(C.A.A
No.
7
Copy on 55249/2
ds.
•
CIVIL AFFAIRS ADMINISTRATION,
Lower Albert Road, Koxxxkxngx & x:
Hong Kong.
26th April, 1946.
Sir,
I have the honour to address you on the subject of Registration of Transactions affecting Land during the Japanese Occupation.
Part I of the Interim Policy Directive on Land in Malaya, a copy of which was forwarded to Colonel Strickland by Mr. K. K. O'Connor, has been very carefully considered.
Its application to Hong Kong has not been wholly possible owing to the existence of different circumstances in this Colony. A brief narration of these differences is essential before the draft legislation sent herewith is considered.
The Japanese authorities did not interfere with the Registers of Deeds in the Land Office kept there since the enactment of the Land Registration Ordinance of 184+. The Japanese adopted and ordered a new system of registration of their own based on the registration of houses and not of land, their theory being that only the house and not the land belonged to the owner. With this object in view, all house owners were called upon to register with the Japanese House Registration Office and, as a result, there are now in existence in the Land Office over 150 large registers in which were recorded particulars of ownership and all subsequent transactions. The old Land Office Registers were ignored.
Transactions during the Occupation were limited to (a) fresh assignments and (b) reassignments of mortgages executed before the Occupation. No fresh mortgages were allowed except for two which were executed shortly before the end of the Occupation period: these were paid off fin yen after the Re-occupation but before the Hong Kong currency was officially re-introduced into the Colony.
The forms of assignment and reassignment used by the Japanese were inadequate in at least four respects :
(a) They were not by deed and therefore did
not convey the legal estate.
(b) In a number of cases, they purported to
convey the house only and not the Land normally enjoyed with the house.
(c) Parcels were not properly described, and
rights of way, etc. were in many cases ignored.
(d) In the case of the discharge of mortgages
there was only payment of the mortgage debt and a receipt by the mortgagee. In most cases, no form of reassignment was employed.
THE RIGHT HONOURABLE
THE SECRETARY OF STATE FOR THE COLONIES,
COLONIAL OFFICE,
LONDON.
8
7
Page
Page
2.
There were in all about 5,000 transactions during the Occupation. In the interests of commerce it was soon realized that the Moratorium on dealings in land would have to be lifted in connection with properties unaffected by the Japanese Occupation. To this end, it was decided that all dealings during the Occupation should be entered into our old Registers in green ink in the proper place where such entries would have been made had they occurred in normal times. Use of the green ink (never be fore used in the Registers) enabled the person searching the Registers to see at once that the sale or discharge of the mortgage was one which occurred during the Occupation and its absence that the property was not dealt with during the Occupation.
When the transcription of Japanese transactions had been completed, the moratorium was accordingly lifted in respect of properties unaffected during the Japanese Occupation.
It was next decided that the Law Society's views should be sought on the legislation to be introduced to remedy the irregularities and illegalities which occurred during the Japane se administration. A letter, a copy of which is enclosed, was sent by the Land Officer to the Law Society, suggesting inter alia that legal recognition be given to Japanese assignments by deeming them to have vested the legal estate in the assignee. The object of this legislation was to save further expense on the part of the purchaser in connection with the title to his property. The Law Society's reply is also sent herewith, from which it will be seen that alternative proposals were submitted.
Further discussion resulted in the partial adoption of the proposals of the Law Society as being (a) the most practical method from the conveyancing point of view and (b) necessary in order ultimately to eliminate entirely from the record all documents which were executed during the Occupation.
A draft Ordinance has accordingly been prepared and is sent herewith. Section 5 gives legal effect to the Japanese document and enables a purchaser to act upon it. It will be noted that provision is made as to costs and expenses to be borne by the assignee. This is necessary because the Japanese documents, in most cases, did not contain covenants for further assurance. Section 7 aims at the saving of expense by enabling actions to be brought in the Summary Jurisdiction of the Supreme Court.
Provided there is no objection, it is proposed to enact the Ordinance at an early date after the restoration of Civil Government.
I have the honour to be,
Sir,
Your most obedient, humble servant,
Ms M.
Brigadier,
CHIEF CIVIL AFFAIRS OFFICER.
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