Most people in Hong Kong live in multi-storey buildings. The population density in these multi-storey buildings is high and neighbours live very close to each other. Residents can easily be affected by the actions of their neighbours, resulting in disputes.

In this section, we will discuss the following legal issues that commonly arise in neighbourhoods.

Nuisance can be understood as any on-going or recurrent activity or state of affairs that causes a substantial and unreasonable interference with people’s property, or with their use or enjoyment of that property.

Common law recognises that people have the right to use and enjoy their property, and have protection under the law from unreasonable interference by neighbours. If residents cause a nuisance to their neighbours, the residents are civilly liable for nuisance and can have civil proceedings brought against them under the tort of private nuisance.

In addition to private nuisance, there are statutory nuisances which are made nuisances by statute either in express terms or by implication. If your neighbour causes a statutory nuisance, you may lodge a complaint with the relevant government department. The relevant authority may issue a nuisance notice to require your neighbour to abate the nuisance. If the nuisance is not abated, it is a criminal offence.

A. What constitutes an actionable nuisance?

To be actionable, a nuisance must be a real interference with the comfort or convenience of living according to the standards of the average person. An interference which alone causes harm only to someone of abnormal sensitiveness does not of itself constitute an actionable nuisance.

It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. In order to assess whether the interference is actionable, the court considers factors like the following:

1. The circumstances and character of the locality of the neighbourhood

The court will consider the location of the property and the type of people living in it when assessing the standard of comfort. For example, if you are living in a busy shopping area, if the shops are operated in a fair and reasonable way, you are expected to be more tolerant of some disturbances, such as a crowded environment or occasional peddling. You cannot expect such a neighbourhood to be as quiet as Mid-levels, for example.

2. Any similar interferences which exist or previously existed in the neighbourhood

Although you are expected to tolerate some degree of discomfort or inconvenience, if an interference already existed in the area, it does not mean that a substantial additional interference cannot be regarded as a nuisance. Taking the above scenario as an example, if a shop extends its opening hours to 24 hours a day and keeps using loudspeakers to attract customers late at night, such a nuisance would be actionable.

3. Extent, degree and duration of the interference

If an interference is a temporary consequence of carrying out lawful work, such as renovation or repair work, and the method used to carry out such work is reasonable, the interference may not be an actionable nuisance.

4. Sensitivity of the complainant

When judging whether the activity in question constitutes a nuisance, the court will adopt the standard of tolerance of a reasonable person. So if a person is hypersensitive or exceptionally delicate, the claim may not be successful.

5. Intention of the creator of interference

If it can be proved that the creator of the interference is deliberately acting in an improper way or has a malicious motive, this may provide evidence of unreasonable use of the property.

6. Effect of the interference

This concerns whether the effects of a nuisance are transitory or permanent, occasional or continuous.

If an interference is unreasonable, the person who causes the nuisance is liable even though he may have used reasonable care and skill to avoid causing it.

B. Who can sue?

Owners or occupiers with the right to exclusive possession, such as tenants, are entitled to sue for nuisance. The right to exclusive possession means the right to prevent others from using or invading the property without your consent. Exclusive possession enables the tenant to exclude strangers and even the landlord.

However, even if members of the owner’s or occupier’s family living in the affected flat are lawful and permanent residents, they are not entitled to sue, as they have no right to exclusive possession. They are mere licencees, which means they are permitted to use the flat by the owner only for an agreed purpose.

If the affected property is let out, the tenant is the proper plaintiff to sue for nuisance. However, if the damage caused by a nuisance is of a permanent nature, not a mere temporary annoyance, the landlord can sue for nuisance.

C. Who can be sued?

Obviously, the person who creates a nuisance is primarily liable.

If an owner or occupier does not create the nuisance, but knows about it, or has a way of knowing about it or that it is likely to happen in his flat and allows the nuisance to continue, he is liable.

An owner or occupier who “authorises” or “adopts” the nuisance caused by the creator is also liable. If the landlord is aware of the nuisance before renting out the premises, or if the lease provides that the landlord is obliged to repair the premises, both the landlord and the tenant are liable.

D. Remedies

1. Damages

A person affected by a nuisance may commence legal proceedings to seek damages for the actual loss suffered.

Damages usually include repair costs, alternative accommodation costs, loss of property value, and general damages for annoyance, inconvenience and discomfort.

2. Injunction

A person may seek an injunction to restrain another person from continuing to create the nuisance.

3. Self-help

A person who is affected by a private nuisance is, in general, entitled to abate it. For this purpose, he may enter the property of the person causing the nuisance provided that it does not cause a breach of the peace. However, it is a remedy which is not usually advisable. This is appropriate only in simple cases which would not justify the expense of legal proceedings or urgent cases which require an immediate remedy. The abatement must be done so as to cause as little damage as possible to the wrongdoer and other innocent parties. If there are alternative methods of abatement, one of which will be less injurious to the wrongdoer than the other, the least injurious method must be adopted. 

