Paul F Delahunty v. Yu Kwok Ying Amy

LDLA000133/1983

Landlord and tenant - Part IV - application for new tenancy - difference in floor heights - car parking allowances - Sections 117(1) and 119K Landlord and Tenant (Consolidation) Ordinance, Cap. 7.

IN THE LANDS TRIBUNAL OF HONG KONG

Date: 2nd day of December 1983

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JUDGMENT

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1. The applicant tenant has applied, pursuant to Section 117(1) of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7 for a new tenancy of the domestic premises situate at and known as Flat A, Belgravia Heights, 1st Floor, 27 Tai Tam Road, Hong Kong.

2. The applicant entered into possession under a tenancy agreement which was for a period of 3 years from the 9th day of May 1979 with a monthly rent of $16,500 exclusive of rates for the first two years and a monthly rent for the final year of $19,800 exclusive of rates. Under that tenancy agreement the applicant had the right to terminate the tenancy, after the expiration of the first year, upon 3 months notice, in the event of being posted by his employer to a place of work outside Hong Kong.

3. At the commencement of the hearing the parties indicated that they had reached agreement on the following matters affecting the new tenancy:-

4. Belgravia Heights is a 7 storey block comprising 14 flats built in 1978 situate on Tai Tam Road just beyond the Tai Tam Road - Stanley Gap Road intersection. The subject premises are on the 1st floor of the 7 storey tower which itself is built on a podium comprising two floors of car parking and related services.

5. The subject premises comprise 235.4 square metres (2,534 square feet) and include living/dining room, 4 bedrooms, bathrooms, kitchen, utility room together with servants quarters. The prior agreement did not expressly provide for a carpark but on inspecting the premises there appeared to be ample residents and visitors car parking. The new tenancy, as already indicated, will include express provision for a car park. In addition to the usual common areas the amenities include a swimming pool which is shared by the occupants of the 14 flat

6. Miss P.M. Savage, the applicant's valuer, was of the opinion that the prevailing market rent as at the 8th day of July 1983 was $25,000 per month exclusive of rates for either 2 years or 3 years duration. In his second report for the respondent, Mr. P.K. Cheung assessed the prevailing market rent as at the 9th day of July 1983 to be $26,200 per month exclusive of rates if there was no express provision for a car park sacs and $27,200 per calendar month exclusive of rates if a car perking space were contractually provided. In view of the agreement to provide a car parking space the difference between the valuers is therefore $2,200.

7. Both valuers relied on similar comparables and each placed considerable weight on the new tenancy agreed to in respect of a structurally identical flat in the same block being Flat 6B which was let on the 21st day of June 1983 for 2 years at $28,000 per calendar mouth exclusive of rates. I find this to be the best comparable and also find that it is not out of line with the other better comparables both within and beyond Belgravia Heights.

8. Miss Savage, in considering the subject premises in relation to Flat 6B, considered that they had a poorer view towards Tai Tam Bay; had a security risk being on the first floor; and had a lack of privacy also caused by the 1st floor location. As to these factors, Mr. Cheung's s opinion was that a-, the subject premises were built above a two floor podium, itself constructed on the higher side of Tai Tam Road, there was not a major difference in view. He equated the difference to that which could be anticipated to occur between a 3rd floor and an 8th floor flat. Farther, for the same mason the security and privacy factors were not as significant as the applicant claimed. As against these factors the subject premises, he stated, were closer than other flats in the block to the swimming pool. This generally made the use of the pool more convenient and was easily accessible without the necessity to use the lift.

9. After having considered that evidence and visiting Belgravia Heights, where I had the opportunity to inspect both the subject premises and Flat 6B, I finds:

10. In the result I am satisfied that reduction of rent calculated by the applicant because of the subject premises being situate on the 1st floor, compared with the 6th floor location of Flat 6B, is excessive. On the other hand, the additional $1,000 in Mr. Cheung's valuation, if express provision were made for a car parking space, is also excessive.

11. After making allowance for these factors there is in fact very little difference between the valuers. In the light of these findings and after com-sidering the whole of the evidence, I hold that the prevailing market rent of the subject premises is $26,000 per month exclusive of rates. A new tenancy is therefore granted in accordance with the agreed terms together with a new rent of $26,000 per month exclusive of rates. No order as to costs. DATED this 2nd day of December 1983.

Representation:

Mrs. C.N. Booth of Baker & McKenzie for the applicant.

Mr. Benjamin Yu instructed by Johnson, Stokes a Master for the respondent.