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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
Email: lstang@polyu.edu.hk, ls.yau@polyu.edu.hk
Abstract
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.
1. Introduction
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.
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.
Figure 1 The Hong Kong land boundary survey system 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.
4. Land boundary records
Land boundary problems are technically land boundary record problems. Verifying lot boundaries in Hong Kong is just like verifying the title from the chain of deeds. To verify title in Hong Kong, it takes a trace of transaction history within 15 years. To verify land boundary in Hong Kong, it usually takes a trace back to the day of original grant. The motto “subject to best available evidence” gives a concise description on the redefinition survey operation – a surveyor has to search for all available boundary evidences. The efficiency of the survey system would be much improved if there is a central agency keeping all necessary boundary records – similar to that of a title register.
In the urban area of Hong Kong Island and Kowloon Peninsula, real estate developments are prosperous. A typical life cycle of a building varies from 30 to 50 years. Not to mention historical or cultural records, at least the government has good survey records to trace back last development just a few decades ago. There are minor boundary discrepancies in urban lots where too many of them did not have completed lease survey procedure. The earlier the lots, the larger the area and the more chances of subdivisions; these early sectioning exercises served well for identification purpose but are insufficient to match the exact plan dimensions on ground.
The New Territories, which previously was the rural area, developed new towns since the 1970’s and now houses a population of 3.2 million out of the total 6.9 million total population in Hong Kong [CEDD, 2006]. In new towns, the government resumed village house land and the surrounding agricultural land, and replaced them with new town lots; survey records are updated. For the old villages and agricultural lots, these are the land classified as Old Schedule Lots and New Grant Lots. The basic land boundary records were established during the Demarcation District Survey period from 1899 to 1904. In 1905, the government made 477 Block Crown Leases covering the New Territories. Afterwards, land sales were made piece by piece, and were termed New Grants. Those records are listed in Table 1.
As the New Territories was only a borrowed land of a limited time, the previous New Territories Administration had no political interests to improve the crude land boundary records. Some severe area deficiency cases occurred. For examples, the Lintock case [Lintock v AG, 1985] decided that a registered 1.27 acres of agricultural lot was reduced to a 0.01 acre of house lot, and the Tam Mo Yin case [Tam et al v AG, 1995] showed a claim of 274,638 square feet of land in excess of the original land-sale area of 966,130 square feet in 1931. Typical land boundary record accuracy for agricultural land is about 2 to 4 meters. To use a land boundary to a pencil width is the attitude of a landowner today, yet the land boundary record was done 100 years ago.
Running precise survey to administer land by present land use standard over a crude legal land boundary record is something in itself absurd. It worked for a long time when the government action was equivalent to law. In recent decades, landowners would take the government to court for land boundary disputes – when the involved benefits were large enough. Nowadays, land boundary surveys are performed by private land surveyors. Their services are highly professional but the survey result would not necessarily be accepted by government or acquired any definite legal effect.
Usually, unnecessary land boundary disputes surfaced where the costs are bared by the small landowners. Large developers, with their political influences and bargaining power with government, have an edge to use land boundary defects to their advantage. In developing a large area a developer would seek all kinds of help from the Lands Department. One usual administrative tool is the “surrender and re-grant” such that old problematic lot boundaries were wiped out and a newly surveyed lot would be granted.
5. Concluding remarks
To upgrade and provide secure rights on the extent of a property is certainly the duty of a government. In the coming era of e-government, spatial data infrastructure would necessarily be built on accurate property boundary layer, otherwise, cost and responsibilities cannot readily be estimated at the land parcel level, and developments are unnecessarily retarded. Opposite voices are always based on the huge cost of survey, which is untrue and there are successful cost-effective cadastral reform examples. We need a willing and able government to take the lead to break the inertia. It is difficult, so there are always rooms for improvement.
ReferenceTable 1 A list of boundary records being used in New Territories, Hong Kong
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.
1. Introduction
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.
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.
Figure 1 The Hong Kong land boundary survey system 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.
4. Land boundary records
Land boundary problems are technically land boundary record problems. Verifying lot boundaries in Hong Kong is just like verifying the title from the chain of deeds. To verify title in Hong Kong, it takes a trace of transaction history within 15 years. To verify land boundary in Hong Kong, it usually takes a trace back to the day of original grant. The motto “subject to best available evidence” gives a concise description on the redefinition survey operation – a surveyor has to search for all available boundary evidences. The efficiency of the survey system would be much improved if there is a central agency keeping all necessary boundary records – similar to that of a title register.
