III. How to recover the outstanding rent and get back the property?
Every well-drafted tenancy document, whether for a domestic or non-domestic property,
will contain a clause that entitles the landlord to forfeit the tenancy (i.e.
to terminate the tenancy and to re-enter the property) if the tenant fails
to duly pay rent. Even if the tenancy document does not contain a forfeiture
clause, the law generally implies such a
right of forfeiture.
Regarding tenancies of domestic properties that were created on or after 27 December 2002, section 117 of the Landlord and Tenant (Consolidation) Ordinance implies in such tenancies a covenant on the part of the tenant to pay the rent on the due date and a condition for forfeiture if that covenant is broken by virtue of non-payment of rent within 15 days of the due date.
Regarding tenancies of non-domestic properties, section 126 of the Landlord and Tenant (Consolidation) Ordinance provides that in the absence of any express covenant for the payment of rent and condition for forfeiture, there will be implied in every tenancy a covenant to pay the rent on the due date and a condition for forfeiture for non-payment within 15 days of that date.
Therefore, in general, if a tenant is late in paying the rent for 15 days,
the landlord is entitled to terminate the tenancy. The tenant, however, can
save the tenancy by paying all of the outstanding rent in arrears before the
landlord takes possession of the property.
- My tenant has failed to pay rent for two months. What can I do to recover the rent and the possession of my property?
- My tenant has failed to pay rent for several months and has deserted the property. Can I regain possession of my property by breaking open the door, throwing away the tenant’s belongings and changing the lock?