“When does a car park in a condominium deemed common property?”

SRI KELADI SDN BHD (in liquidation) v BUKIT OUG CONDOMINIUM JOINT MANAGEMENT BODY [2022] 6 AMR 296

• The Appellant, Sri Keladi Sdn Bhd (in liquidation) (“Sri Keladi”) was the developer of the Bukit OUG Condominium which compromised residential and commercial parcels (“the development”).

• Following the winding up Sri Keladi Sdn Bhd, a surplus of 149 unaccounted car parks (“the 149 car parks”) was revealed by the liquidators. The liquidators advertised for the car parks to be sold.

• The Respondent, Bukit OUG Condominium Joint Management Body (“Joint Management Body”) as the managing body filed a claim for the 149 car parks on the basis that the said car parks are part of the ‘common property’ and sought a declaration that it has ownership over it.

• Sri Keladi however disputed the Respondent’s claim as they argued that the strata titles have yet to be issued and argued that as land owner and developer, it is within their rights to deal with the 149 car parks.

HIGH COURT

• The High Court decided in favour of the Joint Management Body and held that the 149 car parks formed part of the development and were intended for the exclusive use and enjoyment of the parcel owners whose rights were governed by their respective sale and purchase agreements (“the SPAs”). Therefore, they were deemed common properties.

• The definitions of the words ‘common property’, ‘parcels’ and ‘accessory parcels” in the SPA meant that Sri Keladi cannot claim the car parks belonged to them.

• Sri Keladi proceeded to appeal against the High Court’s decision.

a)   What is the instrument or document governing the ownership of the car parks?

• The Court of Appeal held that the executed SPAs are the instrument/documents to determine the ownership of the car parks. The executed SPAs are legally binding contracts between the developer and purchasers/parcel owners. Therefore, courts cannot rewrite contracts when parties are aware and unprejudiced against its terms.

b)   Would the car parks come under the definition of ‘common property’ under the SPAs?

• In allowing the appeal, the Court of Appeal held that the determination of whether the car parks should be considered as ‘common property’ would depend on the terms of the SPA.

• Based on the SPAs, the Appellate court held that the car parks do not fall under the definition of ‘common property’. The court held that if the parties intended for the car parks to be considered as ‘common property’, they would have listed it under the relevant schedules of the SPAs.

• The Court held that in this case the 149 car parks are not common property.