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Procedures of forming an Owners' Corporation
If owners intend to appoint an MC and form an OC under section
3 of the BMO (i.e. appointment of one owner by owners of not
less than 5% of the shares in aggregate to convene a meeting
of owners), they should convene a meeting of owners following
the procedures as set out in paragraphs below.
Should owners have any question, they may refer to the relevant
provisions in the BMO or contact the District
Building Management Liaison Team (DBMLT) of the relevant
District Office (DO) or seek legal advice.
Preparation before a meeting of owners
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Appointment of convenor and compilation of owners'
information
| (1) |
The owners of not less than 5% of
the shares in aggregate shall appoint an owner as
the convenor of the meeting of owners. The sample
form provided by Land Registry may be used to
record the decision on the appointment of the convenor. |
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| (2) |
The convenor should ascertain the
number of shares and voting rights of each flat
by making reference to the clauses in the DMC of
the building. This is to facilitate the recording
at the meeting of owners the shares of the owners
who attend the meeting personally or by proxy. The
DMC, which is a public document, is available from
the offices of the Land Registry or can be downloaded
from the website of the Land Registry (www.landreg.gov.hk).
The convenor can get a copy of the DMC upon payment
of the prescribed fee. |
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| (3) |
The convenor should check the land
register to ascertain the name of each owner. |
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| (4) |
The land register contains the record
of owners of the flats in the building which are
public information. The convenor can get a copy
of the relevant information from the offices of
Land Registry or by visiting the website of the
Land Registry upon payment of the prescribed fee. |
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| (5) |
The convenor may use the relevant
form to apply to the respective DO for an exemption
certificate for obtaining a free copy of the record
of owners from the Land Registry. Each building
will only be issued with the exemption certificate
once. |
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Notice of meeting of owners
| (6) |
The convenor has to make sure that
the date, time and place of the meeting as well
as the agenda of meeting are clearly specified in
the notice
of meeting of owners. The agenda shall only
specify the resolutions that are related to the
incorporation of the owners and the appointment
of an MC. |
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| (7) |
The convenor has to make sure that
the address of the building (especially the name
of the building) as specified on the notice of meeting
of owners is the same as the address appeared in
the land register. (The book "Names of Buildings"
published by the Rating and Valuation Department
or the DMC of the building may be used as reference.) |
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| (8) |
The convenor has to make sure that
the notice of meeting of owners is delivered to
all the owners, the DMC manager and the person authorized
by the DMC (if any) at least 14 days before the
date of the meeting. The notice of meeting of owners
may be delivered personally to the recipient, sent
by post to his/her last known address, left at the
owner's flat or deposited in the letter box for
that flat. |
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| (9) |
The convenor has to make sure that
the notice of meeting of owners is displayed in
a prominent place in the building at least 14 days
before the date of the meeting of owners. |
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Matters related to the instrument appointing a proxy
(proxy form).
| (10) |
The convenor has to make sure that
the instrument prepared for the purpose of appointing
a proxy shall be in the form
set out in Form 1 in Schedule 1A to the BMO. |
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| (11) |
The instrument of proxy may be attached
to the notice of meeting issued to owners or be
available at the management office of the building
(if any) for the owners. It is advisable to attach
a statement
of purposes to the instrument, stating the purposes
of collection of owners' information. |
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| (12) |
The convenor is advised to remind
the owners to lodge with him the instruments of
proxy at least 48 hours before the time for the
holding of the meeting. |
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| (13) |
The convenor has to send an acknowledgement
of receipt to the owner who has lodged an instrument
of proxy. The receipt may be left at the flat of
the owner or deposited in the letter box for the
flat. |
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| (14) |
The convenor has to determine the
validity of the instruments of proxy. |
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| (15) |
The instrument appointing a proxy
is valid only if it is made and lodged in the following
manner -
| (i) |
The instrument of proxy shall
be in the form set out in the BMO and signed
by the owner. If the owner is a body corporate
(such as a company or a society, etc), it
should be impressed with the seal or chop
of the body corporate and signed by the person
authorized by the body corporate in that behalf. |
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| (ii) |
All instruments of proxy shall
be lodged with the convenor at least 48 hours
before the time for the holding of the meeting. |
(If the convenor has decided that the instrument
of proxy lodged by any owner is invalid, he is advised
to inform the owner concerned before the meeting.) |
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| (16) |
A list
setting out the flats with instruments of proxy
lodged (no matter the instrument is valid or not)
shall be displayed in a prominent place in the place
of the meeting before the time for the holding of
the meeting. The information shall remain so displayed
until the conclusion of the meeting.
