Sample form of waiver letter giving owner of old schedule agricultural land the right to use agricultural land for temporary non-agricultural development
The following is a sample form of waiver letter giving owner of old schedule agricultural land the right to use agricultural land for temporary non-agricultural development. Unless otherwise specified or required, the particulars to be inserted in the blanks in the sample form depend on the basic terms agreed between the applicant(s) and Government.
Applicant(s) should note that this sample form of waiver letter is provided for information only without any warranty or representation whatsoever on the part of Government that a waiver will be approved, and if approved a waiver letter when issued will contain the same terms and conditions as in the sample form. Government has the right in its absolute discretion to vary any of the term and conditions in the sample form as well as to impose additional terms and conditions. The waiver letter when issued will contain such terms and conditions as Government considers necessary or appropriate.
Sample form of waiver letter giving owner of old schedule agricultural land
the right to use agricultural land for temporary non-agricultural development
the right to use agricultural land for temporary non-agricultural development
BY RECORDED DELIVERY
STW No.__________________
Dear Sir/Madam,
Lot No.___________ D.D.______________
| With reference to your application concerning the above lot : | |||||
| 1.0 | (a) | You are the registered owner of ("the Premises") held from the Government of the Hong Kong Special Administrative Region ("the Government"); | |||
| (b) | The Premises were, by the terms of the Block Lease (“the Lease”) under which the Premises were held, demised as agricultural or garden ground and your tenure thereof is subject to certain restrictive covenants, including a covenant ("the covenant") to the effect that you will not convert the Premises into use for building purposes other than for the proper occupation of the Premises as agricultural or garden ground without the previous licence of the Government. Breach of the covenant would give the Government a right to re-enter the Premises; | ||||
| (c) | You wish to convert the Premises for non-agricultural building purposes, particulars of which are set out in paragraph 2.2 hereof and it is acknowledged that such conversion would, without the licence of the Government, be in breach of the covenant; | ||||
| (d) | You have requested that the Government waive its right to re-enter the Premises for the said breach of covenant. | ||||
| 2.0 | (a) | I hereby grant on behalf of the Government a waiver ("the waiver") of the Government's right to re-enter the Premises for breach of the covenant, such waiver being for the consideration and upon the terms and conditions hereinafter mentioned. | |||
| (b) | In consideration of the waiver hereby granted, Short Term Waiver No._______________ registered in the New Territories Land Registry by Memorial No. on , shall be deemed to be revoked with effect from the day of 19 and the Government shall not be liable to pay any compensation to you in respect of such revocation. | ||||
| 2.1 | (a) | The waiver is granted in consideration of payment by you to the Government, of [an administrative fee in the sum of $ and] a waiver fee in the sum of $ (receipt of which is acknowledged) for the period of months commencing on the day of 19 . | |||
| (b) | You have deposited with the Director of Lands ("the Director") the deposit of $ as security for the due performance and observance of the terms and conditions hereof. Such deposit may be used to offset any monetary loss or damage sustained by the Government in respect of any breach by you of the terms and conditions herein contained, but without prejudice to the Government's right to claim for any further or additional damages which it shall have sustained or may sustain as a result of your breach should the deposit be insufficient to offset the loss. Subject to paragraph No. 2.7(b) hereof, the deposit shall remain deposited with the Director throughout the term of the waiver and shall upon the expiration or sooner determination of the period in respect of which the waiver is granted and upon your duly observing and performing your obligations under the waiver, be refunded to you but without interest. | ||||
| 2.2 | No building or part thereof on the Premises may be used for any purpose other than [insert appropriate user clause]. | ||||
| 2.3 | Upon the expiry or sooner determination of the waiver the Government's right to re-enter shall be forthwith restored and in the event of any breach of the covenant thereafter the Government's right to re-enter may be exercisable as if the waiver had not been granted. | ||||
| 2.4 | Except as herein provided, all the covenants, conditions and provisions contained in the Lease shall remain in full force and effect. | ||||
| 2.5 | (a) | (i) | Subject to paragraph 2.5(a)(ii) below, you may not erect or maintain or permit or suffer to be erected or maintained on the Premises or any part thereof any structure or structures. | ||
| (ii) | You may, during the subsistence of the waiver, maintain or permit or suffer to be maintained on the Premises or any part thereof the structures existing thereon at the date specified in paragraph 2.1(a) above ("the said date"). For the avoidance of doubt, it is hereby confirmed that the total site coverage of the structures erected on the Premises at the said date does not exceed square metres, and the height of each of the structures erected on the Premises does not exceed metres *above the level of the ground on which it is erected/above the Hong Kong Principal Datum. | ||||
| OR | |||||
| (ii) | You may, during the subsistence of the waiver, erect or maintain or permit or suffer to be erected or maintained on the Premises or any part thereof a structure or structures provided that : | ||||
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| (b) | (i) | Notwithstanding anything to the contrary contained in paragraph 2.5(a) hereof, you shall submit plans to the Building Authority for approval in respect of any structure or structures to be erected on the Premises. Such structure or structures shall in all respects comply with the Buildings Ordinance, any regulations made thereunder and any amending legislation. | |||
