Lo Sui Han v. The Personal Representative of the Estate of Chan Wah Hing, Deceased
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LANDLORD AND TENANT – oral monthly tenancy entered into in 1965 – tenant died intestate in 1980 – widow and children living in premises at death and continuing to do so thereafter – rent receipts issued in name of deceased tenant – notice to quit addressed to deceased tenant – no notice served on Official Administrator (cf S.10 Probate Administration Ordinance Cap.10) – whether contractual period of tenancy brought to an end so as to entitle landlord to order for possession under S.53(2)(b) of Landlord and Tenant (Consolidation) Ordinance (Cap.7). IN THE LANDS TRIBUNAL OF HONG KONG APPLICATION NO. 321 OF 1992 -----------------
----------------- Date : 23rd December 1992 Presiding Officer : His Honour Judge Downey ----------------- JUDGMENT ----------------- 1. Madam LO Sui-han (“the Applicant”) is a widow aged 66. She owns two domestic premises. She lives in one on the 5th floor No. 16A Sun Chun Street, Causeway Bay, together with her son, aged 33, and her daughter-in-law, aged 28. The other premises (“the flat”) was let by her to CHAN Wah-hing (“the deceased”) in 1965 at a monthly rent of $250. The applicant now wishes to recover possession of the flat so that it can be used as a residence for her son. 2. I am satisfied that the premises in Causeway Bay are very small. As the photographs (Exhibit P5) show, they are not really suitable for three adults. The Applicant’s son, Mr LAI Chi-yuen, has lived there for some 10 years, sleeping in a bedroom of some 36 square feet. He now shares that bedroom with his wife, whom he married on the 11th November 1991. They want to move to the flat, which is situated on the 3rd floor of 48 Tsui Fung Street, Kowloon, as it would be more convenient to their places of work in Kowloon; and also because they want to start a family before the wife reaches the age of 30. In the circumstances, I am satisfied that the Applicant has established a genuine present need for the flat as a residence for her son, who is over the age of 18 years. 3. The flat is now occupied by four persons. They are HA Yee-mui, aged 75, who is the widow of the deceased, who died in 1980 or 1981; her daughter, CHAN Po-lin, aged 40 odd; and two sons, CHAN Kwok-man, and his younger brother, CHAN Kwok-chuen, aged 36. These four persons, together with 2 younger sons who now live elsewhere, were residing in the flat at the date of the deceased’s death. Shortly after his death, CHAN Po-lin paid the monthly rent to the Applicant, but thereafter it has been paid by one of the younger sons. However, the Applicant has continued to issue rent receipts in the name of the deceased, although she has known of his death for some 11 or 12 years. (See Exhibit D1). Indeed, shortly after the death, HA Yee-mui asked that she be accepted or treated as the tenant, but the Applicant refused to meet that request. 4. Only two of the present occupants of the flat are working. CHAN Kwok-man is a driver of a public light bus, earning $5,000 to $6,000 per month. CHAN Kwok-chuen recently obtained employment as a computer clerk earning $5,500 per month. Their mother is not in good health. I have no doubt that they face severe financial and possibly other hardships, if they have to move from what has been the family home for 27 years. But, in all the circumstances, it has not been shown that it would be manifestly unjust or inequitable to make the order sought by the Applicant. The only question is whether she can now rely on Section 53(2)(b) of the Landlord and Tenant (Consolidation) Ordinance, (Cap.7). This depends upon whether the “contractual period” of the original tenancy has been terminated by a valid notice to quit. 5. On behalf of the Applicant, Mr Pow relied on a statutory declaration of a clerk employed by the Applicant’s solicitors (Exhibit P.6). I accept his declarations that he posted a notice to quit by ordinary post on the 29th October 1991; and that he posted up at the entrance of the flat copies of that notice on the afternoons of the 29th, 30th and 31st October 1991. Those posted up on the 29th and 30th had been removed prior to his next visits. I also believe Mr CHAN Kwok-chuen, who told me that he know nothing about any of these notices, although he knew of the Applicant’s wish or intention to recover the flat, because of a telephone call from her solicitors in mid-October 1991. The notices are in English and Chinese. I think that it is probable that the notices were seen and removed by some other occupier of the flat. 6. The notices were addressed to CHAN Wah-hing, who died intestate some 12 years ago. No letters of administration have been granted to his widow or any other person. Accordingly, the tenancy formed part of the estate of the deceased and vested in the official Administrator, by virtue of Section 10 of the Probate and Administration Ordinance (Cap. 10). To overcome the fact that the notice had not been served on the tenant or the Official Administrator, Mr Pow relied on Doe d Morris v Williams (1826) 6 B+C 41. This case is some authority for the proposition that where the tenant quits the premises, leaving someone else in possession, the latter can be presumed to be the tenant’s assignee. To overcome any possible difficulty from the fact that the notices to quit were not addressed to the occupiers, Mr Pow relied on Doe d Matthewson v Wrightman (1801) 4 Esp.5, which appears to support the proposition that a notice to quit need not be addressed to the tenant by name. It