If the abatement requires the abator to enter the property of the person causing the nuisance, prior notice must be given except in emergency situation; otherwise, the abator is trespassing.

F. Jurisdiction of the Courts

If you suffer loss or damage arising from a nuisance caused by your neighbour, you may sue the person in the Small Claims Tribunal if the amount claimed does not exceed $50,000.

The hearings in Small Claims Tribunal are informal and no legal representation is allowed. For details about the fees, required documents and hearing procedures of the Small Claims Tribunal, please click here .

If the nuisance continues, the Small Claims Tribunal may not be the proper forum for the dispute, as it has no power to grant an injunction to stop your neighbour from causing further nuisance. In that case, depending on the amount of the claim, the District Court or the Court of First Instance may be a more appropriate venue.

For more information about taking civil action, please refer to “ Bringing or Defending a Civil Case ” on the CLIC website.

A. What is a statutory nuisance?

A statutory nuisance is one which, whether or not it constitutes a nuisance in common law, is made a nuisance by statute, either in express terms or by implication.

A statutory nuisance must satisfy the requirements of a private or public nuisance, namely the existence of an act or omission which materially affects the comfort and quality of life of a section of the public (a public nuisance) or which interferes with the use and enjoyment of a neighbouring property by the owner or occupier of the property (a private nuisance). Please note that public nuisances will not be discussed here.

B. Statutory nuisances under the Public Health and Municipal Services Ordinance

Section 12 of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), provides that the following matters constitute statutory nuisances:

1. any premises (including any cemetery) or vessel in such a state as to be a nuisance or injurious or dangerous to health;

 

2. any pool, well, ditch, gutter, watercourse, drain, sewer, water tank or container, cesspool, pond, pit, sanitary convenience, soil, waste or rainwater pipe, dust bin or refuse container or other like place or thing so foul, or in such a state, as to be a nuisance or injurious or dangerous to health;

 

3. any accumulation or deposit (including any dead body) which is a nuisance or injurious or dangerous to health;

 

4. any animal or bird kept in such a place, or in such a manner, as to be a nuisance or injurious or dangerous to health;

 

5. the emission of dust, fumes or effluvia from any premises in such a manner as to be a nuisance;

 

6. the emission of dust from any building under construction or demolition in such a manner as to be a nuisance;

 

7. the emission of air either above or below the temperature of the external air, or the discharge of water, whether waste or otherwise, from the ventilating system in any premises in such a manner as to be a nuisance.

There are also various legislations which specifically regulate different types of nuisances, which will be discussed in detail in a later section.

C. Remedies

The Food and Environmental Hygiene Department (FEHD) is responsible for handling statutory nuisances under section 12 of the Public Health and Municipal Services Ordinance . If you have any complaints about statutory nuisances, you may call 1823.

1. Nuisance notice

If the Food and Environmental Hygiene Department (FEHD) is satisfied that a statutory nuisance exists, or is likely to recur, it may serve a nuisance notice on the person causing the nuisance, whether by action or inaction, requiring the abatement of the nuisance and/or the prevention of its recurrence within the period specified in the notice, and doing whatever is necessary (which may be specified in the notice, if the FEHD thinks fit) to abate or prevent the nuisance.

If a nuisance notice is served on a person, then if either (a) the nuisance to which the notice relates arose by reason of the wilful action or inaction of that person; or (b) the person fails to comply with any of the requirements of the notice within the period specified therein, the person is guilty of an offence. The maximum penalty is a fine of $10,000 and a daily fine of $200 as long as the nuisance continues ( section 127(3) and schedule 9 of the Public Health and Municipal Services Ordinance ).

2. Nuisance order

If a nuisance notice is served on a person and that person fails to comply with any of the requirements of the notice within the period specified in the notice; or if the nuisance to which the order relates, although abated after the notice is served, is, in the opinion of the FEHD, likely to recur on the same premises or vessel, the FEHD may make a complaint to the court, and the court hearing the complaint may make a nuisance order.

A nuisance order may be an abatement order, prohibition order, closing order, or combination of such orders.

An abatement order may require a person to comply with any or all of the requirements of a nuisance notice, or otherwise to abate the nuisance or do whatever necessary to prevent the recurrence of the nuisance within the period specified in the order.

A prohibition order may prohibit the recurrence of a nuisance.

A closing order may prohibit the use of any premises or vessel for human habitation, but is only made if it is proved to the satisfaction of the court that, by reason of a nuisance, the premises or vessel is unfit for human habitation.

