Case Details
- Citation: [2018] SGCA 14
- Case Title: Sit Kwong Lam v Management Corporation Strata Title Plan No 2645
- Court: Court of Appeal of the Republic of Singapore
- Decision Date: 05 March 2018
- Case Number: Civil Appeal No 28 of 2017
- Judges: Sundaresh Menon CJ; Judith Prakash JA; Steven Chong JA
- Parties: Sit Kwong Lam (Appellant) v Management Corporation Strata Title Plan No 2645 (Respondent)
- Procedural History: Appeal from the High Court decision which affirmed the Strata Titles Board (“STB”) decision; STB appeal was brought on points of law under s 98(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”)
- Legal Area: Land — Strata titles; common property; by-laws
- Statutes Referenced: Interpretation Act (including “A of the Interpretation Act” as referenced in the metadata); Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed); Chief Surveyor under the Boundaries and Survey Maps Act (as referenced in the metadata); Interpretation Act
- By-laws / Regulations Referenced: Additional By-Laws made under s 32(3) of the BMSMA; Prescribed By-Laws in the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005 (GN No S 192/2005)
- Key By-laws: Additional By-Laws: by-laws 8.1.1 and 8.2.5; Prescribed By-Laws: by-law 5 (including exceptions in by-law 5(3))
- Key Counsel: Yeo Khirn Hai Alvin SC, Candy Agnes Sutedja, Hannah Lee and Damien Xing (WongPartnership LLP) for the appellant; Subramanian s/o Ayasamy Pillai, Perera Randall Mingyang and Joel Wee Tze Sing (Colin Ng & Partners LLP) for the respondent
- Judgment Length: 19 pages; 11,431 words
- Cases Cited (as per metadata): [2017] SGHC 57; [2018] SGCA 14; [2018] SGHC 43
Summary
In Sit Kwong Lam v Management Corporation Strata Title Plan No 2645, the Court of Appeal addressed a recurring strata management problem: when a subsidiary proprietor carries out works that physically affect areas outside the boundaries of the lot, who determines whether those areas are “common property”, and what approvals are required under the strata scheme. The dispute arose after the appellant installed timber decking and an air-conditioning ventilation unit in areas adjacent to and outside his penthouse unit in a condominium development at 13 Ardmore Park.
The Court of Appeal upheld the Strata Titles Board (“STB”) and the High Court. It agreed that the relevant areas were part of the common property under the statutory definition in s 2(1) of the BMSMA. Because the works were carried out on common property without the management corporation’s prior approval, the appellant breached the applicable by-laws. The appeal was therefore dismissed.
What Were the Facts of This Case?
The appellant, Sit Kwong Lam, was a subsidiary proprietor of a penthouse unit occupying the 29th and 30th floors of one tower in the condominium development (“the Development”). The case concerned three categories of works (“the Works”) carried out in and around the external parts of the building associated with the appellant’s unit. Although the appellant maintained that the Works were confined to areas not forming part of the common property, it was common ground that the areas in question were not marked as part of the unit on the strata title plan; instead, they were demarcated as common property.
In or around November 2011, the appellant’s representative, Glory Sky Technology Ltd (“Glory”), submitted an application for renovation works to the management corporation for approval. The application was approved, but it did not disclose that some of the proposed works would be carried out in areas allegedly outside the unit. This approval later became relevant because the appellant argued that the management corporation had already sanctioned the renovation works, at least in substance, even though the specific areas and the nature of the works were not properly brought within the scope of the approval.
In August 2013, during routine inspections, the management corporation discovered “Work 1”: the installation of timber decking on two ledges bordering segments of the external facades on the 29th floor. Each ledge was enclosed by a parapet about 0.75m high and resembled balconies, but the parties agreed they were not in fact balconies. Originally, fixed glass panels separated the ledges from the unit such that the ledges were not accessible by occupants of the unit. The appellant replaced those fixed panels with sliding panels, thereby enabling access.
After correspondence, the management corporation advised the appellant to submit a formal application to install timber decking on the ledges. The appellant did so on 3 September 2013. However, the management corporation concluded that Work 1 involved exclusive use of common property and therefore could not be authorised by the management corporation alone. It suggested that the appellant sponsor a resolution at the next AGM to acquire exclusive use pursuant to s 33(1)(c) of the BMSMA. Such a resolution would have required support of at least 90% of the aggregate share value of valid votes cast. The appellant did not pursue this route at that time.
