the by-law, it should not follow that without such by-law and 90% resolution, the SP cannot have any such “exclusive use and enjoyment”.
23. In Chan Sze Ying v MCST Plan No 2948 [2020] SGHC 88 (Chan Sze Ying), the High Court adopted a descriptive approach and held that Paragraph 3A(1) of the First Schedule of the BMSMA which states that a meeting of the MCST “may” be adjourned by a motion did not displace the residual power at common law to adjourn meetings by some other means.¹⁵Chan Sze Ying v MCST Plan No 2948 [2020] SGHC 88, at [45].
24. Another instance of the Court applying the descriptive interpretation of section 33 would be the case of The MCST Plan No 3436 v Tay Beng Huat and another [2019] SGDC 208 (The Infiniti). The District Court dismissed the MCST’s argument that the placement of a shoe cabinet along the common corridor amounted to “exclusive use” or “special privileges” which was unlawful unless there was a by-law under section 33 expressly allowing it. Instead, it held that section 33 is an empowering provision and should not be read as a restrictive provision that renders unlawful anything that might be considered “exclusive use” if the MCST has not expressly permitted it. The Court added that the latter interpretation “would render unnecessary and otiose the fine balance between the potentially competing rights of SPs in respect of the common property that the by-laws in the Second Schedule endeavour to achieve.”¹⁶The MCST Plan No 3436 v Tay Beng Huat and another [2019] SGDC 208, at [12].

Equating Exclusive Use and Enjoyment with Permanence

25. In Loh Sook Cheng, the Court held that the installation of the compressors amounted to “exclusive use and enjoyment” as they were permanent. The Court distinguished The Infiniti as the shoe cabinet was not permanent.
26. However, usage can be permanent and yet not amount to exclusive use. e.g. air-conditioning compressor outside one’s window, or electrical wires and plumbing pipes running along the common property into one’s unit as no other SP would want to use these parts of the common property. Usage can also be temporary yet amount to exclusive use and enjoyment e.g. exclusive use of three lanes of the swimming pool during the evening to conduct swimming lessons.
27. It is a question of fact in every case whether there is “exclusive use and enjoyment”. If so, then the “permanence” (i.e. the duration of use), should determine the type of resolution required under section 33 i.e. ordinary, special or 90% resolution.

Other Control Mechanisms in the BMSMA

28. A descriptive interpretation of section 33 does not imply that a SP will be entitled to do whatever they like on or to the common property, without regard to the rights of other SPs and the MCST.
29. There are provisions in the BMSMA and regulations thereunder that balance the rights and obligations of SPs and occupiers. For example, section 63 BMSMA lists the duties of SPs and other occupiers. They cannot use or enjoy the common property to interfere unreasonably with the use or enjoyment of the common property or any other lot by other SPs and occupiers.¹⁷BMSMA, s 63. The prescribed by-laws under the Second Schedule of the Building Maintenance (Strata Management) Regulations 2005 restrain various specific misuses of common property.

Mere Use and Enjoyment of Common Property

30. Where there is no “exclusive use and enjoyment” of common property, such that an exclusive use resolution under section 33 BMSMA is required, but mere “use and enjoyment” of common property, then the issue is whether the MCST should consent to the works.
31. Where the MCST consents to the works, it is hard to understand why the tribunal or court should intervene and stop the works. The BMSMA provides a legal framework for MCSTs to self-govern and manage their own estate. The SPs themselves are the best people to decide what is best for their estate.
32. Where the MCST does not consent to the works, the issue is whether taking into account all relevant factors, the MCST has been unreasonable, in which case the Board or the Court may make an order that the MCST consents to the works, as was done by the STB in Lee Lay Ting Jane v MSCT Plan No 3414 [2015] SGSTB 5 under section 111 BMSMA.

