I. Things that you need to know before signing a Tenancy Agreement or a Lease
The content of a Tenancy Agreement will normally include the period/length of the tenancy, rent, payment period, deposit, use (e.g. residence, office, or factory) and other usual terms that will be described in the other parts of this topic.
Depending on the period of the tenancy and the capacities of the parties entering into the agreement (whether a party to an agreement is an individual, partnership or a limited company, etc.), different formalities for execution are required.
While the terms "Tenancy Agreement" and "Lease" are often used as if they are synonyms, there are some technical differences between them.
a) Period/length of the tenancy
A Lease is generally a document that creates a tenancy for more than 3 years. It has to be executed in the form of a deed, meaning that it has to be signed, sealed and delivered by the parties. That is to say, the parties have to sign the Lease, affix a red seal (a small red wafer) next to their signatures and exchange copies of the lease.
A Tenancy Agreement is generally a document that creates a tenancy for a period not exceeding 3 years. The parties to a Tenancy Agreement only have to sign it, without needing to affix the red seal and exchanging the document. To protect the interests of both parties, however, it is recommended that the parties should exchange copies of the Tenancy Agreement.
b) Capacities of the parties
The capacities of the parties entering into the Lease/Tenancy Agreement also affect the formalities of execution.
An individual, sole proprietorship or a partnership entering into a Lease must affix a red seal next to the signature of each signing person. A limited company must affix its common seal next to the signature(s) of the person(s) authorised to sign the Lease. Furthermore, the Lease has to be executed in accordance with requirements stipulated under the company's Articles of Association.
If the party to a Tenancy Agreement is a sole proprietorship, a partnership or a limited company, the chop or the rubber stamp (as the case may be) of the signing party also has to be affixed onto the Tenancy Agreement together with the signature of the signatory.
You can go to Table 1 for more information regarding the execution clause (i.e. the part of a Tenancy Agreement/Lease where you sign your name).
If the property has been mortgaged to a bank/financial institution, the landlord must obtain the prior consent from that company before leasing it out. For more information regarding this matter, please go to part VI – properties with mortgages.
- Is it necessary to have a solicitor to represent me when I enter into a Tenancy Agreement?
- I heard about someone who claimed that they were the owner of a property for let. After the potential tenant had paid the deposit and the rent in advance, the "landlord" disappeared with the money. If I am going to rent a property, then how can I be sure that the landlord is the real owner?
- What major government departments are responsible for governing tenancy matters in Hong Kong? To which department(s) should a party go to if a tenancy dispute/problem arises?
- How can I obtain tenancy information concerning the Government properties (such as public rental housing or shopping centres run by the Government)?
- What is the difference between a tenancy and a licence?
- Before signing the formal tenancy agreement or lease, a tenant may sometimes be asked by a landlord to sign a document called "agreement for lease" or "provisional tenancy agreement". What are the consequences of signing this document?