Public policy that land is to be freely alienable

Public policy demands that land should be freely alienable. This does not apply to New Territories land meant by Chinese custom to be held in perpetuity for ancestral worship. In respect of other New Territories land, clear evidence is needed of a custom requiring unanimous consent to the sale.

Re Man Sam Chung Wui ([2010] HKEC 1921, CA) concerned land in the New Territories held by a Wui. A majority (92%) of the members of the Wui voted in favour of the sale of this very large and valuable tract of land. The question was whether unanimity was required.  It was not land held for ancestral worship. The Court of Appeal (Tang ACJHC giving the leading judgment) held that where New Territories land was not held for ancestral worship then clear evidence would be needed of a custom requiring unanimous consent to a sale (at para. 41). There was no such evidence here. The court gave directions for sale under O.85 of the Rules of the High Court (Cap. 4A).

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