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Tenancy Agreement clauses, at landlord's discretion?

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  1. #1

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    Tenancy Agreement clauses, at landlord's discretion?

    For Hong Kong, is it true that the landlord can enter clauses within reason, eg, "late payment of rent over 2 months, can result in the landlord terminating the gas and electricity or removal of possessions within the flat / room " ??
    not worded well, I know, HK locals told me this is legal if the tenant agrees and signs the contract.


  2. #2

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    Yes - there is not a legally prescribed form for a tenancy agreement. It's just like any other contract - the two parties can agree whatever they wish.


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    Reasonable discretionary clauses like Landlord having the right to cut off the power supply or not returning the one or two month deposit on a late rental payment of more than one or two months respectively, would not have any legal power in some countries, considered "Tacked" on or illegal clauses.

    Where can I see legally binding or prescribed tenancy agreements and where can I check the rights tenants have under Hong Kong law?

  4. #4

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    Quote Originally Posted by Tioga:
    Where can I see legally binding or prescribed tenancy agreements and where can I check the rights tenants have under Hong Kong law?
    Cap. 7, Sec. 119V
    Title: LANDLORD AND TENANT (CONSOLIDATION) ORDINANCE
    Heading: Harassment
    Subsection (2) - however Subsection (3)

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    Quote Originally Posted by Tioga:
    Reasonable discretionary clauses like Landlord having the right to cut off the power supply
    http://www.eaa.org.hk/Home/Publicati...S/Default.aspx

    Implied covenants of the landlord


    a.

    Tenant to have quiet enjoyment of the property

    The purpose of the covenant is twofold: (i) to protect the tenant against eviction or dispossession from the property and (ii) to protect the tenant in occupation against interference with his normal use and enjoyment of the property. The landlord impliedly covenants with the tenant that the tenant's enjoyment and possession of the property will not be disturbed by any act of the landlord, his agents or servants.

    To enjoy quiet enjoyment, the tenant must pay rent punctually and perform and observe his covenants in the tenancy agreement. A landlord does not have to observe this implied covenant if the tenant fails to pay rent or is in breach of other terms of the tenancy in which case he may take action to evict the tenant and claim damages for the tenant's breach.

    Generally speaking, if a landlord disconnects the supply of water, electricity or gas to the property whilst the tenant is still in possession, such act will constitute a breach of this implied covenant.

    Case

    Yeung Wah James v. Alfa Sea Ltd. [1993] 1 HKC 440 – A tenant occupied a third-floor flat in a block owned by the landlord. The landlord failed to persuade the tenant to surrender his tenancy. One day, the tenant, having returned to Hong Kong from overseas, found himself locked out of the premises. Further, the landlord had, in the tenant's absence and without his consent, broken into the flat to carry out renovation work. The High Court held that the landlord was in patent breach of his covenant for quiet enjoyment and awarded $50,000 as general damages and $50,000 as exemplary damages to the tenant.
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    The Cap/Sec I mentioned is from 2002.

    (3) A person does not commit an offence under subsection (2) if he proves that he had reasonable grounds for doing the act, or withdrawing or withholding the services, concerned.

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    http://www.rvd.gov.hk/doc/en/SummaryGuide-e.pdf

    RECOVERING POSSESSION
    Should a tenant refuse to vacate the premises after a tenancy agreement between the parties has come to an end, a landlord should apply for an order for possession from the Lands Tribunal or other Courts before the tenant can be made to leave. It is a criminal offence for anyone to harass and evict a tenant by illegal acts. Sub-tenants are similarly protected.

    Harassment
    It is a criminal offence for anyone to evict a tenant or sub-tenant without a court order or to try to make him leave by intimidation, violence, withholding services (e.g. disconnecting gas, electricity, water supply, etc.) or any other interference. Penalties are provided in Part IV of the Ordinance. Anyone convicted of such offence is liable on first conviction to a fine of $500,000 and imprisonment for 12 months, and on a subsequent conviction, to a fine of $1,000,000 and imprisonment for 3 years. He may furthermore be required to pay compensation to the former tenant or sub-tenant and to forfeit a sum not exceeding the difference between the market value of the premises with vacant possession and the market value of the premises with the former tenant or sub-tenant in possession.
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    "Generally speaking, if a landlord disconnects the supply of water, electricity or gas to the property whilst the tenant is still in possession, such act will constitute a breach of this implied covenant."

    wtbhotia, if the tenant has not paid the rent for two months, despite numerous reminders, is it not legal to disconnect the power supply? Especially if the appropriate clause is in the tenancy agreement form and signed by the tenant?

    Last edited by Tioga; 10-01-2014 at 03:26 AM.

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    I believe in that situation the legally "correct" course is to get a court order to evict the tenant. Cutting off services from a tenant who has not been legally evicted would be wrong.


  10. #10

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    Quote Originally Posted by Tioga:
    "Generally speaking, if a landlord disconnects the supply of water, electricity or gas to the property whilst the tenant is still in possession, such act will constitute a breach of this implied covenant."

    wtbhotia, if the tenant has not paid the rent for two months, despite numerous reminders, is it not legal to disconnect the power supply? Especially if the appropriate clause is in the tenancy agreement form and signed by the tenant?
    Pretty much any clauses are allowed to be included in the tenancy agreement as long as its not illegal under HK law.
    In order to include the clause of the utility shut down (if rent unpaid) surely would require the bldg. mgmt. to be involved and furthermore would it not require the utility company to be advised in writing about this. I have never seen or heard a clause about this so am not even sure the utility company would even follow. As long as their bills are settled they are legally required to continue the service or face an issue with the ombudsmen (and at worse even in court).

    Why not save this hassle and just tell the tenant that rent has to be autopay via the bank on second week of every month...?

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