"Congratulations! You've finally got your place!" Ah Ming said excitedly on the day he collected the keys, ready to start a new chapter in his life. Who knew that less than three months after moving in, he would receive a 'Demolition Order' from the Buildings Department — it turned out the previous owner had added a small room on the rooftop, which was an illegal construction. Ah Ming was stunned on the spot: 'The home inspector never mentioned this when I bought the place! And the lawyer said it was fine. Why am I responsible for demolishing it now?'
This scenario is not uncommon in the Hong Kong property market. According to the Buildings Department data, more than 15,000 complaints about unauthorized building works are received each year, many of which involve second-hand property transactions. As a new owner, you might think, 'Once I buy it, it's mine,' but in reality, the responsibility for unauthorized building works transfers along with ownership. Today's article will break down the legal responsibilities of 'illegal alterations,' practical response methods, and how to manage risks before purchasing a property.
What is 'illegal reconstruction'? Catching common unauthorized building works one by one
Legal Definition: Unauthorized Construction Work
According to the Buildings Ordinance (Cap. 123), any works involving building structures, alterations, additions, or demolitions must be approved in advance by the Buildings Department and supervised by registered building professionals (such as Authorized Persons (AP) or Registered Structural Engineers (RSE)). Works carried out without approval are considered illegal building works, commonly referred to as 'unauthorized building works'.
:::warning Key Reminder Even if the previous owner claims that "it has existed for many years" or "the whole building does it this way," it does not mean it is legal. The Buildings Department has the authority to require the current owner to demolish it, regardless of when the illegal structure was built. :::
Common Types of Illegal Renovations in Hong Kong
In the Hong Kong property market, the following types of illegal construction works are the most common:
- Rooftop Additions: Building small houses, glass rooms, or metal sheds on the rooftop.
- Illegal Terrace Construction: Enclosing the terrace into a room or expanding the terrace area.
- Window Sill Modifications: Converting window sills into platforms, desks, or storage spaces.
- Cubicle Apartment Alterations: Dividing a unit into multiple independent rooms without approval.
- Exterior Wall Encroachments: Structures extending from the exterior walls, such as air-conditioning racks, awnings, or signs.
- Ceiling and Floor Additions: Thickening the floor or lowering the ceiling to conceal pipes.
:::tip Insider Tip Some property owners confuse "renovation" with "reconstruction." Generally, interior renovations (such as painting, laying flooring, or replacing kitchen cabinets) do not require an application to the Buildings Department, but involving wall demolition, structural changes, or adding mezzanines does require approval. :::
Why did the previous owner carry out illegal renovations?
Many property owners choose to carry out unauthorized constructions in order to 'save space' or 'increase usable area.' For example, converting a window sill into a floor can create a few extra square feet; adding a small structure on the rooftop can be used as a storage room or a maid's room. In land-scarce Hong Kong, these 'extra spaces' are indeed attractive, but the legal risks are borne by the new owners.
Legal Responsibilities and Response Methods of the Owner After Discovering Illegal Renovations
Legal Responsibilities That Owners Need to Bear
According to Section 40 of the Buildings Ordinance, the current owner is responsible for maintaining and repairing the property, including the removal of unauthorized building works. Even if the unauthorized structure was built by a previous owner, the Buildings Department will still issue a "Removal Order" or "Repair Order" to the current owner.
:::highlight Key points Legally, 'ignorance' does not constitute a reason for exemption. Even if you were unaware of illegal structures when buying a property, you are still required to deal with demolition orders according to the law. :::
If the owner refuses to comply with the demolition order, the Buildings Department has the authority to:
- File an application to the court for a compulsory order
- Arrange the demolition themselves and recover the costs from the owner
- Prosecute the owner, with a maximum fine of HK$200,000 and imprisonment for one year
Practical Steps to Take After Receiving a Demolition Order
Step 1: Confirm the Nature of the Illegal Construction Work
After receiving a letter from the Buildings Department, the first step is to confirm the type and severity of the unauthorized building work. The Buildings Department categorizes illegal building works into three priorities:
- Category One: Poses an obvious threat or immediate danger to life and property (e.g., rooftop additions, unauthorized external walls)
- Category Two: Newly constructed unauthorized building works
- Category Three: Older unauthorized building works that do not pose an immediate danger
:::tip Expert Opinion If unauthorized structures belong to 'Category III', the Buildings Department usually gives a longer grace period, and may even temporarily take no action. However, this does not mean they can be ignored, because the Buildings Department can change its enforcement priorities at any time. :::
Step 2: Hire an Accredited Person (AP) for Assessment
After receiving a demolition order, it is recommended to immediately hire an Authorized Person (AP) or a Registered Structural Engineer (RSE) for a professional assessment. They will:
- Confirm the structural safety of the unauthorized building
- Evaluate the complexity and cost of the demolition work
- Assist in submitting the demolition plan to the Buildings Department
Step 3: Apply to the Buildings Department for an extension or exemption
In certain circumstances, owners can apply to the Buildings Department for a demolition extension or apply for a "Minor Works Exemption." For example:
- If the unauthorized building works fall under the category of "minor works" (such as canopies or air-conditioning racks), they can be legalized through a simplified procedure.
- If the owner needs more time to prepare demolition costs due to financial difficulties or health issues.
