Renting Commercial Property for Domestic Use

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  1. #1

    Renting Commercial Property for Domestic Use

    Several months back I moved into a flat. It turned out that the noise level was unbearable most nights due to the many clubs surrounding the apartment. Calls to the landlord ended nowhere. I started by contacting the police on weeknights (weekends I let it go), which always kept me up until 3 or 4AM on a night that I had to get up for work. I finally called the environmental protection people who deal with noise pollution. They were very helpful, and suggested that we place microphones in the flat to check the decibel readings, etc. to take further action against the polluters. A few days later I received a call from them, and they told me that my flat was zoned commercially and that it was illegal for me to be inhabiting it.

    Question is: What can I do now? Can I demand that the landlord terminate the lease and return my deposit? Do I need to take any legal action? All I really want is to move to a quieter place and not lose my deposit (as opposed to starting some kind of legal battle).

    Thanks for any help!
    Dave


  2. #2

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    If the landlord knowingly rented you a flat which he legally couldn't rent out for that purpose I would be very very tempted to get a solicitors advice. You must have a signed contract yes?


  3. #3

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    Talk to a solicitor, find out what you would do legally, your chances of winning and an estimate of the costs involved. Get them to write a very simple letter to you.

    Then meet with your landlord, say look this is the situation (explain what lawyer said, produce letter if necessary), then say you don't want to get into all of that and you really don't want lawyers involved - you are sure they don't want to either and that if they give you your bond back you'll walk away by the end of next month (or whenever suits you) and that will be the end of that saving both of you a lot of time and money.

    I think they will probably jump at it rather than go to court.


  4. #4

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    Quote Originally Posted by dhart001:
    Question is: What can I do now? Can I demand that the landlord terminate the lease and return my deposit? Do I need to take any legal action? All I really want is to move to a quieter place and not lose my deposit (as opposed to starting some kind of legal battle).
    The lease is void and therefore unenforceable. Both parties will return to their respective positions before the lease was signed. You need to get your deposit back from the landlord. Even though it appears that the lease is void (and therefore its terms are unenforceable) you would have a legal claim to recover the deposit money.

    Far better you can resolve this matter to each other's mutual satisfaction without legal action (e.g. you surrender possession for return of the deposit money). Just hint to the landlord that if this is not done you will take further action.

    I presume you did sign a lease and this is not just a 'tenancy at will?' Did you get a receipt for the deposit money?

  5. #5

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    Unless you went through a property agent, it is not going to be as easy to get your money back as people here are stating. It is your responsibility to check if the property can be rented out legally before you pay any deposit. Ignorance is not an excuse, just like if you were to hire someone illegally.


  6. #6

    Thanks for all the replies!

    To answer some questions:

    The whole building is owned by one company. It is basically a holding company of a very elderly chinese man. He has a secretary/agent and a few other staff. I have a proper lease (as far as i can tell) 12+1 terms. I also have receipts for deposit and a 1600 HKD electric deposit. The electric is another interesting thing.... in my last place, and all of my work colleagues enjoy rebates on the electric bills...This place is in the name of the company so I pay a commercial electric rate (They send me the bills after they receive them).

    They also have other tenants in the upper floors of this building. I don't know how the environmental protection guy determined that the building was commercial, but I did call the Rent Officer at the Rates and Valuation department, and he told me that A. there was no domestic property granted in Lan Kwai Fong, and that B. If I was living in commercial property then the lease and my tenancy was illegal and C. I had the right to take the owner to small claims court if they don't give me the deposit back.

    I pulled the available info on the unit from the lands department records, but although the unit it there, it doesn't list the permitted use. There is a process at Rates and Valuation to request an officer to determine the allowed use of a premise (commercial or domestic). This costs 3000+ HKD, and once they make a judgement, it goes on the record of the property permanently. So my impression is that this has never been done, and although it is surely commercial due to the area, the landlord is using this as a loophole. If i threaten to request the assessment, this may be all that is necessary. If an assessment is done, it will affect the whole building, and he will loose the right to lease every unit in the building out domestically.

    Dave


  7. #7

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    Interesting stuff.

    A quick word in your landlord's ear about what you know and the remedies open to you should get you your deposit money back. Even if the contract was illegal and voidable you can use the small claims court to get back your deposit should that prove necessary but my guess is that the landlord will see sense very quickly and give you back your deposit.

    Good luck!


  8. #8

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    So Dave,
    1) Your landlord best sort you out nicely or he's got a lot to lose.
    2) You actually rented a gaff in LKF and then complained about the noise?!


  9. #9

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    FYI (because I think you have enough info already) But you can check the zoning and permitted uses of the site for free on the Statutory Planning Portal WTT or at the planning enquiry counter at the North point government offices