Estates and Interests in Land

in Hong Kong

Lecture 2
Tommy Ho

1

Estate & Interest in Land
• Question:
• A owns a piece of agricultural land in Tai
Po. He wants to sell the land to B. B says
that A only occupies the land under a
lease but is not an owner, and therefore
the land is not worth the price A is asking
for.
• Advise A.

2

Estate & Interest in Land
• All land in Hong Kong was held by the
Queen of England before 1 July 1997 and
since then is held by the Government of
the Hong Kong Special Administration
Region on behalf of the State of PRC.
• Individual “owners” of land hold their land
under government leases and are strictly
speaking “tenants” instead of “landlords”.

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freehold and leasehold. 4 . Estate & Interest in Land • A holder of land is entitled to a bundle of legal rights in respect of his land. • There are two main types of estates. These legal rights are measured by different durations of time and are collectively known as “estates”. namely.

Estate & Interest in Land • The meaning of freehold estate goes back to the English feudal system. 5 . • Land in Hong Kong is all on leasehold (except the land on which St John Cathedral stands). For practical purposes. a convenient way to distinguish a freehold estate from a leasehold estate is that freehold is of indefinite duration whereas leasehold is always for a fixed term. known as “a term of years absolute” in legal jargon.

6 . • Officially ceded under the Convention of Nanking dated 29 August 1842. Estate & Interest in Land • Hong Kong Island ceded to Great Britain under the Convention of Chuenpi (穿鼻草 約) signed on 20 January 1841 between the British Government and the Qing Government.

Estate & Interest in Land • By the Convention of Peking signed in 1860. • In 1898. land north of Boundary Street to the Shum Chun River and 235 islands) was leased to Britain for 99 years. 7 . under the Second Convention of Peking the area now known as the New Territories (ie. land south of the Boundary Street in Kowloon was ceded to Great Britain.

8 . • It was not until 1843 that it was finally decided that the land sold since 1841 should be on leasehold. when the British navy landed on the Hong Kong Island. Hong Kong was made a colony of England. Estate & Interest in Land • In 1841. • When the first land auction took place in May 1841. it was not clear then whether the land to be sold should be on freehold or leasehold.

the later grants further give the lessees an option to renew the lease for another 75 years. the norm has become 75 years. 75 or 21 years. to 99. • Since 1898. 9 . • As a result of complaints of the lessees. Estate & Interest in Land • Early terms of leasehold varied from 999.

Estate & Interest in Land • Land in the New Territories was leased for 99 years from the Qing Government. • The normal term for the leases in New Territories was 75 years with a right to review for 24 years less three days (ie. 99 years less 3 days). Land holding there could not be anything but leasehold. 10 .

Estate & Interest in Land • Before the British Government ruled the New Territories. • The Chinese office which was responsible for regulating land titles and transactions in Hong Kong was the Canton Magistracy (廣州府)。 11 . land in the New Territories had been held under Chinese customary tenure.

there were many title problems arsing from land in the New Territories. many irregular transactions had been going on for centuries before the British rule. Estate & Interest in Land • Historically. 12 . • As a result.

the property of the Government”. • Section 8 of the New Territories Ordinance 1910. 13 . provides that “All land in the New Territories is hereby declared to be and to have been from 23 July 1900. Estate & Interest in Land • The Government decided to assume the land in New Territories to cure such problems.

it shall be bought by a fair price”. 14 . Estate & Interest in Land • The assumption of the property of land in the New Territories was subject to the Convention of Peking that “it further understood that there will be no expropriation … and that if land is required for public …purposes.

Estate & Interest in Land • Cf. 15 . in accordance with law. disposal and inheritance of property and their right to compensation for lawful deprivation of their property. protect the right of individuals and legal persons to the acquisition. Article 105 of Basic Law • The Hong Kong Special Administrative Region shall. Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay. use.

