Discussion on Hong Kong Land Registration Publicity System
Published:
2010-07-31
Abstract:The current land registration system in Hong Kong is a land lease registration system implemented in accordance with the Land Registration Ordinance of Hong Kong. Under this system, deeds and other documents related to properties must be submitted to the Land Registry for registration. In October last year, the author went to Hong Kong with a delegation to study and study, and took the opportunity to visit the Hong Kong Land Registry to study and think deeply about the legal system of land registration in Hong Kong, especially its land registration and publicity system, in order to explore the beneficial reference for the mainland real estate publicity and inquiry system. This paper first summarizes the legal system of land registration in Hong Kong in general, then focuses on the land registration publicity system, and finally, combined with the limitations of the mainland real estate publicity inquiry system, puts forward some enlightenments of the land registration publicity system in Hong Kong to the mainland.
Key words:land registration publicity contract registration system ownership registration system enlightenment
The land registration in Hong Kong follows the provisions of the common law system and establishes the land contract registration system, that is, registration is the element of the change of real right against the third party, so the system is also known as "registration confrontation". One of the major features of Hong Kong's land registration system is to give full play to the function of registration and publicity, and thus established the land registration and publicity system, that is, the public search system, which makes all land registration matters public to the public, which can effectively protect the right of counterparties to know, prevent transaction fraud and protect transaction security. The author believes that the complete publicity of land registration in Hong Kong provides a good inspiration and experience for the mainland to improve the real estate publicity inquiry system.
An Overview of the Legal System of Land Registration in Hong Kong in 1.
(I) the meaning of "land" in Hong Kong law
Under the Laws of Hong Kong[1]The provisions of section 2 of the conveyancing and property ordinance, cap 219, "land property" may be referred to as "land" or "immovable property", and its meaning is very different from that of the mainland[2], including:(1) a flooded area;(2) the land or any estate, right, interest or easement thereon;(3) the whole or part of an indivisible fraction of the land, and the land or any estate, right, interest or easement thereon;(4) things attached to the land or things secured to any such things. Thus, the definition of "land" in Hong Kong law is very broad, including not only tangible parts such as land, river bed or sea bed and objects attached to the ground, but also intangible rights related to land.[3]Unless otherwise specified herein, the meaning of the word "land" in the "Hong Kong Land Registration and Publicity System" includes land and real estate.
(II) the legal system of land registration in Hong Kong
1, land contract registration system.
Land registration in Hong Kong is registered and registered by the Land Registry in accordance with the Land Registration Ordinance, Chapter 128 of the Laws of Hong Kong in respect of all deeds, conveyances and other instruments and judgments in writing, including those affecting deeds, conveyances and other instruments and judgments in writing, and any parcel of land, tenement or premises in Hong Kong. This land registration system is the current land lease registration system in Hong Kong. The system emphasizes party doctrine, in real estate transactions, the parties' agreement to buy and sell is fully respected by the law, meaning is the most important factor in the change of property rights, and registration is only the element of the change of property rights against the third party. The Hong Kong Land Registry registers not title or ownership, but registration of relevant documents and judgments. Registration does not guarantee the integrity of the title of the transaction. Therefore, Hong Kong also implements a land registration publicity system to allow the parties to fully understand the true situation of the registered title. In order to prevent transaction fraud and ensure transaction security.
2. Land title registration system
In order to be able to determine the title of a property from the title register,[4]In order to protect property rights and interests, streamline property transfer procedures, and improve the efficiency and safety of property transactions, the Hong Kong Government intends to enact the Land Titles Ordinance.[5]Gradually replace the Land Registration Ordinance, which has been in place for more than 160 years. On July 7, 2004, the Hong Kong Legislative Council passed the Land Titles Bill, which was amended by all committee stage amendments moved by the Administration. However, the Ordinance has not yet come into effect. At present, the Land Registry has set up a steering committee and a review committee to review the Ordinance.[6]The Land Titles Ordinance will not come into effect until a number of outstanding issues are resolved. After it comes into effect, Hong Kong's land registration system will gradually transition from the land lease registration system to the land title registration system, but there will be a 12-year transition period. During the transition period, the two registration systems will exist in parallel. Under section 30 of the Land Titles Ordinance, any person may, upon presentation to the Director of an application for search or inspection, obtain an item required to be kept in the Land Registry under section 4, 5 or 6 of the Ordinance in accordance with the relevant provisions. In other words, even if the Land Titles Ordinance completely replaces the Land Registration Ordinance in the future, the land registration and publicity system in Hong Kong will continue.
