Cheung Yeung-kan v. Ltu Kwan

HCA002358/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2358 OF 1974

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Coram: Cons, J.

Date of Judgment: 19 March 1975

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JUDGMENT

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1. Mr. Liu Kwan is the tenant of premises known as No.22 Sai Wan Ho Street, 1st floor, rear portion. He took them in 1966. At that time they consisted of one small room, a kitchen and a bathroom, together with what has generally been referred to throughout the trial as "the courtyard". It is not strictly such, for it is the roof of part of the floor below, but it is convenient to call it that. It takes the form of an open strip about 5 or 6 feet wide running the entire length of the flat and protected on the outside by a parapet of 3 feet 6 inches. The corresponding flat at the front has a similar courtyard which joins on to that at the back. The premises form part of a larger block of similar flats, although I expect only the first floor flats have the courtyard.

2. The tenant negotiated his lease with a Mr. Luk Fook Nin, who is the agent and also the brother-in-law of Cheung Yeung Kan, who then owned, and still does, the whole building. Almost as soon as the tenant moved in he erected a roof or shed over his courtyard. Before he did so he asked permission from the agent and the landlord had no objection. It is a desirable protection from the rain and objects falling from above and most, if not all, of the tenants on that floor have done the same.

3. In 1970 or 1971 the agent moved into the front flat next to the tenant. Until then he had occupied the ground floor premises which were also used as an office for the management of the building. He appears to have become reasonably friendly with the tenant and made visits to his flat from time to time.

4. Then in early February 1974 the tenant made alterations to his flat. He raised the level of the entire courtyard by a few inches to bring it up to that of the remainder of his flat. He removed the windows from one external wall of the main room and installed them at the end of the courtyard parapet, at the same time bricking in that end to form a separate bedroom with a door leading direct from the main room. He erected further brick walls to make two other rooms out of the rest of the courtyard. He put a door from the main room into one of these and turned it into a new kitchen, while the other became a bedroom for his young daughter. The old kitchen was turned into a simple store-room. The tenant did not seek the prior approval of the landlord for these alterations and when they came to the landlord's notice he took serious exception to them. Hence eventually this action.

5. These are the facts of this matter as I find them from the evidence. The tenant will not agree with them. He said that all the basic alterations had been made, with permission, in 1966 and that all he did in February last year was to repair defects that had accumulated over the years. I reject that suggestion for two reasons. It seems to me unlikely that the landlord would ever have given permission or acquiesced in any alterations which he would have known were likely to cause trouble with the Building Authority. And secondly, because it was supported by the evidence only of the tenant. Perhaps he had, prior to February last year, received no friend or visitor other than the agent. Even so the men who carried out the work at that time could have given conclusive evidence in his favour. He acknowledged that they were still readily available.

6. When the matter actually came to trial the landlord's counsel based his claim entirely upon waste. He asked in effect that the tenant be ordered to restore the premises to the condition in which he originally took them. It is clear that in any event he cannot have an order in those terms. The landlord has waived any right he may have had in so far as the area of the roofing over of the courtyard is concerned. If he is entitled to an order at all it must be to restore the premises to the condition in which they stood prior to the later alterations.

7. It is well settled that no tenant may commit waste. This does not depend upon any term of the lease, but is a duty imposed upon him by the law: See Regis Property Co. Ltd. v. Dudley ⁽¹⁾. Does then what the tenant did in 1974 amount to waste?

8. Waste is defined in West Ham Central Charity Board v. East London Waterworks Co. ⁽²⁾ as

"whether the act which the lessor says is an act of waste by the lessee is an act which alters the nature of the thing demised."

A similar definition was propounded in Hyman v. Rose ⁽³⁾. This test was applied in Marsden v. Edward Heyes Ltd. ⁽⁴⁾. In that case the premises which were originally a small shop and a dwelling house combined had been converted into a larger shop and storage loft with no residential accommodation at all. It was decided without hesitation that this was waste. The present tenant has not gone that far. The premises are still basically a dwelling. What he has done is to turn a small dwelling with, comparatively speaking, a fairly spacious roofed courtyard attached into a larger dwelling with no courtyard. Whether this is an improvement or not would depend upon the subjective needs and perhaps the aesthetic opinion of the person looking at it. But that is not the question. The question is whether there has been alteration in the nature or character of the place. Not every structural alteration necessarily has this effect. It must depend on all the circumstances and often, as here, it is a nice question of fact. I take the most important feature of the present case to be that the tenant has taken a large area of outside property and made it inside property. That is a substantial change and sufficient in my mind to say that he has thereby changed the overall nature of his holding.

9. I was asked to consider the effect of the Buildings Ordinance. Before he made the present alterations the tenant should have sought and obtained the approval of the Building Authority. By acting without that prior approval he committed a crime. By the same token he gave the Building Authority the right to require the landlord, as the owner of the building, to demolish those works, and if he should not do so, to demolish those works itself and recover the cost thereof from the landlord. This, it is said, is injury to the reversion and therefore waste.

10. There may be force in this argument so long as the Building Authority refrains from serving the appropriate authority to demolish. Until that time there is a potential threat against the person who then is or becomes the owner of the building. That threat could thus be said to run with the land. But once the notice is served any ultimate liability to pay would seem to rest personally upon the actual recipient of that notice and on the face of it I see no reason why that liability should pass as such to anyone to whom he assigns his reversion. However no argument was addressed to me on this particular point and I prefer to express no considered opinion. The physical effect of the tenant's alterations is sufficient ground for my decision.

11. There will therefore be an order that the defendant reinstate the premises to their former condition and, to avoid possible argument, that condition shall be taken as the condition in which the premises were on 31st December 1973. I make no order for damages. None has yet been suffered. The plaintiff is to have his costs.

Representation:

H.Y. Leung (Maurice Lee & Co.) for plaintiff.

David Sparrow (Samuel Soo & Co.) for defendant.

(1) [1959] A.C. 370 at 407

(2) [1900] 1 Ch. 624 at 635

(3) [1912] A.C. 623

(4) [1927] 2 K.B. 1