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m) Enforcement of Regulated Tenancies

 

The provisions of regulated tenancies under Part IVA of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) are to be enforced by criminal charges and civil proceedings.

 

Criminal Charges

 

A landlord commits an offence if the landlord:

  1. without reasonable excuse, fails to submit a Notice of Tenancy (Form AR2) to the Rating and Valuation Department (“RVD”) within 60 days after the term of a regulated tenancy commences, on a conviction to a fine at level 3 (HK$10,000), and a further fine of $200 for each day during which the offence continues;
  2. charges the tenant non-permitted fees, on a first conviction to a fine at level 3 (HK$10,000) and subsequent conviction to a fine at level 4 (HK$25,000);
  3. improperly charges the tenant the reimbursement of the charges for utilities and services specified by the Ordinance, on a first conviction to a fine at level 3 (HK$10,000) and subsequent conviction to a fine at level 4 (HK$25,000);
  4. fails to give a receipt to the tenant within 7 days after receiving the amount of rent, on conviction to a fine at level 1 (HK$2,000); or
  5. unlawfully deprives the tenant of occupation of the subdivided unit, on a first conviction to a fine of HK$500,000 and to imprisonment for 12 months, and subsequent conviction to a fine of HK$1,000,000 and to imprisonment for 3 years.

 

In addition, for the purpose of fulfilling the duties related to the tenancy regulation, the Commissioner of the RVD (“the Commissioner”) may serve on any person a requisition in the specified form or require the landlord or tenant of any premises to provide any reference document. A person commits an offence if he/she:

  1. without reasonable excuse, refuses or neglects to comply with Commissioner’s requisition in specified form or requests to provide reference documents, on a conviction to a fine at level 3 (HK$10,000) and to imprisonment for 3 months.
  2. in purported compliance with Commissioner’s requisition or request knows that or is reckless as to whether or not, the particulars, reference documents or information, or the thing said or stated, is false or misleading in a material particular, on a conviction to a fine at level 3 (HK$10,000) and to imprisonment for 3 months.

 

Statutory Rights in Civil Proceedings

 

Apart from criminal charges, the Ordinance also stipulates the rights of tenants of the regulated tenancies to withhold the rent payable or terminate the tenancy regardless of the break clause provided in the tenancy agreement, under the following circumstances:

  1. Arranging the tenancy agreement to be stamped: If the landlord fails to return a counterpart of the stamped tenancy agreement within 30 days after receiving the tenancy agreement signed by the tenant, the tenant may withhold the payment of rent until the landlord has done so.
  2. Providing written tenancy: If the landlord fails to serve on the tenant a tenancy in writing reflecting the contents of the oral tenancy for signing by the parties within 30 days (the specified period) after receiving the written demand by the tenant, the tenant may either
    • to withhold the payment of rent until the landlord has done so; or
    • to terminate the tenancy by, within 7 days after the specified period, giving the landlord not less than 30 days’ prior notice in writing of the termination.
  3. Fulfilling maintenance and repair obligations: If the landlord fails to fulfill the maintenance and repair obligations specified in part 3, Schedule 7 of the Ordinance, the tenant may, by giving the landlord not less than 30 days’ prior notice in writing, terminate the tenancy.

 

The Ordinance also stipulates the rights of landlords to terminate the tenancy and repossess the property regardless of the 4-year security of tenure, if the tenant fails to pay the rent to the landlord within 15 days after the due date or in breach of the tenant’s obligations specified in part 4, Schedule 7 of the Ordinance.

 

Given these statutory rights that both parties may uphold in civil proceedings (e.g., in an application by the landlord to repossess the property due to non-payment of rent), there is an incentive for the landlords and tenants to comply with the related provisions in the regulated tenancies.

 

In case of a dispute between the parties over the terms of the regulated tenancies and the issue does not involve committing the offences of the Ordinance, the parties may use the free advisory or mediatory services provided by the RVD (see below). If both parties cannot reach an agreement on the disputes, they may be resolved by civil action. The principle is that if the Ordinance clearly set out the rules, which are different from the provisions in the oral or written agreement between the parties, the law shall prevail.

 

For example, a landlord in the regulated tenancy failed to offer the second term tenancy to the tenant in accordance with the Ordinance and tried to evict the tenant at the expiry of the first term. The tenant refused and stayed in the subdivided unit. If the landlord attempts to reclaim the possession of the property on the ground of the expiry of the first term tenancy, Section 120AAW of the Ordinance will be applicable. It stipulates that the landlord in this case is taken to have made a second term offer to the tenant on the expiry of the offer period, and the tenant is taken to have accepted the second term offer and to be granted the second term tenancy on the expiry of the first term tenancy. The provisions of the regulated tenancy concerned will then be established.

 

Complaint Channels and Procedures

 

To complain about another person for suspected non-compliance with the requirements of the Ordinance, you may lodge your complaint through the following channels:

  • by post or visiting RVD in person: 15/F., Cheung Sha Wan Government Offices, 303 Cheung Sha Wan Road, Kowloon
  • by email: enquiries@rvd.gov.hk
  • by telephone: 2150 8303

 

Upon receipt of a complaint, RVD will process it in accordance with the following procedures:

  • RVD will first consult the complainant on the facts of the complaint and collect the relevant information (e.g. in case of complaining the landlord about overcharging the water and electricity charges, RVD will collect, among other things, information about the request of the landlord for water and electricity charges from the tenant). If needed, RVD will conduct site inspection and collect information from the complainee.
  • If, after investigation, the complaint does not involve committing the offences under the Ordinance, RVD will explain to the complainant and provide free advisory or mediatory services as appropriate.
  • If the complaint involves committing the offences under the Ordinance, RVD will seek legal advice from the Department of Justice and consider whether legal action is warranted depending on the circumstances (including the information and evidence collected) of the case.

 

For details, please visit the RVD webpage.

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