Any person who fails without a reasonable excuse to comply with, or knowingly contravenes, a nuisance order is guilty of an offence. The maximum penalty is a fine of $25,000 and a daily fine of $450 as long as the offence continues ( section 127(7)(a) and schedule 9 of the Public Health and Municipal Services Ordinance ).

A. Nuisance

Making noise or causing noise to be made that materially interferes with the ordinary comfort of the neighbouring inhabitants is an actionable nuisance.

A resident in a noisy district must put up with a certain amount of noise, and the standard of ordinary comfort will differ according to the situation of the property and the class of people who inhabit it. The test is whether the addition of a fresh noise is so substantial that it creates a legal nuisance.

For a general explanation of civil liability relating to nuisance, please refer to Private nuisance > A. What constitutes an actionable nuisance?

B. Criminal liability

1. Noise at any time

It is an offence if a person at any time in any domestic premises does any of the following in a way which creates noise that is a source of annoyance to any person ( section 5(1) and (2) of the Noise Control Ordinance ( Cap. 400 )) :–

1. 1. plays or operates any musical or other instrument, including any record or cassette player or radio or television apparatus;
   2. uses any loud-speaker, megaphone, or other device or instrument for magnifying sound;
   3. plays any game or engages in any pastime;
   4. carries on a trade or business;
   5. operates, or causes or permits to be operated, any air-conditioning or ventilating system or part thereof.

Any person who commits this offence is liable to a fine of $10,000.

2. Noise at night or on a general holiday

It is an offence for a person between 11 p.m. and 7 a.m., or at any time on a general holiday in any domestic premises to make or cause to be made any noise which is a source of annoyance to any person ( section 4(1) of the Noise Control Ordinance ).

Sometimes, even if you are not the person who makes noise, you will be charged if you permit other people to make noise at your home. It is an offence if the owner, tenant, occupier or person in charge of any domestic premises between 11 p.m. and 7 a.m., or at any time on a general holiday knowingly permits or suffers noise which is a source of annoyance to any person to emanate from those domestic premises ( section 4(2) of the Noise Control Ordinance ).

The maximum penalty for this is a fine of $10,000.

The difference between the two above offences is that section 4 provides control over all noise sources at night (11 p.m. to 7 a.m.) or on a general holiday, while section 5 provides control over particular noise sources, namely musical instruments, ventilating systems, animals, birds, or shouting to attract attention to goods for sale at any time of the day or night.

3. Are there any regulations for noise arising from domestic renovation works?

Yes. No powered mechanical equipment can be used to carry out renovation works from 7 p.m. to 7 a.m. or any time on a general holiday, unless a valid construction noise permit has been issued by the Noise Control Authority for this ( section 6(1) of the Noise Control Ordinance ).

However, if an owner or tenant of domestic premises carries out small works on his own with a portable mechanical device, this is exempted. The exemption is subject, however, to section 4 of the Noise Control Ordinance , which stipulates that between the hours of 11 p.m. and 7 a.m., and at any time on a general holiday, no one in any domestic premises should make any noise which is a source of annoyance to any other person. Therefore, neither owners nor tenants should carry out renovation works during those times.

4. Assistance

If your neighbours are committing any of the above offences, you can report them to the police, who are responsible for handling cases concerning noise from domestic premises.

A. Nuisance

Making or causing to be made smoke, fumes or smells that materially interfere with the ordinary comfort of neighbours is an actionable nuisance, even if the smoke, fumes or smells are not actually noxious or dangerous to health. For a general explanation of liability of nuisance, please refer to Private nuisance > What constitutes an actionable nuisance?

In Hong Kong, some Chinese families living in multi-storey buildings may burn incense in the common area of buildings, such as corridors. In a famous incense burning case, Hu Wei Hsin v Ma Hung Wing , the Court held that the smoke and smell caused by the burning of incense by the defendants constituted a nuisance.

The defendants in that case had been burning three sticks of incense in each of the two censers outside their flat at various times of the day for more than an hour each time, with the burning incense unattended most of the time. Sometimes, one of the defendants swept the dust resulting from the burning of the incense out to the plaintiff’s flat.

The Court made the following observation about the balance between the right to carry out worship and the right to be free from nuisances in Hong Kong:

“ In a multi-cultural society like Hong Kong, we should always respect the Chinese culture and the right of individuals to carry out any kinds of worship or religious ceremony. However, if such activities constitute a nuisance to the neighbours, in particular, if the activities are performed in the common area of a multi-storey building, then such kind of activities should not be allowed. This has nothing to do with the right to worship. ”

B. Criminal liability

According to section 12 (1)(e) of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), the emission of dust, fumes or effluvia from any premises in such a manner as to be a nuisance constitutes a statutory nuisance. The general principles of private nuisance apply (Please refer to “What is a statutory nuisance?”). There is no distinction between domestic and non-domestic premises.