| (ii) | No building shall be erected on the Premises of a type which by virtue of the Buildings Ordinance (Application to the New Territories) Ordinance and any regulations made thereunder is exempted from the provisions of the Buildings Ordinance and any regulations made thereunder. | ||||
| (iii) | No building or buildings may be erected on the Premises or any part thereof or upon any area or areas outside the Premises specified in these Conditions, nor may any development or use of the Premises or any part thereof, or of any area or areas outside the Premises specified in these Conditions take place, which does not in all respects comply with the requirements of the Town Planning Ordinance and any amending legislation. | ||||
| (c) | You shall fence and screen the Premises in all respects to my satisfaction if so required. | ||||
| (d) | Throughout the duration of the waiver : | ||||
| (i) | You shall at your own expense and to the satisfaction of the Director of Fire Services : | ||||
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| (ii) | You shall permit the Director of Fire Services, his officers, servants or agents at all reasonable times with or without notice to enter upon the Premises or any part thereof or any building or buildings, structure or structures or any part thereof erected or placed or to be erected or placed thereon for the purpose of inspecting the same so as to ensure that the requirements referred to in paragraph 2.5(d)(i) hereof have been complied with | ||||
| (e) | You shall at your own expense and to the satisfaction of the Director of Fire Services provide fire hydrants, fire fighting appliances, water pumping connections and such other fire service installations and equipment (as defined in the Fire Services Ordinance) as the Director of Fire Services in his sole discretion shall require within the Premises (or, subject to my prior written consent on any adjoining Government land) and within any building or buildings erected or to be erected thereon at such point or points as the Director of Fire Services may require. You shall maintain at your own expense the said fire hydrants, fire fighting appliances, water pumping connections and such other fire service installations and equipment in good condition and to the satisfaction of the Director of Fire Services | ||||
| (f) | You shall comply with all lawful requirements of the Director of Fire Services made under the Dangerous Goods Ordinance, any regulations made thereunder and any amendments thereto. | ||||
| (g) | Wherever in the conditions herein contained it is provided that : | ||||
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| (i) | the Government or its duly authorized officers shall or may carry out works of any description on the Premises or any part thereof or outside the Premises (whether on your behalf or on your failure to carry out such works or otherwise) at your cost or that you shall pay or repay to the Government or to its duly authorized officers on demand the cost of such works, such cost shall include such supervisory and overhead charges as may be fixed by the Government or its duly authorized officers; or | ||||
| (ii) | the prior approval or consent in writing of the Government or its duly authorized officers is required, they may give the approval or consent on such terms and conditions as they see fit or refuse it at their absolute discretion. | ||||
| (Additional conditions may be added to suit the requirements of particular case) | |||||
| 2.6 | Notwithstanding anything to the contrary herein contained the waiver shall be determined : | ||||
| (a) | forthwith upon the breach, non-performance or non-observance of any of the terms and conditions hereof; | ||||
| (b) | forthwith in the event of any change, cessation or variation of the permitted use of any building on the Premises as specified in paragraph 2.2 hereof; | ||||
| (c) | upon three calendar months' notice of determination in writing given by either party to the other to expire at any time but not before the day of 19 , PROVIDED THAT in the event of an order for resumption of the Premises or any part thereof taking effect under any Ordinance the aforesaid notice of determination may expire at any time after the commencement of the waiver; | ||||
| (d) | forthwith upon the taking of effect of an order for resumption of the Premises or any part thereof under any Ordinance; | ||||
| (e) | forthwith upon any change of registered owner of any part of the Premises. | ||||
| Upon determination pursuant to paragraph 2.6(a), (b), (c), (d) or (e) hereof no compensation will be payable to you in respect of any loss or damage thereby occasioned. | |||||
| 2.7 | (a) | Provided that no notice of determination or resumption has been given by either party under paragraphs 2.6(c) or 2.6(d) hereof, the waiver shall be deemed to have been renewed subject to the waiver fee for the sum of $ being paid by you by four equal three monthly instalments in advance for the period from the day of 19 to the day of 19 and thereafter quarterly on 1st January, 1st April, 1st July and 1st October of each year at the rate of $ per quarter or at such revised rate as may from time to time be fixed by Government, not less than calendar months' notice of such revised rate having been given to you in writing before it shall take effect and become payable in the above manner. | |||
| (b) | That in the event of the waiver fee hereby reserved being increased under paragraph 2.7(a) hereof, the deposit deposited with the Director in accordance with paragraph 2.1(b) of the waiver may be increased by the Government at its sole discretion upon the Government giving to you not less than calendar months’ prior notice to that effect. As from the date being the effective date as stipulated in such notice such increase shall take effect and in this connection, you shall pay to the Director on or before the said effective date a sum equivalent to the difference between the deposit previously deposited with the Director under the waiver and the deposit as so increased whereupon the deposit as so increased shall be deemed to be substituted for the said deposit previously deposited with the Director under the waiver. | ||||
