This pamphlet is for the general guidance and information of people considering the purchase of a house in the New Territories (in this pamphlet described as a "Village House").
By issuing this pamphlet, Government assumes no legal or other obligation in respect of the rights or interests of any intending purchaser. An intending purchaser should seek independent legal advice before committing himself to the purchase of a Village House, or any other property.
The issue of this pamphlet does not create any legal obligation or liability whatsoever on the part of Government.
CONTENTS
Introduction Title of Vendor Development Conditions Land Boundary Plans Documents Required for Erection of Village Houses Summary Enquiries 1. INTRODUCTION
This pamphlet outlines important points for the attention of a purchaser before entering into an agreement for the purchase of a Village House. The information contained in this pamphlet is general in nature, and is not intended to be exhaustive nor to cover every aspect of an intended purchase. Various documents are also described which the vendor should be required to produce for inspection by the purchaser, either to prove his title to the land or to establish his right to build the Village House in question.
2. TITLE OF VENDOR
2.1 Proof of Title To prove his title to a Village House, the vendor should produce the original or a certified copy of the original lease or grant by Government of the land on which the Village House is built. The lease or grant of the land by Government may have been recorded in a Block Lease (formerly known as Block Crown Lease) ("lease") with the details of relevant lot described in the Schedule to the lease, or by issue of a New Grant, including Conditions of Grant, Conditions of Sale, Conditions of Exchange, etc. ("New Grant"). If the description of the lot in the Schedule to the lease or in the New Grant is not "House" or of some other building, a Building Licence applying to the land should have been obtained from Government, converting the permitted original use of the land under the lease or New Grant to building purposes.
The vendor should either be a lessee of the land on which the Village House is built or be the grantee under a New Grant, or successor in title or the assignee of the lessee or grantee, and be registered as such in the relevant NT Land Registry under the Land Registration Ordinance, Cap. 128.
2.2 Restrictions on Alienation Land grants or Building Licences to indigenous villagers under the Small House Policy (see Note 1 on p. 16) usually contain restrictions on the sale or other disposal of the land. These restrictions may remain in force even after the development has been completed e.g. an owner may be required to pay an additional premium to Government before the restrictions are removed. A purchaser must refer to these documents to see whether these restrictions are still applicable or whether the restrictions have been removed by the issue of a Modification Letter or a Consent Letter by the District Lands Officer. The Modification Letters or Consent Letters will have been registered in the relevant NT Land Registry.
Apart from land grants or Building Licences issued under the Small House Policy, there are normally no restrictions on the disposal of land held under a Block Lease or other land grant. Purchasers are, however, advised to check the lease or land grant document to see whether, in fact, any such restrictions exist.
2.3 Tsos (?) and Tongs (?) Some land in the NT is owned by traditional organisations, usually known as a "Tso" (?) or "Tong" (?). Under section 15 of the New Territories Ordinance, Cap. 97 the consent of the District Officer, on behalf of the Secretary for Home Affairs, is required before a registered manager may sell any land, including any Village House, registered in the name of a "Tso" (?) or "Tong" (?). The managers should be asked to obtain and produce to a purchaser a letter of consent from the District Officer on behalf of the Secretary for Home Affairs as proof that consent to sell the Village House has been obtained. This consent is normally subject to a time limit, therefore a purchaser should ensure that the consent is still valid, and that any other terms of the consent have been complied with.
3. DEVELOPMENT CONDITIONS
3.1 Leases require the lessees to obtain building plan approval for development and redevelopment. These approvals are given by the District Lands Officer (or before 1.4.1982, by the District Officer). New Grants often have a similar requirement. It is also necessary for a building subject to the Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 121 to comply with certain requirements which are set out in detail in para. 5.2.
3.2 The New Grant and Building Licences also frequently contain limitations as to the roofed over area, height, number of storeys or other development conditions. If any development or redevelopment of a Village House would exceed these limits, modification of these conditions is necessary. The modification will be by means of a Modification Letter from the District Lands Officer and signed by the owner. After registration in the relevant NT Land Registry, it should be retained by the owner (or any mortgagee) as part of his title documents. If a Village House as built breaches any limitations in the New Grant or Building Licences and there has been no modification or a letter by the District Lands Officer stating that he has no objection or is prepared to tolerate or waive the breaches, Government may re-enter the land and the Village House and forfeit the lease or New Grant, or require the breaches to be remedied in some way to its satisfaction, possibly subject to payment of a cash premium.
