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12 September, 2023

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Things that you need to know before signing a Tenancy Agreement or a Lease
- 1. What major government departments are responsible for governing tenancy matters in Hong Kong? To which department(s) should a party go to if a tenancy dispute/problem arises?
- 2. How can I obtain tenancy information concerning the Government properties (such as public rental housing or shopping centres run by the Government)?
- 3. What is the difference between a tenancy and a licence?
- 4. Can I convert or use my property (or its sub-divided rooms) to grant short-term leases/licences in providing rooms or bedspaces to guests (similar to Airbnb accommodations or ‘capsule hotels’)?
- 5. Before signing the formal tenancy agreement or lease, a tenant may sometimes be asked by a landlord to sign a document called "agreement for lease" or "provisional tenancy agreement". What are the consequences of signing this document?
- 6. Can I let or otherwise allow occupiers to stay at subsidized housing under the Housing Ordinance (e.g. Public Housing or Home Ownership Schemes)?
- 7. Can a foreigner rent a property in Hong Kong?
- 8. If I am a foreigner who is posted by my company to work in Hong Kong, what should I pay special attention to when entering into a tenancy of a flat here?
- 9. The covenants, terms and conditions in the Government leases of some premises do not allow the occupiers to let for residential use (Examples: Registered or unregistered squatters, roof-top unauthorized building works, industrial buildings, container houses, or caravans on farmland). Are tenancy agreements on such premises legally binding?
After signing a Tenancy Agreement (or a Lease), how should the parties handle the document?
- 1. How is stamp duty calculated on a tenancy document?
- 2. What are the consequences of failing to stamp a tenancy document?
- 3. Some tenancy documents must be registered with the Land Registry but some do not. Why?
- 4. How is Property Tax calculated?
Rent
- a) Overview
- b) Rent-free periods
- c) Apportionment
  - 1. The tenancy agreement stipulates that rent shall be payable in advance on the 1st day of each month. The tenancy will terminate on 15th January. Does the tenant need to pay monthly rent in full on 1st January? If so, does the landlord need to refund the rent for the period 16th to 31st January to the tenant later?
- d) Payment of rent
  - 1. Can the tenant withhold some portion of the rent if the landlord fails to fulfill his obligation to repair?
  - 2. The water tap was broken. The landlord is responsible for repairing it, but he refused to do so. I paid $500 to replace the tap with a new one. Can I pay $500 less in rent?
- e) Suspension of rent
- f) Rent review
Rates, Management Fees and other charges
How to recover the outstanding rent and get back the property?
- 1. My tenant has failed to pay rent for two months. What can I do to recover the rent and the possession of my property?
- 2. My tenant has failed to pay rent for several months. Can I regain possession of my property by breaking open the door, throwing away the tenant's belongings and changing the lock without resorting to Court proceedings?
- 3. My tenant has failed to pay or allegedly 'deducted' the rent for several months by the excuse that he suffered from minor water leakage problems or discomfort/disturbances. Can he/she do so and is that a good defence to the recovery of the payable rent/forfeiture?
- 4. Issues relating to Bailiff
Regulations on using or occupying a leased property
- 1. Why is it necessary and how do we ascertain the primary use, for example “domestic” or “non-domestic”, of a property?
- 2. I have let a residential property to a tenant and I recently found that the tenant is using the property as an office. Will this affect my interests or cause any liability to me as a landlord? If my tenant conducts criminal activities there, what further problems will I face?
- 3. I am a tenant of an apartment unit who have been disturbed by my neighbour (since he habitually sings karoake at a high volume at night). I complained to the manager of the building and was told that as I was not the owner of the property. He further stated that, as tenant, I did not have any right under the deed of mutual covenant. Is he correct and what can I do?
- 4. If the tenant causes nuisance to neighbours, will the landlord be liable? Does the landlord have any remedies against the tenant?
- 5. What amounts to “structural alteration”? Can the tenant make any structural alteration to the premises?
