LC Paper No. CB(1)1544/03-04(01)

LC Paper No. CB(1)1544/03-04(01)

Bills Committee on Land Titles Bill

Summary of the proposed amendments mentioned in the papersprovided by the Administration from April 2003 to early April 2004

(Position as at 14 April 2004)

Part A: Proposed amendments to specific clauses/items

Part B: Miscellaneous proposed amendments

Part C: Proposed amendments to provide for the daylight conversionmechanism

Part A: Proposed amendments to specific clauses/items

Clause no./Item no.

Issues of concern Administration’sproposed amendments

Relevant paper

Clause 12(1) To amend the Bill toreflect the policyintent that in theevent that acertificate of goodtitle could not beissued for a property,there would be noneed to apply for afirst registration ofthe property.

The Administrationproposes to amendclause 12(1) asfollows -

(a) by deleting“Subject tosubsection (2), an”and substituting“An”;

(b) in paragraph(a)(i), by adding“except wheresubsection (2)cannot becomplied with”after “day”; and

(c) in paragraph (b),by adding “exceptwhere subsection(2) cannot becomplied with”after “(Cap. 128)”.

Paper on “Response toDrafting Issues andIssues Raised byAssistant LegalAdviser”(LC Paper No.CB(1)2305/02-03(10))(English versionissued on 29 July2003)(Chinese versionissued on 1 August2003)

Clause 12(4) To replace the word“or” in the definitionof “land” by “and”.

The Administrationproposes to amend thedefinition of “land” toread as follows -

“land” does notinclude any part of alot where -

(a) the lot has beensubdivided intoundivided shares;

Paper on “TheConversionMechanism SupplementaryInformation”(LC Paper No.CB(1)1986/02-03(02))(English versionissued on 17 June2003)(Chinese versionissued on 18 June

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and

(b) an undividedshare in land hasnot been allocatedto that part.

2003)

Clause 14(2) To make it clear thatthe documents andinterests stated in thesubclause will bebinding on thepurchaser afterregistration.

The Administrationintends to introduce toclause 14(2)amendments which aresimilar to those toclause 21(2) asdescribed below withsuitable modification.

Paper on “Response toDrafting Issues”(LC Paper No.CB(1)2501/02-03(03))(Issued on 29September 2003)

Clause 21 In finalizing thesample Title Registershowing transmissionof interest upon thesuccessive death ofmore than one jointowner, to considerhow the followingconcerns of memberscould be addressed:

(a) Under theexisting practice,transmission ondeath of a jointtenant will takeeffect byoperation of lawon the date ofdeath of thedeceased jointtenant. Underthe new land titleregistrationsystem (LTRS),theAdministration

It is the policyintention thattransmission on deathof a joint tenant willtake affect on the dateof death of thedeceased joint tenant.Clause 21 will beamended.

Paper on “OutstandingResponses to MattersRaised by the BillsCommittee”(LC Paper No.CB(1)1425/03-04(02))(English versionissued on 31 March2004)(Chinese versionissued on 1 April2004)

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proposes torevise theconditionprecedent totransmission ondeath of a jointtenant in clause62(2)(b) to theeffect that it isnecessary tosatisfy the LandRegistrar (LR)either that theestate duty hasbeen paid or itspayment hasbeen fullysecured to thesatisfaction oftheCommissioner ofEstate Duty. Itis not clearwhich date (e.g.the date of deathof the deceasedjoint tenant orthe date ofalteration of titleregistration)should beregarded as thedate on whichthe ownership istransmitted to thesurviving jointtenant(s). Thelegal status of theownershipbetween the twodates is alsounclear; and

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(b) There appears tobe an anomaly: Iftransmission willtake effect on thedate of death ofthe deceasedjoint tenant, itmay contradictclause 21 whichprovides that “atransfer ortransmissionshall, whenregistered, vest[the land] in theperson becomingthe owner of theland”; iftransmission willtake effect on thedate of alterationof titleregistration, itmay be contraryto the CommonLaw rule thattransmission ondeath of a jointtenant will takeeffect on the dateof death of thedeceased jointtenant.

Clause 21 andrelatedprovisions

To improve thestructure and draftingof clause 21 and therelevant provisionsso that the effect ofregistration and anyexceptions will beclearly set out insimple terms in a

The Administrationwill consider makingappropriateamendments to clause21 and relatedprovisions so that theeffect of registrationand any exceptionswill be clearly set out

Paper on “Part 6 of theBill - Instruments(Minors)”(LC Paper No.CB(1)600/03-04(03))(English versionissued on 17December 2003)(Chinese version

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Clause no./Item no.


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single clause. in simpler terms thanpresently drafted.

issued on 18December 2003)

Clause 21(2) To improve thedrafting of clause21(2) to make it clearthat the documentsand interests stated inthe subclause will bebinding on thepurchaser afterregistration.

The Administrationwill amend clause21(2) to make it clearthat upon registrationof a transfer ortransmission underclause 21, the variousinterests stated inclause 21(2) will bebinding on thepurchaser.


Clause 22(2) To make it clear thatthe documents andinterests stated in thesubclause will bebinding on thepurchaser afterregistration.

The Administrationintends to introduce toclause 22(2)amendments which aresimilar to those toclause 21(2) asdescribed above withsuitable modification.


Clause 24(4) Clause 24(4) refers toan order of the Courtof First Instance(CFI). On a strictreading of this, anorder of any othercourt, e.g. the Courtof Appeal, would notsuffice. The LawSociety points outthat this apparentanomaly appears in anumber of otherclauses.

This is beingconsidered by theAdministration in thecontext of detaileddrafting issues.

Paper on “Response toSubmissions to theBills Committee”(LC Paper No.CB(1)2305/02-03(09))(English versionissued on 29 July2003)(Chinese versionissued on 1 August2003)

Clause 29(1) Interpretationproblem due to theword “create”

The Administrationmay make reference tosection 41(1) of theNew South Wales

Second paper on“Responses toMiscellaneousIssues)”

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(NSW) Real PropertyAct 1900 and makeamendments to clause29(1) of the Bill inorder to remove someinterpretation problemdue to the word“create”.

