The law on illegal structures 僭建的法律 What is illegal structure 僭建的定義 The term “illegal structure” has widely attracted the attention from the media and the public because a few senior government officials are recently accused of permitting illegal structures to exist in their residences. While the issue will continue to be the “talk of the town” for a while, it will be useful if the meaning of “illegal structure” can be legally examined. In this article, we focus on the “illegal structure” in the urban areas because the enforcement of illegal structures in the New Territories is somehow different and governed by another set of rules. The term “illegal structure” does not appear in the Buildings Ordinance (Cap. 123). Illegal structure is equivalent to unauthorized building works in the Buildings Ordinance. Under section 2 of the Buildings Ordinance, “building works” (建築工程) includes any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and includes drainage works. For most of them, prior government approval is necessary. According to the Buildings Department, unauthorized building works (commonly known as 僭建 in Chinese) (“UBW”) means building works outside a building and additions or alterations inside a building involving the structure of the building, carried out without the prior approval and consent of the Building Authority. UBW may sometimes refer to all addition and alteration works carried out inside a building not involving the structure of the building but they do not comply with the building standards laid down for building works in the Building Regulations. Examples 例子 UBW includes:  Supporting frame for air-conditioner  Canopy 1  Signboard  UBW on podium  UBW on flat roof  Sub-division of a flat  Structural changes Legal responsibilities 法律責任 No person shall commence or carry out any building works without having first obtained the approval from the Building Authority (see section 14(1) of Buildings Ordinance). Each property owner therefore has a duty to ensure no UBW existing inside or outside his property. An order may be served by the Building Authority under section 24 of the Buildings Ordinance on the property owner requesting him to either (a) demolish the building works or (b) cause the building works to comply with the Buildings Ordinance. Furthermore, such statutory order will be registered in the Land Registry against the property thereby constituting an encumbrance of the property. The registration of the statutory order will only be vacated upon legal compliance by the property owner. If the property owner intends to sell the property prior to rectification work, the purchaser will usually request the vendor to bear the costs of compliance in order to discharge the statutory order. If the non-compliance is material, it may constitute a defect in title resulting in that the purchaser may refuse to complete the transaction of the landed property. Legal Consequences 法律後果 Pursuant to section 40 of the Buildings Ordinance, any person who knowingly contravenes section 14(1) in respect of building works (other than minor works) or street works shall be guilty of an offence. As a result, he shall be liable on conviction to a fine of HK$400,000 and to imprisonment for 2 years; and a daily default fine of HK$20,000 for each day of non-compliance. Enforcement 執行 For the enforcement, it is the responsibility of the Buildings Department. The purpose of obliterating illegal structures is to protect the public from damage to their lives and property. However, due to the limitation of Government’s resources, the Buildings Department is practically unable to investigate every building and unit to find out whether illegal structure exists. 2 Therefore, prioritization becomes the underlying principle of government enforcement against illegal structures. With effect from 1 April 2011, a new enforcement policy came into picture. The Buildings Department will issue statutory orders as said above to the breaching owners and register such orders against their relevant property titles in the Land Registry. Under the new enforcement policy, the Buildings Department focuses on the following actionable items: (a) items constituting obvious hazard or imminent danger to life or property; (b) new items (excluding the permitted exemptions) irrespective of the date of completion of the building where such items have been carried out; (c) items on the exteriors of buildings, including those on rooftops and podiums, in yards and lanes and projecting from external walls; (d) items in the interiors of buildings, constituting obvious hazard or imminent danger to life or property (e.g. sub-division of a flat into small units); (e) items in or on buildings, constituting a serious health or environmental nuisance (e.g. misconnection of drainage systems); (f) major standalone items; (g) a specific type of UBWs; and (h) unauthorized alterations to or works in green and amenity feature of a