“The situations related to the so-called ‘silk papers’ remain unresolved” by this Land Law, lawyer Duarte Santos told Macau Business.
While it is true that these are contracts of property transfer celebrated still in the 19th Century and the beginning of the 20th Century they and not recognised in the light of the Land Law in force at the time.
“Having no legal value, this poses a serious problem with regard to the protection of the rights of those who today are still entitled owners of real estate acquired under those circumstances,” adds the jurist.
While Article 200 of the previous law contained “a precept that sought to address the situation, which never came to fruition,” the new law says nothing about it. “However, this is an issue that will have to be resolved sooner or later, and it cannot be resolved by simply evicting the people who arrogate the ownership of their homes,” states Mr. Santos, concerned with an issue that seems forgotten, especially since a judgment of the Court of First Instance (2013) determined that ‘Silk papers or Sái Chi Kai are not valid title for acquisition of property . . [and that] . . . it is not possible to recognise the right of ownership of construction on state land, provided that this had not been recognised as private property before the establishment of the MSAR.’
But – as Duarte Santos also informs Macau Business – “it is precisely because ‘silk papers’ are not valid titles for the acquisition of land ownership (and even before the courts affirmed, it was consensual in the community) that it is necessary to resolve in the framework of the current law or in a possible revision, since there are hundreds if not thousands of dwellings, especially in the areas of the village of Coloane, Old Taipa and Inner Harbour, being [inhabited] on the basis of these invalid titles.”
Understanding that “despite the courts’ position, one cannot simply evict these people,” Santos argues that under the current legal framework “the issue could be resolved by leasing with a public tender but there has been no political will,” he concludes.
Five sensitive Articles
Throughout these five years, the contestation of the Land Law has involved several Articles. That is why we are no longer talking about amending one or other Article but of several amendments. A list – by no means exhaustive – of the most sensitive follows. Curious fact: these may be the most controversial Articles today but they were not in the polls. On contrary, at that time Articles like the 8 and 9 had several votes against and abstentions, but today little or nothing is said about them.
Article 44 – Provisional and definitive concession
The concession for lease is initially granted on a provisional basis for a period to be fixed according to the characteristics of the concession, and only becomes definitive if, within the established period, the clauses of utilisation previously established are fulfilled and the land is definitively demarcated. [Approved unanimously]
Article 47 – Term
- The lease term is fixed in the respective concessionagreement, andcannot exceed 25 years. [Approved unanimously]
Article 48 – Renewal of provisional concessions
- Notwithstanding the provisions of the following paragraph, provisional concessions may not be renewed. [Approved unanimously]
Article 66 – Expiry
- The free concession expires when the utilisation does not materialise in any of the terms set forth in the respective concession agreement or provided for in paragraph 2 of Article 104, except for reasons not attributable to the concessionaire and that the Chief Executive considers justification. [Approved unanimously]
Article 104 – Recovery procedure
- The term and procedure for the use of the land granted are defined in the respective concession agreement.
5. At the request of the concessionaire, the period for the use of the land may be suspended or extended by authorisation of the Chief Executive for reasons not attributable to the concessionaire and considered by the Chief Executive. [Approved unanimously]
[The foregoing is our translation of the law, written originally in Chinese and Portuguese. No English version was available]
Primary innovations of law
- Extinction of the possibility of land sale and land tenure concession.
- Possibility of public land concession for private use in cases where the investments in fixed and irremovable installations are considered to be of public utility; namely, gas stations and road circulation service stations and equipment necessary to the service of supply of telecommunications, electricity, natural gas and water supply.
- The obligation of respect of the urban plans, being sanctioned with nullity the concessions and building projects that do not respect the urban plans.
- The obligation of public tender for all types of land concession, except in cases expressly dismissed by the Law.
- The obligation of presentation, with the concession request, of an economic and financial viability study and, when requested by DSSOPT, an evaluation of environmental impact of the construction.
- The obligation of effective use of the land in accordance with the terms defined in the law and in the concession agreement, with important, and more severe, penalties for the ineffective use and/or the non-use of same.
- Institution of new maximum limits of land that can be granted to individuals and legal persons in each concession agreement and in total, being the limits of 20.000 and 100.000 sq. m., respectively.
- The law also provides for new limits for the concession of land from public domain for privative use, 5.000 sq. m. for each concession and 10.000 sq. m. in total, and for occupation through licence of 5.000 sq. m.
- Definition of criterion to define when it is considered to have occurred a party substitution in the proceedings and when there is a transmission of the rights granted, with special attention to the cases of share transmission.
(Riquito Advogados website)