VIII. Repair/maintenance obligations
Whether or not a party to the tenancy agreement is legally obliged to improve, maintain or carry out any repairs to a property is a complicated topic.
As an overview, the obligation to repair/maintain the subject property is mainly a matter of private contract between the landlord and the tenant. This means, in the absence of any express agreement between the parties with the obligation to repair/maintenance, there is generally no implied duty under a tenancy agreement to compel either the landlord or the tenant to carry out repairs or maintain the property in a fit and habitable state. The implied obligation on the landlord to maintain the property to be “fit for habitation” only applies to furnished lettings (e.g. serviced apartments or other leases with extensive furniture or fittings (e.g. sofa, bed, cupboards/cabinets/wardrobes, dining tables, curtains and/or electrical appliances) to be provided to the tenant in that the unit was ready for residential purposes without the need of purchasing any further essential fittings).
Very often, tenancy agreements do expressly provide for the landlord’s right to enter, inspect and/or carry out repairs to the property. But such right cannot be construed as a duty to be imposed on the landlord. Rather, it is common for tenancy agreements to stipulate that tenants are to be responsible to maintain/repair the internal and non-structural matters of the property and/or deliver back the property at its original handover state to the landlord (with fair wear and tear excepted) when tenancies are terminated.
There is an implied obligation on the part of a tenant to use the property in a tenant-like manner (i.e. to use the property in a reasonable and proper manner) and not to commit waste (i.e. not to destroy/damage the property). However, such duties only relates to the reasonable use of the property and does not impose any duty on the part of a tenant to carry out repairs.
Having said the above, the landlord may be under other statutory obligations to maintain the property as required by Government departments:-
- The Buildings Ordinance (Cap. 123 of the Laws of Hong Kong) confers power on the Building Authority to declare a building dangerous and to compel an owner to remedy any structural defects. However, this does not provide much assistance in the case of defects which are non-structural in nature.
- The Public Health and Municipal Services Ordinance (Cap. 132) of the Laws of Hong Kong) confers power on specified public officers to require the owner or occupier of a property to cleanse the property or take steps to deal with nuisances which are injurious to health (e.g. water seepage which originates from the property itself). However, this only concerns the hygienic condition of the property and does not provide much assistance in terms of general repairs and maintenance, especially if any damage caused to the property was originated from by neighbours and/or the common parts of the building.
In respect of demands or orders issued by government authorities, it is almost invariable that the landlord, as the registered owner of the property, will be responsible for carrying out repairs or maintenance and any failure to comply with demands or orders often attracts penalties or other adverse consequences (e.g. re-entry by the Government). A tenant who receives such an order should duly inform the landlord so that the necessary steps can be taken as soon as possible.
Similarly, the Incorporated Owners of a building (or its management company) may also demand the landlord (or its occupants) to carry out appropriate steps to terminate any nuisance or other damage (e.g. dangerous structures, water seepage, drainage blockage and infestation of pests) caused to other occupants of the building.
For the reasons above and to avoid unnecessary disputes, it is most suitable for parties to enter into tenancy agreement which clearly specifies the obligations for repair and maintenance.