Wong Yuen Wah v. Chun King

LDLA000035/1984

Head-note:

Landlord & Tenant - persistent failure to pay rent - claim under section 53(2)(d) - warning in writing to be given under the proviso to be effectual must be given at a time when the tenancy becomes one that is 'continuing' under section 52.

IN THE LANDS TRIBUNAL OF HONG KONG

HOLDEN AT KOWLOON

APPLICATION NO. 35 OF 1984

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Coram: Presiding Officer, Judge L.J. D'Almada Remedios

Date of Judgment: 29th May, 1984

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JUDGMENT

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1. This is an action for possession on the ground that the respondent, as the applicant's tenant, has caused unnecessary inconvenience to the applicant by his persistent failure to pay rent on due date and that such failure continued after a warning in writing had been served on the respondent.

2. The findings I have come to on the facts are:

3. In the light of my findings, the success or failure of the applicant's claim would depend on whether a warning notice is effectual for the purposes of Section 53(2)(d) if such notice is given before the contractual tenancy has been terminated. This issue was raised in the Notice of Opposition and I have had the benefit of hearing submissions on this point.

4. The contention advanced on behalf of the applicant is that: (a) the warning in writing referred to in the section may be given while the contractual tenancy is still subsisting; (b) if after such warning in the tenant continues in default, then immediately upon termination of the contractual period of the tenancy the landlord is entitled to claim possession under Section 53(2)(d) without further ado because, it is argued, the right to serve a warning notice is not expressed to be conditional upon the contractual tenancy being first terminated. In substance, as I see it, the contention is that if proceedings are immediately begun on the expiry of the notice to quit, the door of escape is closed to the tenant who can be subjected to an order for possession without waiting to see if any default arises after the notice to quit and without any further notice.

5. I am unable to regard the proposition put forward as being well-founded. Let me start with basic principles. In the absence of any provision in the contract, a landlord has no redress, at Common Law, for any inconvenience, as such, caused by the tenant. If the tenant's behaviour has caused the landlord annoyance of a nature that is actionable, the landlord's remedy lies in tort and not as a consequence of a landlord and tenant relationship. However, when the contractual period of the tenancy is brought to an end, either by effluxion of time or on termination by the landlord and the tenant remains in possession, there is a statutory continuation of the tenancy. From the date of the statutory continuation of the tenancy, the terms under which the tenancy was originally held become varied by the inclusion of terms and conditions which entitle a landlord to possession under Part II. Those terms and conditions are to be found in Section 53(2). Section 52(1A) makes this intention of the legislature apparent. It is only then - after the contractual tenancy has been terminated - that the provisions of Section 53(2) come into operation. While the contractual tenancy exists, Section 53(2) has no application; a landlord is simply left with such rights of forfeiture as he may have at Common Law or under the terms of his contract. In the absence of any covenant by the tenant not to cause any annoyance, inconvenience or disturbance, section 53(2)(d) may be looked upon as if it were a new term of the tenancy which formerly did not exist but which will come into existence when the tenancy continues by virtue of Section 52.

6. As the ordinance does not create or give to a landlord any new rights while the contractual tenancy remains alive, it becomes evident that the intention of the legislature is that upon section 53(2)(d) coming into operation, it will still not be open to the landlord to invoke it, and his right will still not crystalize until he first serves a warning in writing to the tenant and the inconvenience continues after such warning. I read the ordinance as giving to the tenant a right of expectation that when the contractual tenancy comes to an end and he continues in occupation, he will not be liable to an order under that section unless the landlord first serves him with a warning in writing and he continues with the annoyance, inconvenience or disturbance, as the case may be, after such warning.

7. As I see it, the intention of the legislature is that when section 53(2)(d) becomes applicable (which is when the contractual tenancy has come to an end) the tenant is to be given a chance to make amends before an order for possession can be made against him under that section; and the proviso makes it clear that the landlord cannot take advantage of the tenant's failure to make amends unless a sufficient warning in writing is served on the tenant. It follows that the warning must be given after and not before the section takes effect and only if the tenant does not pay heed to the warning can an order for possession be made.

8. In view of my ruling that the warning notice to be given pursuant to the section can only take effect when the section comes into operation, I have no option but to dismiss the applicant's case for failure to give such notice.

Representation:

Miss Helen Lee of Messrs Alfred Lau & Co. for the Applicant.

Mr. S. Cunningham instructed by Messrs Deacons for the Respondent.