The Gazette 1991

g a z e t t e

april 1991

Title to Land in Hong Kong -

A brief Review with reference

to the relevance of Irish Law

In Hong Kong, with its teeming crowds end towering buildings on

en ever-changing skyline, almost all land is held on lease from the

Crown for various terms often with rights of renewal for further

terms of similar length. The Sino-British Agreement, in a special

annex, provides for continued recognition of these leases after the

handover of sovereignty by Britain to the Peoples Republic of China

in 1997.

This recognition has to a certain extent been incor-

porated into domestic law already

and there are specific

confirmatory provisions in the Basic Law which will constitute the

constitution of the Hong Kong Special Administrative Region of the

Peoples Republic of China after July 1, 1997.

Ownership of multistorey build-

ings in Hong Kong is usually by

means of a tenancy in common

whereby a particular flat owner will

acquire a number of undivided

shares in the property as a whole

and a right of exclusive possession

of his own particular unit, the right

being created by way of covenant

between the co-owners of the

. . . almost all land is held on

lease from the Crown for various

terms often with rights of

renewal . . .

building under a "Deed of Mutual

Covenant" (commonly referred to

as a " DMC " ). Of course, for every

" r i g h t" one obtains there are

corresponding rights for other units

owners. The enforcement of these

covenants depends on the law

relating to running of the benefit

and burden of covenants.

This system of ownership of

multistorey buildings is not without

its problems as the rights of

individual flatowners are often

framed in terms of easements

(which of course they are not as

there are no dominant and servient

tenements, rather one piece of land

under co-ownership) and some-

times misunderstood as such.

Further, some covenants relating to

management of the building

commonly included in DMCs may

not always run with the land so as

to bind successors in title.

The

system has been criticised but has

become widely accepted as a

workable if at times unwieldy

me t hod of dealing w i t h the

phenomenon of multiownership of

single pieces of land.

Title to land is proved by

reference to deeds and title is

normally shown by producing the

Patrick J. Sheehan,

Solicitor (Ireland),

Solicitor (Hong Kong)

Crown Lease and at least 15 years

title commencing with a good inter-

mediate root of title.

However,

although vendors are only obliged

to produce 15 years title purchasers

are still obliged by common law

rules to seek 60 years title or, if less

exists, to trace title back to the

original Crown Grant.

However, in

practice many purchasers (and

their solicitors) do not bother to do

so the rationale being that given the

heavy demand for property they

will have no difficulty selling on

later and they themselves need

only give 15 years title. However,

pre-intermediate root of title

defects may still of course have

serious consequences and both

vendors and purchasers may put

themselves at risk if they choose to

ignore them.

Investigating title in Hong Kong

can often be a nightmarish ex-

perience as there are invariably

defects on title which owe their

origins to the transient nature of

the general population. Assign-

ments are often executed by

attorney acting on behalf of over-

seas vendors and purchasers but

the relevant powers of attorney

may be insufficient for their

purpose and there may be no

evidence to show non-revocation of

the power. It often becomes

impossible to trace either the donor

of the power or his donee. There

have been a t t emp ts by the

legislature to deal with this problem

but it is still an area of frequent

litigation.

Another problem for convey-

ancers is caused by missing title

deeds. Fortunately copies certified

by the government are sometimes

"Investigating title in Hong

Kong can often be a nightmarish

experience

available from the Land Office but

for documents before a certain

date, only copies of memorial of

such documents are available.

Where title deeds are missing one

is forced to rely on statutory

declarations and it is here that the

Irish experiences with such matters

are particularly relevant.

Because

of the retention of a title by deeds

system in Ireland, the Irish cases on

this issue are apposite.

Patrick J. Sheehan

157