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Fairview Park Property Management Ltd v Fu Chung Fu

Judgment Cited in Precedent Map Related
Vincent
Judgment Date10 March 2008
CourtHigh Court (Hong Kong)
Judgement NumberHCA2864/2006
Subject MatterCivil Action
HCA001623A/2005 FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

HCA 1623/2005 &
HCA 2864/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 1623 OF 2005 AND 2864 OF 2006

____________

BETWEEN
FAIRVIEW PARK PROPERTY MANAGEMENT LIMITED Plaintiff
and
FU CHUNG FU Defendant

____________

(Consolidated pursuant to the Order of Mr Registrar C. Chan dated 13 July 2007)

Before: Mr Recorder A Chan, SC in Court

Date of Hearing: 3 & 5 March 2008

Date of Judgment: 10 March 2008

______________

J U D G M E N T

______________

1. The Plaintiff in these actions is the manager of a well-known property development in Yuen Long called Fairview Park. There are more than 5,000 houses at Fairview Park. In October 2004, the Defendant became the owner of one of those houses, House No.55 (“the House”).

2. In these actions, the Plaintiff claims against the Defendant for injunctive relief (the other reliefs are not pursued) in respect of a number of structures which have been added to the House after it was acquired by the Defendant. These structures will for convenience be referred to as “Unauthorized Structures” and they are:

(i) A glass structure at the rear garden. It looks like an oversized greenhouse from the photographs;
(ii) A “block fence” at the front garden. The photographs show that it is like a boundary wall which encases the front door to the House. In all probability, that “fence” was made of concrete or bricks;
(iii) A block fence at the rear garden. Like the one at the front garden, it appears to be a boundary wall which encases the back door to the House;
(iv) A common plot fence. It looks like a boundary wall which separates the House from the adjacent House No.57;
(v) A fixed type canopy at the front garden. It appears from the photographs that this canopy is made of a metal structure with glass panels.

3. In action No.2864/06 (“the Second Action”), the Plaintiff also complained about a removable tent which was erected at the rear garden of the House. The photographs show that it had a simple structure consisted of four poles (probably made of metal) and a fabric top, the kind which one may see in a garden providing a shade for the users. However, it is common ground that the tent has been removed.

4. It is common that for a property development which involves multiple ownership there would be in place a Deed of Mutual Covenant (“DMC”) which governs the rights and obligations of the owners. Fairview Park is no exception. There is such a DMC. In addition, there are Estate Rules made by the Plaintiff pursuant to the power vested in it under the DMC. In these two documents, there are a number of provisions governing the alterations or additions to the houses at Fairview Park.

5. The Plaintiff’s case is that the Unauthorized Structures are impermissible under various provisions of the DMC and the Estate Rules:

Under the DMC

Clause 5

“Each Owner shall at all times hereafter be bound and shall observe and perform the covenants provisions and restrictions set out in the Second Schedule hereto.”

Clause 4(a) of the Second Schedule

“Not to make any alteration or additions to any Unit or to any building on the sub-section of which he is the Owner whereby the roofed over area thereof is increased beyond the roofed over area thereof at the date of the Occupation Permit (including a Temporary Occupation Permit) or a letter from the Building Authority or such competent authority permitting the occupation of such Unit or building.”

Clause 4(b) of the Second Schedule

“Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company.”

Clause 8(d) of the Second Schedule

“Not to place, install, erect or affix any sunshades, canopies or awnings except with the prior written approval of the Manager.”

Clause 8(j) of the Second Schedule

“…… No hut shed caravan house on wheels or other chattels adapted used or intended for use as a sleeping apartment nor any show booths, hoardings or advertising stations or other temporary erections shall be erected made placed or used or allowed to remain on any Unit or any sub-section or any part thereof.”

Clause 8(l) of the Second Schedule

“Not to use the unpaved part of the unbuilt area for any purpose except as a garden.”

Clause 8(n) of the Second Schedule

“Not to use any part of the unbuilt area of any sub-section for the purpose of storage, or drying goods.”

The Estate Rules

Rule I(1) of Chapter A

“To maintain the low density building environment required by the Land Grant.

No house owner is permitted in any part of his property to :

(1) construct glass houses or other enclosed structures.”

Rule II(2) of Chapter B

“Usage of Unbuilt Area of House Units

…… No glass houses, combination houses, caravans, show booths, hoardings, advertising stations or other temporary erections, except those permitted in Chapter C, shall be erected, placed or allowed to remain on any unbuilt area or on parking spaces.”

Rule IV(1) of Chapter C

“Fence, Garden Gate and Rolling Shutter

Fences, gates and rolling shutters must comply with the following specifications :

……

1.2 Fences shall not be higher than 2M and shall have 60% open space evenly distributed between 1M and 2M level.”

6. Two witnesses were called by the Plaintiff. Their evidence is not really...

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