is sufficient to prove that it was given to the tenant and “served on him in that character” (per Lord Kenyon at 6). Combing these propositions Mr Pow contended that I should ignore the fact that the notices were addressed to the deceased and find that they were served on his presumed assignees; i.e. the persons in occupation of the flat. 7. The two cases cited did not deal with the situation where a tenant dies. My own researches have revealed some more recent authorities which seem to support the proposition that a notice can be served on relatives of the deceased who remain in occupation after the death of the tenant. See Harrowby v Snelson [1951] ALL ER 140; Egerton v Rutter [1951] T.L.R. 58, Wilbraham v Colclough [1952] 1 ALL ER 979. In view of these and other cases discovered in the course of my researches on behalf of the unrepresented respondent, I caused this case to be relisted for further argument. I am very grateful to Mr Hui, the applicant’s solicitor, for his assistance on these and other matters. 1. These three cases involved agricultural holdings and were to some extent decided on the basis of special statutory provisions governing such tenancies. However they were also based on the old case of Rees d Mears v Perrot (1830) 4 C&P 230, which is some authority for the proposition that the landlord can treat the person in occupation after the tenant’s death as the assignee of the tenant. But that proposition was no more than a rebuttable presumption. Furthermore, it is in my view questionable whether it is still good law in view of the decisions of the English Court of Appeal in Smith v Mather [1948] 2KB212 and Fred Long & Sons Ltd v Burgess [1950] 1KB115. (The former case was overruled by the House of Lords in Moodie v Hosegood [1952] AC 61, but on a different point.) In the latter case Bucknill LJ expressed the firm view (at 199-120) that upon the death of a tenant intestate the tenancy vests in the Probate Judge (now the President of the Family Division), and he is the only person to whom a notice to quite can validly be given. As indicated earlier the Hong Kong equivalent of the Probate Judge is the Official Administrator. In my view, where it is known that the contractual tenant is dead, and it transpires that he or she has not made a will, the contractual tenancy ought to be brought to an end by giving notice to quit to the Official Administrator, before the statutory grounds for possession in s.53(2) of Cap.7 can be relied on. 9. In the present case the notice to quit was addressed to the deceased. Unlike some of the cases cited above, it was not addressed to the legal personal representative of the deceased nor the present occupiers. Posting up copies of the notice at the premises may be sufficient warning to them of the landlord’s intention to recover possession. But, in the present case I do not think that it was sufficient to terminate the monthly tenancy vested in the Official Administrator. Indeed, it appears that for very many years the rent has been received from the deceased’s younger son, who was not in occupation at the time the notices to quit were posted up; and has not been a respondent in these proceedings. A new tenancy in his favour by agreement or estoppels may have arisen, but Mr Hui is, I think, right in saying that such inference is rebutted by issuing the receipts in the deceased’s name. 10. It may be the case that the present occupiers are merely licensees of the flat, to whom no notice has to be given. But, as the case of Wirral B C v Smith (1982) 43 P&CR 312 shows, a landlord’s right to possession of his property can only be asserted against occupiers who are not his tenants or assignees if he has taken steps to terminate the tenancy by giving notice to the tenant. Likewise, a landlord’s right to possession on one of the grounds set out in Section 53(2) of Cap.7 can only be relied on if the contractual tenancy has come to an end by effluxion of time or service of a valid notice to quit. 11. Mr Hui submitted, on the basis of dicta in Harrowby v Nelson, supra, that the occupiers of the flat at the time of the deceased’s death could be treated as agents of the Official Administrator, so that service of the notice to quit on the agent of the contractual tenant would be a good notice to quit. That is based on part of the judgment of Cassels J (at p.145). But, with great respect to the learned judge, I see difficulties in treating the occupiers as the agents of the Official Administrator, when he knows nothing about the death or the situation relating to the premises. Agency is a consensual relationship, except in cases where statute deems a person to be the agent of another. 12. In the present case, I find that the notice to quit was not addressed to or served on the proper person in order to terminate the deceased’s monthly tenancy. Furthermore, in the light of what is now known it would seem that the Form 13 was not properly served when it was merely posted to the deceased’s last address. That could possibly be cured by an order for substituted service, which could perhaps be made retrospective; or be dispensed with altogether in the light of this particular case. But, for the other reasons I have given, I consider that this application must be dismissed on the ground that the contractual period of the tenancy has not come to an end, and, therefore, the statutory grounds for possession have not yet arisen. 13. For these reasons the application will be dismissed.
Mr Jason Pow, counsel instructed by Messrs Willam A Hui & Ko for Applicant. Respondent in person. |