Humpty Dumpty once said that “When I use a word, it means just what I choose to mean – neither more nor less”. Thankfully, courts apply a rather different approach in the construction of title documents, as the Court of Appeal (“CA”) has confirmed in Li Chun Bon Anor v China Mobile Hong Kong Company Limited [2026] HKCA 88, in line with the earlier authoritative guidance laid down by the Court of Final Appeal in Donora Co Ltd v Tsuen Kam Centre (IO) (荃錦中心業主立案法團) (2024) 27 HKCFAR 166.
The issue
The plaintiffs own the G/F of a three-storey building in a village in Sha Tin (the “Building”). The 2/F owner owns the second floor and “The Main Roof” of the Building. Between 2011 and 2012, the 2/F owner allowed the defendant to install antennas, wires and cables to the inner side of the parapet walls on the roof and a large cabinet and ancillary equipment to the vertical wall of the staircase hood leading up to the roof (the “Disputed Parts”).
The question is whether the Disputed Parts are common parts of the Building (the plaintiffs’ position) or part of the “Main Roof” (the defendant’s position).
What is the “Main Roof”?
The Judge accepted the defendant’s construction and dismissed the plaintiffs’ claim. The CA disagreed with the Judge’s construction and reversed the judgment.
The starting point is section 2 Building Management Ordinance (Cap 344) (“BMO”), which is a simple provision but has arguably generated more than its fair share of appellate litigation. It defines ‘common parts’ to mean:
‘(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and
(b) unless so specified or designated, those parts specified in Schedule 1;’
The list in Schedule 1 includes ‘walls enclosing passageways, corridors and staircases’ (Item 2) and ‘parapet walls’ (Item 4). If a part appears in Schedule 1, a stronger indication is required for them to be considered a non-common part, which depends on the circumstances of the case.
The CA confirmed that the non‑common parts of the building are only those parts that have been specified or designated for the exclusive use of an owner. The Judge erred by turning the provisions on their head, asking whether there is anything to exclude a particular part from the owner’s entitlement. The test is not based on non‑exclusion but rather based on the specification and designation of a part of the building for the exclusive use of an owner.
Since the Disputed Parts have not been specified or designated for the exclusive use of the 2/F owner, the statutory default position applies. The CA also took into account, among other factors, the fact that the recitals in the DMC qualified the 2/F owner’s exclusive right to the Main Roof, the parapet walls are part of the exterior walls of the Building and there is provision for all owners to pay costs for the maintenance of the Disputed Parts.
Key Takeaways
- Title documents are to be construed by reference to the text and factual context in the light of section 2 of the BMO. They must be read together in order to ascertain the common intention of the parties concerning the extent of the exclusive use of a particular part.
- Under section 2 of the BMO, non‑common parts of the building are only those parts that have been specified or designated for the exclusive use of an owner. The test is not based on non‑exclusion.
- Schedule 1 of the BMO is a pointer to what might commonly regarded as common parts of the building and if a part appears in the schedule, a stronger indication is required before the court can conclude that it is not a common part, which depends on the circumstances of the case.
- One cannot place too much reliance on cases decided in respect of another title document (e.g. a DMC) designed for another building because in construing a DMC by reference to its text and context, the particular circumstances of a document or documents may vary.
The full judgment is available at https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=176730&QS=%24%28li%2Bchun%2Bbon%29&TP=JU
Mr Jonathan Lee acted for the plaintiffs.
