| Monograph : Hong Kong Domestic Tenancy |
Contents |
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| (3) Contents
of a Tenancy Agreement |
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A tenancy agreement will contain what the landlord and the tenant have agreed
to be their rights and duties. However, in common law, certain
rights and duties will be implied in a tenancy even if the
tenancy agreement does not expressly provide for the same.
The general legal principle is that such implied covenants
will automatically apply to a tenancy, unless there are express
and contrary provisions in the tenancy agreement.
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1. |
Implied covenants of the landlord |
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| 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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| b. |
Fitness for habitation
There is an implied covenant on the part of the
landlord to ensure that the property is at the
beginning of the tenancy reasonably fit for human
habitation where the property is let with furniture. |
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| c. |
Landlord not to derogate from
his grant
The landlord impliedly covenants not to directly
or indirectly interfere with or affect the purpose
for which the property was let to the tenant and
his reasonable enjoyment thereof.
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2. |
Implied covenants of the tenant |
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| a. |
To pay rent on the due date
Rent is usually payable in advance on a specified
date of each month. Unless expressly provided
to the contrary, rent is outstanding if not paid
before midnight on the due date for payment. |
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| b. |
To repair and maintain the
property's interior
This covers all the internal physical condition
of the property and its fixtures, furniture and
electrical appliances. This does not, however,
cover fair wear and tear, and structural and latent
defects.
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| c. |
To pay rates
If the landlord has not agreed to pay the rates,
the implied obligation is on the tenant to pay
the rates since rates are an occupier's
tax and the tenant, being an occupier, is therefore
liable. However, in practice, there is usually
an express agreement between the landlord and
the tenant as to who is going to pay the rates. |
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| d. |
To use the property in a "tenant-like"
manner
A tenant has the implied obligation to use property
in a reasonable and proper manner and to take
care of the property as a reasonable tenant will
do in his circumstances. |
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| e. |
Not to commit waste |
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| i. |
It is implied under common law that a tenant
shall not commit waste. "Waste"
consists of any act or omission which causes
a lasting alteration to the nature of the
property to the prejudice of the landlord
or such act as may impair title to the property. |
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| ii. |
Examples of waste include removal of wainscots
(skirting boards) or floors, permitting walls
to decay and converting residential premises
into commercial or industrial premises and
vice versa. |
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| iii. |
The obligation not to commit waste is an
obligation in tort, independent of contract. |
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| iv. |
The measure of damages is the injury to
the landlord, by considering the depreciation
in value of the property. |
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| f. |
To yield up vacant possession
of the property upon expiry of the tenancy
Besides yielding up vacant possession of the
property, the tenant also impliedly covenants
to deliver up the property in a good, clean and
tenantable condition (fair wear and tear accepted).
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3. |
Common provisions |
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The following are provisions regarding a tenant's
obligations commonly found in a tenancy agreement: |
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| a. |
To pay rent on the day and in the
manner specified in the tenancy agreement. |
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| b. |
To maintain and repair the interior
of the property, save and except for structural
and latent defects and fair wear and tear. |
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| c. |
To be liable for loss or injury caused
to any person through the defective condition of
any part of the interior of the property and to
indemnify the landlord against all claims and proceedings
made against the landlord in respect of such loss
or injury and all incidental costs and expenses. |
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| d. |
To permit the landlord and/or his
authorised agent with or without workmen at all
reasonable times to enter and view the state of
repair of the property, to take inventories of the
fixtures and fittings, to carry out any work or
repair. |
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| e. |
Upon notice from the landlord, to
carry out repair work which is the tenant's
responsibility with all possible dispatch and without
any delay. |
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| f. |
To perform and observe the terms
contained in the Deed of Mutual Covenant relating
to the property and to indemnify the landlord against
any breach thereof. |
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| g. |
To pay all charges for water, electricity
and fuel charges in respect of the property. |
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| h. |
To take all precautions to protect
the interior of the property against damage by storm
or typhoon or flooding. |
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| i. |
To use the property for the purpose
stipulated in the tenancy agreement only. |
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| j. |
Not to erect, install or alter any
fixture or partitioning without the landlord's
prior written consent. |
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| k. |
Not to produce any noise or sound
so as to be audible outside the property, which
becomes a nuisance or annoyance to the landlord
or other occupiers of the same building. |
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| l. |
Not to do anything whereby any policy
of insurance on the property against loss or damage
may be rendered void or voidable or whereby the
premium may be increased. |
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| m. |
Not to keep in the property any arms,
ammunition or other explosive or combustible or
hazardous goods without a licence from the relevant
authority. |
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| n. |
Not to use the property for any
illegal or immoral purpose. |
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| o. |
Not to obstruct or cause obstruction
to any common area or facility in the building. |
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| p. |
Not to assign, sublet or part with
possession of the property or any part thereof irrespective
of whether any consideration is given unless with
the landlord's prior written consent. |
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| q. |
During a certain period of time
before the termination of the tenancy (usually three
months) to allow the landlord within reasonable
time to show the property to prospective tenants
or purchasers. |
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| r. |
At the expiration or sooner determination
of the tenancy to deliver up to the landlord vacant
possession of the property in good, clean and tenantable
condition. |
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