Sample form of waiver letter for temporary variation of the use of a building

The following is a sample form of waiver letter for temporary variation of the use of a building. Unless otherwise specified or required, the particulars to be inserted in the blanks in the sample form depend on the basic terms agreed between the applicant(s) and Government.

Applicant(s) should note that this sample form of waiver letter is provided for information only without any warranty or representation whatsoever on the part of Government that a waiver will be approved, and if approved a waiver letter when issued will contain the same terms and conditions as in the sample form. Government has the right in its absolute discretion to vary any of the term and conditions in the sample form as well as to impose additional terms and conditions. The waiver letter when issued will contain such terms and conditions as Government considers necessary or appropriate.

BY RECORDED DELIVERY

	Dear Sirs,
			No. of Undivided shares of and in 　　(Lot No. and address)
[　　] Delete if not appropriate *[　　] Delete as appropriate	I have to inform you that in consideration of your payment to the Government of the Hong Kong Special Administrative Region (hereinafter referred to as "the Government") of [a waiver fee in the manner mentioned below and] an administrative fee amounting to $　　　　　　　　　(the receipt whereof being hereby acknowledged), the Government has approved and I hereby grant on behalf of the Chief Executive a temporary waiver (hereinafter referred to as “the waiver”) of the restriction contained in the [Lease/Special Condition No.　　　　　　of Conditions of　　　　　　　　　][as varied or modified by a Modification Letter dated the day　　　　　　of　　　　　　and registered in the Land Registry by Memorial No.　　　　　　　　　](hereinafter referred to as “[the Lease/the Conditions]”) under which the above-mentioned lot is held, so as to permit *[the use/　　　　　　　　　]of the above-mentioned premises (hereinafter referred to as “the Premises”) for the purpose of　　　　　　　　　　　　　　　　　　.The waiver is granted subject to the following terms and conditions ;
^[　　] Insert the paragraph numbers of any other conditions which provide for early termination [　　] Delete as appropriate [　　 Delete as appropriate	(1)	Subject to paragraph No(s). 1(△), (%) and ^[　　] hereof, the waiver shall be for a term of [Insert term] certain commencing on the　　day of　　　　and thereafter *[annually/quarterly];
	(2)	Subject to paragraph No. 1(#) hereof, you shall pay to the Government [annually/quarterly] in advance [an annual/a quarterly] waiver fee of $　　　　　　(the receipt of the first *[annual/quarterly]waiver fee being hereby acknowledged);
[　　] Insert terms and conditions to suit each particular case	(　)	[　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　　];
	(　)	You hereby indemnify and shall keep indemnified the Government, its officers and servants, from and against all actions, costs, claims and demands arising directly or indirectly out of or in connection with the use of the Premises or any part thereof for the purpose of　　　　　　　　　　　　　　;
OR
Select #[　　] if the Premises are used as a columbarium	#[(　)	You hereby indemnify and shall keep indemnified the Government, its officers and servants, from and against all actions, suits, liabilities, costs, claims, demands, expenses and losses (whether financial or otherwise) whatsoever and howsoever arising directly or indirectly out of any breach of the terms and conditions of the waiver or out of or in connection with the occupation and use of the Premises or any part thereof by you or out of or in connection with or as a consequence of the waiver including but not limited to all liabilities arising out of the activities or works carried out on the Premises by or permitted by you and any works or things done by you in compliance with clause [&] hereof;]
	( * )	You have deposited with the Director of Lands (hereinafter referred to as "the Director") the deposit of $　　　　　　as security for the due performance and observance of the terms and conditions hereof. Such deposit may be used to offset any monetary loss or damage sustained by the Government in respect of any breach by you of the terms and conditions herein contained, but without prejudice to the Government's right to claim for any further or additional damages which it shall have sustained or may sustain as a result of your breach should the deposit be insufficient to offset the loss. Subject to paragraph No. 1( + ) hereof, the deposit shall remain deposited with the Director throughout the term of the waiver and shall upon the expiration or sooner determination of the period in respect of which the waiver is granted and upon your duly observing and performing your obligations under the waiver, be refunded to you in whole or in part but without interest;
(To be inserted if appropriate)	(　)	That in the event of the waiver fee hereby reserved or any increase of deposit pursuant to terms and conditions herein or any part thereof not being paid on the due date for payment thereof (whether formally demanded or not) you shall pay interest to the Government on such amount of the waiver fee reserved or increase in deposit (as the case may be) as is unpaid on the due date or dates calculated from the day immediately following the due date or dates until payment of all waiver fee or increase in deposit (as the case may be) due and the interest thereon has been paid by you to the Government, such interest to be at a rate which is equivalent to two per cent per annum above the average prevailing Best Lending Rate announced by the current note-issuing banks in Hong Kong, namely, The Hongkong and Shanghai Banking Corporation Limited, Standard Chartered Bank (Hong Kong) Limited and Bank of China (Hong Kong) Limited;
	( # )	That in the event of the waiver hereby granted not being terminated within three years from the commencement thereof the waiver fee hereby reserved may be revised by the Government at its sole discretion on or after the expiry of every third year of the term of the waiver by the Government giving to you not less than　　　　　　　　　　　　calendar month's prior notice to that effect. Such revision shall take effect from the date stipulated in the notice, whereupon the revised waiver fee shall be deemed to be substituted for the waiver fee previously in force under the waiver PROVIDED that no such revision shall take effect within three years of the immediately preceding revision and PROVIDED FURTHER that the parties hereto expressly agree that nothing herein contained shall imply an intention on the part of either party that the waiver shall not be terminated in accordance with the provisions of the waiver;
	( + )	That in the event of the waiver fee hereby reserved being revised under paragraph No. 1( # ) hereof the deposit deposited with the Director in accordance with paragraph No. 1( * ) of the waiver may be revised by the Government at its sole discretion upon the Government giving to you not less than　　　　　　　　　　calendar months' prior notice to that effect. As from the date being the effective date as stipulated in such notice such revision shall take effect and in this connection, you, shall pay to the Director or the Director shall refund to you, as the case may be, on or before the said effective date a sum equivalent to the difference between the deposit previously deposited with the Director under the waiver and the deposit as so revised whereupon the deposit as so revised shall be deemed to be substituted for the said deposit previously deposited with the Director under the waiver PROVIDED that the parties hereto expressly agree that nothing herein contained shall imply an intention on the part of either party that the waiver shall not be terminated in accordance with the provisions of the waiver;
*[　　　] Delete as appropriate	( △ )	The waiver hereby granted may be terminated at the expiry of the　　　　year by either party giving to the other not less than [one calendar month's/three calendar months'] prior notice in writing to that effect to expire at the end of the　　　　year. In the event of no such notice being given the waiver may be terminated by either party giving to the other not less than [one calendar month's/three calendar months'] notice in writing to that effect to expire at any time;
