Source: Office of the Secretary for Administration and Justice (GSAJ)

In accordance with Law No. 8/2019 “Legal framework for the Provision of Temporary Housing and Home Swap Housing under the Urban Renewal Scheme” Article 12 Paragraph 2, pre-sale buyers of condominiums under construction affected by an annulment of a provisional land concession as well as those being transferred with a property’s sale and purchase agreement can buy a home-swap housing unit on condition that they have registered their property ownership based on Law No. 7/2013 “Legal framework on the Promissory Purchase and Sale Agreement of Buildings Under Construction” Article 10, also known as the Pre-sale Law. Therefore, only pre-sale buyers affected by the cancellation of a land concession with the property registration are qualified for the purchase of a home swap housing unit.

The above-mentioned rule was formulated based on the positive impact of the property registration mechanism of the sale of units under construction and the mechanism’s status in Macau’s current legal system.

The registration mechanism can verify the authenticity and validity of the sale and purchase agreement of units under construction, in addition to verifying whether the unit under construction has undergone conveyancing and the identity of the last buyer(s) of the unit under construction, as a result, it achieves the legal effect of publicity and opposition to third parties. For this very reason, the Pre-sale Law that came into force in 2013 rules that it is mandatory that pre-sale buyers register their property ownership, and the registration of the sale of units under construction became an important mechanism in Macau’s current legal system. This regulation and requirement should therefore be respected and observed when enacting any law. The requirement stated in the “Legal framework for the Provision of Temporary Housing and Home Swap Housing under the Urban Renewal Scheme” Article 12 Paragraph 2 regarding property ownership registration as a prerequisite to the application for the purchase of home swap housing units is precisely based on the consideration of the whole legal system. In other words, the above-mentioned legal provision is not specifically for “Pearl Horizon” but is generally and abstractly applicable to buyers who have bought a unit under construction and have been affected by the cancellation of a land concession, therefore it is deemed reasonable and necessary.

When the government and Legislative Assembly (AL) deliberated on the “Legal framework for the Provision of Temporary Housing and Home Swap Housing under the Urban Renewal Scheme” bill, they discussed and reviewed under the premise of the whole legal system of Macau. None of the legislators or the legal advisors of the AL raised any questions on Article 12 Paragraph 2 during the deliberation process, and the written submission from the Third Standing Committee reflects that a consensus had been reached regarding pre-sale buyers’ entitlement to purchase a home swap housing unit on condition that they have registered the ownership of their properties. Therefore, Article 12 Paragraph 2 is not specifically for the “Pearl Horizon” case but conforms to the legal system of Macau as a whole. Moreover, during the deliberation process, the bill’s relevant documents were all made public and the government has not received any comments from “Pearl Horizon” pre-sale buyers regarding that particular article.

Moreover, it should be pointed out that when the Pre-sale Law came into force in 2013, relevant government entities continuously promoted the law through different channels. Once the provisional registration of the condominiums of “Pearl Horizon” development project has been completed on 4 April 2014, pre-sale buyers could apply for the ownership registration of their units under construction that they purchased. In May 2014, the developer of the “Pearl Horizon” project sent out written notification to pre-sale buyers informing them they could register their property ownership. As of 25 December 2015, when the cancellation of “Pearl Horizon” project’s provisional land concession was announced, it was shown that a majority of the pre-sale buyers have applied for the registration of their property ownership during the period of over a year and a half.

Lastly, at this current stage and from a legal perspective based on the “Code of Property Registration” and “Land Law”, since the provisional land concession of the land lot has been cancelled by the Chief Executive, the original concessionaire does not have the rights to construct, transform or carry out construction maintenance on the plot of land, the relevant provisional registration of the condominiums do not have any legal effect, and the registered condominiums do not exist now or in the future, therefore under the current legal system, there is no condition for original “Pearl Horizon” pre-sale buyers to register their property ownership after the cancellation of the land concession.