Hong Kong Ordinances

LANDLORD AND TENANT (CONSOLIDATION) ORDINANCE - SECT 115

Interpretation

(Past version on 01/07/1997).
(Past version on 30/06/1997).



*PART IV

NEW TENANCIES OF DOMESTIC PREMISES

Interpretation and Application

(1) In this Part, unless the context otherwise requires-

"Commissioner" (署長) means the Commissioner of Rating and Valuation;

"domestic tenancy" (住宅租賃) means a tenancy of premises let as a
dwelling; (Replaced 53 of 1993 s. 26)

"forfeiture" (沒收租賃權) means forfeiture-

   (a)  for breach of any provision of a tenancy; or

   (b)  under a provision of a tenancy allowing forfeiture or determination
        following the destruction, or partial destruction, of or damage to the
        premises; (Added 40 of 1984 s. 31)

"landlord" (業主) includes any person, other than the Government, who is,
from time to time, entitled to receive rent in respect of any premises and, in
relation to a particular tenant, means the person entitled to receive rent
from that tenant; (Amended 29 of 1998 s. 105)

"notice to quit" (遷出通知書) means a notice to terminate a tenancy given
in accordance with the express or implied provisions of that tenancy;

"premises" (處所) means the subject matter of any tenancy; (Added 29 of 1983
s. 29)

"tenancy" (租賃) means a tenancy entered into orally or in writing and
includes-

   (a)  an agreement for a tenancy; and

   (b)  a sub-tenancy; (Amended 16 of 2004 s. 10)

   (c)  (Repealed 16 of 2004 s. 10)

"tenant" (租客) does not include a Government lessee but includes- (Amended
29 of 1998 s. 105)

   (a)  a sub-tenant; and

   (b)  any government other than the Government of the Hong Kong Special
        Administrative Region, or a public body, corporation, partnership or
        firm which is the tenant of premises which is the subject matter of a
        tenancy to which this Part applies; (Amended 23 of 1998 s. 2)

"Tribunal" (審裁處) means the Lands Tribunal established under the Lands 
Tribunal Ordinance ( Cap 17).

(2) (Repealed 53 of 1993 s. 26)

(3) No notice or application under this Part shall, for the purposes of the
Land Registration Ordinance ( Cap 128), be regarded as an instrument in
writing by which any parcel of ground, tenement or premises may be affected or
as creating a lis pendens. (Added 29 of 1983 s. 29) (Amended 16 of 2004 s. 10)
[cf. 1954 c. 56 s. 46 U.K.]
___________________________________________________________________________
_____ Note:

* Sections 116(3), (4) and (4A), 117(1) and (2), 118, 119, 119A, 119AA#, 119B,
119C, 119D, 119E, 119F, 119FA, 119FB#, 119G, 119H, 119I, 119J, 119K, 119M,
119N, 119NA, 119O, 119P and 119Q (all in Part IV) have been repealed by
section 3 of the Landlord and Tenant (Consolidation) (Amendment) Ordinance
2004 (16 of 2004). The related savings and transitional provisions, set out in
sections 5 to 7 of 16 of 2004, are reproduced as follows:

"5. Savings in respect of Part IV

(1) In the case of a tenancy to which Part IV applies and which is in
existence on the day before the commencement date*, if-

   (a)  the landlord has before the commencement date given notice under and
        in accordance with section 119 of the principal Ordinance to terminate
        the tenancy; or

   (b)  the tenant has before the commencement date made a request for a new
        tenancy under and in accordance with section 119A of the principal
        Ordinance, then on and after the commencement date-

   (c)  the provisions repealed by section 3 of this Ordinance shall continue
        to apply to the tenancy as if they were not repealed; and

   (d)  the enactments amended by sections 10 to 16 of and the Schedule to
        this Ordinance shall, if applicable, apply to the tenancy as if they
        were not amended.

(2) On and after the commencement date, a tenancy to which Part IV applies and
which is in existence on the day before the commencement date, but in respect
of which no notice or request has been given or made before the commencement
date under section 119 or 119A of the principal Ordinance, may, subject to
subsections (4) and (5), only be terminated by a
transitional termination notice as provided for by section 6.

(3) The term "the tenancy" (該租賃) as used in subsection (1)(c) and

   (d)  does not include any new tenancy granted pursuant to Part IV on or
        after the commencement date.

(4) The requirement in subsection (2) for a transitional  termination notice
in respect of a tenancy, and any such notice that has been issued in respect
of a tenancy, ceases to apply if, on or after the commencement date-

   (a)  the parties to the tenancy-

        (i)    agree to some other period for notice of termination; or

        (ii)   alter any other term of the tenancy; or

   (b)  the tenancy is assigned to a new tenant.

