TOPIC 1

1. General land concept of land in HK.

Estate is an interest in land of a particular duration that is vested in a particular person. All land
in HK belong to PRC with HKSAR being responsible for the management use and development
of land and for lease or grant of land under s.7 of HKBL. Most land in HK are leasehold except
for st. john’s cathedral. Owners are all lessees in hold leases from the government. The
meaning of land under s.2 of conveyancing and property ordinance (CPO) land includes land
covered by water, any estate interest or easement over land. The whole part or part of an
undivided share in land and any estate, right interest or easement in or over the whole or
undivided share in land. The things that are attached to land or permanently fastened to
anything attached to land. Under common law land includes up to heavens and down to hell,
Bocardo SA v Star energy uk onshore ltd. But not miniral under s.3 of mining ordinance and
treasure under s10 antiquities monuments.

2. Land include fixture not fittings. A conveyance deemed to include fixtures unless
contrary intentions has been expressed. S.2 CPO states that land includes things
attached…. And s.16(1) states that Unless the contrary intention is expressed in the
assignment, an assignment of land is deemed to include things attached. A vendor of
land cannot remove fixtures and purchaser isn’t required to pay extra for them.

3. How to determine what is fixture and fittings?

To determine whether it is fixtures or fittings there is the degree and purpose of annexation test.
A chattel presumed to be a fixture if affixed / attached at all to the land. Presumption can be
rebutted if the item can be removed easily without damaging the land and has been attached for
the convenience of its own use and not the convenience of land itself. Air conditioner has been
in dispute in hk for a long time. In Irene Loong v Pun Tsun-hang the court referred the
purpose of annexation test and took the view that an air conditioner cannot be enjoyed without
the room so must be a fixture. There is also the part and parcel test done in Goldful Way
Development ltd v Wellstable Development ltd. A green house resting on its own weigh by
force of gravitation not attached to land found to be part of architerual design of building or part
and parcel of the land.

4. Formalities for creating legal estate

Under s.4(1) CPO a legal estate in land may be created, extinguished, or disposed of only by
deed. Wu Koon Tai v WU YAU LOI. S. 4(2) shows exceptions to 4(1) if an assent in writing by
personal representative, a disclaimer made in accordance with section 59 of the bankruptcy
ordinance. A surrender by operation of law, including a surrender which may, by law, be
affected without writing, the grant disposal or surrounded of a lease taking effect in possession
for a term not exceeding 3 years. Under s.6(1) CPO Interests in land created orally and not put
into writing take effect as interests at will only. It can be terminated at any time by the will of
either party or by any act inconsistent with a tenancy at will. Under s.6(2) Oral leases not
exceeding 3 years can be legal leases provided they at best rent with can be reasonably
obtained without a premium.

5. How to create contracts for sale or disposition of land? And essential element for SOC.

The requirement to create contracts for sale or disposition of land includes s.3(1) CPO which
states that Subject to section 6(2), no action shall be brought upon any contract for the sale or
disposition of land unless the agreement upon which such action is brought, or some
memorandum or note thereof, is in writing and signed by the party to be charged or by some
other person lawfully authorized by him for that purpose."

The contract for sale not enforceable unless an agreement or some memorandum or note is in
writing. It is signed by the party to be charged by an authorized person. The note is pursuant to
s.3(1) CPO must contain complete agreement: parties property price and date of completion. (
KWAN SIU MAN V YAACON OZER). Failure to comply with s.3 1 CPO makes the agreement
unenforceable but not void, the parties may choose to proceed with the contract. An oral contrat
for sale of land that satisfies the equitable doctrine of past performance is enforceable, the
contract must be capable of specific performance. If the property already sold to innocent 3rd
part, the court may award damages instead under the s.13A LAW AND REFORM ORDINANCE
(CAP. 23). Party seeking to rely on doctrine must establish existence of a concluded contract
with ascertain terms.

TOPIC 2
1. HISTORICAL BACKGROUND OF GOV LEASES.
Nanjing treaty lead to cession of hk island, convention of peking led to cession of kowloon
peninsula the 2nd convention odf peking led to lease of NT for 99 years. This lead to leasehold
except for st.john cathedral.

2. What type of grant is in hk landholding?

Currently there is grant of conditions of sale, grant, exchange. The condition of sale and a
memorandum of agreement together constitute a contract between gov and grantee:
ATTORNEY GENERAL TONG LU. An equitable interest under the condition of sale, upon
compliance with the conditions contained the government lease is issued and the equitable
interest would be converted into a legal estate in land.
The five types of condition include condition of sale: the land is sold at a premium. The condition
of exchange: the land is granted in exchange for other land. The condition of grant: the land is
granted for a particular purpose, for example charitable purpose, small house policy in NT. The
condition of extension; additional land is granted by the gov for development purpose.

In NT there was a survey done in 1898 under nt land court ordinance. that divided rural land into
400 demarcation districts. They the issued block crown leases for lots issued in 1905 and new
grant for after 1905. They automatically renew and extend until 2047.

