LI KWAN HING v. OZDEN OMER

LDPD 948 OF 2003

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 948 OF 2003

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J U D G M E N T

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1. The Applicant was the landlady of the premises located at Flat C, 24/F., Caineway Mansion, No. 130 Caine Road, Hong Kong, and the Respondent was the tenant of the premises. By consent the Respondent delivered vacant possession of the premises to the Applicant on 4th May 2003.

2. The Applicant leased the premises to the Respondent for the period from 11th November 2002 to 10th November 2003 at a monthly rental of $10,000. On 27th March 2003, the Applicant instituted the present proceedings against the Respondent for possession of the premises, arrears of rent from 11th March 2003 to 10th April 2003, and mesne profits from 11th April 2003 to the date of delivery of vacant possession of the premises.

3. The defence put up by the Respondent is as follows: -

"The Landlord and I have met several times to settle issues regarding the premises, including issues such as early termination of lease, fixing pipes in the bathtub which are constantly backed up, fixing the gas in the kitchen which does not work, repayment of deposit, payment of rent given these listed issues, and other matters. We came to an oral agreement in February, 2003 (in front of our Agents, - May King Property) however the landlord refused to sign a letter outlying these agreed terms and thus, all the issues listed above remain unsettled."

4. The Respondent stated that he was late in paying the rent for January 2003. But he ended up paying the rent. Sometime in February 2003, he had a discussion with the landlady and they "reached" an agreement. But he also said that the Applicant and her husband asked him to pay the rent first before anything was done. In the premises, the agreement could only be reached if he paid up the arrears of rent. But he did not do so. So no agreement was in fact reached. The alleged agreement provides as follows: -

" (1) Move out May 11, 2003

(2) Pay Rent until April 11, 2003

(3) Get post dated check for ($20,000 Deposit) dated May 12, 2003

(4) tenant pays all bills required to pay between May 7 - 12, 2003

(5) Tenant agrees to open apartment to David Lo starting April, 2003 to prospective tenants provided Tenant is given 1 day prior email notice of date and exact time of visit.

(6) Tenant will consider the compensation of commission to Landlord $5000.00"

He said subsequently he sent 2 copies of the agreement to the Applicant, but the Applicant did not make any response.

5. Some time in March 2003, he found that the provision of gas stopped. He was informed by a visiting mechanics for the gas that the entire building was without gas. He also said that the pipes in the bathroom seemed to have an on-going problem. The flow of water in the pipes was always blocked. He relied on the addendum to the tenancy to show that the landlady was under a duty to repair these things. The addendum provides that the landlady shall ensure that: -

"(i) are in good working order;

(ii) all repairs, except those required to be done due to misuse by the tenant, or those to the refrigerator and washing machine, be done by the landlord in a timely manner; and

(iii) ................................................"

There is nothing in the tenancy agreement which provides that when defects of the kind mentioned by him occurred he did not have to pay his rent. The Respondent also said that his employment was terminated in February this year. He regarded this fact as a defence under equity. This is a personal problem. It is not a ground not to pay rent. He did not dispute that the rent for March 2003 was not paid.

6. The tenancy agreement of the premises does not contain any forfeiture clause relating to the non-payment of rent. Therefore the Applicant cannot rely on such a forfeiture clause to recover possession of the suit premises for non-payment of rent. The next thing I have to consider is whether the Respondent repudiated the tenancy agreement so that the Applicant can recover possession of the premises. The burden of proof is on the Applicant. It is clear from the evidence of the Applicant that shortly after she had received the "Deed of Amendment" sent to her by the Respondent she instituted the present proceedings on 27th March 2003. By that time the Respondent was 15 days late in paying the rent for March 2003. But this is only one of the factors I have to consider whether the Respondent repudiate the contract. Obviously the Respondent was at the material time waiting for her to sign the "Deed of Amendment". Pursuant to the discussion with the Applicant in February, he sent her the "Deed of Amendment". It shows that he intended to carry on with the tenancy, although it was to be shortened. I therefore adjudge that he did not intend to repudiate the tenancy. The result is that the Applicant's claim for recovery of possession of the premises failed. It also follows that the claim for mesne profits must fail. I therefore dismiss these 2 items. But she succeeds in her claim for arrears of rent. I enter judgment for the sum of $10,000- being arrears of rent for the period from 11th March 2003 to 10th April 2003, to be paid by the Respondent within 14 days from today.