(5) Subsection (2) is without prejudice to-

   (a)  section 7(1) as to the making of an order for possession;

   (b)  any right of forfeiture conferred on a landlord;

   (c)  any right of surrender or early termination conferred on a tenant.

(6) (a) The benefits and protection afforded by this Part shall, in any
tenancy to which it applies, be available to the widow, widower, mother,
father or any daughter or son over the age of 18 years of the tenant where she
or he was residing with the tenant at the time of the tenant's death; and, for
the purposes of this Part, references to a tenant shall except in this
subsection include a reference to such widow, widower, mother, father,
daughter or son.

   (b)  Only one person mentioned in paragraph (a) shall be entitled to the
        benefits and protection of this Part at one time and, in default of
        agreement by those persons, the Tribunal shall nominate that person on
        such grounds as appears to it to be just and equitable.

   (c)  The benefits and protection afforded by this Part shall not be
        available to a personal representative of a deceased tenant or,
        notwithstanding any will or the law of succession on intestacy, any
        other person who is not a person mentioned in paragraph (a) as
        entitled to those benefits and that protection.

(7) On and after the commencement date, a tenancy which would have terminated,
but for the requirement in subsection (2) for a transitional 
termination notice, shall, until terminated by such a notice, but subject to
section 7, continue at the same rent and upon the same covenants, conditions
and other terms of the original tenancy as are appropriate to a month to month
tenancy.

(8) If, before the commencement date, a landlord has successfully opposed the
grant of a new tenancy on a ground specified in paragraph (b) or (c) of
section 119E(1) of the principal Ordinance, the provisions of sections 119F
and 119H of that Ordinance and of any condition imposed or order made under
either of those sections apply in respect of the landlord as if those sections
were not repealed on that date.

(9) If, on the commencement date, a tenant is in possession of premises in the
circumstances described in section 119NA(1) of the principal Ordinance, the
provisions of section 119NA of that Ordinance apply in respect of the tenant
as if that section was not repealed on that date.

(10) Proceedings relating to Part IV which are pending in the Tribunal on the
commencement date, and decisions of the Tribunal relating to that Part which
have not been given effect to on that date, may respectively continue and be
given effect to on and after the commencement date notwithstanding the repeal
of certain provisions of that Part by section 3 of this Ordinance.

(11) Proceedings relating to provisions of Part IV saved by this section may
be commenced in the Tribunal on or after the commencement date.

* Commencement date: 9 July 2004.

6. Transitional termination notice

(1) For the purpose of section 5(2), a "transitional termination notice"
(過渡性終止通知書) means a written notice of termination of a tenancy
served on or after the commencement date* in accordance with this section.

(2) A transitional termination notice must be served-

   (a)  by a landlord, not less than 12 months; or

   (b)  by a tenant, not less than 1 month, before the day on which it is to
        take effect.

(3) A transitional termination notice may be served at any time on or after
the commencement date, but-

   (a)  in respect of a tenancy for a fixed term which was in existence on the
        day before the commencement date, may not be served earlier than the
        last day of the term;

   (b)  in respect of a periodic tenancy which was in existence on the day
        before the commencement date, may not be served earlier than the last
        day of the period of the tenancy current at the commencement date.

(4) A transitional termination notice may be served in any of the ways
specified in section 119Y(1) of the principal Ordinance and subsection (2) of
that section applies to such service.

(5) Where a transitional termination notice is served on a tenant, if-

   (a)  the notice is in both Chinese and English; and

   (b)  the notice is posted on 3 successive days upon the main door or
        entrance of the premises affected, the notice shall take effect
        terminating also any sub-tenancies created out of the tenancy to which
        it relates.

(6) Subject to section 5(4), a transitional termination notice duly served in
respect of a tenancy in accordance with this section takes effect according to
its terms, notwithstanding-

   (a)  a change of landlord that does not create a new tenancy;

   (b)  any express or implied provision in the tenancy regarding the giving
        of notice of termination (subject to section 5(5)(c) as to early
        termination); or

   (c)  any other rule of law regarding the date on which a termination notice
        takes effect.

* Commencement date: 9 July 2004.

7. Other transitional provisions

(1) During the continuance of a tenancy as described in section  5 (7), the
Tribunal may, on the application of the landlord, make an order for possession
of the premises to which the tenancy relates, or any part of them,
notwithstanding that a transitional termination notice in respect of the
premises has not been served, or has been served but has not expired, if the
Tribunal is satisfied that the premises are, or that that part of them is,
reasonably required by the landlord for occupation as a residence for himself,
his father, his mother or any son or daughter of his over the age of 18.

