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The system of co-ownership of land in Hong--英国论文代写范文精选

2015-11-13 | 来源:51Due教员组 | 类别:更多范文

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香港大学assignment范文:The system of co-ownership of land in Hong Kong
Multi-unit Development
There are a few urban housing models existing in modern housing developments. In Hong Kong (and also in countries as Canada and the United States of America), if certain facilities, or common areas, such as parks, entrance halls, pipework for common uses, parking places, water, electrical, gas supply, telecom services etc., are shared by several homes or common residential areas in multi-floor residential buildings (flats), villas, town houses, or stand-alone houses, then this kind of development is called multi-unit development (MUD), or in United States, Common Interest Development (CID).
In Hong Kong, the type of Multi-Storey Buildings is included in MUD (Multi-Storey Buildings) and has evolved over a long period of time. The land law distinguishes between the regulations of buildings with four or less levels and the ones with five or more levels. According to the land law in Hong Kong’s law system, land and houses can be seen as both, object of the rights and the subject of rights is one. Also, the government owns all land in Hong Kong, the exception being the land where St. John’s Cathedral Church sits on. The land can be either sold or leased for different purposes under a set of conditions. If the real estate developers purchased the land that was originally owned by the government then they will have the lease right as tenancy. Right of tenants of multi-storey buildings is the right as co-tenancy. Previously, the tenancy was only granted for the period of 75 years, 99 years or 999 years of lease hold, with a possible renewal that was also issued by the government. In the urban areas such as Hong Kong Island and Kowloon, the lease was only granted for 75 years, with a standard renewal for another 75 years. Both U.S. and Hong Kong scholars have explained that, because the lease term is relatively long and can be renewed, in practice it is considered that joint tenancy equals to co-ownership. Multi-storey building owners all share co-ownership.
Individual laws were developed to adjust the relationships in between the object and subject, and also those special rules are applicable to multi-storey buildings that have more than five levels. In fact, Hong Kong laws adjust and regulate the legal relationship through quite a special system. For example, before enter the multi-storey buildings, the owners, developers and the property managers must co-sign the Deed of Mutual Covenants (DMC).
DMC serves as an adjustment of rights and obligations between the three parties and the regulations between the co-owners. Hong Kong Government Lands Department, the Law Society and the Housing Authority buildings jointly released DMC, as a guideline, for each of the parties mentioned above to comply with. As in the Hong Kong market, all the real estate transactions are performed by a lawyer, and that sometimes both sides of the parties can be represented by the same lawyer, the Law Society has developed " DMC draft guidelines " to regulate the real estate lawyer's behaviors involved in such situation.
The prototype of MUD can date back to ancient Babylon. It was slowly developed through out the European Middle Ages. In the second half of last century, it was quickly improved and adapted in the major cities of most countries in the world. The legal relationship between the object and subject regarding to this new multilateral property is currently complicated and multi-oriented in many aspects but previous to 1802 it was rarely ever mentioned in the legal systems. But from then on, in more developed countries and regions, the framework of the laws and regulations of the ownership of the land came to being to what we now know today. Some of the countries mentioned it in a chapter of their Civil Code, whereas others made it an individual law. In some advanced law systems, such laws are addressed in a comprehensive fashion and the details of the adjustment of interest of the community properties in multilateral legal relations are fully explained.
Sole ownership, joint tenants and tenants in common
There are three ways to own a property in Hong Kong. The first being where one person owns the property only, then that same person has a sole ownership towards that property. In some cases, the ownership of the property is shared by two people who live in the same property together, and both the tenants have the equal interests and share the property as one sole owner, then this type of tenancy is called joined tenancy. In order to hold a joint tenancy, four ground rules have to be applied, as discussed below. First of all, all the tenants must share the same interest; secondly, the interest must bestow at the same time; thirdly, the names of the tenants must all be shown on the same document; and the last, each of the tenants has the equal possession of the property. When one of the tenants passes away, the interest of the property is going to pass to the other joint tenant, and he or she will automatically become the owner of the whole property. The third type of ownership is tenancy- in- common. As the opposite of a joint tenancy, each tenant has the right to a separate share of the property. According to the Intestates’ Estate Ordinance, when one of the tenants dies, the interest of the tenants is devised by will. The co-ownership of the Government lease in multi-storey buildings and the rights and liabilities of co-owners are defined and regulated by Deed of Mutual Covenant. The lease of the multi-storey buildings belongs to the owners of each of the individual units. The owners have the right of tenancy in common.
