1 This is an appeal against part of the decision of the Strata Titles Board (“STB”) to dismiss the application by an applicant in Strata Title Board No 8 of 2019 (the “STB Application”). The STB Application was brought by the appellant, Mr Raman Dhir (“Mr Dhir”), who is the subsidiary proprietor of a townhouse unit (the “Unit”) in a development known as The Balmoral, against the respondent, the management corporation of The Balmoral (“MCST”).

2 There are two main issues on appeal. The first issue on appeal is whether the STB had erred in finding that the reinforced concrete flat roof above the Unit (“RC flat roof”) and the awning over the entrance of the property (the “Skylight”) failed to satisfy the definition of common property under s 2(1) of the Building Maintenance and Strata Management Act (Cap 30C, 2008 Rev Ed) (“BMSMA”). The second issue on appeal is whether the STB had erred by failing to apply the statutory presumption required under s 101(8) of the BMSMA in coming to its decision on Mr Dhir’s claim.

3 The Balmoral is a 31-year old development that comprises 81 residential units, including two blocks of 4-storey townhouses, which are stand-alone and adjoined to each other along certain parts of the side walls (the STB’s Grounds of Decision (“GD”) at [1]). Mr Dhir owns one of the stand-alone 4-storey townhouse units (ie, the Unit).

4 In Mr Dhir’s application to the STB in the proceedings below, he took the position that the water leakages within the Unit at various locations originated from common property. The various water leakages into his unit were from (i) the reinforced concrete flat roof above the Unit (ie, the RC flat roof); (ii) various fixed window panels in the property which ran from the 2nd to the 4th storeys of the property (“the Windows”); and (iii) the awning over the entrance of the property (ie, the Skylight) (GD at [6]). Termite damage resulted from the various leakages. Mr Dhir’s claimed that the RC flat roof, the Windows and the Skylight were common properties and hence, the MCST was responsible for their repairs and the damage caused by the water leakages originating from these areas (GD at [7]).

5 The MCST took the position that the RC flat roof, the Windows and the Skylight were not common properties (GD at [10]). The MCST also submitted that there was insufficient evidence to make out Mr Dhir’s case as there was no expert report on where the various water leakages originated from and the only report provided by M3 Multi Services Pte Ltd, a contractor, contained only its observation and recommendation for repairs (GD at [11]).

6 The STB found, inter alia, that the RC flat roof and the Skylight were not common properties, as they did not satisfy the definition of common property under s 2(1) of the BMSMA and were for the “exclusive use of [Mr Dhir] and serve[d] only his unit” (GD at [34]). The STB found that the Windows were common properties under s 2(9) of the BMSMA.

7 In coming to its decision that the RC flat roof was not common property, the STB considered the following:

(a) The whole of the 4th storey of the Unit was in fact an open flat roof deck with balconies and flower boxes, delineated in black lines in the strata title plan (GD at [16]). The 4th storey was the roof of the entire townhouse unit and was part of the total strata area of the Unit (GD at [17]).

(b) The only access to the 4th storey from the 3rd storey was via an internal private staircase, and the area around the staircase landing was enclosed and covered by the RC flat roof with a usable space on it. The usable area was not part of the total strata area of the unit and the RC flat roof was delineated in red in the strata title plan (GD at [18]). Although the RC flat roof was delineated in red, and not black lines, the other features such as balconies, flower boxes, private internal staircases and wash areas within the Unit were also similarly delineated in red lines (GD at [27]). According to Ms Low, the MCST’s witness who is a practising registered surveyor, black lines indicated strata boundaries and red lines denoted building and other details (GD at [19]). Further, Ms Low testified that the enclosed red area covered by the RC flat roof was within the 4th storey strata boundary (GD at [20]).

(c) The RC flat roof was not a roof, but a feature within the strata boundary of the 4th floor and covered the small enclosed area beneath it (GD at [26]). The roof of the Unit was in fact, the whole of the 4th storey as it formed the top and covered the whole of the Unit (GD at [25]).

(d) The RC flat roof served only Mr Dhir’s townhouse unit and no other unit (GD at [26]). The usable space on the RC flat roof was used by Mr Dhir to install his air conditioner condensers, electrical boxes and cables (GD at [21]). It was for his exclusive use and the usable area on the RC flat roof was used by Mr Dhir to install items for his exclusive use and was accessible only from the 3rd storey within the Unit (GD at [26]).

