Sunday, September 18, 2016

Alice Lee on Land Registration in Hong Kong and Problems of Statutory Interpretation (HKLJ)

"Land Registration: Validity, Priority and Statutory Interpretation"
Alice Lee
Hong Kong Law Journal
2016, Vol. 46, Part 2, pp 415-444
Abstract: The Land Registration Ordinance (Cap 128) was enacted at the inception of the Colony to provide for the registration of deeds as opposed to the registration of titles. The registration system that it has established is still operating well after all these years. Its success is attributable in no small part to the statutory incentives for registration. While s 3(1) provides that registered instruments shall have priority according to the order in which they are registered, s 3(2) imposes a severe penalty on those who fail to register — an unregistered instrument shall, as against any subsequent bona fide purchaser or mortgagee for valuable consideration, be absolutely null and void to all intents and purposes. Most of the time, the sub-sections are simply applied without much discussion on the meaning of “priority” or “null and void”. Yet some recent cases have triggered a debate on the interpretation of s 3(2) and whether its wording is consistent with the overall scheme of deeds registration, which is said to be concerned with priority rather than validity. It is time that we examined the Ordinance under the Bennion lens. This article seeks to demystify the key provisions of the Ordinance and reveals the intricacy of statutory interpretation.

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