Recently, the CCAC has received a total of 27 complaints from appointed buyers of economical housing and the office of legislator Lei Cheng I. According to the complaints, the Housing Bureau (IH) rejected the applications from appointed buyers of economical housing for not including their spouses as household members. Such doing has not only violated the related provisions under Law no. 10/2011, Economical Housing Law, but also contradicted the guidelines initially provided for economical housing applicants. Therefore, the CCAC has been requested for intervention in the case.
1. The sequence of the events
All the complainants were the so-called applicants for “19,000 economical housing flats”. Between 2003 and 2005, they submitted the applications under the old Economical Housing Law. Then their applications were approved and they were admitted to the waiting list. In around 2012, economical housing flats were allocated to them and the pre-contract agreements were signed. Subsequently, they moved into the respective flats.
In April and May 2016, the complainants received a letter from the IH indicating that in order to help them enter into the property transaction deeds, the IH requested them to provide the latest information of their households and their marital status. As the complainants got married during the waiting period, they filled in the “declaration of not being a household member” provided by the IH in order to request for not including their spouses as household members.
In March and April 2017, the complainants received a letter from the IH informing them that according to the Economical Housing Law, their applications for not including their spouses as household members were rejected and therefore their spouses should be considered as household members. Since their spouses owned their residences in Macao, when they became the applicants’ household members, the legal requirements for purchase of economical housing would be no longer met and the pre-contract agreement would be terminated.
The complaints thought that the decision made by the IH violated not only the Economical Housing Lawbut also the guidelines that it issued initially. It was because when they were going to get married, they made inquiries to the IH and the reply was that if “separation of assets” was chosen to be applied to the marriage, the spouse would not be included as one of the household members and therefore their qualification for economical housing purchase would not be affected.
The affected individuals worried that the economical housing flats allocated to them would be recovered and some public figures, such as legislators, showed their attention to the case. In response to legislators’ questions during the plenary session of the Legislative Assembly on 21stApril 2017, the Chief Executive stated that the Macao SAR Government would, in compliance to the Economical Housing Law, objectively and impartially review the legality and rationality of the administrative decisions made by the competent public department in order to protect citizens’ legal rights and interests.
On 26thApril 2017, the Secretary for Transport and Public Works issued an order which pointed out that since the legality of the signing of the property transaction deeds were questioned in the letter sent from the IH to the appointed buyers of economical housing, he instructed the IH to immediately inform those appointed buyers that the letter was null and cooperate with the CCAC in the investigation.
2. The change of legal point of view of the IH
With regard to the issue of the economical housing applicants who got married during the waiting period and their spouses owned their residences, the IH formulated an internal guideline on 12thOctober 2011, indicating that if the applicant chooses “separation of assets” or “sharing of acquired assets” during registration and declares the spouse not to be included as a household member, the applicant’s qualification for the purchase of an economical housing flat will not be affected.
The said internal guideline was distributed to the staff of the IH for reference and execution. The staff will answer the inquiries of the economical housing applicants based on the content of the internal guideline. In addition, the IH issued a press release on the relevant contents and elaborated a series of Q&A and uploaded them to its website. Until the beginning of 2017, the IH has been providing clarification and dealing with the relevant issues in accordance with the above internal guideline.
Recently, problems were found in the implementation process of the Economical Housing Law, particularly the situation where the economical housing applicants got married during the waiting period and the spouses owned their residences but they were not included as household members. Therefore, the leadership of the IH requested its legal personnel to conduct a study on the relevant provisions of the Economical Housing Law.
According to the legal opinion report of the IH dated 9thFebruary 2017, all persons who have a kinship and live together with the applicant are considered as household members under the Economical Housing Law. Therefore, the applicant of economical housing cannot declare that the family members who live together with him are not included in the list of household members, otherwise, it will violate the offence of “false declaration” under Article 50 of the above-mentioned law.
The leadership of the IH agreed with the above-mentioned opinion and instructed the subordinate units to take reference and execute accordingly. Therefore, starting from February 2017, the IH has changed its past stance and practice. As long as there is husband and wife relationship and they are living together, the person will automatically become the household member and application for not including the spouse in the household will be rejected, unless the applicant can submit justification such as separation with spouse.
