PARTITION ORDINANCE

PARTITION ORDINANCE

'LAWS OF HONG KONG

PARTITION ORDINANCE

CHAPTER 352





CHAPTER 352

PARTITION ORDINANCE

ARRANGEMENT OF SECTIONS

Section Page

1. Short title................................. ... ... ... ... ... ... 2
IA. Interpretation ............................ ... ... ... ... ... ... ... 2
2. Power to order partition or sale of property in land ... ... ... ... ... ... 2
3. Institution of proceedings and parties thereto ... ... ... ... ... . ... ... 2
3A. Addition of Attorney General as defendant ... ... ... ... ... ... ... ... 3
3B. Memorandum for stay of proceedings ... ... ... ... ... ... ... ... ... 3
4. Partition of property in land ... ... ... ... ... ... ... ... ... ... ... 4
5. Court may apportion rights and obligations and create easements ... ... ... 5
6. Sale of land ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 5
7. Application of proceeds of sale... ... ... ... ... ... ... ... ... ... ... 6
8. Vesting order ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6
9. Jurisdiction of District Court ... ... ... ... ... ... ... ... ... ... ... 6
10. Power to make rules ... ... ... ... ... ... ... ... ... ... ... ... ... 6
11.....................Transitional .......... ... ... ... ... ... ... ... 6





CHAPTER 352

PARTITION

To amend the law relating to the partition and sale ofproperty in land
under co-ownership.

[4 July 1969.]

1. This Ordinance may be cited as the Partition Ordinance.

1A. In this Ordinance, unless the context otherwise requires-

'Court' means the High Court or the District Court;

'Director' means the Director of Buildings and Lands;

'Partition Rules' means rules made under section 10.

(Added, 19 of 1987, s. 2)

2. Subject to this Ordinance, where any property in land is held by
2 or more persons, whether as joint tenants or as tenants in common, the
Court may

(a)make an order under section 4 for a partition of the property;

(b) make an order under section 6 for a sale of the property; or

(c) refuse to make any order.

3. (1) Where any property in land is held in the manner referred to
in section 2, any person interested in such property may institute
proceedings in the Court under this Ordinance by way of an action for
partition or sale.

(2) In any proceedings under this Ordinance the Director shall be
served with such documents relating to the proceedings as may be
prescribed by the Partition Rules. (Added, 19 of 1987, s. 3)

(3) Subject to subsection (2), proceedings under this Ordinance
may be instituted against one or more of the persons interested without
serving the other or others, and no defendant may object for want of
parties. (Amended, 19 of 1987, s. 3)

(4) At the hearing of the proceedings the Court may direct such
inquiries as to the nature of the property, the persons interested therein
and such other matters as it thinks necessary or proper, and it may add
any person as a party whose presence before the Court is considered
desirable; and where a person is added as a party by the Court under
this subsection, the person having the conduct of the proceedings shall
serve notice of the addition on the Director. (Amended, 19 of 1987, s. 3)





(5) Subject to subsections (6) and (7), the Director and every
other person interested in any manner shall be served with notice of
the judgment or order of the Court, and the provisions of the Rules
of the Supreme Court dealing with service of notice of judgment
shall thereupon apply. (Amended, 19 of 1987, s. 3)

(6) Where it appears to the Court that notice in accordance
with subsection (5) cannot be served or cannot be served without
expense disproportionate to the value of the property, the Court
may, if it thinks fit, by order-

(a)dispense with such service on any person or class of
persons mentioned in the order; and

(b)direct notices to be published at such time and in such
manner as it thinks fit, calling upon all persons claiming to
be interested in the property and who have not been
served, to establish their claims before the Court within a
time specified in the notice,

and after expiration of the time specified, all persons claiming to be
interested shall be bound by the proceedings as if they had been
served in accordance with subsection (5).

(7) Subsection (6) shall not apply to service on the Director.
(Added, 19 of 1987, s. 3)

3A. (1) In any proceedings under this Ordinance the Attorney
General may at any stage of the proceedings apply to the Court to be
joined as a party, and on such application the Court shall add him as
a defendant.

(2) The Attorney General shall serve notice of his addition as a
party, on every other party to this proceedings.

