| Monograph : Encumbrances |
Contents |
| |
| |
4. |
Registrable encumbrances |
| |
|
|
| |
|
| a. |
Under the Land Registration Ordinance
(Cap.128), "deeds, conveyances and other instruments
in writing, and judgments" affecting land
can be registered at the Land Registry. Examples
of registrable encumbrances are legal charges/mortgages
and charging orders. |
| |
|
| b. |
The priority of registered documents depends on
the date of registration. Unregistered but registrable
encumbrances (for example, a legal charge) are not
enforceable against a subsequent bona fide purchaser
or mortgagee for valuable consideration irrespective
of whether the purchaser or mortgagee has notice
or not of such encumbrances. |
| |
|
| c. |
However, it should be noted that non-registration
of a bona fide lease at rack rent not exceeding
three years does not affect the legal effect or
priority of such a lease. |
| |
|
| d. |
It is the Land Registry's usual practice that,
on the land register of a property obtained through
a land search at the Land Registry, all instruments
other than those recorded under the heading of "Owner
Particulars" are recorded under the heading
of "Incumbrances". It should be noted
that those instruments recorded under "Incumbrances"
are not necessarily encumbrances on the title and
each such instrument should be checked carefully.
|
|
| |
|
|
| |
5. |
Unregistrable encumbrances - valid third
party interest |
| |
|
|
| |
|
| a. |
There are other encumbrances which
are not created by instruments in writing and are
thus not registrable in the Land Registry. They
are commonly referred to as unwritten equities,
examples of which are occupiers' rights and
resulting trust. |
| |
|
| b. |
A purchaser may take property free from non-registrable
interest provided he has no actual or constructive
notice of such interest. |
| |
|
| c. |
In order to avoid being presumed to have notice
of valid third-party interest, it is advisable for
a purchaser to inspect the property carefully and
to make due enquiry as the circumstances warrant.
For example, purchasers should enquire whether an
adult occupier (other than the owner) has any interest
in the property.
|
|
|
