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information on this aspect can be found in Appendix D. A term of any relief that might be given against such re-entry and forfeiture could equitably be that the costs of clearance of the site be paid but the Committee are of the opinion that the further suggestion made by Mr. Griffin that another of the terms of relief might be the imposi- tion of a building covenant is necessarily a matter which is within the discretion of the Court or Governor-in-Council as the case may be, and as such is open to the objection that it would tend to burden both these institutions without achieving uniformity or expedition.
The Basic Remedy.
10. (1) The Committee concludes--
(a) that if re-development can be assured, the machinery for enforcing site clearance need not receive so much attention, since re-develop- ment presupposes site clearance as a preliminary step, and
(b) that the most useful method available to ensure re-development is a power of sale, since a stipulation regarding re-development can be made on the sale. The Committee are of opinion, however, that this power of sale is not to be used as a matter of course; it is a necessary remedy in the case of the unwilling owner, and to provide a means of procedure when the owner cannot be traced.
(2) At present, however, the only way such a power of sale can be exercised is by re-entry for breach of covenant, followed by a hiatus of twelve months during which period a lessee can petition the Governor-in-Council or the Court for relief against the re-entry.
(3) The Committee is of opinion that development should not be delayed for so long as twelve months, in view of the considerations that nearly three years have elapsed since the re-occupation, graphic accounts have repeatedly appeared in the Press of the Colony illustrative of the urgency of the problem, and in any case certain further means of warning owners are provided for in the legislation the Committee proposes.
Equitable Treatment.
11. The Committee has borne in mind that the Crown in its function of Government must not be confused with the Crown in its position of ground landlord, and Legislation for the sole purpose of bettering the Crown's position as lessor, though it might not infringe any rule of law, must be avoided because a contractual relation- ship between parties should normally not be interfered with. Moreover, the property owners in the Colony are a cross section of the whole community which includes much that is valuable, representing a class that has a permanent interest in Hong Kong. They certainly cannot claim favoured treatment, but they are entitled to fair and equitable treatment. Measures that might be in the nature of expropriation cannot therefore be resorted to, but it is justifiable to alter where necessary the machinery and procedure for enforcement of covenants contained in the contract between parties. That has already been done to a considerable extent in the Crown Rights (Re-entry) Ordinance, 1870, which the Committee consider it will be desirable to amend in certain particulars.
The Missing Owner.
12. It is to be supposed that in some cases owners have left the Colony with no intention of returning, and that in other cases owners are dead, perhaps killed in the same catastrophe that destroyed their property. In other cases, probably not many, owners consider that property is not worth the expense of clearing and re-developing. Such cases are covered by the suggested machinery, and it appears to be right that covenants should be enforced up to the value of an owner's interest in the property concerned, and no further, so that in the normal case obligations incurred will not be enforced by suing the owner, but by proceeding against the property itself. It may be, though the Committee consider it unlikely, that in a few cases the cost of effecting clearance will be greater than the site value after clearance has been effected; should it be so it is considered it is a fair concession that the excess cost shall fall on Govern- ment.