Case Summary: Recovery of possession on the ground of "Structural alteration" (Tsang Kam Lan v Lam Fong Fei)

Case Summary: Recovery of possession on the ground of "Structural alteration" (Tsang Kam Lan v Lam Fong Fei)

Case Name: Tsang Kam Lan v Lam Fong Fei [2019] 4 HKC 308 (Court of Appeal)

Subject: Recovery of possession on the ground of “Structural alteration” - the meaning of "Structural alteration"

Facts

The applicant and the respondent were the landlord and tenant of the premises respectively.

The tenant dismantled the kitchen and the cooking slab of the premises.

The landlord sought to recover possession of the premises on the grounds that the respondent altered the structure of the premises and sub-leased the premises to third parties without the landlord’s consent.

Issues

The main issue was whether the respondent’s dismantling of the kitchen and the cooking slab in the present case amounted to structural alternation.

Rulings and Discussion

First, Section 117(3)(g) of the Landlord and Tenant (Consolidation) Ordinance (Cap 7) provides that if the tenancy does not contain a covenant substantially to the effect that the tenant cannot make any structural alteration to, or suffer or permit any structural alteration to, the premises without the prior written consent of the landlord, then there shall be implied in the tenancy (i) a covenant that the tenant not make any structural alteration to, or suffer or permit any structural alteration to, the premises without the prior written consent of the landlord; and (ii) a condition for forfeiture if that implied covenant is broken.

Second, as regards the meaning of ‘structural alteration’, ‘alternation’ included something which altered the form or structure of the building.

The tenant’s dismantling of the kitchen and the cooking slab in the present case amounted to structural alternation contrary to the implied covenant under section 117(3)(g) of the Landlord and Tenant (Consolidation) Ordinance .

Therefore, the applicant obtained an order to recover possession of the premises.

Takeaway

In construing the meaning of the word ‘structural’ in a tenancy agreement, the Court will adopt its natural and ordinary meaning, rather than some special or technical meaning.

Therefore, works not affecting structural safety may still amount to structural alteration.

To avoid dispute, parties should expressly set out the agreed meanings of special and technical terms in the tenancy agreement.