A Tale of Enforcement by Not Executing Government Leases

By Timothy YUEN

[Notes : Although the contents below are factual, the names and titles of persons, numbers of documents, and numbers of lots and Demarcation Districts etc., are all counterfeited in order to protect the persons involved.]

I.THE CASE

This case was brought to a discussion with Senior Land Executive/Small House (SLE/SH) of a district lands office prior to execution of Free Building Licence, of which the District Chief Land Executive (the District CLE) had refused to execute a small house grant of BL No. 1235 governing Lot 8910 in DD 1230 held by an indigenous villager, Mr. CHAN Siu-man (陳小文). Mr. CHAN had expressed his anger when was informed of the “no-go”.

Basing on the records on the files DLOXXXXXX and L.N.T. XXX/XXX/XX relating to rebuilding of Lot No. 4567 in DD 1230, BL 1234 was issued to Mr. CHAN Lo-man (陳老文), grandfather of the Mr. CHAN Siu-man (陳小文), on 20.11.1967 of 400 ft2 R.O.A. Mr. CHAN Siu-man’s father Mr. CHAN Tai-man (陳大文) acquired the property by the Deed of Gift dated 6.7.1994 from Mr. CHAN Lo-man, and applied for rebuilding of the property. However, the application was rejected on 3.10.1996 owing to Mr. CHAN Tai-man’s “apply-and-build” strategy. In other words, the house on Lot 4567 is an unauthorized redevelopment case subject to lease enforcement action.

BL No. 1235, of which the District CLE had refused execution, was issued to Mr. CHAN Siu-man, son of Mr. CHAN Tai-man, on the ground that he (Mr. CHAN Siu-man) is now the owner of Lot No. 4567 with an unauthorized house rebuilt there. Mr. CHAN Siu-man had got the property by succession from his father, Mr. CHAN Tai-man, the deceased. The District CLE instructed that unless and until the breach of BL 1234 had been remedied, no execution of BL 1235 would be done by him.

SLE/SH, after discussion with the District CLE directed the subject Land Executive (LE) that even the applicant’s small house application was a separate issue from re-building without approval, execution of BL 1235 should be withheld in abeyance. As commented by SLE/SH that though Small House Policy was an administrative policy, the office should have discretion and take a macro view taking this opportunity to force the applicant in regularizing the rebuilt house.

Taking SLE/SH’s directive, the LE/SH called the applicant and explained to him of the situation. Mr. CHAN Siu-man admitted that the rebuilding case without approval was not acceptable but he argued that as the house erected there was the same as 400 ft2 as permitted under the lease and appealed that the two matters should be regarded as separate issues and hoped that the office could regard them as such. He said that he would wish to execute his small house grant first whilst processing remedy of the rebuilt case separately.
The decision/stance of the office was conveyed to Mr. CHAN Siu-man. He said that he was now in Hong Kong for school holiday and would go back to Guangzhou school for study soon and would wish to have the small house grant executed before his journey back to school. He said that he had asked the VR of his village to look into the issue of the unauthorized rebuilding case and would wish to have a discussion with DLO for its settlement in his next school holiday.

Do you agree with the District CLE and the SLE/SH on what they have asserted, i.e. by refusing execution of a small house grant as a weapon for remedying a breach of law/lease about some other thing/some lot elsewhere?

II. THE DISCUSSION

[Notes : Although the contents/comments of the two e-mails below are true, the names and titles of persons (except “Tim” and “Timothy”), document numbers etc. are counterfeited with a view to protecting the persons involved.]

E-Mail 1

----- Original Message -----

From: XXX

To: Timothy Yuen

Sent: Monday, May 08, 2006 9:39 PM

Subject: Small House case point of view

Dear Tim,

In the trouble case (and actually my case is not the first case but some previous cases had caused some other villagers very angry), the point of argument is that if the unauthorized re-built house cannot be regularized by usual method, the owner can consume his Small House right for regularization so if he opined that the Small House application should not have been approved or executed pending clarification of the re-built house case being clear.

While he had a point but I and some other colleagues were still confused while we could exert persuasion and some pressure on the villagers, whether it could be the legitimate power to force the villagers to do so by withholding their Small House applications.

Regards,

XXX

E-Mail 2

----- Original Message -----

From: Timothy

To: XXX

Sent: Wednesday, May 10, 2006 5:52 AM

Subject: Re: Small House case point of view

Dear XXX,

Even what has been argued is having the point, the approach cannot be acceptable to me.

First, using "small house right" to regularize unauthorized building work, even if it is an approach for settling a very unusual case, should not be raised by us - it should only be raised by the interested party (See the reason below). Second, there is no policy blessing to adopt such an approach. Third, it would be politically unwise to do so under the current political climate.

The approach you had mentioned was originated from a case in the “ZZZ” District - a George’s case. Such an approach was once suggested by the then the District CLE, Mr. Jordan. It was rejected by DLO as I had suggested (as SLE/SH at that time) that it was an inequitable approach and an ultra vires act. Eventually "buy-back" approach was considered and be submitted to the Land Administration Meeting. That case is a case involving redevelopment of a two-storey house having been rebuilt unlawfully into a three-storey house and an enlarging built-over area on Government Land - that part on GL was larger than that on private land. Say, for example - as I can't remember the areas exactly - the original house was on private land with 200 ft BOA, but it was redeveloped into a 500 sq ft BOA house with 300 sq ft on GL unlawfully.

A more acceptable approach with policy blessing on unauthorized work is by taking lease enforcement action. If, however, regularization is considered appropriate, issue of retrospective CoE/Building is an established approach subject to:

The rebuilt-house is falling within the ambit of the governing lease - without height higher, BOA larger etc., than what have been permitted under the lease.
It is certified sound and safe by an AP;
The consent (by means of retro-CoE/building) would be valid for the life of building only;
Payment of all the penalty and administration fees for the retrospective CoE.

For your case, I cannot see if it could not be resolved by a normal approach as mentioned above. The point is, if the idea was adopted, it would be accused of being an approach ultra vires. Such an approach would not be acceptable as an equitable one under the laws of equity [It would be however, equitably agreeable if suggested by the villager himself voluntarily and not under undue influence.]

For the case like George's one, such approach cannot be considered as he has rebuilt something more than what he is entitled, on his case, imposing premium or charge of fees with "buy-back" approach could be applicable. [I do not know the end-story of that case as George has negotiated on the amount of premium imposed]. In any event, DLOZZZ's case is really "unusual". Perhaps you may let me know how "unusual" your case has been.

One more point for your consideration: In 2001-2002, the Authority had advised that the approach of granting small house on house land should be avoided unless it was strongly demanded by the applicant and even if it was accepted, the applicant had to be interviewed explaining to him fully what he would lose if approval of small house grant on his house land was approved. He had also to submit in writing that he had fully understood what he would get/lose from getting the requested approval.

This is an approach avoiding being accused of inequitable action of the Authority.

Best regards,

Tim