(LC Paper No.CB(1)1057/03-04(03))(issued on 23February 2004)

Clause 30 Whether theexpression “withoutnotice” should beincluded in clause 30.

The Administrationagrees that, in linewith the objective ofthe Bill to freepurchasers from thehazards of the doctrineof notice, clause 30should be amended bydeleting the phrase“without notice of thebreach”.

Paper on “Doctrine ofNotice”(LC Paper No.CB(1)2305/02-03(07))(English versionissued on 29 July2003)(Chinese versionissued on 30 July2003)


Clause 30 To amend the phrase“a trustee in thatcapacity” in clause30 to improve itsclarity.

The Administrationagrees to makesuitable amendmentsto clause 30 to providea linkage with clause69 in order to improveits clarity.


Clauses 32(1)and 96(5)

There is a risk ofinconsistency inusing “wilful default”in clause 32(1) and“without reasonableexcuse” in clause96(5).

The Administrationproposes to adopt auniform standard of“without reasonableexcuse” in clauses32(1) and 96(5).

Second paper on“Responses toMiscellaneousIssues)”(LC Paper No.CB(1)1057/03-04(03))(issued on 23February 2004)

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Clause no./Item no.


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Clause 34 (a) To ensure thatthe priority of acharging orderwill be retainedupon its re-registration.

(b) In drafting theproposedamendments toclause 34 above,to set out clearlythe legal effectsof the re-registrationbefore and afterthe expiry of thefive-year periodprovided inclause 34(1) andthe priority of thecharging order orlis pendens uponthe re-registration.

The Administrationproposes to makeappropriateamendments to clause34 to state clearly thatre-registration of acharging order or lispendens shall have apriority relating backto its first registration.

This is being donethrough thepreparation of CSAs.




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Clause 43 How impliedcovenants whichhave been excluded,varied or extendedwill be dealt withunder the LTRS.

The Administration’sintention is thatexcluded, varied orextended covenantsand any newcovenants should beregistered with thetransfer or charge thatgives rise to them.The fact that there areexclusions, variationsor extensions of theimplied covenantsprovided for bysection 35(2) of theConveyancing andProperty Ordinance(CPO) (Cap. 219)would be noted in theremarks column of thetransfer or the legalcharge. There is atpresent no expressprovisions for theabove mechanism.The Administrationwill proposeamendments thatprovide explicitly forthis mechanism. Theaim will be to ensurethat if severalregistrable matters areprovided for in oneinstrument,registration of theprincipal mattersupported by thatinstrument will effectthe registration ofother matters in thatinstrument which alsoaffect the registered

Supplementary paperon “ImpliedCovenants”(LC Paper No.CB(1)600/03-04(02))(English versionissued on 17December 2003)(Chinese versionissued on 18December 2003)

Second paper on“Responses toMiscellaneous Issues”(LC Paper No.CB(1)1057/03-04(03))(issued on 23February 2004)

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Clause no./Item no.


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land, registered chargeor registered long termlease.

Moreover, theAdministration willconsider to add aclause similar to thatof sections 75 and80(1) of the NSWReal Property Act1900 to link up section35 of CPO with theprovisions of the Bill.The Administrationmay also makereference to section41(1) of the NSWReal Property Act1900 and makeamendments to clause29(1) of the Bill inorder to remove someinterpretation problemdue to the word“create”.

Clauses 43and 43(a)

Under the LTRS,implied covenantswould come intoeffect uponregistration of therelevant interesttransferred but notupon registration ofthe relevantdocument. It istherefore notappropriate for clause43(a) to provide thatthe provisions of theBill shall notprejudice the

Being dealt with inCSA.


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operation of section35 (Impliedcovenants) of theConveyancing andProperty Ordinance(CPO) (Cap. 219). Inthis connection:

(a) To consideramending clause43(a) and otherrelevant clausesin the Bill torectify thesituation; and

(b) To liaise with theAssistant LegalAdviser on howthe drafting ofclause 43 couldbe improved toclearly spell outthe policy intentthat impliedcovenants wouldcome into effectupon registrationof the relevantinteresttransferred.

Clause 43 On theAdministration’sproposal to amendclause 29(1) toremove someinterpretationproblem due to theword “create”, toconsider ALA’s viewthat clause 43 oncovenants for titleshould also be

Being addressed inCSAs.


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amended.

Clause44(1)(a)(ii)

(a) To review clause44(1)(a)(ii) andconsider whetherit is appropriateto require thevendor toprovide thepurchaser with acopy, print orextract of orfrom anyinstrumentreferred to in anycurrent entries inthe TitleRegister.

(b) Given theAdministration’sproposal toamend clause 81to provide for therectification ofTitle Register infavour of aninnocent formerowner where titlehas been changedas a result offorgery, toconsider the needfor retaining theoriginal copy ofthe instrumentsfor inspection inthe case offorgery, anddiscuss this pointwith The LawSociety of HongKong when

Clause 44(1)(a)(ii)will be amended byway of CSA.


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deciding on thedocuments to beretained underthe LTRS.

Clause 51 To examine whetherthe drafting of clause51 could achieve thepolicy intent of notchanging the currentlaw on the validityand enforceability ofcovenants in a deedof mutual covenant(DMC).

Clause 51 will beamended to clarifythat nothing in thatclause will affect theoperation of sections39, 40 and 41 of CPOexcept to the extent asamended by the Bill.


Clause 62(1) To improve thedrafting of clause62(1) to make clearthe policy intent thatfor transmission upondeath of a jointtenant, the remainingjoint tenant or tenantsshall hold theproperty subject toand with the benefitof the same rightsand incumbrances asthose before thedeath of the deceasedjoint tenant.

The Administrationwill considerimprovement to thedrafting of clause62(1) to make clearthis policy intent.

Paper on“Transmissions,Receivership & Trust”(LC Paper No.CB(1)524/03-04(02))(Issued on 8December 2003)

Clause 62(2) The formulation, “theRegistrar shall notcomply withsubsection (1)…” inclause 62(2) is ratherodd as it seems to askthe LR not to complywith certain part ofthe Bill. To considerreplacing the term

CSAs will beintroduced to amendclause 62(2).

