THE UNIVERSITY OF HONG KONG

DEPARTMENT OF LAW
LAND LAW III (CONVEYANCING) (2023-2024)
LECTURE NO. 1(Part B)

FORMATION OF LAND AND OTHER PRELIMINARY ISSUES

1. Unique landholding system in HK and historical features

(a) Nanjing Treaty (1842): Cession of Hong Kong Island

(b) Convention of Peking (1860): Cession of Kowloon Peninsula

(c) 2nd Convention of Peking (also known as Convention for

Extension of Hong Kong Territory) (1898): ‘Lease’ of New
Territories for 99 years1 until handover in 1997

(d) ‘Leasehold’ land except St Johns Cathedral

(e) ‘Co-ownership’ in multi-storey buildings (c.f. strata title楼层所

有权/Torrens system)

(f) Deeds Registration System: Ownership defined and proven by

‘transactions’ (i.e. ‘chain of title’)

Operated under Land Registration Ordinance 律师需要核实过往所有交易，

户主也要保管好所有历史文件，并在转让时交给该交的人。

(g) Applicability of Chinese Customary Law to the New Territories

Land, Succession, Marriage (pre 1970) and ‘Clan’ (Tso’/Tong)
management
Tso/Tong祖堂: legal ownership vested in a manager (registered under
NTO), equitable ownership for life vested in the male members of the clan –
need to consult experts in real case
clan宗族, family家族

1
Li Kwok Ching v. Secretary for Justice HCA 1303/2010 “Peking Convention” was not strictly a
lease and the HKSAR Government is not a true ‘reversioner’ but merely stepped into the shoes of the
British Colonial Government (argument not pursued in CA), Lee Siu Fong v. Wong Wan Leung &
Ors HCA 122/2012
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 (h) Building and Planning Controls (Lecture 6)
Planning controls: focus on promoting health safety and general welfare and
community – rules found in Town planning Ordinance, statutory plans, HKBSG
Building: focus on planning deciding constructions and buildings – rules found
in building ordinance, practice issue by Building Department

2. Definition of “Land”
Difference definitions in statues: s2 of CPO, s3 of Cap1, s3 of Limitation
Ordinance, s2 of Land Resumption Ordinance
(a) Fixtures v. Chattels (covered in Land I, s.2 CPO)
Land includes anything fixed on it.
“Part and parcel of the land itself”: modern law no longer applies the
two-fold distinction between fixtures and chattels -> now 3 categories: 1)
chattel; 2) fixture; 3) part and parcel of the land itself (Items which have
become an integral part of the building and are completely part of the land,
or part of the structure are considered to be part of the actual land itself
Examples of this are doors or windows etc.)
Fixture vs chattel: “degree of annexation” + intent (objectively assessed)

(b) “Cuius est solum, eius est usque ad coelum et ad inferos” (the
owner of the surface is entitled to the surface itself and
everything below it down to the centre of the earth, everything
under the sky / Whose is the soil, his is also that which is above it
/ Whoever owns the soil it is theirs all the way to Heaven and all
the way to Hell). This principle could be restricted in various
ways.

i. Subterranean land: In Hong Kong, a Government lessee’s

rights to ‘underground land’ are usually restricted for various
purposes (s3 of Mining Ordinance): e.g. conduits to utilities
placed below the surface, minerals and mineral oils belong
to the Government.; cf the owner of the surface of land was
the owner of the strata beneath it, including the minerals
which were to be found there, unless there had been an
alienation of it by a conveyance, at common law or by
statute to someone else: BocardoSA v. Star Energy UK
Onshore Ltd [2010] UKSC 35 (SC) - any effect on HK?
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 ii. Aerial Space: Prima facie a demise of premises includes the
air space above the premises demised: Kelsen v. Imperial
Tobacco [1957] 2 QB 334, Kayway Investment v. Focus
Winner [2016] 5 HKLRD 267 (CFI). To the extent that a
government lessee has rights to airspace, current overseas
decisions tend to restrict this to such airspace that is
‘necessary for the ordinary use and enjoyment of the land’:
Lord Bernstein v Skyviews [1978] QB 479 (aircraft at safe
and reasonable height); A three-dimensional quantum of
airspace can exist in law as an independent unit of real
property and such airspace can be leased: Fordtime
Industrial Ltd v. Yip Shing Lam HCMP 1373/2014 (CA).
The right to airspace is also restricted by reference to the
flight of aircraft. Aircraft flying in a reasonable manner
through the air space over land is permitted and protected
by section 8(1), Civil Aviation Ordinance (Cap 448): ‘No
action shall lie in trespass or in respect of nuisance, by
reason only of the flight of an aircraft over any property at a
height above the ground which … is reasonable….’.

3. Parcels of Land in Hong Kong and Nomenclatures术语表

(a) Former Urban Land Registry and District Land Registries

Now computerized in Land Registry

(b) HK and Kowloon: Inland Lots, Marine Lots, Saukiwan Lots,

Kowloon Inland Lots, Garden Lot, Rural Building Lots, Taxlord
Lots…

(c) NT New Towns/New Kowloon: New Kowloon Inland Lot,

Town Lots (mostly for new towns in NT)

(d) Rural NT: Demarcation Districts (below) (“DD Lots”)

4. Demarcation划界 of Land Boundaries

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 (a) HK Island/Kowloon Lots: Defined by Government leases and
‘plans’ registered in Lands Registry

(b) New Territories: Survey over Hong Kong in 1899-1904 (i.e. the
Indian Survey- ‘Tate and Newland’)

i. Formation of “Demarcation Districts” (400)

ii. Setup of Land Court

iii. Issuance of “Block Crown Leases” (including Schedules)

