Lai Chun Yan v. Ho Sau Min
Read the full judgment text of LDLA 142/1983 on BabelCite. This LDLA judgment.
1. This is the first application for a new tenancy under Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, where promises have not boon included in Part IV by the combined effect of Sections 50(6)(m) and 116, which has proceeded to a hearing. Until today every application under Part IV which had proceeded to a hearing, was in respect of premises which, because of their rate-able value, had been excluded from Part II pursuant to Section 50(6)(m).
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LDLA000142/1983 Landlord and tenant - Part IV classification of domestic premises - rateable values not sole test - where rateable values below statutory minima premises may still be Part IV if new buildings or new tenancies in accordance with statutory provisions - Held: Tenancy of new building completed on 29.6.81 with rateable value of $12,900 subject to Part IV - Sections 3, 50(6)(1), (m) and (o), and 116 Landlord and Tenant (Consolidation) Ordinance, Cap. 7. IN THE LANDS TRIBUNAL OF HONG KONG
Date: 11th day of November, 1983 --------------------- JUDGMENT --------------------- 1. This is the first application for a new tenancy under Part IV of the Landlord and Tenant (Consolidation) Ordinance, Cap. 7, where promises have not boon included in Part IV by the combined effect of Sections 50(6)(m) and 116, which has proceeded to a hearing. Until today every application under Part IV which had proceeded to a hearing, was in respect of premises which, because of their rate-able value, had been excluded from Part II pursuant to Section 50(6)(m). 2. The subject premises are Flat 1, Kwun Hoi Court, Block S, 26th Floor, Aberdeen Centre, 5 Nam Ning Street, Aberdeen, Hong Kong. The occupation permit was issued on the 29th day of June 1981. The rateable value of the subject premises is $12,900. 3. The principal distinction between Part II and Part IV premises is that provided by Section 50(6)(m) the effect of which is to classify domestic premises on the basis of their rateable values as follows.
4. Since the 10th day of June 1983 by virtue of the landlord and Tenant (Consolidation) (Amendment) Ordinance No. 29/83 which amended Section 50(10) of the principal Ordinance, those rateable values are not necessarily the values appearing in the Valuation List. However, the former system of classification, to the extent to which it relied on rateable values, basically remains unaltered. 5. However, whether particular premises fall within Part II or Part IV is rather more complicated that a simple division on the basis of rateable values. The position is made the more complex in respect of Part IV as Section 116 - the application section - is negatively drafted by reference to section 50 which is the application section for Part II which, in turn, is drafted by reference to Section 3, which is the application section for Part I. 6. In determining the preliminary issue whether the subject premises are within Part IV, it is necessary to consider the provisions of Section 116. Section 116 repeats a number of the exclusionary provisions of Section 50. This means that where such premises are excluded from Part II they are, where those provisions are repeated, also excluded from Part IV. For example Section 116(2)(b) excludes from Part IV any tenancy:
7. Under that intricate legislation by reference provision, the exclusionary provisions of Section 50(6)(1), (m) and (o) do not affect Part IV. Only Section 50(6)(b), (c), (d), (e) and (n) are so excluded. Certainly the draftsman's method, if complicated, is clear. Accordingly it is by virtue of that provision that Section 50(6)(m), while excluding premised with rateable values of $60,000 or over from Part II, place them within Part IV. 8. Conversely, it is the combined effect of sections 50 and 116 which for example, excludes from both Part II and Part IV, those tenancies which are referred to in Section 50(6)(n). That is an important provision under which tenancies are caught neither by Part II or Part IV if they are:
9. On the other hand, as tenancies of premises having higher rateable value are excluded from Part II under Section 50(6)(m), so too tenancies excluded under Section 50(6)(1) and (o) from Part II, must similarly fall within Part IV, unless they are otherwise excluded. Certainly they are not excluded under Section 116(2)(b). 10. The tenancies described in Section 50(6)(1) and (o) share the common characteristic that they are identified not by rateable values but by the dates when the premises were completed or by the dates when the tenancies were created. The criteria are dates not values. Section 50(6)(1) refers to tenancies or sub-tenancies in any buildings in respect of which the occupation permits or other appropriate certificates, were first issued on or after the 19th day of June 1981. Section 50(6)(o) refers to tenancies or sub-tenancies created on or after the 10th day of June 1983 irrespective of when the buildings to which they relate were completed or occupation permits or other certificates issued. 11. Against this background, I will attempt to summarise the application of Part IV to domestic premises which generally will most frequently arise in practice subject to the very important warning that the summary is not exhaustive. Indeed, so involved are the relevant statutory provisions, made the more difficult by the drafting technique employed, that in any particular case the only safe course is to test the characteristics of the premises, against the precise provisions of the Ordinance. Subject to these important qualifications the follow-ing statements may be ventured:
12. The effect of this is that in addition to tenancies of premises with rateable values of $60,000 or over - soon to be reduced to $50,000 - being excluded from Part II and falling within Part IV, tenancies of new buildings and new tenancies of either old or new buildings, are also similarly excluded from Part II. However, as in the case of premises with higher rateable values, so too in the case of tenancies of new buildings and new tenancies, while they are no longer subject to the rent restrictions of Part II, they are caught by the security of tenure provisions of Part IV. 13. This means that on the expiration of such tenancies of new buildings or such now tenancies, the tenant will have the right to apply to the Tribunal Under Part IV for a new tenancy for a maximum duration of 3 years and where the new rent is not agreed, at the prevailing market rent. No doubt it is because the right to apply for a new tenancy in the case of a new building affected by Section 50(6)(1) would only arise after the expiration of an initial tenancy granted on or after the 19th day of June 1981, that this is the first such application that has proceeded to a hearing. It will presumably take an even longer time before the first application in relation to premises excluded from Part II under Section 50(6)(e) come before the Tribunal. 14. I am satisfied and so hold that the subject premises do fall within Part IV. The Tribunal therefore has jurisdiction to consider an application for a new tenancy under Section 117(l). 15. At the hearing the applicant applied for a new tenancy for 2 years at a rent of $4,000 per month exclusive of rates but otherwise in accordance with the provisions of the prior tenancy agreement which was for a period of 2 years from the 1st day of November 1981 at a monthly rent of $3,800 exclusive of rates. The respondent landlady was willing to grant a new tenancy for a duration of 1 year at a rent of $4,500. 16. The parties, who were unrepresented, impressed the Tribunal as being persons of considerable intelligence and maturity. An adjournment was granted to enable them to discuss the relatively small differences between them. When the hearing recommenced, the parties informed the Tribunal that they had reached agreement on the two issues earlier in dispute. I commend them for their reason- ableness which the spirit of this legislation seeks to encourage e. They were now agreed that the new tenancy should be for a duration of 2 years from the 1st day of November 1983 and that the new rent should be in the sum of $4,300 per calendar month exclusive of rates. A new tenancy in those terms and otherwise in accordance with the prior tenancy agreement between the parties is granted. No order as to costs. DATED this 11th day of November, 1983.
Representation: The applicant in person. The respondent in person. |