3.3 Purchasers should ensure that there has been no breach of any covenant, term or condition in the lease or New Grant or the Building Licence including those relating to development and redevelopment as such breach may result in re-entry or other enforcement action by Government. If the District Lands Officer agrees, the breaches may be tolerated (with or without payment of a premium or fee) for the life of the existing building by a modification, waiver or letter of no objection issued by the District Lands Officer and registered in the relevant NT Land Registry.
3.4 District Lands Officers may at their discretion and, where appropriate, issue a letter tolerating minor breaches of the development conditions for the life of the existing building. This letter should also be registered in the relevant NT Land Registry. A copy of the toleration or waiver letter, modification, or letter of no objection should be retained by the owner and produced with his other documents of title.
4. LAND BOUNDARY PLANS
Plans (for identification purposes) only of lots held under Block Leases are available for purchase in the District Survey Offices of the Survey and Mapping Office of the Lands Department.
Plans of other lots are usually attached to the New Grant or Building Licences. A purchaser may also purchase "Lot Identification Plans" of these lots for identification purposes from the District Survey Offices.
For any division of land on and after 15 January 1996, a land boundary plan certified by an Authorized Land Surveyor is required under the Land Survey Ordinance, 1995, Cap 473.
The documents that a purchaser should require a vendor to produce depend upon:
the conditions of the relevant lease or New Grant;
the dimensions of the Village House; and
the date when construction of the house commenced.
5.1 Lease Conditions If the lease or New Grant of the land on which the Village House is erected requires written approval of building plans prior to commencement of construction, the vendor should produce that approval (see para. 3.1 above). If a Building Licence has been issued, no further approval needs to be obtained under the lease or New Grant.
If the use of the land permitted under the lease or New Grant does not permit a house, a modification or a land exchange (see Note 2 on p. 16) for building purposes should have been entered into. Where the use permitted under the Block Lease was for a non-building purpose, a Building Licence should have been issued.
Retrospective written approvals under the lease and changes of use to permit construction of a house by way of modification, land exchange, or Building Licence are generally not granted. The failure to obtain prior approval constitutes a breach of the lease terms and can lead to re-entry action by Government.
5.2 Buildings Ordinance (Application to the New Territories) Ordinance, Cap. 121 ("the Ordinance") A New Territories building is exempt from the Buildings Ordinance, Cap. 123 by the Ordinance if it meets the following criteria :-
the building has a roofed over area not exceeding 65.03m2 and does not exceed 7.62m in height;
the building has a roofed over area not exceeding 92.90m2 , does not exceed 7.62m in height and complies with building plans approved by the District Lands Officer (or before 1.4.1982, the District Officer);
where construction commenced on or after 16 October 1987, the height is more than 7.62m but not exceeding 8.23m, the building does not exceed 3 storeys and otherwise complies with para. 1(1)(a) in Part I of the Schedule to the Ordinance as to roofed over area and the thickness of the load bearing walls.
For buildings exceeding these dimensions, the vendor should produce approval of the building plans from the Building Authority under the Buildings Ordinance, Cap. 123. If there is no building plan approval or if a term of that approval is breached or if the dimensions of the building exceed those under the Ordinance, re-entry of the land may be made by Government or the purchaser will be required under the Buildings Ordinance to demolish the building or some part of it.
5.3 Approvals and Certificates Required 5.3.1 Construction of Village House before 16.10.1987 If construction started before 16 October 1987, only the approval under the lease or New Grant (if required) (see para. 5.1 above) was required prior to commencement of construction.
5.3.2 Construction of Village House on or after 16.10.1987 If construction started on or after 16 October 1987, prior to starting construction, Certificates of Exemption under the Ordinance in respect of building, site formation and drainage works should have been obtained from the District Lands Office in addition to the approval, under the lease or New Grant (if required) (see para. 5.1 above).
