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Welcome to the “Pre-emptive Issues” section of Sherlock Homes! Entering into a lease agreement can be an exciting yet daunting journey, filled with questions and uncertainties. But don’t worry – we are here to guide you through the process.
While our other sections covered topics like pre-lease considerations, tenant-landlord conflicts, roommate disputes, and termination of lease, this particular section focuses on the formation of tenancy agreements in Hong Kong and the common clauses involved. Our aim is to equip you with the essential knowledge before you sign on the dotted line.
Here, you’ll find straightforward guidelines and gain a clear understanding of your rights and obligations as a prospective tenant. We’ve also created interactive videos to make your learning experience more engaging. It’s crucial to remember that the typical clauses we discuss might not exactly match those in your own lease agreement. This information serves as a guideline and is not a substitute for professional legal advice. Always consult with a legal professional when necessary.
Many tenancy agreements contain a clause prohibiting subletting without the landlord’s written approval. In other words, tenants cannot let someone else occupy their rented property without the landlord’s consent.
Subletting without the necessary approval could lead to serious consequences. The specifics would depend on the terms and conditions of individual tenancy agreements.
If you wish to sublet, it’s crucial to obtain your landlord’s written consent first. This respects your lease agreement and safeguards your legal rights.
In the first scenario, we explore the “To Permit Landlord to Enter and View” clause typically found in tenancy agreements. This clause obliges the tenant to allow the landlord, or any persons authorized by the landlord, to access the property at reasonable times for specific purposes. These purposes often include:
The second scenario addresses the “Re-entry by Landlord” clause, another common provision in Hong Kong tenancy agreements. This clause stipulates that the landlord can reclaim the property if the tenant violates the terms of the lease agreement, such as failing to pay rent or breaching any other conditions.
The key takeaway from this episode is the importance of respecting your tenancy agreement and maintaining open communication with your landlord. If you encounter difficulties, it’s crucial to discuss them with your landlord to find potential solutions. Remember, every tenancy agreement can be unique, so it’s always recommended to consult with a legal professional when required.
Parties | Sample Clause “An Agreement made on the _________ day of _________ [month] of 20____ BETWEEN 1) ______________________ [Name of Landlord] (Holder of Hong Kong Identity Card No ________________) of ________________________________ [address of the Landlord] (the “Landlord’’); and 2) ________________________ [Name of Tenant] (Holder of Hong Kong Identity Card No _________________) of _______________________________ [address of the Premises] (the “Tenant’’).” Description The “Parties” clause is one of the foundational sections of a tenancy agreement. This clause identifies the individuals or entities that are directly involved in the contract, namely the landlord and the tenant. In the context of a rental agreement, the landlord (also referred to as the ‘lessor’) is the party who owns the property and is renting it out, and the tenant (also known as the ‘lessee’) is the party who is renting the property for use. The “Parties” clause should accurately specify the full legal names of the involved parties. In the case of the landlord, if the property is owned by a company, the company’s legal name should be mentioned. For the tenant, it’s important to include all adults who will be living in the property to ensure they are legally responsible for the terms of the agreement. It’s crucial to note that the people named in this section are the ones who have legal obligations and rights under the contract. Therefore, tenants should carefully check this part of the agreement to ensure their name is spelled correctly and that all relevant parties are included. This section also often includes contact information for both parties, including addresses, phone numbers, and email addresses. This information is important for ensuring clear and direct communication between the parties. |
Premises | Sample Clause “The Landlord rents to the Tenant and the Tenant rents from the Landlord, the premises located at [Full Address]. The premises will include [details of the specific area and any included facilities, e.g., “the two-bedroom apartment located on the third floor, along with one designated parking space in the building’s underground garage”]. The Tenant is entitled to the use of the following common areas: [describe any shared facilities, e.g., “the building’s rooftop garden, the laundry room located on the ground floor, and the visitors’ parking spaces located at the rear of the building”].” Description The “Premises” clause in a tenancy agreement defines the property being rented. This will include the full address of the property and may also provide details about the specific aspects of the property that the tenant has access to. It could be an entire building, a floor, a single apartment or room, or even a parking space. This clause outlines the specific area that the tenant is allowed to occupy and use. It may also include details about any shared or common areas, such as hallways, laundries, gardens, and parking lots. |