| 2.8 | Any notice to be served by the Government under the terms of the waiver shall be sufficiently served on you if left addressed to you on the Premises or forwarded to you by post or left at your last known address or (in the case of a corporation) forwarded to you by post or left at your registered office, and such notice, if sent by post, shall be deemed to be delivered in due course of post at the address to which it is sent. | ||||
| 2.9 | That in the event of the waiver fee hereby reserved or any part thereof not being paid on the due date for payment thereof (whether formally demanded or not) you shall pay interest to Government on such amount of the waiver fee reserved as is unpaid on the due date or dates calculated from the day immediately following the due date or dates until payment of all fee due and interest thereon has been paid by you to the Government, such interest to be at a rate which is equivalent to two per cent per annum above the prevailing Best Lending Rate of The Hongkong and Shanghai Banking Corporation Limited. | ||||
| 2.10 | The Government has given no warranty, express or implied, as to the suitability, physical condition or state or safety of any structure or building or structures or buildings erected on the Premises or any part or parts thereof for the use hereby permitted, whether in accordance with the terms and conditions in the waiver or otherwise. | ||||
| 2.11 | By execution of the waiver and in consideration thereof, you for yourself, your executors, administrators and assigns undertake not to make any claim against the Government for any loss or damage whatsoever which you may suffer as a result of or arising from the physical condition or state of the structure or building or structures or buildings erected on the Premises. | ||||
| 2.12 | By execution of the waiver and in consideration thereof, you expressly acknowledge and agree that the Government shall have no liability whatsoever to you, your executors, administrators, assigns, mortgagees or tenants or other occupiers of the Premises whether lawful or otherwise for any loss, damage or delay of whatsoever kind howsoever arising or resulting directly or indirectly from any act, omission, neglect or default whatsoever or howsoever arising from or in connection with or as a consequence of the grant of this waiver. | ||||
| 2.13 | You shall indemnify and keep indemnified the Government from and against all actions, proceedings, liabilities, demands, costs, expenses and claims of whatsoever nature arising out of or in connection with : | ||||
| (a) | anything done or omitted to be done by you, your servants, workmen and contractors in respect of the repair, maintenance, alteration, removal of the structure or building or structures or buildings erected on the Premises; | ||||
| (b) | any accident, damage, loss or injury to any person or property resulting directly or indirectly from the existence and collapse of the structure or building or structures or buildings erected on the Premises; | ||||
| (c) | any damage whatsoever occurring within adjacent or adjoining Government or leased land, which damage in the opinion of the Director (whose opinion in each case shall be final and binding upon you) has been caused as a result or in consequence, whether direct or otherwise, of the use of the Premises or any part or parts thereof for which the waiver is granted and you are required to undertake in compliance with the conditions contained in the waiver or the cause of which damage cannot in the opinion of the Director (whose opinion in each case shall be final and binding upon you) be ascribed to any other factor. | ||||
| 2.14 | Notwithstanding the grant of the waiver, the Government reserves the right to take appropriate action under the Buildings Ordinance, any regulations made thereunder and any amending legislation in respect of any structure or building erected on the Premises in the event that any of such structure or building is considered to constitute an imminent danger to life or property or to have been rendered dangerous or to be liable to become dangerous by the Building Authority (the decision of the Building Authority shall be final and binding upon you). | ||||
If the foregoing terms and conditions are acceptable to you, please signify your acceptance thereof by signing the docket on both copies of the waiver. Your signature must be duly witnessed. [I note that the Premises are in mortgage to the __________________. It is essential the consent of your mortgagee be obtained to the foregoing terms and conditions by having such consent endorsed in the manner indicated below, on both copies of the waiver.] After you have signed [and the consent of the mortgagee has been duly endorsed,] please return all copies of the waiver to me, whereupon the waiver will be registered by Memorial at the New Territories Land Registry. After registration the original of the waiver will be returned to you for retention with the documents of title in your possession.
If on the expiration of 28 days from the date of the waiver your acceptance of the above terms has not been formally signified in accordance with paragraph 3 above, the Government's approval of the waiver on these terms shall be deemed to have been automatically withdrawn
Yours faithfully,
| ( | ) | |
| for District Lands Officer, | ||
c.c. LACO(District)
I hereby agree to and accept the foregoing terms and conditions.
| Witness | ||||||||
| (Signature and name in block letters) | (Signature of | |||||||
| OR | ||||||||
| H.K.I.D. Card No. : | Seal of | |||||||
| Address : | and signatures and names in block letters of its attesting officers and description of their offices) | |||||||
| Date: | ||||||||
* I/We, [ Insert the name(s) of the mortgagee(s) ] being the registered mortgagee(s) of the Premises hereby consent to the issue of the waiver on the above terms and conditions to [ Insert the name(s) of the owner(s) ] and formally acknowledge that I/We have no objection to the acceptance of such terms and conditions by [ Insert the name(s) of the owner(s) ]
| Dated the | day of 19 |
| _____________________________ |
| Signed for and on behalf of |
| [ Insert the name(s) of the mortgagee(s) ] |
* For use where the lot is subject to a mortgage
WOSOWN04