Paper on “OutstandingResponses to MattersRaised by the BillsCommittee”(LC Paper No.CB(1)1425/03-04(02))(English versionissued on 31 March2004)(Chinese version

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“comply with” with amore appropriateterm.

issued on 1 April2004)

Clause62(2)(a)

A registered charge isnot an interest in landchargeable to estateduty and hence maynot need to bementioned in clause62(2)(a).

The Administrationagrees to theobservation and thatthere should besuitable amendment toclause 62(2)(a).


Clause62(2)(b)

Whether there areany means to enablethe purchaser of aproperty to knowdirectly that thepayment of estateduty has beenpostponed inaccordance with theprovisions of theEstate DutyOrdinance (Cap.111).

The Administrationconsiders that even if apurchaser is aware of amere postponement ofpayment, it does notremove the possibleincumbrances on theproperty. TheAdministrationproposes (subject toapproval of theCommissioner ofEstate Duty) to revisethe conditionprecedent in clause62(2)(b) to the effectthat it is necessary tosatisfy the LR eitherthat the estate duty hasbeen paid or itspayment has beenfully secured to thesatisfaction of theCommissioner ofEstate Duty.


Clause 65 To improve thedrafting of clause 65in the same way asclause 62(1) so as toclearly set out the

The Administrationwill considerimprovement to thedrafting of clause 65to make clear this

Paper on“Transmissions,Receivership & Trust”(LC Paper No.CB(1)524/03-04(02))

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policy intent that thetransmission on deathwill not change thestatus quo apart fromthe change ofownership (i.e. thatupon death of theowner of registeredland, the personalrepresentative to beregistered as theowner would hold theland subject toexactly the samerights andincumbrances asbefore).

policy intent. (Issued on 8December 2003)

Clause 68 Need to cover inclause 68 a personwho has becomeentitled to registeredland as a trusteeunder a court order.

The Administrationwill considerappropriateamendments to theBill to cover thispoint.


Clause 69 To amend theheading of clause 69to make it clear thatparticulars of trusts,but not the truststhemselves, are not tobe entered in the TitleRegister.



Clause 69(2) To consideramending clause69(1) and (2) to makeit clear that they are

The Administrationwill considerappropriateamendments to make

Paper on“Transmissions,Receivership & Trust”(LC Paper No.

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subject to theprovisions onrestrictions in theBill.

it clear that clause69(2) shall not affectthe entry ofrestrictions or cautionswhich may containparticulars of the trust.

CB(1)524/03-04(02))(Issued on 8December 2003)

Clause 70(1) To consider revisingboth the English andChinese texts of thedrafting of the firstpart of clause 70(1)to improve the clarityof the provision.

This is being done inthe CSAs.


Clause 73 Claims for wrongfulregistrations underthe existing deedsregistration system(DRS) and the LTRSshould be in line witheach other.

Subject to agreementon clause 73, theAdministration willpropose suitableconsequentialamendments to theLand RegistrationOrdinance (LRO)(Cap. 128) for thepurpose.

Supplementary paperon “WrongfulRegistration ofCautions”(LC Paper No.CB(1)274/03-04(06))(Issued on 10November 2003)

Clause 73 The Chinese versionof the terms“wrongful” and“wrongfully” doesnot accurately reflectthe meaning of thetwo terms.

The Administrationwill propose suitableamendments to theChinese version ofclause 73.


Clause 74(1) Concern that clause74(1) has notspecified thecircumstances under

The Administrationproposes to amendclause 74(1) to adoptthe criteria laid down

Paper on “OutstandingResponses to MattersRaised by the BillsCommittee”

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which the CFI maymake an orderinhibiting theregistration of anydealing in registeredland.

in section 46(1) of theUK Land RegistrationAct 2002. Thisallows the Court to actif “it is necessary ordesirable to do so forthe purpose ofprotecting a right orclaim in relation to aregistered estate orcharge.”

(LC Paper No.CB(1)1425/03-04(02))(English versionissued on 31 March2004)(Chinese versionissued on 1 April2004)

Clause 77(1) Concern that thescope of the power ofthe LR in making arestriction underclause 77(1) is notclear:

(a) While theAdministrationhas pointed outthat the LR mayexercise thepower only onapplication by aperson interestedin registered landand where he issatisfied that thepowers of theowner of theregistered landshould berestricted, this isnot clearlyreflected inclause 77(1); and

(b) Concern that theLR isempowered toperform certain

The Administrationproposes to adopt thecriteria laid down inthe UK LandRegistration Act 2002,section 42 withsuitable modification.The LR may onlyenter a restriction afterbeing satisfied that thepowers of an owner ofland or charge or alessee of lease to dealin the land, charge orlease should berestricted in order to -

(a) prevent invalidityor unlawfulness inrelation todispositions of aregistered estateor charge; or

(b) protect a right orclaim in relationto a registeredestate or charge.

The Administrationwill also adopt the UK


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quasi-judicialfunctions with ahigh degree ofdiscretion, andthat his powerseems so broadthat he mayimpose arestriction notdirectlyconsequentialupon registeredinterests.

approach to define theperson entitled tomake application, andto adopt the model ofthe UK section 43(1)so that applicationmay be made by aperson if -

(a) he is the relevantregisteredproprietor, or aperson entitled tobe registered assuch proprietor;

(b) the relevantregisteredproprietor, or aperson entitled tobe registered assuch proprietor,consents to theapplication; or

(c) he otherwise has asufficient interestin the making ofthe entry.

Clause 77(1) To examine whetherthe present draftingof clause 77(1) couldfully reflect thepolicy intent and thescope of power of theLR and if not, toconsider how thedrafting could beimproved.

CSAs will be preparedto implement theAdministration’sintention.


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Clause77(1)(a)

It is not clear whetherthe term “anapplication” in clause77(1)(a) refers to anapplication forregistration of arestriction, or othertypes of applications,such as anapplication forregistration of title.

