Regulation of Private Columbaria

• Register of Private Columbaria

The Register of Private Columbaria sets out clearly the information of all licensed private columbaria, including their name and address, any restrictions on the sale of niche interment rights, approved plans and licence conditions etc. for public information.

• Financial Mechanism for Protection of Consumer Interests

List of private columbaria which have not submitted the required documents/information for one or more domain(s) of application requirements for Temporary Suspension of Liability (TSOL) application by the deadline of 31 December 2019 and are subject to the cessation of vetting of TSOL applications by the Private Columbaria Licensing Board (PCLB)

The PCLB has examined the status of applicants' submission of documents/information for their TSOL applications by the above-mentioned deadline and decided to cease the vetting of the TSOL applications of 15 private columbaria which have not submitted the required documents/information for one or more domain(s) of application requirements for TSOL application by the deadline. For details, please click here.

1. Requirements that have to be complied with by Private Columbaria

   The Private Columbaria Ordinance (the Ordinance) has come into effect. The operation of a private columbarium must be covered by a licence, an exemption or a temporary suspension of liability (a specified instrument). Except as expressly provided in the Ordinance, the requirements under the Ordinance are in addition to and do not derogate from any requirement under any other Ordinance or law. All private columbaria are required to comply with the relevant statutory and government requirements applicable to the specified instruments, including the planning, land and building-related requirements. Various law enforcement agencies, including the Planning Department, the Buildings Department and the Lands Department, have the power to continue to take enforcement actions against unauthorised private columbaria in accordance with the powers conferred by the existing legislation or land instruments.

2. Application of the Private Columbaria Ordinance

   • A “columbarium” under the Private Columbaria Ordinance (the Ordinance) means any premises that are used, or claimed, represented or held out to be used, for keeping ashes, including furnaces for burning offerings and any other essential ancillary facilities supporting the premises to be used as a columbarium, but excluding premises used or to be used for scattering ashes with the permission of the Director of Food and Environmental Hygiene (the Director).
   • “Ashes” means ashes resulting from the cremation of human remains, and includes synthetic diamonds, jewellery, ornaments and any other materials transformed from human ashes.
   • “Interment of ashes” means the keeping of ashes in, on or at any premises in any manner, whether or not the ashes are kept in a container or a niche.
   • The Ordinance is not applicable to:
     • a columbarium that is built, operated, administered or maintained by the Government
     • a columbarium that is in private cemeteries specified under Cap. 132 (such as the cemeteries managed by the Board of Management of the Chinese Permanent Cemeteries (BMCPC) or Buddhist, Catholic and Christian organizations, etc.)
     • a columbarium managed and controlled by BMCPC
     • an authorized private crematorium specified under Cap. 132 to the extent that the keeping of ashes in it is transient and incidental to its operation
     • premises specified in a licence of the undertaker of burials as the licence holder’s place of business, provided that the licence does not prohibit the keeping of ashes
     • premises used for carrying out the transformation of ashes into synthetic diamonds, jewellery and ornaments, etc. provided that certain requirements are met
     • premises during the time when an exhibition of ashes is held (for a period of not more than 14 days), provided that certain requirements are met
     • domestic premises (where no more than 10 containers of ashes are kept, with each container containing the ashes of one person only)

3. Statutory Requirements under the Private Columbaria Ordinance

   • The Private Columbaria Ordinance (the Ordinance) has come into effect:
     • a private columbarium must obtain a licence before it may sell or newly let out niches.
     • a private columbarium which intends to apply for an exemption should have commenced operation before 1 January 1990 and must not sell or newly let out niches after 8 a.m. on 18 June 2014, and must comply with other application requirements prescribed under the Ordinance in order to be eligible for an exemption.
     • a private columbarium issued with an exemption or a temporary suspension of liability (TSOL) must not sell or newly let out niches. A columbarium which has only obtained a TSOL is not allowed to inter “new sets of ashes” (i.e. “new sets of ashes” refer to those ashes that have not been interred in the columbarium before 30 June 2017). A columbarium which has obtained an exemption is only allowed to inter new sets of ashes subject to the requirements under the Ordinance in limited circumstances, i.e. in niches sold or let out before 8 a.m. on 18 June 2014 or in a religious ash pagoda specified in a gazette notice published by the Secretary for Home Affairs.

