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?
Part IVA of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) stipulates that the maintenance and repair of certain basic facilities in the premises is a mandatory responsibility of the landlord in a tenancy on a subdivided unit. A landlord who fails to comply with such responsibility could be filed by the tenant in civil proceedings for recovery of the cost involved. More seriously, if such an abstain from action is to evict the tenant from the unit, the landlord may commit an offence of harassment under the Ordinance.
Mandatory responsibility for repair and maintenance
Under Part IVA of the Ordinance, the landlord must maintain and keep in repair the drains, pipes and electrical wiring serving the premises exclusively; and windows of the premises. In addition, the landlord must keep in proper working order the fixtures and fittings provided by the landlord in the premises. On receiving a notice from the tenant for the repair of an item mentioned above, the landlord must carry out the repair as soon as practicable. If the landlord fails to fulfill any of his obligations, the tenant may, by giving the landlord not less than 30 days’ prior notice in writing, terminate the tenancy. However, the provision of early termination is a right that the tenant can exercise, and the tenant can opt to occupy the unit without surrendering the tenancy.
Alternatively, the tenant may first carry out the repairs where practicable, and claim the landlord for the repair costs. If needed, the tenant may take legal actions (e.g. the Small Claims Tribunal deals with monetary claims not exceeding HK$75,000).
Apart from section 5 in Schedule 7 to the Ordinance which stipulates a few mandatory terms on maintenance and repair as part of landlord’s obligations under a regulated tenancy to which Part IVA of the Ordinance applies, a landlord and a tenant may freely negotiate and agree on appropriate terms. In the event of tenancy disputes on maintenance and repair matters which cannot be settled between the landlord and the tenant, either party may resort to legal proceedings to deal with the matters.
Offence of harassment
Perhaps of greater concern is that withholding services reasonably required for occupation of the tenant might commit an offence of harassment under Part IVA of the Ordinance. If a person, in relation to a subdivided unit:
- does any act calculated to interfere with the peace or comfort of the tenant or members of the tenant’s household; or
- persistently withdraws or withholds services reasonably required for occupation of the subdivided unit as a dwelling; and
- knows, or has reasonable cause to believe, that that conduct is likely to cause the tenant
- to give up occupation of the subdivided unit; or
- to refrain from exercising any right or pursuing any remedy in respect of the subdivided unit,
the person commits an offence and is liable on conviction on indictment by the court on a first conviction, to a fine of $500,000 and to imprisonment for 12 months; and on a second or subsequent conviction, to a fine of $1,000,000 and to imprisonment for 3 years (see Section 120AAZO).