Noted. It is intendedto be an applicationfor an entry ofrestriction only. Beingdealt with in CSAs.


Clause 80 Clause 80 aspresently drafteddoes not provide theLR the power toremove, when aminor who has beenregistered in the TitleRegister as the ownerof registered landattains the age ofmajority, theannotation “a minor”added after theminor’s name in theTitle Register.

To be addressed inCSAs.


Clause 80(1) (a) To consideradding a newitem (c) to clause80(1) to providefor othercircumstancesnot covered byitem (a) or (b) ofclause 80(1).

The Administrationagrees to add a newitem (c) toclause 80(1) toprovide that, onprovision of therelevant supportingdocuments, theRegistrar may rectifyan error in or omissionfrom the Title Registerif it has resulted froma clerical error.

Paper on“Rectification of TitleRegister by Registrar”(LC Paper No.CB(1)274/03-04(05))(English versionissued on 6 November2003)(Chinese versionissued on 7 November2003)

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(b) In preparing theabove CSAs, totake account ofmembers’ viewsthat the scope ofthe new item (c)should beconfined to thatproposed, andthe power ofrectificationshould rest withthe LRpersonally andshould not bedelegable.

Noted. To be dealtwith in CSAs.


Clause 81 Rectification of TitleRegister in favour ofan innocent formerowner where title hasbeen changed as aresult of forgery.

The Administrationwill put forwardamendments toprovide that in respectof all registered land,

(a) rectification ofTitle Register willbe given in favourof a formerinnocent owner ifthe change ofownership isprocured by aforgery (that is, atransfer ortransmissionprocured byforged signature,forged documentor forged entry orany combinationof them). Aninnocentregistered ownerin such a case will

Paper on “PositionReport on MainIssues”(LC Paper No.CB(1)968/03-04(02))(issued on 12February 2004)

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be given anindemnity up to acapped amountunder the Bill; and

(b) rectification willbe allowed inother fraud casesif the courtconsiders it unjustnot to rectify theTitle Registeragainst the presentregistered owner.This is at thediscretion of thecourt. Anyinnocent partywho loses title asa result ofrectification insuch cases will beentitled toindemnity up tothe cappedamount under theBill.

Clause 81 (a) To clearly definethe term“forgery” in theBill.

(b) When preparingCSAs to effecttheAdministration’sproposedchanges to thecourt’s power ofrectification toprovide forrectification in

(a) The definition of“forgery” is beingdealt with underthe CSAs.

(b) Noted. Beingdealt with underthe CSAs.


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favour of aninnocent formerowner if thechange ofownership isprocured by aforgery, to takeaccount of theBar’s views onsecurity of titlemade in itssubmission dated23 April 2003(LC Paper No.CB(1)1517/02-03(07)).

(c) On theAdministration’sproposal toimpose alimitation periodof 12 years forthe rectificationof Title Register,to considerwhether theperiod shouldonly be countedfrom the datewhen the ownerbecomes awareof the forgery inquestion andwhetherextension of theperiod should beallowed undercertain specialcircumstances toprovide for asituation wherean owner may be

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out of HongKong or is aminor during the12-yearlimitation period.

Clause 81 The Bar Associationwelcomes theproposal in respect offorgery cases but hasreservations over thewide discretion givento the courts in othercases. It has alsodrawn attention to theevidence needed tosupport claims offorgery and theconsequent need tomaintain certainrecords. Its viewsare shared by theLaw Society.

In the course ofredrafting clause 81,the concern to setclearer parameters forthe court to exerciseits discretion would beaddressed.

Paper on “Report onconsultation onrevisions toconversion mechanismand rectificationprovisions”(LC Paper No.CB(1)1230/03-04(04))(issued on 8 March2004)

Clause 81 The Hong KongSociety ofAccountantsconsiders that thedrafting of clause 81is somewhatconfusing.

The Administrationwill consider thedrafting of clause 81in due course with theBills Committee.


Clause 81 To provide a paper toaddress the followingpoints of concernexpressed bymembers:

(a) Members are

Clause 81 is beingamended extensively.The Administrationintends to remove thecauses of the questionsthat have been raisedon the original clause.

Paper on “OutstandingResponses to MattersRaised by the BillsCommittee”(LC Paper No.CB(1)1425/03-04(02))(English version

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concernedwhether theoriginal owner ofa property, “A”,who has lost theownership of theproperty to “B”through fraudmany yearsbefore, duringwhich theproperty wassold to “C” andthen “D”, maystill apply to theCFI forrectification ofthe title register.While theAdministrationclaims that theoriginal ownermay do so,members doubtwhether this isprovided for inclause 81.According toclause 81(1), theCFI may orderrectification ofthe Title Registerby directing thatan entry thereinor omittedtherefrom beremoved,amended orentered, as thecase may be. Itseems that theterm “an entry”refers to the

issued on 31 March2004)(Chinese versionissued on 1 April2004)

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current entryonly.

(b) Having noted theAdministration’sadvice that thefull meaning ofthe term "fraud"would bedeterminedaccording to caselaw, members areconcerned thatthe scope of theterm may changefrom time totime. Toprovide sometypical examplesof “fraud” thatmay becommitted inrelation to titleregistration.

(c) Clause 81(4)provides that theCFI may, inexercising itsdiscretion onwhether the TitleRegister shouldbe rectified,consider suchfactors, includingthe “hardship tothe parties”.Members areconcerned thatthis requirementmay give rise touncertainty. Toprovide

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information onoverseaspractices in thisregard.

(d) Referring to theHong Kong BarAssociation’sconcern aboutwhether a“knowledge test”should beadopted as thestatutorycriterion indeterminingwhether the TitleRegister issubject to theCFI’s power ofrectification, theAdministration isinvited toprovide a writtenresponse on thispoint.

Clause 81(3) The Law Societyconsiders that clause81(3) should providefor applications bythe owner of aregistered charge.The drafting of thisclause, particularlysubclause (3)(c),seems overlyconvoluted andconfusing and couldbe simplified andimproved upon toachieve the desiredresult.

The Administrationopines that insofar asan owner of aregistered charge doesnot have the title to theproperty, his interestsshould not be dealtwith under clause81(3). The draftingwill be considered indue course with theBills Committee.


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Clauses 81(5),83 and84(2)(b)

Clause 81(5)provides that in anyrectification case notinvolving anymistake or omissionon the part of anyperson referred to inclause 8(3), if theLand Registrar isjoined as a party, theRegistrar shall notpay costs incurred bythe parties in theproceedings anddamages suffered byany parties in theproceedings.Noting theAdministration'sadvice that the claimsfor such costs anddamages would haveto be made byapplication forindemnity and thatthis policy intentwould be set out inthe relevantregulations, membersare concerned that itis not clear from therelevant clauses(including clauses 83and 84(2)(b)) thatsuch costs could berecovered from theIndemnity Fund. Toreview the drafting ofthe relevant clausesto ensure that thispoint is clearlyreflected.



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Clause 84 The Association ofBanks is primarilyconcerned with thelimitation of anindemnity to loss ofownership. It isconcerned that it willlose the security fortheir charges in theevent of rectification.

The Administration isconsidering to makean amendment thatwould require the LR,in paying anyindemnity for loss ofownership, to takeaccount of registeredcharges.

Paper on “Report onconsultation onrevisions toconversion mechanismand rectificationprovisions”(LC Paper No.CB(1)1230/03-04(04))(issued on 8 March2004)

Clause 88 The policy intent andthe scope of powersof the LR underclause 88 are notclear.

This policy intent isthat the Registrarshould resort to clause88 only when facedwith issues of law thatare of generalimportance to theperformance of hisduties, the exercise ofhis powers and thedischarge of hisresponsibilities underthe Bill. TheRegistrar would haveto justify fully to thecourt why he isseeking direction andnot relying on his ownlegal advisors;otherwise the courtmight decline to givedirections on hisapplication. TheAdministration agreesthat the currentdrafting of clause 88does not clearly reflectthis policy intent. Itwill propose suitableamendments to theclause accordingly.

Paper on “Powers ofLand Registrar(MiscellaneousIssues)”(LC Paper No.CB(1)468/03-04(03))(English versionissued on 1 December2003)(Chinese versionissued on 2 December2003)

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Clause 88 Directions from theCFI should only besought on principlesof law in respect of aspecific case, but not“[i]n any case ofdoubt or difficulty orin any matter notprovided for underthis Ordinance” aspresently providedfor in clause 88. Inthis connection,reference should bemade to the relevantprovisions in theLand RegistrationAct 1925 in Englandand Wales, and theReal Property Act1900 in New SouthWales. The relevantprovisions in theLand RegistrationAct 1925 is preferredbecause they providefor the involvementof the affectedparties.

Being addressed inCSAs.


Clause 88 Clause 88 is includedin Part 10 of the Billon appeals. It is notclear whether the LRwould only exercisehis power providedfor in the clause indealing with appealcases.

Clause 88 is intendedto be of generalapplication to thewhole Bill. TheAdministration agreesthat clause 88 shouldbe moved to a suitableplace in the Bill andits heading revised.

Paper on “Powers ofLand Registrar(MiscellaneousIssues)”(LC Paper No.CB(1)468/03-04(03))(English versionissued on 1 December2003)(Chinese versionissued on 2 December2003)

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Clause 95 The reference to“petition” in clause95 does not fitpresent daycircumstances, aspeople rarely apply tothe CFI in respect ofquestions of title bypetition.

The Administrationagrees that thereference to petitionmay be deleted fromclause 95 and willprepare the necessaryamendments in duecourse.

Paper on “Part 11 -MiscellaneousProvisions”(LC Paper No.CB(1)274/03-04(07))(Issued on 10November 2003)

Clause 95 To make rules on theprocedures underclause 95.

The rules forregulating applicationsmade to the CFI are amatter for the ChiefJustice (clause 91).The rules will beprepared afterenactment of the Bill.

Paper on “Part 11 -MiscellaneousProvisions”(LC Paper No.CB(1)274/03-04(07))(Issued on 10November 2003)

Clause 96(1) To improve theChinese version ofclause 96(1) toaddress members’view that the Chinesewords “尋求將 ” areredundant.

The Law Draftsmansuggests that theChinese version of“application for theregistration of anymatter” in clause 96should be amended to“要求將任何事項註冊的申請 ”.

Supplementary paperon “Part 11 of the Bill- MiscellaneousProvisions”(LC Paper No.CB(1)524/03-04(04))(Issued on 8December 2003)

Clause 96(7) To address members’concern that theChinese version ofthe phrase“application for theregistration of anymatter” in clause96(7) (“尋求將任何事項註冊的申

請 ”) is clumsy, toconsider improvingthe Chinese versionof the phrase. Amember suggests that

Being dealt with inCSAs.


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the Chinese versionbe simplified as “要求註冊任何事項

的申請 ”.

Clause100(1)(zi)

Whether it isappropriate toempower the LR toborrow moneys ofthe Indemnity Fund(IF).

The LR should beempowered to borrowmoneys for thepurposes of the IF andnot to borrow moneysof the IF. Clause100(1)(zi) will beamended accordingly.

Supplementary paperon “Part 11 of the Bill- MiscellaneousProvisions”(LC Paper No.CB(1)524/03-04(04))(Issued on 8December 2003)

Clause 102 On theAdministration’sadvice that thepurpose of clause 102is to cater for anyadditionalconsequentialamendments thatmay becomenecessary during theperiod between thepassage of the Billand theimplementation ofthe LTRS, to considerintroducing suchadditionalconsequentialamendments in theform of subsidiarylegislation thatrequire positivevetting of theLegislative Council.

In CSA, theAdministration willprovide for SHPL tobe able to amendSchedule 2 to dealwith certain mattersbut will specifysubstantive mattersthat have to be dealtwith by way ofsubsidiary legislation.


