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23 September 2011
Article 6 of the Basic Law of the Macau Special Administrative Region states that the right of private ownership of property is protected. Except for private land which is recognised as such, according to the laws which were in force in Macau before the handover in 1999, land and natural resources within the Macau Special Administrative Region are the property of the state.
Article 7 of the law also states that the government is responsible for the management of land and natural resources, their use and development, and their lease or grant to individuals or legal entities for use or development. The revenues derived therefrom are at the exclusive disposal of the government.
Despite the fact that a revision of the Land Law (6/80/M) has been under public consultation since January 31 2011 (no forecast has been announced as to when such revision will be presented to the Legislative Assembly, approved or enter into force), the law, which dates from July 5 1980, remains the main piece of legislation relating to land in Macau.
The law states that three types of land exist:
In addition, land may be the object of:
Article 39 of the Land Law defines the entities that may obtain rights over land or hold special licences to their occupation as follows:
Furthermore, land that may be the object of a concession leasehold is defined as either:
The chief executive of Macau is responsible for the concession of land and all other rights related to the land.
The most common way of granting land in Macau is through concession leasehold contracts executed with the government, on behalf of the Macau Special Administrative Region.
A concession leasehold may be:
Sub-concessions are permitted only when:
Annual rent to be paid under the concession leasehold is stipulated in the concession leasehold contract and must comply with applicable laws and regulations.
The term of a concession cannot exceed 25 years, but may subsequently be renewed every 10 years, provided that the concessionaire of the land submits a declaration to the government at least six months before the term expires. The renewal is subject to the payment of a special lump-sum contribution, which is fixed from time to time by the government by reference to the updated rent, which is calculated according to applicable laws and regulations.
Provisory concessions are granted by way of a public auction, through a public bid or through proposals in writing. Public auctions may not be used when the concession is in relation to developments which are in the public interest.
Concessions are obtained by application to the Macau government. The applicant then receives relevant information and advice from different public departments on a variety of issues. The application must include:
In addition, the following documents must be submitted:
Upon filing an application, the following issues must be considered by the relevant authorities:
Once all the above issues have been cleared and public departments and other entities (eg, the fire department and the local concessionaire electricity company) have been consulted, the Macau Land and Public Works Department forms a view on whether the application is to be approved. If so, the chief executive issues a dispatch granting the land and ordering the provisory delimitation of the land and the realisation of a public bid, when there are no grounds for its dispensation. After the delimitation of the land, the chief executive grants the concession leasehold and determines the related conditions, including the premium to be paid to Macau SAR, which is ascertained taking into consideration various factors (the most important being the use), as well as the term for which the land concession is to be provisory.
Once the concession has been approved, the chief executive dispatch is published in the Official Gazette, together with the terms and conditions of the concession leasehold contract.
There is no statutory timeframe for the completion of the process for granting a concession leasehold. The applicant must accept the terms of the concession within 20 days of notification of the chief executive's decision. The applicant (ie, the land concessionaire) must deposit an amount equivalent to 12 months' rent 15 days after publication of the dispatch. The Macau Finance Bureau or the concessionaire then registers the provisory concession with the Macau Land and Real Estate Registry.
The Land Law has been in force since 1980 (with subsequent amendments) and, at least until it can be revised, will remain the main piece of legislation regarding Macau's land – the region's most valuable and scarce resource.
For further information on this topic please contact Pedro Cortés or Frederico Rato at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (email@example.com or firstname.lastname@example.org).
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