In the urban area of Hong Kong Island and Kowloon Peninsula, real estate developments are prosperous. A typical life cycle of a building varies from 30 to 50 years. Not to mention historical or cultural records, at least the government has good survey records to trace back last development just a few decades ago. There are minor boundary discrepancies in urban lots where too many of them did not have completed lease survey procedure. The earlier the lots, the larger the area and the more chances of subdivisions; these early sectioning exercises served well for identification purpose but are insufficient to match the exact plan dimensions on ground.
The New Territories, which previously was the rural area, developed new towns since the 1970’s and now houses a population of 3.2 million out of the total 6.9 million total population in Hong Kong [CEDD, 2006]. In new towns, the government resumed village house land and the surrounding agricultural land, and replaced them with new town lots; survey records are updated. For the old villages and agricultural lots, these are the land classified as Old Schedule Lots and New Grant Lots. The basic land boundary records were established during the Demarcation District Survey period from 1899 to 1904. In 1905, the government made 477 Block Crown Leases covering the New Territories. Afterwards, land sales were made piece by piece, and were termed New Grants. Those records are listed in Table 1.
As the New Territories was only a borrowed land of a limited time, the previous New Territories Administration had no political interests to improve the crude land boundary records. Some severe area deficiency cases occurred. For examples, the Lintock case [Lintock v AG, 1985] decided that a registered 1.27 acres of agricultural lot was reduced to a 0.01 acre of house lot, and the Tam Mo Yin case [Tam et al v AG, 1995] showed a claim of 274,638 square feet of land in excess of the original land-sale area of 966,130 square feet in 1931. Typical land boundary record accuracy for agricultural land is about 2 to 4 meters. To use a land boundary to a pencil width is the attitude of a landowner today, yet the land boundary record was done 100 years ago.
Running precise survey to administer land by present land use standard over a crude legal land boundary record is something in itself absurd. It worked for a long time when the government action was equivalent to law. In recent decades, landowners would take the government to court for land boundary disputes – when the involved benefits were large enough. Nowadays, land boundary surveys are performed by private land surveyors. Their services are highly professional but the survey result would not necessarily be accepted by government or acquired any definite legal effect.
Usually, unnecessary land boundary disputes surfaced where the costs are bared by the small landowners. Large developers, with their political influences and bargaining power with government, have an edge to use land boundary defects to their advantage. In developing a large area a developer would seek all kinds of help from the Lands Department. One usual administrative tool is the “surrender and re-grant” such that old problematic lot boundaries were wiped out and a newly surveyed lot would be granted.
5. Concluding remarks
To upgrade and provide secure rights on the extent of a property is certainly the duty of a government. In the coming era of e-government, spatial data infrastructure would necessarily be built on accurate property boundary layer, otherwise, cost and responsibilities cannot readily be estimated at the land parcel level, and developments are unnecessarily retarded. Opposite voices are always based on the huge cost of survey, which is untrue and there are successful cost-effective cadastral reform examples. We need a willing and able government to take the lead to break the inertia. It is difficult, so there are always rooms for improvement.
Reference
- AG v Melhado, 1983. Attorney General v Melhado Co Ltd, Appeal Court, HKLR 327.
- CEDD, 2006. New Towns and New Major Urban Developments, Hong Kong : The Facts, Civil Engineering and Development Department, published by the Information Services Department, Hong Kong Special Administrative Region Government.
- LegCo. (2004) Report of the Bills Committee on Land Titles Bill to the Council meeting on 7 July 2004 [CB(1)2276/03-04], Legislative Council, Hong Kong, pp33-34.
- Lintock v AG, 1985. Lintock Co Ltd v Attorney General, High Court Action No 5820 of 1982. Judge Hunter, 4 November 1985.
- Tam et al v AG, 1995. Tam Mo Yin & Anor v Attorney General & Others, High Court, Miscellaneous Proceedings No 1868 of 1994, Judge Yam, 30 October 1995.
- Tang, C. (2004). "Legal sanction of Boundary", The Hong Kong Institute of Surveyors Journal, Volume 15, Issue 1, July, 2004, pp.72-80.