LDNT000777/1995
Property law - new Part IV tenancy - notice of opposition on ground of self-use based on Form CR101 issued by landlord's predecessor-in title - whether Form CR101 short-served - whether purchaser of suit premises subject to tenancy can after purchase adopt the vendor's Form CR101 specified self-use ground of opposition - Held :
1.
Form CR101 invalid as statutory minimum of 6 months notice not given;
2.
If 6 months notice had been duly given, new landlord could not oppose the grant of a new tenancy on the ground of self-use on the basis of his predecessor's Form CR101, although he could adopt any of the remaining statutory grounds of opposition, if specified in his predecessor's Form CR101.
IN THE LANDS TRIBUNAL, OF HONG KONG
LT Application No.777 of 1995
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BETWEEN
LO PING KWONG
Applicant
AND
SIU LAI YUNG
1st Respondent
LAU HON MING
2nd Respondent
CORAM: His Honour Judge Cruden, Presiding Officer
DATE OF HEARING AND JUDGMENT: 20th June 1995.
DATE OF HANDING DOWN REASONS: 23rd June 1995.
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JUDGMENT
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1. The Applicant on 10th March 1995, applied pursuant to Section 117 of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, for a new tenancy in respect of the Part IV domestic premises being Flat D, Yen Fook Mansion, 1st Floor, situate at Nos. 120-126 Second Street, Hong Kong. The application was made in response to the service by the 1st Respondent upon the Applicant of a Form CR101 dated 12th November 1994, which purported to terminate the current tenancy on 14th May 1995.
2. The Form CR101 gave notice that the 1st Respondent would oppose the grant of a new tenancy on the ground that he required the suit premises for his own residence. The Applicant pleaded that he received the Form CR101 by registered post only on or about 15th November 1994 and that he therefore was given less that the statutory minimum of 6 months notice. The Applicant sought a determination that the Form CR101 was invalid. The 1st Respondent has not filed a Notice of Opposition but on 3rd April 1995 his solicitors, Messrs Chan and Cheng, filed a Notice to Act.
3. On 5th June 1995, Lau Hon Ming filed an affirmation, as the intended 2nd Respondent, disclosing that he had purchased the suit premises from the 1st Respondent on 15th February, 1995 subject to the tenancy to the Applicant. In the affirmation he gives notice that he seeks to recover possession of the suit premises for his own residence. At the hearing, on the oral application of the solicitors for the Respondents, the Respondent was reintituled the 1st Respondent and Lau Hong Ming was joined as 2nd Respondent. Although no notice of opposition had been filed, the hearing proceeded on the basis that the 2nd Respondent, relying on the 1st Respondent's Form CR101, sought to recover possession for self-use.
4. The Applicant first gave evidence on the issue of service of the 1st Respondent's Form CR101. This was yet another unfortunate case where the 1st Respondent elected to attempt to effect due service of the Form CR101, by single registered post. When a landlord resorts to postal service, too often he faces major evidential difficulties in proving the precise date of service.
5. The Form CR101 purported to terminate the current tenancy on 14th May 1995. The last day for giving the minimum 6 months statutory notice, under the corresponding date rule, would have been 14th November, 1994. The Applicant first stated that he was served with the Form CR101 "around 15th November 1994" When the Tribunal asked if he could be more precise, he stated that he had enquired of the Post Office and ascertained that he had uplifted the registered letter, containing the Form CR101, on 17th November, 1994.
6. The Applicant agreed that he called to uplift the registered letter on 17th November, 1994 in response to a prior notice from the Post Office. The Applicant then produced a letter from the Post Office with annexures, which provided the more precise information sought. These documents showed that the registered letter was mailed on 14th November, 1994 and uplifted on 17th, November 1994. On this evidence I find that the notice to uplift the registered letter was delivered to the suit premises not earlier than 15th November, 1994 being the first day after posting. Further, that the letter was not uplifted by the Applicant until 17th November 1994.
7. On these findings, even if the Applicant had been able to accept delivery of the letter on 15th November 1994 either at the suit premises or by attending on that day at the Post Office, he would have received less than than the statutory minimum of 6 months notice. The 2nd Respondent's solicitors submitted that the Tribunal had power under Rule 32, Lands Tribunal Rules to abridge time. However, that Rule only applies to pleading times fixed by the Rules and not to pre-application notices. Similarly, Section 10(2)(d), Lands Tribunal Ordinance is of no help, because it is limited to enlargement and does not extend to abridgement.
8. The law is now well settled that the Tribunal has no power to abridge time for serving Form CR101 - Sunic Consultants Ltd v. Star Verve Co. Ltd LT No.2059/93. On similar legal grounds the Tribunal also rejects the submission that the Applicant by serving a Form CR102 and applying for a new tenancy, has waived his right to raise these time objections. Jurisdiction cannot arise by waiver or estoppel - Chiu Ming-kiang v. William Lee Shung [1991] 1 HKLR 230. Nor in the absence of any application under Section 119C of the Landlord and Tenant (Consolidation) Ordinance, can jurisdiction be conferred by consent.
9. If the 1st Respondent's Form CR101 had been served in time, the 2nd Respondent would still not have been able, in the present application, to have recovered possession for self-use. As the 2nd Respondent has been represented in his disputed attempt to achieve that legally unavailable result, it may be helpful if the Tribunal were to comment upon the position which arises, where a new landlord wishes to recover possession on a ground specified in his predecessors's Form CR101.
10. I confirm the primary principle that a landlord may only plead in a Notice of Opposition, grounds already specified in the prior Form CR101 - see Section 119E(1) and Tsui Wing Chun v. Anna Ho LT No.405/93. This principle is subject to the qualification that under Hong Kong law, a new landlord may not adopt self-use as a ground of opposition, if it is based on his predecessor in title's Form CR101.
11. Whether a new landlord, who has purchased the suit premises after the issue of a Form CR101, may adopt a ground of opposition, specified in his predecessor's Form CR101, depends on the nature of that ground. In summary, the position is that the new landlord may adopt all of his predecessors's grounds, except the Section 119E(1)(b) ground commonly, if not entirely accurately, referred to as for self-use.
12. I have recently referred to this important legal distinction extra-judicially, in 'The State of Hong Kong Landlord and Tenant Law' , Law Lectures For Practitioners 1995 , page 210. At page 218, I set out the position as follows:
"(h) Change of landlord : After a landlord has issued a Form CR101, the property may be sold subject to the tenancy. It depends on the ground of opposition whether the purchaser is entitled to adopt the already issued Form CR101. The position is as follows:
Grounds other than self-use : Where in the Form CR101 the predecessor-in-title opposed a new tenancy on these other grounds, the purchaser may file a Notice of Opposition pleading that particular ground or rely on any notice already served. For example, the purchaser at the hearing may recover possession on the basis of his own intention to rebuild and advance his own rebuilding proposals.
Self-use ground : Where the Form CR101 opposed a new tenancy on the ground of self-use, the purchaser may not adopt that ground of opposition. In England, to the contrary, a purchaser can rely on his predecessor's self-use and other grounds. The reason for the distinction is that our Section 119E(2) prohibits a landlord from invoking this ground, until the premises have been owned for 12 months, by which time his predecessor's Form CR101 will have expired. The new owner must wait and issue his own Form CR101. Under Part II a purchaser can immediately apply for possession for self-use, subject to the order not taking effect until 12 months after purchase."
13. The authorities supporting those propositions are footnoted in that article and I do not propose to repeat them in this judgment. For present purposes I am content to hold that those propositions are accurate statements of current Hong Kong law.
14. The article is silent whether in the case of such a self-use Form CR101 based opposition, the notice of termination, may be severed from the specified self-use ground of opposition. If this were the position, the Form CR101 would remain effective to terminate the current tenancy. The new landlord would then be in the position to secure, under his predecessor's application, a new and probably increased rent. However, depending on new tenancy's duration, the cost to the landlord of achieving an increased rent, might well be to delay further the time to serve his own self-use based Form CR101.
15. On the other hand, if severance is not available, then while the new landlord would have to forgo the immediate opportunity to secure an increased rent he would be able, so soon as the Section 119E(2) restrictions had expired, to serve his own self-use based Form CR101. It would depend on the precise factual circumstances of a particular case, who might benefit under these possible alternatives. This issue does not arise in the present application, because of the short service of the Form CR101, and is expressly left open.
16. It follows from these findings that the Tribunal is obliged to make the following orders:
1.
The application for a new tenancy is dismissed on the ground that the current tenancy has not been duly terminated;
2.
It is hereby declared that the Applicant is entitled to remain in possession in terms of the current tenancy at the contractual rent of $4,500 per month; leave to pay any arrears within 14 days;
3.
No order as to costs.
Dated this 23rd day of June, 1995.
(Judge Cruden)
Presiding Officer, Lands Tribunal
Representation:
The Applicant in person
Mr. Kent Li of Messrs. Chan & Cheng, Solicitors for the Respondents