Hong Kong Ordinances

STAMP DUTY ORDINANCE - SECT 29A

Interpretation and application of Part IIIA

(Past version on 01/07/1997).
(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 12 of 1999 s. 3 PART IIIA

AGREEMENTS TO SELL IMMOVABLE PROPERTY

(1) In this Part and the First Schedule-

"agreement for sale" (買賣協議) means-

   (a)  an instrument in which a person contracts to sell or purchase
        immovable property;

   (b)  an instrument in which a person confers, or has conferred on him, an
        option or a right to purchase immovable property or a right of
        pre-emption in respect of immovable property, other than a specified 
        option or right;

   (c)  an instrument, other than a mortgage or charge made in favour of a
        financial institution within the meaning of section 2 of the Inland 
        Revenue Ordinance ( Cap 112), in which a person-

        (i)    gives or is given a power of attorney expressed to be
               irrevocable and given to secure a proprietary interest of the
               donee of the power or the performance of an obligation owed to
               the donee, and giving the donee authority on behalf of the
               donor to sell or otherwise dispose of any interest of the donor
               in immovable property; or

        (ii)   grants or is granted an authority on behalf of the grantor to
               sell or otherwise dispose of any interest of the grantor in
               immovable property, and under which consideration for that
               authority moves from the grantee of the authority to the
               grantor;

   (d)  an instrument in which a declaration of trust in respect of immovable
        property is made, other than a declaration of trust under which no
        beneficial interest passes in the property subject to the declaration;

   (e)  an instrument which, if implemented, would be implemented by a
        conveyance on sale;

   (f)  an instrument which constitutes a memorandum, note, or other evidence
        of an unwritten sale agreement;

   (g)  an instrument in which a purchaser under an instrument referred to in
        this definition assigns any rights under the second-mentioned
        instrument in respect of immovable property;

   (h)  an instrument in which a purchaser under an instrument referred to in
        this definition makes a nomination or gives a direction that-

   (i)  transfers, or gives a power to transfer, any benefit, in respect of
        immovable property, of the purchaser under the second-mentioned
        instrument; or

        (ii)   authorizes another person to take a conveyance of immovable
               property that is subject to the second-mentioned instrument or
               to execute such a conveyance in favour of a third party, other
               than a nomination made, or a direction given, in favour of a
               person who is to be a trustee for the purchaser in respect of
               the property, or in favour of one, or more than one, person who
               is a parent, spouse or child of the purchaser (whether or not
               also in favour of the purchaser);

"chargeable agreement for sale" (可予徵收印花稅的買賣協議) means
an agreement for sale chargeable with stamp duty under head 1(1A) in the First
Schedule;

"non-residential property" (非住宅物業) means immovable property which,
under the existing conditions of-

   (a)  a Government lease or an agreement for a Government lease;

   (b)  a deed of mutual covenant, within the meaning of section 2 of the
        Building Management Ordinance ( Cap 344); (Amended 27 of 1993 s. 45)

   (c)  an occupation permit issued under section 21 of the Buildings 
        Ordinance ( Cap 123); or

   (d)  any other instrument which the Collector is satisfied effectively
        restricts the permitted user of the property, may not be used, at any
        time during the term of the Government lease in respect of the
        property or during the term of the Government lease that has been
        agreed for in respect of the property (as is appropriate), wholly or
        partly for residential purposes; (Amended 12 of 1999 s. 3)

"purchaser" (購買人) includes any person who, under an agreement for sale
or an unwritten sale agreement,-

   (a)  contracts to purchase immovable property;

   (b)  acquires-

        (i)    immovable property;

        (ii)   an option or a right to purchase immovable property or a right
               of pre-emption in respect of immovable property, other than a
               specified  option or right;

        (iii)  a power or authority to sell or otherwise dispose of any
               interest in immovable property;

        (iv)   any right or benefit in respect of immovable property of a
               purchaser under an agreement for sale or an
               unwritten sale agreement;

        (v)    a power to transfer any such right or benefit;

        (vi)   an authority to take a conveyance of immovable property that is
               subject to an agreement for sale or an
               unwritten sale agreement; or

   (c)  is named as a person in whose favour another person is authorized to
        execute a conveyance of immovable property;

