To amend the law relating to the partition and sale of property in land under co-ownership. [4 July 1969] (Originally 36 of 1969) Cap 352 s 1 Short title This Ordinance may be cited as the Partition Ordinance. Cap 352 s 1A Interpretation Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2 In this Ordinance, unless the context otherwise requires- "Court" (法院、法庭) means the Court of First Instance or the District Court; (Amended 25 of 1998 s. 2) "Director" (署长) means the Director of Lands; (Amended L.N. 291 of 1993) "Partition Rules" (分划规则) means rules made under section 10. (Added 19 of 1987 s. 2) Cap 352 s 2 Power to order partition or sale of property in land 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. [cf. 1540 c. 32 s. 1 U.K.] Cap 352 s 3 Institution of proceedings and parties thereto Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2 (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 (Cap 352 sub. leg.). (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) [cf. 1868 c. 40 s. 9 U.K.] (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) [cf. 1868 c. 40 s. 9 U.K.] (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 High Court (Cap 4 sub. leg. O. 44 r. 3) dealing with service of notice of judgment shall thereupon apply. (Amended 19 of 1987 s. 3; 25 of 1998 s. 2) [cf. 1868 c. 40 s. 9 U.K.] (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). [cf. 1876 c. 17 s. 3 U.K.] (7) Subsection (6) shall not apply to service on the Director. (Added 19 of 1987 s. 3) Cap 352 s 3A Addition of Secretary for Justice as defendant (1) In any proceedings under this Ordinance the Secretary for Justice 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 Secretary for Justice shall serve notice of his addition as a party, on every other party to this proceedings. (3) Any provision in this Ordinance or the Partition Rules (Cap 352 sub. leg.) by which any document is required to be served on the Director shall, where the Secretary for Justice is added as a defendant under subsection (1), have effect thereafter as if it required the Secretary for Justice to be served as a party and not the Director. (Amended L.N. 446 of 1994) (Added 19 of 1987 s. 4. Amended L.N. 362 of 1997) Cap 352 s 3B Memorandum for stay of proceedings Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2 (1) In any proceedings under this Ordinance, at any stage except after the addition of the Secretary for Justice 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. (Amended L.N. 362 of 1997) (2) Where any memorandum is so filed in respect of proceedings, 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 High Court Ordinance (Cap 4) or rules made thereunder in respect of the jurisdiction of the Registrar in proceedings for the grant of an injunction. (Amended 25 of 1998 s. 2) (6) In this section- "judge" (法官), in relation to proceedings, means a judge of the court in which the proceedings are pending; and (Amended 25 of 1998 s. 2) "Registrar" (司法常务官) means the Registrar of the High Court and includes a deputy or assistant registrar. (Amended 25 of 1998 s. 2) (Added 19 of 1987 s. 4) Cap 352 s 4 Partition of property in land (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,and may partition the property in all those ways or in any combination of them and give all necessary or proper consequential directions. (Amended L.N. 235 of 1996) (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. [cf. 1540 c. 32 s. 2 U.K.] Cap 352 s 5 Court may apportion rights and obligations and create easements (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) Cap 352 s 6 Sale of land (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; (c) 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. [cf. 1868 c. 40 s. 3 U.K.] (2) The Court may exercise its powers under subsection (1), notwithstanding the dissent or disability of any person interested. [cf. 1868 c. 40 s. 3 U.K.] (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. [cf. 1868 c. 40 s. 5 U.K.](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. [cf. 1868 c. 40 s. 6 U.K.] Cap 352 s 7 Application of proceeds of sale Remarks: Adaptation amendments retroactively made - see 29 of 1998 s. 105 (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. (Amended L.N. 20 of 1979) (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 Government in respect of the property; and then (Amended 29 of 1998 s. 105) (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. Cap 352 s 8 Vesting order (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 (Cap 29). (2) (Repealed 2 of 1972 s. 8) Cap 352 s 9 Jurisdiction of District Court 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 (Cap 116), 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 (Cap 336), 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; 79 of 1981 s. 3) Cap 352 s 10 Power to make rules 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) Cap 352 s 11 Transitional Nothing in the Partition (Amendment) Ordinance 1987 (19 of 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)
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