:::warning Precautions Applying for an extension does not guarantee approval, and the Buildings Department usually only grants an extension once. If the owner still has not cleared the property after the extension, the Buildings Department will take legal action immediately. :::
Step 4: Arrange Demolition Work
Demolition work must be carried out by a registered contractor and supervised by an authorized person. Upon completion, the authorized person will submit a 'Completion Certificate' to the Buildings Department, confirming that the unauthorized building has been demolished.
Can the previous owner be held responsible for demolition costs?
This is a concern for many new property owners. In theory, if the sales contract includes a 'Non-Alteration Declaration' and the previous owner concealed unauthorized constructions, the new owner can claim demolition costs and losses from the previous owner. However, in practice, the process of claiming is often lengthy and expensive, and it also requires proving that the previous owner 'deliberately concealed' the facts, which is not easy.
:::tip Insider Tip If you already discover illegal structures when buying a property but still decide to proceed with the purchase, it will be very difficult to claim compensation from the previous owner afterward. Therefore, conducting thorough due diligence before buying a property is crucial. :::
How to Avoid Getting 'Trapped' Before Buying a Property? Practical Guide to Prevent Illegal Construction
Title Search and Property Inspection: Two Essential Tasks
1. Check the records of the Buildings Department
Before signing a provisional sale and purchase agreement, it is recommended to first check the property's "unauthorized building works record" on the Buildings Department website. The Buildings Department's "Building Information Centre" provides a free search service, where you can find out:
- Whether the property has ever received demolition or maintenance orders
- Whether there are any unfinished demolition works
- Whether there are structural safety issues
:::highlight Key points Even if the records of the Buildings Department show 'no unauthorized building works,' it does not mean that the property definitely has no illegal structures. This is because the Buildings Department only records 'discovered' unauthorized works, and unauthorized structures that have not been discovered will not appear in the records. :::
2. Hire a Professional Building Inspector
The building inspector will conduct a comprehensive property inspection, including:
- Checking common unauthorized construction areas such as rooftops, balconies, and windowsills
- Using professional equipment to detect any alterations on walls, floors, and ceilings
- Providing a detailed inspection report listing all discovered issues
In the Hong Kong property market, the cost of property inspection generally ranges from HK$3,000 to HK$8,000, depending on the size and complexity of the property. Although it requires an additional expense, compared to future demolition costs (ranging from tens of thousands to hundreds of thousands of HK dollars), property inspection is definitely a worthwhile investment.
Protection Clauses in Sales Contracts
When signing the formal sales and purchase agreement, the lawyer will ask the former owner to sign a 'No Unauthorized Building Declaration,' stating that the property has no illegal construction works. If unauthorized construction is discovered later, the new owner can claim against the former owner based on this declaration.
In addition, some buyers include 'Special Conditions' in the contract, such as:
- Requiring the previous owner to remove all unauthorized structures before the transaction
- Requiring the previous owner to provide a 'Compliance Certificate' from the Buildings Department
- Withholding part of the purchase price as a 'guarantee deposit', to be paid only after confirming there are no unauthorized structures
:::tip Expert Opinion If you are buying a property with a 'bargain price' or 'discounted price,' you need to be extra vigilant. Some owners may be eager to sell quickly due to illegal structures in the property and lower the price to attract buyers. In such cases, it is better to spend more time on due diligence than to be lured by a cheap deal and end up with a trap. :::
The Relationship Between Mortgage Approval and Illegal Constructions
When the bank approves a mortgage, it will require the property surveyor to submit a "Valuation Report." If the surveyor discovers unauthorized structures, the bank may:
- Refuse to approve the mortgage
- Require the owner to remove the unauthorized structures before approving the mortgage
- Reduce the mortgage ratio or loan amount
Therefore, even if you are willing to cover the demolition costs, the unauthorized structure may still affect your mortgage application, and could even cause the deal to fall through.
Summary: Do your homework before buying a property, stay calm after buying
Discovering illegal renovations after purchasing a property is indeed troubling, but it is not unsolvable. The key lies in:
- Understand legal responsibilities: Current property owners are responsible for demolishing illegal construction work; 'being unaware' is not a valid excuse.
- Respond calmly to demolition orders: Hire certified professionals for assessment, apply to the Buildings Department for extensions or exemptions, and arrange demolition work.
- Do your homework before buying a property: Check records at the Buildings Department, hire a property inspector, and include protective clauses in the contract.
- Rationally assess risks: If the property has illegal structures, calculate demolition costs and mortgage risks before deciding whether to purchase.
In Hong Kong's property market, properties that are "cheaper to buy than to rent" are certainly attractive, but buying a property is after all a major life event, and one must not ignore potential risks just because of the desire for a bargain. Conducting proper due diligence and choosing reputable real estate agents and lawyers are the only ways to truly buy with peace of mind.
:::success Take action immediately If you are considering buying a property, or have already discovered that the property has unauthorized building works, feel free to leave a comment below to share your experience, or send a private message to our professional team to get one-on-one property guidance. Remember to subscribe to our blog to receive regular updates on the latest analysis of the Hong Kong property market and legal and tax information! :::
Recommended Further Reading:
- [2024 Mortgage Guide] How First-Time Buyers Can Apply for High Loan-to-Value Mortgages?
- Comprehensive Guide to Stamp Duty: Tax Planning for Buying, Upgrading, and Investing in Properties
- Home Inspection Checklist: 10 Details First-Time Buyers Are Most Likely to Overlook
The content of this article is for reference only and does not constitute legal advice. If you have specific legal issues, please consult a professional lawyer.