• The Hong Kong Government only had 99 years in the New Territories. 16 . so the titles it could grant were necessarily a “lesser” title for many landowners who used to holding the land indefinitely. Estate & Interest in Land • The purposes of the Government then were not to confiscate land in the New Territories but to regulate the titles by assuming the property first and grant the titles back to the original landowners.

• The descriptions of the boundaries found in some old Chinese title documents did not tally with the land on site. Estate & Interest in Land • Among the many problems in the titles of land in New Territories were the variations of tenure and identities of landowners. • First of all. 17 . the demarcation of land was not conspicuous.

the basic principle was that land was held in perpetuity (similar to the concept of freehold). by clans or families and also held under a specific trust which prohibited alienation but was held in perpetuity for some specific purposes such as ancestor worshipping or other social purposes such as providing education fund to clan members. Estate & Interest in Land • Under the Qing law. • In relation to identities of owners. there was land owned by individual owners. 18 . etc.

2. . land held on trust perpetually for a specific purpose is not recognised in common law. Estate & Interest in Land • Problems of land dealings:- 1. customary mortgages (now known as mortgage by way of Form C under New Territories Regulations) were unknown to the British legal system. claims of adverse possession were 19 difficult to verify. and 3.

including the demarcation of different lots. • The Land Court was responsible for creating a system of land in New Territories. and deciding on the titles to be given to such lots.18 of 1900). 20 . determining their ownerships. Estate & Interest in Land • A Land Court was established by the New Territories Land Court Ordinance (No.

21 . Estate & Interest in Land • When necessary. the Land Court would have to adjudicate claims of titles/interests in land such as interests based upon adverse possession.

• Block Crown (now Government) Leases were then issued to a whole block of land rather than to individual lots. Lot 123 in Demarcation District 10 22 . • Individual ownerships of lots were annexed in the schedule of these Block Crown Leases. Estate & Interest in Land • The Land Court decided to divide land in New Territories into demarcation districts which were then subdivided into blocks. • Eg.

Estate & Interest in Land • After ownerships were determined and recorded in the Block Crown Leases. 23 . administration of the land in the New Territories was carried on by the District Officers who were also responsible for registration of the transactions in land within their respective districts.

• Up until today. Estate & Interest in Land • Thus. many land matters in the New Territories are still the responsibilities of the District Office. eg land relating to small houses (丁屋) and land held by t’so (祖) and t’ong (堂). dealings in land in the New Territories were not registered in the Land Office but the District Office. 24 .

which was recognised in the New Territories Ordinance itself. Estate & Interest in Land • Land in the New Territories not only was subject to the New Territories Ordinance but also Chinese customary law. 25 .

• It has been decided by the court that the recognition and enforcement of Chinese custom is mandatory but not discretionary. Estate & Interest in Land • Section 13 provides that “in any proceedings in the Court of First Instance or the District Court in relation to land in the New Territories. 26 . the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land”.

Estate & Interest in Land • There was express statutory protection and recognition of succession right on intestacy in the male line in Part II of the New Territories Ordinance. • The protection of male’s succession right on intestacy was only abolished by the New Territories Land (Exemption) Ordinance in 1994. 27 .

Estate & Interest in Land • Under the Qing Code. 28 . daughters had no right to succession to intestate estates of their fathers but only a right to dowry. • Now the Intestates’ Estate Ordinance applies to New Territories land so that both sons and daughters enjoy the same rights.

29 . • Such land was not subject to the Town Planning Ordinance or Buildings Ordinance. Estate & Interest in Land • Land not exempted from Part II of the New Territories Ordinance was also treated differently from other land in Hong Kong.

the Buildings Ordinance (Application to the New Territories) Ordinance was enacted so that nowadays Part III of the Buildings Ordinance applies to the New Territories. This is actually how small houses have been built after 1987. Estate & Interest in Land • In 1987. it is still possible to obtain a Certificate of Exemption from Part III. 30 . • But under the Buildings Ordinance (Application to the New Territories) Ordinance.