8 In finding that the Skylight was not common property and was comprised in the strata title plan of the Unit, the STB considered the following:

(a) Ms Low testified that the Skylight was drawn outside the strata boundary of the 3rd storey in the strata title plan (GD at [22]).

(b) Ms Low inspected the site and saw that the Skylight did not reach anywhere near the 3rd storey. Ms Low confirmed that the Skylight was physically within the strata boundary of the 1st storey and served also as a cover for the main entrance concrete structure of the 1st storey (GD at [22]).

(c) STB accepted Ms Low’s evidence that the Skylight sat within the strata boundary of the 1st storey of the Unit and was situated between the 1st and 2nd level (GD at [29]).

(d) The Skylight was neither a roof nor a window and was simply a fixed feature that extended from within the Unit and covered the main entrance of the 1st storey (GD at [29]).

(e) The Skylight served only the Unit and was for Mr Dhir’s exclusive use (GD at [30]).

(f) This feature was also situated in Mr Dhir’s lot in the strata title plan (GD at [30]).

9 The STB found that the fixed Windows were located on the exterior walls of the lot and fell within the definition of all other windows under s 2(9) of the BMSMA (GD at [31]). Therefore, the fixed Windows satisfied the common property definition.

10 The STB also found that there was no evidence adduced to show termite damage to Mr Dhir’s property except for a quotation for treatment (GD at [32]). There was also no expert report tracing where the various leakages originated from (GD at [33]). Therefore, the STB was unable to make a finding, based on the evidence adduced, that various leakages in the Unit originated from the RC flat roof, the Skylight and the fixed Windows.

11 As such, the STB dismissed Mr Dhir’s claim for damages and disbursements, and awarded costs to the MCST.

12 I start by dealing with the preliminary issue of the scope of the appeal, which parties dispute. Mr Dhir is appealing on two issues:

(a) First, STB committed errors on points of law by holding that the RC flat roof and the Skylight were not common properties (“Common Property Appeal”).

(b)  Second, STB failed to consider and apply the statutory presumption and reversal of burden of proof in Mr Dhir’s favour under s 101(8) of the BMSMA and reversing the burden of proof in its decision on the causation of the water leakages (the “Statutory Presumption Appeal”). This Statutory Presumption Appeal fits squarely within the definition of an ex facie error of law that is appealable pursuant to s 98(1) of the BMSMA.

As such, Mr Dhir submits that the court should correct STB’s errors of law, set aside STB’s decision and remit the matter to STB for rehearing and determination in accordance with the applicable correct legal principles (ie, direct the STB to apply the presumption under s 101(8) of the BMSMA). ¹

13 The MCST does not dispute that the Common Property Appeal could be brought but objects to Mr Dhir’s Statutory Presumption Appeal, arguing that Mr Dhir is not entitled to appeal against STB’s decision other than on a point of law pursuant to s 98(1) of the BMSMA. The appeal should be “confined to a finding ... on whether the RC flat roof and [Skylight] are common propert[ies]” as “there is no appeal against the STB’s findings that [Mr Dhir] had failed to prove the damages for the various water leakages from the various locations”. ² The MCST submits that Mr Dhir’s claim for damages was rejected on the basis that the evidence adduced by Mr Dhir did not show that the various leakages originated from the various areas, and such a finding was made independently of the finding of whether the RC flat roof or the Skylight were common properties. ³ STB’s findings of fact cannot be disturbed and appealed from, regardless of whether Mr Dhir opines that there are manifest errors of fact.

14 Section 98(1) of the BMSMA states the following:

15 The Court of Appeal held in Ng Eng Ghee & Ors v Mamata Kapildev Dave & Ors (Horizon Partners Pte Ltd, intervener) & another appeal [2009] 3 SLR(R) 109 (“Ng Eng Ghee”) at [90] that ex facie errors of law would in turn raise points of law subject to appeal under s 98(1) of the BMSMA, citing Halsbury’s Laws of England vol 1(1) (Buttersworths, 4th Ed Reissue, 1989); Dynamic Investments Pte Ltd v Lee Chee Kian Silas [2008] 1 SLR(R) 729 at [11(b)]; Liu Chee Ming v Loo-Lim Shirley [2008] 2 SLR(R) 765 at [16]). Such ex facie errors of law would include:

16 In Ng Eng Ghee (at [102]), the Court of Appeal noted that a STB must correctly apply the appropriate burden of proof in deciding whether a collective sale was in good faith and a misapprehension as to the burden of proof was an ex facie error of law against which an appeal may lie. Similarly, the crux of Mr Dhir’s Statutory Presumption Appeal pertains to the failure of the STB to apply the presumption required under s 101(8) of the BMSMA and reversing the burden of proof in its decision on the causation of the water leakages. The Statutory Presumption Appeal fits squarely within the definition of an ex facie error of law that is appealable pursuant to s 98(1) of the BMSMA.

17 Further, the MCST’s argument that Mr Dhir has not appealed against the STB’s findings that Mr Dhir has failed to prove damage from the water leakages that came from the common property is inaccurate. The prayers in the Originating Summons by Mr Dhir states the following: ⁴

18 Leaving aside the merits of the appeal, I accordingly hold that both the Common Property Appeal and the Statutory Presumption Appeal raise points of law within the meaning of s 98(1) of the BMSMA, which this court can decide on.

19 I first turn to my decision on the Common Property Appeal.

20 As Mr Dhir’s proceedings were instituted on 15 January 2019, which was before the amended definitions of common property in the BMSMA (version as of 1 February 2019) which came into force on 1 February 2019, the definitions of common property in the BMSMA (version as of 14 December 2018) would apply for the purposes of the present appeal: see s 64(2) of Building Maintenance and Strata Management (Amendment) Act 2017 (No. 35 of 2017).

21 Section 2(1) of the BMSMA (version as of 14 December 2018) states the following:

22 The most authoritative decision regarding the correct interpretation of “common property” under s 2(1) of the Act is the decision Sit Kwong Lam v Management Corporation Strata Title Plan No. 2645 [2018] 1 SLR 790 ("Sit Kwong Lam”), where the Court of Appeal held that the first and second limbs should be read conjunctively and fulfilled in order to be considered as common property (Sit Kwong Lam at [46]).

23 The first limb of the definition of common property requires the common property to be “not comprised in any lot or proposed lot in that strata title plan”. The fact that the disputed property is physically located within the boundaries of the unit does not ipso facto mean that the said property is comprised in the unit: Wu Chiu Lin v MCST Plan No 2874 [2018] 4 SLR 966 at [69].

24 The second limb of the definition of common property that common property must be “used or capable of being used or enjoyed by occupiers of 2 or more lots…” must be interpreted broadly (Sit Kwong Lam at [58]). The words “use” and “enjoy” are to be read in accordance with their ordinary dictionary meanings (Sit Kwong Lam at [58]) and based on their plain meanings, the word “enjoy” has a wider ambit than the word “use” (Sit Kwong Lam at [59]). Any area or installation that could affect the appearance of a building in a strata development, or that was part and parcel of the fabric of the building, could, by its mere presence, be “enjoyed” by some or even all subsidiary proprietors of the development (Sit Kwong Lam at [59]). There is also no need for the area or installation to be physically accessible by the subsidiary proprietors in order to be “enjoyed” by the said proprietors (Sit Kwong Lam at [59]). The second limb of the definition of common property in s 2(1) of the BMSMA would be satisfied so long as the area or installation in question was “capable” of being used or enjoyed by occupiers of two or more lots. This meant that an area or installation not comprised in any lot need not at any particular point in time be used or enjoyed by occupiers of two or more lots to be considered common property (Sit Kwong Lam at [60]).

25 With these principles in mind, I now turn to my decision on whether the RC flat roof and the Skylight satisfy the definition of common property set out in s 2(1) of the BMSMA.

26 In my view, the STB erred in finding that the RC flat roof was not common property within the meaning of s 2(1) of the BMSMA.

27 First, the STB erred in law by considering whether the RC flat roof was exclusively used by Mr Dhir (“the Exclusive Use Test”) in coming to its decision (see GD at [26] and [28]). In Sit Kwong Lam at [57], the Court of Appeal held that the approach taken by the Judge in directing the inquiry to “whether or not the area or installation in question was for the exclusive use of the occupiers of a single lot, instead of whether the area or installation was used or capable of being used or enjoyed by occupiers of two or more lots, could not be sustained”.

