Getting kicked out because I

[TheBrit]

Yes, that is my understanding of how this works. Tenants are afforded additional protections over and above standard contract law. Landlords are precluded from forcibly reclaiming their property against the tenants wishes without going through due process.

The landlord would be committing a criminal offense by breaking into the flat, to reclaim vacant possession he'll need to go through the court system to do so.

For example, even if the tenant did sublet (violate the contract terms) then the landlord isn't entitled to break into the property and throw him out. The same applies if he overstays the period in the tenancy.

[Soutie]

Ehigou,

I don't think it is contractually correct either but it appears to be a reasonable course of action given that Landlord is clearly trying to frighten TheDocHK into giving up his deposit by threatening to sieze possession or to scare the Tenant into moving out without returning the deposit.

The Tennancy Agreement usually has 2 parties to it both of which have rights and obligations as included within the same Agreement - the alleged breach of tenancy agreement did not actually occur and unless there is an express provision saying that in the event that the tenant attempts to breach any of the terms and conditions that the Landlord is entitled to terminate the Agreement forthwith and is also entitled to retain the security deposit as liquidated damages in respect of the attempted breach - then its all just a bluff from a greedy landlord (or in this case an employee of the greedy landlord - who may or may not be authorised to act on behalf of the Landlord).

Often the Agreement (or indeed legislation) may define what is a security deposit & what it can be used for) - the Landlord cannot legally retain the security deposit for an attempted breach of contract without specific provisions within the contract allowing him / her to do so) - so read the Agreement before you sign it.

MandM and others have stated what can legally be done to protect yourself (changing the locks etc.) and it needs to be remembered that in return for the Tenant paying the rent and delivering vacant possession (enabling the Landlord to rent to someone else & make more money) the Landlord is to return the security deposit unless there is damage to the apartment / fittings which do not fall into the general wear and tear category which does not appear to be the case. TheDocHK appeared to be too concerned by the threat (albeit probably a hollow one) of legal action and an aggressive employee - but this is kind of par for the course when dealing with HK residential landlord.

I personally think that TheDocHK was a fool for attempting to sub-let and if the Landlord genuinely has a reasonable case to recover damages for breach of contract then he can pursue it through the courts although the legal costs will probably far outweigh any damages for breach (I have to say I cannot see a repudiatory breach in this case). It seems the Landlord staff has recognised the Tenant is not knowledgeable, is timid & adopts a conciliatory / sub-serviant position when challenged and can probably be pressured / cajoled into leaving early and without getting his security deposit back! The Landlord and his staff is well aware that breaking and entering a flat without permission or without a court order entails criminal liability & they won't do it but they appear to be relying on their opinion that the Tenant has no real grasp of his / her rights under the Tenancy Agreement or legislation.

By the way I am a Landlord of a couple of Residential Properties in HK & Overseas plus have been a tenant so have experience on both sides & remind that anyone who engages a solicitor for this sort of issue will probably not recover the costs involved (its a couple of thousand HKD just to get them to draft a simple letter) so beware.

[Soutie]

I have just noticed the post by jrkob about "Anticipatory Breach" and it is a legal concept but note that it refers to damages - and damages need to assessed - the Landlord would have to sue for breach of contract and cannot merely withold the security deposit (although it is practically what sometimes happens).

[TheBrit]

Original Post Deleted

I don't think there are any damages to be claimed here though. There was no damage to the property, no damage to the landlords interests, no basis for any restitution. The tenancy ended as normal, with the tenant paying rent in full, on time.

He made a mistake trying to sublet (although good luck proving that - easy to list up any apartment on AirBnB!) but there are no circumstances here that justify the landlord retaining the security deposit.

[TheDocHK]

Thanks so much for all of the answers guys.

I went to the tribunal to contest the Form 22 that the landlord sent me. I seeked for their legal counsel and they told me it was a very weird move from him, as this form is used to recover unpaid rents and/or evict tenants from apartments. But my lease ends in 4 days, so the legal counselor told me that it clearly was a move to threaten me and to have a legal trace when/if I sue the landlord on Small Claims tribunal.

She advised me not to stay in the apartment when the lease ends as this would clearly be a breach of my agreement and it could cost me way more than my deposit in the case the Landlord decides to sue me to the next level. I know this is very improbable but the risk is there, and as the landlord is actually a company that rents apartments they have all the time in the world to be a real pain in my ass for the next 6 months. So I'm not saying I won't do it, I'm just trying to respond pragmatically and get all the help I can have.

