The legal system of land and real estate in Hong Kong and its enlightenment to the mainland

[Abstract]]The real estate industry is the pillar industry of Hong Kong, and land revenue has always been the main source of finance for the Hong Kong government. For more than 150 years, Hong Kong's land and real estate registration system has made a significant contribution to Hong Kong's economic development. The author took the opportunity of studying in Hong Kong to focus on and think deeply about Hong Kong's land registration, real estate transaction and land acquisition system. This paper first summarizes the legal system of land and real estate in Hong Kong in general, then focuses on the land registration system, real estate transaction system and the land system in Hong Kong, and finally puts forward the enlightenment and useful reference of the legal system of land and real estate in Hong Kong on the basis of analyzing the above-mentioned system.

Key words]Contract registration system; title registration system; lawyer funds supervision; land system.

 

 

The 12-day training of 33 lawyers and lawyer managers to Hong Kong for foreign-related legal business organized by the Shandong Provincial Department of Justice and the Shandong Lawyers Association has been successfully completed, and all lawyers and managers have returned with a full load. I feel honored to have the opportunity to participate in this training in Hong Kong, and I would like to express my deep gratitude to the leaders of the Provincial Department of Justice and the Provincial Lawyers Association for this very meaningful learning opportunity for us.

Although the 12-day training task has ended, the author feels that the mission and responsibility of making Shandong lawyers bigger and stronger has just begun. For the author, this training in Hong Kong is an excellent opportunity to go out and learn advanced legal and cultural concepts and knowledge in developed areas. Therefore, I cherish it and gain a lot from the training. I not only have an overall understanding and understanding of Hong Kong's legal system, but also studied Hong Kong's land and real estate legal system based on the author's professional focus in the Mainland; I have not only met many well-known lawyers and barristers in Hong Kong, but also actively communicated with The lawyers and management personnel in the province communicated and forged a deep friendship. Through the training, the author learned that the legal system of land and real estate in Hong Kong follows the provisions of the Anglo-American legal system, and according to the current situation of every inch of land in Hong Kong, the legal system of making full and reasonable use of every inch of land has been formulated, which has achieved good results in practice, especially the complete disclosure system of land registration and inquiry, the lawyer's fund supervision system in real estate transactions and the feasibility of the land hook system, all of them provide us with good inspiration and experience for reference.

An overview of the legal system of land and real estate in Hong Kong in 1..

Hong Kong's land management system implements a land lease system under government ownership, in which the Hong Kong government grants land use rights for a number of years at a time and collects the sum of the discounted value of the land rent for each year throughout the term of the grant.

Hong Kong's land registration system for the land contract registration system, belongs to the typical contract registration system, that is, the emphasis on the parties, in real estate transactions, the parties to buy and sell the agreement is fully respected by the law, meaning is the most important factor of the change of property rights, and registration is only the change of property rights against the third party elements. The Hong Kong Land Registry is responsible for the registration of land, and only examines whether the form of the deed meets the statutory requirements, and does not do substantive investigation and verification. The registration is similar to the nature of the mainland. As a result, lawyers play an important role in real estate transactions and become substantive legal witnesses to contracts between the parties.

Prior to 1998, Hong Kong implemented a system of regular land sales. However, after the Asian financial crisis, the Hong Kong property market plummeted. At the same time, real estate companies stopped buying land, and land prices fell sharply, which severely impacted the Hong Kong government's land auction policy for many years. In order to ensure that the land will not be sold cheaply, the Hong Kong government suspended the land auction and implemented the land acquisition policy instead, and gradually formed a land acquisition system. After the cessation of regular land sales, land supply can only be carried out in the form of land requisition, which has become the only mode of land supply in Hong Kong at present.

