Landlord and Tenant
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XI. Changes in tenancy legislation on 9 July 2004

The laws on tenancy in Hong Kong are largely governed by the Landlord and Tenant (Consolidation) Ordinance (Cap. 7 of the Laws of Hong Kong). On 9 July 2004, the Ordinance underwent a substantial amendment. In respect of tenancies of domestic properties, the security of tenure provisions were removed. In respect of tenancies of non-domestic properties, the statutory minimum length of notice to terminate a tenancy was removed.

Tenancies of domestic properties

The concept of security of tenure means that a tenant is given a statutory right to continue to rent and to occupy a property after the expiry of the existing tenancy period. Under the old regime (tenancies created before 9 July 2004), a tenant of a domestic property is in most cases guaranteed the right to continue to rent the property as long as the tenant is willing to pay the prevailing market rent. The landlord cannot refuse to let the property to the same tenant except under a few circumstances expressly stipulated under section 119E of the old Landlord and Tenant (Consolidation) Ordinance. Examples include the landlord’s intention to rebuild the property, unnecessary annoyance or disturbance caused by the tenant or use of the property by the tenant for immoral or illegal purposes. To comply with the section 119E requirements, the landlord must deal with complicated laws and procedures to recover possession of the property (such as issuing a termination notice to the tenant, responding to the tenant’s request for a new tenancy or conducting litigation at the Lands Tribunal). This section was repealed in July 2004.

For tenancies of domestic properties that were created on or after 9 July 2004, the parties can freely negotiate and agree between themselves on how the tenancy will be terminated. In the absence of any contractual agreement, a fixed term domestic tenancy will end upon expiry, and a periodic tenancy (which will be automatically renewed from period to period) will be terminated by issuing a notice to quit at the length of a full tenancy period.

In cases of tenancies of domestic properties that were in existence before 9 July 2004, such tenancies can only be terminated by mutual agreement or by a Transitional Termination Notice (TTN). For a TTN to be issued by the landlord, it has to be served on the tenant not less than 12 months before the intended date of termination. For a TTN to be issued by the tenant, it has to be served on the landlord not less than 1 month before the intended date of termination. That is to say, the tenant is in effect granted security of tenure for another 12 months. However, a landlord who requires a property for self-occupation can apply to the Land Tribunal for possession of it upon expiry of the existing tenancy whether or not the TTN has been served (see the judgment from the case of Simon John Cox v Paul Desmond Scanlon). An important note is that a person who has successfully obtained an order for possession on the ground of self-occupation cannot let, sell, transfer, or part with possession of the premises with others (except for that person's immediate family members such as his/her spouse and children) within 24 months from the date of the order unless the Lands Tribunal has given its prior consent. It should also be noted that a TTN is not required in the following cases:

  1. there was a change of any terms of the tenancy on or after 9 July 2004;
  2. the landlord and tenant, on or after 9 July 2004, agreed on another period of notice of termination; or
  3. the tenancy was assigned to a new tenant on or after 9 July 2004.

Example on how to serve a TTN :

  • A Tenancy Agreement for a domestic property was created on 1 January 2003.
  • Term of the tenancy: two years commencing on 1 January 2003 (i.e. a pre-amendment tenancy).
  • The landlord wants to terminate the tenancy upon its expiry but the tenant refuses.
  • To terminate the tenancy, the landlord has to serve a TTN to the tenant.
  • The earliest date that the landlord can serve the TTN is 31 December 2005 (i.e. the last day of the existing tenancy).
  • The earliest date that the tenancy can be terminated is 1 January 2007 (i.e. 12 months from 31 December 2005).
  • The landlord must specify on the TTN that the tenancy will be terminated on 1 January 2007.
  • The tenant will in effect enjoy 12 months of security of tenure ( from 1 January 2006 to 31 December 2006) after the expiry of the previous tenancy.

Tenancies of non-domestic properties

Under the pre-9 July 2004 regime of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7 of the Laws of Hong Kong), most tenancies of non-domestic properties will not automatically end even if the term specified under the tenancy document has expired. The old law imposed a duty on the landlord to serve prior notice of at least six months to the tenant, or a duty on the tenant to serve prior notice of at least one month, to terminate the tenancy. However, this duty was abolished on 9 July 2004.

For tenancies of non-domestic properties that were created on or after 9 July 2004, the parties can freely negotiate and agree between themselves on how the tenancy will be terminated. In the absence of any contractual agreement, a fixed term tenancy will end upon expiry, and a periodic tenancy (which will be automatically renewed from period to period) will be terminated by issuing a notice to quit to the tenant at the length of a full tenancy period.

In the case of tenancies of non-domestic properties that were in existence before 9 July 2004, the parties can terminate the tenancy in accordance with agreements stipulated in the tenancy document or as agreed between themselves. In the absence of any mutual agreement, a fixed term tenancy will end upon expiry, and a periodic tenancy will be terminated by a notice to quit at the length of a full tenancy period.

  1. How am I, as a landlord, affected by the changes in July 2004?
  2. How am I, as a tenant, affected by the changes in July 2004?
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