(If the convenor has decided that the instrument
of proxy lodged by any owner is invalid, he is advised
to put a mark against the flat concerned on the
list for information of the attendees of the meeting.) |
Holding a meeting of owners
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Making sure that the quorum is met
| (1) |
The convenor has to record
clearly the name of the owners and proxies
present at the meeting of owners, and the
number of shares allotted to the flats concerned. |
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| (2) |
The convenor should make sure
that the quorum, i.e. 10% of the owners (including
those present personally and those represented
by proxies) is met. |
(Schedule 11 to the BMO provides for the enumeration
of the percentage of owners for the purpose of forming
a quorum at a meeting. For example, multiple ownership
of one flat is to be counted as one owner; an owner
owning more than one flat is to be counted as one
owner; a person holding proxies from ten owners
is to be counted as ten ones.) |
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Presiding at the meeting of owners
| (3) |
The convenor has to preside at a meeting
of owners. |
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Determining the voting method
| (4) |
Before a resolution is put
to vote, the convenor has to explain to the
owners present at the meeting the voting method,
for example, by a show of hands or by putting
a " "
or " "
on the voting forms. |
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Explaining how votes are counted
| (5) |
Unless the DMC of the building
provides otherwise, an owner shall have one
vote in respect of each share he owns. Any
valid vote cast by the owner personally or
by proxy is to be counted. |
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| (6) |
If a share is owned by 2 or
more persons -
| (i) |
The vote in respect of
the share of the flat may be cast -
| (a) |
by a proxy jointly
appointed by the co-owners; |
| (b) |
by a person appointed
by the co-owners from amongst
themselves; or |
| (c) |
if no appointment
is made under subparagraph (a)
or (b), either by one of the co-owners
personally or by a proxy appointed
by one of the co-owners. |
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| (ii) |
where more than one of
the co-owners seeks to cast a vote in
respect of the share, the convenor shall
only treat the vote cast by the co-owner
whose name, in order of priority, stands
highest in relation to that share in
the register kept at the Land Registry
be a valid one no matter whether such
vote is cast personally or by proxy. |
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| (7) |
In determining whether a resolution
is passed by a majority of the votes of the
owners at a meeting of owners, the following
shall be disregarded -
| (i) |
owners who are not present
at the meeting; |
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| (ii) |
owners who are present
at the meeting but do not vote; |
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| (iii) |
blank or invalid votes; |
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| (iv) |
abstentions. |
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Appointment of an MC
| (8) |
The convenor has to make sure
that the resolution on the appointment of
an MC must be passed by a majority of votes
of the owners, and supported by the owners
of not less than 30% of the shares in aggregate. |
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| (9) |
The convenor has to make
sure that the resolution on the number of
MC members is passed by a majority of votes
of the owners.
Paragraph 1(1) of Schedule 2 to the BMO specifies
the number of MC members which is determined
according to the number of flats in the building
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where the building contains
not more than 50 flats, the number of
members shall be not less than 3; |
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where the building contains
more than 50 flats but not more than
100 flats, the number of members shall
be not less than 7; |
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where the building contains
more than 100 flats, the number of members
shall be not less than 9. |
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Appointment of members, chairman, vice-chairman
(if applicable), secretary and treasurer of MC
| (10) |
The convenor has to make sure
that the resolution to appoint eligible MC
members from amongst the owners attending
the same owners' meeting is passed by the
"first past the post" voting system.
Where the number of candidates is not more
than the number of MC members, the candidates
shall be deemed to be appointed as members
uncontested. |
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| (11) |
The convenor has to make sure
that the resolution on the establishment of
the office of the MC vice-chairman is passed
by a majority of votes at the same owners'
meeting. |
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| (12) |
The convenor has to make sure
that the resolutions to appoint the MC chairman,
vice-chairman (if applicable), secretary and
treasurer from amongst the MC members by owners
attending the same owners' meeting are passed
by the "frst past the post" voting
system.
The secretary and treasurer need not be MC
members or owners.
Where there is only one candidate respectively
for each of these offices, the candidate shall
be deemed to be appointed uncontested. |
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| (13) |
If, after the counting is finished,
two or more candidates have an equal number
of votes, the result shall be determined by
drawing lots and the candidate on whom the
lot falls is to be appointed. |
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| (14) |
The convenor has to put clearly
on record the voting results and the resolutions
passed.
(To facilitate vote counting, the Home Affairs
Department (HAD) has designed the "Easy
Count" vote-counting computer programme. |
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| (15) |
The convenor has to remind
every MC member to make a Declaration ( with Notes about Personal Data),
in the form specified by the Land Registry,
that they do not fall within the description
of the paragraph below, and lodge with the
MC secretary the signed declaration within
21 days after the appointment. An MC member
who fails to comply with the requirement shall
cease to be such member. |
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Eligibility of a person to be appointed as
an MC member
| (16) |
The convenor has to remind
owners that a person is not eligible to be
appointed as an MC member if he -
| (i) |
is an undischarged bankrupt
or has, within the previous 5 years,
either obtained a discharge in bankruptcy
or entered into a voluntary arrangement
within the meaning of the Bankruptcy
Ordinance (Cap. 6) with his creditors,
in either case without paying the creditors
in full; |
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| (ii) |
has, within the previous
5 years, been convicted of an offence
in Hong Kong, or any other place for
which he has been sentenced to imprisonment,
whether suspended or not, for a term
exceeding 3 months without the option
of a fine. |
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Action following a meeting of owners
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Keeping the instruments of proxy
| (1) |
The convenor has to deliver
all the instruments for the appointment of
proxies received to the newly appointed MC
who should keep them for at least 12 months.