When purchasing a unit in the multi-unit development, the owner automatically buys both his or hers own property and, as well as the right of using the common areas and services in the development. Owners’ Management Company (OMC) is the legal organization to protect the owners’ interests in the development. And a lease contract is used to regulate both, the buyer’s legal responsibilities and obligations. It is the requirement by law that all the multi-unit development should have an OMC. Legally, a contract should also be signed to commit all the terms within the contract.
Co-ownership, its history and development
Before World War II, buildings were sold only in terms of blocks. At that time, selling only blocks made the property market quite inactive. The British started the post-war reconstruction in Hong Kong right after the World War. In 1948, first strata-title sales came to birth in the market. The first sale of strata-title development was a 5-storey residential building at 46-48 Hillwood Road. At around the same time, the civil war of China began, and as a consequence, a huge number of refugees, from the mainland of China, migrated to Hong Kong. In a short period during the 1950s, the population of Hong Kong increased at the rate of one hundred thousand people per year. The already inadequate housing situation became worse. The housing shortage encouraged the government to agree to begin the scheme of buildings of flats for the Chinese civil servants to inhabit. Properties at discounted prices were offered, only to eligible civil servants. Sometimes the governments even lent money to them with the purpose of building their own blocks. However, this scheme was only available for civil servants. The owners of the flats where required by law to accept all the agreements and policies from the government. By the time the scheme transformed to a policy during the late 1970s, the new blocks had already become to a society (co-operative societies). In 1953, it was Dr. Henry Fok who introduced the groundbreaking idea of selling developments that were not yet completed at the time of sale. For example, the sale of flats before they are fully completed required of the purchasers to first signal his intent by paying a deposit to the developers. Once the transaction was made, the balance would be settled. It was also the first time that the idea of mortgage was introduced. The greatest attraction of strata-title sales, pre-sales and mortgage payment is that people could pre-own their properties before making a great amount of money. Without the requirement of the, until then, usual lump sum fees paid upfront, it allowed for more and more people to purchase this kind of development. In the meanwhile, instead of receiving money after the completion of the buildings, it also allowed the developers to have a cash flow at early stages of the project.
Rent and the use of lands and developments, the measurements of the buildings (such as height and how many levels of the building), and such so were specified in Conditions of Grand. The Conditions of Grand were more straightforward before World War II. Since the Sino-British Joint Declaration became effective in 27 May 1985, the provisions of Annex III supervise and govern the land grand. The land grants after World War II are the subject of restrictions and details of developments or buildings, parking sites, sales and rents, government usages and general usages for all purposes. Those were published in 1906 to 1946, under the General and Special Conditions of Sale, detailed in the Government Notifications. The majority of the leases that were expired before July 1997 could be extended for another 50 years. The tenants did not have to pay for the land premium but had to make the payments of the annual rent fee which equaled to 3% of the property’s ratable value at the time when the lease expired. After 1997, the lease of 50 years is now granted to the land. And it is subject to the annual rent fee of 3% of the property’s ratable value. Schools, land for communities’ use and land for other non-profitable use are most of time granted by a private treaty.