"residential property" (住宅物業) means immovable property other than
non-residential property;

"specified option or right" (指明的選擇權或權利) means an option or
right to purchase, or a right of pre-emption, conferred-

   (a)  by a lessor on a lessee;

   (b)  in a lease, or an agreement for a lease, for a fixed term of not less
        than 3 years; and

   (c)  in respect of the property subject to the lease, and which is not
        exercisable within 3 years of the commencement of the lease or
        agreement for a lease, otherwise than by giving notice to exercise the
        option or right which notice does not expire within those 3 years;

"unwritten sale agreement" (非書面買賣協議) means a contract,
agreement, or statement not in the form of an instrument but of such a nature
that, if it were in such a form, the instrument would constitute an
agreement for  sale;

"vendor" (售賣人) includes any person who, under an agreement for sale or
an unwritten sale agreement-

   (a)  contracts to sell immovable property;

   (b)  grants, confers, or transfers-

        (i)    immovable property;

        (ii)   an option or a right to purchase immovable property or a right
               of pre-emption in respect of immovable property, other than a
               specified  option or right;

        (iii)  a power or authority to sell or otherwise dispose of any
               interest in immovable property;

        (iv)   any right or benefit in respect of immovable property that he
               has as a purchaser under an agreement for sale or an
               unwritten sale  agreement;

        (v)    a power to transfer any such right or benefit;

        (vi)   an authority to take a conveyance of immovable property that is
               subject to an agreement for sale or an
               unwritten sale agreement; or

   (c)  authorizes another person to execute in favour of a third party a
        conveyance of immovable property that is subject to an agreement for 
        sale or an unwritten sale agreement.

(2) An agreement for sale and an unwritten sale agreement may be enforceable
or unenforceable, absolute or conditional, formal or informal, temporary or
permanent, provisional or non-provisional.

(3) An agreement for sale may consist of 2 or more instruments.

(3A) For the purposes of this Part and head 1(1A) in the First Schedule, and
subject to Note 5 to head 1(1A) in that Schedule, an agreement for sale, an
unwritten sale agreement or a conveyance on sale is made between the same
parties as a previous agreement if, but only if-

   (a)  the names of both of the vendor and the purchaser or, where there is
        more than one vendor or more than one purchaser or more than one
        vendor and more than one purchaser, all of them specified as such in
        the previous agreement are the same as those in the
        agreement for sale, the unwritten sale agreement or the
        conveyance on sale, as the case may be; and

   (b)  where there is more than one purchaser specified as such in the
        previous agreement, the property or interest to be acquired by a
        person as one of the purchasers under the previous agreement is the
        same as that to be acquired by that person under the
        agreement for sale, the unwritten  sale agreement or the
        conveyance on sale, as the case may be. (Added 33 of 1998 s. 8)

(4) For the purposes of this Part and head 1(1A) in the First Schedule, an
agreement for sale, an unwritten sale agreement and a conveyance on sale are
made on the same terms as a previous agreement if, but only if, the
agreement for sale, the unwritten sale agreement or the conveyance on sale (as
the case may be) and the previous agreement-

   (a)  are made in respect of the same immovable property; and

   (b)  specify the same consideration for the conveyance on sale.

(5) Head 1(1A) in the First Schedule does not apply to an agreement  for sale
in respect of non-residential property.

(6) This Part and head 1(1A) in the First Schedule apply notwithstanding any
provision in any other Part of this Ordinance.

(7) This Part and head 1(1A) in the First Schedule do not apply to an
agreement for sale or an unwritten sale agreement-

   (a)  made before; or

   (b)  that supersedes an agreement for sale or an unwritten sale  agreement
        made between the same parties and on the same terms before, the
        commencement of the Stamp Duty (Amendment) Ordinance 1992 (8 of 1992).
        (Part IIIA added 8 of 1992 s. 4)

"agreement for sale" (買賣協議)

"chargeable agreement for sale" (可予徵收印花稅的買賣協議)

"non-residential property" (非住宅物業)

"purchaser" (購買人)

"residential property" (住宅物業)

"specified option or right" (指明的選擇權或權利)

"unwritten sale agreement" (非書面買賣協議)

"vendor" (售賣人)