	( ø )	In the event of the waiver hereby granted being terminated in accordance with paragraph No. 1(△) hereof, no compensation whatsoever shall be paid to you by the Government, but subject to all terms and conditions herein contained having been observed and performed by you, there shall be refunded to you a due proportion of the waiver fee paid by you, but without any interest thereon, for the unexpired portion of the waiver period;
	( % )	(a)	Notwithstanding anything herein contained, in the event (i) of any breach, non-performance or non-observance of any of the terms and conditions herein contained or (ii) that at any time, you use or permit or suffer any part of the Premises to be used for any illegal or immoral purposes or any purposes in breach of any Ordinances, bye-laws, regulations and rules in force in the Hong Kong Special Administrative Region (hereinafter referred to as “Hong Kong”), the Government may revoke forthwith the waiver hereby granted by written notice to you. Where there is such revocation, the Premises shall immediately cease to be used for the purposes of　　　　　　and shall again in all respects be subject to all the [provisions, covenants, stipulations, exceptions, reservations, powers and conditions/General and Special Conditions] contained in the [Lease/Conditions]. No part of the waiver fee and administrative fee already paid shall be refunded nor shall any compensation whatsoever be paid to you by the Government;
		(b)	For the purpose of sub-clause (a) of this condition, the determination of the Director as to whether there is any breach, non-performance or non-observance of the terms and conditions herein contained or whether the Premises are or have been used for any illegal or immoral purposes or any purposes in breach of any Ordinances, bye-laws, regulations and rules in force in Hong Kong shall be final and binding on you;
* Insert (&) if the Premises are used as a columbarium	*[(&)　 Upon the expiry or sooner determination or revocation of the waiver, you shall at your own cost and expense:
		(a)	demolish and remove all structures or fixtures or additions including but not limited to columbarium compartments, niches, foundation, paving or other surfacing which is then standing on or forms part of the Premises (irrespective of whether they were erected or installed by you) in all respects to my satisfaction;
		(b)	remove and clear anything including but not limited to articles and substances contained in the structures, fixtures, additions, columbarium compartments and niches as referred to in sub-sub-clause (a) above in all respects to my satisfaction; and
		(c)	make good repair in a proper and workmanlike manner any damage to the Premises and thereafter reinstate the Premises in all respects to my satisfaction and without any compensation therefor being paid to you.
		For the avoidance of doubt, you agree that the obligations imposed on you under this clause (&) shall survive the expiry or sooner determination or revocation of the waiver.]
* Insert [　　　] if the Premises are used as a columbarium	*[(　　)	You acknowledge that you fully understand it is your duty to properly relocate anything deposited in the Premises including but not limited to articles and substances upon the expiry or sooner determination or revocation of the waiver.]
* Insert [　　　] if the Premises are used as a columbarium	*[(　　)	You acknowledge that you fully understand it is your duty to compensate any families or parties involved for any loss or damage that they suffer as a consequence of or arising out of the expiry or sooner determination or revocation of the waiver or things done by you in compliance with Clause (&)hereof.]
	(　　)	Any notice to be served by the Government or its officers under the terms and conditions of the waiver shall be sufficiently served on you if left addressed to you on the Premises or forwarded to you by post or left at your last known address or at your registered office (as the case may be) and such notice, if sent by post, shall be deemed to be delivered in due course of post at the address to which it is sent;
* Insert [　　] if the Premises are used as a columbarium	*[(　　)	By execution of the waiver and in consideration hereof, you expressly acknowledge and agree that the Government and I shall accept no responsibility and shall have no liability whatsoever in respect of any loss, damage, claims, nuisance or disturbance whatsoever and howsoever caused to or suffered by you or any person including licensees or persons depositing in the Premises anything including articles and substances or other occupiers of the Premises whether lawful or otherwise arising out of or in connection with or as a consequence of the waiver including but not limited to any activities or works carried out on the Premises by or permitted by you.]
*[　　] Delete as appropriate	(　　)	Except as hereby temporarily waived all the [provisions, covenants, stipulations, exceptions, reservations, powers and conditions/General and Special Conditions] contained in the [Lease/Conditions] shall remain in full force and effect;
	(　　)	Nothing contained in this letter shall prejudice any of the rights and remedies of your co-owners under the Deed of Mutual Covenant dated the　　　　　　　　　day of　　　　　　　　　and registered in the Land Registry by Memorial No.　　　　　　　　　　; and
(Delete if there is no mortgage)	(　　)	Nothing contained in this letter shall prejudice any of the rights and remedies of your Chargee/Mortgagee,　　　　　　　　, under the Legal Charge/Mortgage dated the　　　　day of　　　　　　 and registered in the Land Registry by Memorial No.　　　　　　.
	(　　)	Notwithstanding any other provisions of the waiver including any provision which purports to confer a benefit on a person who is not a party to the waiver, the waiver is not intended to and does not give any person who is not a party to the waiver any right to enforce any provisions of the waiver under the Contracts (Rights of Third Parties) Ordinance, and a person who is not a party to the waiver shall not have any right under the Contracts (Rights of Third Parties) Ordinance to enforce any provisions of the waiver.
# Insert [　　] if the Premises are used as a columbarium	#[Please note that the waiver granted to you is on a temporary basis, the Government shall be entitled to serve notice on you to terminate the waiver hereby offered according to the terms herein and upon the expiry or sooner determination or revocation thereof for whatever reasons according to the terms herein, the Government has an absolute discretion to grant or not to grant a new waiver and therefore there shall not be any expectation on your part or on the part of any person that the Government will offer a new waiver of the restriction contained in the Lease/the Conditions.]
[　　　　] Delete if there is no mortgage % Applicable where the grantee/lessee is an individual + Applicable where the grantee/lessee is a limited company	2.　　　If the foregoing terms and conditions are acceptable to you, please signify your acceptance thereof by {%signing/+executing, under your common seal and in accordance with the laws of your place of incorporation or otherwise in accordance with the applicable law to my satisfaction,} the docket on both copies of the waiver. Your {%signature/+execution} must be duly witnessed. [I note that the Premises are charged/mortgaged to the　　　　　　　　　　. It is essential the consent of your Chargee/Mortgagee be obtained to the foregoing terms and conditions by having such consent endorsed in the manner indicated below, on both copies of the waiver.] After you have {%signed/+executed} [and the consent of the Chargee/Mortgagee has been duly endorsed,] please return all copies of the waiver to me, whereupon the waiver will be registered by Memorial at the Land Registry. After registration the original of the waiver will be returned to you for retention with the documents of title in your possession.
*[　　] Delete if covering letter with time limit for acceptance stipulated therein is used	*[3.　　If on the expiration of 28 days from the date of this waiver letter your acceptance of the above terms has not been formally signified in accordance with paragraph 2 above, the Government's approval of the waiver on these terms shall be deemed to have been automatically withdrawn.]

Yours faithfully,

(　　　　　　　　　)
District Lands Officer,

c.c.	LACO(District)
	CRV

　　　　　　　　*[I/We acknowledge the contents of your letter ref. (　　) in dated　　　　　　　]. I/We hereby agree to and accept the foregoing terms and conditions.

Witness：
	_________________________________ (Signature and name in block letters)	___________________________ %(Signature of　　　　　　　　　　　　)
		+(Execution by　　　　　　　　　　　　)
Address：
		Date :

(Delete if there is no mortgage)	I/We,　　　　　　　　being the registered chargee/mortgagee of the Premises hereby *[acknowledge the contents of your letter ref (　　) in　　　　　dated　　　　　　　　and] consent to the issue of the waiver on the above terms and conditions to [Insert name of the owner] and formally acknowledge that I/we have no objection to the acceptance of such terms and conditions by [Insert name of the owner].
	Dated the	day of 　　　　　　　　　　　　　　.

*	[　]	Insert if the Premises are used as a columbarium
%		Applicable where the grantee/lessee is an individual
+		Applicable where the grantee/lessee is a limited company

___________________________
Signed for and on behalf of

[N.B. You are required to note that pursuant to the provisions of the Land Registration Ordinance and the Regulations made thereunder the personal data contained in this Waiver Letter will appear in the land register(s)/record(s) of the Land Registry to facilitate the orderly conduct of land transaction and to provide the most up-to-date information to searchers.]

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