b) Renting abroad - Conflict of Laws
“Conflict of laws” refers to the body of law which concerns the choice of governing law, the jurisdiction of the courts and the recognition of foreign judgments.
b) Renting abroad - Conflict of Laws
Choosing a subtopic
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Things that you need to know before signing a Tenancy Agreement or a Lease
- 1. What major government departments are responsible for governing tenancy matters in Hong Kong? To which department(s) should a party go to if a tenancy dispute/problem arises?
- 2. How can I obtain tenancy information concerning the Government properties (such as public rental housing or shopping centres run by the Government)?
- 3. What is the difference between a tenancy and a licence?
- 4. Can I convert or use my property (or its sub-divided rooms) to grant short-term leases/licences in providing rooms or bedspaces to guests (similar to Airbnb accommodations or ‘capsule hotels’)?
- 5. Before signing the formal tenancy agreement or lease, a tenant may sometimes be asked by a landlord to sign a document called "agreement for lease" or "provisional tenancy agreement". What are the consequences of signing this document?
- 6. Can I let or otherwise allow occupiers to stay at subsidized housing under the Housing Ordinance (e.g. Public Housing or Home Ownership Schemes)?
- 7. Can a foreigner rent a property in Hong Kong?
- 8. If I am a foreigner who is posted by my company to work in Hong Kong, what should I pay special attention to when entering into a tenancy of a flat here?
- 9. The covenants, terms and conditions in the Government leases of some premises do not allow the occupiers to let for residential use (Examples: Registered or unregistered squatters, roof-top unauthorized building works, industrial buildings, container houses, or caravans on farmland). Are tenancy agreements on such premises legally binding?
- Case Summary 1: There can be no legally binding contract in the absence of the essential terms of a tenancy agreement (World Food Fair Ltd v Hong Kong Island Development Ltd)
- Case Summary 2: There is no implied warranty that the premises would be fit for human habitation or the tenant's purpose (Chan Man Chong v Tong Chi Cheong)
- Case Summary 3: Interference with quiet enjoyment required some substantial physical interference with the enjoyment of the premises (Ridge Ltd v Golden Castle Ltd)
- Case Summary 4: What the landlord has agreed after signing the tenancy agreement is unlikely to be binding in law (Chi Chiu Yueh v Choi Ka Wing)
- After signing a Tenancy Agreement (or a Lease), how should the parties handle the document?
- Rent
- Rates, Management Fees and other charges
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How to recover the outstanding rent and get back the property?
- 1. My tenant has failed to pay rent for two months. What can I do to recover the rent and the possession of my property?
- 2. My tenant has failed to pay rent for several months. Can I regain possession of my property by breaking open the door, throwing away the tenant's belongings and changing the lock without resorting to Court proceedings?
- 3. My tenant has failed to pay or allegedly 'deducted' the rent for several months by the excuse that he suffered from minor water leakage problems or discomfort/disturbances. Can he/she do so and is that a good defence to the recovery of the payable rent/forfeiture?
- 4. Issues relating to Bailiff
- Case Summary 1: The tenant's obligation to pay rent is independent of the covenants or obligations of the landlord under the tenancy agreement (Charmway Development Ltd v Long China Engineering Ltd)
- Case Summary 2: Interest clause in the event of default in payment of rent or other monies payable by the tenant can be enforceable (Luvpa Ltd v Honor City HK Pharmacy Ltd)
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Regulations on using or occupying a leased property
- 1. Why is it necessary and how do we ascertain the primary use, for example “domestic” or “non-domestic”, of a property?
- 2. I have let a residential property to a tenant and I recently found that the tenant is using the property as an office. Will this affect my interests or cause any liability to me as a landlord? If my tenant conducts criminal activities there, what further problems will I face?
- 3. I am a tenant of an apartment unit who have been disturbed by my neighbour (since he habitually sings karoake at a high volume at night). I complained to the manager of the building and was told that as I was not the owner of the property. He further stated that, as tenant, I did not have any right under the deed of mutual covenant. Is he correct and what can I do?
- 4. If the tenant causes nuisance to neighbours, will the landlord be liable? Does the landlord have any remedies against the tenant?
- 5. What amounts to “structural alteration”? Can the tenant make any structural alteration to the premises?
- 6. I am a tenant of an industrial property. The landlord and I had an understanding that I would use the property for residential purpose when the tenancy agreement was signed. The landlord later evicted me from the property. Can I go to the court to enforce the tenancy agreement and seek remedies?
