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Tenancy Matters

Domestic Tenancies

  1. 1. Is there any statutory control on rent or security of tenure for domestic tenancies ?

    Rent and security of tenure in respect of domestic tenancies created on or after 9 July 2004 are not subject to any statutory control.

    For domestic tenancies in existence before 9 July 2004, where the former Part IV tenancy renewal procedure has been started before this date, the repealed mechanism which provided the tenant with a right to renew tenancy will continue to apply for the last time, and the parties may eventually apply to the Lands Tribunal to determine the renewal at prevailing market rent.
  2. 2. What is a Transitional Termination Notice (TTN) and in what case will it be required for the termination of a domestic tenancy ?

    Domestic tenancies were formerly afforded security of tenure by Part IV. This regime has been removed by the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004 which came into effect on 9 July 2004. To enable tenancies already in existence before this date to adapt to the change in the law, the Amendment Ordinance provides that such tenancies may only be terminated by mutual agreement or by a Transitional Termination Notice (TTN).

    A TTN however, will not be required in the following cases :
    1. the former Part IV tenancy renewal procedure has already been started before 9 July 2004,
    2. there is a change of any terms of the tenancy on or after 9 July 2004,
    3. the landlord and tenant on or after 9 July 2004 agree on some other period of notice of termination, or
    4. the tenancy is assigned to a new tenant on or after 9 July 2004.
  3. 3. When should a TTN be served ?

    The TTN should be served after the contractual end date by the landlord on the tenant not less than 12 months, or by the tenant on the landlord not less than 1 month, before the intended termination date.

    The TTN may be served anytime after 9 July 2004 provided it is not earlier than the following dates :
    1. for fixed term tenancies - the last day of the term,
    2. for periodic tenancies - the last day of the period current at 9 July 2004.

      A valid TTN served will continue to have effect notwithstanding a subsequent change of ownership. It would be desirable for landlords who have served a TTN to remind tenants again of the termination date nearer the time, and for tenants to inform landlords of their removal intention early.

  4. 4. How may a domestic tenancy be terminated where a TTN is not required ?

    A domestic tenancy created on or after 9 July 2004 will not require a TTN. Exception cases mentioned in A2 in respect of tenancies in existence before 9 July 2004 also do not require a TTN. They may be terminated in accordance with the terms of the tenancy or as agreed between the parties.

    In the absence of a contractual notice requirement or mutual agreement, the following common law principle will generally apply :
    1. a fixed term tenancy will end upon expiry of its term,
    2. a periodic tenancy will be terminated by a notice to quit at the length of a full tenancy period.
  5. 5. Can a landlord apply for possession of premises for self-occupation after he has served a TTN ?

    For a domestic tenancy which requires a TTN for termination of tenancy, a landlord may apply to the Lands Tribunal after expiry of the tenancy for an order for possession of premises on the ground that they are required for self occupation. The application may be made regardless of whether a TTN has been served. Once granted, the order will override any TTN that the landlord may have served.
  6. 6. Is there any restriction imposed on the landlord after he has repossessed the premises on the ground of self occupation by order of the Lands Tribunal ?

    A landlord who has obtained an order for possession on the grounds of self occupation cannot let, sell, transfer or part with possession of the premises within 24 months from the date of the order. The premises must be occupied as a residence during the 24-month period by the person for whose occupation the premises are required. Contravention of these restrictions constitutes a criminal offence. However, a landlord, in case of special circumstances, can apply to the Lands Tribunal for a variation of the order for possession.
  7. 7. When should a landlord submit the Notice of New Letting or Renewal Agreement (Form CR109) to the Rating and Valuation Department for endorsement ?

    The Form should be lodged with the Commissioner of Rating and Valuation for endorsement within one month after the landlord and tenant :
    1. entered into a newly created tenancy/sub-tenancy; or
    2. entered into a renewal of tenancy/sub-tenancy.
    A fee of $310 will be charged if the form is lodged after this 1-month period. The Landlord is not entitled to maintain an action to recover rent unless the Form has been endorsed by the Commissioner.
  8. 8. Are there any statutory grounds for a landlord to forfeit a domestic tenancy ?

