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Please note:  Material posted express views for discussion only. Please seek your own legal advice if you wish to explore further.

請注意 : 登載之資料只供研討會之用若要進一步探討請咨詢律師

External gas pipe easement right

 Matters to be explored :

(i)             an owner's rights and obligations under 'BHM DMC';

(ii)            whether the BHM IO can override the Court of Appeal on the interpretation of the 'BHM DMC'?;

(iii)          whether a prospective purchaser has a right to know when you sell your property in future?

 安裝室外煤氣喉管的權利 (地役權)

交流事項 :

 (i)             根據'賽西湖公契',小主有什麼權利及責任?

(ii)            就解釋'賽西湖公契'條款的權力而言,法團大還是法庭大?

(iii)          將來你售樓時準買家就此事宜是否有知情權?

Seminar material (in English only) :

A. 8.1.2013 Powerpoint Presentation (Printer friendly version / Color version)

B. Powerpoint referenced material

Slide #8 Braemar Hill Mansions DMC/賽西湖大廈公契
Slide #10

Tsang Chi Ming v Broadway-Nassau Investments Ltd and Anor DCCJ 1704/2007 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=62763&QS=%2B&TP=JU

Slide #13Silver Triumph Holdings Limited v Guardian Property Management Ltd HCMP 566/2012 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=81790&QS=%2B&TP=JU
Slide #19越秀物業管理有限公司 LAM MAN FAI 及另一人 LDBM 30/2011 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=79165&QS=%2B&TP=JU
Slide #22建興工業大廈業主立案法團 卓建有限公司 LDBM 328/2010 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=78578&QS=%2B&TP=JU
Slide #24The IO of Yee Fung Garden v Basic Tech Ltd and Anor CACV 40/2003  (paragraphs 29 - 34) http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=44958&QS=%2B&TP=JU
Slide #28Cogi Enterprises Ltd and others v The IO of Malahon Apartments cacv 108/2010 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=77110&QS=%2B&TP=JU
Slide #36Thorogood Estates Ltd v The IO of Robinson Heights LDBM 297/2010 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=80304&QS=%2B&TP=JU
Slide #41Lands Department CM 64 Revised Guidelines for Deeds of Mutual Covenant http://www.landsd.gov.hk/en/images/doc/64.pdf?
Slide #42李延康及另其他人 v. 韻濤居業主立案法團及另一人 CACV 21/2011 http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=78462&QS=%2B&TP=JU
Slide #45Bills Committee on Competition Bill Responses to Follow-up Questions arising from the Meeting on 12 May 2011 Annex B CB(1)2283/10-11 (02) http://www.legco.gov.hk/yr09-10/english/bc/bc12/papers/bc120531cb1-2283-2-e.pdf

C. Chronology of events and documents


Stanley's email to the IO on the 自行出通告 innuendo etc. in the minutes of the 25th MC meeting

Stanley's email
7.1.2013Stanley issued rebuttal and asked IO to distribute to all owners lest they might be misled by IO's letter of 5.1.2013.Stanley's rebuttal
5.1.2013IO issued letter to all owners claiming (falsely) that the Lands Tribunal has recognized that the provision of gas mains to individual units would satisfy owners' right to gas service.
31.12.2012(i) IO declined invitation to hold joint session;

(ii) Stanley invited IO to comment on the Chronology of events and/or post its documents in full.

Invitation to owners distributed after clarification with IO.
(ii) Stanley's email

(iii) Invitation to Owners
28.12.2012IO invited to jointly host discussion session on external gas pipe.Stanley's email

IO invited to hold joint session to let owners decide what should be done regarding whether an external gas pipe for heating the bathroom is their DMC right.

Stanley's email
18.12.2012Lands Tribunal ruled against hearing the merits of the claim as the fitting of the internal gas pipe has rendered the external gas pipe issue 'academic'. The normal costs order was issued.
14.12.2012Stanley wrote to Lands Tribunal submitting that if the IO was to pursue costs, then the Tribunal should determine the merits of the claim before deciding the costs issue.Stanley's letter
30.12.2011Stanley wrote to Lands Tribunal giving reasons against costs.Stanley's letter
28.11.2011Mediation partially successful and internal, not external, gas pipe was to be installed. No agreement as to costs.
30.9.2011Stanley wrote to Lands Tribunal indicating consent to take part in mediation. To 'lay cards on the table', Stanley attached draft skeleton arguments for trial pointing out that the 'no external gas pipe' policy was a reversal brought about by the new manager Hong Yip without approval of the then management committee.Draft skeleton argument
19.8.2011IO filed Notice of Opposition.
27.6.2011Stanley filed Claim No. LDBM 205/2011 with Lands Tribunal after receiving no reply from IO.Question of law to be decided
24.6.2011Stanley repeated request for joint presentation to Lands Tribunal. If IO did not act soon, he would have no choice but to file claim with Lands Tribunal the following week.Stanley's email
24.6.2011IO reiterated that the final decision had been made but did not reply to any of the points raised.

Stanley asked IO :

(i) whether its argument was that :

(a) the DMC utility rights do not cover external gas pipe, or

(b) despite an owner's entitlement to the utility rights, such rights are subject to DMC cl. 18 and/or s. 34I of BMO

(ii) if it was agreeable to joint presentation to Lands Tribunal for a determination

(iii) to let Stanley sight its legal advice as, if persuaded, Stanley might drop the external gas pipe issue altogether

IO was asked to reply by 27.6.2011 as Stanley was out of bathroom heating for 3 months already.

Stanley's email
23.6.2011IO replied referring to previous replies but without giving answers.
20.5.2011Stanley, in email 'Building management by 揸住雞毛! ' , proposed joint presentation of the DMC gas pipe utility right clause to Lands Tribunal for interpretation with each party bearing its own costs.Stanley's email

IO replied that MC meeting of 5.5.2011 rejected external pipe request for reason that :

(i) external wall was common part;

(ii) integrity of external appearance shall be preserved.


Stanley informed IO that :

(i) refitting an embedded gas pipe was not viable as the existing pipe was corroded by external wall seepage and unless seepage was eradicated the new pipe would become leaky again in future;

(ii) IO had neglected owners' DMC Section II rights.

Stanley's email
27.4.2011Stanley asked IO what was the policy or criteria for the manager to give consent under DMC Cl. 18 to 'alter external appearance'.Stanley's email
27.4.2011Phone discussion between MC Chairman and Stanley.

Stanley replied :

(i) the court in CACV 40/2003 in allowing the external gas pipe had already rejected IO's s. 34I 'convert common part' argument;

(ii) IO's denial of owners' use of gas was anti- competitive;

(iii) IO should answer whether it considered gas bathroom heating was within an owner's DMC right of 'proper use and enjoyment' of his unit or not.

Stanley's email
19.4.2011IO said it received legal advice that an external gas pipe would 'convert common area to own use' in breach of s. 34I of Building Management Ordinance and also affect external appearance.
11.4.2011Stanley urged IO to reconsider as the Court in CACV 40/2003 had held that installation of external gas pipe would came within the scope of an owner's right of 'proper use and enjoyment' of his unit.Stanley's letter

Rejection by IO citing the following clauses of the DMC :

(i) Cl. 17 - no signboard ... allowed;

(ii) Cl. 18 - no altering external appearance.


Stanley notified Incorporated Owners ('IO') that gas supply to bathroom was disconnected by Towngas due to corrosion and leakage of existing embedded gas pipe, and sought to invoke DMC Section II, Clause A(4) easement rights to install external gas pipe.

Stanley's letter