2. Hong Kong Land Property Legal System

(I) Hong Kong Land Registration System

1. Relevant legal provisions of land registration

The legal system of land registration in Hong Kong began with the adoption of the Land Registration Ordinance on 28 February 1844, which is the earliest existing Hong Kong law and is still in use today. under this legislation, the land registration system adopted in hong kong is the land lease registration system. In recent years, the Land Registry's computerization of the register and the implementation of document imaging have made it easier to access land records under the deeds registration system, but the deeds register is only an index of registered documents and does not contribute to the efficiency of property conversion and handling. Every time a property transaction is conducted, lawyers must look through previous deeds to verify the relevant title, which is very inconvenient. If under the title registration system, the title registration record itself is proof of the existing title and interest in the property.

In 1988, the former Registrar General set up a working group to study the introduction of title registration in Hong Kong, taking into account the systems used in other comparable jurisdictions. On 7 July 2004, the Land Titles Ordinance was passed by the Legislative Council, but it will not come into force until a number of outstanding issues have been resolved. After the entry into force of the title Ordinance, the land registration system in Hong Kong will gradually transition from the land contract registration system to the land title registration system, but there will be a 12-year transition period during which the two registration systems will exist in parallel.

2. Land registration system

Land registration in Hong Kong is the responsibility of the Land Registry to enforce the registration and registration of land, real estate or real estate use rights affected by the Land Registration Ordinance on land, deeds, wills, property transfer certificates, judgments or powers of attorney.The land registration system is the current land lease registration system in Hong Kong,Register the details or key items of the deed documents relating to land rights. The main features of the system are:

(1) The conclusion of the contract adopts meaning autonomy, and the legal consequences of the change of land rights occur as long as the parties to the change of land rights agree to conclude the contract, with the contract as the entry into force element, and the land registration is only the element against the third party.

(2) The Land Registry conducts only a formal examination and does not guarantee that the person listed on the list is the owner of the land in question, let alone the legal effect of the deed on record.

(3) Land registration has no credibility, and deed registration is only a reference certificate of land property rights.

(4) There is no coercive force in the registration of land registration, and the government does not enforce the registration of land rights changes according to the wishes of both parties.

(5) After the completion of the land registration, the Land Registry does not issue land rights certificates to the right holders.

The main role of land registration in Hong Kong is to prevent secret and fraudulent property transfers and to provide a fast way to trace and determine the title data of real estate or immovable property.

3. Land Registration Agency

The land registry in Hong Kong is the Land Registry, which became the first government department in Hong Kong to operate as a trading fund in August 1993. The Land Registrar is the General Manager of the Land Registry Trading Fund. Under the trading fund model, the Land Registry remains a public organization, but it manages its own finances, with revenue derived from the costs of its services, and operates on a self-financing basis. In addition, the Fund has the autonomy to decide on capital investment projects to support departmental services and the flexibility to deploy staff to respond to clients' service needs. The annual report of the trading fund and the financial statements certified by the Director of Audit shall be tabled annually in the Legislative Council of the Hong Kong Special Administrative Region.

4. Conditions and procedures for land registration

Land registration in Hong Kong as long as the right holder has made an appropriate memorandum, which is verified and signed by a registered practicing lawyer in Hong Kong and then obtained to the local Land Registry, the Registrar must register the memorandum. The lawyer shall be responsible for the authenticity of the memorandum and registration materials. The Land Registry does not conduct a substantive review of the materials and does not assume responsibility for the authenticity of the registration materials. The memorandum for registration must include:(1) the date of the deed or instrument;(2) the purpose and nature;(3) the name data of the parties to the instrument;(4) the name and data of the witnesses;(5) the description of the land/property affected;(6) the location of the land/property;(7) to whom and the remuneration paid; and (8) other required data.

5. Land Registration Query

The main purpose of keeping land records in the Land Registry is to facilitate property transactions. While carrying out land registration, it also pays special attention to the publicity function. The public can publicly check all kinds of land records, which fully protects the right to know of the third party in the transaction.

(1) Types of land records

A. Land register. It contains information on the owners of each property and whether the property has registered rights, such as statutory charges, releases, contracts of sale and purchase, court orders, etc.

B. Registration Summary. A registration document in a form specified by the Land Registrar, containing a summary of the deeds sent for registration therewith.

