Printer Friendly Format

Page 2 of 3
| Previous | Next |

Hong Kong Land Boundary Problems – A Synthesis

3. New land registration and survey laws
Until 1995, Hong Kong had no land survey law, instead it had a land registration law intended to provide efficient transactions. Land boundary survey service had long been a sole function of the government land administration until the 1980’s when the private practicing land surveyors gradually came into the system.

In Hong Kong, the 1995 Land Survey Ordinance [Cap.473] prescribes that a land subdivision plan must be approved by an Authorized Land Surveyor (ALS). The law provides a structure of registration and administration of the ALS and the keeping of land boundary records by the government.

Figure 1, the Hong Kong land boundary survey system, shows the current land boundary survey functions includes definition survey, re-definition survey and subdivision survey. These services are provided by both private and government sectors. The land sale plans (land grant plans) and the Land Boundary Plans are treated as documents registered under the Land Registration Ordinance, whereas boundary survey information is kept by the Survey and Mapping Office.

The Land Titles Ordinance [Cap 585] was enacted recently in 2004, which was originated and managed by the Land Registry. Its primary concern is on the proof of ownership. To improve other rights such as boundary rights, easement, etc would involve other government departments. The Land Registry considered that the Land Titles Ordinance would aim to provide certainty of title and was not proposed to deal with land boundary issue. [Tang, 2004] pointed out that a clause on the registration of boundary plans in the new titles registration law was a must. In the meantime, the Boundary Advisory Committee of the Hong Kong Institute of Surveyors has a clear stance that the Hong Kong SAR Government should also tackle land boundary problems in the handling of the new Titles law. With the ultimate effort from the administration of the Survey and Mapping Office, there is eventually a section on the “Determination of Lot Boundaries”.

As seen from the report of the Bills Committee on Land Titles Bill, “the Administration (the Hong Kong SAR Government) has not proposed to provide any form of guarantee for land boundaries” [LegCo, 2004, p.33]. The term ‘guarantee boundary’ was a misquotation, and it was used as an excuse not to provide complete land boundary security to the society. The Bills Committee however supported the Director of Lands for a determination of lot boundaries. Determination of lot boundaries is by means of bearings, dimensions and coordinates. It is agreed that this clause should come into operation upon commencement of the ordinance in 2006, not to wait for the 12-year title incubation period. And, very importantly, the Administration intends to introduce a similar provision, probably under the current Land Registration Ordinance, to all the granted lots.

The determination must, however, conform to the original registered area and dimensions. As a survey may have subsequent changes from the original land grant, it is termed ‘re-alignment of lot boundaries’, which is not allowed at this moment. Section 119 of the report [LegCo, 2004, p.34] is quoted as follows:

119. As regards some members’ concern about the re-alignment of lot boundaries, the Administration confirms that the Bill does not contain any provision to address the issue of re-alignment of boundaries for lots in the urban area or in the New Territories. To re-align boundaries affecting private lots without seeking the agreement from the lot owners concerned may affect private property rights and may have human rights implications. Members are advised that the Director of Lands is now actively discussing with HYK (Heung Yee Kuk) on possible measures to address the issue.

In the Ordinance, Section 18, “Boundaries”, states that a plan refers in the Titles Register is only indicating the approximate situation and the approximate boundaries. Boundaries do not constitute a warranty. Section 89, “Discrepancy in area and boundary”, further states that a discrepancy disclosed by subsequent land survey would not constitute a claim to the indemnity of the titles system. Section 94, “Determination of lot boundaries”, allows the landowner of a whole lot (not sectioned lots) to apply to the Director of Lands on the registration of a survey plan which is provided by a private licensed land surveyor. The provision restricts the land to whole lot and not the sectioned lots. Indeed, most of the urban lots, probably 90 percent in number, were sectioned for the purpose of development. It now includes land in the New Territories; otherwise, this piece of law would find very limited applications.

The ordinance reflects that the government is very cautious in providing secure land boundary rights, although it has stepped out a very first pace to the registration of an updated survey plan, owing to the solicitations of land surveyors in the industry and the government.

In summary, the recent survey law has established a professional structure to handle land subdivision surveys and the recent registration law has just provided a means to register a re-definition land boundary plan, although it covers very limited area. In future, it is expected that similar boundary determination clause will be prescribed in the Land Registration Ordinance which covers all granted land.