Estate & Interest in Land • Land which can be exempted from Part II of the New Territories Ordinance included land purchased after 17 April 1899. land held under a separate Crown lease (not within a Block Crown lease) and a new grant of land. 31 .

there were also Letters A and B which were important interests in New Territories land. They were issued by the Government to holders in New Territories land on resumption of their land between 1960 and 1983. 32 . Estate & Interest in Land • Before 1997. • Letters A and Letters B are not land but “land exchange entitlement”.

• Before 27 June 1997. both Letters could be used to offset the price of land purchased from the Government by auction or tender. 33 . Estate & Interest in Land • The Letters were granted in lieu of monetary compensation when the landholders agreed to surrender their land to the Government for public purposes.

resumption was made without the notice of resumption gazetted 34 . Estate & Interest in Land • Letters A were issued • Letters B were issued when a speedy where notice of resumption was resumption had required so that already gazetted.

Estate & Interest in Land • New Territories Land Exchange Entitlements (Redevelopment) Ordinance (No.70 of 1996) has converted all such land exchange entitlements into entitlements for cash payment only. • The Letters are no longer able to be used as payment of the premium of land. 35 .

Estate & Interest in Land • T’so (祖) and T’ong (堂) are Chinese family or clan institutions recognised under the New Territories Ordinance. • They are also the vehicles that a Chinese family or clan in New Territories used to hold land property. 36 .

particularly for ancestral worship. Estate & Interest in Land • In a nutshell. t’so was a trust where land was held for the benefit of the clan or the lineage and was usually created posthumously by the heirs of the deceased land owner for various purposes. 37 .

Estate & Interest in Land • T’ong was similar institution but usually created by the landowner inter-vivos. with the intention to ensure that the land was held by the clan in perpetuity for various purposes. 38 .

Estate & Interest in Land • There are other variations such as Wui (會) or Yuen (園) which may have been formed by families of different surnames or as a kind of co-operative society of clansmen to hold land for various purposes such as worship of certain gods like Tin Hau (天后). 39 .

Estate & Interest in Land • At common law. The general rule is that land can be held on trust for the duration of a life plus 21 years. land property cannot be held on trust in perpetuity for a special purpose. 40 .

Estate & Interest in Land • The Chinese customary trusts are alien to the common law trust but are preserved by common law as customary law applicable only to land in New Territories not exempted from Part II of the New Territories Ordinance. 41 .

Estate & Interest in Land • The Chinese customary trust has the following important features:- • Land is held by managers (司理人) on trust for the benefit of a clan or lineage. • Every male descendant of the common ancestor automatically become entitled at birth to an interest in land and this is only a lifetime interest. the interest extinguishes. Such interest cannot form part of the estate and be disposed upon a male descendant’s death. 42 . Once the male descendant dies.

disposal of the land by managers must have the consent of the Secretary to the Home Affairs. Estate & Interest in Land • Land is normally inalienable and indivisible and held in such a way in perpetuity. and in practice the Secretary will not give consent unless the alienation has the unanimous consent of all the members. • Under section 15 of the New Territories Ordinance. 43 .

44 . Whether those who signed on the documents comprise the entire membership. the disposition will be valid even without the consent of the Secretary. Estate & Interest in Land • In theory if all members unanimously consented to dispose of the land. • The difficulty is that in practice it may not be easy to prove the unanimous consent of all members in subsequently conveyance. Eg.

The managers must be appointed by the members and registered under the New Territories Ordinance. Estate & Interest in Land • Section 15 of the New Territories Ordinance provides a practical way for managers to dispose the land as if the managers were the sole owners: • 1. 45 .