C. Register Summary Log. The record of the "Summary of Registration" sent daily for registration contains a summary of the important information of each "Summary of Registration.

D. Government Leases. A lease of land leased by the Government, including documents stating the extension or variation of the terms of the lease, and any agreement to lease by the Government, such as a new lease of land, terms of sale, terms of grant, terms of exchange, etc.

E. Collective Government Leases. A lease of land issued for the purpose of measuring/surveying an agreement or lot, including the conditions of the lease, and a schedule showing the name of the owner, area, class and annual rent of each lot.

At present, all Land Registers in the Land Registry are computerized and all memorial registers, government leases and collective government leases have been imaged.

(2) Types of search books

A. computerized land registers. A4 size computer-printed information containing the same property information as contained in the land register.

B, document image book. A copy of the A4 size image file, the original is an electronic image stored on the CD.

C. Land records kept in paper form. The original of such records is available for inspection or photocopying.

(3) Check method

A. In-person search at the Land Registry's search center, you can consult the computerized land register and obtain image copies of documents; inspect the original land documents; inspect the memorial log and obtain copies of individual entries in the memorial log.

B, online search service

Integrated Registration Information System: http://www.iris.gov.hk

Land Registry Website: http://www.landreg.gov.hk

(II) Hong Kong Real Estate Transaction System

1. Relevant legal provisions

According to the provisions of the Conveyancing and Property Ordinance of Hong Kong, the meaning of "land" is very different from that of the Mainland, including:(1) where there is flooding;(2) the land or any estate, right, interest or easement thereon;(3) the whole or part of the indivisible fraction of the land, and land or any estate, right, interest or easement thereon;(4) things attached to land or things secured to any such thing. It can be seen that the "land" in Hong Kong includes not only the land, riverbed or seabed, but also the tangible parts such as objects attached to the ground, that is to say, "the integration of premises". Therefore, the contract registered by the owner in the land registry actually includes both the land and the real estate, and it is also transferred together at the time of transfer, and the two are inseparable.

2. Verification of ownership

Since Hong Kong adopts the deed registration system, the property registration conducted by the owner in the land registration department has no credibility, so the owner of a property registered in the land registry is not necessarily the real owner of the property. When the lawyer purchases the property on behalf of the client, in order to protect the rights and interests of the client, he will review the title deed. According to the Concession and Property Ordinance, the seller is required to have a good title to the property and, unless otherwise agreed in the land sale contract, the seller is required to produce a government lease of the land and all relevant deeds for the whole period from the first deed of title transfer or statutory charge relating to the whole title of the property for a period of not less than 15 years retroactive to the date of the sale contract; if the Government lease is granted within 15 years before the date of the contract of sale and purchase, the Government lease shall be the first deed.

In the course of the property transaction, the buyer's lawyer's title verification workload and responsibility are relatively large, specifically, the buyer's lawyer needs to do the work can be summarized as follows:

(1) The deeds handed in by the seller shall be checked against the records of the Land Registry to verify whether there are any missing documents; and the solicitor shall note that the deeds are fully registered in the Land Registry.

(2) To see if any registered encumbrances have not been discharged to ensure that the title acquired by them will not be restricted by those encumbrances.

(3) The validity of the execution of a document shall be checked, and in the case of a deed executed by an individual, the conformity of his name, identity card number and signature in the deed at the time of purchase and sale; and in the case of a deed executed by a corporation, the seal of the corporation shall be affixed with the name of the corporation.

(4) When examining the deed, the buyer's lawyer may, if he has any doubts about the seller's title, make an inquiry in writing to the other party within the time limit specified in the contract of sale.

3. Purchase and sale contracts

Under the Conveyancing and Property Ordinance, land contracts must be in writing before they can be brought to court. At present, common written property sale and purchase contracts include provisional sale and purchase contracts signed at property Correspondent Bank and formal sale and purchase contracts signed at law firms, which are designed to replace provisional sale and purchase contracts and specify the terms of the transaction in detail. According to the model formal sale and purchase contract adopted in Hong Kong, its important provisions mainly include:

(1) the names of the contracting parties;

(2) Subject words with legal effect;

(3) the price of the property;

(4) The delivery time and treatment of the house price according to the gold and the balance;

(5) Date and method of transaction;

(6) whether to deliver the property to the buyer;

(7) Performance on time, etc.