(2) The Tribunal shall not make an order for possession under subsection (1)
if-

   (a)  in the case of a tenancy, the tenant satisfies the Tribunal that, in
        all the circumstances of the case, it would manifestly not be just and
        equitable to make the order; or

   (b)  in the case of a sub-tenancy, the Tribunal is satisfied in all the
        circumstances of the case, including whether other accommodation is
        available for the principal tenant or the sub-tenant, greater hardship
        would be caused by making the order than by refusing it.

(3) If the Tribunal makes an order for possession under subsection

(1)-

   (a)  the Tribunal must specify the name of the person for whose occupation
        it is satisfied the premises are, or the part of the premises is,
        required;

   (b)  subject to subsection (4), the landlord must not, for a period of 24
        months after the date of the order, use, or allow the use of the
        premises, or the part of the premises, other than as a residence for
        the person specified under paragraph (a);

   (c)  subject to subsection (4), the landlord must not, for a period of 24
        months after the date of the order-

        (i)    let the premises or any part of them; or

        (ii)   assign, transfer or part with possession of the premises or any
               part of them.

(4) If the Tribunal makes an order for possession under subsection

(1), the Tribunal may authorize the landlord to-

   (a)  let the premises or any part of them;

   (b)  assign, transfer or part with possession of the premises or any part
        of them; or

   (c)  use, or allow the use of, the premises, or any part of them, other
        than as a residence for the person specified under subsection (3)(a).

(5) The Tribunal, when granting an authority under subsection (4) to let, must
specify the terms, including the rent, on which the premises are, or the part
of the premises is, to be let, and the rent must not be more than that payable
by the tenant last in possession.

(6) Without prejudice to subsection (8), a landlord who contravenes subsection
(3)(b) or (c) commits an offence and is liable on conviction on indictment-

   (a)  to a fine of $500000;

   (b)  in addition, on a second or subsequent conviction, to imprisonment for
        12 months;

   (c)  in any case, to forfeit a sum not exceeding the equivalent of-

        (i)    in the case of a contravention of subsection (3)(c)(i), 2
               years' rent calculated at the rate at which the premises were
               let without the authority of the Tribunal; or

        (ii)   in the case of a contravention of subsection (3)(c)(ii), the
               difference, at the date of the contravention, between the
               market value of the premises with vacant possession and the
               market value of the premises with the former tenant in
               possession.

(7) A court which sentences a landlord for an offence under subsection (6)
may, in addition to imposing a penalty under that subsection, make an order
under subsection (8) after hearing the former tenant and the landlord.

(8) If-

   (a)  an application for an order for possession is made by the landlord
        under subsection (1) and it is subsequently made to appear to the
        Tribunal that the application was successful by reason of the
        misrepresentation or concealment of material facts by the landlord; or

   (b)  the landlord is shown to have acted in contravention of subsection
        (3)(b) or (c), the Tribunal or, as the case may be, the court referred
        to in subsection

(7) may order the landlord to pay to the former tenant such sum as it thinks
fit by way of compensation for damage or loss sustained by that tenant as a
result of the application.

(9) A letting, assignment, transfer or parting with possession of premises or
part of them shall not be void, voidable or unenforceable by reason only of a
contravention of subsection (3)(b) or (c).

(10) A landlord who has been granted an order for possession pursuant to
subsection (1) shall be presumed, until the contrary is shown, to have
knowledge of the making of the order, of the terms of the order, and of any
consent given by the tenant or sub-tenant in connection with the delivery of
vacant possession.

(11) For the purpose of this section- "his father, his mother or any son or
daughter of his" (其父親、母親、兒子或女兒) includes the father,
mother, son or daughter of one or more landlords, holding the premises jointly
or in common, with the other landlord or landlords so holding assenting to the
application for an order for possession;

"landlord" (業主) includes one or more landlords, holding the premises
jointly or in common, with the other landlord or landlords so holding
assenting to the application for an order for possession.".

# Sections 119AA and 119FB have been added by sections 14 and 19 of the
Landlord and Tenant (Consolidation) (Amendment) Ordinance 2002 (32 of 2002).
Both sections have not yet commenced operation before their repeal by
section 3 of 16 of 2004.

"Commissioner" (署長)

"domestic tenancy" (住宅租賃)

"forfeiture" (沒收租賃權)

"landlord" (業主)

"notice to quit" (遷出通知書)

"premises" (處所)

"tenancy" (租賃)

"tenant" (租客)

"Tribunal" (審裁處)