Effluvia suggest something given off into the air that is offensive to the senses, including smell from rubbish.

C. Assistance

The Food and Environmental Hygiene Department (FEHD) is responsible for handling this statutory nuisance. (Please refer to Statutory nuisance > C. Remedies .)

A. Civil liability

Deed of Mutual Covenant

Not all multi-storey buildings allow unit owners or occupiers to keep animals in their homes. The deed of mutual covenant of the building sets out whether unit owners or occupiers are allowed to keep animals. Sometimes it allows unit owners or occupiers to keep animals on condition that the manager of the building gives permission. Sometimes it sets out that no animals can be kept at all.

If you are in breach of the deed of mutual covenant, the incorporated owners of your building may apply to the Court for an injunction.

Nuisance

If a unit owner or occupier does not keep his pet well, it may cause a nuisance to neighbours. The keeping of any animal in a position or circumstances that result in material discomfort or annoyance to a neighbour is an actionable nuisance. For a general explanation of the liability of nuisance, please refer to Private nuisance >  What constitutes an actionable nuisance?

Dog bites

1. Strict liability

The owner or keeper of an animal is strictly liable, even without intention or negligence on his part, for injury or damage caused by the animal if: the species of animal is classified as dangerous; or the species of animal is classified as normally harmless, but the individual animal has a mischievous propensity known to the keeper, and damage is caused by the animal’s propensity.

Dogs have been held to be normally harmless animals for this purpose. The keeper of a normally harmless animal is liable for damage done by it only if he has actual knowledge of the animal’s propensity to cause injury or damage to human beings. That knowledge must be of the particular propensity that caused the damage which is not common to the species in general.

2. Negligence

An owner or keeper may be liable in negligence for damage caused by a tame animal not known to be dangerous if the owner or keeper knows of a mischievous propensity in his otherwise well-behaved animal (actual knowledge), or ought to have known of such a propensity (constructive knowledge).

For both actions, damages can be recovered for personal injury or injury to another animal.

B. Criminal liability

1. Statutory nuisance

Under section 12(1)(d) of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong), any animal or bird kept in such a place or  manner as to be a nuisance, or injurious or dangerous to health constitutes a statutory nuisance, and the general principles of private nuisance apply (Please refer to Statutory nuisance > What is a statutory nuisance? ).

The FEHD is responsible for handling this kind of statutory nuisance. (Please refer to Statutory nuisance > C. Remedies for more details.)

2. Noise caused by animals

Under section 5(3) of the Noise Control Ordinance ( Cap. 400 ), any person who at any time in any domestic premises or public place keeps an animal or bird that makes noise which is a source of annoyance to any person commits an offence. The maximum penalty for the offence is a fine of $10,000 ( section 5(5) of the Noise Control Ordinance ).

It has been held that the test for annoyance is whether it is such that a reasonable person would not tolerate it. In HKSAR v Chan Oi Chun , the court held that a dog barking continually for 30 minutes or more could amount to a nuisance.

3. Dogs to be kept under control

Under section 23 of the Rabies Ordinance ( Cap. 421 ), unless it is on a leash or otherwise under control, no dog may be in(a) a public place or (b) any place from which it may reasonably be expected to wander into a public place. Where a dog is found in any such circumstances, the keeper of the dog and any person who caused, suffered or permitted the dog to be in that place are each guilty of an offence and liable to a fine of $10,000.

This section applies to all dogs of all sizes. However, it is a defence for the person charged to prove that he took all reasonable measures to prevent the contravention.

Under section 7 of the Rabies Ordinance ( Cap. 421 ), an authorized officer from the Agriculture, the Fisheries and Conservation Department (AFCD) may seize and detain any dog not on a leash or otherwise under control in a public place or a place from which it may reasonably be expected to wander into a public place. Where an authorized officer is empowered to seize and detain an animal, but it is not reasonably practicable to do so, he may instead destroy it. He may also destroy a dog seized if he has reasonable grounds to believe its detention is likely to adversely affect the health of any other animal similarly detained.

Under section 5(1) of the Dogs and Cats Ordinance ( Cap. 167 ), if it appears to a magistrate on complaint that a dog is dangerous and is not kept under effective control, the magistrate may order that the said dog be either destroyed or kept under effective control.

4. Bites by animals other than dogs

Under section 24 of the Rabies Ordinance , the keeper of any animal, that has bitten a person must (a) give notice of that fact to the nearest police station without delay; and (b) detain the animal securely, in isolation from other animals, for such period as may be specified by the officer in charge of the police station.

