The meaning of Land Law! (estate management) student!
Estates in land
You don’t own land but rather an estate in land
The title of this section sums it up! Under Hong Kong’s system of land law, you don’t directly own land (the physical reality). A landowner actually owns an estate in land. An estate is a bundle of rights and duties in relation to some parcel of land. Ownership of an estate in land is the closest that you can come to being an owner of land. InStreet v Mountford, Lord Templeman spoke of a tenant as being:
The title of this section sums it up! Under Hong Kong’s system of land law, you don’t directly own land (the physical reality). A landowner actually owns an estate in land. An estate is a bundle of rights and duties in relation to some parcel of land. Ownership of an estate in land is the closest that you can come to being an owner of land. InStreet v Mountford, Lord Templeman spoke of a tenant as being:
‘able to exercise the rights of an owner of land which is in the real sense his land, albeit temporarily, and subject to certain restrictions.’ ([1985] AC 809 at 816).
Time is at the heart of the idea of an estate
The central distinguishing feature of an estate is the element of time. The doctrine of estates creates ownership interests that last for a given period of time. Dividing ownership up into slices of time makes sense when one is dealing with an asset that is as long-lasting as land is. In English law there are two principal estates. The first is the fee simple (where the estate has an unlimited duration) and the second is the lease (where the estate lasts for a specified term). The fee simple is virtually unknown in Hong Kong and the leasehold estate is the dominant estate.
The central distinguishing feature of an estate is the element of time. The doctrine of estates creates ownership interests that last for a given period of time. Dividing ownership up into slices of time makes sense when one is dealing with an asset that is as long-lasting as land is. In English law there are two principal estates. The first is the fee simple (where the estate has an unlimited duration) and the second is the lease (where the estate lasts for a specified term). The fee simple is virtually unknown in Hong Kong and the leasehold estate is the dominant estate.
The estates in land known to Hong Kong land law
Section 2 of the Conveyancing and Property Ordinance states that:
“legal estate” (法定產業權) means-
(a) a term of years absolute in land;
(b) the legal interest in any easement, right or privilege in or over land for an interest equivalent to a term of years absolute; and
(c) a legal charge;
The doctrine of estates emphasises the radical title of the Hong Kong government
Under Hong Kong’s land law system, then, land is held under the terms of a lease for a specified term. The ultimate owner is the Hong Kong government. Article 7 of the Basic Law provides that:
Under Hong Kong’s land law system, then, land is held under the terms of a lease for a specified term. The ultimate owner is the Hong Kong government. Article 7 of the Basic Law provides that:
‘The land and natural resources within the Hong Kong Special Administrative Region shall be State property. The Government of the Hong Kong Special Administrative Region shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region.’
Speaking of the position in English law (which is the source of Hong Kong’s land law system and where the ultimate owner is the Crown) Gray & Gray say:
‘The Crown’s radical title is, in truth, no title at all but merely an expression of the Realpolitik which served historically to hold together the medieval theory of land tenure. The empirical fact of territorial sovereignty should not be equated with some notion of absolute beneficial ownership of the land. Such a concept was probably quite alien to the medieval cast of mind.’ (Kevin Gray and Susan Frances Gray, Elements of land law, (5th ed), (Oxford, Oxford University Press, 2009), p. 58.
In Hong Kong, the Basic Law contains provisions (in articles 120 – 123) concerning leases. Article 120 declares that leases existing at the date of the handover will continue to be recognised. Annex III to the Joint Declaration deals with land leases. Paragraph 3, for example, allowed the British Government (until the handover) to grant new leases for terms expiring not later than 30 June 2047.
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