VII. Repair/maintenance obligations
Statutory laws provide little guidance in identifying the duties of maintenance of a property. The Landlord and Tenant (Consolidation) Ordinance does not touch on this issue at all. The Buildings Ordinance ( Cap. 123 of the Laws of Hong Kong) confers power on the Building Authority to declare a building dangerous and to compel the owner to remedy the situation. However, this does not provide much assistance in the case of non-dangerous day to day repairs and maintenance. The Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong) confers power on specified public officers to require the owner or occupier of a property to cleanse the property. However, this only concerns the hygienic condition of the property and does not provide much assistance in terms of common repairs and maintenance.
In respect of statutory orders issued by government authorities, it is almost invariable that the landlord, as the registered owner of the property, will be responsible for carrying out repairs or maintenance. A tenant who receives such an order should duly inform the landlord so that the necessary steps can be taken as soon as possible.
Regarding the day to day repair and maintenance of a property, the law implies the obligation on the landlord to provide a property fit for human habitation and the obligation on the tenant to use the property in a tenant-like manner (i.e. to use the property in a reasonable and proper manner) and not to commit waste (i.e. not to destroy/damage the property) . Obviously, such implied obligations are rather vague and not very helpful.
Hence, a well-drafted tenancy document that specifies the obligations for repair and maintenance is desirable.
1. In general, is the landlord or the tenant responsible for maintaining and repairing the property?
When dealing with the issue of repair and maintenance, the landlord and the tenant must predominantly rely on the tenancy document to ascertain their respective duties. A commonly adopted approach is that the landlord is responsible for external and structural repairs and maintenance, and the tenant is responsible for internal and non-structural ones. However, such a simple dichotomy can be problematic because the words internal, external, structural and non-structural can have different interpretations under different circumstances. Therefore, a well-drafted tenancy document will try to anticipate and accommodate all potential areas of dispute that are specific to the particular property, and clarify the parties' duties in details. This also explains why a tenancy document that is drafted by solicitors may consume dozens of pages, whereas a standard form agreement may take only one or two pages.
It will also be quite normal that the terms of the tenancy document impose many obligations on the tenant. This apparent unfairness is actually quite reasonable because the tenant is the "person-in-charge" of the property during the term of the tenancy. As a tenancy has the effect of passing the interests in the property to the tenant, the duty to keep the property in good repair and maintenance passes to the tenant. It is for the same reason that the law implies that the tenant will keep the property in a tenant-like manner and will not commit waste.
It is also common to find in a tenancy document that the tenant's obligations for repair and maintenance are limited by the phrase "fair wear and tear excepted". This excuses the tenant from damage arising from the passing of time and the ordinary and reasonable use of the property. A well-drafted tenancy document should also contain a clause which specifies that the landlord's obligations for structural repairs and maintenance will arise only upon notice of the structural defects. This is reasonable because the landlords, not being in occupation of the properties, cannot be expected to remedy defects of which they are not aware.
On the whole, the answer to the question of who is responsible for repairs and maintenance is to be found in the terms agreed upon by the landlord and the tenant. If there is no written tenancy document or if the particular issue is not tackled by the tenancy document, then the dispute may have to be decided by the Court, which will take into account factors such as the common law duty of "tenant-like" manner, the factual circumstances of the particular dispute, the reasonableness of the parties' acts, etc.
Landlord's rights to enter the property
Section 24 of the Landlord and Tenant (Consolidation) Ordinance is the statutory provision by which a landlord may enter the property and effect necessary repairs. A landlord and his servants and agents may:
- at all reasonable times, enter and inspect the property the subject of the tenancy with a view to ascertaining whether they require any necessary repairs; and
- after the service (deliver) upon the tenant of 14 days' notice in writing of intention so to do, enter upon the property the subject of the tenancy and effect all necessary repairs.
The term "necessary repairs" under this ordinance section means any repairs which the tenant would be required to perform were he under covenant with the landlord (legally bound by a contract) to keep the property in a tenantable state of repair. Subject to the terms of the tenancy document or other mutual agreement between the parties, the relevant repairs costs incurred by the landlord may be recovered from the tenant.
2. If there was a fire broken out on a leased property and the landlord has suffered some losses as a result, can the landlord claim against the tenant?
It depends on the terms agreed by the landlord and the tenant in the tenancy agreement. It also depends on the cause of the fire (e.g. was it a pure accident or was it caused by someone's negligence?).
In practice, a prudent landlord will take out insurance policies to cover the relevant property and household damage. Loss of or damage to household contents such as furniture, decoration, electrical appliances and personal valuables can be insured. A typical example of such kind of insurance is a "Householder's Comprehensive" insurance (See more in "Insurance" under the CLIC website.
Another important note is that the landlord has a duty to inform the insurance company that the flat/house is rented out to a tenant.
Subject to the terms of the relevant tenancy document, the tenant may also be required to take out proper insurance for the property.