I'm currently looking for free legal help to validate my course of action and to know if it is really legal to change the locks and give the key to the landlord only when I get my deposit back (I know this is against the general opinion of this thread and that "I'm a moron for doing that bla bla bla", but I know how the Geoexpat community works and I knew that posting here would give me the constant "show your muscle"/"you're a pussy"/"grow a pair" pieces of advice). I don't want the react emotionally to the landlord's threat like a lot here advise me to do, I want to respond properly and legally, like a grown up, albeit I know that there's a certain chance that I'll never see my money again.

[jimbo]

On your last day
Arrange to meet the landlord or his representative to hand over keys etc and they can do the final inspection they hand your deposit over if everything's satisfactory.

In the meantime take photos of everything and I mean everything to cover yourself in case they claim for 'damages' which occurred after you've moved out.

Have a witness present when going over the final
Inspection and get everything in writing

[MandM!]

Thanks so much for all of the answers guys.

I went to the tribunal to contest the Form 22 that the landlord sent me. I seeked for their legal counsel and they told me it was a very weird move from him, as this form is used to recover unpaid rents and/or evict tenants from apartments. But my lease ends in 4 days, so the legal counselor told me that it clearly was a move to threaten me and to have a legal trace when/if I sue the landlord on Small Claims tribunal.

She advised me not to stay in the apartment when the lease ends as this would clearly be a breach of my agreement and it could cost me way more than my deposit in the case the Landlord decides to sue me to the next level. I know this is very improbable but the risk is there, and as the landlord is actually a company that rents apartments they have all the time in the world to be a real pain in my ass for the next 6 months. So I'm not saying I won't do it, I'm just trying to respond pragmatically and get all the help I can have.

I'm currently looking for free legal help to validate my course of action and to know if it is really legal to change the locks and give the key to the landlord only when I get my deposit back (I know this is against the general opinion of this thread and that "I'm a moron for doing that bla bla bla", but I know how the Geoexpat community works and I knew that posting here would give me the constant "show your muscle"/"you're a pussy"/"grow a pair" pieces of advice). I don't want the react emotionally to the landlord's threat like a lot here advise me to do, I want to respond properly and legally, like a grown up, albeit I know that there's a certain chance that I'll never see my money again.

Its only 13k, let it go. Next time don't pay the last two months rent.

Welcome to Hong Kong.

[Ehiogu]

Yes, that is my understanding of how this works. Tenants are afforded additional protections over and above standard contract law. Landlords are precluded from forcibly reclaiming their property against the tenants wishes without going through due process.

The landlord would be committing a criminal offense by breaking into the flat, to reclaim vacant possession he'll need to go through the court system to do so.

For example, even if the tenant did sublet (violate the contract terms) then the landlord isn't entitled to break into the property and throw him out. The same applies if he overstays the period in the tenancy.

In the UK there is a lengthy process to evict tenants which I understand to be a lot easier once the tenancy has expired (I am a landlord of two properties in the UK but I have never had to evict someone).

Even if what you say is true, that the landlord cannot recover the property forcibly on the last day of the tenancy, if OP stays in the flat, then that puts OP in breach of the agreement.

It is at this point when damages start accruing - for every day he stays in there, the landlord will be entitled to deduct rent and not necessarily at the rate the OP was paying.

[Ehiogu]

Jrkob, anticipatory breach of contract is a highly theoretical and uncommon claim. You won't find a huge raft of case law and from the case law that you will find, the situation is in reverse.

For example, if I contracted with The Brit Engineering Company to replace my commerical boiler and booked a 2 week slot with him, but a few days before he finds out that I actually already engaged Jimbo's Chinese Engineers to do the same job, he could repudiate the contract and then sue for the (anticipatory) breach - his measure of damages would be the tied to the fact that he's now free for two weeks, unable to find other work.

I don't think the landlord could repudiate a contract because he anticipates OP to sublet his property. It doesn't really make sense in that context, and even if by a long shot, he manages to successfully argue this, what will his damage be? It will be zero.

[TheBrit]

In the UK there is a lengthy process to evict tenants which I understand to be a lot easier once the tenancy has expired (I am a landlord of two properties in the UK but I have never had to evict someone).

Even if what you say is true, that the landlord cannot recover the property forcibly on the last day of the tenancy, if OP stays in the flat, then that puts OP in breach of the agreement.

It is at this point when damages start accruing - for every day he stays in there, the landlord will be entitled to deduct rent and not necessarily at the rate the OP was paying.

Yes, of course the OP needs to keep paying rent if he stays in the property, that is what I said in the first place

If the deposit is not returned, the tenant is legally entitled to retain the keys and continue living in the apartment (and paying rent)

The landlord has the OP's deposit, and if he fails to return if then he is also breaching the terms of the tenancy agreement. The OP is equally entitled to go after the landlord in this situation.

I think a tribunal may even look favorably on the OP given the landlords harassment and failure to agree to the terms of the original tenancy by withholding the deposit without due cause.