Lease Term | Sample Clause “The term of this Tenancy Agreement is _____________ [Number of years] YEARS from the _______ day of __________ [month] of _______ [year] to the ________ day of __________ [month] of ________ [year] both days inclusive (the “Term”).” Description The “Lease Term” clause specifies the duration for which the rental agreement is valid. This includes both the start date and the end date of the tenancy. The lease term can range from a few months to several years, depending on the agreement between the landlord and the tenant. |
Rent and Payment Terms | Sample Clause “DURING THE TERM, THE TENANT AGREES WITH THE LANDLORD AS FOLLOWS: a. i To pay the Landlord the Rent in advance on or before the _______ [fill in the day] day of each and every calendar month during the Term at the manner which the Landlord shall specify to the Tenant from time to time; ii To pay all the management fees and service fees payable by the owner or occupier of Premises pursuant to the Deed of Mutual Covenant and Management Agreement (if any) relating to the Building; and *(Please delete this clause if the Landlord is paying for the management fees) iii To pay all the Government rates assessed and imposed by the Government on the Premises. *(Please delete this clause if the Landlord is paying for the rates)” |
Description The “Rent and Payment Terms” clause outlines how much the tenant will pay for the rental property, when this payment is due, and the methods by which payment can be made. This clause is one of the most important parts of the tenancy agreement because it details the tenant’s main financial obligation. This clause will specify the amount of the monthly rent, the day of the month when the rent is due, and any late fees that will be incurred if the rent is not paid on time. Notably, even if it is not expressly stated in the tenancy agreement document, the obligation to pay rent is implied under s.117 L&T(C)O1 (for domestic letting) or s.126 L&T(C)O (for business letting), there is an implied covenant for tenants to pay rent on due date and a condition for forfeiture for non-payment within 15 days of the due date. | |
To keep in repair | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord to keep all the premises together with the furniture and fixtures therein including all wiring and piping in or serving the premises in good substantial repair and condition and so to maintain the same at the expense of the Tenant and to deliver up the same to the Landlord at the expiration or sooner determination of the term in like condition.” Description The “To Keep In Repair” clause is a common clause that outlines the tenant’s responsibility to maintain the rental property. This includes keeping the property in a clean and habitable condition, and often extends to making minor repairs and promptly reporting any major maintenance issues to the landlord. Understanding this clause can help avoid disputes over property damage and repair responsibilities. Tenants should be clear on what kinds of repairs they are responsible for and what they need to report to the landlord. |
To be responsible for loss or damage caused by interior defects | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord to be wholly responsible for any loss, damage or injury caused to any person whomsoever directly or indirectly through the defective or damaged condition of any part of the interior of the premises and to make good the same by payment or otherwise and to indemnify the Landlord against all actions, proceedings, claims and demands made upon the Landlord in respect of any such loss, damage or injury and all costs and expenses incidental thereto.” Description This clause outlines that the tenant is responsible for any loss or damage caused by defects or issues inside the rental property that are a result of the tenant’s actions or negligence. |
To permit Landlord to enter and view | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord to permit the Landlord and all persons authorised by it at all reasonable times to enter and view the state of the premises, to take inventories of the fixtures and fittings therein, to carry out any work or repairs which require to be done and, during the last three months of the term, to show the premises to prospective tenants or purchasers.” Description The “To Permit Landlord to Enter and View” clause stipulates that the tenant must allow the landlord access to the property under certain conditions. These conditions usually include making repairs, performing maintenance, inspecting the property, or showing the property to prospective tenants or buyers. This clause is important because while tenants have a right to privacy, landlords also have a right to access their property for legitimate reasons. The specifics of this clause, including how much notice the landlord must give before entering, may vary based on local laws. |
Not to assign or underlet etc. without consent of Landlord | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord not without the prior written consent of the Landlord to assign underlet or otherwise part with the possession of the premises or any part thereof in any way whether by way of subletting lending sharing or other means whereby any person or persons not a party to this Agreement obtains the use or possession of the premises or any part thereof irrespective of whether any rental or other consideration is given for such use or possession and in the event of any such transfer sub-letting sharing assignment or parting with the possession of the premises (whether for monetary consideration or not) this Agreement shall absolutely determine and the Tenant shall forthwith vacate the premises on notice to that effect from the Landlord.” Description This clause stipulates that the tenant cannot assign the lease, sublet the property, or otherwise allow others to occupy the property without the landlord’s express written consent. It ensures that the landlord maintains control over who is residing in the property. Assigning the lease or subletting the property without the landlord’s consent can lead to eviction or other legal consequences. Consider a tenant who has signed a lease agreement for an apartment. A few months into the lease, the tenant decides to bring in a roommate to help share the cost of the rent. Without seeking the landlord’s consent, the tenant allows the new roommate to move in and start contributing to the rent. In this scenario, the tenant has effectively sublet a portion of the property to the new roommate without the landlord’s knowledge or consent. This constitutes a breach of this clause in the lease agreement. |