28 The STB wrongly took into account the fact that Mr Dhir had used the usable area on the RC flat roof for “installing items for his exclusive use” such as his air conditioner condensers, electrical boxes and cables (GD at [21] and [26]). It matters not whether Mr Dhir had breached the relevant rules regarding the use of common property by failing to obtain permission from the MCST. The MCST could require Mr Dhir to rectify the breach. A breach cannot possibly convert common property into personal property. The STB wrongly applied the Exclusive Use Test in determining that the RC flat roof was not common property.

29 Instead, the more crucial consideration is whether the RC flat roof is “capable” of being used or enjoyed by occupiers of two or more lots. The wide ambit of the word “enjoy” would include “any areas or installations that could affect the appearance of a building in a strata development, or that was part and parcel of the fabric of the building, could, by its mere presence, be “enjoyed” by some or even all subsidiary proprietors of the development” (Sit Kwong Lam at [59]). For instance, the flat roof and the ledges in Sit Kwong Lam were considered to be part and parcel of the fabric of the building and contributed to its appearance (at [64] and [65]).

30 Similarly, the RC flat roof is part and parcel of the fabric of the Unit. Further, the photographs of the RC flat roof demonstrate that the RC flat roof affects the appearance of the Unit in the strata development (eg, the uniformity of appearance with the other units in The Balmoral). ⁵ As found by the STB, the two townhouse units (one of which is the Unit) are adjoined to each other along certain parts of the side walls (GD at [1(c)]). The existence of similar reinforced concrete flat roofs is common to the townhouse units in The Balmoral. ⁶ Further, the MCST’s argument that the RC flat roof is not physically visible is also unpersuasive. ⁷ Based on the aerial photographs of the RC flat roof and the elevation sketches of the strata lots in The Balmoral, the RC flat roof would be visible from the other units in The Balmoral. ⁸ As such, the RC flat roof would be “capable” of being used or enjoyed by occupiers of two or more lots.

31 Further, despite recognising that the usable area on the RC flat roof was not part of the total strata area of the Unit (amounting to 715m2) that Mr Dhir paid for according to the Strata Title Plans ST 7501 (“ST 7501”), the STB still found that the RC flat roof was not common property and was for Mr Dhir’s exclusive use.

32 The CS Directive on Cadastral Survey Practices (version 5.0, September 2018) issued by the Singapore Land Authority (the “CS Directive”) sets out the procedures and practice relating to the conduct of cadastral surveys. The CS Directive states that “Storey Plans are not required for flat roof and other storeys that contain only common property and without any strata lots” (at para 5.6(ix)). According to ST 7501, the Storey Plan does not include the RC flat roof for the Unit (Strata Lot No 614/U79). The RC flat roof is not part of Mr Dhir’s strata lot.

33 In Liew Soon Fook Michael and another v Yi Kai Development Pte Ltd [2017] SGHC 88 at [24], the High Court made the following remarks:

34 The fact that the usable area on the RC flat roof is not part of the strata area of the Unit (and is therefore also not used to compute the management and sinking charges payable by Mr Dhir to the MCST) is determinative of whether the RC flat roof is comprised in Mr Dhir’s strata lot. In the present case, the fact that Mr Dhir actually uses the usable area without the MCST’s permission is not significant. As explained earlier, a breach does not equate to converting common property into a personal one. What is more crucial is that Mr Dhir does not own or pay for this usable area on the RC flat roof based on the 715m2 of total strata area of the Unit. The RC flat roof clearly satisfies the first limb of the definition of common property as it is not comprised in Mr Dhir’s strata lot. It is plainly contradictory for the STB to find that the RC flat roof was comprised in Mr Dhir’s lot in the strata title plan despite accepting that the usable area on the RC flat roof was not part of the total strata area of the Unit (to contrast GD at [28] with [18]).

35 I start by explaining the significance of the colour of the lines in strata title plans. The CS Directive states at para 5.3(c) that “All text and line symbols shall be shown in black colour. Boundary shall be represented by firm lines and building and other details by broken lines”. According to r 81(1) of the Land Surveyors Rules 1976 (S 143/1976), boundary lines shall be represented by firm black lines. The MCST’s registered land surveyor, Ms Low, also testified that for older developments such as The Balmoral, the black firm lines would be drawn to indicate the strata boundaries for each strata lot, and red lines would be used to indicate building lines and other building details. ⁹ Ms Low’s evidence was accepted by the STB (GD at [20]).

