Property Law in Hong Kong

Property Law in Hong Kong: An Introductory Guide

Stephen D. Mau
Copyright Date: 2010
Pages: 244
https://www.jstor.org/stable/j.ctt1xcrth
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  • Book Info
    Property Law in Hong Kong
    Book Description:

    This is one in a series of books seeking to introduce the reader to the frequently encountered legal rules in Hong Kong. This publication, in particular, focuses on the rules regulating property and conveyancing which apply in the territory. The book is intended for use by the non-lawyer. The organizational structure reflects this goal: the text is kept short. For readers desiring additional information, an extensive endnote section provides much more comprehensive and detailed explanations. The endnote sections also includes Chinese translations of the legal terms used in this publication. The Table of Contents is detailed and serves as a convenient outline. An Index contributes to making this book easy to use. As a survey, this text is appropriate for an audience which would include, for example: students required to study legal subjects; foreign-based non-law professionals needing an overview of the relevant subject; local professionals whose work involves a legal element; and, the general public.

    eISBN: 978-988-8053-46-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-x)
  3. Preface
    (pp. xi-xii)
  4. Table of Cases
    (pp. xiii-xx)
  5. Table of Legislation
    (pp. xxi-xxvii)
  6. 1 Introduction to Property – Generally
    (pp. 1-8)

    This book is about property and the general legal principles which apply in this area of law. Instead of being a specialized textbook for law students, this book aims to introduce property law to readers from different fields such as construction, accountancy, social work, and, foreign-based individuals from countries whose legal systems are based upon the civil law legal system. As such, this publication will not review all aspects of property. This book will cover property topics that are, in general, governed by the common law. Areas of property that are statute-based, such as conveyancing, will be reviewed but not...

  7. Part 1: Real Property
    • [Part 1: Introduction]
      (pp. 9-10)

      The common law definition of land includes the surface of the earth, together with all things of a physical nature above and below the land surface, such as minerals, buildings, and, trees.¹ In Hong Kong, there are several statutory definitions of real property. One set of definitions is found in the Interpretation and General Clauses Ordinance which was provided earlier.²

      Section 2 of the Conveyancing and Property Ordinance (Cap 219) provides the definitions concerning conveyancing and property. As these definitions are used throughout this book, section 2 is quoted in full as follows:

      In this Ordinance, unless the context otherwise...

    • 2 Estates
      (pp. 11-20)

      An estate is an interest in land. This interest in land entitles its owner to exercise rights over that land for a period of time.¹ There are two types of estates: freehold and leasehold. The differing types of freehold estates will be examined before proceeding to a discussion of leasehold estates.

      It should be noted that the freehold estates are practically irrelevant to Hong Kong, but their discussion assists in the analysis of leasehold estates. Leasehold estates are the predominant form of estates in Hong Kong.

      Traditionally, there are three types of freehold estates: (i) fee simple, (ii) fee tail...

    • 3 Licence and Leasehold Estate
      (pp. 21-36)

      Having reviewed freehold estates, we now review the other type of estate: leasehold. Leasehold estates are estates that do not rise to the level of freehold estates. Leasehold estates are held for a certain duration “and usually involve a continuing relationship between the grantor and the grantee, such as the grantee’s [e.g., lessee’s/tenant’s] obligation to pay rent to the grantor [e.g., lessor/landlord].”¹

      Generally, the relationship of landlord and tenant arises as a rule when one person (‘the landlord’) grants to another (‘the tenant’) a right to the exclusive possession of land for a term less than that which the landlord...

    • 4 Alienation and Determination of Lease
      (pp. 37-54)

      A tenant may assign or sublet the premises unless expressly prohibited.¹ Most written Hong Kong leases restrict assignments, sublets or licences. A tenant’s breach of the prohibition could result in forfeiture of the premises to the landlord for breach of a covenant. A landlord can assign its reversionary interest subject to the lease. Assignments and sublets are considered to be dispositions of an interest in land. Therefore, the requirements of the Conveyancing and Property Ordinance need to be followed.² The normal practice is for the lease to prohibit assignment and subletting without the landlord’s consent, such consent not to be...

    • 5 Fixtures
      (pp. 55-58)

      At common law, the ownership of a piece of land includes everything above the land and everything beneath the land. The maxim quicquid plantatur solo, solo cedit means whatever is attached to the soil becomes part of it. Thus, land includes any buildings that are erected on the land. This maxim also applies to the law relating to fixtures.