building (e.g. balconies, sky gardens and podium gardens). Minor Works Control System 小型工程監管制度 The rigidity of the statutory requirements under the Buildings Ordinance may not facilitate fitting-out works of a small scale (such as garden gates or canvas canopy) at home or in office. Since 31 December 2010, the Buildings Department implemented the Minor Works Control System (“MWCS”) so that they could monitor the compliance of building works indirectly through the prescribed building professionals (such as Authorized Persons) and prescribed registered contractors. A total of 126 items of building works have been included as minor works subject to the control under the MWCS. The minor works are classified into 3 classes according to their scale, complexity and risk to safety: 3  Class I (total 44 items) includes mainly those relatively more complicated minor works, to be carried out only by the prescribed building professionals and prescribed registered contractors;  Class II (total 40 items) comprises those of comparatively lower complexity and risk to safety, and they can be carried out by the prescribed registered contractors; and  Class III (total (42 items) mainly includes common household minor works, and they can be carried out by the prescribed registered contractors. The carrying out of minor works can now be commenced through the Simplified Requirements of the MWCS, without the need to obtain prior approval from the Building Authority. What the prescribed building professionals and prescribed registered contractors have to do is to comply with the prescribed requirements under each class of the works. Apart from the MWCS, the Buildings Department further introduced 15 items of "Designated Exempted Works", of which their complexity and risk to safety are lower than that of the minor works. In accordance with the Buildings Ordinance, the "Designated Exempted Works" may be commenced without prior approval of plans and consent for commencement of works from the Buildings Department, and without the need to appoint Authorized Persons and registered contractors for the purpose of carrying out the works. A few examples of “Designated Exempted Works” are:  Erection/alteration/removal of supporting structures for air-conditioning units and associated air ducts projecting from the external wall of building at a height not more than 3m above ground (the supporting structures do not project over any street or common part of the building).  Removal of supporting structures of height not more than 1 m high rested on ground or on a slab for air-conditioning units/water cooling towers/solar water heating systems/photovoltaic systems.  Removal of solid fence walls of height not more than 1.1 m and external mesh fences of height not more than 3 m. Deed of Mutual Covenants 大厦公契 It is worthwhile to take note that even if an erection/structure/an item of building works does not contravene the Buildings Ordinance, it may be regarded as a breach of the Deed of Mutual Covenant (大厦公契) governing the rights and obligations of each owner of a 4 building. For instance, in The Incorporated Owners of Mei Foo Sun Chuen Stage VI v Grandyield Knitters Limited [LDBM 110/2011], it was decided by a civil court (民事法院) that even if the Buildings Department does not require the removal of the air-conditioner fixed on the exterior wall of the building, such erection constituted a breach of the Deed of Mutual Covenant and had to be removed. Breach of Deed of Mutual Covenant gives rise to a civil action and liability. For UBW, it is a criminal liability (刑事責任) and the result could be penalty (罰款) and/or imprisonment. The point we wish to stress here is that a minor UBW may cause the property owner to face both civil and criminal liabilities as a result. If you are in doubt with UBW, please consult building professionals or registered contractors. You may also visit Buildings Department’s website www.bd.gov.hk to read more information. In December 2012, the Government further consulted the public on one controversial aspect of illegal structures i.e. signboards. The Government might relax the controls on certain signboards by reference to their size, thickness, height from the ground and the nature of places where the signboards are affixed. This topic should be of great interest particularly to mall managers when such boards are an inevitable part of mall appearances. Written by Maurice W M Lee Solicitors. The Senior Partner Maurice Lee is a Member of Institute of Shopping Centre Management Limited. Nothing herein shall constitute legal advice to any person by Messrs. Maurice WM Lee Solicitors (Tel: (852) 2537 5833) (Website: www.wmleehk.com) No person shall rely on the contents without our prior written consent. We assume no liabilities Copyright © 2013 Maurice WM Lee Solicitors 本文所載的內容均不構成李偉民律師事務所(Tel: (852) 2537 5833) (website: www.wmleehk.com)的法律意見未經我們事先書面同意, 任何人不得使用上述內容. 本所不承擔有關責任 ©2013 李偉民律師事務所版權所有 5