- 6. I am a tenant of an industrial property. The landlord and I had an understanding that I would use the property for residential purpose when the tenancy agreement was signed. The landlord later evicted me from the property. Can I go to the court to enforce the tenancy agreement and seek remedies?
Sub-letting
Properties with mortgages
- 1. I received a letter from a bank claiming to be the mortgagee of the property that I am renting. The bank claimed that the tenancy document between my landlord and me was made without its consent and asked me to move out of the property. What can I do?
Repair/maintenance obligations
- 1. In general, who shall be responsible for maintaining and repairing the property?
- 2. If there was a fire broken out on a leased property and the landlord has suffered some losses as a result, can the landlord claim against the tenant?
Termination of tenancies by notice before expiration (without breach)
- 1. I have let my property to a tenant on a three year term. There are still more than 2 years remaining in the term. However, I note that the rental value of neighbouring properties has risen significantly. Can I terminate the tenancy with the existing tenant and re-let the property out for a better rent?
- 2. I have recently entered into a lease with the Landlord but, before moving in, the Landlord changed his position and said that he did not wish to let the property to me anymore, terminated the tenancy agreement and refused to let me move in. I considered that the terms of the lease was a good bargain to me and I liked this property a lot. Instead of asking for money compensation, can I ask the Court to compel the Landlord to let the property to me on the original terms despite the landlord has breached it?
- 3. I have rented a property on a three year term. There are still more than 2 years remaining in the term. However, I note that the rental value of neighbouring properties has dropped significantly. Can I terminate the tenancy with the landlord so that I can get a comparable property for a lower rent?
- 4. I have rented a property on a three year term. As a result, I have incurred rather big sum of money on renovations and purchasing furniture and expensive appliances which only fits into the property’s layout and dimensions. However, the landlord relied on the ‘break clause’ and gave my notice to quit at the commencement of the second year. The landlord at the same time threatened me that if I wished to stay, I must pay extra rent for the remaining term, or else I must leave after restoring the property into its original state at my own costs. Is that fair? Can I sue the landlord for compensation?
- 5. How to count the notifying period of tenancy termination? If it is specified a one-month notice period, does it count from the day of notification? Or does it count from the 1st day of the next rental month?
- 6. My neighbour causes excessive noise at night every day. My children and I cannot sleep. Can I terminate the tenancy agreement?
- 7. I rent a flat with a balcony which is found to be an unauthorized building work. Later the landlord removed the balcony. Can I terminate the tenancy agreement?
Landlord sells the property with existing tenancy
- 1. My property, which is currently let to a tenant, has risen in value and I intend to sell it. What do I need to do to discharge myself from any liability under the tenancy before selling the property?
- 2. My landlord has informed me that the property I am renting was sold recently. I was also told to pay rent to the new landlord on the next due date. Can I object? Will my interests under the "old" tenancy be protected?
- 3. There is an option to renew clause in the tenancy agreement signed between the old landlord and the tenant. The tenant tries to exercise the option to renew, but the new landlord refuses. Can the new landlord do so?
Renewal matters
- 1. What is the difference between an Option to Renew and a Break Clause?
- 2. A landlord and a tenant intend to renew an existing tenancy. Except the rent, all of the terms are agreed. Is there any way that the parties can resolve the problem amicably?
Termination of tenancies (by non-payment of rent)
Termination of tenancies (for breaches of the tenant other than non-payment of rent)
- 1. My tenant removed one of the partition walls of the unit (which is residential) without my consent. Can I terminate the tenancy agreement for such reason?
- 2. The neighbor has complained that the tenant of my property (in an industrial building) has persistently caused excessive noise during late evenings by having overnight binge drinking parties with over 100 guests and a lot of garbage was left at the lift lobby in early mornings. The matter was reported to the police too and certain people were arrested from the scene being suspected of drug abuse. Can I terminate the tenancy agreement? If the case is heard in Court, will the Court grant any ‘mercy’ to the tenant?
