Lau Wing Chung v. Yip Chi Tung

LDNT462/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Application No.: LDNT No. 462 of 2000

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JUDGMENT

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Background

1. The Applicant is the tenant and the Respondent the landlord of the subject premises described as Flat A, 1st Floor, Block 5, Casa Bella, 5 Silverstrand Beach Road, Clearwater Bay, Kowloon and Car Park 54 ("the premises"). The current tenancy of the premises (Exhibit R1) made between the Applicant and the Respondent on 5 January 2000 is for a term commencing from 15 January 2000 and expiring on 14 January 2002 at a rent of $14,000 per month.

2. The Applicant on 22 December 2000 filed a notice of application (Form 22) to the Lands Tribunal, applying for a new tenancy. The Respondent filed a notice of opposition (Form 7) on 3 January 2001.

Opposition to the granting of a new tenancy by the Respondent

3. In the filed Form 22, the Respondent stated the following as the grounds and particulars of opposition:

(1) "The tenant agreed to deliver the premises in vacant possession upon expiry of one-year term by giving 2 months notice by either party when signing the tenancy agreement on 5th January 2000."

(2) "We did turn down an offer of HK$18,000 earlier due to time constraint in making good of the premises.... The rental had been further lowered to HK$14,000 inclusive by the existing tenant through the negotiation of a property agent of Midland Realty (Mr. Mak) only on the condition that:-

a) the lease was a one-year term (as mentioned above);

b) the tenant promised to make good the following items:

i) to replace a 4' x 6' mirror....

ii) To replace the kitchen cabinet doors....etc."

(3) "However, the tenant denied to perform part 2b) I) & ii) as mentioned and further refused to deliver the premises upon one year's tenancy. Part of the compensation had been made by Midland Realty due to the tenant's failure to perform the above."

(4) "During the rental period, the tenant failed to inform us of water leakage immediately which caused harm to the landlord's premises at GA, Casa Bella."

(5) "The tenant did intentionally cause delay in repairing works that caused excessive costs to us."

4. Since the Respondent opposed the application by the Applicant, it was necessary to consider whether the Respondent was entitled to oppose the tenancy under the provisions of the Landlord and Tenant (Consolidation) Ordinance ("the Ordinance").

The Applicant's evidence

5. The Applicant gave evidence that he had received a Form CR101 dated 14 September 2000 from the Respondent. The original Form CR101 (produced as Exhibit A1) was posted by the Respondent to the Applicant's premises. However, the Applicant did not remember the date of receiving the Form nor did he keep the original envelope containing the Form. The Applicant stated in the Form CR101 that the tenancy of the premises will be terminated on 16 March 2001. The Respondent would not oppose an application by the Applicant to the Lands Tribunal for the grant of a new tenancy.

6. The Applicant replied, by registered mail, a Form CR102 dated 13 November 2000 (handwritten copy produced as Exhibit A2). However, the Applicant did not state whether he would give up the premises at the date of termination as specified in Form CR101 or not.

7. The Applicant produced a document titled Summary of Facts (Exhibit A4) setting out the history of negotiation of current tenancy and the water seepage problems of the premises.

The Respondent's evidence

8. The Respondent was represented by his sister, Madam Yip Fung Ling Irene who also gave evidence. Madam Yip confirmed that the Respondent had sent the said Form CR101 by registered mail from Canada, where the Respondent was residing at that time. However, she could not confirm the date that the Respondent mailed the said Form CR101. She further gave evidence on the water seepage problems and alleged the Applicant for failing to notify the Respondent promptly and for failing to co-operate regarding the inspection and repairing works. She also produced the following exhibits:

(1) Exhibit R2- copies of correspondence prior to the signing of the current tenancy;

(2) Exhibit R3- copies of correspondence between Midland Realty and the Respondent;

(3) Exhibit R4- copy of demand note for rates;

(4) Exhibit R5- schedule of comparable rents from Rating & Valuation Department and

(5) Exhibit R6- a bundle of correspondence on the water seepage problems and repairs.

9. In the final submission, the Applicant opposed the termination of the tenancy by the Respondent. The Applicant maintained that the tenancy agreement entered between the parties was still valid.

