Lee Kwok Ying v. Tse Kam Ho

LDPD 1854/2018

[2019] HKLdT 4

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 1854 OF 2018

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Before: Mr Lawrence Pang, Member of the Lands Tribunal

Date of Decision: 16 January 2019

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DECISION ON REVIEW

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1.On 28 December 2018, I handed down the written judgment in this case.

2.In gist, I found this was not the first time that the respondent has allowed his rental payable to fall into arrears. Also, the respondent had failed to satisfy me that there was a good cause in allowing a second relief against forfeiture for the delay or default in payment of rent. In the end, I ordered the respondent to deliver vacant possession of the Premises to the applicant.

3.The respondent now applies to review my judgment pursuant to section 11A of the Lands Tribunal Ordinance (“the Ordinance”).  The grounds of review, which are set out in the affirmation of the respondent dated 14 January 2019, can be summarized by one sentence: that is, the applicant is not the registered owner of the Premises and therefore he has no right to commenced proceedings against the respondent to recover vacant possession of the Premises.

4.The applicant has not filed any submission in response to the review application in accordance with the President’s Direction dated 21 May 2009 [LTPD: Review No 1/2009]. 

Decision on the review application

5.In Tang Chi Ho v Leung Woon-ling [1996] 2 HKLR 58, Godfrey, J A, in giving the judgment of the Court of Appeal, stated as follows:

“5. In addition, it is submitted on behalf of the tenant that the landlord himself has no interest in the property and therefore cannot accordingly institute any proceedings against the tenant. This assertion of a jus tertii is not open to the tenant. A tenant is not permitted to deny his landlord's title. If then the present landlord is the landlord of the tenant, this allegation that the landlord has himself no interest in the property would afford the tenant no defence. Indeed, a periodic tenant who denies his landlord's title is treated as having waived his right to a notice to quit, entitling his landlord to claim possession at once (see, eg Wisbech St. Mary Parish Council v. Lilley [1956] 1 WLR 121).”

6.Indeed, the same principle is stated at Malcolm Merry’s Hong Kong Tenancy Law, 6^th edition, 2016 at p55 as follows:

“A tenant may not deny his landlord’s title. This means that if a landlord purports to grant a tenancy and puts the tenant into possession of the property when in fact the landlord had no title to do so, the tenant is prevented (or, to use the legal phrase, ‘estopped’) from saying that his lease was invalid because some third person has a better title than the landlord….”

7.In the present case, the Premises were let by the applicant to the respondent for a term of 2 years from 4 September 2017 to 3 September 2019 by a tenancy agreement both in English and in Chinese dated 28 August 2017. The respondent is therefore estopped from challenging the applicant’s right to recover possession of the Premises as landlord.

8.In view of the above, there is no merit in the review and I dismiss the application.

Costs

9.As this decision is made on papers without a hearing pursuant to the Practice Directions issued by the President of the Tribunal: Review No 1/2009, I shall make no order as to the costs.