36 This is crucial because in ST 5701, the RC flat roof is delineated in red without any black lines in the diagrams. In contrast, the strata boundaries for the Unit was delineated in black lines. The STB reasoned that although the RC flat roof was delineated in red lines, not black lines, other features such as balconies, flower boxes, private internal staircases were also similarly delineated in red lines (GD at [27]). As such, the STB found that the RC flat roof was be a feature and “comprised in [Mr Dhir’s] lot in the strata title plan”, thus failing to satisfy the first limb of the common property definition (GD at [28]).

37 However, the STB failed to consider the key distinction between the RC flat roof and the other features such as balconies, flower boxes, private internal staircases. While delineated in red, the RC flat roof is drawn outside the firm black lines of Mr Dhir’s private strata lot, while the balconies, flowers boxes and private internal staircases (delineated in red) are drawn inside the firm black lines of Mr Dhir’s private strata lot (see Annex below at [A.3]). ¹⁰

38 The STB made an ex facie error of law by giving reasons that disclosed its faulty legal reasoning by wrongly analogising the RC flat roof to features within the Unit such as the balconies, flower boxes and private internal staircases. The STB also relied on its finding that the RC flat roof is physically, together with the staircase, a main feature of the Unit (GD at [28]). However, this does not ipso facto mean that the RC flat roof is comprised in the Unit: Wu Chiu Lin v MCST Plan No 2874 [2018] 4 SLR 966 at [69].

39 Just like the RC flat roof, the other areas or installations that are obviously common properties in The Balmoral, such as the lobby, the games room, the clubhouse, the astro turf, the deck as well as the other reinforced concrete flat roofs, are also delineated in red and drawn outside the firm black lines delineating the private strata lots of other units within The Balmoral (see Annex below at [A.2]). ¹¹

40 As such, I find that the RC flat roof satisfies the first limb of the definition of common property under s 2(1) of the BMSMA and it is not comprised in Mr Dhir’s private strata lot.

41 The STB’s also erroneously found that the RC flat roof is “not a roof” but a “feature within the strata boundary of the 4th storey and covers the small enclosed area beneath it”.

42 The STB reasoned that the RC flat roof only covers the small enclosed area beneath and serves Mr Dhir’s unit and no other unit. As such, it does not satisfy the ordinary meaning of roof: “the structure that covers or forms the top of a building” according to the Oxford Advanced Learning Dictionary (GD at [25]). Instead, the STB found that the roof of the Unit is the whole of the 4th storey as it forms the top and covers the whole of the Unit (GD at [25]).

43 This classification of the RC flat roof as merely a feature because it only covers a small enclosed area beneath it is plainly illogical. The RC flat roof covers and protects the enclosed area around the staircase landing (for a staircase from the 3rd to 4th storey in the Unit). It protects that small usable space from the elements. Without the RC flat roof, rain would seep into the enclosed area around the staircase landing and potentially flood the 3rd storey. The removal of the RC flat roof, just like the flat roof in Sit Kwong Lam (at [65]), would “affect the structural integrity of the building”.

44 In coming to its decision, the STB also took irrelevant considerations into account by considering that the RC flat roof is accessible only from the 3rd storey within Mr Dhir’s unit (GD at [26]). As the Court of Appeal held in Sit Kwong Lam at [59], there is no need for the area or installation to be physically accessible by the subsidiary proprietors in order to be “enjoyed” by the said proprietors.

45 There are many instances whereby common property (such as the ledges in Sit Kwong Lam at [64]) are not physically accessible by any subsidiary proprietor but can still be enjoyed by the subsidiary proprietors. Similarly, it matters not that that the RC flat roof is accessible only from the 3rd storey within Mr Dhir’s unit.

46 For the above reasons, I overturn the STB’s finding that the RC flat roof is not common property. I accordingly hold that the RC flat roof is common property within the definition of s 2(1) of the BMSMA.

47 I am also of the view that the Skylight is common property and the STB made similar errors of law in its decision on finding that the Skylight is not common property.