Forfeiture of rental deposit and other consequences following termination by the tenant’s breach
Handover matters at expiry/termination of a lease
- 1. How to resolve the situation of the tenant and landlord not agreeing the amount to be deducted from the rental deposit (due to the disagreement on “reasonable satisfaction of the landlord”)?
- 2. If my landlord refuses to return the rental deposit to me, what can I do?
- 3. Does the landlord have the right to dispose of the belongings left by the tenant after the handover?
- 4. Does the landlord have the responsibility to keep the belongings for a certain period of time if the tenant has indicated that they will collect them?
Sub-divided Flats and Tenancy Regulation
- a) Objective and Scope of Application of Landlord and Tenant (Consolidation) (Amendment) Ordinance 2021
- b) Excluded Tenancies
  - Q1. Would a landlord residing in one of the subdivided units be a sufficient condition to exempt the tenancies of other subdivided units from the regulation of the Part IVA of the Part IVA of the Landlord and Tenant (Consolidation) Ordinance?
- c) Transitional Arrangements
  - Q1. A tenancy on a subdivided unit was created orally or by conduct with rent paid periodically and no written tenancy had ever been signed. Are the tenancy regulations applicable?
  - Q2. An original tenancy agreement has expired. The tenant continues to pay for the monthly rent and stay in the subdivided unit with the landlord’s consent. Are the tenancy regulations applicable?
- d) Determination of Regulated Tenancy
  - Q1. A landlord letting a subdivided unit in an industrial building maintains that the tenancy is not for domestic use, and therefore not to be regulated by Part IVA of the Landlord and Tenant (Consolidation) Ordinance. The tenant disagrees and would like to take legal action. What can the tenant do in order to prove that the tenancy is for domestic use and thus a regulated tenancy under the Ordinance? What factors will be taken into consideration by the Court when determining whether the tenancy of the subdivided unit is a regulated tenancy?
- e) Security of Tenure
- g) Entering into Written Tenancy Agreement
  - Q1. Is there a template of tenancy agreement for a regulated tenancy?
  - Q2. Can I draft my own regulated tenancy agreement? What are the essential terms of the tenancy agreement?
- h) Submission of Notice of Tenancy and Stamping of Tenancy Agreement
- i) Rental Deposit
- j) Mandatory Terms Implied for every Regulated Tenancy
- k) Second term Offer
- l) Overcharging Fees and Charges
- m) Enforcement of Regulated Tenancies
  - Q1. What is the role of the Commissioner of the Rates and Valuation Department (Commissioner) in executing the regulated tenancy?
- n) Regulated tenancy as Sub-tenancy
  - Q1. What are the remedies for the sub-tenant in a regulated tenancy if the tenancy has been terminated before expiry due to the forfeiture of its head lease by the superior landlord?
- o) Tenant’s Interest to Pass to Family Member on Death
  - Q1. If the landlord dies during the term of the regulated tenancy and the unit has been transferred to another person/entity by way of probate, are the benefits and protection under the tenancy available to the tenant? Does the tenant need to leave the property?
- p) Other Legal Issues
  - Q1. My neighbour in the same subdivided flat causes excessive noise at night every day. My children and I cannot sleep. Can I terminate the tenancy agreement?
Estate agents
- a) General
  - 1. Is it mandatory to engage an estate agent to enter into a tenancy of a flat?
  - 2. Is there any law regulating the rate of estate agent commission?
- b) Services to landlords
  - 1. I want to let my flat. What services can I expect from an estate agent?
  - 2. As the landlord, must I sign an estate agency agreement when I ask an agent to help me let my flat?
- c) Services to tenants
- d) Joint Representation
  - 1. Can the same estate agent serve both the landlord and the tenant?
- e) Misconduct
Renting abroad
- a) Renting abroad - Estate agent
- b) Renting abroad - Conflict of Laws
  - 1. Does Hong Kong law apply to the tenancy of overseas properties?
Case Illustrations
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