Recent changes in Hong Kong law have swing the balance of power away from tenants in favour of landlords in terms of security of tenure. So, as a tenant, it's important to have a thorough understanding - read on to know your rights.
Contributed by Victor Kwong of Kaman Properties, and Edson Lyra and Simon Reid-Kay of Allen & Overy.
1. Do I need the landlord's consent to renovate my flat?
Minor works, improvements and installations would not require the landlord's consent as long as it does not involve drilling in tiles, stone or doors. It is advisable to seek your landlord's consent prior to undertaking major and substantial changes. Be prepared to restore the property to its original condition when you leave or upon termination of the tenancy. Any express consent by the landlord for you to renovate and a waiver for re-instatement should be written in the tenancy agreement.
2. What happens if something needs repairing in the flat?
Unless otherwise specified by the tenancy agreement, the following rules will usually be applied:
The landlord shall provide the furniture / appliances in the tenancy agreement in good working condition at the commencement of the lease and the tenant shall return the same to the landlord at the end of the tenancy (fair wear and tear excepted).
During the tenancy, the tenant shall exercise due care in using and protecting the premises including furniture / appliances provided by the landlord. Generally, the landlord shall be responsible for the maintenance of the structure and exterior of the property unless damage is caused through the fault of the tenant. The tenant is normally responsible for general maintenance and upkeep of the interior (fair wear and tear and inherent defects excepted).
If the furniture / appliances need repair due to fair wear and tear, the landlord shall arrange for these to be fixed within a reasonable period of time.
If the need for repair is caused by the fault of the tenant, the tenant shall be responsible.
3. What can I do if I receive a letter requesting me to take down an illegal structure?
As a tenant, if you receive a statutory order from a government authority to take down an illegal structure, you should inform the landlord so that he, as the registered owner of the property, can carry out the necessary repairs and removals as soon as possible. You will not be the one responsible to take down the illegal structure (unless of course it was you who erected it in the first place).
4. What if there is water leakage in my apartment and it causes damage to my neighbours, am I or the landlord responsible for the damages and cost of fixing the pipes? If the landlord demands that I pay, what rights do I have under these circumstances? If I don't pay, can he force me to move out?
On the whole, the answer to the question of who is responsible for repairs and maintenance is to be found in the tenancy agreement. The common approach is that the landlord is responsible for external and structural repairs and maintenance, and the tenant is responsible for internal and non-structural ones.
It is also common to find in the agreement that the tenant's obligations for repair and maintenance are limited by the phrase "fair wear and tear, inherent and structural defects excepted." This excuses the tenant from damage arising from the passing of time and the ordinary and reasonable use of the property.
Many tenancy agreements will also contain a clause which specifies that the landlord's obligations for structural repairs and maintenance will arise only upon notice of the structural defects. This is reasonable because the landlord, not being in occupation of the property, cannot be expected to remedy defects of which he is not aware.
In your case, if the water leakage is due to the wearing out of water pipes in the external part of the building and not due to your negligence or misuse, then you should not be responsible for the repair.
If the landlord asks you to move out of the apartment, he will need to serve a notice of early termination on you. The terms of that notice, and in particular, the period of notice, will be governed by the tenancy agreement you have signed with the landlord.
5. Is there any way to prevent my landlord from entering into and showing the flat to prospective tenants near the end of the lease term while I am still living there?
No. The landlord does have the right to show the flat to prospective tenants near the end of the lease term (assuming that the contract gives the landlord a right to enter during reasonable hours.) Unless the appropriate limiting wording is in the contract, the landlord may also have the right to show the flat to prospective purchasers at any time during your lease term.
6. Can my landlord stall the return of my rental deposit by being "too busy" to inspect the condition of the premises at the end of the tenancy period?
No. The keys have to be handed back to the landlord after the end of the term of tenancy, and the tenancy agreement usually provides for the return of the deposit within 30 days after the end of the tenancy period.
7. Can I move into a serviced apartment at the expense of an owner of another flat in the building because the renovations in this other flat are really noisy and dirty and my wife has just had a baby?
You should first inform the building manager of the noise and dirt so that the building manager, to the extent empowered by the Deed of Mutual Covenant, can try to reduce it. If this still does not work, then other options would be to sue the neighbour under the law of tort (for monetary claims via civil litigation) or to obtain a court order for an injunction which can stop the neighbour from producing that amount of noise and dirt.
However, it will be difficult to claim the expense of moving into a serviced apartment without having first attempted the other more amicable options.
8. Can neighbours use noisy machineries for refurbishment on Sundays?
No. Under the Noise Control Ordinance, any person who at any time in any domestic premises or public place creates a noise, which is the source of annoyance, commits an offence and will be liable to a fine of HK$10,000.
9. Is my consent as a tenant required before scaffolding is put up outside my windows?
No, but a professional building manager will notify residents of the building of the plan to erect scaffolding by posting notices in common areas of the building.
10. Can my landlord deduct the cost of work on the property from my deposit?
If the landlord finds out that the property is not being maintained in good and tenantable condition during the term of tenancy, he must first notify you of the problem. The landlord can exercise his right of inspection (found in most tenancies), and issue a notice for want of repair. If you do not rectify the problem, then the landlord can deduct the costs of repair from your deposit.
11. What insurance do I need to buy?
It is always advisable to buy household insurance. This will protect your household contents and third-party liabilities incurred by you in using the property. It is not expensive and you can get it from most banks and insurance companies.