48 The STB wrongly considered that the Skylight was for Mr Dhir’s exclusive use as it extends from within the Unit and covers the main entrance of the 1st storey (GD at [29]). As explained above at [27], the Exclusive Use Test is the wrong test to apply. It is immaterial that the Skylight serves only Mr Dhir’s unit and no other unit.

49 Instead, the crucial test to apply for the second limb of the common property definition is whether the RC flat roof is “capable” of being used or enjoyed by occupiers of two or more lots. The Skylight clearly affects the appearance of a building in the strata development and would be “enjoyed” by some or even all subsidiary proprietors of the development (Sit Kwong Lam at [59]). The Skylight is visible by fellow residents in The Balmoral (see Annex below at [A.1]). ¹² The appearance of the Skylight is also consistent with the other skylights of the other units in The Balmoral. ¹³ In the present case, the Skylight would be analogous to the ledges in Sit Kwong Lam which were found to have contributed to the building’s appearance (at [64] and [65]). I so find that the Skylight satisfies the second limb of the definition of common property under s 2(1) of the BMSMA.

50 Further, the STB wrongly considered that the Skylight was “physically within the strata boundary of the 1st storey” in finding that the Skylight is comprised in Mr Dhir’s lot in the strata title plan. This does not ipso facto mean that the Skylight is comprised in the Unit: Wu Chiu Lin v MCST Plan No 2874 [2018] 4 SLR 966 at [69]. The Skylight is delineated in red lines outside of the firm black lines delineating the strata lot boundary of the Unit (see Annex below at [A.2]). ¹⁴ In ST 5701, the skylights of other units are also all consistently delineated in red lines outside the firm black lines which delineate the strata lot boundary of the other units in The Balmoral. I accordingly find that the Skylight also satisfies the first limb of the definition of common property under s 2(1) of the BMSMA.

51 I am of the view that the STB erred in finding that the Skylight is not common property and accordingly hold that the Skylight is common property.

52 I now turn to the merits of the Statutory Presumption Appeal, where Mr Dhir submits that the STB had failed to apply the presumption and reversal of burden of proof under s 101(8) of the BMSMA, which states the following:

53 In the present instance, the STB considered that there was no expert’s report on tracing where the various leakages originated from, and was hence unable to make a finding on the evidence adduced that various leakages in the Unit originated from the three areas (ie, the RC flat roof, the Skylight and the fixed Windows) (GD at [33]).

54 However, it is evident from the STB’s reasoning in its GD that it had misdirected itself as to the burden of proof and hence made an ex facie error of law (see above at [15]). The STB made no mention of the application or consideration of the presumption under s 101(8) of the BMSMA.

55 In the hearing below, the STB made the following remarks during the cross-examination of Mr Dhir, noting that the burden is on Mr Dhir and his lawyers to prove Mr Dhir’s assertion or claim: ¹⁵

56 Even if the STB did actually consider the presumption under s 101(8) of the BMSMA in determining that the water leakages and termite damage could not be traced to the alleged defects in the three areas above (ie, the RC flat roof, the Skylight and the fixed Windows), the STB gave reasons in the GD which did not fulfil its express duty to give reasons, which would give rise to an ex facie error of law (see above at [15]). The STB did not provide reasons explaining why the presumption did or did not apply or whether the MCST provided sufficient or insufficient evidence to the contrary to rebut this presumption.

57 Accordingly, I allow Mr Dhir’s Statutory Presumption Appeal. I so exercise the appellate powers of the High Court pursuant to s 98(2) of the BMSMA to remit the matter to the STB for rehearing and reconsideration with the following directions: the STB is to consider the application of the presumption under s 101(8) of the BMSMA in coming to its decision on Mr Dhir’s claim based on the evidence placed before the STB.

58 For the aforesaid reasons, I allow both the Common Property Appeal and the Statutory Presumption Appeal.

59 As for costs, I order the MCST to pay costs of the appeal to Mr Dhir fixed at $5,000 plus reasonable disbursements. I also set aside the costs below of $18,000 including disbursements that the STB awarded to the MCST (GD at [38]). As the matter is to be reconsidered and reheard by the STB, and as there is likely to be considerable overlap for the getting up and work done for the first hearing with that for the re-hearing, I will reserve to the STB to decide both the costs (including disbursements) for the first hearing and the re-hearing together.