Recognising proprietary interest in frozen embryos Author - LING, Hiu Lok Introduction It has long been a dream for infertile couples to start a family. As such, in vitro fertilisation (IVF) is gaining ground to help couples who have passed their “prime time” for natural conception. As shown below, statistics indicate that the number of embryos stored by reproductive technology centres (RTC) has doubled from that of a decade ago, proving IVF’s popularity. Graph 1. Embryos Stored by Reproductive Technology Centres in Hong Kong (2009-2021) Yet with its prevailing use, disputes concerning frozen ..read more

Introduction Remedial discretion is one of the defining characteristics of proprietary estoppel. Once the essential elements of proprietary estoppel have been established, the court decides on the relief needed to undo the unconscionability. This flexibility is one of the strengths of proprietary estoppel, enabling the courts to consider a wide range of factors and do justice as between all the parties involved. The courts have tried to articulate the principles that guide them in the exercise of this discretion and there is an abundance of judicial pronouncements and academic literature refle ..read more

You are invited to a meeting of the online Property Law Discussion Group at 12.15pm on 26 May (Wed). The speaker is Ms Yasmine Zahir, Barrister-at-law, Liberty Chambers. Her topic is: ‘Treasure Hunting for the Golden Buddha’ and her presentation looks at property claims for cultural property. Participation is open to any students and alumni with an interest in Property Law. The Group hopes to have at least one or two meetings a month, perhaps more. We can talk about any Property Law issues of interest to you. There will be a brief 5 – 10 minute presentation and then discussion. The meeting wil ..read more

by Professor Michael Lower, CUHK LAW Introduction This blog post takes as its starting point the statement of Hon L Chan J. in Ng Yuk Pui Kelly v Dung Wai Man ([2019] HKCFI 210) that proprietary estoppel can be used to give effect to informal dealings in land ‘where constructive trust and proprietary estoppel overlap’ ([471]). Where does this idea come from and what does it mean? I begin by reminding the reader of the formalities rules for contracts concerning land and for dispositions of equitable interests in land and of the ways in which equity can intervene to give effect to contracts and ..read more

by Mr. Fung Lap Tin, CUHK LAW PCLL candidate Introduction Can I grant a lease over the Ocean Park? Common sense says that I cannot, because I do not have any proprietary interest over it. Surprisingly, the House of Lords in Bruton v London & Quadrant Housing Trust took the contrary view. This article will consider whether Bruton was decided wrongly. This question matters because it seems absurd that, following Bruton, a person who has no proprietary interest in land is entitled to carve a lease out of nothing in favor of another person. The decision is wrong because the need for the granto ..read more

by Professor Michael Lower, CUHK LAW Toms v Ruberry In Toms v Ruberry ([2019] EWCA Civ 128), the forfeiture clause in a business lease required the landlord to give 14 days’ notice of a breach. Only if the breach was not remedied at the end of the 14 days did the landlord have the right of re-entry. Section 146 of the Law of Property Act 1925 is the English equivalent of section 58 of Hong Kong’s Conveyancing and Property Ordinance. In this post, I refer to section 146 but the importance for the Hong Kong reader depends on the very close similarity between it and section 58. Section 146 provid ..read more

Author - Michael Lower The lease / licence distinction and why it matters If a landowner agrees to allow someone else to occupy his or her property, the occupier is either a tenant or a licensee. Whether a contract creates a lease or a licence can have very important legal and regulatory consequences. Private sector leases in the United Kingdom, for example, are likely to be assured shorthold tenancies and to be regulated by the Housing Act 1988. The Landlord and Tenant Act 1985 imposes a number of significant obligations on landlords of dwelling houses in the United Kingdom. Neither of these ..read more

Author - Michael Lower The inference of a trust when the family home is owned by a company controlled by a spouse In Prest v Petrodel Resources Ltd the UK Supreme Court established that English family law (specifically section 24 of the Matrimonial Causes Act) does not give the court any special power to pierce the corporate veil in the case of disputes concerning the family home owned by a company controlled by one of the spouses. In an important passage of his judgment, however, Lord Sumption suggested that, 'in the case of the matrimonial home, the facts are quite likely to justify the infe ..read more

Author - Jenny To Introduction Dixon proposed that ‘Stack is all things to all judges’ (Dixon, 2007, 460) given that the court is entitled to consider the ‘whole course of dealings’ when inferring the parties’ intentions as to beneficial ownership under a common intention constructive trust (‘ the CICT’). In this sense, Stack privileges flexibility over certainty. This approach resembles the judicial discretion concerning the fashioning of equitable relief in proprietary estoppel (‘PE’) in that the court now responds retrospectively to the conduct of the parties. This article addresses three i ..read more

Author - Sam Kwan Chun Wai Introduction The lease is considered a legal estate in Hong Kong (section 2, Conveyancing and Property Ordinance (Cap. 219)), and has long been acknowledged to be both a contract and a proprietary interest in land (Lee & Goo, 2015; Dixon, 2016). Yet, the House of Lords decision in Bruton-v London-&-Quadrant Housing Trust controversially espouses the possibility of a purely contractual lease, by allowing a licensee with no proprietary interest in the premises to grant a lease. This article challenges the decision in Bruton. It also makes the point that the dec ..read more