Item 37 ofSchedule 2

The proposed section6(7) of the TramwayOrdinance (Cap.107), which refers to

Modification will bemade to include theowner of the land andany chargee of such

Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))

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“owner or holder ofthe land” and“mortgagee of suchland”, may needmodification becausewhilst suchdescriptions may beappropriate underLRO, it is doubtfulwhether they areaccurate under theLand TitlesOrdinance (LTO).In particular, it seemsonly charges areregistrable under theLTRS and nomortgage ismentioned in the Bill.

land under LTO. (English versionissued on 1 December2003)(Chinese versionissued on 4 December2003)


The proposedamendment tosection 18(2) of theEstate DutyOrdinance (Cap. 111)aims to enable anotice of charge to begiven by theCommissioner byregistering anapplication underLTO. The proposedamendment mayneed modificationbecause under theLTRS, it is not anapplication that isbeing registered butthe relevant interestin land.

The Administrationwill amend thereference to a noticeunder the Bill to takeaccount of the fact thatthe Commissioner canonly lodge anapplication, notregister it.

Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese versionissued on 4 December2003)


Section 56A(1) of theInland Revenue

Modification will bemade to include any of

Paper on “Schedules 1and 2 of the Bill”

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Ordinance (Cap. 112)is proposed to beamended to includejoint owners orowners in commonappearing from anyinstrument registeredunder LRO or LTO tobe answerable fordoing all acts. Theproposed amendmentseems to suggest thatunder LTO, thesystem of registrationwould still be that ofdeeds andinstruments.

those personsappearing from theTitle Register keptunder LTO or anyinstrument registeredunder LRO to be jointowners or owners incommon.

(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese versionissued on 4 December2003)


Section 15(3)(a) ofthe Stamp DutyOrdinance (Cap. 117)is proposed to beamended to the effectthat the LR canregister an instrumentunder LRO or LTO ifit is stamped undersection 5(1) or 13(2)or is an agreementfor sale mentionedtherein. Theproposed amendmentappears to suggestthat the LTRS willstill be that ofinstruments.

Modification will bemade to the effect thatthe LR can register aninstrument under LROor a matter under LTO,if the supportinginstrument is stampedunder section 5(1) or13(2) or is anagreement for salementioned therein.


Items 51and 52 ofSchedule 2

The simple additionof a reference to“Land TitlesOrdinance” insections 4A and6(1)(a) of the Lands

Modification will bemade to include anyperson having anestate or an interest insuch land under aninstrument registered

Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December

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ResumptionOrdinance (Cap. 124)does not reflect thefact that not aninstrument but therelevant estate orinterest is registeredunder the LTRS.

under LRO or enteredin the Title Registerunder LTO.

2003)(Chinese versionissued on 4 December2003)


The definition of“owner” in section 2of the GovernmentRent and Premium(Apportionment)Ordinance (Cap. 125)is proposed to beamended to include amortgagee under amortgage registeredunder LRO or LTO.The proposedamendment does nottake account of thefact that only chargeswould be registrableunder LTO.

Modification will bemade to include amortgagee under amortgage registeredunder LRO or achargee of a chargeregistered under LTO.



The definitions of“relevant interest”and “section” insection 2 of theGovernment Rentand Premium(Apportionment)Ordinance (Cap. 125)are proposed to beamended to includean instrumentregistered under LROor LTO. Theproposed amendmentis not accuratebecause it would

Modification will bemade to include aninstrument registeredunder LRO or a matterregistered under LTO.


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result in referring to“an instrumentregistered…under theLand TitlesOrdinance”.


The definition of“owner” in section 2of the GovernmentRights (Re-entry andVesting Remedies)Ordinance (Cap. 126)is proposed to beamended to include amortgagee registeredunder LRO or LTO.However, onlycharges, and notmortgages would beregistrable under theBill.

The definition of“owner” in section 2of the GovernmentRights (Re-entry andVesting Remedies)Ordinance (Cap. 126)will be modified toinclude a chargee of acharge which isregistered under LTOand a mortgagee undera mortgage which isregistered under LRO.


Items 71 to74 ofSchedule 2

Claims for wrongfulregistrations underthe existing DRS andthe new LTRS shouldbe in line with eachother.

Subject to agreementon clause 73, theAdministration willpropose suitableconsequentialamendments to LROfor the purpose.


Item 72(b)ofSchedule 2

To reflect the policyintent that in theevent that acertificate of goodtitle could not beissued for a property,there would be noneed to apply for afirst registration ofthe property.

The Administrationproposes to amend theproposed new section23(1A) of LRO bydeleting “to whichsection 12 of the LandTitles Ordinance( of 2002) applies”and substituting“mentioned in section12 of the Land TitlesOrdinance ( of

Paper on “Response toDrafting Issues andIssues Raised byAssistant LegalAdviser”(LC Paper No.CB(1)2305/02-03(10))(English versionissued on 29 July2003)(Chinese versionissued on 1 August

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2002)”. 2003)


Section 7(1) of theNew TerritoriesLeases (Extension)Ordinance (Cap. 150)is proposed to beamended to includean instrumentregistered under LROor LTO. Theproposed amendmentmay needmodification becauseunder the LTRS, itshould be the interestthat would beregistered.

Modification will bemade to include aninstrument registeredunder LRO or a matterentered in the TitleRegister under LTO.



Section 4(4)(a) of theNew Territories(RenewableGovernment Leases)Ordinance (Cap. 152)is proposed to beamended to refer toany mortgage underLRO or LTO. Theproposed amendmentmay needmodification becauseonly charges arereferred to in the Bill.

Modification will bemade to “any chargeregistered under theLand TitlesOrdinance”.



The consequentialamendments to theSolicitors (General)Costs Rules (Cap.159 sub. leg.) shouldbe dealt with by theLaw Society as partof the overallarrangement for the

The Administrationagrees that the LawSociety would beresponsible foramendment to theabove rules.

Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese versionissued on 4 December

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implementation ofthe LTRS.

2003)

Items 87 to99 ofSchedule 2

It should be madeclear that section 35of the Conveyancingand PropertyOrdinance (CPO)(Cap. 219) does notapply to a transfer ofregistered land.Only registration oftitle would imply therelevant covenants.

The Administrationwill consider theproposed change.



