Q&A: what makes an ‘illegal structure’ in Hong Kong, and how you can change a flat without breaking the law
Buildings Department website keeps a register of professionals authorised to perform alterations, such as architects, building surveyors and structural engineers
Nathan Lee is chairman of the board of RICS Hong Kong, a building surveying, project management and environmental professional group. He talks about ways to legally alter the structure of a flat.
What is an illegal structure?
According to the Buildings Ordinance, all building works, including alterations and additions carried out on private premises, must have been approved by the Buildings Department. Therefore, all building works made without approval are considered as unauthorised structures or works.
Before purchasing a home, how can I determine if it contains illegal structures?
Ask the estate agent, as he or she is legally responsible for telling you the property’s condition to the best of his or her knowledge. If you want to check yourself, you could obtain a land search from the Land Registry and the latest building plans from the Buildings Department, and check it against the existing layout or structure of the property, especially the rooftop. You may also hire a professional, usually an authorised person recognised by the Buildings Department, to do the job for you.
What if I want to install racks on the balcony, combine two units, add a staircase, or build a greenhouse?
Every work has to be looked at on a case-by-case basis. If the work does not involve altering the structure of the building, or contravene other building regulations, it is regarded as exempt under section 41 of the Buildings Ordinance, and may be carried out without the need to obtain approval from the Buildings Department. If the work falls within the designated minor works items, it may be carried out without the need to obtain approval. There are other factors to consider if it involves the structure of the building. In the case of removing a partition wall between two units, you might need an expert to determine if it is a structural wall. In some cases, it is stipulated in the title deed and/or the government lease that the building must comprise a certain number of residential units and maintain a certain home-to-parking-lot ratio. Removing a wall between two units might reduce the number of residential units and may not be allowed. Therefore, removal of partition walls in domestic premises should comply with the building standards stipulated in the building regulations. In the case of adding an internal staircase to connect the top floor to the rooftop terrace, if the size of the staircase proposed exceeds the size accepted by the minor works control system or it involves altering the structure of the building, the work has to be approved by the buildings department separately. Since adding a greenhouse or enclosing a balcony would result in an increase in gross floor area, it would result in contravention of the condition of exemption and may result in contravention of the Buildings Ordinance. Owners and occupants are advised to consult an authorised person on the feasibility of the proposed alteration or addition works for compliance with the law.
Who are authorised persons?
The Buildings Department website keeps a register of persons authorised to perform statutory duties. Authorised persons, such as architects, building surveyors and structural engineers, are responsible for ensuring that the construction and building works are in compliance with the requirements of the law and its subsidiary legislation. The Royal Institution of Chartered Surveyors website provides a list of companies licensed to provide consultancy services on building works and compliance audit.
I have received an order from the Buildings Department to remove an illegal structure. What if I want more time? What are the consequences of a delay?
You may explain why you need more time. But you are always advised to follow the order without delay. Failure to comply with the order without reasonable reason may result in prosecution and/or enforcement action by government to carry out the works on your behalf or both, and subsequently recover the cost of the works plus supervision charge and a surcharge from you.