Estate & Interest in Land • 2. The consent will be inferred if no objection is raised to the DO. The instrument of assignment is executed in front of the DO. The consent of all members of the t’so or t’ong. • 4. • 3. The consent of the District Officer (DO)/ Secretary of Home Affairs. • (in practice point 4 is not always required as long as proof of consent of the DO is 46 produced) .

it appears that the title of the land is good if the disposal has the unanimous consent of all members even if not executed under s. subject to the practical difficulty to prove that all existing members actually consents. • However.15 by the managers. the purchaser would not have a good title to the land. Estate & Interest in Land • Should the land concerned not be disposed of according to section 15 by the managers. • The title of land so disposed is supposed to be void. 47 .

48 . Estate & Interest in Land • The Small House • Small House policy was officially implemented by the Government in 1972. • One of the purposes was to allow male indigenous villagers in the New Territories to build houses for personal occupation.

Estate & Interest in Land • In order to facilitate the indigenous villagers to build their own houses. they are allowed to build houses on land granted by the government for free or on a concessionary premium and on agricultural land within the relevant village. • Buildings Ordinance was not applicable. 49 .

50 . • The houses so built are now known as Small Houses (丁屋): not exceeding 700 square feet in area and 27 feet in height. height and style of the building. Estate & Interest in Land • A special building licence or a new grant is given to them to regulate the size.

Estate & Interest in Land • In the very first place. he may be granted a free building licence to build a small house or his agricultural land is exchanged for another piece of land under a new grant for the purpose of building a small house. the grant of the Government was at a concessionary premium. all indigenous male villagers over the age of 18 were entitled to a piece of land within a village area. • More recently. 51 . • If an indigenous villager had his own agricultural land.

Estate & Interest in Land • In some cases. • After 3 years. 52 . the indigenous villager is then entitled to pay a premium to the Government and thereafter free to dispose of the small house. subject to the conditions of the grant or the building licence. the small house built cannot be alienated until 3 years expires after the date of the certificate of compliance.

Estate & Interest in Land • The conditions include that the owner has to create a deed of mutual covenants and he can only dispose the small house as a whole or by floors but cannot divided the house vertically for disposal purposes. 53 .

54 . subject to the same conditions of the grant. then once the certificate of compliance is issued. and then sells the small house. Estate & Interest in Land • If the land is private land owned by the indigenous villager himself. he is usually entitled to pay a premium to the Government.

or • He can assign the small house or any part thereof subject to the conditions of the grant to another indigenous villager who is over 18 years old and has not himself previously taken advantage of the small house policy to build a small house for himself. 55 . then he will normally have to wait for 5 years after the issue of the certificate of compliance. Estate & Interest in Land • If the indigenous villager does not want to pay a premium.

Estate & Interest in Land • The size. 56 . etc of small houses requires strict compliance. Any deviation from them may bring the small house constructed out of the protection of the three certificates for exemption. height.

and a legal charge. 57 .Creation of estates and interests in land • Section 2 of CPO defines a legal estate as a term of years absolute in land. the legal interest in any easement. right or privilege in or over land for an interest equivalent to a term of years absolute.

Creation of estates and interests in land • In the same section 2. or charge in or over land which is not a legal estate or freehold” • As such. any proprietary right in land which is not legal must be equitable. 58 . “equitable interest” is defined to mean “any estate. interest.

Table of Legal and Equitable rights and interests • Legal • Equitable • lease/tenancy/ • lease/tenancy/ interests equivalent interests equivalent • easement • easement • charge • charge • mortgage • land covenants • etc 59 .

60 .Creation of estates and interests in land • You can hold the legal/ equitable title to a legal estate/ equitable interest in land. For example. • But you can only have a legal title to a legal estate and an equitable title to an equitable interest. a person can hold a legal/ equitable title to an easement (which itself can be either legal estate and equitable interest).

61 . a deed is generally necessary to create.Creation of estates and interests in land • When a right or interest is capable of existing as legal estate. it must also comply with the formal requirements in its creation/disposition in order to become a legal estate. extinguish or dispose of a legal estate in land. • Section 4(1) CPO.