5.3.3 Completion of construction of Village House Following completion of construction, the building would be inspected by the District Lands Officer (or prior to 1.4.1982, the District Officer). If the building passed inspection, a Certificate of Compliance with the conditions of the lease, New Grant or the Building Licence would be issued.
If the building is on land held under a Block Lease or is a redevelopment of a previous building, no Certificate of Compliance would be issued. In that case, a letter confirming there is no objection to occupy the building would be issued. If the inspection revealed minor breaches of the dimensions stated in para. 5.2 above, a letter tolerating the breaches for the life of the building would be required.
5.3.4 Retrospective issue of letter of approval, letter of no objection to occupy, letter to tolerate minor breaches (if applicable) and Certificates of Exemption If the letter of approval stated in para. 5.1 or a letter confirming there is no objection to occupy, letter to tolerate minor breaches (if applicable), or Certificates of Exemption, as appropriate, have not been obtained, the District Lands Office upon payment of administrative fees will issue the letters or certificates retrospectively. The Director of Lands may issue Certificates of Exemption retrospectively under section 4 and 6 of the Ordinance provided that the building complies with the dimensions stated in para. 5.2 above and the site formation and drainage works meet with the exemption criteria described in the pamphlet titled "Building a Village House under the Buildings Ordinance (Application to the New Territories) Ordinance, Cap 121" issued by the Village Improvement Section of this Department.
The District Lands Office will only issue a letter confirming there is no objection to occupy the building or Certificate of Compliance retrospectively if the owner of the Village House can produce a certificate by a Registered Professional Surveyor or Authorised Person confirming the following items:
the owner is the legal registered owner of the Village House;
the Village House complies with the conditions in the lease, New Grant or Building Licence;
the dimensions, height etc. of the Village House comply with those set out in the Ordinance; and
the development of the Village House is within the lot boundaries.
5.3.5 Request for copies of letters, Certificates of Exemption and Certificate of Compliance previously issued In the event of the vendor having misplaced the relevant letters, Certificates of Exemption or the Certificate of Compliance, a copy may be obtained from the District Lands Office upon payment of copying fees.
6. SUMMARY
Before entering into a sale and purchase agreement in respect of a Village House, a purchaser should either personally, or through a solicitor, require that the vendor produces all relevant documents for inspection. The purchaser or his solicitor should also make searches in the appropriate NT Land Registry. A purchaser should satisfy himself :-
that he is in fact dealing with the legal owner(s) (para. 2.1 above refers);
whether there are any restrictions against the sale of the Village House in the lease, New Grant or Building Licence and if so, whether or not these restrictions still apply or have been removed after payment to the Government of any additional premium (para. 2.2 above refers);
if the vendor is a Tso (?) or Tong (?), the required consent of the District Officer on behalf of the Secretary for Home Affairs has been obtained and is still valid and the conditions (if any) of the consent have been complied with (para. 2.3 above refers);
whether any modification of the lease, New Grant or Building Licence has been issued affecting the Village House (para. 3.2 above refers);
whether the development or redevelopment has been completed in accordance with the lease, New Grant or Building Licence and, if not, has the breach been regularised by a modification, waiver or letter of no objection or, if a minor breach, been tolerated by District Lands Officer (para. 3.3 and 3.4 above refer);
whether or not all relevant approvals have been obtained by the vendor to commence development or redevelopment of the Village House (para. 3.1 and 5.3 above refer);
if the Village House is exempt from the Buildings Ordinance, is it within the prescribed dimensions and, if not, has approval of the building plans been obtained (para. 5.2 above refers);
were Certificates of Exemption obtained for the Village House (if exempt from Buildings Ordinance) if construction of it commenced on or after 16 October 1987;
whether a letter of no objection to occupy, a letter of toleration, or Certificate of Compliance has been issued following completion of the development or redevelopment of the Village House.
7. ENQUIRIES
More detailed information on any of the documents or certificates referred to in this pamphlet can be obtained from District Lands Offices in the New Territories.
Note 1:
Note 2:
