On March 1 2014 the new Land Law entered into force, revoking and replacing the previous Law 6/80/M. Under the new law, the concession of land is given initially on a provisional basis. Concession becomes permanent with the use of the land as provided in the concession contract and once the land has been definitively demarcated. It is expressly stated that provisional concessions cannot be renewed, except when the land concession is attached to a definitive land concession and both lands are utilised together.
If the concession has expired by the prescribed deadline due to lack of use, the concessionaire and its dominant shareholders will not be granted another five-year occupation licence. However, it is possible to request that a change be made to:
- the concession's purpose;
- the land's use; and
- the urban plan.
The concessionaire may request:
- an alteration of the concession's purpose or modification to land use;
- the transfer of the concession and alteration of its purpose or modification to land use (so long as the transfer is not forbidden by law or the concession contract); or
- the withdrawal of the concession (and consequent loss of all deposits in balance in the process and improvements made to the land in favour of Macau).
This request must be made within six months of the entry into force of the new urban plan and cannot be lodged if the deadline for utilisation of the land has expired. In such a case, the law further stipulates that the entry into force of a new urban plan is not considered a just cause for the concessionaire's non-compliance with the land utilisation deadline.
Notwithstanding this, concessions have been revoked in recent cases and lands reverted to Macau. However, there have been other cases where concession contracts have almost expired in which concessionaires submitted plans several years earlier and the government had yet to approve them for various reasons, including the approval of new urban plans.
Considering that the Land Law does not foresee such cases, if concessions expire due to formal non-utilisation, concessionaires may file proceedings before the expiry date in order to encourage the government to act, or after the expiry date to seek compensation for damages suffered due to the government's inaction in approving plans.
The Land Law should be amended to protect the rights of concessionaires which have submitted construction plans because of changes to urban plans and have therefore requested a revision of the concession contract. This would also prevent the government from being sued for inaction.
For further information on this topic please contact Pedro Cortés or Marta Mourão at Rato, Ling, Lei & Cortés Advogados by telephone (+853 2856 2322) or email (firstname.lastname@example.org or email@example.com). The Rato, Ling, Lei & Cortés Advogados website can be accessed at www.lektou.com.
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