Castles in the Air ：
A man’s home is said to be his castle. Are homeowners in multi-storey buildings secure in their
possession under the scheme of compulsory sale
of Cap. 545?
Castles in the Air and Cap. 545
- Magna Carta, the origin of the concept that an
Englishman’s home is his castle
-
Article 17 of the ICCPR
-
Article 29 of the Basic Law
-
Land Tribunal Decision LDCS 11000/2006
-
Kelo v. City of New London 545 U.S. 469
-
Article 105 of the Basic Law
Former President of the Lands Tribunal, Goron Cruden:
"The enactment of the ….Ordinance in 1999 effected a radical
change to Hong Kong compulsory land acquisition laws. For the
first time, machinery was provided for the private owners of a
majority of shares in a multi-owned building to compulsorily
purchase the remaining privately owned shares for the purpose of
redevelopment…This Ordinance was the culmination of long
voiced complaints by developers. A major obstacle to private
redevelopment of multi-owned buildings and land was frequently
claimed to be the difficulty of assembling all the shares of different
owners of multi-owned buildings and land with separate units in
the exclusive occupation of different owners into sole ownership.
The claim was that a redevelopment proposal could be frustrated
by dissenting minority owners. The problem raised fundamental
issues of the extent to which, in the interest of desirable private
redevelopment, the law should permit inroads to be made into the
right of private ownership of property.
(cont’d…)
Former President of the Lands Tribunal, Goron Cruden:
The statutory power to permit the compulsory purchase by a
private owner of another private owner's estate or interest in
land owned by them as tenants-in-common in specified
undivided shares, goes considerably beyond previous
legislation. Where Government or a public statutory body
resumes land it is required to be for a 'public purpose'…. On
the other hand (1) the compulsory powers of the …Ordinance
do not have any public purpose requirement; (2) the
Government is not involved in the compulsory sale process;
and (3) compulsory purchases are normally only for one
building or associated or connected nearby buildings. The
private purchases are generally made for spot development
for private profit and are not part of a wider comprehensive
development plan for the public good."
Good Trader Ltd. V. Hingking Investments Ltd
Presiding Officer , Judge Wong:
"So when the age of the building is relied on as the sole
ground to justify redevelopment, the building must be 'old'
enough to justify redevelopment. But how old must the
building be before the Tribunal can grant an order for
sale?...how do we determine at what age a building should be
redeveloped? The Ordinance does not stipulate that a
building should be redeveloped when it attains a certain age
such 40 or 60. We do not think it should be the right
approach to fix a certain figure on the age either. A building
that is designed to last for 100 years may still be considered
young when it is 40 years old. A building that is designed to
last for 50 years may be considered to be old at the age of 40
years. So it will not be sensible to fix a certain number of
years as the age to justify redevelopment."
Intelligent House Ltd v. (25 Respondents)
LCDS 11000/2006
ICCPR
Article 17
1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour
and reputation.
2. Everyone has the right to the protection of the law
against such interference or attacks.
Basic Law
Article 29
The homes and other premises of Hong Kong
residents shall be inviolable. Arbitrary or
unlawful search of, or intrusion into, a resident's
home or other premises shall be prohibited.
Basic Law
Article 6
The Hong Kong Special Administrative Region
shall protect the right of private ownership of
property in accordance with law.
Hong Kong Bill of Rights
Article 14
Protection of privacy, family, home, correspondence, honour
and reputation
(1) No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and
reputation.
(2) Everyone has the right to the protection of
the law against such interference or attacks.
[cf. ICCPR Art. 17]
Basic Law
Article 105
The Hong Kong Special Administrative Region shall, in accordance
with law, protect the right of individuals and legal persons to the
acquisition, use, disposal and inheritance of property and their right to
compensation for lawful deprivation of their property.
Such compensation shall correspond to the real value of the property
concerned at the time and shall be freely convertible and paid without
undue delay.
The ownership of enterprises and the investments from outside the
Region shall be protected by law.
Chapter 545
Land (Compulsory Sale for
Redevelopment) Ordinance
Cap.545 Land (Compulsory Sale for Redevelopment)
Section 3 (5)
Subject to subsection (6), the Chief Executive in
Council may, by notice in the Gazette, specify a
percentage lower than the percentage mentioned in
subsection (1) in respect of a lot belonging to a class of
lots specified in the notice and, in any such case,
subsection (1) and the other provisions of this
Ordinance shall be construed as if, in relation to a lot
belonging to that class of lots, that percentage so
specified were substituted for the percentage mentioned
in subsection (1).
