Land and Property Law — Lands Tribunal held flat owner liable for backflow of water even if the unauthorized alteration of sewage pipes might be carried out by his predecessor-in-title
In the 東樂大樓業主立案法團 v 黃志剛 [2023] HKLdT, the Lands Tribunal allowed the applicant incorporated owners’ application for mandatory injunction to compel the respondent flat owner to reinstate the sewage pipes and damages being the repair costs incurred to repair the damaged elevator. Albert Wan acted for the successful applicant.
東樂大樓業主立案法團 v 黃志剛
| Reference: | • [2023] HKLdT 34 |
| Court: | District Court |
| Before: | Deputy District Judge Michelle Soong, Presiding Officer of the Lands Tribunal, in Court |
| Appearance: | • Albert Wan, instructed by C.W. Chan & Co., acted for the successful applicant. |
| Dates of Decisions: | • 21 June 2023 |
Background
The applicant is the incorporated owners of a building, and the respondent is the owner of Flat 2D of the building.
The incident that gave rise to these proceedings was the backflow of water from the flush toilet of the respondent’s flat on 4 May 2017 which flowed from the respondent’s flat to an elevator of the building, causing it damage. The applicant arranged their lift contractor to repair the elevator and incurred the repair costs of $165,680.
After the overflow, the applicant discovered that the storm drain of the building had been altered without obtaining permission from the authority or the applicant. As a result of the alteration, the storm drain did not extend from the roof to the 1st floor platform but ended outside the external wall of the respondent’s unit and was connected to the sewage pipe serving the unit.
The Applicant’s Case
The applicant contends that it was the respondent or his predecessor-in-title who carried out the alteration by connecting the storm drain to the sewage pipe. Such alteration was in violation of the DMC, led to the subject overflow incident and caused loss and damage to the applicant.
The applicant seeks mandatory injunction to compel the respondent to reinstate the relevant sewage pipes on the external wall of the building and also seeks damages for the repair costs incurred.
The Respondent’s Case
The respondent alleges that since his becoming the owner of Flat 2D, he has made no structural alterations to it or permitted anyone to carry out alteration.
On causation, the respondent contends that the backflow of water was caused by the owner/occupier of Flat 2A who had connected their illegal sewage pipe to illegal sewage pipe outside Flat 2D.
About the mandatory relief sought by the applicant, the respondent submits that it shall not be granted because the applicant acquiesced or waived the legal obligations of the respondent and its predecessor.
In the afternoon of the first-day trial, the respondent attempted to bring out evidence of a wholly unpleaded case about vertical pipes connecting to the illegal sewage pipe outside Flat 2D during examination of witness.
The Tribunal’s Judgment
After 3.5 days of trial with factual and expert evidence, the Lands Tribunal ruled in favour of the applicant on all issues.
On the issue whether the respondent should be responsible for the alteration, the Tribunal held:
(1) Even assuming that the alteration was made by the respondent’s predecessor-in-title, by allowing or tolerating the pipes to remain in that particular situation or condition, the respondent should be considered as having continued or adopted the breach and shall be held responsible.
(2) In any event, section 41(3) of the Conveyancing and Property Ordinance (Cap 219) provides that a covenant shall run with the land and, in addition to being enforceable between the parties, shall be enforceable against the occupiers of the land and the covenantor and his successors-in-title and persons deriving title under or through him. For breach of a negative covenant, the successor-in-title shall be liable even though the breach was committed by his predecessor-in-title.
On causation, the Tribunal agreed with the single joint expert that the backflow was caused by the alteration.
On the issue of acquiescence, the Tribunal found on the evidence that the applicant did not acquiesce the respondent’s breach of DMC because:
(1) The applicant was not aware of the alteration before the incident;
(2) Even if the applicant was aware of some other illegal pipes, that does not bar relief against a more severe case of breach which caused backflow of sewage water causing damage to the elevator.
In respect of the respondent’s attempt to run an unpleaded case about vertical pipes connecting to illegal sewage pipe outside Flat 2D, the Tribunal held that the evidence is not admissible for the following reasons:
(1)The respondent has been legally represented since January 2019 by the latest.
(2) If, as the respondent’s counsel put, the connection between the illegal sewage pipe outside Flat 2D and the vertical pipe is an important aspect of the respondent’s case, such material facts should have been pleaded or mentioned in his opposition.
(3) However, the same has not been raised in the respondent’s Re-Amended Notice of Opposition nor any of the witness statements filed by the respondents, nor the joint instructions to the single joint expert, nor even in the opening submissions of the respondent’s counsel.
(4) If the respondent is permitted to slip in this unpleaded case only at the stage of examination of witness, the applicant would be severely prejudiced because the applicant had been deprived of the opportunity to gather and adduce factual evidence regarding the connection between the illegal sewage pipe outside Flat 2D and the vertical pipe.
The Tribunal went on and held that even if the evidence about the vertical pipe is admissible, on substance and merits, they are not going to affect the outcome of this trial because the existence of a vertical pipe connecting to illegal pipe outside Flat 2D could not be said to have led to the overflow on 4 May 2017, and the expert has not seen any need to change his opinion on the cause of the incident with the vertical pipe factored in in his assessment.
The Lands Tribunal ordered that the respondent pay the applicant $165,680 being the repair costs of the elevator and grant a mandatory injunction to compel the respondent to reinstate the sewage pipes outside or relating to Flat 2D on the external wall of the building.
Key Takeaways
First, flat owners are advised not carry out unauthorized alteration to the drainage system. Flat owners who carry out such alteration works may be required to reinstate their alteration works at their own costs. If such alteration cause damages to common properties or properties of others, flat owners would be liable for damages.
Second, potential purchasers of property should conduct due diligence to find out whether there is any unauthorized alteration before they commit to the purchase. This is because even if the flat owner did not make any unauthorized alteration, they may still be liable if they retain those unauthorized alterations made by their predecessor-in-title.
Third, for legal practitioners handling cases in the Lands Tribunal, the judgment serves as a reminder of the importance of proper drafting of Notices. If both parties are legally represented, it is likely that the Tribunal would not allow parties to run an unpleaded case at trial not mentioned in their notices.
Representation
Albert Wan, instructed by C.W. Chan & Co., acted for the successful applicant.
See the Judgment here.
Albert Wan
Albert accepts instructions for both advocacy and advisory work and has been instructed on matters covering a wide range of areas of law. His practice covers general civil, land, building management, company, probate, contract, tort, commercial, construction, bankruptcy, personal injuries, judicial review and election petition.
His Building/Construction experience includes Sun Cheong Construction Co Ltd v IO of King Fu, Ho Fu, Ki Fu & Ka Fu Buildings [2019] HKCFI 2076 (with Mr Tim Kwok and Mr Andrew Lau), where he acted for the contractor to claim for the outstanding contract sum and defend against the IO’s counterclaim for alleged defects.
Visit Albert’s profile for more details.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers.