LCQ16: Structures in breach of land leases on private agricultural land
Following is a question by the Hon Leung Che-cheung and a written reply by the Secretary for Development, Mr Paul Chan, in the Legislative Council today (July 2):
Recently, several members of the public have sought my assistance. They said that subsequent to their purchase of brick houses built on a piece of private land in Yuen Long, they were notified by the Lands Department (LandsD) that the land concerned was for agricultural use only, and therefore their brick houses were regarded as structures in breach of land leases (lease-breaching structures). Thereafter, LandsD invoked the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap. 126) (the Ordinance) to resume the land in question and ordered them to move out before the deadline. They had requested the seller to refund them of the money paid for the houses but were refused, and hence had reported to the Police for assistance. In this connection, will the Government inform this Council:
(1) of (i) the number of cases handled by LandsD involving lease-breaching structures erected for residential purpose on private agricultural land, and (ii) the number of such cases in respect of which LandsD invoked the Ordinance to resume the land concerned, in each of the past three years, broken down by District Lands Office district; and
(2) as it has been reported that after LandsD had discovered some time ago that the aforesaid brick houses were lease-breaching structures, it posted warning notices there, but the notices were torn off right afterwards, and as a result, the aforesaid assistance seekers did not know that the brick houses they had purchased were lease-breaching structures, whether LandsD will consider adopting other means which are more effective in notifying the public which buildings are lease-breaching structures, so as to prevent the recurrence of similar kind of incidents?
Under the current land administration policy, the Lands Department (LandsD) takes land control action against unauthorised structures on government land under the Land (Miscellaneous Provisions) Ordinance (Cap. 28), and takes lease enforcement action against structures erected on private land which are in breach of the lease.
The case cited in the question involves old scheduled agricultural lots in the New Territories which, according to the leases, do not permit erection of structures without prior approval. For this kind of unauthorised structures on private agricultural land, lease enforcement actions taken by LandsD include issue of warning letters to lot owners; registration of the warning letters in respect of the private agricultural lot concerned at the Land Registry (generally called "imposing an encumbrance"), and exercising the right of re-entering the private agricultural land concerned under the Government Rights (Re-entry and Vesting Remedies) Ordinance (Cap. 126). The specific enforcement actions at present include:
(a) Once it has come to LandsD's attention through patrol or receipt of complaints or referrals that an unauthorised structure is being erected on private agricultural land, a warning letter will be issued requiring the lot owner to stop the works and to demolish any uncompleted structures on site within one week. If the lot owner fails to comply, LandsD will proceed with demolition under the Land (Miscellaneous Provisions) Ordinance with a view to demolishing such structures before completion of the works and occupation of the structures, while the relevant costs will be recovered from the lot owners. If the structures being erected are of larger dimensions (which normally means structures of area and height exceeding those of a New Territories Exempted House), the Buildings Department (BD) will take corresponding enforcement actions under its regulatory regime according to the established division of work among government departments;
(b) For unauthorised structures on private agricultural land which have been completed and where the breach is not purged despite "imposing an encumbrance", LandsD will proceed with re-entry of the private agricultural land, under the lease and the Government Rights (Re-entry and Vesting Remedies) Ordinance. This course of action is now regarded as a standard practice. After re-entry, LandsD will give a reasonable time for occupants remaining on the lot (which has become government land) to vacate themselves, and thereafter arrange demolition of the structures in accordance with the Land (Miscellaneous Provisions) Ordinance. In case the ex-owner of the private agricultural land seeks relief against re-entry under the Government Rights (Re-entry and Vesting Remedies) Ordinance, the Administration may impose such conditions as it deems appropriate (e.g. demolition of the unauthorised structure) if it agrees to granting the relief. Depending on the caseload to be dealt with at any one time, individual District Lands Office may have to prioritise the cases. Factors to be considered in prioritisation may include the scale and gravity of the breaches as well as the potential hazards to the environment and hygiene;
(c) As an ancillary and supporting measure to enhance the effectiveness in identifying unauthorised building works in progress, new patrol routes will be plotted and frequency of air surveillance will be increased by LandsD, focusing on areas prone to new cases; and
(d) Where it is suspected that estate agents may have been involved in the sale or rental of unauthorised structures, including individual units therein, LandsD will refer such cases to the Estate Agents Authority for follow up action.
At the same time, when renting or purchasing any structure(s) or land with structure(s) erected thereon, the public should be mindful of whether there is legal title in relation to the relevant structure(s) or land, and whether the relevant structure(s) or land have breached the land lease or the law. Where necessary, independent legal advice should be sought with a view to avoiding suffering loss or being legally liable in case the Government enforces against such unauthorised structures or takes land control actions.
My reply to the various parts of the question is as follows:
(1) (i) From 2011 to 2013, the number of cases of complaint received and confirmed by LandsD to be relevant to unauthorised structures on private agricultural land is as follows:
(DLO) 2011 2012 2013
------------ ---- ---- ----
Hong Kong East 0 0 0
Hong Kong West
and South 0 0 0
Kowloon East 0 2 0
Kowloon West 0 0 0
Islands 4 14 4
North 144 109 127
Sai Kung 101 137 23
Sha Tin 5 9 7
Tuen Mun 20 23 27
Tai Po 0 23 83
Tsuen Wan and
Kwai Tsing 44 10 17
Yuen Long 285 279 333
---- ---- ----
Total 603 606 621
(ii) From 2011 to 2013, the Yuen Long DLO had, in accordance with the Government Rights (Re-entry and Vesting Remedies) Ordinance, re-entered the relevant private agricultural land in respect of two cases of unauthorised structures on private agricultural land, while the Sai Kung DLO and Tai Po DLO each had one case of re-entry.
(2) It is believed that the case quoted in this question is the one involving the lease-breaching brick houses at Lam Hi Road in Yuen Long. In connection to this case, the Yuen Long DLO received on February 26, 2014 an enquiry from the media concerning the said illegal brick houses on the land concerned. Officers of the Yuen Long DLO conducted a site inspection on the same date, confirming that there were unauthorised structures on the land concerned, and a warning letter was forthwith sent to the owner of the land concerned on February 27, 2014 requiring rectification of breaches before a deadline. As the owner did not rectify the lease-breaching situation before the deadline, the warning letter was registered under the land lot concerned on April 7, 2014 (generally called "imposing an encumbrance"). As the owner eventually did not rectify the lease-breaching situation before the deadline of the final warning specified in a subsequent warning letter, the Yuen Long DLO re-entered the land concerned on May 23, 2014 in accordance with the land lease and the Government Rights (Re-Entry and Vesting Remedies) Ordinance. The relevant instrument of re-entry was registered on the same date in the relevant records of the Land Registry, and a notice was also published on May 30, 2014 in Government Notice no. 3116 in accordance with section 5 of the Government Rights (Re-Entry and Vesting Remedies) Ordinance, announcing that the land concerned was resumed on May 23, 2014.
In addition, the Yuen Long DLO has referred the case to the relevant government departments for consideration of appropriate follow-up actions. It has also written to the Estate Agents Authority for appropriate follow-up on any possible unauthorised sale or rental involved in the case.
The Yuen Long DLO has posted the warning letters issued to the land owner at the site concerned, and has additionally sent officers to post a notice regularly at the site to give on-site notification to the occupier(s) and the public of the lease-breaching situation. Such an arrangement was mainly for supplementary notification. The Administration would like to remind the public that prior to purchasing or renting any structure(s) or land with structure(s) erected thereon, attention must be paid to whether there is legal title in relation to the relevant structure(s) or land and whether the structure(s) or land has/have breached the land lease or the law. They should also make an enquiry on the relevant land lease provisions and information with the Land Registry and seek independent legal advice where necessary. LandsD will strengthen publicity and public education to remind land owners and the public that erection of unauthorised structures on private agricultural land is in breach of the land lease, and the public should be alert of the risk of purchasing or renting such structures. Erecting structures on Government Land without permission in advance may even violate the law and face criminal liability accordingly.
Ends/Wednesday, July 2, 2014
Issued at HKT 14:30