62 .Creation of estates and interests in land • A deed is a formal legal document which is signed. sealed and delivered. • Section 4(2) CPO provides the main exception to the requirement for a deed. disposal or surrender of a legal lease taking effect in possession for a term not exceeding three years at the best rent reasonably obtainable without taking a premium. Any grant.

• Section 3(2) : This section applies to contracts or other dispositions whenever made and does not affect the law relating to part performance or sales by the court. subject to section 6(2). 63 .Creation of estates and interests in land • Section 3(1) CPO requires contracts for the sale or other disposition of land be in writing and signed by the parties.

Creation of estates and interests in land • Section 6(2): Nothing in section 3 or 5 or in subsection (1) shall affect the creation by parol of leases taking effect in possession for a term not exceeding 3 years (whether or not the lessee is given power to extend the term) at the best rent which can be reasonably obtained without a premium. 64 .

65 .Creation of estates and interests in land • Section 5(1)(a) CPO provides that “no equitable interest in land can be created or disposed of except by writing signed by the person creating or disposing of the same. or by his agent thereunto lawfully authorized in writing or by will or by operation of law”.

66 .Creation of estates and interests in land • Section 5(1)(b) CPO requires a declaration of trust respecting land “shall be manifested and proved in writing signed by the person” capable of creating such trust and section 5(2) provides that section 5(1) does not affect the operation of resulting. implied or constructive trust.

Creation of estates and interests in land • Thus. 67 . subject to the few exceptions. • If the creation or disposition is not in writing. then the transaction is not enforceable in law. • Any other proprietary right in land not covered by section 2 of CPO (eg land covenants) must be created or disposed of in writing. any proprietary right capable of existing as legal estate but not created/disposed by deed can exist as equitable interest so long as the creation or disposition was in writing and properly signed.

eg land covenants. The proprietary rights which cannot exist as legal estates.Creation of estates and interests in land • There are three types of equitable interests in land: • 1. • 2. eg an equitable lease which is created in writing. • 3. . The proprietary rights which are capable of existing as legal estates but were not created by deeds. The proprietary rights that a person 68 holds in equity under a trust.

Creation of estates and interests in land

• Question:
• X claims that he has orally agreed to rent
his agricultural land to Y for Y to carry on
rice farming on the land in return for some
rice as rent. Was there a binding tenancy
agreement?

69

Creation of estates and interests in land

• The question is whether or not “some rice”
amounts to the best rent reasonably
obtainable.
• See Chan Yeuk Mui v. Ng Shu Chi [1999]
2 HKC 702.

70

Government Leases
• All land is now held on a government lease
(used to be called Crown lease).
• In the past there is a real physical document of
Crown lease (an indenture which consists of
two documents of identical contents), but the
government no longer actually grants a lease.
• Pursuant to section 14 CPO, a lease is deemed
to be issued once the conditions of sale have
been performed.

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• The successfully bidder will become the lessee of the lot in question subject to certain conditions of sale including general and special conditions. Government Leases • The most common way for the government to sell land is by public auction. 72 .

Government Leases
• The general conditions set out terms of the
auction, completion of sale, payment of
premium, government rent, repair
obligations, right of government to re-enter
for breach.
• The special conditions set out the specific
rights and obligations on possession, use
and development.

73

Government Leases
• For example, the lessee may be required
to build a bus stop or a fly-over to connect
the land with another building, etc.
• There are also building covenants which
impose a duty on the purchaser to build on
the lot by certain specific date and in
accordance with the conditions,
Ordinances, by-laws and regulations
relating to the building and sanitation.

74

Government Leases
• After the building is completed, the Director of
Lands will issue a certificate of compliance of the
conditions upon application of the purchaser.
• The certificate of compliance serves as the
documentary proof that all conditions of sale
have been performed.
• Under this certificate of compliance, a
government lease is deemed to be issued under
section 14 CPO.

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Government Leases • Question: • What would happen when no certificate of compliance is obtained? 76 .

