1. Why is it necessary and how do we ascertain the primary use, for example “domestic” or “non-domestic”, of a property?
A tenancy document may contain a clause which specifies that the property is only to be used for domestic or non-domestic purposes (or in accordance with the uses permitted by law/regulations). If the tenant runs a shop in a residential property, the use may constitute a breach of such covenant.
To support any intended claim, the landlord may obtain evidence/proof of such a breach before proceeding with any further action (e.g. taking of photographs). Sometimes it may be difficult to obtain evidence from the management office (e.g. CCTV records) or ask caretakers/neighbours to give evidence in Court.
Where a question or dispute arises about whether a property is used for domestic or non-domestic purposes, one may also ask the Rating and Valuation Department to issue a Certificate of Primary User of Premises for verification. If the dispute has been brought up to the Court, then you should submit Form TR4 to apply for the Certificate. If the dispute has not yet been brought up to the Court, then you should submit Form TR4D and pay the application fee of $3,850. Although the Certificate does not provide a conclusive answer to the issue, it will be persuasive when the issue is brought to Court. For more details regarding the Certificate, please contact the Rating and Valuation Department at 21520111 or 21508229.
An owner may also check from the Government Lease (including any conditions of grant), the Occupation Permit (issued by the Buildings Department), the Approved Building Plans (by the Buildings Department) and/or the Outline Zoning Plan (from the Town Planning Board) to ascertain the permitted use(s) of the property as under the law. These documents, however, are technical in nature and might not be easy to read and properly understood without professional assistance.
For owners of multi-storey buildings, it may also be prudent to also check from the Deed of Mutual Covenant for any user restrictions in the unit (or even the common area of the building).