CHEUNG WAH NIN AND OTHERS v. THE LAND REGISTRY AND ANOTHER

CHEUNG WAH NIN AND OTHERS v. THE LAND REGISTRY AND ANOTHER

The court held that substance governs over labels: the Deeds, by granting exclusive possession of defined areas for a term, created interests in land (tenancies) and, because they effectively disposed of the entire residue of the Grantors' leasehold estates up to the common expiry date, operated as assignments of the lease terms; accordingly the Deeds are instruments which affect land and are registrable under the Land Registration Ordinance, subject to compliance with the Ordinance's registration requirements and regulations.

Citation
CHEUNG WAH NIN AND OTHERS v. THE LAND REGISTRY AND ANOTHER
Parties
Plaintiffs: 1st to 4th plaintiffs (owners/grantors); Defendants: 1st and 2nd defendants (Land Registrar and Department of Justice)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 October 2016
Case Number
HCMP3337/2015
Procedural Posture
Miscellaneous Proceedings (hcmp 3337/2015) Originating Summons / Determination on Registrability (decision Delivered 7 October 2016)
Outcome
Question determined in favour of plaintiffs: the Deeds of Licence are registrable instruments in writing under the Land Registration Ordinance; no further declaratory relief granted; costs reserved
Legal Topics
Registrability of Instruments, Licence Versus Tenancy, Exclusive Possession, Assignment of Lease, Land Boundary Plan Requirements, Statutory Registration Compliance
Source Language
EN
Property Law Land Registration Landlord and Tenant Law Civil Procedure Registrability of Instruments Licence Versus Tenancy Exclusive Possession Assignment of Lease +2 more

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Parties

1st to 4th plaintiffs (owners/grantors)

Plaintiffs

1st and 2nd defendants (Land Registrar and Department of Justice)

Defendants

Procedural Posture

Miscellaneous Proceedings (hcmp 3337/2015) Originating Summons / Determination on Registrability (decision Delivered 7 October 2016)

Legal Issues

  1. 1 Whether the Deeds of Licence are registrable instruments under Land Registration Ordinance (Cap 128) ss 2 and 23
  2. 2 Whether the Deeds create only personal licences or grant exclusive possession thereby creating interests in land (tenancies)
  3. 3 Whether the Deeds operated as assignments of the remainder of the lease term by divesting the Grantors of their entire estate

Ratio Decidendi

The court held that substance governs over labels: the Deeds, by granting exclusive possession of defined areas for a term, created interests in land (tenancies) and, because they effectively disposed of the entire residue of the Grantors' leasehold estates up to the common expiry date, operated as assignments of the lease terms; accordingly the Deeds are instruments which affect land and are registrable under the Land Registration Ordinance, subject to compliance with the Ordinance's registration requirements and regulations.

Court Disposition

Question determined in favour of plaintiffs: the Deeds of Licence are registrable instruments in writing under the Land Registration Ordinance; no further declaratory relief granted; costs reserved

Orders

  • Determination: the subject Deeds of Licence are registrable instruments under the Ordinance
  • No additional declaration granted beyond the determination