• As such. 77 . the lessee holds the land in equity. • See Chen v Another and Lord Energy Ltd [1999] 1 HKLRD 205. he/she holds only an equitable interest in the land but without a legal estate. That is. the lease may fail to comply with the formal requirements for creating a legal estate. Government Leases • When no certificate of compliance is obtained.

Government Leases • In respect of the building itself. can commence. there is a design. disposition and height clause (DD & H clause). which provides that prior approval in writing of the Director of Lands of the building plan must be obtained before any building work. 78 . • Section 14 of the Buildings Ordinance provides in effect that any building work without the prior approval of the Director of Lands must be demolished and no retrospective approval is possible.

• See Jumbo Gold Investment Ltd v. Leung Yuen Cheong Warren [2000] 1 HKC 539. Government Leases • Under section 14. 79 . any illegal structures (usually means building works carried out without the approval of the Building Authority) present in a land will render the title to the land a bad title.

Government Leases • The Director of Lands can charge a premium for such approval under the Buildings Ordinance. 80 . even though the practice is that the government normally would not levy a premium for granting such approval. • When exercising this authority. the Director of Lands acts as the land agent of the government in its capacity of private landlord.

• See Polorace Investments Ltd v. Director of Lands [1997] 1 HKC 373. Government Leases • When the government acts in the capacity of a private landlord. • It is therefore not possible to tie the government to the existing policy of not charging a premium based on the public law concept of legitimate expectation. 81 . the decision of the government is not susceptible to judicial review.

the Government can also dispose land by exchange. • The standard conditions include a term of the grant with or without a right to renew. In any of these cases. duty to repair. 82 . Government Leases • In addition to sell the land. grant. compliance with ordinances and regulations. a rent. and a right of re- entry of the Government in case of serious breach. user of the land. the government can set out some conditions for the grantee(s) to observe and fulfill. re-grant or extension.

Government Leases • In addition of the right of re-entry. 124) by paying compensation to the lessees. • If the lessees are not satisfied with the compensation. 83 . the lessees are entitled to make a claim for compensation to the Lands Tribunal pursuant to section 10 of that Ordinance. the Government can resume any land under the Lands Resumption Ordinance (Cap.

lease was only a commercial contract between landlord and tenant. A contract could only be enforced by an action in personam and remedies available were damages. • In the old days. Leasehold • Historically a lease is a personal property. 84 .

Leasehold • Later. even though it actually confers a proprietary right to the tenant. That means the tenant could obtain the re- possession of the land. 85 . • But the classification of a lease as a personal property remains up until today. a tenant was allowed to enforce a lease against the landlord or third party (eg squatter) by an action in rem.

a term at a rent with exclusive possession. see Lord Templeman in Street v. 809. namely.C. Leashold • A lease consists of three main elements. 86 . Mountford [1985] 1 A. at 816F.

Leaseholds • In Ashburn Anstalt v. the English Court of Appeal held that there was no need for the payment of rent for there to be a lease. • The combined effect of these two authorities is that “a term” and “exclusive possession” are two necessary and sufficient elements of a lease. Arnold [1988] 2 All ER 147. 87 .

88 . where a lease purportedly said to be for the duration of the war (ie the end of the lease was unknown at the time the lease was created) was held to be void but for the statutory provisions of the Validation of Wartime Leases Act 1944 which converted the lease to a term of 10 years. There must be a term of year. • Thus in Lace v. Chantler [1944] KB 368. Leaseholds • A lease must have a certain beginning and a certain ending when it is created.

But the lease also provides the maximum duration for a sublease. 89 . See Guoji Transport Co Ltd v. a lease said to last “until the landlord required the land for road widening purposes” was held to be invalid for uncertainty. London Residuary Body [1992] 2 EGLR 56. • In a leasehold property. Ltd v. Leaseholds • In Prudential Assurance Co. the term of the lease itself is uncertain. The Collector of Stamp Revenue [1997] HKLRD 1168. The maximum duration for the sublease may save the lease from being rendered invalid.