Private areas and shared areas and co-ownership
Private areas and common areas have to be distinguished in Multi-Storey Developments and residential buildings. This is not just the object of land laws, but also the object of the nature of a given society. The common areas of the residential buildings are defined by two conditions. First, it depends upon requests. A certain living standard must be met in this condition. The urban planning and design departments specify the details of the conditions in the residential area to make sure the common areas meet the requirements and then make reasonable arrangements and delineation. Second of all, the total price or construction cost has to be shared by all the owners residing in the development. The common areas should meet the fitness of purpose when providing supports for the private areas for the majority of the owners, and basic living supports, such as providing the supply of the following: water, electricity, gas, air conditioning, drainage, communication, telephones, television, internet, and areas for culture, entertainment, sports, leisure, building management, maintenance, storage, and many other services. If some functions of the common areas are missing then it will cause inconvenience to people's lives. Or even worse, it will make a malfunction of the whole residential area. The owners may have difficulty to maintain a normal life. There is a basic line that has to be recognized, that the delineation between the common areas and private areas has to be defined by law and once granted by law, it can not be changed freely and easily. In general, the private area under some circumstances can be modified into common areas. However, the common areas can almost never be changed to private areas. For instance, if a spare room is required and needed in the common areas, under the agreement of the owners, the developers can buy some private areas to change it into the common areas. If the owner insists on having additional space in his or her private area, and at the same time there is affluent space in common areas, such changes can also be made upon the agreements of other owners and developers. However, if such changes don’t meet standards set by the planning department, for example, the floor area ratio, building density and distance between two buildings etc., approval of the planning department needs to be explicitly shown.
The definition of the private and common areas is classified into two models. One of the models is the Taiwanese and Japanese model, and the other one is the one used in countries such as the United States of America, Hong Kong and Quebec.
In the Taiwanese and Japanese models, the definition and contents, as well as the delineation of the two parts are generally described. The definitions of the areas described in those two laws are quite similar. For example, in Taiwan's " Apartment Building Management Ordinance " Article III, proprietary parts, it says that: the private area, as part of the apartment building, is under the use of independent owner, and is distinguished by all of the subject "; " common area: the parts for common usages that not included in the private area in the development." . As for the common areas in residential development of Japan, the descriptions are prescribed in a chapter of the land law, whereas Taiwan put it in the regulations that associate those with the rules of the buildings.
Another one is the model experienced in Hong Kong (and the same applies in United States of America, and Quebec). It generally describes and defines private and common areas and at the same time it regulates the definitions with a detailed enumeration method. In United States of America, the "uniform law apartment" makes definitions on the unit (Unit) and common areas (Common elements) as the following. "Unit refers to the apartment building that is designated as a separate body of all or part of a separate possession"; "common areas refer to the entire apartment building in other parts except for the unit in question." New York State enumerates provisions on common areas starting with ’the land occupied by the building’, finishing with " keep all other real estate, maintenance and security necessary or beneficial or usually used as part of a common good’, all together as a total of 45 projects. Hong Kong DMC regulations list 51 projects, of which only the definition of club can be agreed upon. The Quebec Civil Code section 1044 states the combinations of general and detailed regulations on the common area (Common portion): " the following is presumed to be the common parts: land, courtyard, veranda or balcony wall, parks and gardens channel, stairways and elevators, entrance halls and lobby, public health or leisure facilities, garage, storage rooms, basements, foundation and main wall of the building, public installations and equipment, such the following: central heating and air conditioning systems, pipelines and other lines, including the ones that pass through any given private part (Private portions) portion. " Although the two models described above have obvious difference in the ways of explaining and distinguishing the two areas. They both well define the concepts. Especially the model used in Hong Kong (United States and Quebec) is well developed and that the method used works better to avoid ambiguity.
In Hong Kong, using a specific part of the development exclusively in multi-ownership has to be regulated by the Deed of Mutual Covenant and agreed by the co-owners of the property. It doesn’t matter if the right of occupying or using the common areas complies with the ownership of the respective shares in the development. The agreements are usually adopted between the co-owners.
Lawsuits and examples
A good example of explaining such agreement between co-owners of this is the case in Burgess v Rawnsley ([1975] Ch 429, CA (Eng)). Two people M and J previously bought a property together as beneficial joint tenants. M agreed to sell J her share of interests in the house. However, such agreements were not discussed and agreed Later in any written documents. M regret her decision and refused to go on with the procedure. Instead, she proposed a higher price than what was agreed previously. The Court of Appeal held that the joint tenancy had been severed. An oral agreement was proposed and applied to help to solve this issue and decrease the tension between the two.