A person who contravenes the above requirements commits an offence and is liable to a fine of $10,000.

5. Dog bites

Under section 23 of the Rabies Ordinance , where a dog that is (a) in a public place; or (b) in any place from which it may reasonably be expected to wander into a public place if it is not on a leash or otherwise under control bites a person (other than the dog’s keeper), the keeper is guilty of an offence and liable to a fine of $10,000.

It is a defence for the keeper to prove that (a) he took all reasonable measures to prevent the animal from biting; or (b) the animal was wilfully provoked by someone other than the keeper.

The keeper of the dog must also report the matter to the nearest police station and detain the dog securely in accordance with section 24 of the Rabies Ordinance . A person who contravenes the above requirements commits an offence and is liable to a fine of $10,000.

Under section 7 of the Rabies Ordinance , an authorized officer from the AFCD may seize and detain any dog that he has reasonable grounds to believe has bitten a person. Where an authorized officer is empowered to seize and detain the animal, but it is not reasonably practicable to do so, he may instead destroy it. He may also destroy a dog seized if he has reasonable grounds to believe its detention is likely to adversely affect the health of any other animal similarly detained.

Water leakage is a common type of nuisance in Hong Kong’s multi-storey buildings.

Water leakage not only causes annoyance and inconvenience to the affected owners and occupiers, but it may also cause damage to the structure of the building.

Property owners should pay attention to whether there is water leakage from or to their flat.

A. What are some common causes of water leakage?

Common causes of water leakage are:

• leakage in the drainage pipes of your flat or one above or adjacent to your flat;
• leakage in the water supply pipes of your flat or one above or adjacent to your flat;
• deteriorated waterproofing of floor slabs or bathtub seals; and
• seepage of waste water or rain water through the roof or external wall.

B. How can the source of the water leakage be identified?

Property owners are responsible for maintaining and managing their flats, including investigating water leakage problems. If water seepage/leakage is found inside a private property, the owner should first investigate the cause and, as appropriate, co-ordinate with the occupants and owners concerned for repairs.

The Joint Office of the Food and Environmental Hygiene Department (FEHD) and Buildings Department (BD) published a pamphlet entitled “ Do-it-yourself water seepage test ”, which introduces various methods to identify the source of water leakage. The owner may co-operate with the neighbour to carry out the tests referred to in the pamphlet.

If the owner fails to identify the source of water leakage, he should directly engage a building technician or licensed plumber to identify the source of the water leakage for prompt repairs.

C. How can a water leakage dispute be settled?

If the water leakage is suspected to originate from a flat above or next door, the owner should quickly approach the owner and the occupier of the suspected flat to investigate and arrange repair work to stop the leakage.

If the water leakage is suspected to originate from the common area of the building, assistance may be sought from the managers or the incorporated owners of the building, as they are responsible for the maintenance of the common parts of the building.

If necessary, the owner may, with the engagement of a building professional or legal consultant, request the responsible person to stop the water leakage nuisance in accordance with the provisions of the deed of mutual covenant, or even lodge a claim for damages and an injunction under the tort of private nuisance. (For further details, please refer to “G. What the plaintiff has to prove in a civil action for water leakage nuisance below.)

If the owner cannot resolve the dispute with his neighbour, he may lodge a complaint with the Joint Office of the FEHD and BD.

D. The FEHD/BD Joint Office

The Food and Environmental Hygiene Department (FEHD) and Buildings Department (BD) established a Joint Office in mid-2006 to handle water leakage problems in which the Government has a responsibility to intervene.

The Joint Office provides a “one-stop service” for dealing with complaints about water leakage in buildings. Its role is to enforce the relevant provisions of the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong) in abating any nuisance caused by water leakage.

If necessary, the Joint Office will refer cases to the BD or the Water Supplies Department (WSD) for follow-up action. For example, the BD will tackle the problem of building dilapidation and defective drains under the Buildings Ordinance ( Cap. 123 ), while the WSD will check if there is any wastage of water under the Waterworks Ordinance ( Cap. 102 ).

E. Procedures adopted by the FEHD/BD Joint Office for handling water leakage complaints in residential units

Upon receipt of a water leakage complaint, the Joint Office staff will contact the complainant within six working days to arrange a site inspection.

The Joint Office staff will inspect the unit concerned and survey the condition of water leakage to assess whether it constitutes a public health nuisance, a risk to the structural safety of the building, or wastage of water.

If it is established that the case may involve an offence, Joint Office staff will conduct a basic investigation into the cause of the leakage, by inspecting the pipes and sanitary fitments inside the unit and, as necessary, liaising with the occupants of the upper or adjacent units for further tests, including, for example, a colour water test, water meter flow check, reversible pressure test, moisture content monitoring test, etc.