2. Hong Kong Land Registration Publicity System
(I) Hong Kong Land Registration Authority
Hong Kong's land registration agency is the Land Registry, which was established in August 1993 and became one of the first government departments in Hong Kong to operate as a trading fund. The Land Registrar is the General Manager of the Land Registry Trading Fund. Under the trading fund model, the Land Registry remains a public organization, but it manages its own finances, with revenue derived from the costs of its services, and operates on a self-financing basis.[7]The operating fund model of the Hong Kong Land Registry provides the possibility for the complete publicity of land registration. This self-financing business model makes the Land Registry hope that more citizens will inquire about land registration information, and it also urges the Land Registry to actively Introduce various convenience measures to open various search services for citizens to facilitate inquiries.
Conditions and Procedures for (II) Land Registration in Hong Kong
Land registration in Hong Kong is registered as long as the right holder has made an appropriate memorandum, which is verified and signed by a Hong Kong registered practicing lawyer and then taken to the land registry where it is located. In Hong Kong, the Land Registry does not conduct substantive examination of the materials and does not assume responsibility for the authenticity of the registration materials. Therefore, almost all property transactions and land registration businesses will hire lawyers to handle, and if the lawyers represent the parties to prepare materials and handle land registration, the lawyers must be responsible for the authenticity of the memorandum and registration materials.
Due to the simplicity of the conditions and procedures for land registration in Hong Kong, especially when conducting property transactions, the transferee, in order to prevent transaction fraud, often has to check a series of registration deeds to confirm whether the transferor is the true owner of a property, thus also showing the need for a land registration publicity system. On the other hand, because the Land Registry does not conduct a substantive review of the registration materials submitted by the obligee, and does not assume responsibility for problems with the registration materials, for the proposed transferee, the land registration publicity system is important for facilitating its property transactions. Security is also particularly important.
(III) way of publicizing land registration in Hong Kong
The main purpose of keeping land records in the Land Registry is to facilitate property transactions. While carrying out land registration, special attention is paid to the publicity function. The parties can publicly consult all kinds of land records, which fully protects the right to know. Every time a property transaction is made, the parties and their attorneys can easily look up past deeds to verify whether the transferor of the property has real title to the property.
1. Various types of land records that can be publicly inquired
In Hong Kong, there are five main types of land records that can be publicly accessed:(1) land registers;(2) memorial registers;(3) memorial logs;(4) government leases; and (5) collective government leases. Whether ordinary citizens or practicing lawyers want to know the registration information of a certain property, as long as they pay a certain inquiry fee, they can obtain effective land record information at any time through counter inquiry, self-service inquiry, network inquiry and other ways.
2. Types of search books
A search means access to or obtaining a copy of a land record or both.[8]The Land Registry maintains information on land records in three forms: computer, microcosm and paper, and provides search services to the general public.
3. Search method
(1) Counter Search: Members of the public can visit the Customer Service Centre of the Queensway Land Registry and the New Territories Search Centres in person to use the counter search service, inspect the land register and order copies of land documents for properties in all districts of Hong Kong.
(2) Self-service search: Members of the public can visit the Customer Service Centre of the Queensway Land Registry and the New Territories Search Centres in person to use the self-service search service, inspect the land register and order copies of land documents for properties in all districts of Hong Kong. To use the self-service search terminal, you need to enter the relevant information first. If you find the required records, the computer will print out the payment form for the searchers to verify. During my visit to the Land Registry, I have witnessed the whole process of self-service search, which is both time-saving and convenient.
(3) online search: the public can also through the "integrated registration information system"[9]Online service for access to copies of land records. In this way, the public can easily access information such as land registers. Enquirers can choose to receive copies of land records by browser, download, email, fax, post and counter pick-up.
Limitations of Real Estate Publicity Inquiry System in Mainland 3.
Through the previous description of the land registration publicity system in Hong Kong, it can be seen that the publicity of land registration in Hong Kong is very strong, and the publicity measures are comprehensive and detailed, and the inquiry is convenient, which fully protects the right of the counterparty to know, prevents transaction fraud and protects the security of the transaction. The implementation of the publicity system is inseparable from the land registration system implemented in Hong Kong. It has its necessity and possibility, and it has also played an important role in practice. In contrast, although the mainland has also stipulated a public inquiry system for land and houses, the publicity is far less than that of Hong Kong, and the inquiry procedures are complicated, the inquiry subject is limited, the information inquired is limited, and the inquiry method and way are single.
(I) mainland real estate publicity inquiry system
1. According to Article 18 of the the People's Republic of China Property Law, right holders and interested parties may apply for inquiry and copy of registration materials, and the registration agency shall provide them.
2. According to Article 72 of the Land Registration Measures, Decree No. 40 of the Ministry of Land and Resources, the state implements a public inquiry system for land registration information. Land right holders and interested parties may apply for land registration information, and the administrative department of land and resources shall provide it. The public inquiry of land registration information shall be carried out in accordance with the provisions of the Measures for Public Inquiry of Land Registration Information.