     Requirements on an agreement for the sale of a niche

     • For an agreement entered into on or after the enactment date, the agreement must be in writing and must comply with the requirements stipulated under the Ordinance, including setting out in the agreement the information, recommendations and essential terms prescribed in the Ordinance . Otherwise, the agreement may be unenforceable by the seller against the purchaser (see section 49(2) and (3) of the Ordinance).
     • The purchaser may cancel an agreement that is not enforceable by giving the seller a written notice of cancellation. An agreement that is not enforceable may be cancelled at any time or within 6 months after the date of the agreement, depending on which requirement that the agreement has not complied with (see section 50(1) and (2) of the Ordinance).
     • A seller who receives a notice of cancellation must, within 30 days after the date of receiving the notice, refund to the purchaser all money received under the agreement.
     • The right of cancellation is subject to the terms of the agreement if ashes have already been interred.
     • If the purchaser has given a notice of cancellation and the payment made has not been refunded to the purchaser, the purchaser may bring an action in court to recover any amounts paid under the agreement together with costs.
   • Members of the public who need to purchase or rent niches must be cautious and mindful of the risks involved and must refrain from making any rash decision. Since purchase of niches is a matter of private contract, consumers are advised to study carefully the terms in the sale and purchase agreement in order to protect their own interests. To forestall loss, legal advice should be sought in case of any queries.
   • For those who have purchased or rented a niche in a private columbarium before 30 June 2017, whether or not ashes have been interred in the niche, please note the ash interment arrangement under the new legislation. Please click here for details.
   • Consumers should make enquiry with the private columbarium operator about the date of commencement of operation and the type of specified instrument(s) which he/she intends to apply for or has obtained.
   • Members of the public who needs to inter ashes may wish to consider the service of temporary storage of ashes provided by the government, niches in the columbaria in private cemeteries, placing additional sets of ashes in niches already allocated by the Food and Environmental Hygiene Department (FEHD) or the Board of Management of the Chinese Permanent Cemeteries, scattering the ashes in gardens of remembrance or at sea, or keeping the ashes at home. Please click here for details.
   Ash interment arrangement for those who have purchased or rented a niche in a private columbarium
   Ashes Interred in a columbarium Before the Enactment Date (i.e. 30 June 2017)

   Date of purchase/ renting of Interment right	Can the interred ashes still be kept in the columbarium after the new legislation comes into effect?
   	Within the grace period1	After the grace period1
   		Temporary suspension of liability (TSOL)	Exemption	Licence2	Not holding any specified instrument
   Before 8 a.m. on 18 June 2014 (cut-off time)			3
   After the cut-off time	4	If the applicant also applies for a licence:	5

   1. If a columbarium was in operation immediately before the enactment date of the new legislation, there will be a grace period of 9 months beginning on the enactment date of the new legislation. The columbarium operator must not sell or newly let out interment right during the grace period. If the columbarium applies for a TSOL, the grace period will remain valid during the processing of the application until it is finally disposed of or withdrawn.
      
      If the private columbarium is given an “Approval-in-principle for TSOL Application” by the Private Columbaria Licensing Board, the columbarium concerned is still in the grace period. For details on the “Approval-in-principle for TSOL Application”, please click here.
   2. The ash interment capacity must not exceed the level approved by the Private Columbaria Licensing Board.
   3. Such ashes interred may continue to be kept during the validity period of an exemption, provided that the name of the dedicated person has been entered into the endorsed register.
   4. If the columbarium has submitted an application for a TSOL and a licence on or before 29 March 2018, such ashes interred can continue to be kept during the grace period. However, if the operator has applied for an exemption ( whether also applying for a TSOL or not), such ashes interred will have to be properly disposed of and returned according to the requirements stipulated by the Ordinance so that the columbarium will satisfy the requirement in respect of ash interment quantity for applying for an exemption.
   5. To meet the eligibility criteria for application for an exemption, no ashes should be interred in niches sold or newly rented after 8 a.m. on 18 June 2014.

   (For ash interment arrangement in respect of religious ash pagoda, please click here)

   Niches Purchased/rented Before the Enactment Date (i.e. 30 June 2017) but Ashes Yet To Be Interred in the Columbarium

   Date of purchase/ renting of Interment right	Can the interred ashes still be kept in the columbarium after the new legislation comes into effect?
   	Within the grace period1	After the grace period1
   		Temporary suspension of liability (TSOL)2	Exemption	Licence3	Not holding any specified instrument
   Before 8 a.m. on 18 June 2014 (cut-off time)	4		5
   After the cut-off time	4