In the schedule to the contract, the description and address of the property concerned, the lot number and section number, the undivided equal share, the term of the Government lease, etc. should be set out.

4, The Role of Hong Kong Lawyers in Real Estate Transactions

(1) Hong Kong lawyers are involved in almost all real estate development businesses

Hong Kong real estate development enterprises generally have to entrust a law firm to handle the whole process of real estate development legal services, involving: land lease, land construction, cooperative joint construction, dealing with the relationship between developers and builders, developers and banks and many other aspects.

(2) Hong Kong lawyers are involved in almost all property transactions

In terms of the sale of first-hand housing, the developer entrusts a law firm to handle: the interpretation of the sale and purchase contract, the interpretation of relevant laws, the signing of the contract, the handling of loan procedures, the transfer of housing ownership, etc.; the sale and purchase contract is a unified document drafted by lawyers and formulated by the Hong Kong government.

In terms of second-hand housing sales, after the buyer and the seller sign a temporary agreement, professional lawyers will conduct housing ownership and related investigations for the buyer and seller, sign formal sales contracts, loan documents, and handle housing ownership transfer procedures; among them, the sales contract is A unified document formulated by the Hong Kong Lawyers Association.

(3) Lawyer funds supervision system.

In the legal system of real estate transactions in Hong Kong, there is a lawyer's business that is different from that in the mainland, which can be used as a useful reference for mainland lawyers, that is, owners hand over their own funds such as house purchase money to lawyers for supervision. In the process of fund supervision, lawyers should pay developers according to the progress of the project, which can restrain development enterprises and construction enterprises and avoid unfinished buildings. This practice is very common in Hong Kong, and it is also effective for both parties in real estate transactions. At the same time, it fully reflects the relatively high credibility of Hong Kong lawyers. Of course, for lawyers, the supervision of funds is risky, but it is also paid. Generally speaking, after receiving the client's funds, the lawyer will open a separate bank account for the client, which is managed by a senior partner of the firm. The funds in the client's account are not enforced by the court due to the bankruptcy of the law firm, which is more secure for the client, and even if individual lawyers illegally misappropriate that part of the funds, the owner can apply for a claim through the law firm or according to the insurance purchased by the law firm.

(III) of the Hong Kong land application system

1, the news link

(1) At the end of September 2009, Shanghai has launched the Shanghai version of the "hook land" system, and the 8-1 commercial and commercial plot of the Bund financial agglomeration zone located in Huangpu District has become the first piece of Shanghai's pilot "hook land.

(2) On October 22, Shanghai launched another plot that requires "pre-application"-the 163 neighborhood plot in Huangpu District, east to Jiangxi Middle Road, south to Nanjing East Road, west to Henan Middle Road, and north to Tianjin Road, the use of commercial, office, financial and insurance and other comprehensive land, the plot covers an area of 1.37 hectares.

(3) On October 27, it was reported from the Shenzhen Municipal Planning and Land Resources Commission that the city would try out the "land system. At present, the plan for the trial implementation of the "land system" in Shenzhen has been drafted, and the draft plan is expected to be implemented in the near future after being reviewed and approved by the municipal government.

2, the meaning of the land system.

In mid-January 2006, the Ministry of Land and Resources drafted the "Regulations for the Transfer of State-owned Land Use Rights by Bidding, Auction and Listing (Draft for Comment)" and proposed that "where conditions permit, a land system can be established".