Conversion of equitable interest into legal state under s.14(1) of CPO a person with a right to
gov lease of any land hols an equitable interest, upon complience with a positive conditions, the
EI is converted into a legal estate, negative or restrictive contidion continue to bind. Under s.
14(2) the gov leases proir to 1 jan 1970 deemed complience with conditions precendent, gov
lease deemed to have been issued and EI is converted into a legal estate. (MINCHEST LTD V
LAU TSUI KWAI). Under gov lease dated on or after 1 jan 1970 upon issuance of certificate of
complience by gov and registration of certificate, the condition deemed to have been complied
with, gov lease deemed to have been issued, EI is converted into a legal estate. There is no
deemed compliance if the ceertificate of compliance is not registered ( TAI WAI KIN V CHEUNG
WAN WAH CHRISTINA).

CONDITIOND UNDER CONDITION OF SALE, ETC.

Reserve the right of the gov to re-enter and take back possession if conditions are breached
(right of forfeiture). The right remains enforcable against suubsequent purchasers of the lot and
buildings erected on it. The conditions themselves are normally devided into 2 part. Grneral
conditions and special conditions.

Restrictive covenants

The example of restrictive convenants include

1. User restrictions
Private residential use:

- use as photographer’s studie or guesthouse constitutes as breach ( IO of HAMILTON

MANSION V YU KEIM CHIU)
- One room for conduction oxfam business did not breach convenant. ( Donald W SHIELDS V
MARY CHAN)
- House hence not flats ( FULLY PROFIT (ASIA ) LTD V SECRETARY FOR JUSTICE.

 Industrial purpose:
- Manufacturing of paper and provision of paging services: raider ltd v secretary for justice
- Ancillary use for research and testion not substantial and did not amount to a breach.
- Primary use was still manufacturing (Mexx Consolidated ( far east) ltd v attorney general.

2. Offensive trade clause

- Prohibited offensive tradees, particular in older gov leases
- Victualler green park properties ltd v dorku ltd

3. Design, disposition and height clause

- For example e.g. “the design, disposition and height of the building to be erected on
the lot shall be subject to the prior written approval of the Director of Buildings and
no building works shall be commenced until such approval has been given.”
• Held to been forceable: Ying Ho Co Ltd v Secretary for Justice (2004) 7 HKCFAR 333 .

4. Restriction against alienation

• Where land is for development purposes, the grantee developer may not alienate land
without the consent of the Director of Lands until the positive conditions have been
complied with.

5. New Territories land: special user restrictions in Block

Government Leases
• ‘Watford’ covenant: Watford Construction Cov Secretary for the New Territories [1978]
- Restriction on land use to‘ agricultural’ or ‘gardenland’ in the body of Block Government
lease enforceable
- No erection of buildings or structures

• ‘Melhado’: description of land use:

- descriptions such as ‘padi’ or ‘garden’ In the Schedule of Lessees in Block Government
leases are merely descriptive (not prescriptive), and do not restrict permitted use of the
land: Attorney General v Melhado Investments Ltd [1983]

Binding nature on successors in title

 Covenants: The burden of a covenant will run with the land and bind successors in title,
if the covenant is a land covenant and is expressed or intended to run with the land:
s.41(1), s.41(2) of CPO
 Conditions: conditions in the Conditions shall have the same force and effect even after
the Government lease is deemed to have been issued: s.42(1) CPO
 Positive covenants may become spent after compliance.
 Restrictive covenants will continue to bind the land

Waiver of restrictive covenants

• Express waiver:
1. temporary waiver – can be withdrawn upon
reasonable notice
2. limited waiver –e.g .RealHonestInvestmentLtdv Attorney General [1997] 2 HKC 436: height
restriction waived to permit construction of a block of flats
3. permanent waiver – e.g. Peter and Angeli Wong Co Ltd v Silverera Ltd [1995] 3 HKC 411
If the waiver is given subject to conditions, it may cease to have effect if the condition is
subsequently breached: Favourable Issue Co Ltd v Secretary for Justice [2014]

Implied waiver, acquiescence or abandonment:

- Inaction, with actual or constructive knowledge of breach by the Government, may constitute
an implied waiver or acquiescence
Attorney General v Fairfax Ltd [1997] (PC)

  Restrictive covenant limiting construction to villa residences. A six-storey block built in

1958. High rise buildings were also constructed on nearby plots subject to similar
restrictive covenant
  Held implied waiver or abandonment by Government as it was obvious that there was a
breach, but no action was taken for a long time (over 40 years). Restrictive covenant
declared no longer enforceable

Modification of Government Leases

 To alter the terms of the government lease.
 Normally require a premium () to be paid to the government to allow the change in land
use or to modify the terms of the government lease.
 Government has the absolute right to refuse application (not susceptible to JR): Hang
Wah Chong v.
AG, Director of Lands v. Yin Shuen Enterprises (2003) (CFA)
understand how s.14 cpo works.

