Presentation on theme: "Castles in the Air A mans home is said to be his castle. Are home- owners in multi-storey buildings secure in their possession under the scheme of compulsory."— Presentation transcript:
Castles in the Air A mans home is said to be his castle. Are home- owners in multi-storey buildings secure in their possession under the scheme of compulsory sale of Cap. 545?
Castles in the Air and Cap Magna Carta, the origin of the concept that an Englishmans home is his castle - Article 17 of the ICCPR - Article 29 of the Basic Law - Land Tribunal Decision LDCS 11000/ Kelo v. City of New London 545 U.S Article 105 of the Basic Law
Former President of the Lands Tribunal, Goron Cruden: "The enactment of the ….Ordinance in 1999 effected a radical change to Hong Kong compulsory land acquisition laws. For the first time, machinery was provided for the private owners of a majority of shares in a multi-owned building to compulsorily purchase the remaining privately owned shares for the purpose of redevelopment…This Ordinance was the culmination of long voiced complaints by developers. A major obstacle to private redevelopment of multi-owned buildings and land was frequently claimed to be the difficulty of assembling all the shares of different owners of multi-owned buildings and land with separate units in the exclusive occupation of different owners into sole ownership. The claim was that a redevelopment proposal could be frustrated by dissenting minority owners. The problem raised fundamental issues of the extent to which, in the interest of desirable private redevelopment, the law should permit inroads to be made into the right of private ownership of property. (contd…)
Former President of the Lands Tribunal, Goron Cruden: The statutory power to permit the compulsory purchase by a private owner of another private owner's estate or interest in land owned by them as tenants-in-common in specified undivided shares, goes considerably beyond previous legislation. Where Government or a public statutory body resumes land it is required to be for a 'public purpose'…. On the other hand (1) the compulsory powers of the …Ordinance do not have any public purpose requirement; (2) the Government is not involved in the compulsory sale process; and (3) compulsory purchases are normally only for one building or associated or connected nearby buildings. The private purchases are generally made for spot development for private profit and are not part of a wider comprehensive development plan for the public good."
Good Trader Ltd. V. Hingking Investments Ltd Presiding Officer, Judge Wong: "So when the age of the building is relied on as the sole ground to justify redevelopment, the building must be 'old' enough to justify redevelopment. But how old must the building be before the Tribunal can grant an order for sale?...how do we determine at what age a building should be redeveloped? The Ordinance does not stipulate that a building should be redeveloped when it attains a certain age such 40 or 60. We do not think it should be the right approach to fix a certain figure on the age either. A building that is designed to last for 100 years may still be considered young when it is 40 years old. A building that is designed to last for 50 years may be considered to be old at the age of 40 years. So it will not be sensible to fix a certain number of years as the age to justify redevelopment."
Intelligent House Ltd v. (25 Respondents) LCDS 11000/2006
ICCPR Article No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.
Basic Law Article 29 The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident's home or other premises shall be prohibited.
Basic Law Article 6 The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.
Hong Kong Bill of Rights Article 14 Protection of privacy, family, home, correspondence, honour and reputation (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks. [cf. ICCPR Art. 17]
Basic Law Article 105 The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property. Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay. The ownership of enterprises and the investments from outside the Region shall be protected by law.
Chapter 545 Land (Compulsory Sale for Redevelopment) Ordinance
Cap.545 Land (Compulsory Sale for Redevelopment) Section 3 (5) Subject to subsection (6), the Chief Executive in Council may, by notice in the Gazette, specify a percentage lower than the percentage mentioned in subsection (1) in respect of a lot belonging to a class of lots specified in the notice and, in any such case, subsection (1) and the other provisions of this Ordinance shall be construed as if, in relation to a lot belonging to that class of lots, that percentage so specified were substituted for the percentage mentioned in subsection (1).
Cap.545 Land (Compulsory Sale for Redevelopment) Section 4 (2) The Tribunal shall not make an order for sale unless, after hearing the objections, if any, of the minority owners of the lot the subject of the application under section 3(1) concerned, the Tribunal is satisfied that
Cap.545 Land (Compulsory Sale for Redevelopment) Section 4 (2) (a) the redevelopment of the lot is justified (and whether or not the majority owner proposes to or is capable of undertaking the redevelopment) (i) due to the age or state of repair of the existing development on the lot; or (ii) on 1 or more grounds, if any, specified in regulations made under 12; and
Cap.545 Land (Compulsory Sale for Redevelopment) Section 4 (2) (b) the majority owner has taken reasonable steps to acquire all the undivided shares in the lot (including, in the case of a minority owner whose whereabouts are known, negotiating for the purchase of such of those shares as are owned by that minority owner on terms that are fair and reasonable).
Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (Made by the Chief Executive in Council under section 3(5) of the Land (Compulsory Sale for Redevelopment) Ordinance (Cap.545)) L.N.6 of 2010
1.Commencement This Notice Comes into operation on 1 April Interpretation In this Notice industrial building ( ) means a building the whole or any part of which is approved by the Building Authority for any of the following uses under a plan approved under the Building Ordinance (Cap. 123) (a) godown; (b) any industry in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed; Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
industrial zone ( ) means a zone that is set apart for industrial use in a draft plan prepared by the Town Planning Board or approved by the Chief Executive in Council under the Town Planning Ordinance (Cap. 131) occupation permit ( ) means an occupation permit issued by the Building Authority under section 21(2) of the Building Ordinance (Cap. 123) relevant date ( ), in relation to a lot in respect of which an application is made under section 3(1) of the Ordinance, means the date of the application; unit ( ) means any premises that are described by reference to a specified number of undivided shares in a lot in any instrument registered in the Land Registry. Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
3.Specification of percentage 80% is specified as the percentage required for the purposes of section 3(1) of the Ordinance in respect of a lot that belongs to any class of lot specified in section 4. 4.Specification of classes of lot (1) The following classes of lot are specified for the purposes of section 3 (a) a lot with each of the units on the lot representing more than 10% of all the undivided shares in the lot; (b) a lot with each of the buildings erected on the lot issued with an occupation permit at least 50 years before the relevant date; Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
(c) a lot that is not located within an industrial zone and each of the buildings erected on the lot (i) is an industrial building; and (ii) was issued with an occupation permit at least 30 years before the relevant date. (2) For the purposes of the class of lot referred to in subsection (1)(a), if (a) a unit in a building is subdivided into 2 or more units on or after 1 April 2010; and (b) the subdivision does not involve (i) any alteration to the size of any common area of the building; or (ii) any change in a persons liability in relation to the common areas and facilities of the building under the common law or any emactment, those units are regarded as one single unit. Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice
Quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? _ Cicero What more sacred, what more strongly guarded by every holy feeling, than a man's own home?
Magna Carta (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
Sir Edward Coke ( 1628) "For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]. "
William Blackstone's Commentaries on the Laws of England: "And the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with immunity: agreeing herein with the sentiments of ancient Rome …."
US Constitution, 5 th Amendment "…nor shall private property be taken for public use without just compensation"