Q15. I didn’t sign a tenancy agreement. Will my rights be affected? How can I protect myself?

Not necessarily. Some domestic tenancies in Hong Kong can be created orally, so the absence of a signed written agreement does not automatically mean you have no tenancy rights.

As a starting point, Section 3 of the Conveyancing and Property Ordinance (Cap 219) provides that no legal action can be brought on any contract for the sale or disposition of land — which includes a tenancy — unless the agreement is in writing and signed by the party to be charged. Section 6(2) carves out an important exception. It provides that a lease created orally is legally enforceable — without any written agreement — if all three of the following conditions are satisfied:

The term does not exceed 3 years — the tenancy must be for a fixed or periodic term of no more than three years. A tenancy with an option to extend, so long as the initial term is 3 years or less, still qualifies;

The lease takes effect in possession — meaning the tenant must actually move in and occupy the premises immediately, not at some future date; and

The rent is the best rent reasonably obtainable without a premium — in plain terms, the tenant must be paying a market rent, and must not have paid a lump-sum upfront payment (a “premium”) to secure the tenancy.

Since most domestic tenancies in Hong Kong — including those for subdivided units — are typically for terms of two years or less and at market rent with no premium, they will very commonly satisfy all three conditions under Section 6(2).

If the tenancy falls outside the Section 6(2) exception — for example because it is for a term exceeding 3 years or involves a premium — it will not be automatically void, but enforcing it in court becomes much harder. A party seeking to rely on the oral agreement would need to show either:

a written memorandum or note of the agreement signed by the other side; or

sufficient acts of part performance (i.e. actions taken by a party that are so unequivocally referable to the existence of an alleged oral agreement that it would be unconscionable for the other party to deny the contract's existence by relying on the lack of a written document) — for example, the tenant having moved in and paid rent regularly in reliance on the oral agreement — which may allow a court to uphold the tenancy despite the absence of writing.

If your tenancy concerns a subdivided unit and falls within the special statutory scheme for regulated tenancies under Part IVA of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) and the oral tenancy fulfils the conditions for a regulated tenancy under Part IVA, the oral tenancy is also regulated, and the statutory requirements and mandatory terms are implied into that oral tenancy. For instance, the tenant may, in writing, demand that the landlord serve a written tenancy agreement reflecting the contents of the oral tenancy within 30 days.

However, without a written contract, it would be much harder to prove the rent, deposit, term, notice arrangement, repair obligations, and exactly what both sides agreed to. Therefore, if there is a later dispute about deposit, rent arrears, notice period, furniture, repairs, utility bills or whether the tenancy was fixed-term or periodic, you may have less direct documentary proof. That is why protection in these cases is often about finding and preserving evidence.

In practical terms, you should protect yourself by turning the oral deal into a documentary record. That can include written confirmation messages, rent receipts, bank transfer records, deposit records, photographs of the unit, identification of the address and room number, utility records, and messages showing who agreed what and when.