According to the information provided by the IH, a total of 104 requests of not including the spouse in the household were rejected by the IH and the applicants concerned were notified; another 77 cases of applications of not including the spouse in the household were approved but change of decision is under consideration; and 37 cases have yet to be decided. In these 218 applications, there are 183 cases in which the spouses of economical housing applicants have their own housing in Macao.
3. Legal analysis by the CCAC
When an economical housing applicant gets married during the waiting period, the key question lies in whether or not it is possible not to include the spouse of the applicant as a household member. According to the IH’s new legal opinion, the definition of household provided for in the Economical Housing Lawis a mandatory rule. Therefore, when the economical housing applicant gets married during the waiting period, his spouse should necessarily be a household member, and it is not possible not to declare this situation.
However, after analysis, the CCAC believes that Paragraph 1 of Article 6 of the current Economical Housing Lawonly defines household from the perspective of qualifications for applying for economical housing flats and does not provide that people who live together because of their kinship must be considered household members.
In 2011, during the discussion on the drafting of the current Economical Housing Law, in the draft bill presented to the Legislative Assembly, the Macao SAR Government suggested that as a permanent resident of Macao, the spouse of the economical housing applicant must be included as a household member. However, after the discussion with the Legislative Assembly, this solution was cancelled in the revised draft and in the final version of the passed law.
As reference, the definition of household provided for in Administrative Regulation No. 25/2009 (Allocation, Leasing and Administration of Social Housing) is basically the same as that in the Economical Housing Law. However, with regard to the requirements for renting social housing flats, the aforementioned Administrative Regulation explicitly stipulates that “Except for spouses who are not Macao residents, the spouses of household members shall be included in the same application form.”
In the process of drafting the Economical Housing Law, the solution, which required the spouse of the economical housing applicant to be included as a household member, was not adopted. However, Article 18 of the law provides that it is necessary to declare the monthly incomes and net worth of the applicant’s spouse when he is a Macao resident and is not included as a household member, and these must be counted as part of the incomes and assets of the household. If the incomes and assets of household members exceed the legally established limits, the applicant will not meet the requirements for applying for an economical housing flat.
In addition, according to Subparagraph 5 of Paragraph 5 of Article 14 of the Economical Housing Law, the spouse of an applicant, appointed buyer or owner of an economical housing flat may not apply for the purchase of an economical housing flat, so as to avoid that both of the couple apply for an economical housing flat individually. Obviously, this rule would make no sense if the applicant’s spouse must be included as a household member.
The CCAC considers that the current Economical Housing Lawdoes not impose that the spouse of an applicant must be included as a household member. And since the entry into force of this law in October 2011, this position has been maintained by the IH in its legal opinions, internal instructions, publicity and practical operations. The IH’s opinion dated February 2017 had no legal or factual grounds for altering that position. Therefore, the IH should accept the applications of the economical housing applicants who get married during the waiting period for not including their spouses as household members, and should issue letters of authorisation to applicants for establishing property transaction deeds when the other legal conditions are met.
4. Public departments should act according to the law
Since February 2017, the IH has changed its stance and usual practice, rejecting the applications of the economical housing applicants who got married during the waiting period for not including their spouses as household members. The cause was that since some of the applicants’ spouses had already owned their residences in Macao, the IH hoped to utilise the valuable public housing resources in a proper way. However, such decision should be made based on specific legal basis and in accordance with the relevant stipulation of the Economical Housing Law.
The legal opinion report of the IH dated 9th February 2017 gave a new interpretation on the Economical Housing Law, which not only overturned the legal opinion and internal guideline given by the IH on 12th October 2011, but also altered the guidelines and operational practice that have been open to the public by the Bureau over the past many years. Moreover, such decision might also cause those applicants who have followed the guidelines to lose their economical housing flats where they were living in.
The CCAC believed that the public departments should, when performing their duties, handle any problems which may damage the public interests without delay. However, the departments should comply with the law and handle the problems within their scope of competence conferred by the law. They should also seek public interests based on the premises of respecting the rights and the legally protected interests of the citizens.
The facts that the economical housing applicants got married during the waiting period and their spouses who owned their residences were not included as household members indeed affected the rational allocation of public housing resources. However, the resolution to such problems cannot depend on just one legal opinion report and one administrative directive. Instead, the Bureau should amend the relevant regulations in the current Economical Housing Law. The CCAC believed that the IH should improve the current legal regime of economical housing in an opportune time in order that the public housing resources can be impartially, rationally and fully utilised.