The Case of Mark Wheeler

33. Most of the cases that held that there was “exclusive use and enjoyment” of common property cited and followed Mark Wheeler v The MCST Plan No. 751 and Another [2003] SGSTB 5 (Mark Wheeler).
34. In Mark Wheeler, the SP installed an awning above the balcony of the entrance to his unit, without MCST approval.¹⁸Mark Wheeler v The MCST Plan No. 751 and Another [2003] SGSTB 5, at [13] – [21]; [28]. On the facts, the Board did not consider the MCST’s refusal to grant consent unreasonable, considering that: (a) it was the only unit with an awning; (b) the installation detracted from the theme of the development; (c) was in breach of the by-laws; and (d) resolutions to approve the installation were defeated at the AGM.
35. Although the Board also accepted the MCST’s submission that the installation of the awnings amounted to “exclusive use” which required a unanimous vote at the material time, it treated the case primarily as one of “use and enjoyment” of common property. If the Board had conclusively determined that it was a case of “exclusive use and enjoyment” of common property, the lack of consent from the MCST, let alone a unanimous resolution, would have been fatal to Mark Wheeler’s case.
36. Interestingly, the Board commented that treating a situation like this as one of “exclusive use” requiring a unanimous vote may make living in a condominium unworkable.

Approach Taken in Australia

37. Since Singapore’s strata legislation borrowed heavily from Australian provisions, it would be useful to consider some Australian decisions.
38. In Platt v Ciriello [1999] QCA 33 (Platt), the appellants were proprietors in a strata development who objected to the respondents and their tenants using common property for various purposes.¹⁹Platt v Ciriello [1999] QCA 33 (“Platt”), at p 1 – 2. The appellants in Platt argued before the Court below that the respondents’ uses of common property amounted to exclusive use and enjoyment of common property, in breach of the Building Units and Group Titles Act 1980 (BUGTA) since no “exclusive use” by-law had been passed under s 30(7) BUGTA (which is in pari materia with section 33(1) BMSMA).²⁰Platt, at p 1 – 2.
39. This argument was dismissed by Derrington J, who held that the question for determination was not whether the respondents’ uses of common property involved a use that is exclusive within the meaning of section 30(7), but whether they amounted to a use of common property in a manner or for a purpose that unreasonably interferes with the entitlement of others to use and enjoy common property under section 51(1)(c) BUGTA (which is in pari materia with section 63(c) BMSMA).
40. On appeal, the Queensland Court of Appeal by a 2:1 majority (Pincus J.A. dissenting) upheld Derrington J’s decision, expressly rejecting the prescriptive reading of section 30(7)(a).
41. Similarly, in Waller v The Owners of ‘Tranby on Swan’ – Strata Plan 2232 (1996) NSW Titles Cases 80-037, the District Court held that in each instance where exclusive use was being made of common property, the question is whether that particular use unreasonably interfered with the use and enjoyment of the common property by other SPs. This application of the descriptive interpretation means that even where there is “exclusive use and enjoyment” of common property without the requisite resolution, the Court must be satisfied that this was unreasonable before it will injunct such use.²¹Waller v The Owners of ‘Tranby on Swan’ – Strata Plan 2232 (1996) NSW Titles Cases 80-037; Teo Keang Sood, Strata Title In Singapore and Malaysia (LexisNexis, 5th Ed, 2015) at [10.43].

Conclusion

42. The decisions in Kentish Lodge and Sunglade, and the cases following either authority, would therefore appear to be inconsistent with each other. A decision of a higher court to resolve this inconsistency would be helpful.
43. In Soo Hoo Khoon Peng v The MCST Plan No. 2906 [2023] SGDC 162, the Court held that the installation of a screen at the balcony within the SP’s lot (which was essentially a ziptrack) constituted exclusive use and enjoyment of common property requiring a 90% resolution.²²Soo Hoo Khoon Peng v The MCST Plan No. 2906 [2023] SGDC 162, at [110].
44. On appeal, the High Court, in Soo Hoo Khoon Peng v The MCST Plan No. 2906 [2023] SGHC 355 opined that such installations would not always amount to exclusive use and enjoyment just because persons standing outside would be obstructed from viewing this part of the common property. The Court observed that the question of how common property may be used or enjoyed must hinge on the property’s location within the development and the role(s) it plays given that location.²³Soo Hoo Khoon Peng v The MCST Plan No. 2906 [2023] SGHC 355, at [12]. This must be a question of fact in every case.

The post From Aircons to Ziptracks – Exclusive Use of Common Property appeared first on The Singapore Law Gazette.