Not to permit any nuisance or annoyance | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord not to do or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to the Landlord or to the tenants or occupiers of other premises in the building or in any adjoining or neighbouring building.” Description The “Not to Permit any Nuisance or Annoyance” clause stipulates that the tenant must not engage in activities or allow their guests to engage in activities that may cause disturbance, nuisance, or annoyance to the landlord or other tenants or neighbors. This clause is crucial in maintaining a harmonious living environment in the rental property or within the community. It encompasses a wide range of potential disturbances, including excessive noise, illegal activities, or any behavior that disrupts the peaceful enjoyment of others. s.117(3)(e) L&T(C)O which provides for the implied covenant not to cause unnecessary annoyance, inconvenience, or disturbance to landlord or any other person. Under s. 117(5)(c), persistent delay of payment of rent is unnecessary annoyance, inconvenience or disturbance. Remember, as a tenant, you are responsible not only for your own actions but also for those of your guests. It’s essential to respect the rights and comfort of others in your community. Breaching this clause may lead to serious consequences, including potential eviction. |
Not to permit illegal or immoral use | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord not to use or permit or suffer the premises to be used for any illegal or immoral purpose.” Description This is a very common clause that stipulates that the tenant cannot use the property for illegal or immoral purposes. This includes not only the tenant’s actions but also the actions of any guests or other persons the tenant allows on the property. This clause helps to ensure that the property is used responsibly and in accordance with the law. It protects the landlord’s rights and property, as well as safeguarding the safety and wellbeing of other tenants or neighbors. This is also an implied term under in s.117(3)(c) L&T(C)O. Examples for potential breaches are using the premises to conduct illegal gambling, storing stolen goods, prostitution or other forms of illegal sex work. |
To observe Deed of Mutual Covenant | Sample Clause “The Tenant to the intent that the obligations hereunder shall continue throughout the said term of tenancy hereby agrees with the Landlord to observe and perform all the covenants, terms, and provisions in the Deed of Mutual Covenant, Sub-Deed of Mutual Covenant (if any), Management Agreement (if any), or House Rules (if any) in relation to the Building and the Premises and to observe all the rules, regulations and orders made by the manager or incorporated owners of the Building.” Description The “To Observe Deed of Mutual Covenant” clause is particularly relevant for properties within a building, complex, or community governed by a Deed of Mutual Covenant (DMC). This clause requires the tenant to adhere to the rules and regulations outlined in the DMC. A DMC is a legal document that sets out the rights and obligations of all parties involved in a particular property, including owners, tenants, and the property management. It often includes rules about shared spaces, noise levels, parking, pet ownership, and more. |
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That Tenant shall have quiet enjoyment |
Sample Clause “The Landlord hereby agrees with the Tenant that the Tenant paying the rent hereby agreed to be paid on the days and in manner herein provided for payment of the same and observing and performing the agreements stipulations terms and conditions herein contained a n don the Tenant’s part to be observed and performed shall peaceably hold and enjoy the premises during the said term without any interruption by the Landlord or any person lawfully claiming under or in trust for the Landlord.” Description Even if not expressly stated in a tenancy agreement, this clause is an implied term and the landlord should the obligation to follow as such. This clause stipulates that the landlord must ensure that the tenant can peacefully occupy and enjoy the rented property without interference from the landlord or any persons claiming under or in trust for the landlord. This clause is rooted in the principle that the landlord must not do anything that interferes with the tenant’s use or enjoyment of the property. The tenant should be free from substantial physical interference or disturbances that disrupt their peaceful enjoyment of the property. However, it’s important to note that this covenant does not bind strangers not acting on behalf of the landlord. |
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To keep in repair |