Another example worth mentioning is Jumbo King v Faithful Properties Ltd ([1999] 3 HKLRD 757, CFA) One developer was planning to gain the right of occupying some of the utility rooms available in the common area and part of the roof of his flat just for his own personal use. However, the right of exclusive occupation in the parts of his development was not attached in the Deed of Mutual Covenant of the shares of a tenancy in common in the development. As a consequence, the Court of Final Appeal held that by law there was unnecessary to exclusively use the parts in the sharing area with the stated percentage of ownership in the building. An unenforceable oral agreement between joint tenants was proposed. In these two cases, mutual agreements and the course of conducts, although acting as two different methods, serve the same purpose of regulating and solving the issues arose between tenants in common.
Discussion
Although within the legal system, there are land laws, rules or other forms of regulations that meant to regulate the order of co-ownerships and the relationships between co-owners, or between owners and developers etc., numbers of questions still exist regarding to the co-ownerships in Hong Kong. For instance, questions as how to further improve the current laws and regulations is what everybody bears in mind from time to time. Another question is how to develop mechanisms and methods that help to assist the law. One has to think outside the box, whenever possible, to create and design such methods while achieving a sustainable, flexible and harmonious development of society as a whole.
When taking into consideration of the developments that date back to the 50s and 60s last century, and the fact that these developments no longer meet the current standards and legal requirements, redevelopment of the buildings is one of the few options left on the table. Even so, mainly due to fragmented ownership, redevelopment of such buildings will prove itself to be extremely difficult. Therefore, uniting the ownership in the developments can be one way to help to solve such problem.
Currently, in Hong Kong, 20% of all buildings that are privately owned are aged more than 40 years. Out of these 7500 buildings, the majority is now suffering from severe decay and require urgent repair.
When tackling this issue, it can be argued that far too much emphasis was given to the preservation and conservation of older developments in detriment of redevelopment. Moreover, in the few cases where owners opted for redevelopment, financial gain was the main driver. Hence redevelopment tends to result in a higher density type of developments with complete disregard to environmental impacts.
As a consequence of structural changes in the economic tissue, there is no longer demand for industrial development. This can be seen when considering that the number of industrial parks only grew by 0.4%, between 2001 and 2005. Another figure worth mentioning is the number of flatted factories, which consists of 200 million sq. ft and only represents 36% of the total private residential floor area.
A large number of these old industrial developments is current vacant. The main reason is the financial viability of a potential redevelopment. Due to both, current health and safety and lease and planning requirements, is considered unattractive business for owners to even consider repairing or renovating these industrial parks.
Another point worth discussing when trying to improve the system is the role of the developers. Developers should fully comply authority when planning permission and fully comply with the planning conditions for any new buildings, or the redevelopment of old buildings. For example, the construction work that is carried out must obey the regulations of the developments. The builders, designers and authorities co-share the responsibilities for the buildings in question.
Also, as what we mentioned about the two law cases before, is how to achieve sustainable housing by better utilizing mutual agreements and less usage of course of conducts currently in place. It encourages co-owners to solve out the issues without going to the court and without compromising their own rights. It helps to develop a more harmonious co-ownership and society.
References
1 Sarah Niel, Hong Kong Land Law, Longman Group(Far- East) Limited, 【1992】, Page 317
2 Eranden E Bickel and D.Andrew Sirkin, 2007 Condominum Blue Book, Piedmont Press, 【2007】, Page 1.
3 Sarah Niel, Hong Kong Land Law, Longman Group(Far- East) Limited, 【1992】, Page 317.
4 Friedman, M. (1957 http://www.51due.net/writing/). The permanent income hypothesis. In M. Friedman (Ed.), A theory of the consumption function (pp. 20e37). Princeton: Princeton
University Press.
5 香港法,第33章 Chapter 33, Laws of Hong Kong
6台湾《公寓大厦管理条例》,2006年修订。
7Civil Code of Quebec, Les Editions Yvon Blais Inc. 1996-1997.


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