Yeung Ho Ching yee v. Schepel Kaarlo Veikko and Another

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Lands Tribunal Application No. LDPD 2379 of 1999

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REASONS FOR DECISION

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1. The applicant is the owner of the Front Portion, 2nd Floor, No.2 Greeson Street, Hong Kong (the suit premises).

2. The first respondent entered into a tenancy agreement with the applicant on 1st March 1999, for a period of two years, for the lease of the suit premises. The rent is $6,054.30 per month.

3. The original application for possession was against the first respondent only. The second respondent later applied for, and was granted, leave to be added as the second respondent.

4. The second respondent has been in occupation of one of the rooms in the suit premises. The applicant concedes that he is a legal sub-tenant.

5. The applicant claims against the first and second respondents for vacant possession of the suit premises. The applicant claims against the first respondent the arrears of rent from 1st August 1999 to 31st October 1999, and mesne profits at $6,054.30 per month from 1st November 1999 until delivery of vacant possession.

6. It is not in dispute that since 1st August 1999, the first respondent has paid no rent. In October 1999, the applicant took out distraint against the first respondent, under Distraint No. 8833/99. An amount of $500 was recovered from the auction of the goods seized. It was not sufficient to pay for the arrears of rent. On 8th November 1999, the first respondent left the keys to the suit premises with Mr. Kwok Hon Wah, the applicant's first witness (AW1).

7. AW1 was in charge of the management of the suit premises, on the applicant's behalf. It was AW1's evidence, that there was no break clause in the tenancy agreement that allowed the tenant an early termination. There was no provision in the tenancy agreement that the rent could be set off against the deposit.

8. When the first respondent returned the keys, there was no agreement between the first respondent and AW1 for the surrender of the suit premises. There was no agreement as to how the arrears of rent were to be settled. The second respondent remained in possession of one room. AW1 did not accept that the first respondent had lawfully terminated the tenancy, there was no delivery of vacant possession. The tribunal accepts AW1's evidence.

9. The first respondent's evidence was that, he took over the tenancy of the suit premises from a previous principal tenant, at the request of the second respondent. He had never resided in the suit premises. He had not been able to collect sufficient rent from sub-tenants to cover the rent payable to the applicant. The respondent decided to terminate the tenancy. The second respondent did not co-operate with the first respondent; he refused to move out. The first respondent delivered the keys to AW1, and considered that the deposit should be used to set off the rent. The first respondent considered that since he had paid for renovation to the suit premises, the applicant should reimburse him. He accepted that it should be the subject of separate legal proceedings.

10. The second respondent gave evidence that he had lived in one room in the suit premises since 25 years ago. He asked the first respondent to take over the tenancy when the previous principal tenant left. He paid $1,200 to the first respondent every month. He wished to continue as a sub-tenant of his room.

11. The facts of the case are not in dispute.

12. It is clear from the evidence that the tenancy agreement contained no provision for early termination. It did not provide for setting off the deposit against rent in arrears. When the first respondent purported to terminate the tenancy agreement in November 1999, he was under the mistaken impression that he could do so, by leaving the keys with AW1. The first respondent disregarded the terms in the tenancy agreement. He was not entitled to do so.

13. It is found as a fact, on the evidence, that the applicant had not accepted the early termination. Rent has been in arrears since 1st August 1999. The applicant is entitled to the relief sought.

14. Order was given for possession of the suit premises, except for the room occupied by the second respondent, subject to the usual relief against forfeiture. The first respondent was ordered to pay costs of $1,000.

15. The applicant is willing to accept the second respondent as a direct tenant of the room he is occupying in the suit premises, on condition that he pays the arrears of rent at $1,235.00 per month from 1st January 2000. The applicant did not ask for costs against the second respondent. Order was given for the possession of the room occupied by the second respondent, subject to the usual relief.