Tenant not paying carpark rental

Hi all,


My tenant has not paid the carpark rental fee and is not reacheable by all means. He has been late for every month and now just disappear but the car still there. We asked the management and they said he has not taken his car for some time now.


Can we tow away the car? Any liability here? Thanks.

First of all, please read the tenancy agreement to ascertain whether there is any relevant provision allowing you to forfeit the tenancy (i.e. terminate the tenancy and re-enter the property) and tow the car away under the present circumstances.


Assuming that there is no such clause, you might consider an action under the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) (“LTCO”) since you have a tenancy agreement and the tenant disappears, for he no longer pays rents. Pursuant to s126 of the LTCO, there shall be implied in every tenancy a covenant to pay the rent on the due date and a condition for forfeiture for non-payment within 15 days of the due day. Therefore, you are entitled to exercise your right of forfeiture.


You will need to file your claim at the Lands Tribunal or the Higher Courts depending on the amount of the outstanding rent. If the judgment is in your favour, you will be able to apply for a Writ of Possession and the court bailiff will recover the possession of the property on your behalf after serving the notice to quit to the tenant. He will seize the car and any other goods and chattels on the premises.


You also have the right to apply for distress under s81 of the LTCO to recover the rent in arrears. Distress refers to the seizure, detention and sale of chattels found in the rented property to satisfy the rent in arrears. If a warrant of distress is issued, the bailiff will seize the car and sell it to satisfy the rent in arrears.


Should you remove the car on your own, you are committing the tort of trespass to chattels. Trespass to chattels is defined as intentionally interfering with another person’s lawful possession of a chattel. The interference can be any dispossession of the chattel by taking it, destroying it or barring the owner’s access to it, etc.


In addition, this might amount to contravention of s119V(1) and (2) of the LTCO for depriving a tenant of occupation of the premises and interfering with the peace of the tenants which are punishable both by a fine and a term of imprisonment, unless you are able to prove that you have reasonable grounds to do so (s119V(3)). The grounds are not defined and it is in the discretion of the Court to decide what constitutes reasonable grounds.


Weir & Associates

Solicitors & Notaries

16th Floor Tak Shing House

Theatre Lane

20 Des Voeux Road Central

Central

Hong Kong

Tel : 2526-1767

Fax : 2868-3568

email : weirlaw@hongkonglaw.com

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