The main implementation steps of land acquisition are to apply for land acquisition to units and individuals who are interested in using specific land parcels, and promise the land price they are willing to pay; if the municipal and county land and resources management departments think their commitment is acceptable, they will sell the land by bidding, auction and listing; the applicant shall participate in the bidding, auction and listing and the quotation shall not be lower than the promised price. However, due to the great controversy over the land reference system in the mainland at that time, the final document "Specification for the Transfer of State-owned Land Use Rights by Bidding, Auction and Listing (Trial)" did not establish the content of the land reference system.

3, the origin of the land system.

The land application system originated in Hong Kong. Before 1998, Hong Kong implemented a land sale system on a regular basis. However, after the Asian financial crisis, the Hong Kong property market plummeted. At the same time, real estate companies stopped buying land, and land prices fell sharply, which severely impacted the Hong Kong government's land auction policy for many years. In order to ensure that land is not sold cheaply, the Hong Kong government suspended land auctions and implemented a land-grabs policy instead. After the cessation of regular land sales, land supply can only be carried out in the form of land supply, which has become the only land supply method currently adopted in Hong Kong.

4, the advantages and disadvantages of the land system.

(1) The advantages of the land-use system include:

A. Before the land enters the public bidding process, developers have already made bids, and there will be no unsold auction, thus avoiding the waste of government manpower and material resources. B, in addition to the land developers bid in line with the government's requirements, the government can "cover" the land not to let, the land price has a supporting role. C. In the process of land acquisition, land developers can first negotiate with the government on land use, technical indicators and other details to "optimize" the land, so as to make the land products closer to the market demand. D. Due to the early participation of the market, the government will have a fuller basis when setting the bidding floor price, and can enhance the government's ability to set reasonable prices.

(2) The disadvantages of the land use system include:

A. Since the government has the right to "cover" the land and not sell it, in the long run, the price of land may remain high, leading to a contradiction between supply and demand.

B. Another result of the government's "covering" land is that the land supply is tight, which is not conducive to the development of urbanization.

The Enlightenment of 3. Hong Kong Land and Real Estate Legal System to the Mainland

1. Implications of the land registration and publicity system for the Mainland

Through the previous description of the Hong Kong land registration inquiry, it can be seen that the publicity of Hong Kong land registration is very strong, and the publicity measures are comprehensive and detailed, and the inquiry is convenient, which fully protects the right to know of the third party to the transaction and protects the security of the transaction.

In contrast, the real estate ownership registration information and registration results of many cities in the mainland have not been publicly inquired, and confidentiality is overemphasized. Generally, it is only disclosed to the real estate registration management personnel, the right holders themselves, and the public, procuratorate, and legal agencies. It is very inconvenient to inquire about land and real estate registration in the mainland. On the one hand, when inquiring about land and real estate registration information in the Mainland, it is often necessary to go to different government departments such as the land registration department and the housing management department; the second is that the right of ordinary people to inquire about land and real estate registration is greatly restricted, and the opening is very small; The third is to restrict the investigation power exercised by lawyers. When the land registration department and the real estate management department conduct investigations by lawyers, it is often required to produce materials such as the notice of filing a case, the power of attorney, the client's identity certificate, and the lawyer's certificate, which far exceeds the provisions of the Lawyers Law.

The comprehensive and meticulous, convenient inquiry, complete disclosure and protection of transactions in Hong Kong's land and real estate registration have achieved good results in practice, encouraging and protecting transactions to a large extent, and fully reflecting the democratization and openness of the legal system in Hong Kong. The author believes that Hong Kong's land registration publicity system is a good inspiration and useful reference for the mainland. Some time ago, the Construction Engineering and Real Estate Business Committee of the Jinan City Lawyers Association of the province collected opinions from the city's lawyers on the city's land and real estate registration inquiries. The management department proposed and conducted communication and consultation, with a view to solving the problem of limited lawyers' investigation rights in land and real estate from the city. At present, this work is in progress. The author thinks that this is a very meaningful exploration. It is not only a matter of expanding lawyers' investigation power, but also a good time to realize the administration according to law, open administration and transparent administration in the mainland. The author suggests to learn from the advanced practices of Hong Kong for useful exploration.

2, the lawyer fund supervision system to the mainland's enlightenment.