Any provision in this Ordinance or the Partition Rules by
which any document is required to be served on the Director shall,
where the Attorney General is added as a defendant under subsec-
tion (1), have effect thereafter as if it required the Attorney General
to be served as a party and not the Director.
(Added, 19 of 1987, s. 4)

3B. (1) In any proceedings under this Ordinance, at any stage
except after the addition of the Attorney General if such be the case,
the Director may notify in writing the parties of his intention to seek
advice on any matter arising out of the proceedings and shall file in
Court a memorandum of such notification and no fee shall be
charged in respect of the memorandum.

(2) Where any memorandum -is so filed in respect of pro-
ceedings, then, unless otherwise ordered by a judge, the proceedings
shall, by virtue of this section, be stayed for such period, being not
less than 14 days, as may be prescribed, and during such period
(unless otherwise ordered by a judge) time fixed by or under any law
or otherwise for the doing of any act or the taking of any step in the
proceedings shall not run.





(3) The filing of a memorandum under this section-

(a) shall not operate to prevent the making of-

(i) an interlocutory order for an injunction or for the
appointment of a receiver or manager or receiver and manager;
or

(ii) any other order which, in the opinion of a judge, is
necessary to prevent an irremediable injustice;

(b)unless otherwise ordered by a judge, shall not operate to
prevent the institution or continuance of proceedings to
obtain, enforce or otherwise carry into effect any order
mentioned in paragraph (a) or a decree to the like effect.

(4) The period for which proceedings are stayed by virtue of this
section may be reduced or extended by order of a judge.

(5) The powers of a judge under this section in relation to a
memorandum may be exercised by the Registrar, subject to any
provisions in the Supreme Court Ordinance or rules made thereunder in
respect of the jurisdiction of the Registrar in proceedings for the grant
of an injunction.

(6) In this section-

'judge', in relation to proceedings, means a judge of the court in which
the proceedinoare pending; and

'Registrar' means the Registrar of the Supreme Court and includes a
deputy or assistant registrar.

(Added, 19 of 1987, s. 4)

4. (1) In any proceedings instituted under this Ordinance the Court
may, subject to subsection (2), make an order for the partition of
property in land in any of the following ways

(a) into parcels held by single owners in severalty;

(b) into parcels held by 2 or more owners as joint tenants;

(c)into parcels held by 2 or more owners as tenants in common,

any may partition the property in all those ways or in any combination
of them and give all necessary or proper consequential directions.

(2) Where there is a building on any land, the Court shall not
partition the property in that land so that part only of a building stands
on any parcel into which the property in the land is partitioned unless
that part of the building is self-contained and is not connected to the
remainder of the building otherwise than by a party-wall or a mutual
staircase, or both,

(3) No order for partition shall prejudice any person other than a
party to the proceedings.





5. (1) The Court may, at any time after it has made an order under
section 4 for the partition of the property, on the application of any
person interested or of its own motion, make an order under this
section, which order may

(a)apportion or adjust between the several parcels into which the
property is partitioned any rights, obligations or liabilities in
force in respect of the property;

(b)create, as between the several parcels into which the property
is partitioned, or any of them, any easement, together with
rights and obligations attaching thereto,

and any order under this section shall have effect as if all necessary
dispositions or agreements had been duly made for that purpose by all
persons concerned.

(2) In any proceedings under this Ordinance any order made under
subsection (1) shall be served on the Director by the person having the
conduct of the proceedings. (Added, 19 of 1987, s. 5)

6. (1) In any proceedings under this Ordinance, where it appears to
the Court that a partition of the property would not be beneficial to all
the persons interested by reason of

(a) the nature of the land to which the proceedings relate;

(b) the number of the persons interested or presumptively
interested;

(e)the absence or disability of some of the persons interested; or

(d) any other circumstances,

the Court may make an order for the sale of the property.

(2) The Court may exercise its powers under subsection (1),
notwithstanding the dissent or disability of any person interested.

(3)(a) Without prejudice to subsection (1), if any person
interested in the property applies to the Court to make an
order for the sale of the property instead of an order for
partition, then, unless the other persons interested undertake
to purchase the interest of the party applying for an order for
sale, the Court may, if it thinks fit, make an order for the sale of
the property.

(b)If an undertaking is given by the other persons interested, the
Court may order a valuation of the interest of the person
applying for an order for sale in such manner as it thinks fit.

(4) On making an order under subsection (1) or subsection (3), the
Court may direct a distribution of the proceeds of the sale and give all
other necessary or proper consequential directions.

