What amounts to a “Common Property” in a development?
E & O TRADING SDN BHD v. AMERICK SINGH SIDHU & ORS AND ANOTHER APPEAL  7 CLJ 685
- Edisi Utama was the registered owner of a piece of land simply known for this case as Geran 58582 Lot 341 Kuala Lumpur [Lot 341].
- In 2003 Edisi Utama constructed a 3-storey retail and restaurant complex on a portion of Lot 341. This was called the Annexe.
- In 2004 Edisi Utama built Dua Regency on Lot 341 adjacent to the Annexe. Americk Sing and another were owners of a unit in Dua Regency.
- Americk claimed by the pre-sale brochure used by Edisi Utama in advertising and promoting Dua Regency, Edisi Utama held out that the Annexe will serve to complement the future residential facilities of Dua Regency.
- Sometime in 2013, Americk and the Management Corporation of Dua Regency came to know that that there was a reduction of facilities and amenities available at the Annexe because Edisi Utama terminated the tenancies of proprietors of outlets at the Annexe.
- By April 2014 most of the tenants at the Annexe had left.
- Americk and the Management Corporation [MC] had repeatedly asked Edisi Utama to solve the issue of the reduction of the provisions of amenities and facilities at the Annexe. But nothing was done.
- Americk and the MC claim that Edisi Utama knowing and intentionally caused a breach of the sale agreement of the Condominiums at Dua Regency.
- Americk and the MC claimed that they had a right to a legal easement [a right of use over property of another] over the Annexe by virtue of the Sale Agreement of the Dua Regency Condominiums.
- Alternatively, they tried to claim that the Annexe was a Common Property within Dua Regency.
- Edisi and the other Defendants argued that the Deed of Mutual Covenants in Dua Regency made it clear that the owners of condo’s at Dua Regency do not have rights over the Annexe to form an easement.
- The High Court allowed the claim.
- Edisi Utama and other Defendants filed an appeal to the Court of Appeal.
- One of the issues raised and argued [and important for our legal update] was what amounts to a “Common Property” and whether the Annexe was a Common Property within Dua Regency.
Decision: Appeal allowed.
- A Common property refers to the lot which is not comprised in any parcel in a development. Common property would only be the area that fall within the development area.
- The Court of Appeal held that the Annexe does not form part of the development area of Dua Regency. Therefore, Americk and especially the MC of Dua Regency cannot argue that the Annexe was a Common Property within Dua Regency.