3. According to the provisions of Articles 2 and 3 of the Measures for Public Inquiry of Land Registration Data issued by Decree No. 14 of the Ministry of Land and Resources, any unit or individual can inquire about the "land registration results" in the land registration data according to law, however, the inquiry subject of "original registration data" is limited to land right holders, units and individuals that have obtained the consent of land right holders, land registration agencies, national security organs, public security organs, procuratorial organs, judicial organs and discipline inspection and supervision departments.
4. According to the provisions of Article 7 and Article 8 of the Interim Measures for the Inquiry of Housing Ownership Registration Information issued by Decree No. 244 of the Ministry of Construction, units and individuals in the housing ownership registration information can make public inquiries, however, the inquiry subject of the "original registration certificate" is limited to the owner of the house or his principal, the heir of the house, the donee and the bequestee, the state security organ, the public security organ, the procuratorial organ, the judicial organ, the discipline inspection and supervision department and the securities regulatory department, the notary institution, the arbitration institution, etc.
Limitations of Real Estate Publicity Inquiry System in Mainland (II)
Due to the excessive emphasis on confidentiality of real estate registration materials in mainland China, it is generally only open to the right holders and clients, public security organs, notarization institutions and arbitration institutions, which leads to the inquiry of land and real estate registration in the mainland, which is very inconvenient.
1, real estate inquiry procedures are complicated. Through the above-mentioned provisions of the two inquiry methods of land and housing, it can be seen that to inquire about the registration information of a real estate in the mainland, it is often necessary to go to the land registration department and the housing management department to inquire about the registration information, which is time-consuming, laborious, and costly. The inquirer brings great inconvenience.
2. The lawyer's right to investigate the original registration information of land and real estate is restricted. When a lawyer conducts an investigation, the land registration department and the housing management department often use the regulations of the above two departments or the so-called "internal regulations" as an excuse to require the lawyer to produce the notice of filing a case, the power of attorney, the client's identity certificate, the lawyer's practice certificate, and the law firm certificate. The requirements far exceed the lawyer's practice certificate and the law firm certificate stipulated in the "Lawyers Law.
3, the registration information of the inquiry is strictly restricted. Information such as "land registration result" and "record information of housing ownership registration authority on housing rights" that are fully disclosed by land registration department and housing management department to units and individuals often have no practical use value for inquirers, while valuable "original registration information" and "original registration certificate" are limited to disclosure to obligees and clients, public prosecutors and law enforcement agencies, notarial institutions and arbitration institutions, and the requirement to provide legal and complete supporting documents violates the purpose of public registration information for the registration of real rights.
4, real estate publicity query methods and ways are too single. To inquire about land and housing registration information in the mainland, the inquirer is basically required to go to the window set up by the land registration department and the housing management department to inquire on the spot, and the inquiry time is basically limited to working days, which is very inconvenient for the vast majority of office workers.
The Enlightenment of 4. Hong Kong Land Registration Publicity System to the Mainland
The Enlightenment of (I) Hong Kong Land Registration Publicity System to the Integration of Land and Real Estate Registration in the Mainland
The land registration and publicity in Hong Kong is actually an integrated contract registration of "house and land". Compared with the mainland, this saves the public's inquiry time and reduces the burden of inquiry. Although Article 10 of the Property Law provides for a unified registration system for immovable property, that is, "the State shall implement a unified registration system for immovable property. The scope of unified registration, the registration body and the registration method shall be prescribed by laws and administrative regulations", so far, the State has not yet introduced a specific unified registration system, and the implementation of the unified registration system is uneven in various places, making the current real estate registration system in the Mainland rather chaotic. The author believes that one of the prerequisites for Hong Kong's land registration and publicity system to operate well and benefit the people is the registration system of "integration of housing and land". A unified registration agency is established within an administrative jurisdiction, and then it can be implemented and realized. The public inquiry system of real estate registration. Otherwise, under the current registration system in the Mainland, since the land registration agency and the housing registration agency are two independent government departments, once there is a lack of communication, the respective registration matters of the same land and real estate may be out of touch, or even appear. conflict. Therefore, learning from the Hong Kong model as soon as possible to build a unified real estate registration system is a prerequisite and necessary condition for improving the mainland real estate public inquiry system.
