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conveyances and mortgages (Part II passim) and the derivation of title in accordance with the Crown lease, grant or licence (section 49).
The ancient Chinese law governing leases is also described in the Memorandum and although it is now superseded by the leases granted by the British it will be of interest to consider it in comparison with modern customary agricultural leases.
"The relation between landlord and tenant is often a complicated one, chiefly owing to the system of perpetual lease. Under such leases the landlords have practically renounced all rights to the exercise of ownership and are content to do nothing further than to receive a yearly rent. They can sell this right to receiving rent, but the land is otherwise under the absolute control of the cultivators, who often sell their perpetual lease.
The landlord is called the owner of the "Ti Kwan" which may be termed the right of receiving rent. The tenant is said to possess the "Ti Min", or right of cultivation.
The most common practice in the case of land-owners who do not farm their own land, is for them to let it out to tenants, who pay them a fixed rent in kind or in money, the amount of which is settled beforehand. In bad seasons the landlords grudgingly reduce their rent on being asked by their tenants but they are not compelled to do so.
"Gompertz, writing in 1901, stated that short leases of agricultural land for a year were not uncommon and were usually determined at the end of the spring or autumn harvest by six months' notice on either side.109
Customary agricultural leases provide the subject-matter of quite a few disputes and this frequent consideration by the courts has caused this kind of lease to be particularly studied."
It has also resulted in there being available a few judicial decisions on this type of land tenure, which are regrettably absent, as already observed, in other branches of the customary law. The most important decision is that of Williams, Acting Chief Justice in the case of CHAN PUI and CHU YAN KIT. That was an appeal from the land officer sitting at Tai Po who had heard expert evidence on the local custom.