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| (2) |
The convenor has to keep all
the instruments of proxy received for at least
12 months if the meeting did not pass the
resolution to appoint an MC. |
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Applying to the Land Registrar for registration
of owners as a corporation
| (3) |
The newly-appointed MC shall
within 28 days after its appointment make
an application in the prescribed Form
(with Notes about Personal Data) to the Land Registrar for the registration
of the owners as a corporation. |
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| (4) |
An application shall be accompanied
by the following documents -
| (i) |
a copy of the DMC of
the building; |
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| (ii) |
a certified copy of the
Resolution
(with Notes about Personal Data) or any other document (e.g. minutes
of the meeting) evidencing the appointment
of an MC and its chairman, vice-chairman
(if any), secretary and treasurer; |
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| (iii) |
a Declaration
(with Notes about Personal Data) by the MC chairman or secretary that
the appointment of an MC is in compliance
with the BMO; |
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| (iv) |
a Declaration
(with Notes about Personal Data) by each MC member that he does not
fall within the description of paragraph
4(1)(a) or 4(1)(b) of Schedule 2 to
the BMO.
(The MC secretary shall complete
and sign the Confirmation
on Lodgment of Declaration (with Notes about Personal Data) after
receiving the declarations from MC
members. The duly signed Confirmation
shall be submitted together with the
application to the Land Registry.)
(If the meeting of owners is held
under section 3 of the BMO and the
appointment of the convenor is duly
recorded in the form, the MC may submit
such form as a proof together with
other documents required evidencing
that the convenor is duly appointed.
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| (5) |
The statutory declarations mentioned in
paragraphs above can be made at the offices
of the Land Registry , Dedicated Hong Kong Housing Society Property Management Advisory Centre or the Public
Enquiry Service Centres (PESCs) in
DOs, or before other person authorized by
law to administer an oath (e.g. a justice
of the peace, lawyer or notary public).
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| (6) |
The MC chairman or secretary
should, where possible, make the application
and pay the fee in person at the relevant
office
of the Land Registry. To save time, the
MC chairman or secretary may make an appointment
with the Land Registry before submission of
an application.
(If the MC chairman or secretary is a body
corporate, its representative shall bring
along the body corporate's seal or chop when
making the application at the relevant office
of the Land Registry.) |
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| (7) |
It may take 1 to 3 months for
the Land Registry to process the application,
depending on individual circumstances. If
there is a need to complete the registration
in 1 month's time, reasons have to be given
in writing to the Land Registry at the time
of submission of an application. |
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Displaying a copy of OC's certificate of registration
| (8) |
Upon approval of the application for incorporation
and payment of the registration fee, a certificate
of registration will be issued. |
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| (9) |
The date of formation of an OC is the date
on which the certificate of registration is
issued by the Land Registry. With effect from
the date of issue of the certificate, the
owners for the time being shall be a body
corporate with perpetual succession and the
new MC shall be deemed to be the first MC
of the corporation. |
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| (10) |
Under section 11 of the BMO, an MC shall
display in a prominent place in the building
the following documents -
| (i) |
a copy of the certificate
of registration of OC; and |
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| (ii) |
a notice of registered
office of OC (if the office is located
in the building); or |
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| (iii) |
a copy of that notice
endorsed with the address of the registered
office (if the office is not located
in the building). |
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| (11) |
Where an OC's registered office is not located
in the building, a notice of registered office
shall be displayed by the MC in a prominent
place at the registered office of the OC.
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Register of corporations
| (12) |
The Land Registrar shall maintain
a register of corporations and permit any
person to inspect the register at any reasonable
time. The name of the OC, the name (if any)
and address of the building, the address of
the registered office of the OC as well as
the name and address of all MC members, etc.
will be entered in the register. Even if the
secretary and the treasurer are not MC members,
their name and address will be entered in
the register. |
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| (13) |
The MC secretary shall, within
28 days of the date of any change in the particulars
in the register, give notice thereof to the
Land Registrar in the form specified by the
Land Registrar. |
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Maintaining an owners' register
| (14) |
The MC secretary shall maintain
a register containing the name and address
of each owner in the building. Where any flat
is subject to a mortgage, the secretary shall
enter in the register the name and address
of the registered mortgagee. |
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| (15) |
The address of an owner shall
be the address of the flat which he owns and
the address of a registered mortgagee shall
be his address appearing in the registered
mortgage, unless the owner or registered mortgagee
notifies the MC secretary in writing of some
other address. |
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| (16) |
The MC secretary shall from
time to time amend the register if there is
any change to the particulars of owners and
registered mortgagees. |
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