Frederico Rato, Pedro Cortés and José Filipe Salreta of Rato Ling Vong Lei & Cortés Advogados in Macau look at the latest changes in Macau legislation
2013 generated important legislative changes in the Macau SAR, mainly centred in the management of the territory (concerning land law, urban planning law, real estate law and cultural patrimony law), but also legislation regarding employment and aeronautical safety, which we will analyse hereunder.
Witnessing a breakneck growth of its real estate sector since mid-2000s, Macau’s legal framework was beginning to show its limitations. In response, the Legislative Assembly published Law no. 07/2013 in 27/5/2013, defining the regime of legal transactions on the promissory transmission and encumbrance of buildings under construction. Its purpose was threefold: to normalise the operation of the housing market, to reinforce the transparency of the transactions therein and to guarantee the legitimate rights and interests of contracting parties. To that end, the Law submitted the transactions mentioned above to a prior authorisation by the Land, Public Works and Transport Bureau of the MSAR, under penalty of nullity. It also stipulated the formal requirements of the necessary agreements, as well as the mandatory elements, notarisation and confirmation of the agreements’ contents by a lawyer and compulsory land registration of the same.
Also, Law no. 10/2013, published in 2/9/2013, introduced substantial changes in the previous Land Act, to strengthen the transparency of land concessions. It differentiated between private and State owned lands, the latter being divided between public and private domain, and established the open tender as general rule for the concession of lands, which can only be exempted in exceptional situations, specifically provided in the Land Act, and when based on public interest favouring social development of the MSAR. Also, the concession by “aforamento” (emphyteusis) and the sale of private domain are no longer foreseen in the Land Act, neither the acquisition of some rights by adverse possession (usucapio).
The concession applicant must now submit a study of economic and financial feasibility of the project and, if necessary, an environmental impact assessment of the same, and the inflation rate and the price of the award of the previous open tenders are to be attended when fixing the amount of the premium to be paid. Also, any concession violating the urban plan is null and void.
The aforementioned Law furthermore increases significantly the amount of the fine applicable to illegal occupants, who will also be subject to the imputation of the crime of disobedience under the Macau Penal Code, to fight the illegal occupation of State owned lands.
Also, Law no. 12/2013 (published in 2/9/2013) defines the rules for Urban Planning in Macau. It institutes the prevalence of a master plan establishing strategic guidelines for the entire MSAR territory over detailed plans specifying the conditions of use and development of a particular area. To this end, the Law binds public and private entities to urban plans and determines the responsibility of the Land, Public Works and Transport Bureau (DSSOPT) for the monitoring and technical assessment of urban planning, with the aim of ensuring their effective implementation.
The conditions of use and development of land are defined in the urban plans depending on their classification and purpose. Preventive measures may be established to avoid any changes that could affect the development or amendment of the plan. The Law also foresees expropriation as a last resort scenario for the effective implementation of urban plans, as well as the corresponding compensation to be paid to individuals.
The provisions of a detailed plan in violation, at the time of its publication, of the provisions of the master plan, and the urban plans prepared or amended in violation of the law, are null and void – the same goes for administrative acts performed in violation of provisions of urban plans. The Law recognises however the general guarantees of contesting administrative acts, and also adds special guarantees to holders of rights in rem and MSAR concession holders in certain scenarios.
Law no. 11/2013 (published in 2/9/2013) set out the protection and development of Macau’s cultural heritage as the MSAR’s obligation and its residents’ duty. To this end, the Law outlined policies for safeguarding and fostering cultural heritage, and established rights and duties of owners of classified assets, as well as a system of classified heritage buildings, providing for a general prohibition of demolition of the latter. It also created the Council of Cultural Heritage (a consulting body of the Government responsible for promoting the safeguard of cultural heritage) and a specific scheme to protect the historic center of Macau (inscribed on the UNESCO World Heritage List).
The framework of the investigation of aeronautical accidents and incidents and of the protection of air safety information was also amended by Law no. 02/2013 (published in 21/1/2013). The same deals exclusively with the investigation and prevention of accidents and incidents, and determines the duties the AAC (Civil Aviation Authority of the MSAR), the entity responsible to conduct the investigation, has under the scope of said investigations, which encompasses the elaboration of recommendations to prevent the repetition of the accidents, the promotion of studies and the proposition of prevention measures to reduce aeronautical accident rate, the collaboration with the MSAR Government and other foreign homologous entities under the matters of accidents and incidents’ investigation and prevention.
Lastly, regarding employment of non-resident workers, Law no. 04/2013 (published in 15/4/2013) amended Law no. 21/2009 on the conditions under which a reissuance of a residence permit may be admissible, following the expiry or revocation of a previous permit. In particular, in cases of expiry or revocation of a residence permit, a new residence permit may be granted to the same person after a period of six months, unless said permit has been terminated by i) end of the term, ii) expiry of the employment agreement, iii) revocation of the employment authorization conferred to the employer, iv) termination of the employment relation by agreement between employer and employee, v) termination of the agreement without just cause or resolution by the employee, and vi) termination of the agreement with just cause by the employee. In cases iii) to vi) the new residence permit may only be issued if the non-resident assumes, during the following six months, a new job, identical to the authorised profession under the previous employment authorization.
Senior partner
Rato Ling Vong Lei & Cortés Advogados
Macau
About the author
Frederico graduated in law from the University of Lisbon in 1974, practiced law in Portugal between 1979-1984, and has been practicing in Macau since 1984. He is also a licensed private notary in Macau since 1991.
He was a member of the board of the general meeting, of the Fiscal Council and of the Disciplinary Council of the Macau Lawyers Association, of the Macau Judiciary Council and of the Advisory Committee for the Macau Commercial Code. He is currently a member of the Committee on Legal Reform and of the Registration and Notary Council.
Frederico is experienced in a wide range of areas such as commercial and corporate law, labour law, gaming law, banking and finance law, real estate and property law, and has been involved in several transactions of capital markets, syndicated lending and acquisitions financing and listing of companies in the Hong Kong Stock Exchange.
Senior partner
Rato Ling Vong Lei & Cortés Advogados
Macau
About the author
Pedro graduated in law from the faculty of law of the Portuguese Catholic University in 2000, and has a postgraduate degree in international management by the Faculty of Economics of Oporto in 2001.
He joined the firm in 2003 and is partner since 2006.
He is a member of the Bar Association of Macau, the Portuguese Bar Association and also is admitted to practice in East Timor.
He regularly provides legal assistance in transactions in capital markets, distribution of financial products, acquisitions, financing and listing of companies on the Hong Kong, Singapore and London Stock Exchanges, for companies with interests in Macau, and contributes to various publications. He is also a part-time lecturer at the Chinese University of Hong Kong.
Associate
Rato Ling Vong Lei & Cortés Advogados
Macau
About the author
José graduated from the Faculty of Law of the University of Lisbon in 2007 and completed the graduate program in banking law at the same Faculty in 2008. He also completed the lecture part of the master degree in corporate law at the Institute of Labour and Business Sciences (ISCTE) in Lisbon, in 2009, and the DESUP – master degree (Master 2) on European Studies at the University of Paris I – Panthéon Sorbonne in 2010. He is currently undertaking a master’s degree in International Business Law at the Faculty of Law of the University of Macau since September 2012.
He was a trainee lawyer at SPS Advogados in Lisbon between 2007 and 2009, and is a member of the Portuguese Bar Association since December 2009. He joined the office as a lawyer in August 2011, and is a member of the Macau Lawyers Association since August 2011.