- Sub-letting
- Properties with mortgages
- Repair/maintenance obligations
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Termination of tenancies by notice before expiration (without breach)
- 1. I have let my property to a tenant on a three year term. There are still more than 2 years remaining in the term. However, I note that the rental value of neighbouring properties has risen significantly. Can I terminate the tenancy with the existing tenant and re-let the property out for a better rent?
- 2. I have recently entered into a lease with the Landlord but, before moving in, the Landlord changed his position and said that he did not wish to let the property to me anymore, terminated the tenancy agreement and refused to let me move in. I considered that the terms of the lease was a good bargain to me and I liked this property a lot. Instead of asking for money compensation, can I ask the Court to compel the Landlord to let the property to me on the original terms despite the landlord has breached it?
- 3. I have rented a property on a three year term. There are still more than 2 years remaining in the term. However, I note that the rental value of neighbouring properties has dropped significantly. Can I terminate the tenancy with the landlord so that I can get a comparable property for a lower rent?
- 4. I have rented a property on a three year term. As a result, I have incurred rather big sum of money on renovations and purchasing furniture and expensive appliances which only fits into the property’s layout and dimensions. However, the landlord relied on the ‘break clause’ and gave my notice to quit at the commencement of the second year. The landlord at the same time threatened me that if I wished to stay, I must pay extra rent for the remaining term, or else I must leave after restoring the property into its original state at my own costs. Is that fair? Can I sue the landlord for compensation?
- 5. How to count the notifying period of tenancy termination? If it is specified a one-month notice period, does it count from the day of notification? Or does it count from the 1st day of the next rental month?
- 6. My neighbour causes excessive noise at night every day. My children and I cannot sleep. Can I terminate the tenancy agreement?
- 7. I rent a flat with a balcony which is found to be an unauthorized building work. Later the landlord removed the balcony. Can I terminate the tenancy agreement?
- Case Summary 1: A tenant's return of the keys to his landlord, by itself and on this fact alone, is not enough to end the tenancy (High Yield Ltd v Home Essentials (HK) Ltd)
- Case Summary 2: Mere incidence of expense or delay or onerousness is insufficient to invoke the doctrine of frustration (Vember Lord Ltd v The Swatch Group (Hong Kong) Ltd)
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Landlord sells the property with existing tenancy
- 1. My property, which is currently let to a tenant, has risen in value and I intend to sell it. What do I need to do to discharge myself from any liability under the tenancy before selling the property?
- 2. My landlord has informed me that the property I am renting was sold recently. I was also told to pay rent to the new landlord on the next due date. Can I object? Will my interests under the "old" tenancy be protected?
- 3. There is an option to renew clause in the tenancy agreement signed between the old landlord and the tenant. The tenant tries to exercise the option to renew, but the new landlord refuses. Can the new landlord do so?
- Case Summary: Whether the sale and purchase of a property would be bound by the tenant's option to renew the lease depends on the specific circumstances (Chan Yiu Tong v Wellmake Investments Ltd)
- Renewal matters
- Termination of tenancies (by non-payment of rent)
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Termination of tenancies (for breaches of the tenant other than non-payment of rent)
- 1. My tenant removed one of the partition walls of the unit (which is residential) without my consent. Can I terminate the tenancy agreement for such reason?
- 2. The neighbor has complained that the tenant of my property (in an industrial building) has persistently caused excessive noise during late evenings by having overnight binge drinking parties with over 100 guests and a lot of garbage was left at the lift lobby in early mornings. The matter was reported to the police too and certain people were arrested from the scene being suspected of drug abuse. Can I terminate the tenancy agreement? If the case is heard in Court, will the Court grant any ‘mercy’ to the tenant?
- Forfeiture of rental deposit and other consequences following termination by the tenant's breach
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Handover matters at expiry/termination of a lease
- 1. How to resolve the situation of the tenant and landlord not agreeing the amount to be deducted from the rental deposit (due to the disagreement on “reasonable satisfaction of the landlord”)?
- 2. If my landlord refuses to return the rental deposit to me, what can I do?
- 3. Does the landlord have the right to dispose of the belongings left by the tenant after the handover?
- 4. Does the landlord have the responsibility to keep the belongings for a certain period of time if the tenant has indicated that they will collect them?