Cap.545 Land (Compulsory Sale for Redevelopment)
Section 4 (2)
The Tribunal shall not make an order for sale unless,
after hearing the objections, if any, of the minority
owners of the lot the subject of the application under
section 3(1) concerned, the Tribunal is satisfied
that —
Cap.545 Land (Compulsory Sale for Redevelopment)
Section 4 (2)
(a) the redevelopment of the lot is justified (and
whether or not the majority owner proposes to or is
capable of undertaking the redevelopment) —
(i) due to the age or state of repair of the
existing development on the lot; or
(ii) on 1 or more grounds, if any, specified in
regulations made under 12; and
Cap.545 Land (Compulsory Sale for Redevelopment)
Section 4 (2)
(b) the majority owner has taken reasonable steps
to acquire all the undivided shares in the lot
(including, in the case of a minority owner whose
whereabouts are known, negotiating for the
purchase of such of those shares as are owned by
that minority owner on terms that are fair and
reasonable).
L.N.6 of 2010
Land (Compulsory Sale for
Redevelopment) (Specification of Lower
Percentage) Notice
(Made by the Chief Executive in Council under section 3(5)
of the Land (Compulsory Sale for Redevelopment)
Ordinance (Cap.545))
Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
1. Commencement
This Notice Comes into operation on 1 April 2010
2. Interpretation
In this Notice —
“industrial building” (工業建築物) means a building the whole
or any part of which is approved by the Building
Authority for any of the following uses under a plan
approved under the Building Ordinance (Cap. 123) —
(a) godown;
(b) any industry in which articles are manufactured,
altered, cleaned, repaired, ornamented, finished,
adapted for sale, broken up or demolished, or in which
materials are transformed;
Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
“industrial zone” (工業地帶) means a zone that is set apart
for industrial use in a draft plan prepared by the Town
Planning Board or approved by the Chief Executive in
Council under the Town Planning Ordinance (Cap. 131)
“occupation permit” ( 佔 用 許 可 證 ) means an occupation
permit issued by the Building Authority under section
21(2) of the Building Ordinance (Cap. 123)
“relevant date” (有關日期), in relation to a lot in respect of
which an application is made under section 3(1) of the
Ordinance, means the date of the application;
“unit” ( 單 位 ) means any premises that are described by
reference to a specified number of undivided shares in a
lot in any instrument registered in the Land Registry.
Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
3. Specification of percentage
80% is specified as the percentage required for the
purposes of section 3(1) of the Ordinance in respect of
a lot that belongs to any class of lot specified in section
4.
4. Specification of classes of lot
(1) The following classes of lot are specified for the
purposes of section 3 —
(a) a lot with each of the units on the lot
representing more than 10% of all the undivided
shares in the lot;
(b) a lot with each of the buildings erected on the lot
issued with an occupation permit at least 50 years
before the relevant date;
Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
(c) a lot that is not located within an industrial zone and
each of the buildings erected on the lot —
(i) is an industrial building; and
(ii) was issued with an occupation permit at least 30
years before the relevant date.
(2) For the purposes of the class of lot referred to in
subsection (1)(a), if —
(a) a unit in a building is subdivided into 2 or more
units on or after 1 April 2010; and
(b) the subdivision does not involve —
(i) any alteration to the size of any common area of
the building; or
(ii) any change in a person’s liability in relation to
the common areas and facilities of the building under
the common law or any emactment,
those units are regarded as one single unit.
Quid enim sanctius, quid omni
religione munitius, quam domus
unusquisque civium? _ Cicero
What more sacred, what more
strongly guarded by every holy
feeling, than a man's own home?
Magna Carta
(39) No free man shall be seized or
imprisoned, or stripped of his rights
or possessions, or outlawed or exiled,
or deprived of his standing in any
other way, nor will we proceed with
force against him, or send others to
do so, except by the lawful judgement
of his equals or by the law of the land.
Sir Edward Coke ( 1628)
"For a man's house is his castle, et
domus sua cuique est tutissimum
refugium [and each man's home is
his safest refuge]. "
William Blackstone's Commentaries on
the Laws of England:
"And the law of England has so
particular and tender a regard to the
immunity of a man's house, that it
stiles it his castle, and will never
suffer it to be violated with
immunity: agreeing herein with the
sentiments of ancient Rome …."
US Constitution, 5th Amendment
"…nor shall private property be
taken for public use without just
compensation"
Kelo v. City of New London 545 U.S. 469