1. In general, who shall be responsible for maintaining and repairing the property?
As explained above, when dealing with the issue of repair and maintenance, the landlord and the tenant must predominantly rely on the tenancy document to ascertain their respective duties on a contractual basis.
A commonly adopted approach under tenancy agreements is that the landlord is responsible for external and structural repairs and maintenance, and the tenant is responsible for internal and non-structural ones. However, such a simple dichotomy may still be problematic because the words internal, external, structural and non-structural can have different interpretations under different circumstances.
Therefore, a well-drafted tenancy document will try to anticipate and accommodate all potential areas of dispute that are specific to the particular property, and clarify the parties' duties in details.
As a matter of common practice and depending on the parties’ bargaining abilities, it will also be quite normal for a tenant to become responsible for many onerous duties which includes the carrying out of repair and maintenance works to a certain extent. Such term may be unfair on its face but in reality, it is actually quite reasonable because the tenant has full rights of occupying and dealing with the property on an ongoing basis during the term of the tenancy. Naturally, a tenant would be in a position to ascertain defects and carry out repair works which are necessary.
It is also common to find in a tenancy document that the tenant's obligations for repair and maintenance are limited by the phrase "fair wear and tear excepted". This excuses the tenant from damage arising from the passing of time and the ordinary and reasonable use of the property. A well-drafted tenancy document should also contain a clause which specifies that the landlord's obligations for structural repairs and maintenance will arise only upon notice of the structural defects. This is reasonable because the landlord, not being in occupation of the properties, cannot be expected to remedy defects or problems of which they are not aware of or not having any control over.
On the whole, the answer to the question of who is responsible for repairs and maintenance is to be found in the terms agreed upon by the landlord and the tenant. If there is no written tenancy document or if the particular issue is not tackled by the tenancy document, then the outcome of any dispute may turn out to be highly uncertain and costly.
Irrespective of parties’ rights and obligations as agreed, the landlord may also volunteer to carry out repairs and maintenance works out of goodwill and preservation of relationship with tenant. Indeed, as most tenancy agreements in Hong Kong are short-termed, any state of disrepair or resultant damage caused by defects would most likely be detrimental to the landlord’s interests in the long run. On such basis, it is often the case that the landlords do agree to incur expenses to remedy any defects in the property (e.g. patching up of damaged walls, replacement of faulty air-conditioners/refrigerators andinjection of termite/insect repellents etc.).
In extreme cases (e.g. serious water leakage within the property), the landlord may also exercise a right (if so provided under the tenancy agreement) to enter the property and carry out necessary inspection and repair works by giving prior notice/appointment notwithstanding that the tenancy agreement did not impose any duty on him/her. If the tenant becomes uncooperative, the landlord may even apply for an urgent interlocutory injunction in Court to exercise such right or even terminate the tenancy agreement for such reason.
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