Description Under general circumstances, landlords do not have an implied obligation to carry out repairs, except for specific conditions First, where premises are furnished for residential purpose, there is an implied obligation for the landlord to ensure the premises were fit for human habitation (i.e. can live without problems, e.g. free from infectious diseases). For instance, in the case of Li Ching Wing v Xuan Yi Xiong, it was held that a furnished house must be reasonably fit for human habitation at the start of the term. This does not apply to unfurnished premises or non-residential tenancy. The case of Global Development Ltd v Sheung Cheong Food Trading Ltd reaffirmed that there is no implied warranty for an unfurnished residential flat. In the Charsley v Jones case, it was established that an honest belief that the house was fit for habitation is not a defense. There have been cases where defects in drainage (Wilson v Finch-Hatton), being infested with vermin to the point of serious inconvenience (Harrison v Malet), or a house not being disinfected from infectious illness (Bird v Lord Greville: measles & Collins v Hopkins: pulmonary tuberculosis) constituted a breach of this obligation. However, ordinary defects which may be easily remedied were not considered a breach (Maclean v Currie). The second exception is business efficacy. In situations where it is necessary to imply the term for the efficacy of the business, landlords are obliged to carry out repairs. For instance, in the Liverpool City Council v Irwin case, it was held necessary for the landlord to repair the staircase so that the tenant could access the premises safely. |
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Pet Policy |
Sample Clause “No pets shall be allowed on the Property without the prior written consent of the Landlord. The Landlord reserves the right to withdraw consent at any time. In the event that the Landlord grants consent for a pet, the Tenant agrees to comply with the following conditions:
Description A “Pet Policy” in a lease agreement outlines the rules and conditions under which a tenant may keep pets in the rental property. This clause is important as it helps protect the property from potential damage and maintains a comfortable living environment for all residents. This clause specifies whether pets are allowed in the property, what types of pets are allowed, the number of pets a tenant can have, and the responsibilities of the tenant regarding their pets. This might include rules about noise, waste disposal, and damage. For tenants, understanding the pet policy is crucial if you have or plan to get a pet. Violating the pet policy could lead to penalties such as fines or, in serious cases, eviction. For landlords, a clear pet policy helps protect your property from damage and helps prevent disputes with and between tenants. It also gives you grounds to take action if a tenant violates the policy. |
Break Clauses | Sample Clause “Notwithstanding anything hereinbefore contained, it is hereby agreed and declared that if at any time after 31$ October 2000, Mr Samuels shall leave the employment of the Tenant or shall die or shall be transferred or assigned out of Hong Kong then the Tenant shall have the right by giving not less than three months prior written notice or three months’ rent in lieu of such notice to the Landlord to determine the tenancy hereby created and upon the expiration of such notice or upon payment in lieu of such notice this present Agreement shall be determine but without prejudice to any claim by either party against the other in respect of any antecedent breach.” Description A “Break Clause” in a lease agreement provides both the tenant and the landlord with the right to terminate the lease before the end of the fixed term, given that certain conditions are met. This clause provides flexibility for both parties, allowing them to adapt to changes in circumstances. A break clause is a provision in a lease agreement that allows either the tenant or the landlord to end the lease early. It usually outlines the conditions under which the lease can be terminated, which may include a specific date or time period after which the clause can be exercised, and the notice period required. For tenants, a break clause gives them the flexibility to move out before the lease term ends without facing penalties for breaking the lease. This can be beneficial if circumstances change, such as needing to relocate for a job. For landlords, a break clause allows them to terminate the lease if they need to sell the property or if they have other reasons for wanting to regain possession. |
Re-entry by Landlord | Sample Clause “IT IS HEREBY FURTHER EXPRESSLY AGREED AND DECLARED as follows : (a) If the rent hereby agreed to be paid or any part thereof shall be unpaid for fifteen days after the same shall become payable (whether legally or formally demanded or not) or if the Tenant shall fail or neglect to observe or perform any of the agreements, stipulations terms and conditions herein contained and on the Tenant’s part to be observed and performed or if the Tenant shall become subject to a bankruptcy order or being a corporation shall go into liquidation (save the voluntary liquidation of a solvent company for the purposes of amalgamation or reconstruction) or if the Tenant shall otherwise become Insolvent or make any composition or arrangement with creditors or shall suffer any execution to be levied on the premises or otherwise on the Tenant’s goods, then and in any such case it shall be lawful for the Landlord at any time thereafter to re-enter on the premises or any part thereof in the name of the whole whereupon this Agreement shall absolutely cease and determine but without prejudice to any right of action of the Landlord in respect of any outstanding breach or non-observance or non-performance of any of the said agreements, stipulations terms and conditions herein contained and on the Tenant’s part to be observed and performed and to the Landlord’s right to deduct all loss damage and expense thereby incurred from the deposit paid by the Tenant in accordance with Clause 8 hereof. (b) A written notice served by the Landlord on the Tenant in manner hereinafter mentioned to the effect that the Landlord thereby exercises the power of re-entry herein contained shall be a full and sufficient