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. 1 This recognition has to a certain extent been incor- porated into domestic law already 2 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. 3

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. 8 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. 9 Because of the retention of a title by deeds system in Ireland, the Irish cases on this issue are apposite.

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. 4 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

by 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. 5 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. 6 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. 7 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

Patrick J. Sheehan

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