Q11. For the purposes of a sale and purchase transaction, how can I prove that I own my unit if the original title deed has been destroyed?

Q11. For the purposes of a sale and purchase transaction, how can I prove that I own my unit if the original title deed has been destroyed?

The main way is to rely on the Land Registry record, certified copies of registered documents, and supporting evidence explaining the loss of the original deed. 

As to whether the loss of the original title deed would prevent you from proving your ownership for the purposes of a sale and purchase transaction, this turns on the terms of the sale and purchase agreement and is highly fact-sensitive. 

If the original title deeds required to be produced for the transaction are lost or cannot be found, the vendor must produce clear and cogent secondary evidence of their contents and due execution. For example, the vendor may establish by a statutory declaration made by the person with the best knowledge of how the document came to be missing, explaining how the documents came to be lost; produce secondary evidence of the contents; and produce proof of its due execution. The exact documents or evidence required depend on the terms of the relevant sale and purchase agreement, the date and nature of the destroyed title deed, and the factual circumstances.

According to s 13A(1)(a) and (c) of the Conveyancing and Property Ordinance (Cap. 219), the vendor under the statutory provision needs only produce the original of the Government lease (or Conditions of Grant) together with those title deeds and documents which relate exclusively to the property in respect of the period from the intermediate root of title to the present sale and purchase agreement (i.e. within the chain of title period which is usually little more than 15 years). For instance, some title documents (e.g., the Government lease, deed of mutual covenant, occupation permit, and certificate of compliance) may not relate exclusively to the property being sold, whereas assignments, mortgages, and discharges will normally relate exclusively to the property. The originals of title deeds falling within the pre-intermediate root period may not, therefore, need to be supplied to the purchaser in such a case, subject to the terms of the agreement.

Accordingly, missing originals do not necessarily mean the unit cannot be sold, but they may create conveyancing difficulties depending on the chain of title, the date and nature of the missing document, and the terms of the sale and purchase agreement.

You should therefore consult a conveyancing lawyer on this. 

See also: https://www.landreg.gov.hk/en/faq/faq_search_3.htm.

As the primary purpose of the Home Ownership Scheme (HOS) was to provide qualified purchasers with a permanent home, it imposes restrictions on alienation or parting with possession, intended to prevent the purchasers from realizing an immediate profit by the sale of the flat or an income from letting it to someone else. The objective was to prevent the purchasers from making a cash profit from having received a discount at the public expense. Section 17B of the Housing Ordinance (Cap 283) renders void any alienation or conveyance of such flats in breach of the alienation restrictions.

If the unit is in an HOS estate or remains subject to alienation restrictions, even after the fire, any selling restrictions are likely to continue to apply. A sale still has to comply with any applicable Housing Authority rules and regulations that continue to affect the title.  In such a case, you should check with the Housing Authority before entering into any transaction.