. Leaseholds • It is the element of “exclusive possession” which distinguishes a lease from a licence. The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. Mountford held that:- • “An occupier of residential accommodation at a rent for a term is either a lodger or a tenant. Lord Templeman in Street v. 90 . . . A lodger is entitled to live in the premises but cannot call the place his own.

the landlord providing neither attendance nor services. the grant is a tenancy” (at 817H- 818D). Leaseholds • If on the other hand residential accommodation is granted for a term at a rent with exclusive possession. 91 .

G. • See A. [1990] 417. Leaseholds • Whether an occupier was granted exclusive possession is a matter of facts. 92 .C. Securities v Vaughan 1 A. The court will look into the actual situation before deciding whether there is exclusive possession.

it was very important for landlord to distinguish whether he is granting a licence or lease to an occupier. 93 . If it is a lease. • If it is a licence. Leaseholds • In the old days when there were laws which provided life-long security of tenure under a controlled rent. the grantee will have no protection in respect of either security of tenure or rent control. then the occupier becomes a tenant and is entitled to enjoy the benefit of control of rent and security of tenure.

94 . • Whether an occupier of certain premises is holding a lease/tenancy or a licence is not really material (except perhaps a licence is contractual and therefore not enforceable against the successor in title). for most land in Hong Kong. there is no longer rent control or security of tenure for tenancy. Leasehold • Nowadays.

Licences • A licence is a permission to enter upon the land of another person to do something thereon. and a licence by estoppel. a licence implied by an interest. a contractual licence. • There are four kinds of licences: a bare licence. 95 .

Licences • The most important point to note is that a licence is generally revocable unless coupled with a proprietary interest in land or in chattel. • A customer of a supermarket is entering the supermarket with an implied licence from the owner of the supermarket. 96 . But this licence is limited to permitting the customer to view the merchandizes and to purchase the same.

• If a person enters into a supermarket with a view to stealing something. Licences • The owner or his/her agent can always terminate the licence and invite the customer to leave the supermarket. (you will learn about this in your Criminal Law in relation to the offences of theft and burglary) 97 . he has no licence at all but enters as a trespasser.

Licences • Question: • What rights if any does a person entering into a theatre with a ticket have? 98 .

Licences • A person who enters a theatre or other premises with a ticket is a contractual licensee only and has no right or interest in the land in question. Leadbitter (1845) 13 M & W 838. 99 . • See Wood v.

• The proper remedy for revocation of a contractual licence is to sue for damages for breach of contract. Licences • A contractual licensee has more right than a bare licensee as in the case of a customer entering into a supermarket. he can go to court to get an injunction or specific performance to force the licensor to perform. If a licensee knows in advance that the licensor is to breach the licence agreement. 100 .

• This interest which allows a person to take something from land belonging to another is known as profits à prendre in legal jargon. There is an implied licence that X can enter B’s farm. the licence is irrevocably as long as the interest subsists. Licences • In the case that a licence is coupled with an interest. For example. B cannot stop X from entering the farm while X’s right to pick has not expired. X has a contractual right to pick strawberry in B’s farm. 101 .

Licences • One important point to note is that a licence will lapse if the licensor dies. 102 . whereas a tenancy is not affected by the death of the landlord.

Easements • An easement (役地權) is an interest in land. A more thorough discussion of easements will be in lecture 5. • By virtue of section 2 of CPO. 103 . an easement can be legal or equitable. • Common examples are rights of way. rights of light and rights of support. An easement can also be express or implied. It is a right of a landowner over the land of his neighbour for the enjoyment of his own land.

land covenants are extremely important in multiple storeys buildings in which rights of the common owners are defined in a special legal document known as Deed of Mutual Covenant (“DMC”). 104 . Covenants • A covenant is a promise by deed whereby the person making the promise agreed to be bound to do or not to do something. • In Hong Kong. More discussions of covenants will be in lecture 5 and of DMC in lecture 10.