Legislative Council Question 6 : "Adverse possession of unleased government land" by the Hon Patrick Lau and an oral reply by the Secretary for Housing, Planning and Lands, Mr Michael Suen, in the Legislative Council
Following is a question by the Hon Patrick Lau and an oral reply by the Secretary for Housing, Planning and Lands, Mr Michael Suen, in the Legislative Council today (February 8):
It has been reported that the Court of Final Appeal recently ruled that land in "adverse possession" in the New Territories were not affected by the New Territories Leases (Extension) Ordinance, and that for the land in the New Territories taken in possession both before and after 1997, it was not necessary to take 1997 as the commencement date in calculating the number of years of adverse possession of the land concerned. These rulings apply to the illegally occupied private or government land in the New Territories. Moreover, the New Territories Land Boundary Survey Plans currently in use by the Government were drawn up in 1904. Such plans are not only too sketchy and incomplete but are also outdated. Although the Lands Department has been updating the relevant land boundary information, the progress is too slow and hence grey areas or inaccuracies have long existed in some of the land boundaries. As a result, the locations of some of the leased land as shown in the land boundary plans do not tally with their actual locations. In this connection, will the Government inform this Council:
(a) as the existing legislation provides that a piece of government land will become the occupant's property after it has been continuously occupied for 60 years, whether the authorities have assessed the number of Government land lots in the New Territories which have become the land of the relevant occupants as a result of the above provisions and rulings; of the sizes of the land involved and the amounts of revenue foregone in terms of land premium and Government rent etc, as well as the measures taken by the authorities to prevent government land in the New Territories from unauthorized occupation;
(b) whether it has any policies or measures to prevent and deal with legal proceedings on ambiguous or controversial New Territories land boundaries arising from the relevant rulings; and
(c) of the measures taken by the authorities to rectify the mistakes in the land boundary records, so as to avoid privately owned land lots being incorrectly shown as government land on the relevant records, thereby causing the land owners concerned to be regarded as having taken possession of government land while the private land as shown on the relevant records are left in disuse?
By way of background, I wish to outline briefly the judgment recently delivered by the Court of Final Appeal on a case involving adverse possession of private land in the New Territories.
At the outset, there is a time limit to bring legal action to recover land in adverse possession. The limitation period to bring action to recover Government land is 60 years from the date on which the right of action accrued, and that for private land is 12 years*.
The judgment of the Court of Final Appeal (CFA) concerns cases involving the lot owners and squatters of private lots in the New Territories. The New Territories land leases expiring before June 30, 1997 was extended by the New Territories Leases (Extension) Ordinance, Cap 150. The CFA held that this did not give rise to any new lease and hence the time period after the return of sovereignty should continue to accrue towards the number of years of adverse possession. However, as Cap. 150 does not apply to unleased Government land, the judgment of the CFA is not applicable to adverse possession cases over unleased Government land.
I wish to respond to individual parts of the question now:
(a) Under the Land (Miscellaneous Provisions) Ordinance (Cap. 28), it is unlawful to occupy unleased Government land for private use without permission. Any person who, without reasonable excuse, does not cease to occupy unleased land as required by a notice issued by the Authority shall be guilty of an offence and be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.
The total area of the Hong Kong Special Administrative Region (HKSAR) is 110,173 hectares, leased and managed by the HKSAR Government. Of these, around 31,860 hectares of land are unleased, most of which are located in the New Territories and outlying islands. Due to the large-scale clearance exercises undertaken for the development of new towns and large-scale infrastructure projects in recent years, unlawful occupation of Government land has been significantly reduced.
Through different means and channels, the Government also strengthens land control to prevent unlawful occupation of unleased Government land. Legal actions will be taken against unlawful occupiers of Government land to deter them doing so. If unlawful occupation is found by land control officers, appropriate action will be taken to rectify the situation, for instance by invoking the relevant provisions in Cap. 28. If circumstances permit, the District Lands Offices may also issue short-term tenancies to occupiers, thereby bringing the uses associated with unlawful occupation of unleased Government land regularized. This can generate revenue and reduce the possibility of unlawful occupation. If necessary, the District Lands Offices will fence off unleased Government land which are prone to unlawful occupation, and put up warnings at prominent locations to deter persons who wish to occupy such land unlawfully.
If a person wishes to apply to the Court claiming adverse possession over unleased Government land, the onus of proof is on the claimant, and he needs to satisfy the court that he has been occupying the relevant unleased Government land during the required period of time without interference or being challenged. In view of the land control measures I mentioned just now, we believe it would be very difficult for the claimant to provide sufficient evidence to establish his case.
(b) & (c) I would answer parts (b) and (c) of the question jointly, as both of them concern land boundary records.
Over 210,000 private lots in the New Territories are held under Block Government Leases, and are known as old schedule lots. These old schedule lots were surveyed one hundred years ago using graphical survey method for the purpose of recording ownership and related taxation purposes.
The number of the lots involved is great, and to re-survey their boundaries according to the present survey standards will require huge resources and considerable amount of time. According to an estimate by the Hong Kong Institute of Surveyors, such a re-survey will cost about $1.9 billion and require 10 years.
Under the resources constraints, it will not be possible for the Lands Department to re-survey the boundaries of all old schedule lots. Notwithstanding this, the Department will during the course of its work, such as land resumption for infrastructure projects, processing development of land and processing of small house applications, conduct surveys for lots with unclear boundaries and will update the land boundary records if and when the needs arise. In the longer run, if resources permit, the Lands Department will consider undertaking more re-survey of old schedule lots.
If it is detected by the Lands Department during the course of its work that the boundary of a lot is inconsistent with the record, a deed of rectification can be entered into with the lot owner and the land boundary record updated.
However, if the lot owners concerned do not agree with the rectification, or if the lot owners concerned cannot be located, there will be difficulties in establishing the re-surveyed lot boundary.
*The Limitation Ordinance, Cap. 347, was amended in 1991 which amended the limitation period to bring action to recover private land from 20 years to 12 years.
Ends/Wednesday, February 8, 2006
Issued at HKT 15:37