exercise of such power without actual physical entry on the part of the Landlord.” Description This clause in a lease agreement provides the landlord with the right to take possession of the property under specified conditions. This clause is typically activated when the tenant breaches the terms of the lease, such as failure to pay rent or violation of other lease conditions. This clause allows the landlord to repossess, or “re-enter,” the rented property in the event of specific breaches of the lease by the tenant. The instances where a landlord might use this clause include non-payment of rent, neglect of property maintenance, bankruptcy of the tenant, or other serious breaches of the lease terms. For tenants, this clause underscores the importance of adhering to all the terms of the lease agreement. Non-compliance can lead to eviction and potential legal action. For landlords, this clause provides a legal pathway to regain possession of the property when the tenant has violated the lease terms. However, landlords must adhere to legal procedures and regulations when enforcing a re-entry clause to avoid potential legal issues. |
Security Deposit | Sample Clause “DURING THE TERM, THE PARTIES FURTHER AGREE AS FOLLOWS:- a. Upon the signing of this Agreement, the Tenant shall pay to the Landlord a deposit of Hong Kong Dollars $ ____________ [the amount of the Deposit] to secure the due observance and performance of the terms in this Agreement by the Tenant (the “Deposit”). b. If the Rent or any payment payable by the Tenant under this Agreement shall be unpaid wholly or partially for 15 days after the due date (whether legally or formally demanded or not) or if the Landlord shall suffer any loss or damages or incur any expenses due to the breach of any term of this Agreement by the Tenant, the Landlord shall deduct any outstanding sum or any loss, damages and expense suffered or incurred by the Landlord from the Deposit without prejudice to the Landlord’s right to claim any further damages and any other right or remedy which the Landlord may have against the Tenant in respect of such non-payment or breach of this Agreement. Upon such deduction, the Tenant shall immediately deposit the deducted amount with the Landlord to maintain the Deposit at the sum of Hong Kong Dollars $ _____________ [the amount of the Deposit] throughout the Term. *(Please fill in the amount of the Deposit in accordance with Clause 4(a))” Description The “Security Deposit” clause refers to an amount of money collected by the landlord from the tenant at the beginning of a lease agreement. This deposit is intended to ensure the tenant’s compliance with the terms of the agreement and protect the landlord against potential damages to the property, unpaid rent, or other tenant obligations that may not be met during the lease term. Payment of Security Deposit: Per the agreement, the tenant is required to pay the landlord a deposit upon signing the agreement. The amount of the deposit will be specified in the agreement. This deposit is to secure the due observance and performance of the agreement’s terms by the tenant. Use of Security Deposit: If the rent or any other payment required by the tenant under the agreement remains unpaid in full or partially for 15 days after the due date, regardless of whether a formal demand has been made, the landlord has the right to deduct the outstanding sum from the deposit. Moreover, if the landlord incurs any loss, damages, or expenses due to a breach of the agreement’s terms by the tenant, the landlord can deduct such costs from the deposit. This does not affect the landlord’s right to claim further damages or exercise any other rights or remedies they may have against the tenant in respect of such non-payment or breach. Replenishment of Security Deposit: Upon any deduction from the deposit, the tenant is obliged to immediately deposit the deducted amount with the landlord. This is to maintain the deposit at the original sum specified in the agreement throughout the term of the lease. |
Severally and jointly liable | Sample “In the case where there are two or more Tenants executing this Agreement, all Tenants are jointly and severally liable for each other’s acts, omissions, breaches or defaults and for the full performance of all the terms, conditions, covenants and agreements herein contained. The Landlord may seek to enforce this Agreement against any one or more of the Tenants without affecting the Landlord’s rights to enforce this Agreement against the other(s). Each Tenant will remain fully liable for the payment of rent and performance of all other obligations under this Agreement, notwithstanding the default, death, incapacity or bankruptcy of any other Tenant, or the termination of the tenancy of any other Tenant.” Description “Joint and Several Liability” means that when there are multiple tenants on a lease, each tenant is individually responsible for fulfilling all the terms of the lease, including paying the full amount of rent and repairing any damages, regardless of the actual portion used or caused by each tenant. This means that if one tenant fails to pay their share of the rent or causes damage to the property, the other tenants can be held legally responsible to cover the cost. The landlord can choose to pursue any or all the tenants for the owed amount. This kind of clause may seem daunting to tenants, but it is quite common in shared housing situations, such as student housing. It provides landlords with additional security, knowing that they can recover costs if one tenant fails to meet their obligations. For tenants, it underscores the importance of trust and communication between roommates. Everyone is collectively responsible, and a problem with one tenant can become a problem for all tenants. |
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