CHU MAN ON v. TAM YU HUNG

L.T. Case No. 2209 of 1995

IN THE LANDS TRIBUNAL OF HONG KONG

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REASONS FOR DECISION

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1. The applicant has been tenant and occupier since 1985 of the domestic premises situate and known as First Floor, No. 23 Sing On street, Shaukiwan, Hong Kong ("the subject property"). By a Notice of Termination in Form CR101 dated 22nd March 1995, the respondent as landlord of the subject property informed the applicant that the tenancy of the said premises would be terminated on 30th September 1995 and that the respondent would oppose an application by the applicant to the Tribunal for the grant of a new tenancy on the ground that the respondent reasonably required the subject property for occupation by the respondent, his wife, one of his grown-up daughters Tam Po-yin and her small daughter. In due course, the applicant filed the requisite application to the Tribunal for grant of a new tenancy.

2. Since there is no dispute that the applicant moved into the subject property in 1995, by virtue of section 50(6)(o) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, Part IV of the said Ordinance applies to the tenancy under consideration. According to section 119E(1)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, the respondent may oppose the application for grant of a new tenancy where the subject property or any part thereof is reasonably required by him for occupation as a residence for himself or his family; provided that the Tribunal shall not refuse to grant a new tenancy if in all the circumstances of the case it would manifestly not be just and equitable to refuse to grant a new tenancy.

3. The respondent gave evidence first. He lives four floors immediately above the subject property. He is aged 78. Indeed he had to be helped to get to the witness stand. It is quite clear to the Tribunal that the respondent cannot move about without support by another person. According to himself, the respondent had fallen in the street twice in 1995 and had to be hospitalized. The purpose of the respondent's evidence is that because of his health and movement difficulties, he needs to live in the subject property so that he does not have to traverse an extra four floors every time he leaves home.

4. Tam Po-yin, the respondent's daughter, also gave evidence. She is a divorcee and had together with her little daughter moved back with her parents in 1991. According to Madam Tam, the respondent owns the first floor (the subject property), the 3rd floor, the 4th floor and the 5th floor of the building which is not served by lift. The flat on each floor are identical in area except that the first floor has an illegal extension. The 3rd floor and the 4th floor are rented out to other tenants. The respondent and his family occupy the 5th floor. Reportedly, five adults and three children live on the 5th floor with an area of about 500 sq.ft., they are the respondent and his wife, one son, two grown-up daughters and three grandchildren. The son is divorced and works as a marine engineer. The two grown-up daughters also go to work during the day time whilst the grandchildren attend school. As to sleeping arrangement, the flat on the 5th floor has only one room and a living area. The room is used as storeroom, the living area is the sleeping area. The conditions of the flat on the 5th floor can be seen in Photographs marked Exhibit R1. It is relevant to note that the applicant cross-examined this witness only. During cross-examination, the applicant proposed to move up to the 5th floor so that the respondent and his family could move to the 1st floor. The witness replied that the respondent's household was too crowded.

5. The respondent's wife also gave evidence. She is aged 70. She says she has problem with walking. According to her, everyday she helps to look after the grandchildren. Her daily routine includes walking two grandchildren to the school about two blocks away, shopping, cooking and collecting the same grandchildren from school. The mother of the two children does not live with her husband in Tsuen Wan because she has to supervise the homework of the children whilst they live with the maternal grandparents in Shaukiwan.

6. The applicant gave evidence for his own case. He lives in the subject property on the first floor with his wife and three teenage children who are all at secondary school. Under cross-examination, he admitted that he had applied for public housing some years ago but failed.

7. In final submission, Mr. Cheung, counsel for the respondent, referred me to the Court of Appeal decisions in Ma Hon v. Andy Mahtani alias A.T. Mahtani [1981] H.K.L.R. 570, Lam Chuk-yingv. Chan Kwok-kwan [1981] H.K.L.R. 661, Mak Yee-hang and Another v. Fung Yip-sang and Others [1987] H.K.L.R. 1037 and relevant passages in the work Hong Kong Tenancy Law by Mr. M Merry. Since the reported decisions are well known I do not propose to quote extensively from them. The most important lesson for present purposes from these decisions is that for a dwelling house to be reasonably required it must be the subject of a genuine present need on the part of the landlord. The words "reasonably require" connote something more than desire, although at the same time something much less than absolute necessity is sufficient. See, for example, the headnote in Ma Hon v. Andy Mahtani alias A.T. Mahtani at p. 570. Obviously, "reasonably" cannot be exhaustively defined. In each case, the Tribunal must decide after having regard to all the particular facts and circumstances of the case.

8. Having viewed the respondent and herd his evidence, I had no doubt the respondent is a frail ancient gentleman who needs personal physical help to move about. All his children living with him work during day time so they cannot take care of him His wife is busy with the grandchildren so she also cannot look after him Obviously he has to go out and about but because he was not given the care and attention he needed he had fallen in the streets twice this year. I should hold that to constitute reasonable requirement for a particular property, the subject property must be suitable in all respects for the accommodation of all the persons stated to be in need of living in that property. the respondent cannot suitably live in a flat above ground level in a building which is not served by lift. The subject property is not what he reasonably requires. His wife, when I came to think of it. should also require service of a lift.

9. Moreover, the Tribunal should be slow to find the requirement for the subject property reasonable if it is not genuine in the sense that it is not really to meet the need of the persons stated in the CR101, but rather some other members of the family. It is true that five adults and three small children living in a flat of about 500 sq.ft. is quite crowded. However, I found the sleeping arrangement for the respondent's family incredible. If there are indeed so many of them living in the flat on the 5th floor, the only partitioned room in there would not be used as a storeroom. I believed the crowdedness is contrived and unreal. The son is single and a professional. I have yet to be convinced why he cannot live elsewhere instead of having to squeeze himself into his parents' flat. The elder daughter with two children has her matrimonial home in Tsuen Wan. It is baffling why she should see fit to base herself in her parents home and to send her daughters to live and to attend school in Shaukiwan just so that they can be looked after by the 70 year old maternal grandmother. If the crowded condition is real, it is the result of unreasonable domestic arrangements thereby rendering the requirement for the subject property as additional accommodation unreasonable. In fact, when giving evidence, the respondent himself did not say what he wanted. Of course, the opposition is conducted in the name and on behalf of the respondent, but I had the distinct impression that the respondent was being paraded to make a case for repossession for the benefit of his other children only. In effect, it was the son, the elder daughter and her two children who require accommodation; their case for accommodation in the building is unreasonable and does not justify repossession of the subject property, so they displace the respondent and his wife who then have to force the applicant's family out! Accordingly, I had no difficulty in finding that the respondent does not reasonably require the subject property.

10. In case I was wrong in terms of reasonable requirement, I proceeded to consider whether the proviso to section 119E(1)(b) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 should apply. The applicant has proposed to move up to the 5th floor flat so that the persons named in the respondent's Notice of Opposition may take the subject property. The proposal was rejected to keep the 5th floor flat for other members of the respondent's family. I have found that those persons do not reasonably require the 5th floor flat. Indeed, it is not the respondent's case in his written Application that those other members of his family require accommodation to be provided by him. In the premises, unless a suitable exchange can be agreed, it is manifestly unjust and inequitable to refuse to grant a new tenancy to the applicant.

11. In conclusion, I held that the respondent's opposition failed. The children of the respondent should find decent alternative accommodation for their parents. It only remained for me to order a new tenancy to be granted to the applicant on terms to be determined at an adjournment hearing.

12. Dated this 11th day of December, 1995.