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Condo Defects
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Developer is not responsible for a defect if he had done his best to hire a competent independent contractor to do the work.
 
This meant that the Management Corporation would have to take up the case against the contractor or other parties deemed to be responsible for the alleged defect.
 
(What if the Developer had claimed "High quality workmanship" in their brochures and TV advertisements ?)

Court Cases About Condo Management and Maintenance (http://www.singaporelaw.sg/cgi-bin/sglaw/htsearch?words=management+council )

 

1)    Regarding Eastern Lagoon -  falling wall claddings  - bricks and crick tiles ) MCST sues Architects on design and construction and blamed Main contractor for poor workmanship. 30 Apr 1999. http://www.singaporelaw.sg/rss/judg/8741.html

 

 

2)   Peoples Park Complex. Lift maintenance.  MC sues Owner for maintenance contributions and charges for 18 Maisonette units SP had converted from  four  2-strey Penthouses. 6 Mar 2002. http://www.singaporelaw.sg/rss/judg/8216.html

 

3)     Bayshore park. Spalling Ceiling concrete caused by insufficient concrete protection of the steel rebars. MC successfully sued the developer. 1 Nov 1995. Developer appeals. Appeal dismissed. http://www.singaporelaw.sg/rss/judg/10987.html

 

4)     Defects in common property. Seasons Park Condo  MC failed in sueing the developers. Of the 390 units, the owners of only 319 units bought them directly from the respondent. With regard to the remaining 71 units, the present owners of those units did not purchase them directly from the respondent. They were sub-purchasers and were not entitled to sue the respondent in contract. They therefore had no right to authorise the MC to sue, on their behalf. Also only 49 sub-proprietors attended and voted in favour of the appellant instituting an action against the respondent in respect of the defects. In his opinion, s 116 of the Land Titles (Strata) Act (Cap 158, 1999 Rev Ed) (“the LTS Act”) merely empowered the management corporation of a development to sue or be sued. It did not as such confer any cause of action upon the management corporation. Choo J held that it was essential, as far as the claim in contract was concerned, for the appellant to identify who the subsidiary proprietors on whose behalf the appellant was suing were, which was not done. All that the pleadings indicated was that the appellant represented the 390 subsidiary proprietors, which was not correct. He also rejected the appellant’s submission that the resolution of 31 March 2002 provided the authority. Accordingly, Choo J held that the appellant was not properly authorised to institute the action in contract.

Choo J held that it was essential, as far as the claim in contract was concerned, for the  MC to identify who the subsidiary proprietors on whose behalf the appellant was suing were, which was not done. All that the pleadings indicated was that the appellant represented the 390 subsidiary proprietors, which was not correct. He also rejected the appellant’s submission that the resolution of 31 March 2002 provided the authority. Accordingly, Choo J held that the appellant was not properly authorised to institute the action in contract. As rightly noted by Choo J, it did not necessarily follow that every subsidiary proprietor would sue in contract just because he had the right to do so. Neither had the appellant given the names of the subsidiary proprietors who had bought their units from the respondent and had voted at the AGM on 31 March 2002, authorising the management corporation to act.

 

In the light of the state of the pleadings and the submissions before Choo J, he was absolutely correct to have made the ruling he did. The appellant had not shown then that it was representing, pursuant to s 116, specific subsidiary proprietors who themselves had a cause of action in contract against the respondent. However, this ruling cannot preclude the individual subsidiary proprietors from instituting a new action in contract against the respondent. Neither do we think that the appellant is precluded from instituting a new action in contract against the respondent for and on behalf of specified individual subsidiary proprietors who have such a claim against the respondent. The respondent conceded as much.

 

  At this juncture, we should add that with the enactment of the Contracts (Rights of Third Parties) Act (Cap 53B, 2002 Rev Ed) (“the CTP Act”) which came into force on 1 January 2002, the strict privity rule has been modified. Under this Act, a third party, under specified circumstances, can sue on the contract even though he is not a party. However, this Act is not applicable to the present case as it only applies to contracts entered into after it had come into force.

 

The management corporation could always sue the developer, the contractor and the professional consultants in tort for the defects to the common property as declared by this court in Ocean Front ([16] supra). While we acknowledge that a claim in tort is perhaps not as efficient as a claim in contract, it seems to us that a more comprehensive solution would be to await legislative intervention. The Legislature is far better equipped than the courts to deal with policy matters in the field of consumer protection which may require limitations or safeguards. A more limited solution might well be to amend the standard sale and purchase agreement prescribed in the Housing Developers Rules (Cap 130, R 1, 1999 Rev Ed) so as to confer upon the sub-purchaser of a unit a right to sue in contract pursuant to s 2(1)(a) of the CTP Act (see [30] above).