Section 14(3)(c) ofCPO is proposed tobe amended toinclude the entry of anote of compliance inthe land registerrelating to the landkept under LRO orthe Title Registerrelating to the landkept under LTO.The proposedamendment refers toland register keptunder LRO andhence there is a needto clarify themeaning of “landregister” becausethere is no suchdefinition in LRO.

The term “landregister” will beamended to “register”.The same reference isadopted in sections 21,24 and 28 of LRO.



Instead ofintroducingconsequentialamendments tosections 16 and 17 ofCPO, it would be


Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December

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preferable for aseparate section toprovide for transfersof registered land.

2003)(Chinese versionissued on 4 December2003)


To examine whetherthe drafting of clause51 could achieve thepolicy intent of notchanging the currentlaw on the validityand enforceability ofcovenants in a DMCand to make aconsequentialamendment tosection 41(9) ofCPO.

The Administrationproposes to amendsection 41(9) of CPOto the effect that acovenant in the DMCregistered under LTOshall bind thesuccessor in title or thecovenantor and thepersons deriving titleunder or through himor them whether or notthey had notice of thecovenant. Item 94 ofSchedule 2 to the Billwill be amended togive effect to thisproposal accordingly.



Instead ofintroducing aconsequentialamendment tosection 42(2) of CPOas proposed,consideration shouldbe given to add aseparate provision tocover registered land.



Item 100ofSchedule 2

The new definition of“Land Registryregisters” in section 2of the LandTransactions (EnemyOccupation)Ordinance (Cap. 256)refers to “land


Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese version

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register kept underthe Land RegistrationOrdinance” but thereis no definition of“land register” in thatOrdinance.

issued on 4 December2003)


The proposedamendment tosections 4(5) and 6(8)of the Mass TransitRailway (LandResumption andRelated Provisions)Ordinance (Cap. 276)refers to “landregister kept underthe Land RegistrationOrdinance” but thereis no definition of“land register” in thatOrdinance.




The proposedconsequentialamendment tosection 7 of theRegistered TrusteesIncorporationOrdinance (Cap. 306)refers to “landregister kept underthe Land RegistrationOrdinance” but thereis no definition of“land register” in thatOrdinance.




Order 47, rule 7(4)(b)of the Rules ofDistrict Court (Cap.336 sub. leg. H) isproposed to be


Paper on “Schedules 1and 2 of the Bill”(LC Paper No.CB(1)468/03-04(01))(English version

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amended to includethe registration of acertificate underLTO. The proposedamendment deviatesfrom the principle ofregistration ofinterest under theLTRS and that a newparagraph to covercases involving landregistered under theLTRS should beconsidered.

issued on 1 December2003)(Chinese versionissued on 4 December2003)

Items 114 ,115 and116 ofSchedule 2

The proposedamendment tosections 3(2)(a),4(2)(b) and 6(2) ofthe DemolishedBuildings (Re-development ofSites) Ordinance(Cap. 337) refers to“land register keptunder the LandRegistrationOrdinance” but thereis no definition of“land register” in thatOrdinance.




The proposedamendments to thedefinition of “owner”in the BuildingManagementOrdinance (BMO)(Cap. 344) and tosection 5(5)(c)(iii) ofthe same Ordinancerefer to “land registerkept under the Land



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Clause no./Item no.


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RegistrationOrdinance” but thereis no definition of“land register” in thatOrdinance.


Paragraph 3(5)(a) ofthe Third Schedule ofBMO is proposed tobe amended toinclude anyinstrument registeredunder LRO or LTO.The proposedamendment isinconsistent with thefact that not aninstrument but therelevant estate orinterest is registeredunder the LTRS.


(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese versionissued on 4 December2003)


The proposedamendment toparagraph 13(c)(iii)of the EighthSchedule of BMOrefers to land registerkept under LRO butthere is no definitionof “land register” inthat Ordinance.



Items 134,135 and136 ofSchedule 2

The proposedamendments tosections 13(5), 15(8)and 35 of the Roads(Works, Use andCompensation)Ordinance (Cap. 370)refer to land registerkept under LRO butthere is no definition



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of “land register” inthat Ordinance.


Sections 4(2)(d) and5(1) of the SewageTunnels (StatutoryEasements)Ordinance (Cap. 438)are proposed to beamended to includean instrumentregistered under LROor LTO. Theproposedamendments mayneed modificationbecause they refer toinstrument registeredunder LTO.




The proposedamendments tosections 37(7)(a) and44 of the LandDrainage Ordinance(Cap. 446) refer toland register keptunder LRO but thereis no definition of“land register” in thatOrdinance.


Paper on “Schedules 1and 2 of the Bill“(LC Paper No.CB(1)468/03-04(01))(English versionissued on 1 December2003)(Chinese versionissued on 4 December2003)

Items 158,159 and160 ofSchedule 2

The proposedamendments tosections 18(4), 20(8)and 40 of theRailways Ordinance(Cap. 519) refer toland register keptunder LRO but thereis no definition of“land register” in thatOrdinance.



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The proposedamendments tosections 14(1) and (2)of the Fire Safety(Buildings)Ordinance (Cap. 572)refer to land registerkept under LRO butthere is no definitionof “land register” inthat Ordinance.



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Part B: Miscellaneous proposed amendments

Clause no./Item no.


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Whether there shouldbe a clause in the Billsetting out clearlythat once a person isregistered as theowner of a property,his title is absoluteexcept in certaincircumstances, e.g. incases where thepurchaser knows thatthe person selling theproperty is a minor.

The Administrationwill consider makingappropriateamendments to theBill.

Paper on “Part 6 of theBill - Instruments(Minors)”(LC Paper No.CB(1)600/03-04(03))(English versionissued on 17December 2003)(Chinese versionissued on 18December 2003)

It is not clear as towhether a personwho has suffered lossfrom default of aGovernmentemployee would becompensated directlyfrom the Governmentor through the IF.

The Administrationintends to set it outclearly in theregulations governingthe IF that the LandRegistry Trading Fund(i.e. Government) willreimburse the IF forany paymentsattributable tomistakes or omissionsby its staff.