   1. For Information on “Grace Period”, please click here.
      If the private columbarium is given an “Approval-in-principle for TSOL Application” by the Private Columbaria Licensing Board, the columbarium concerned is still in the grace period. For details on the “Approval-in-principle for TSOL Application”, please click here.
   2. During the validity period of a TSOL, no new sets of ashes may be interred.
   3. The ash interment capacity must not exceed the level approved by the Private Columbaria Licensing Board.
   4. Although the Ordinance does not prohibit the interment of “new sets of ashes” (“new sets of ashes” means those ashes that were not kept in the columbarium before 30 June 2017) during the grace period in a private columbarium that was in operation immediately before 30 June 2017, such ashes interred during the grace period must be disinterred from the private columbarium under the following circumstances:
      1. A “pre-cut-off columbarium” applying for a temporary suspension of liability (“TSOL”) and a licence: If the columbarium complies with all other application requirements for a TSOL, the ash interment quantity must be maintained to that as at the beginning of 30 June 2017 before the Private Columbaria Licensing Board (“the Licensing Board”) can issue a TSOL in respect of the columbarium.
      2. A “pre-cut-off columbarium” applying for a TSOL and an exemption (regardless of whether it also applies for a licence ): If the columbarium complies with all other application requirements for a TSOL, the ash interment quantity must be maintained to that as at the “cut-off time”. If there are ashes interred in the columbarium after the “cut-off time” and before 30 June 2017, the Licensing Board cannot issue a TSOL in respect of the columbarium unless the niches concerned were sold or newly let out before the “cut-off time”.
      3. A columbarium that is not a “pre-cut-off columbarium” but was in operation immediately before 30 June 2017: The columbarium does not meet the eligibility criteria for a TSOL and the grace period applicable to it will only last for nine months from 30 June 2017 until 29 March 2018. If the columbarium cannot obtain a licence after 29 March 2018, it must cease operation and can no longer keep any ashes. Any ashes interred in such a columbarium, whether or not interred during the grace period, must be properly disposed of and returned to the eligible claimants according to the requirements under the Ordinance. Failure to do so will constitute the offence of improper ash disposal.

      Therefore, if the families of the deceased request interment of ashes during the grace period, the columbarium operator should explain clearly to them the above requirements and any “new sets of ashes” interred during the grace period must be disinterred from the columbarium under the above circumstances.

      If the families concerned still choose to inter “new sets of ashes” in the niches of such a columbarium during the grace period, the ashes should be stored in a temporary manner (i.e. sealing the niches with a plaque is not recommended) to facilitate disinterment of the ashes under the above circumstances. The columbarium operator should also keep the sale agreements and the records of interment properly for future inspection by the regulatory authority.

   5. During the validity period of an exemption, new sets of ashes may be interred provided that the name of the deceased person has been entered into an endorsed register.

   (For ash interment arrangement in respect of religious ash pagoda, please click here)

4. Resale of the niches of a private columbarium being granted an exemption or an “approval-in-principle for licence/exemption/TSOL application”

   Private columbaria being granted an exemption

   • The Ordinance stipulates that only licence holder could newly sell or let out niches.
   • In regard to private columbaria with an exemption, their layout and ash interment quantity are limited to that as at the cut-off time (i.e. 8 a.m. on 18 June 2014); and are not allowed to newly sell or let out niches.
   • In relation to the unused or partially used niches in these private columbaria that were sold before the cut-off time, the name of the dedicated persons of these niches must be entered into the relevant registers. The purchaser of such niches could only replace the name of the dedicated person contained in the relevant register to those who are a relative of the dedicated person entered, and should follow the arrangements for effecting changes of the dedicated person set out in the agreement for the sale of the interment right concerned (if applicable). The holder of an exemption in respect of the private columbarium concerned must update the register and notify the Director of the change in writing within 10 working days after the date on which the change is effected. The aforesaid restrictions are applicable to niches in private columbaria being granted an exemption.

   Private columbaria being granted an “approval-in-principle for licence/exemption/TSOL application”

   • They still need to take action to comply with the requirements under the Ordinance and all those specified by PCLB; and will only be issued with a licence or an exemption with the approval of the PCLB.
   • Private columbaria only being granted an “approval-in-principle for licence/exemption/TSOL application” may not eventually be granted a licence or an exemption, and whether conditions applicable to a licence or an exemption would affect the arrangements for effecting changes of the dedicated person remains unknown. Without fully understanding the situation, members of the public should not purchase any resale niches , or would be at risk of losses.