(5) On a sale under this section the Court may allow any of the
persons interested in the property to bid at the sale, on such terms as
the Court deems reasonable as to





(a) non-payment of deposit; or

(b)setting off or accounting for the purchase money or any part
thereof instead of paying the same; or

(c) as to any other matters.

7. (1) The proceeds of a sale of property under an order under
section 6 may, after deduction of the expenses thereof, be paid to
trustees appointed by the Court.

(2) Trustees appointed under subsection (1) shall apply the
proceeds of sale paid to them in the following order

(a)in the discharge of any liability due to the Crown in respect of
the property; and then

(b)in the discharge of any incumbrance affecting the property
directed to be sold; and then

(c) in payment of the residue to the persons interested.

8. (1) Where any judgment has been given or any order made for a
partition or sale of property under this Ordinance, the Court may make a
vesting order, consequential thereon, under the Trustee Ordinance.

(2) [Deleted, 2 of 1972, s. 8]

9. Jurisdiction is hereby conferred on the District Court for the
purpose of any proceedings under this Ordinance where the annual rent
or the rateable value, determined in accordance with the provisions of
the Rating Ordinance, or the annual value of the property in land,
whichever is the least, does not exceed the sum mentioned in section 35
of the District Court Ordinance, and in such proceedings a District
Judge shall have the power and authority of a judge of the High Court
conferred by this Ordinance.

(Amended, 6 of 1979, s. 3 and 79 of 1981, s. 3)

10. The Chief Justice may make rules in regard to any matter to be
prescribed under this Ordinance and dealing generally with all matters
of practice and procedure and incidental matters arising out of this
Ordinance, and for carrying this Ordinance into effect.

(Added, 19 of 1987, s. 6)

11. Nothing in the Partition (Amendment) Ordinance 1987 ('the
amending Ordinance') shall affect any proceedings commenced under
this Ordinance before the commencement of the amending Ordinance
and any such proceedings may be continued under this Ordinance as if
the amending Ordinance had not been

enacted. (19 of 1987, s. 7, incorporated

Originally 36 of 1969. 2 of 1972. 6 of 1979. L.N. 20/79. 79 of 1981. 19 of 1987. Short title. Interpretation. Power to order partition or sale of property in land. [cf. 1540 c. 32, s. 1.] Institution of proceedings and parties thereto. (Cap. 352, sub. leg.) [cf. 1868 c. 40, s. 9.] [cf. 1868 c. 40, s. 9.] [cf. 1868 c. 40, s. 9.] (Cap. 4, sub. Leg. O. 44, r. 3.) 1876 c. 17, s. 3. Addition of Attorney General as defendant. (Cap. 352, sub. leg.) Memorandum for stay of proceedings. (Cap. 4.) Partition of property in land. 1540 c. 32, s. 2. Court may apportion rights and obligations and create easements. Sale of land. [cf. 1868 c. 40, s. 3.] [cf. 1868 c. 40, s. 5.] 1868 c. 40, s. 6. Application of proceeds of sale. L.N. 20/79. Vesting order. (Cap. 29.) Jurisdiction of District Court. (Cap. 116.) (Cap. 336.) Power to make rules. Transitional (19 of 1987.)

Originally 36 of 1969. 2 of 1972. 6 of 1979. L.N. 20/79. 79 of 1981. 19 of 1987. Short title. Interpretation. Power to order partition or sale of property in land. [cf. 1540 c. 32, s. 1.] Institution of proceedings and parties thereto. (Cap. 352, sub. leg.) [cf. 1868 c. 40, s. 9.] [cf. 1868 c. 40, s. 9.] [cf. 1868 c. 40, s. 9.] (Cap. 4, sub. Leg. O. 44, r. 3.) 1876 c. 17, s. 3. Addition of Attorney General as defendant. (Cap. 352, sub. leg.) Memorandum for stay of proceedings. (Cap. 4.) Partition of property in land. 1540 c. 32, s. 2. Court may apportion rights and obligations and create easements. Sale of land. [cf. 1868 c. 40, s. 3.] [cf. 1868 c. 40, s. 5.] 1868 c. 40, s. 6. Application of proceeds of sale. L.N. 20/79. Vesting order. (Cap. 29.) Jurisdiction of District Court. (Cap. 116.) (Cap. 336.) Power to make rules. Transitional (19 of 1987.)

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