      The concept of fixtures affects both freehold estates and leasehold estates. Fixture is a term given to anything that becomes so attached to the land or a building as to form a part of the land, and is therefore treated as...

    • 6 Adverse Possession
      (pp. 59-60)

      Adverse possession refers to the occupation of land by a person against the rights and interests of the owner. A landowner has the right to keep unwanted or uninvited people off the land. A landowner has the right to go to court for an order for possession against any trespasser.¹

      However, if the person has adversely possessed the land for the period of time specified by law, the actual owner may not enforce its rights against the occupier.²

      P J Dalton explains the policy behind the principle thus:

      … statute has placed a limit on the time after which a...

  8. Part 2: Encumbrances
    • 7 Servitudes
      (pp. 63-76)

      Earlier, the introduction to Part 1 defined encumbrance. An encumbrance may also be defined as a: “claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest.”¹ Thus, an encumbrance may be considered as a legal obligation or duty imposed upon the land.

      Servitude is a term from Roman law meaning an encumbrance consisting of a right to the restricted use of land without the possession or ownership of that parcel of land.² Because of the physical proximity...

    • 8 Mortgages
      (pp. 77-88)

      The definition of a mortgage is: the transfer, or the creation, of an interest in land for securing the repayment of a debt or for the performance of an obligation. The mortgage is a security interest in real property. The manner in which such an interest can arise in Hong Kong is discussed in this section. The mortgagor is the borrower/debtor in this transaction, and the mortgagee is the lender/creditor (usually a bank). The amount of money borrowed is referred to as the principal. The mortgage is a personal covenant to re-pay the principal of the loan and the interest...

  9. Part 3: Conveyancing
    • 9 Leasehold Ownership in Hong Kong
      (pp. 91-94)

      In Hong Kong, the Government disposes of land by granting long leases. These were known as Crown leases prior to 1997 and as Government leases after 1997. With one exception,¹ all lands held by private persons in Hong Kong in essence are leasehold. Under a Crown or Government lease, the Hong Kong Government is the landlord. For the purposes of this chapter, leasehold estates are treated as realty.²

      Although a tender system is used occasionally,³ Government land is usually sold by auction, in which the highest bidder becomes the lessee.

      The agreement between the Government and the lessee sets out...

    • 10 Multi-storey Buildings in Hong Kong
      (pp. 95-100)

      Multi-storey buildings are the most common type of building in Hong Kong. Multi-storey buildings are constructed on land held from a Government lease, and can be used for residential, commercial, or industrial purposes, or a combination thereof.¹ In relation to multi-storey buildings, one authority has observed:

      There were three main problems with early high-rise developments. First, the regulation of the management of the building had to be provided for. Usually this was done in the form of a deed of mutual covenant (DMC) which was not executed by all purchasers; under the DMC there were difficulties in ensuring that the...

    • 11 Sale and Purchase Agreements
      (pp. 101-138)

      A sale and purchase agreement is a written agreement for the transfer of an interest in realty, i.e., sale of land. A valid sale and purchase agreement is a legally binding agreement between the parties. In Hong Kong, there are several types of sale and purchase agreements:

      a preliminary agreement

      a formal sale and purchase agreement

      an oral contract, provided there is a written document of some kind recording the contract terms to comply with section 3 of the Conveyancing and Property Ordinance.

      A formal sale and purchase agreement may be in a standard form, in order to comply with...

    • 12 Hong Kong Titles Registration – An Overview
      (pp. 139-144)

      The Land Titles Ordinance (Cap 585) establishes a new form of land registration in Hong Kong called the titles registration system, which replaces the deeds registration system that had existed for more than 160 years.² The Ordinance, enacted in 2004, subsequently underwent a series of reviews between 2006 and 2009 for legislative amendment.³ The reviews culminated in the Land Titles (Amendment) Bill (hereinafter referred to as “LTAB”), which aims to improve the drafting and provide substantive changes to the Ordinance.⁴ At the time of writing, the Ordinance was expected to commence in 2011.⁵

      Improvement of title security is the primary...

  10. Notes
    (pp. 145-202)
  11. References
    (pp. 203-206)
  12. Index
    (pp. 207-215)