If the owner/occupant concerned refuses to co-operate, the investigation process may be extended as the Joint Office will have to apply to the Court for a warrant to enter the flat in question.

If the source of water seepage/leakage cannot be identified through the initial investigation and tests, the Joint Office will arrange for a consultant to conduct further tests. Depending on the circumstances of the individual case, the consultant will employ more in-depth methods to find the source of water seepage/leakage, including a ponding test, a water spray test for walls, a water meter flow check, a reversible pressure test, a ponding test for roofs, a moisture content monitoring test, etc.

With the co-operation of the concerned owners/occupiers, normally the Joint Office will complete the investigation and inform the complainant of the outcome within 90 working days. If the investigation cannot be completed within 90 working days, the Joint Office will notify the complainant of the investigation progress in writing.

F. What can the FEHD/BD Joint Office do to abate water leakage nuisance?

The Joint Office is authorised to enforce the relevant provisions of the Public Health and Municipal Services Ordinance .

If the source of leakage is identified, the person concerned is issued a nuisance notice requiring abatement of the nuisance within a specified period of time, failing which the person will be subject to prosecution. Upon conviction, the person concerned is liable to a maximum fine of $10,000 and a daily fine of $200 ( section 127(3) and schedule 9 of the Public Health and Municipal Services Ordinance ).

If the case involves a risk to the structural safety of the building or water wastage, the Joint Office refers it to the BD or WSD, as appropriate, for follow-up.

The Joint Office may also apply to the Court for a Nuisance Order requiring the person concerned to abate the nuisance. Failure to comply with the order will result in prosecution. Upon conviction, the penalty is a maximum fine of $25,000 and a daily fine of $450 ( section 127(7)(a) and schedule 9 of the Public Health and Municipal Services Ordinance ).

G. What does the plaintiff have to prove in a civil action for water leakage nuisance?

In determining cases in which a plaintiff claims relief on the basis of water leakage constituting a nuisance in common law, the plaintiff must prove that (1) the water leakage originates from the defendant’s premises, and (2) the defendant has actual or constructive knowledge that the leakage of water originated from the defendant’s property.

“Knowledge” can be what the defendant actually knew (actual knowledge) or what the defendant should have known with normal and reasonable diligence (constructive knowledge).

The onus of proof remains on the plaintiff to prove, on the balance of probabilities, that the seepage of water originated from the defendant’s premises. The onus is not on the defendant to prove that the seepage of water did not originate from his premises, nor to prove that he did not create the nuisance.

The defendant needs to compensate the plaintiff for damage only after the defendant had actual or constructive knowledge of water leakage and failed to take remedial action within a reasonable time. If your neighbour delays telling you that your flat may be a source of water leakage, you are not responsible for compensating your neighbour for any losses arising before he made the complaint to you, unless you already had actual or constructive knowledge.

Air-conditioners generate condensation. The vast majority of models of air-conditioners require the installation of a dripping pan and connecting hose for the discharge of water. If the discharge facilities are not properly maintained, especially after a heavy rain or typhoon, water dripping may occur.

A. Civil liability

Water dripping from an air-conditioner which causes substantial and unreasonable interference with the use and enjoyment of a flat below constitutes a nuisance.

B. Criminal liability

The discharge of water, whether waste or otherwise, from the ventilating system (e.g. air-conditioner) in any premises in such a manner as to be a nuisance constitutes a statutory nuisance under the Public Health and Municipal Services Ordinance ( Cap. 132 of the Laws of Hong Kong).

C. Assistance

The FEHD is responsible for the handling of nuisance to environmental hygiene caused by water dripping from air-conditioners. You can make a complaint to the FEHD if you find water dripping from an air-conditioner.

Please note that water dripping from air-conditioner in public housing estates (except food premises) is handled by the Housing Department. For Rental Housing Estates owned by the Housing Society, you have to contact the management office of the concerned estate.

One common neighbourhood dispute in villages in the New Territories involves boundaries.

Land boundaries in the New Territories are sometimes unclear. Your neighbour may encroach on your land without knowing that the land belongs to you. Sometimes your neighbour may intentionally place his boundary fence on your land to “steal” your land. In this situation, you may sue your neighbour for trespass to land.

A. What is trespass to land?

Trespass to land is committed when the defendant, without permission, intentionally enters, remains on, or directly causes any physical matter to come into contact with land in the actual possession of the plaintiff.

Examples of trespass to land are:

1. setting foot on the land;
2. riding or driving over the land;
3. taking possession of the land;
4. expelling the person in possession of the land;
5. pulling down or destroying anything permanently fixed to the land;
6. parking cars on other people’s land; and
7. erecting or allowing to continue on his own land anything which invades the airspace of a neighbour, such as overhanging trees.

