Partition Ordinance


Published: 1997-06-30

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Cap 352 - PARTITION ORDINANCE 1

Chapter: 352 PARTITION ORDINANCE Gazette Number Version Date

Long title 30/06/1997


To amend the law relating to the partition and sale of property in land under co-ownership.


[4 July 1969]


(Originally 36 of 1969)

Section: 1 Short title 30/06/1997


This Ordinance may be cited as the Partition Ordinance.

Section: 1A Interpretation 25 of 1998 01/07/1997


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" (署長) means the Director of Lands; (Amended L.N. 291 of 1993)
"Partition Rules" (分劃規則) means rules made under section 10.

(Added 19 of 1987 s. 2)

Section: 2 Power to order partition or sale of property in land 30/06/1997


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.]

Section: 3 Institution of proceedings and parties thereto 25 of 1998 01/07/1997


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. A). (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



Cap 352 - PARTITION ORDINANCE 2

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)

Section: 3A Addition of Secretary for Justice as defendant L.N. 362 of 1997 01/07/1997


(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. A) 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)

Section: 3B Memorandum for stay of proceedings 10 of 2005 08/07/2005


(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" (司法常務官) means the Registrar of the High Court and includes a senior deputy registrar, deputy

registrar or assistant registrar of the High Court. (Amended 25 of 1998 s. 2; 10 of 2005 s. 181)
(Added 19 of 1987 s. 4)





Cap 352 - PARTITION ORDINANCE 3

Section: 4 Partition of property in land 30/06/1997


(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.]


Section: 5 Court may apportion rights and obligations and create

easements
30/06/1997



(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)

Section: 6 Sale of land 30/06/1997


(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 - PARTITION ORDINANCE 4


Section: 7 Application of proceeds of sale 29 of 1998 01/07/1997


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.


Section: 8 Vesting order 30/06/1997


(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)

Section: 9 Jurisdiction of District Court 30/06/1997


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)

Section: 10 Power to make rules 30/06/1997


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)

Section: 11 Transitional 30/06/1997


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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