Factual complience how to prove?

Ei convert to le gl prior t 1 jan demed complinece, new need issuance and registration.
During the handover leases have been recognized and extended (general know)
understand terms clauses restrictive convenants in paticular nt land mark cases watcord
covenent. It is restriction against building and structure in agricultural or garden land. melhado
only descriptive and not prescriptive.
Types of waiver of restrictive convenant implied waiver modifications.
How come demarcation of land discrepancy between first it depends on intention of parties as
evidenced by words used, 2 ways plan for identi purpose.
Chinese customary trust understand nature of interest for male..
Small house policy
who is an indiginues villager
what r 2 main Ways small jouse grant nade by gov p.49

TOPIC 3.

How to calculate the effective date of priority?

The priority is determined between respective instruments according to the effective dates of
registration: s.3 of LRO. The registrable instrument which are not registered is null and void
against subsequent bona fide purchaser. The person asserting bona fide purchaser to bear
burden of proof: KEEP POINT development ltd v chan chu yim.

Registrable documents except for charging order and lites pendents under s. 5 of lro if
registered wihin a month of execution the effective date for priority is the date of execution. If
registered after a month of execution the effective date for priority is the date of registration.
For charging orders and lited pendentes the effective date is day following the date of
registration. A charging order or lis pendens must be re registered every 5 years to pereserve
proirity. Charging order the proirity depends on date of registration or order nisi provided the
charging absolute is subsequently registered; wong kam wing v cyril murkin hk

Priority between competing interests for both competing interests priority is determined on lro
alone ; HO see shing v wan ying him. Where the interest are unregistrable the priority is
governed by ordinary equitable principles.

TOPIC 4.

What is the difference between joint tencecy and tenancy in common?

Co- ownership of land in hong kong means having same interest in land hekld by more than one
person.
Joint tenancy is a form of co-ownership that gives the holder a potential right to the whole
property. There are 4 units in JT. They are unity of possession- the right of each jt to
possession of the land. Unity of interest- each JT wholly entitled to the entire property, andeach
JT’s interest is exactly the same. The unity of time is the interest is vested at same time. Unity of
title is all JT derive their title from the same act. There is no words of severance, there is no
presumptions of tic in quity.

Tenancy in common is a form of co-ownership that gives the holder an undivided (notional)
share of the property. The undivided share need only unity of possession, on death of tenant in
common his interest will pass according to provision by will. Possible to convert a tic top jt

How co owner arise?

cpo s.9 where tenancy in same state in land is vested 2 or more people under an istrument is
tenant in common rather that jt.
Formalities for creating of co ownership include creating of legal estate of land by deed. The
creation of an equitable interest in land must be in writing requirement under s.5 doesn’t affect
the creation or operation of resulting implied constructive trust.

Severance of jt is possible both at law and equity under s.8 cpo. A jt may be severed at law only
by a notice served by a jt on the other tenants or instruments. A joint tenancy of an estate in
land may be severed in quity by a notice served by a joint tenant on the other jt

Severance of jt at law.
1. Notice in writing by one jt no pescribed fors but must go to all jt, show intention to
sever immediately: Harris v goddard. Service of notice left at last known place of
abode in hk s.62 cpo a notice properly served would be effectie even if not
received re 88 berkele;ey road.
Severande of jt in equity
1. Notice in wiriting by one joing tenant
charastic law to support how co owner in land arise and how many trustesss etc.
long question start with definition what is gov lease what are elements tyoes
Both jt and tic can exist mxmimum no of trsutee is 4 jt require 4 unities right of survivor ship
presumption of death.
tic how to do a devolution of title unequal contribution according to porpotioms
know the methos of secerance s 8.1 severenceclaw page 15 requirement also jt in law equity.
Dispute in parties what to do?
Who can apply to court what factor considered p22 23
if partition not applicable what is likely to happen

5 important

Understandnature of ownership in msb unit p.5

role of dmc in gov rights excluive common oarts difination on s2 bmo p13
How the engorcibility in land covenmentccan be enforcd 21
 s.41 cpo know in and out of subsections
contains regime for enfocibitt in land convemen its statutary regime under 41 is prefarabld and
is it applicable s 2?
Have one liner about what its meaning relates to land and presumption applicable relata or
concern land 3 criteria fulfilled whole regime will be aplicable to any convenant p30 line 2 dmc
have to be registered with land regis

6
Eassential element of v lease.
distingush lease and license types of leases
expresses covenants focus on breach remedies convenant.
Forfeiture and relief agaist forfeiture p20

7
Nature of mortgage modern type p.3
type of mortgage p. 7
implied covenant 11
mortgage remedies forclusure, pos

when pos arise and become exercisable

should be able to describe dutyes owed by mortgagee when selling property p21

8
Elements of adverse possession s7 and .17

factual intention possesion adverse time period in hk p.6 ap and leases p19