The Enlightenment of (II) Hong Kong Land Registration Publicity System to Improve the Mainland Real Estate Publicity Inquiry System
1. Expand the scope of the query subject
The comprehensive and meticulous, convenient inquiry, complete disclosure and protection of land registration in Hong Kong have achieved good results in practice, encouraging and protecting transactions to a large extent, and fully reflecting the democratization and openness of the legal system in Hong Kong. The author believes that Hong Kong's land registration publicity system is a good inspiration and useful reference for the mainland. Some time ago, the Construction Engineering and Real Estate Business Committee of a City Lawyers Association collected opinions from relevant lawyers in the city on the city's land and real estate publicity inquiries, sorted out and summarized the opinions to form a draft opinion, and then reported to the municipal land registration department and housing management. The department proposed and conducted communication and consultation, with a view to solving the problem of limited lawyers' investigation rights in land and real estate within the city. The author believes that this is a very meaningful exploration. It is not only a question of expanding lawyers' investigation power, but also a good time to realize the administration according to law, open administration and transparent administration in the mainland. The author suggests to learn from the advanced practices of Hong Kong for useful exploration.
It is recommended that, on the one hand, in accordance with the provisions of the Lawyers Law, the two departmental regulations of the "Measures for Public Inquiry of Land Registration Information" and the "Interim Measures for Inquiry of Housing Ownership Registration Information" should be revised to add "law firms can inquire and investigate and deal with" The provision of the original registration certificate directly related to the case "; at the same time, in order to prevent the phenomenon of illegal use of the land and real estate information inquired by individual lawyers, we can strengthen the supervision of the investigation and collection of evidence by law firms and practicing lawyers, and strengthen the professional ethics and practice discipline of lawyers. On the other hand, the right of lawyers to investigate and collect evidence comes from the Lawyers Law and is granted by the law. Therefore, when lawyers investigate the original registration certificates related to land and real estate in accordance with the law, they hope that the relevant departments will no longer be confined to the provisions of departmental regulations or "Internal regulations", but in accordance with the "Lawyers Law", actively cooperate with lawyers who hold legal and valid lawyer practice certificates and law firm certificates to investigate and collect evidence.
2. Increase the query scope of registration data
In Hong Kong, there are five kinds of land records and three kinds of search books that can be publicly inquired. The SAR government has not stipulated which kind of land records or search books are limited to which kind of subjects. That is to say, Hong Kong citizens can easily inquire about the land records and search books they need and all the registration information recorded in the land records and search books. The purpose of real right publicity is to disclose the registration information. Since the obligee registers real estate, the registration behavior shows that he does not regard the content to be registered as personal privacy or as a trade secret. The "Property Law" stipulates that right holders and interested parties can apply for inquiring and copying registration materials, but it does not limit the registration materials that can be inquired and copied to "land registration results" and "housing ownership registration authority on housing rights" Record information ", nor does it rule out the parties' right to inquire about" original registration materials "and" original registration certificates. Therefore, in order to comply with the purpose of publicizing property rights registration, it is recommended to learn from Hong Kong's practices, and in accordance with the latest laws and administrative regulations, the two departmental regulations of the ''Measures for Public Inquiry of Land Registration Information'' and the ''Interim Measures for Inquiry of Housing Ownership Registration Information'' are revised to increase the scope of real estate registration materials that can be publicly inquired.
The Enlightenment of (III) Hong Kong Land Registration Publicity System to the Construction of Diversified Real Estate Publicity Inquiry Mechanism in the Mainland
Hong Kong's land registration inquiry is flexible and diverse, and the procedures are simple, which can be divided into counter inquiry, self-service inquiry and online inquiry. To solve the problem of too single real estate inquiry methods and channels in the Mainland, we can learn from Hong Kong's advanced practices, add real estate inquiry methods, broaden real estate inquiry channels, make full use of modern network technical conditions, actively explore and implement online self-service inquiry service projects, and establish an online inquiry system adapted to the actual situation in the Mainland, and gradually build a diversified real estate public inquiry mechanism to provide mainland inquirers with convenient and efficient real estate public inquiry services.
[1]As Hong Kong's legal system is based on the common law, controversial cases or necessary provisions are promulgated and implemented in the form of written law. The Laws of Hong Kong are a compilation of statutory laws that are drafted by the Law Drafts Division of the Department of Justice or introduced by members of the Legislative Council in the form of private bills and passed by the Legislative Council.
[2]The mainland is collectively referred to as "real estate".
[3]See Chen Hongyi, Chen Wenmin, Li Xuejing, Lu Wenhui: An Introduction to Hong Kong Law (New Edition), Sanlian Bookstore (Hong Kong) Co., Ltd., October 2009 edition.
[4]In 1988, the former Registrar General of Hong Kong set up a working group to study the introduction of title registration in Hong Kong, taking into account the systems used in other comparable jurisdictions. Website:
[5]Chapter 585 of the Laws of Hong Kong.
[6]See Hong Kong Legislative Council Paper CB(1)1028-09(02): Study<土地业权条例>Meeting of the Joint Subcommittee on Revision Recommendations held on 19 March 2009 on<土地业权条例>Introduction to the background information.
[7]Website:
[8]Website: http://www.landreg.gov.hk/chs/services/services_ B .htm#1
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