Paper on “IndemnityScheme:Government’s Role”(LC Paper No.CB(1)2207/02-03(05))(English versionissued on 15 July2003)(Chinese versionissued on 16 July2003)

To reflect the policyintent that the IF isthe only source offunding for payingout indemnities underthe Bill.

The Administrationintends to specify inthe relevantregulations that the IFis the only source offunding for paying outindemnities under theBill.

Paper on “IndemnityFund Operation -SupplementaryInformation”(LC Paper No.CB(1)2464/02-03(03))(English versionissued on 17September 2003)(Chinese versionissued on 18September 2003)

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The Law Society isconcerned that itsprofessionalindemnity fund maynot recover from theIF for paymentsmade for lossescaused by the LandRegistry.

The Administration’sintention is that if aprofessional indemnityinsurer has paid outfor a loss that wascaused by the mistakeor omission of LandRegistry staff, theinsurer would beentitled to recover thatpayment from theLand Registry. TheAdministration isconsidering whetherand how the Billshould be amended tomake this intentionclear and will consultthe Law Society in thisregard.

Paper on “Response toSubmissions onIndemnity”(LC Paper No.CB(1)2207/02-03(07))(English versionissued on 15 July2003)(Chinese versionissued on 16 July2003)

Paper on “InitialResponse to the LawSociety’s Submissionof 27 June 2003”(LC Paper No.CB(1)2207/02-03(08))(English versionissued on 15 July2003)(Chinese versionissued on 16 July2003)

To define the ambitof the provisions tobe set out in theRegulations on theoperation of the IF.

The Indemnity FundRegulations willprovide for:

- establishing anindemnity fund;

- powers of theRegistrar underdirection from theFinancialSecretary;

- payments into thefund (which willbe defined toinclude paymentsfrom the Land


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Registry TradingFund due toindemnitypayments madeunder clause82(1)(b) and costsconnected with thatpayment);

- payments out ofthe fund;

- the financial yearand accountingrequirements; and

- reportingrequirements.

Need to retainsupportingdocuments

If the daylightconversion mechanismand the proposedchanges to the court'spower of rectificationof registered title inthe case of forgery areadopted, theAdministrationconsiders thatcompulsory retentionof certain titledocuments for futurereference is necessary.This could beachieved by requiringa current registeredowner to retain certaincore title documentssuch as assignmentsfor an appropriateperiod of time and, inthe case of a dealingover $30M, to keep all


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title deeds anddocuments. Asanction for failure tokeep the deeds may bean evidentialpresumptionunfavourable to thedefaulter on the issueof authenticity ofdocument or signature,etc. in any legalproceedings or disputeon title.

To advise the BillsCommittee of thetypes of land whichwould be defined as“new land”, and toprovide examples ofwhat would andwould not beregarded as such.

The definition will beset out in the CSAs.Basically, any newgrant which contains aclause which makesthe recipient liable toany interestsprevailing before thedate of the grant willnot be considered as“new land” but will berequired to go throughthe daylightconversion process.


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Part C: Proposed amendments to provide for the daylight conversion mechanism

Clause no./Item no.


Relevant paper

To provide for thedaylight conversionmechanism

A new Schedule 3 willbe added, containingall detailed provisionsgoverning the law andprocedure relating toall transactions andregistration of caveatsand cautions againstconversion for landremaining under thedeeds registrationsystem during the 12years interim period.Consequentialamendments will alsobe made to LRO toimplement theregistration of caveatsand cautions againstconversion.

Paper on “PositionPaper on CommitteeStage Amendments”(LC Paper No.CB(1)1057/03-04(01))(issued on 23February 2004)

To model the Bill onthe 1994 version ofthe previous LandTitles Bill with theaddition of aschedule setting outthe transitionalarrangements for the12-year period. Theschedule may bedeleted upon expiryof the 12-year period.

This general approachhas been agreed andwill be reflected in theCSAs presented.


To put in place alegislative oradministrativemeasure to effect a

The Administrationagrees that regularreview of theimplementation of the

Paper on “OutstandingResponses to MattersRaised by the BillsCommittee”

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review mechanismfor theimplementation ofthe daylightconversion systemduring the 12-yearperiod, so that anyproblem that mayarise in the interimcan be tackled in atimely manner. Toalso add a provisionin the Bill toempower theAdministration toextend whennecessary the 12-yearperiod.

new system isnecessary. Provisionto allow for extensionof the period beforeconversion will bemade as part of theCSAs.

(LC Paper No.CB(1)1425/03-04(02))(English versionissued on 31 March2004)(Chinese versionissued on 1 April2004)

Members note thatduring the 12-yearincubation period, allexisting or newlycreated unwrittenequities affectingunregistered land canbe protected byregistration of awarning noticeknown as “caveat”under the LandRegistrationOrdinance (Cap.128), and that thecaveat willautomatically takeeffect as non-consentcaution under theLTRS. In this regard,to consider the needto provide LR withthe power to refuse toregister a caveat

Details about theregistration andremoval of caveats –and the deemed non-consent cautions theybecome on conversion- are being dealt within the CSAs.


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which he considersunnecessary. Toalso consider whetherit is appropriate toallow all caveats toautomatically takeeffect as non-consentcautions. Analternative proposedby members is that acaveat will beregarded as anapplication for non-consent cautionunder the new LTRS.

On theAdministration’sproposal that theregistration ofcautions againstconversion can beextended by the courtat its discretion uponapplication by theend of the 12-monthvalidity period,members areconcerned that in theabsence of a limit onthe extension period,registration ofcautions againstconversion may beextended endlesslyand the court may beoverloaded with suchapplications. Toconsider the need toimpose a limit on theextension period.

The Administrationagrees that theextension of thevalidity of a cautionagainst conversionshall not be more than12 months in theaggregate, taking intoaccount the possibilitythat the extension maybe granted by the courton one occasion or onseveral successiveapplications for a shortperiod of extension.


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Council Business Division 1Legislative Council Secretariat14 April 2004

LC Paper No. CB(1)1544/03-04(01)

Documents

Transcript of LC Paper No. CB(1)1544/03-04(01)