Monday, May 7, 2012

scmp: Developers step up pressure over bill on flat sales


Developers step up pressure over bill on flat sales

Developers want the government to remove two key components of a bill to regulate the sale of new homes, which their lawyers say are unconstitutional.

The call by the Real Estate Developers Association comes as members of a panel studying the bill rush to finish their clause-by-clause scrutiny to get it through before the legislature's term ends in July.

Association secretary general Louis Loong Hon-biu said the two disputed measures - a requirement to publish price lists before sale and a ban on quoting gross floor area to describe flat sizes - should be removed because of the rush.

He said the bill could be split in two parts, with the undisputed clauses legislated on first and the others added later after revision.

But bill committee member Democrat Lee Wing-tat said he objected to any separation "because the two measures are the key elements, without which the law would be meaningless".

The Transport and Housing Bureau said it had no plans to legislate the bill in phases and aimed to complete the legislation in the current term.

Loong said the association made the suggestion after consulting constitutional law expert David Pannick QC and two other lawyers on the bill.

"We are not against legislation, but we want to make sure it is a good law in compliance with the Basic Law and human rights," he said.

According to a 24-page joint opinion by Pannick and Tristan Jones, both from London's Blackstone Chambers, and Wilson Leung from Temple Chambers in Hong Kong, the price-list rule would place a restriction on a developer's right to dispose of its property, and amending the price list could also "create confusion and obfuscation rather than transparency".

The ban on gross floor area in advertisements and brochures would violate freedom of speech, a right to be upheld even in the context of commercial advertising, the lawyers said.

They referred to a 2008 Court of Appeal case in which a doctor successfully challenged the Medical Council's restrictions on doctors' rights to advertise their practice.

The developers disagree with the government view that gross floor area - with a share of common areas in the development added to the actual size of the flat - is misleading to buyers.

"We don't want to delay the bill, but there should be enough time to examine the bill carefully," Loong said.

He added that a standardised definition of gross floor area should be written into the bill first.

He said it was premature to say whether the association would seek a judicial review if the bill was passed unchanged and took effect next year.

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