- Case Summary: The basic requirement of 'vacant possession' is to clear up, empty it, move out, and return the keys, otherwise the tenant might still be in arrears of rent (Chi Chiu Yueh v Choi Ka Wing)
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Sub-divided Flats and Tenancy Regulation
- a) Objective and Scope of Application of Landlord and Tenant (Consolidation) (Amendment) Ordinance 2021
- b) Excluded Tenancies
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c) Transitional Arrangements
- Q1. A tenancy on a subdivided unit was created orally or by conduct with rent paid periodically and no written tenancy had ever been signed. Are the tenancy regulations applicable?
- Q2. An original tenancy agreement has expired. The tenant continues to pay for the monthly rent and stay in the subdivided unit with the landlord’s consent. Are the tenancy regulations applicable?
- d) Determination of Regulated Tenancy
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e) Security of Tenure
- Q1. What will happen to the tenancy if there is an acquisition by Urban Renewal Authority or compulsory sale involving the premises in regulated tenancies? Can a landlord terminate the regulated tenancies unilaterally or not offer second term tenancy in the offering period if the landlord believes that there will soon be a foreseeable acquisition or compulsory sale?
- Q2. A landlord wishes to evict the tenant within the regulated cycle by withholding the maintenance and repair responsibility reasonably required for the occupation. Does the landlord violate Part IVA of the Landlord and Tenant (Consolidation) Ordinance?
- Q3. If both the landlord and the tenant agree, can they sign a tenancy agreement with a term other than 2 years?
- Q4. Can the tenants be charged a tenancy renewal fee?
- Q5. Can the landlord and tenant negotiate freely on the break clause of a regulated tenancy?
- f) Rent Regulations
- g) Entering into Written Tenancy Agreement
- h) Submission of Notice of Tenancy and Stamping of Tenancy Agreement
- i) Rental Deposit
- j) Mandatory Terms Implied for every Regulated Tenancy
- k) Second term Offer
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l) Overcharging Fees and Charges
- Q1. What documentation is there to prove that the utility fees have been overcharged?
- Q2. Does the landlord violate any laws if he/she alters the meter to overcharge the utility fees for a sub-divided unit?
- Q3. What are the proper steps to install electricity and water meters for calculating the utility charges for the sub-divided unit tenants?
- Q4. Is there a standard way to determine the portion of the utility fee to be shared by a household in a sub-divided unit?
- Q5. Can the tenant recover the utility fees and non-permitted fees that have been overcharged?
- m) Enforcement of Regulated Tenancies
- n) Regulated tenancy as Sub-tenancy
- o) Tenant’s Interest to Pass to Family Member on Death
- p) Other Legal Issues
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Estate agents
- a) General
- b) Services to landlords
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c) Services to tenants
- 1. I want to rent a flat. What services can I expect and what information can I obtain from the agent who shows me a flat?
- 2. As a tenant, must I sign an estate agency agreement when I ask an agent to show me a flat?
- 3. What if I sign a 'Form 6' with an agent who shows me a flat, and later, I rent the flat through another agent or directly from the landlord?
- 4. What if I sign a 'Form 6' with an agent who shows me a flat, and later, someone related to me (e.g. my spouse) rent the flat through another agent or directly from the landlord?
- d) Joint Representation
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e) Misconduct
- 1. Where can I lodge a complaint if I am not satisfied with my estate agent?
- 2. Before I rent the flat, I find out that my estate agent gave me false or misleading information about the flat. Can I terminate the tenancy agreement and sue my agent (or his employer) for compensation?
- 3. Is the estate agent obliged to disclose to the potential tenant about tragic incident which occurred in the flat?
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Renting abroad
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a) Renting abroad - Estate agent
- 1. Can unlicensed estate agents provide services to landlords and tenants in relation to overseas properties?
- 2. Is there a regulatory body overseeing estate agents who provide agency services in relation to overseas properties?
- 3. If the estate agent provided false or misleading information in the leasing of overseas properties, will he or she be liable? How can landlords’ and tenants’ rights be protected?
- b) Renting abroad - Conflict of Laws
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a) Renting abroad - Estate agent
- Case Illustrations
- Related Websites
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Videos
- Episode 1: Regulations on Tenancies of Subdivided Units
- Episode 2: Applicability and Commencement of Regulated Tenancies
- Episode 3: What is a "Standard Tenancy Agreement"?
- Episode 4: What is a "Cycle of Tenancy"?
- Episode 5: Utility Bills and Miscellaneous Charges
- Episode 6: Rights and Responsibilities
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