Chief Editor October 15 2023

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High Court dismisses MCST case against subsidiary proprietor on unauthorised mezzanine

In the case involving a condominium's management corporation (MCST) and a couple found to have unauthorized mezzanine attics in their unit, the court's ruling came as a surprise. The MCST took legal action to compel the removal of the structures and seek damages, but the High Court ultimately dismissed their application.

The story dates back to 1989 when Mr. William Lau Hui Lay and Ms. Midori Aw Jieh Yui purchased a unit in The Summit condominium on Upper East Coast Road. Their intention was to have mezzanine attics in the unit, as they were planning to expand their family and felt the unit's original size was inadequate.

The couple claimed that they received verbal confirmation from the developer's representative that they could install mezzanine attics in the unit. Subsequently, they purchased the unit and had the attics installed around April or May 1993, although this installation date was disputed by the MCST.

Mr. Lau, an architect and a member of the MCST's management council from 2008 to 2017, also served as the council's chairman from 2009 to 2017. In 2017, the couple contacted the MCST, reporting a wall stain caused by bird droppings near their daughter's room. This prompted an investigation by the managing agent, which led to the discovery of unauthorized structures on the roof, including a skylight window and an air-conditioner compressor. Subsequently, the unauthorized mezzanine attics in the unit were uncovered.

Between August 2017 and August 2020, the MCST informed the couple that they needed to remove the unauthorized mezzanine attics unless they could obtain regulatory approval and 90% approval at an MCST general meeting. The couple then applied to the Urban Redevelopment Authority (URA) in October 2021 for written permission to retain the attics.

The URA's response stated that the installation of the attics violated the Planning Act, and they were required to pay a penalty of S$2,400. Additionally, they would have to pay a development charge if they wanted written planning permission. The couple paid the penalty to the URA, along with the development charge of S$422,807 based on the added gross floor area of 63.58m². Finally, the URA granted written permission to the couple to keep the mezzanine attics in September 2022.

In response to the MCST's lawsuit, the couple argued that the MCST lacked a cause of action. They claimed to have maintained constant communication with the developer and its contractor regarding the installation of the attics, even providing a cross-section plan faxed by the contractor in 1990. The couple presented dated photos from December 1992 showing the attic installation, and they argued that this was "public knowledge." They even cited a 1993 Straits Times article, published in October 1993, which featured the unit and included a photograph of the staircases.

The MCST disputed the installation date, suggesting that it may have occurred after their formation in November 1993. However, the judge argued that the relevant point of reference should be whether the installation occurred after the Building Maintenance and Strata Management Act came into effect in April 2005. Prior to this Act, there was no legal requirement for approval from the management corporation for any floor area-increasing improvements on individual lots. The Act changed this, mandating that a subsidiary proprietors (SP) obtain authorization from the management corporation for such changes, typically requiring a 90% resolution.

Justice Lee Seiu Kin accepted the couple's version of events, agreeing that they had completed the attic installation around April or May 1993. Moreover, the 1993 Straits Times article supported their account. He found it unlikely that the attic construction had spanned over 11 years from 1993 to 2005, noting that no family would endure such prolonged construction while residing in the unit. Consequently, he ruled that the MCST had no cause of action and dismissed their application.

Justice Lee did, however, acknowledge that Mr. Lau, given his architectural background and role in the MCST, should have known the requirement for planning permission from the URA. Yet, the couple remained silent and did not seek permission until the MCST discovered the unauthorized mezzanine attics in 2021. Consequently, he ordered only nominal costs of S$1 to be paid to the couple by the MCST.