Approximately eight months later, around 5 May 2014, the management corporation discovered “Work 2”: the appellant had covered the entirety of the flat roof on the 30th floor outside the unit with similar timber decking. The flat roof was accessible to all subsidiary proprietors through a common staircase. Shortly thereafter, around 12 May 2014, the management corporation discovered “Work 3”: an air-conditioning ventilation unit installed on an external wall enclosing the unit at the 30th floor, in the same vicinity as Work 2. To install Work 3, the appellant would have needed to hack through the wall to connect the ventilation unit to the interior of the unit.
Following these discoveries, the management corporation wrote to Glory requesting immediate removal of the Works, failing which it would remove or demolish unauthorised works. The parties exchanged correspondence but no resolution was reached. At the AGM held on 25 April 2015, the appellant tabled motions seeking exclusive use and enjoyment and/or special privileges in respect of the areas where the Works had been carried out. The appellant failed to secure the requisite number of votes for the motions. On 30 June 2015, the appellant filed an application to the STB seeking declarations that he had not breached any by-laws in executing the Works.
What Were the Key Legal Issues?
The central legal issue was the proper interpretation of “common property” under s 2(1) of the BMSMA. The appellant accepted that the areas were not comprised in his lot on the strata title plan, but argued that they were not “used or capable of being used or enjoyed by occupiers of 2 or more lots” in the relevant sense. In other words, the dispute turned on whether the statutory second limb of the definition required that the areas be intended for common use, or whether it was sufficient that they were capable of being used or enjoyed by multiple subsidiary proprietors.
A second issue concerned by-law compliance. Once the areas were characterised as common property, the question became whether the appellant’s works amounted to prohibited alteration or damage to common property without prior written approval of the management corporation. The STB found breaches of both the Additional By-Laws (made under s 32(3) of the BMSMA) and the Prescribed By-Laws in the Second Schedule to the Building Maintenance (Strata Management) Regulations 2005. The appellant also sought to rely on an exception in by-law 5(3) of the Prescribed By-Laws, contending that the Works were installed “to prevent harm to children”.
Finally, the appeal to the Court of Appeal required the court to consider the extent to which it should defer to the STB’s factual findings and how it should approach the interpretation of the statutory definition and by-laws. Although the appeal was framed as involving points of law, the characterisation of the areas as common property depended on applying the statutory test to the physical features and accessibility of the areas.
How Did the Court Analyse the Issues?
The Court of Appeal began by focusing on the statutory definition of “common property” in s 2(1) of the BMSMA. The definition required, in relation to land and building comprised or to be comprised in a strata title plan, that the relevant part of the land and building (i) not be comprised in any lot or proposed lot in that strata title plan, and (ii) be used or capable of being used or enjoyed by occupiers of two or more lots or proposed lots. Only the second limb was in dispute because the first limb was not contested.
The STB had construed the two limbs as conjunctive conditions. The Court of Appeal accepted that approach and treated the case as hinging on whether the Areas were “used or capable of being used or enjoyed” by occupiers of two or more lots. The appellant’s argument, in substance, attempted to introduce an additional requirement that the areas must be “meant for common usage”. The Court of Appeal rejected that approach as inconsistent with the statutory language. The test was not whether the areas were intended for common use, but whether they were used or capable of being used or enjoyed by occupiers of multiple lots.
Applying this to Work 1, the Court of Appeal agreed with the STB’s reasoning that the ledges were part of the fabric of the building and contributed to its character and appearance. The ledges also provided shelter or sunshade to units below. Even though the ledges were not balconies and were originally separated by fixed glass panels, the court considered that the ledges were capable of being used or enjoyed by occupiers of two or more lots. The appellant’s replacement of fixed panels with sliding panels reinforced the practical reality that the ledges could be accessed and enjoyed, and the management corporation’s position that the ledges were common property was therefore supported by the statutory test.
