More on unauthorised structures

August 7, 2011

The proliferation of unauthorised structures in Hong Kong has its root in a combination of physical, cultural, economical and legal causes, as explained in last month’s Market Watch. But the main cause stems from a lack of execution of Building Regulations and Building Orders and the fact that, despite the registration of a building order, nothing stops a sales transaction from proceeding should the seller and buyer so decide.

The Buildings Department has always been slow in taking actions against unauthorised structures, possibly due to a lack of manpower. It would be impractical to expand the civil service, however, because it would entail both increased bureaucracy and spending of public funds. But the private sector could easily assist, via its thousands of qualified building professionals, including architects and building surveyors, known as Authorised Persons under Buildings Ordinance.

Under current law, all property sales must be registered with the Land Registry for legal protection of property rights. It could be legislated that each transaction also requires a certificate of compliance endorsed by an Authorised Person. This would certify that the property under consideration complies with Building Regulations and, in the Authorised Person’s opinion, no unauthorised structures exist. Laws could be enacted stating that the Land Registrar will not permit registration of the sale without this certificate.

Again under current law, a copy of the approved building plan must be attached to the sale and purchase agreement registered with the Land Registry – this is largely in force for ‘Consent Scheme’ properties, i.e. the sale of which needs special approval by the relevant government departments, but it could be extended to all types of properties.

When a property is to be renovated/decorated, the owner, responsible designer or contractor could be required to register with the Land Registry the decoration plan endorsed by an Authorised Person, certifying that the proposed scheme complies with all relevant regulations.

As noted earlier, under current legislation, a sale can still proceed if both buyer and seller opt to go ahead even if a building order has been registered against a property. But if it were enacted that the order must be complied with before a new transaction can be registered, the burden of ridding the property of unauthorised structures would be put squarely on the seller.

These measures together would be strong enough to wipe out unauthorised structures and deter owners from violating the relevant regulations.

By Koh Keng-shing