Caveat: The matters discussed below involve complex legal arguments for which legal advice must be sought.
The names of the legal owner(s) of a property can be ascertained from the title deeds or title documents relating to the property, which can be found in the land records maintained by the Land Registry.
The Land Registration Ordinance , Cap. 128 , Laws of Hong Kong, provides for the registration of deeds, conveyances, judgments and other instruments affecting real or immovable property, the keeping of Land Registry records, and for other matters relating to land registration.
Legal or nominal ownership is sometimes called the “paper title”, which can easily be traced or ascertained from looking at the title documents. However, legal ownership does not necessarily reflect the beneficial ownership of a property. Beneficial ownership is the right to enjoyment or entitlement to the benefit of a property, in contrast to legal or nominal ownership. It derives from monetary contribution (in most cases) towards the purchase price of the property, by virtue of a resulting trust or constructive trust.
Where a property is purchased in the name of X but the money comes from Y, and there is nothing to show Y intended to give up his beneficial interest, then it is presumed that Y intended to keep the beneficial interest and X would be said to be holding the property in “resulting trust” for Y.
A constructive trust is one which arises by the operation of law without reference to any presumed intention of the parties. The principle is that where a person holds a property in circumstances in which in equity and good conscience it should be held or enjoyed by another, he is compelled to hold the property on trust for the other person.
For example, X buys a flat with his own money in his sole name. The flat is occupied by Y, his girlfriend, and him. Y did not contribute anything towards the purchase price of the flat, but has made a great number of improvements to the flat, as well as doing ordinary housework. Y could claim an interest in the flat by way of a constructive trust. Constructive trust does not depend on intention of the parties. It is a question of fairness. So it does not matter that X did not have the intention to give Y an interest in the property. The issue is whether Y has done “enough” to justify an equitable claim.
Most of the time we can also ascertain beneficial ownership by referring to the documents kept by the Lands Registry, e.g. an action or proceeding pending in a court or tribunal that relates to land or any interest in or charge on land and a bankruptcy petition. For example, if the property is subject to a mortgage to a bank, then the bank will have a beneficial interest in the property until the mortgage is paid off.
Sometimes it is not easy to ascertain beneficial ownership of a property, e.g. when the property is registered in the name of the husband only, but the property is in fact the matrimonial home. The wife’s beneficial interest may not be ascertained simply by looking at the title deed.
The “paper title” of a matrimonial home may be in the name of both husband and wife, or in the name of only one spouse. The husband and wife may both contribute towards the purchase price or only one party may pay for it.
If both parties contribute towards the purchase price, they are co-owners of the property. They are either “joint tenants” or “tenants in common”, as the case may be.
If the property is registered in the sole name of one spouse, but was paid for by both spouses, the party whose name does not appear on the title deeds can claim that he or she is a beneficial owner of the property. They are “co-owners” of the property despite the fact that the property is registered in the sole name of only one spouse. For more detailed discussion of this, please go to “Sale and Purchase of Property” on the CLIC website.