   Purchasing a resale interment right might have risks, members of the public should exercise caution and protect their own interests. Members of the public should ascertain the details of the private columbarium concerned, go through the clauses of the agreement for sale of the niche concerned originally entered into between the niche holder and the columbarium (e.g. whether there are any restrictions on the resale of the interment right of the niche), and consult the private columbaria concerned on the arrangements for effecting changes of the dedicated person of the niches concerned. Members of the public should seek legal advice where necessary. To ascertain the information of licensed private columbaria, members of the public may refer to the Register of Private Columbaria maintained by FEHD which sets out clearly the information of all licensed private columbaria, including their name and address, any restrictions on the sale of niche interment rights, approved plans and licence conditions etc.

5. Arrangements for disposal of ashes in the event of cessation of business or closure of private columbaria

   When a private columbarium ceases operation or closes down, its operator should carry out the “prescribed ash disposal procedures” according to the law. If he/she fails to do so, he/she may be liable to a fine of 2 million and to imprisonment for 3 years upon summary conviction; or to a fine of 5 million and to imprisonment for 7 years upon conviction on indictment.

   The ash handler carrying out the prescribed ash disposal procedures should give a “commencement of ash disposal notice”, stating his/her intention to handle the ashes and giving details of the handling of the ashes and claims. Members of the public should make a claim to the ash handler for the return of the ashes of a deceased person according to the arrangements set out in the notice.

   The ash handler should follow the procedures and criteria set out in Schedule 5 of the Private Columbaria Ordinance and return the ashes to the eligible claimants after the expiry of the first two months of the on-site claim period.

   Eligible claimants

   The following persons are prescribed claimants who are eligible to make a claim for the return of ashes:

   • an authorised representative (a person who is authorised under the agreement for the sale of an interment right to claim for the return of ashes interred under the agreement)
   • a personal representative
   • a relative
   • a related person (who was living with the deceased person in the same household immediately before the date of death of the deceased person, and had been living with the deceased person in the same household for at least two years before that date)
   • the purchaser (the person to whom the right of interment is sold)

   In addition, a person who claims to be the owner of a related item (i.e. the container of the ashes; or an item interred together with the ashes in the same container) may make a claim to the ash handler. The ashes of the deceased person, together with all related items, should be returned to the successful claimant.

   Return of ashes to the claimants

   If, when carrying out the “prescribed ash disposal procedures”, the operator of a private columbarium only receives claim for the return of ashes (but not the related items), the ash handler should return the ashes to the claimant according to Section 9 of Part 2, Schedule 5 to the Private Columbaria Ordinance.

   If, before the ashes of a deceased person (together with any related items) are returned to any person under that section, a person claims to be the owner of a related item, the ash handler should return the ashes to the claimant according to Section 10 of Part 2, Schedule 5 to the Private Columbaria Ordinance.

   For the period during which the claimant may make a claim to the ash handler and the earliest time when the ashes and the related items (if any) will be returned to the claimant.

   Competing claims for ashes
   The priority of claims in case there are competing claims for ashes (only applicable if the ash handler has not received a claim for the related item):
   The order of priority for claims for the return of the ashes is as follows: Authorised representative > Personal representative and Relative > Related person > Purchaser

   If none of the claims has priority over all other competing claims, the claimants or other persons prescribed in the Ordinance may institute proceedings in the District Court for determination on how the ashes should be returned.

   For ashes for which no claim has been received after the expiration of the on-site claim period, the ash handler should handle the ashes according to the intention he/she stated in the “commencement of ash disposal notice”, either by delivering the ashes to the Director for disposal in a manner that the Director thinks fit (see section 7(2) of Schedule 5), or, if applicable, by reinterring the ashes in another lawful columbarium on terms no less favourable than the terms governing the interment of the ashes in the original columbarium (see section 7(3) of Schedule 5).

   If the ash handler fails to carry out or complete the “prescribed ash disposal procedures”, FEHD can apply to a magistrate for an occupation order, which will empower a specified officer to enter and occupy the columbarium premises for the sake of returning the ashes to eligible claimants. All ashes not returned to claimants will be delivered to the Director. If the ashes remain unclaimed after a certain period of time, the Director can exercise his/her discretion to dispose of the ashes in a manner that he/she thinks fit.

   Any person-in-possession (“PIP”)(including owner, mortgagee, liquidator, trustee in bankruptcy, etc. in respect of the columbarium premises) is also required to carry out the prescribed ash disposal procedures after taking possession of the premises ( while some categories of PIP may invite the Director to carry out ash disposal for them).

   Alternative Means of Disposal of Ashes

   Upon collection of the ashes of the deceased, members of the public may consider the following options to dispose of the ashes apart from purchasing or renting public/private niches. For details, please click here