If the defendant intends to enter the land on which he trespassed, it is no defence that he mistakenly thought that it was his own land or that he had authority to be there .

B. Who can sue?

Trespass to land is actionable by the person who is in possession of the land.

If land is in the possession of a tenant, the tenant is the proper plaintiff to sue for trespass to land. The landlord has no right to sue for trespass.

As with nuisance, family members of the owner of the land have no right to sue for trespass to land unless they have sufficient control over the land. For example, a deserted wife who is in exclusive occupation of the home has the right to bring action against trespassers, even if she is not the owner or tenant of her home.

C. Remedies

1. Damages

If the trespass has caused the plaintiff actual damage, such as physical injury to the land causing a diminution in the value of the land, he is entitled to receive an amount sufficient to compensate him for his loss. If the defendant has made use of the plaintiff’s land, the plaintiff is entitled to receive by way of damages a sum that should reasonably be paid for that use.

2. Injunctions

The court may grant an injunction to prevent the continuance or threatened repetition of a trespass or threatened acts of trespass.

3. Recovery of possession

In the case of a trespasser who has possession of the plaintiff’s land, the plaintiff can institute an action in the court for ejectment, which is recovery of possession of the land.

Even when exposing your naked body in your own home, you may commit an indecent exposure offence if your neighbour sees your naked body through a window or door.

A person who, without lawful authority or excuse, in any public place or in view of the public, indecently exposes any part of his body is guilty of an offence and is liable on conviction to a fine of $1,000 and imprisonment for six months ( section 148 of the Crimes Ordinance ( Cap. 200 )).

The offence is one of strict liability in the sense that it is not necessary to establish that the accused intended sexual gratification, or to harass or upset anyone, provided it is proved that the accused intended to expose himself and that the act itself was indecent in the circumstances.

If you peep at or secretly film the private parts of other people, i.e. their genital or anal areas, whether bare or covered by underwear, depending on the particular circumstances of each case, you may commit the following offences:

A. Acts outraging public decency

Committing any act of a lewd, obscene or disgusting nature which outrages public decency, or is offensive or disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the values of decency, morality and good order, is an offence in common law.

It must be proved that at least two people witnessed what happened and the offence must have been committed in a place where there was a real possibility that members of the general public might witness it. This does not mean that the very spot where the act is done must itself be a public place, but it must be a place where the public are able to see what takes place. Examples are the balcony of a flat which overlooks a public street, or a private room which opens onto a public area and whose door is left open.

The maximum penalty for this offence is seven years’ imprisonment and a fine.

B. Loitering causing concern

If you loiter in the common parts of a building and your presence there, either alone or with others, causes any person reasonably to be concerned for his/her safety or well-being, you commit an offence and are liable on conviction to imprisonment for two years ( section 160(3) of the Crimes Ordinance ( Cap. 200 )).

People are said to be loitering if they are idling, hanging about or remaining in or about the vicinity of a restricted, but not necessarily defined area, without any apparent purpose or reason.

Regarding this offence, “common parts”, in relation to a building, means-

1. any entrance hall, lobby, passageway, corridor, staircase, landing, rooftop, lift or escalator;
2. any cellar, toilet, water closet, wash house, bath-house or kitchen which is in common use by the occupiers of the building; or
3. any compound, garage, car park, car port or lane.

C. Disorder in public places

Any person who peeps at or secretly films another person’s private parts in a public place may be charged with the offence of behaving in a disorderly manner in a public place whereby a breach of the peace was likely to be caused.

Any person who, in any public place, behaves in a noisy or disorderly manner, or uses, distributes or displays any writing containing, threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, commits an offence and is liable on conviction to a fine of HK$5,000 and to imprisonment for 12 months (section 17B(2) of the Public Order Ordinance (Cap. 245)).

A “public place” means any place which, at the time, members of the public or any section of the public are entitled or permitted to have access, whether by payment or not, and, in relation to a meeting, includes any place which, for the purposes of such a meeting, is a public place. Examples are public toilets, public streets, public gardens and MTR stations.

“Disorderly” refers to “unruly or offensive behavior” or “violating public order or morality”. Whether or not conduct is characterised as disorderly must be a question of fact for the trial court. Examples of disorderly conduct are photographing under the skirt of a woman, or trying to do so, or peeping at a person who is using a toilet.

A breach of the peace occurs if harm is actually done or is likely to be done to a person; or in his presence to his property; or if a person is put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance. The test is not whether an actual breach of the peace was caused, but rather whether a breach of the peace was likely to be caused, i.e. whether an average Hong Kong citizen is likely to be outraged by such conduct.