    In the absence of a relevant condition in the tenancy agreement, Part IV of the Ordinance provides that a landlord may forfeit a domestic tenancy for the following acts by the tenant :
    1. non-payment of rent within 15 days of the due date;
    2. use of the premises for immoral or illegal purposes;
    3. unnecessary annoyance, inconvenience or disturbance including persistent delay in payment of rent; and
    4. structural alteration to the premises without the landlord's consent.

Non-Domestic Tenancies

  1. 9. Is there any statutory control on rent or security of tenure for non-domestic tenancies ?

    The rent and the security of tenure of non-domestic tenancies are not subject to any statutory control.
  2. 10. How may a non-domestic tenancy be terminated ? Is a TTN required ?

    The TTN requirement does not apply to non-domestic tenancies. Such tenancies if created on or after 9 July 2004 will run their courses in accordance with their lease terms. They will end upon expiry unless the landlord and tenant have agreed on a renewal or other arrangements.

    For non-domestic tenancies in existence before 9 July 2004 the following will apply :
    1. Where a former Part V notice of termination has been validly served before 9 July 2004, it will continue to have effect and the tenancy will terminate on the date as notified.
    2. Where no former Part V notice has been served, unexpired tenancies will end in accordance with the terms of the tenancy or as agreed between the parties. In the absence of a contractual notice requirement or mutual agreement, the following common law principle will generally apply :
      1. a fixed term tenancy will end upon expiry of its term,
      2. a periodic tenancy will be terminated by notice to quit at the length of a full tenancy period.
    Where no former Part V notice has been served, tenancies already expired but are continuing as month-to-month tenancies may be terminated by mutual agreement or by a notice to quit 1 month before the intended termination date.

Miscellaneous

  1. 11. How can the landlord and the tenant determine as to whether a tenancy is domestic or non-domestic ?

    Any party to a tenancy may apply to the Commissioner of Rating and Valuation for a certificate of primary user at a fee of $3,850. Such a certificate is evidence of the primary user of the premises on the day on which the premises were inspected. Any party aggrieved by the Commissioner's decision may apply to the Lands Tribunal for a determination of the nature of the tenancy.
  2. 12. How can the landlord and the tenant agree on the format of the tenancy agreement ?

    There is no provision in the Ordinance regarding the format of the agreement. Landlords and tenants may freely agree on the format and all the terms. However, the terms of the agreement cannot purport to exclude the tenancy from application of the Ordinance.

    Landlords and tenants may refer to the booklet entitled "Notes on Signing a Tenancy Agreement" issued jointly by the Consumer Council and Estate Agents Authority which contains useful information on tenancy agreements. The booklet is available from District Offices and the concerned organisations.
  3. 13. Is there any provision in the Ordinance regulating repair liabilities ?

    The Ordinance does not contain provisions on repair liabilities. Any dispute on repair and maintenance liabilities, which cannot be settled between the landlord and tenant, may be resolved in court by reference to the expressed or implied terms of the tenancy and in accordance with common law principles.
  4. 14. What can a tenant do when the landlord refuses to accept rent ?

    If a landlord refuses to accept the rent, the tenant may send the rent by cheque through the post to the landlord. If the letter is unclaimed, the tenant should keep it as a proof for future legal proceedings.
  5. 15. What can a landlord do when the tenant owes rent ?

    When the tenant is in arrears of rent, the landlord can take one of the following actions :
    1. apply to the District Court for a distress warrant. Upon the issue of a warrant, the Court Bailiff will visit the premises and seize any movable property belonging to the tenant found there. If the tenant cannot pay the rent arrears and the costs of distress within a stipulated time, the court will sell the seized property and apply the proceeds to the sums outstanding. A distress warrant cannot be issued for arrears of rent due for more than 12 months;
    2. sue the tenant in the Small Claims Tribunal for rent arrears of not more than $50,000. If the amount exceeds $50,000, the landlord may sue the tenant in the District Court; or
    3. apply to the Lands Tribunal for a possession order.
    A domestic tenant who persistently pays his rent late may be regarded as causing unnecessary inconvenience to the landlord. The landlord may apply to the Lands Tribunal for a possession order if the tenant continues with such acts despite written warnings.
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