LETTER OF THE LAW

New students set straight on the law of the land

Subject especially important in HK, where space is scarce and there are many demands on it

PUBLISHED : Tuesday, 24 September, 2013, 12:00am
UPDATED : Tuesday, 24 September, 2013, 4:41am

At the start of the academic year, the first lecture in the law programme offers the chance to explain to a new generation of students why land law is so important and fascinating (before the thought of impending exams begins to impose its own more urgent demands).

It ought to be an easy task explaining the importance of land law in Hong Kong, where land is so scarce and there are so many competing demands upon it. Land law provides - for the most part - certainty as to who owns it and the extent of the owner's rights.

This certainty is a precondition for the emergence and operation of a market. In the absence of a land law system, the idea of owning land would be very different from what we take for granted.

It may not even be possible to speak of land ownership at all. We might be reduced to a transient, nomadic connection with the land or to serfdom.

So far I've spoken of "land ownership". One of the most fundamental ideas that has to be explained, however, is that the Hong Kong legal system does not speak of "land" ownership, but rather, of the ownership of an estate or interest in land.

The idea of the estate allows several different types of person to derive a benefit from the same parcel of land at one and the same time. The tenant can enjoy possession while the financial institution has the security rights offered by the legal charge - or mortgage.

Land law explains how ownership rights arise and how the rights of different estate owners interact with each other.

It is the stuff of many courtroom dramas. It is also at the heart of the lesser dramas well known to the management office of a residential development, such as who is to pay for repairs or the damage caused by a leaking pipe.

Land law provides solutions in domestic ownership conflicts. It is relevant, for example, to the question of how ownership rights are distributed between family members or the enforcement of an elderly relative's promise to give property to their son and daughter-in-law. It provides some safeguards for the wife who guarantees the business indebtedness of her husband.

Law students usually intend to practice as lawyers and many of the biggest, most complex deals involve property development or investment.

So land law is interesting for its technical sophistication and its practical relevance. A further attraction for the law student lies in the career opportunities of property law.

Perhaps the most important point, however, is that the land law system both shapes and is shaped by the society that it serves. The legal system and the parts of it studied in land law are a fundamental part of our economic and social infrastructure.

 

Professor Michael Lower of Chinese University's Faculty of Law teaches and researches land law