Registrability and Re-registration of Documents relating to land
This Circular is supplementary to Land Office Circular Memorandum No. 102 dated 21 September 1991.
There have recently been a number of cases where instruments have been lodged with the Land Office for registration which do not affect land. In particular, some solicitors have lodged unilateral documents by a stranger to the title in the form of a letter (to the registered owner) or a so-called "Memorandum of Beneficial Interest", which claim that the writer or maker of the instrument has a beneficial interest in property registered in the name of another person, whether by virtue of having contributed to the purchase money or mortgage repayment or otherwise. Such instruments do not themselves create any interest in land. They merely claim, unilaterally, that the person signing the letter or instrument has an interest in the property. Such instruments are NOT, therefore, registrable under the Land Registration Ordinance.
2. Unstamped Instruments
Since the enactment of the Stamp Duty (Amendment) Ordinance 1992 some solicitors have attempted to gain priority for Agreements for Sale and Purchase of residential property by lodging an unstamped duplicate for registration. The duplicate is then "temporarily" withdrawn and the stamped original is substituted later under the same memorial number. The Land Office will NOT accept an unstamped instrument for registration. It will, however, accept the original stamped instrument when it is delivered for registration but only under a new memorial number. Priority will then relate to the date of the stamped instrument or to the date of its delivery for registration under the provisions of the Land Registration Ordinance.
(Note: Since the enactment of Stamp Duty (Amendment) (No. 2) Ordinance 2014, agreements for sale of non-residential properties are also chargeable with stamp duty.)
3. Re-registration of Documents
Land Office Circular Memorandum No. 102 was issued with a view to clarifying the circumstances in which the Land Office might accept documents for re-registration so as to permit the correction of clerical errors where the alteration does not amount to a change in the legal effect of the instrument . By way of further clarification, instruments incorporating the following types of alteration are considered to amount to a change in the legal effect of the original instrument which will NOT therefore be accepted for re-registration:
- To change the parties, for example: A. B. Finance Ltd to A. B. Credit Ltd.;
- To use another form, for example: substituting a charge in modern form for an old form by simply scoring out the old form and stapling the new form onto it;
- To rectify an invalid execution;
- To rectify a misdescription of the premises; and
- To rectify a defective execution.
Acceptance of an instrument for re-registration by the Land Office does not imply any view of the Land Officer as to the precise legal effect for any purpose, including priority, either of the originally registered instrument, the re-registered instrument or the re-registration. Solicitors should consider such legal effect very carefully and, if necessary, take the advice of Counsel.
(Noel M. Gleeson)