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Monograph : Encumbrances Contents
 
  5. Consent from public bodies
     
   
a.

General

The Government has through provisions in the government grant or through legislation controlled the disposal of property by requiring prior consent before disposal in certain situations.

   
b.

Hong Kong Housing Authority

Owners of properties under the Home Ownership Scheme ("HOS") and Tenants Purchase Scheme ("TPS") are restricted from alienating their flats on the open market within a five-year period (from the date of the first assignment). After the expiration of that period, and after receiving the assessed premium which must be paid prior to the assignment to a third party, the Housing Authority will issue a "letter for removal of the alienation restrictions". Failure to obtain such removal of the alienation restriction before disposal of the property may render the title defective. Since June 2005, owners of HOS and TPS flats within the 3rd to the 5th year of the said five-year period may also apply to the Housing Authority ("HA") to assess the premium, but before they may sell their flats on the open market, they have to offer to assign the flats to HA. If HA rejects the offer, an owner may then sell the flat on the open market, subject to paying the assessed premium before completion.

Transfer of property between relatives with consent of HA but without the payment of a premium is generally made by way of an "assignment at nil consideration" or "deed of gift".

   
c.

Hong Kong Housing Society

The Hong Kong Housing Society operates housing schemes such as the Sandwich Class Housing Scheme and the Flat for Sale Scheme which have alienation restrictions similar to those found in the housing schemes operated by the Housing Authority. The flats are subject to a five-year resale restriction and owners have to pay a premium to the Hong Kong Housing Society before they can sell their units on the open market.

   
d.

T'so/T'ong

Certain land in the New Territories to which the New Territories Ordinance applies is held under the name of a clan, family or t'ong ("t'ong"). Such t'ong shall appoint a manager to represent it. The manager has the power to dispose of land held in the t'ong's name subject to the consent of the Secretary for Home Affairs. Failure to obtain such consent may render the title defeasible.

   
e.

Small houses in the New Territories

The Small House Policy allows male indigenous villagers of a village in the New Territories which has been in existence since 1 July 1898 to apply for permission to erect small houses for their own habitation. The government grant usually contains a provision to the effect that consent from the District Land Officer is required to dispose of or alienate the property within a certain period of time (usually three or five years) from the issue of the certificate of compliance. Failure to secure such consent may give rise to government's right to re-enter the property.

   
f.

Consent scheme

The government grant usually contains certain restrictions on alienation before the issuance of a certificate of compliance with conditions of the government grant. Should a developer wish to sell units in the development before the certificate of compliance is issued, prior written consent from the Director of Lands must be obtained. The developer will have to fulfil certain obligations and give certain undertakings to obtain such consent. Such obligations and undertakings are intended to provide greater protection to purchasers of uncompleted units in the development.

Failure to obtain such consent before alienation is a non-compliance with the conditions of the government grant and may lead to government re-entry and render the title defective.

   
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