2. If a tenancy agreement does not specify the end date of the tenancy, but when the tenant moved into the flat, the landlord and tenant orally agreed when the tenancy would terminate. Is the tenancy agreement valid?
In principle, there can be a tenancy agreement partly in writing and partly orally. But this is not desirable and may lead to unnecessary complications in practice.
A lease for a term not exceeding 3 years at market rent which takes effect in possession may be created orally by virtue of section 6(2) of the Conveyancing and Property Ordinance (Cap. 219).
For leases which do not fall under the above exception, whilst in general they are legally binding as between the landlord and the tenant, problems may arise if the parties need to take legal action to resolve disputes relating to the tenancy. This is because section 3(1) of the Conveyancing and Property Ordinance (Cap. 219) states that no legal action may be brought on an oral agreement for lease, unless:-
(a) there is some memorandum or note in writing evidencing the tenancy agreement and signed by the parties; or
(b) the parties can rely on the doctrine of part performance by demonstrating that they have performed sufficient acts pursuant to the oral agreement between them.
By way of example, upon entering into an oral tenancy agreement with the landlord, the tenant has already moved into the flat and has duly paid rent to the landlord periodically, then the tenant may be able to invoke the doctrine of part performance to assert that there has been an oral tenancy agreement between the parties.
Print
Email