For Work 2 and Work 3, the Court of Appeal emphasised accessibility and the nature of the affected structures. The flat roof on the 30th floor was accessible to all subsidiary proprietors via a common staircase. The external wall area where the ventilation unit was installed was similarly accessible to all subsidiary proprietors. The appellant argued that mere capability of use by multiple occupiers did not make the areas common property if they were not meant for common usage. The Court of Appeal again rejected this “intention” gloss. The statutory test was satisfied because the areas were capable of being used or enjoyed by occupiers of two or more lots.
Having concluded that the Works were carried out on common property, the Court of Appeal turned to by-law breaches. The STB had found that the appellant breached Additional By-laws 8.1.1 and 8.2.5, which required submission of the prescribed application form with a detailed work schedule and restricted the subsidiary proprietor and contractor to the type of work specified in the approval letter. The Court of Appeal accepted that the appellant’s works were not properly within the scope of the approved renovation application, particularly given that the application did not disclose works in areas not within the unit and that the management corporation had taken the position that exclusive use of common property required a separate resolution.
The Court of Appeal also upheld the finding of breach of Prescribed By-law 5, which prohibits a subsidiary proprietor from marking, painting, driving nails or screws into, or otherwise damaging or defacing any structure that forms part of common property without prior written approval of the management corporation. Work 2 and Work 3 involved physical alterations to structures forming part of common property, and Work 1 involved modifications that enabled exclusive access and enjoyment. The appellant’s failure to obtain prior written approval therefore constituted a breach.
On the appellant’s reliance on the exception in by-law 5(3)(c) (“to prevent harm to children”), the Court of Appeal agreed with the STB that the exception did not apply on the facts. The court’s approach reflects a common strata-management principle: exceptions to restrictions on alterations to common property are construed narrowly, because they undermine the collective governance model that the BMSMA and the by-laws are designed to protect. The appellant did not establish that the Works were installed for the specific protective purpose contemplated by the by-law, and the management corporation was therefore entitled to require removal or regularisation through the proper statutory mechanisms.
What Was the Outcome?
The Court of Appeal dismissed the appeal. It affirmed the STB’s and the High Court’s conclusions that the Areas were common property under s 2(1) of the BMSMA and that the appellant had breached the relevant by-laws by carrying out the Works without the management corporation’s prior approval.
Practically, the decision meant that the appellant could not rely on a broad reading of “approval” obtained for renovation works, nor could he avoid by-law restrictions by characterising the areas as not intended for common use. The appellant’s failure to secure the requisite AGM resolution for exclusive use further meant that the Works remained unauthorised in law.
Why Does This Case Matter?
Sit Kwong Lam is significant for practitioners because it clarifies the statutory meaning of “common property” in the strata context. The Court of Appeal’s reasoning confirms that the second limb of the definition in s 2(1) of the BMSMA is concerned with whether the relevant part is used or capable of being used or enjoyed by occupiers of two or more lots, and not whether it is “meant” for common usage. This reduces the scope for subjective arguments about intention and shifts the focus to objective features such as accessibility, physical characteristics, and the building’s design and function.
The case also reinforces the governance logic of the BMSMA. Where works involve exclusive use or alteration of common property, subsidiary proprietors must follow the correct approval pathways. Management corporations cannot unilaterally authorise what is, in substance, exclusive use of common property without the statutory resolution mechanism. Accordingly, the decision is a cautionary authority for owners who proceed with works on the assumption that management approval for renovations will cover all related physical modifications.
From a compliance perspective, the decision highlights that by-law exceptions (such as the “prevent harm to children” carve-out) will not be applied on an unsubstantiated or overly expansive basis. Lawyers advising subsidiary proprietors should therefore ensure that any reliance on by-law exceptions is supported by clear evidence of the protective purpose and that the works fall squarely within the exception’s terms. Conversely, management corporations can rely on this authority to insist on prior written approval and to resist attempts to reclassify common property through arguments about intended use.
Legislation Referenced
- Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) — s 2(1) (definition of “common property”); s 32(3); s 33(1)(c); s 98(1)
- Building Maintenance (Strata Management) Regulations 2005 (GN No S 192/2005) — Second Schedule (Prescribed By-Laws), in particular by-law 5
- Interpretation Act (as referenced in the metadata)
- Boundaries and Survey Maps Act — Chief Surveyor (as referenced in the metadata)
Cases Cited
- [2017] SGHC 57
- [2018] SGCA 14
- [2018] SGHC 43
Source Documents
This article analyses [2018] SGCA 14 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.