Hong Kong Land Boundary Problems – A Synthesis
Dr Conrad Tang and Adam Yau
Department of Land Surveying and Geo-informatics,
The Hong Kong Polytechnic University, Kowloon, HKSAR
It is a general misunderstanding that a high land price real estate market must have an accurate land boundary system. Being an internationally well-known and expensive land market, Hong Kong adopts only an approximate land boundary system which attaches to the deeds registration for all land grants from 1842 to the current year 2006. Land boundary conflicts are daily matters for land surveyors but court dispute cases surface only few times in a year. Using different epochs of land grants, this paper classifies the general accuracies and problems in land boundaries in Hong Kong. The typical boundary accuracy and serious boundary problems of each epoch are described. The types and trends of the boundary problems are thus grouped and analyzed.
When Hong Kong began as a colony, the government adopted a rudimentary deeds registration system to speed up land transactions. Leasehold land grants were made first in blocks in the newly opened districts. Afterwards, individual land grants were made. The simple land registration system has served the society successfully in providing reasonably secure ownership rights; however, in the one hundred sixty years of development after the enactment of the Land Registration Ordinance [Cap.128] in 1844, the protection and restriction of other land rights were not sufficiently contained in the lease conditions and the attached boundary plan. The Ordinance set up a means for the registration of all instruments affecting real and immovable property and all matters relating to land registration. Of course, the registration was only effective for recording land transaction; the legal result of the transaction was still uncertain.
Hong Kong land boundary problems root from the simple state of recording land rights by lease. At least in three major areas, a land lease, if not further assisted by improved conditional terms or controlled by laws, is not efficient in administering land use, land covenants and land boundary.
2. Lease rights
A land lease creates all land rights, including the land uses, covenants and public rights, land boundary rights, etc. A lease, by its conditions of use, controls the legally designated land uses. The lessees, with the change of legal land use, would sometimes be very much benefited. The government would in principle charge a premium for the difference of land use benefits if the new land use is allowed. There of course is a great impetus for the existing owner to avoid extra cost of land development, including the premium payable to government. The Melhado case [AG v Melhado, 1983] indicated that the government failed to use a land lease to restrict new land uses. Planning law is the consequence of such failure, and now legal land uses have been overall controlled using Outline Zoning Plans. In short, the function of land use control by a lease is challenged and the impetus of change is from the landowners.
In Hong Kong, when a piece of vacant land is developed into blocks of multi-storey real properties, it is the developer who has the thorough power to assign covenants to subsequent small flat buyers. In Hong Kong, local developers enjoy much freedom in the forming of a land management company. It is the so-called laisser-faire economy policy for which the Hong Kong government manages less and allows developers to make profits from real estates development.
The rather primitive boundary right provisions used in Hong Kong nonetheless remained sufficient as long as all other rights remained unimproved. Nevertheless, over the last century, a great majority of jurisdictions have improved their property systems from deeds registration to titles registration, and from a weak definition of land boundary to high accuracy and security in the land boundary system. Hong Kong's land boundary system remains largely unchanged and little improved.
In Hong Kong, a land lease would usually contain written dimensions and area of the subject lot. The verbal description alone is insufficient to give a clear provision for accuracy and security in the delineation of land boundaries. The attached survey plan is usually for identification only. Although not officially implemented in Hong Kong, the British General Boundaries concept has been applied to a large extent such that the exact boundary is left undetermined and the physical occupation features are deemed important. There is no law governing accuracy in the land boundary description, or governing amendments to a lot boundary by survey.