10. Madam Yip for the Respondent submitted that notwithstanding what had been stated as the term of the current tenancy in the tenancy agreement of the premises (see Exhibit R1), the current tenancy was a one-year tenancy. That was the term offered by the Applicant and accepted by the Respondent prior to the signing of the tenancy agreement. She reiterated that the Respondent opposed the granting of a new tenancy by the Tribunal.

11. Upon questioning by the Tribunal, the Applicant confirmed that he had never served any notice of early determination to the Respondent, pursuant to Clause No. 4 of Schedule II of the tenancy agreement of the premises.

Whether the current tenancy is a one-year tenancy?

12. The tenancy agreement dated 5 January 2000 and signed by the parties was a standard version used by the agent for the parties, Midland Realty. The agreement was printed in both English and Chinese. The parties completed the agreement partly in English and partly in Chinese. The term of tenancy was Schedule I of the agreement. It was clearly completed that the tenancy was from "15-01-2000" to "14-01-2002". So, there is no ambiguity as to the term of the tenancy.

13. The Clause No. 4 of Schedule II of the agreement reads,

"Notwithstanding anything to the contrary hereinbefore contained, the Tenant shall be entitled to terminate this tenancy earlier than as herein provided by serving not less than ____ months' written notice to the Landlord provided that such notice shall not expire earlier than ______ (i.e., the Tenant shall rent the Premises for at least ( months)."

The English version of this Clause was not completed. However, the Chinese version of the same Clause, following the English version, was completed and reproduced below:

"

"

14. Therefore, the Tribunal decides that the tenancy had not expired by effluxion of time. The tenancy is a two-year tenancy, unless the tenant served a valid notice to the landlord seeking earlier determination of the tenancy. But even then, the date of termination cannot be earlier than 14 months from the date of commencement of the tenancy. The Tribunal accepts the Applicant's evidence that he had not served any notice to the Respondent exercising the Applicant's right of early determination under Clause 4 (Break Clause) of Schedule II of the tenancy agreement. The Respondent also failed to challenge the Applicant's evidence in this regard.

15. Under section 119 (3)(b) of the Ordinance, it was provided that,

" In the case of any other tenancy, a notice under this section shall not specify a date of termination earlier than the date on which apart from this Part the tenancy would have come to an end by effluxion of time."

16. As a result, the Respondent cannot terminate the tenancy agreement by the service of the Form CR101 terminating the tenancy on 16 March 2001. This is because the date on which, apart from the Ordinance, the tenancy would have come to an end by effluxion of time, is 14 January 2002.

17. In fact, apart from this, the Form CR101 served by the Respondent was also invalid on two other grounds:

(i) It did not include the back page of the original Form CR101 supplied by the Commissioner of Rating & Valuation. The back page gave important information, set out as "notes", which was actually referred to in the front page of the Form. Since section 119(1) of the Ordinance requires that "Subject to section 119N, the landlord may terminate a tenancy by a notice given to the tenant in the specified form stating the date of termination. (See Form CR101)." (underline added) The service by the Respondent the Form CR101 without the back page does not comply with the above provision of the Ordinance and the CR101 is therefore invalid.

(ii) The Form was dated 14 September 2000 and was mailed to the Applicant by registered mail from Canada. Although the Applicant had not kept a record of the actual date of receipt or the actual envelope, it is reasonable to find that it takes more than two days for the registered mail to reach Hong Kong from Canada. Section 119(2) of the Ordinance stipulates that "a notice under this section shall not have effect unless it is given not more than 7 nor less than 6 months before the date of termination." Therefore, the Form CR101 was invalid on this ground alone.

18. The parties' negotiation prior to the signing of the current tenancy agreement would not change the interpretation of the term of the tenancy. There is no evidence that the term as stated in the tenancy agreement was a genuine mistake. Similarly, the parties' recent dispute over the water seepage problems of the premises would not affect the rights of the Respondent under the tenancy and the Ordinance.

19. In the circumstances, the tribunal makes the following Orders:

Orders

(1) Application for new tenancy dismissed.

(2) It is hereby declared that the tenancy has not come to an end by effluxion of time and the Applicant may therefore continue to reside in the suit premises thereunder subject to paying the monthly in advance the current rent of $14,000 per month (inclusive of rates and management fee) and otherwise complying with the terms of the tenancy;

(3) No order as to costs.