(c) DD Plans”2 being the ‘benchmark’ for defining ownership and its
problems under the ‘deed registration system’3:-
Key: ascertain parties’ intention

i. Rudimentary boundaries - subsequent surveying records (by

government or private) are for ‘reference/identification’
only, low resolution, conflict between plans

ii. “Double Lot Sheets”: “Field Number” vs. “Lot Number”

causes confusion4

iii. Lot Index Plans or other professional plans (or even aerial
photos) are ‘post contractual’ materials which cannot be
used as benchmark, or even inadmissible5

iv. Change of terrain, land features (landfill/landslide),

encroachments/fences, change of land use

v. Conflict and discrepancy of demarcation in title deeds: Deed

polls/ Contracts/ Assignment plans (often not to scale,

2
https://www.landsd.gov.hk/en/images/doc/smo_old%20lot%20boundaries.pdf
3
History of HK Cadastral System: Demarcation District Survey (1898-1905):
http://cadastre.lsgi.polyu.edu.hk/1898.html (Department of Land Surveying and Geo Informatics,
HKPU)
4
Land Surveyor Wordpress (Edmund Cheung):
https://hklandsurveyor.wordpress.com/2012/06/10/explanatory-notes-on-demarcation-district-sheets-
dd-sheets/
5
“Reality Versus the Legality of DD Sheets” by SC Leung et al. (2008) at
https://ww.hkis.org.hk/ufiles/2008-scleung.pdf
4
 erroneous drawings, poorly prepared by conveyancing
clerks, wrong numbers/colors/color codes, wrong size,
wrongful copying of contents from previous title deeds)

vi. Computerization of copies of deeds only in low resolution

and black and white format in the early days, lack of
checking (no checking at all in fact!)

vii. Land descriptions without plan, plans for ‘identification

purposes only’, “more particularly delineated” in plans,
conflict with verbal descriptions

viii. Further complications: further partitioning of land parcels

and errors (below), lost title deeds, squatter registration with
“squatter controls unit”, STWs entered with government,
adverse possession, leases to third parties, acquisition of
easements (implied grant (necessity etc.), lost modern grant),
resumption

(d) Land Survey Ordinance: Requirement for Land surveyor to

draw up certified plans when executing a deed poll (since 1995)

But what if the sectioning records of professional surveyors hired

by different owners ‘conflict’ one another?

(e) Approach to boundary disputes: “Contractual”

i. Yam Yun Fai v. Yip Siu Hung [1992] 1 HKLR 346: Look
at the ‘operative provision’ (usually the verbal description of
the assignment) or ascertain the intention from other parts of
the deed

ii. Green Park Properties v. Dorku [2001] 1 HKLRD 139

(CA), (2001) 4 HKCFAR 448 (CFA) (effect of plans for
“identification purposes only” effective to elucidate the
parcel clause

iii. Secretary for Justice v. Wing Lung Wai Community

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 [1999] 3 HKC 580: Matter of construction of conveyance
including the parcel clause and the plan in light of
surrounding circumstances

iv. Harvest Rise v. Ling Yau Yung [2002] 2 HKLRD 378 (G.
Ma J): The Court may modify or even supply words (i.e.
rectify) a contract to give effect to parties true intention.
Plans may prevail over verbal description if said to be “more
particularly delineated and described”.

5. Sectioning of Land

(a) By ‘deed poll’ (not “indenture”)

Indenture: deed made by two or more parties and contained mutual
covenants 剪开后边缘不平整， 双方能通过严丝合缝地拼起来来确定这
份契据是他俩签订的
Deed poll: deed made by one party 边缘光滑平整

(b) Illustration (see also Annex)

1. “Lot 123” (to be divided into two sections)

2. “Section A of Lot 123” (to be further divided into 3 subsections)

and
“Remaining Portion of Lot 123” (to be subdivided into 2
sections)

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 3. “Subsection 1 of Section A of Lot 123” (to be further
divided into 2 subsections) + “Subsection 2 of Section A of Lot
123” + “Remaining Portion of Section A of Lot 123”
and
“Section B of Lot 123” and “Remaining Portion of Lot
123”

4.  “Subsection A of Subsection 1 of Section A of Lot

123” + “Remaining Portion of Subsection 1 of Section A of Lot
123” + “Subsection 2 of Section A of Lot 123” + “Remaining
Portion of Section A of Lot 123”
and
“Section B of Lot 123” and “Remaining Portion of Lot
123”
目的是不管怎么分都知道这块地的来源是哪块地
6. Subdivision of land (between co-owners)

- By Deed of Mutual Covenant (covered in BM Lecture)

7. Partition of land under the Partition Ordinance (Cap. 352) (not

examinable)

- Section 4-5: Partitioning by parcels of land(limitation: buildings),

Power to apportion rights and create easements

- Section 6: Power to order sale of property

- Wong Chun Kei Johnny v. Poon Vai Ching [2007] 1 HKLRD

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825 (Recorder Fok J):

 Co-owner has basic right to rid himself of shackles of co-

owners

 Where it is impracticable to make an order for partition, the

Court should make an order for sale.

 Whether an order for sale is beneficial to all co-owners is not

determined by the dissent of the opposing owners but
objectively by the Court. No order for sale when the interests
of parties be better served to remain as co-owners or that the
order would result in hardship.

Balancing between P’s detriment and D’s detriment – look at the

practical consequence of the grant of sa le

Hei-Ching Chan
(adapted from Adrian But’s outline)
September 2023