Whether a breach of the peace was likely to be caused depends on the circumstances of individual cases. However, generally speaking, taking into account the likely reaction of members of the public to a person photographing under the skirt of a woman, there is every likelihood of a breach of the peace being caused.

Perhaps you or your neighbours have installed or are considering installing closed circuit television (CCTV) at the entrance to your flat to monitor the doorway for security reasons. Keep in mind that the operation of a CCTV may contravene the Personal Data (Privacy) Ordinance (Cap. 486) if the CCTV captures excessive images of individuals or information relating to individuals.

The Office of the Privacy Commissioner for Personal Data has issued a guidance note on CCTV surveillance practices called “Guidance on CCTV Surveillance and Use of Drones” to advise whether CCTV should be used and how to use it responsibly, and to help the public to understand some of the requirements under the Ordinance relating to the collection and proper handling of the personal data. Please refer to the guidance note for further information on this issue.

1. What is nuisance?

Nuisance can be understood as any on-going or recurrent activity or state of affairs that causes a substantial and unreasonable interference with people’s property, or with their use or enjoyment of that property. Common types of nuisance include noise, smoke, fumes and smells, dog barks and water leakage.

If residents cause a nuisance to their neighbours, the residents are civilly liable for nuisance and can have civil proceedings brought against them under the tort of private nuisance. If your neighbour causes a statutory nuisance, you may also lodge a complaint with the relevant government department.

For more details about nuisance, please visit Daily Lives Legal Issues > Disputes with neighbours > An overview of nuisance .

2. Who can sue for nuisance, and who can be sued?

Owners or occupiers with the right to exclusive possession, such as tenants, are entitled to sue for nuisance. The right to exclusive possession means the right to prevent others from using or invading the property without your consent. Members of the owner’s or occupier’s family living in the affected flat who are mere licensees are not entitled to sue.

On the other hand, the person who creates a nuisance is primarily liable. If an owner or occupier does not create the nuisance, but knows about it, or has a way of knowing about it or that it is likely to happen in his flat and allows the nuisance to continue, he is liable.

For more details, please refer to Daily Lives Legal Issues > Disputes with neighbours > Private nuisance .

3. What are the possible remedies for nuisance?

A person affected by a nuisance may commence legal proceedings to seek damages for the actual loss suffered. Damages usually include repair costs, alternative accommodation costs, loss of property value, and general damages for annoyance, inconvenience and discomfort.

You may also seek an injunction to restrain another person from continuing to create the nuisance.

If you suffer loss or damage arising from a nuisance caused by your neighbour, you may sue the person in the Small Claims Tribunal if the amount claimed does not exceed $50,000.

If the nuisance continues, the Small Claims Tribunal may not be the proper forum for the dispute, as it has no power to grant an injunction to stop your neighbour from causing further nuisance. In that case, depending on the amount of the claim, the District Court or the Court of First Instance may be a more appropriate venue.

For more information about possible remedies for nuisance and taking civil action, please refer to

For more details, please refer to Daily Lives Legal Issues > Disputes with neighbours > Private nuisance > D. Remedies .

4. Are there any regulations for noise arising from domestic renovation works?

Yes. No powered mechanical equipment can be used to carry out renovation works from 7 p.m. to 7 a.m. on any days or any time on a general holiday, unless a valid construction noise permit has been issued by the Noise Control Authority.

However, if an owner or tenant of domestic premises carries out small works on his own with a portable mechanical device, this is exempted. The exemption however does not allow the making of any noise which is a source of annoyance to any other person between the hours of 11 p.m. and 7 a.m., and at any time on a general holiday.

For more details about noise nuisance, please go to Daily Lives Legal Issues > Disputes with neighbours > Common types of nuisance: Noise .

5. I suspect my neighbour’s flat has water leakage problem which affects my flat. What should I do?

The Joint Office of the Food and Environmental Hygiene Department (FEHD) and Buildings Department (BD) has published a pamphlet entitled “Do-it-yourself water seepage test” , which introduces various methods to identify the source of water leakage. The owner should co-operate with the neighbour to carry out the tests referred to in the pamphlet.

If the water leakage is suspected to originate from a flat above or next door, the owner should quickly approach the owner and the occupier of the suspected flat to investigate and arrange repair work to stop the leakage.

If the water leakage is suspected to originate from the common area of the building, assistance may be sought from the managers or the incorporated owners of the building, as they are responsible for the maintenance of the common parts of the building.

If the owner cannot resolve the dispute with his neighbour, he may lodge a complaint with the Joint Office of the FEHD and BD.

For more details, please go to Daily Lives Legal Issues > Disputes with neighbours > Common types of nuisance: Water leakage .