 

As the developers were the original owner of the entire parcel or parcels of land on which was built the entire condominium comprising, inter alia, the lots in subdivided buildings in respect of which the strata title plans were registered, they were the first proprietor of each of the lot and also of the common property, all comprised in the condominium. Under s 33(1) of the Strata Act the subsidiary proprietors from time to time of the lots in a subdivided building comprised in a strata plan constitute the body corporate, the management corporation. Hence, the management corporation at the time of its creation was, in fact, the developers themselves who alone constituted the management corporation. At that stage, the management corporation was the developers’ alter ego. It is only at a later stage as and when the developers completed the sales of the various lots to purchasers that the constitution of the management corporation changed and subsidiary proprietors other than the developers then constituted the management corporation. Even at that stage, the subsidiary proprietors who formed the management corporation were parties with each of whom the developers had a contractual relationship. As the learned judge said, the management corporation was in fact the creation of the developers. Historically there existed a very close proximity in the relationship between the developers and the management corporation. It was therefore clearly foreseeable by the developers that if in the construction of the common property they failed to exercise reasonable care and skill, the burden of making good any defects arising from their failure would inevitably redound on their successor, the management corporation.

 

In terms of responsibilities the developers undertook with their purchasers to construct in a good and workmanlike manner, among other things, the common property in accordance with the agreed specifications and in accordance with the approved plans: see cll 8 and 9 of their sale and purchase agreements which we have set out earlier. These obligations are, of course, merely contractual. But such contractual obligations do not preclude the existence of their liability in tort under the ordinary law of negligence to their purchasers or other parties not privy to the agreements.

 

 After the condominium had been completed and before the management corporation was established, the developers had certain statutory obligations with regard to the common property. At that stage, the Building and Common Property (Maintenance and Management) Act (Cap 30) applied to them. The developers were solely responsible for the upkeep and maintenance of the common property. Under s 4 of that Act if the common property had not been kept or maintained in a good state of repair, the Commissioner had the power by notice to require the developers to take such steps or carry out such repairs and maintenance and if the developers failed to comply with the notice the Commissioner further had the power to authorize any person to carry out the requirements at the costs of the developers. Next, under s 9 of the Act the developers were required as from a certain stage onwards to set up a maintenance fund to pay for various expenses for the upkeep and maintenance of the common property.

 

 After the management corporation had been constituted, it took over from the developers the control, management and administration of the common property. The surplus in the maintenance fund established by the developer was transferred to the management corporation. Effectively, it was a successor to the developers. The management corporation in turn has statutory obligations. We have discussed earlier in some detail the statutory obligations of the management corporation and the sanction applicable in the event of any default on its part. It is clear from the provisions of the Strata Act that the management corporation has obligations in respect of the common property, the most relevant of which is the duty to maintain that property in a state of good repair, which means not only maintaining it in a state which it was originally in, but also the state that it was supposed to be in: Proprietors of Strata Plan No 6522 v Furney & Anor [1976] 1 NSWLR 412. Its obligations are, therefore, very much dependent on the developers having exercised reasonable care and applied good workmanship in the construction of the common property.

 

 Bearing all these considerations in mind, if we may respectfully adopt the methodology and the words used by Lord Roskill in Junior Books (supra at p546), we regard the following facts of crucial importance in determining that there is sufficient proximity between the developers and the management corporation which gives rise to the duty of care: (i) the management corporation was an entity conceived and created by the developers; (ii) the developers were the party who built and developed the condominium including the common property and undertook the obligations to construct it in a good and workmanlike manner and were alone responsible for such construction; (iii) after completion of the condominium the developers were the party solely responsible for the maintenance and upkeep of the common property; (iv) the management corporation as the successor of the developers took over the control, management and administration of the common property and has the obligations of upkeeping and maintaining the common property; (v) the performance of these obligations is very much dependent on the developers having exercised reasonable care in the construction of the common property; (vi) the developers obviously knew or ought to have known that if they were negligent in their construction of the common property the resulting defects would have to be made good by the management corporation. The relationship between the developers and management corporation is as close it could be short of actual privity of contract. In our judgment, there is a duty on the part of the developers in the construction of the common property a duty to take reasonable care to avoid the kind of damage sustained by the management corporation

 

 Management Corporation Strata Title No 473 v De Beers Jewellery Pte Ltd ****

Case Law Management Corporation Strata Title No 473 v De Beers Jewellery Pte Ltd [2002] 2 SLR 1; [2002] SGCA 13    Suit No:    CA 600105/2001 Decision Date:    06 Mar 2002 Court:    Court of Appeal Coram:    Chao Hick Tin JA, Tan Lee Meng J, Yong Pung How CJ Counsel:    Michael Hwang SC, Andrew Chan ...
http://www.singaporelaw.sg/rss/judg/8216.html 13/06/2009, 78716 bytes

 

RSP Architects Planners & Engineers v Ocean Front Pte Ltd and another appeal ***

... 33 r 2 of the Rules of the Supreme Court 1990. The relevant facts that led to the determination and subsequently the appeals are briefly these. The Management Corp Strata Title Plan No 1272 (the management corporation) is the management corporation of a condominium known as ‘Bayshore Park Condominium ...
http://www.singaporelaw.sg/rss/judg/10987.html 13/06/2009, 130114 bytes

 

Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd **

Case Law Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd [2005] 2 SLR 613; [2005] SGCA 16    Suit No:    CA 77/2004 Decision Date:    29 Mar 2005 Court:    Court of Appeal Coram:    Chao Hick Tin JA, V K Rajah J, Yong Pung How CJ Counsel:    Leo Cheng Suan and Teh Ee Von (Infinitus ...
http://www.singaporelaw.sg/rss/judg/47800.html 13/06/2009, 61105 bytes

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