Regarding the issue of fund supervision, Shanghai once issued the "Shanghai Real Estate Mortgage Measures", and stipulated that social intermediary agencies can engage in construction project fund supervision business. Of course, social intermediary agencies include law firms, notary offices, auditor firms, and accountants. Firms, supervision companies, and real estate consulting companies. This provision was still a new thing in the mainland at that time, and there was still a lack of operational experience in practice. From the actual operation later, the business of capital supervision of construction projects is basically operated by banks.

So can mainland lawyers learn from the practices of Hong Kong lawyers to carry out capital supervision business? In fact, when I first entered the legal profession, I had faced this problem, but at that time there was no clear concept of the risks and benefits of lawyers engaged in capital supervision business, and simply thought that as long as I could carry out one more business, I would have more profits. It can be said that this question has been accompanied by the author through a few years of lawyer career. It is with this question that I stepped to the dreamy international metropolis-Hong Kong, and found an answer here that can convince myself, that is, when the conditions are ripe, mainland lawyers can completely develop Lawyer fund supervision business. Although this answer is not very clear, the author firmly believes that the development of lawyer business is a gradual process, and the development of any business must have a beginning, and then it is popularized. Lawyers engaged in capital supervision business has its own advantages, but the lack of the general public acceptance and recognition of the environment. Therefore, mainland lawyers who want to devote themselves to the business of capital supervision can learn from the mature experience of Hong Kong. The author believes that the following aspects can be used as the direction of efforts:

First, we can first explore the business of capital supervision from law firms with large material conditions and good social reputation;

Second, the law firm can explore the business from existing clients, and if necessary, provide property guarantees for clients;

Third, real estate professional lawyers can start from real estate development, real estate mortgage loans, building sales, property management and other aspects, through the agent of customer management, payment of project progress to bring real benefits to customers to achieve a breakthrough.

Fourth, it is possible to purchase high-level insurance so that customers can rest assured that the funds will be placed in the custody and supervision of law firms.

3. Implications of the land system for the Mainland

The land application system has once become the focus of discussion and dispute in the mainland, including in the "specification for the transfer of state-owned land use right by bidding, auction and listing (Draft for comments)" in early 2006, it was proposed that "the land application system can be established where conditions permit", but the content was not established in the final version.

Because the land hook system effectively prevents the phenomenon of unsold auctions in land bidding and to a large extent guarantees the interests of the government, it has been favored by local governments in various places. Recently, many prefectures and cities have learned from the Hong Kong model. The "water" hook-up system once again caused an uproar in public opinion. Although there are different opinions on the system from all walks of life in the mainland, it must have its merits if it can be implemented in Hong Kong for more than ten years. Especially according to the practice of introducing the system from abroad in the past, the good or bad of the system itself is often not important. What matters is whether it can meet the local actual situation and promote the development and progress of the local society, and whether these are "can" or "no", you have to wait until you try to know the result. Therefore, the author suggests that we might as well carry out pilot and exploration in some cities first, and gradually improve and accumulate experience in the process of pilot and exploration. Perhaps in this process, we can also realize the advanced theoretical system suitable for local development.

In addition, the author believes that the current practice of Shanghai and Shenzhen to learn from Hong Kong's experience and introduce the land system is worth learning, and no matter whether the system can bring economic benefits and benefits to the local area, and how much economic benefits and benefits it can bring. At least being good at studying and learning new things, daring to challenge new things, and daring to accept new things is worthy of our admiration and learning.

Finally, putting aside the land system and the practice of Shanghai and Shenzhen, it is said that the Shandong lawyer delegation's visit to Hong Kong for training is a breakthrough and a pioneering work. It is to make unremitting efforts to establish a large and strong province of lawyers. As a member of Hong Kong to participate in the training, he should strive for it, and have the responsibility and obligation to share everything he has learned with the public to create a new chapter in Shandong's lawyer career.

 

 

 

        

(The author is a lawyer of Zhongcheng Renhe Law Group (Jinan) Firm)