Posted by
Gucci
15 yrs ago
I signed a TA in March 09 n besides the usual clause stating the landlord is responsible for pipes, drains, structure etc., I also added another clause after the list of electricals like aircons, kitchen hood etc., that the landlord must fix/replace them if notified in writing within the first month.
Moved in and realised the bathroom (not commode) has a massive drainage problem, patio divider from neighbour is actually falling apart dangerously but was camouflaged well, kitchen hood noisy but totally ineffective etc. etc.
Despite written notification in the first month by email copied to the agent, landlord did nothing, not even an appointment. On advice of friends, I stupidly withheld rent, I was taken to the Lands Tribunal where I thought the judge would solve both sides of the issue, but nada, ordered me to pay up with not even a warning to the landlords despite it being six months now without even a visit or any repairs. Didn't even award me the costs of repairs carried out by me in the third month after written notification to them.
Judge said only the payment of rent clause of the TA is within the jurisdiction of the Lands Tribunal ...??? What are my options to claim some form of relief for being forced to live with these problems? I have been told that the Small Claims Tribunal doesn't like to touch cases dealt with by the LT ... ? Pleeeeeeeez advise soon ...
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Gucci
15 yrs ago
@walkup2: thanks n will keep it in mind ...
@JamesWan/LGMV: time frame depends on how fast the landlord files a case with the LT, in my case it's now 3.5 months, plenty of time to use up my deposit, cut n run which I didn't, to answer LGMV's question about using it as an excuse to break the contract. The required several times a day shower in this heat worrying all the time that over 2 minutes is going to overflow into the flat is not a small problem, neither is the flooding of a patio into one's bedroom and losing thousands of dollars worth of designer clothes stored under the bed ... I could go on ... I understand LGMV is a landlord from other forums, tho try not to paint everyone with the same brush. A patio divider is the wall that divides a large patio into two private areas, one for my neighbour and one for me. My rent is of no consequence tho I am now aware that I am paying well above anyone else in this building, hence my surprise at the non-performance of contractual repairs by the landlord ...
FOR THOSE INTERESTED: Since the landlord claimed the lease was effectively terminated and demanded the flat back on the basis of my non-payment of rent, I am not required to pay the remaining rent for the remainder of the fixed period, since I did not request to break the lease ...
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Gucci
15 yrs ago
@JamesWan: I'm not worried about being considered a repeat offender coz I believed that the judge did understand where I was coming from n that I was not insincere, but he was just too lazy to deal with the landlord's responsibilities so I don't think it's a big deal as he understood and said so, that I was simply reacting to what I believed was an injustice, tho I went about it the wrong way, that is, witholding rent. So he basically headed home early by cutting short the trial saying that the payment of rent clause is "independent" of the other clauses in the TA, which surprised me since no one agrees to pay rent unconditionally, hence the title of this thread ...
My hearing for Leave to Appeal his decision was presided over by the same (???) judge and big surprise, he denied my request for an Appeal ...
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Gucci
15 yrs ago
@LGMV: you're welcome n I simply reacted to yr question about whether I was using the problems as an excuse to break the contract when I had been trying so hard to work it out even tho the judge gave me an out in ruling that non-payment would result in termination of the contract with no liability on my side. Can't help the hot blood that runs through my veins and I may die of a stroke tho having lived my life passionately :-)
What's a remit? Is it jurisdiction? I had been hoping someone would let me know if the entire TA is within the jurisdiction of the LT or just the payment of rent as the judge kept harping on about, while ignoring the clauses clearly detailing the landlord's responsibilities ...
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Instead of paying for a lawyer try calling the Ratings & Valuations Dept directly. They have a questions hotline which helped me out with free advice some years back and it worked out fine. Even if you don't get anywhere with them you'll be no worse off for the effort.
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Gucci
15 yrs ago
Thanks Ted the Helpful American ...
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hi gucci,
i am no lawyer, but i have some experience with tenancy agreements.
the lands tribunal will always say you need to pay the rent. withholding rent is the single worst thing a tenant can do to shoot themselves in the foot. i know this isnt very useful to you after the fact though.
the difference in the law is between a condition and a covenant.
the payment of rent is a condition, which means if you fail to pay rent the contract can be effectively terminated and your deposit forfeit.
a covenant is what you put into the contract, about the landlord obligated to fulfill a certain function (fixing pipes or whatever). just because the landlord violates the covenant, doesnt mean the contractual obligations to pay rent are void. so in this sense the lands tribunal judge is correct, they are independent of each other.
the proper course of action would have been to continue paying rent, but file the case yourself for a violation of a covenant of the contract.
also, i find it a bit strange regarding your comments about "using up your deposit". according to law, if you fail to pay rent for 15 days, the landlord has the right to evict you and change the locks. sometimes landlords will let you stay without paying for the duration of the deposit, but technically its against the law, and if a problem arises, you will be on the wrong side of the law.
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Gucci
15 yrs ago
Hi Liebster,
Thanks, that was really helpful n I don't feel like strangling the judge anymore, well ... :-) ... how n where do I go about "file the case yourself for a violation of a covenant of the contract" ...
The landlords are a local couple who intended to sell the flat but only rented it to me coz the economic crisis depressed property prices ... which is why they r not interested in spending a cent on the flat (as recently advised by my very helpful agent). I hv now been given to understand, after I finally lost patience n kicked up a fuss as detailed above, that they would love to get rid of me n I can use up my deposit and leave as the agent, who handled a previous Agreement for me so we hv a good relationship, assured the landlords I would hand back the flat in fair condition ... tho I do get yr point about being on the wrong side of the law technically, also drilled into me by the judge :-(
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sounds like an amicable solution
but once again confirms the uselessness of agents!!!!!!!
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The uselessness of agents, cookie?
Gucci seems to feel that their agent was "very helpful." It seems that Gucci's agent acted rather well as a mediator, and managed to negotiate with the landlords on their behalf. I say well done to Gucci's agent!
I've always felt that people who believe that agents are useless are not even capable of enjoying a good relationship with an agent.
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hi gucci,
its just my opinion, but if the landlord is allowing you to leave, then i suggest you take it. its the easiest and cost effective solution to your problem.
take the following with a grain of salt, as i said before i am no lawyer, this is just based on my own experiences:
As you have already with held rent, its not a good use of time to raise a separate complaint to the lands tribunal/small claims court. but according to the law, if a covenant is broken, the landlord is liable for all damages caused as a result of the breaking of the convenant. so if your clothes or whatever gets ruined, they will be liable to reimburse you.
whenever you submit anything to the lands tribunal, you MUST be completely above reproach. otherwise it will turn into a situation in which both parties are in the wrong, and the judge will default to the more sacrosanct conditions, first and foremost of which is the payment of rent on time. this is why hong kong law is considered to favour landlords. when doubt arises, normally the law sides with the landlord.
with the convenants, they are mostly non standard, which means the tenant/landlord added it in on their own. it really comes down to the language used. there should be very clear language describing what happens if the convenant is not fulfilled. its riskier to say "the landlord agrees to fix the pipes with one months notice" instead of "the landlord agrees to fix the pipes with one months notice. if the landlord fails to do so, he will be liable for all damages caused as a result".
even though its normal practice to award damages in such a case even without the last part of the clause, putting the clear language in the contract makes it very easy for the judge. they know that the landlord willingly and knowingly entered the agreement. If and when you wish to lodge a case, i suggest you seek legal advice. A lawyer can walk you through it the first time.
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brocko, yes i agree that the agent did negotiate an amicable solution in the end, BUT
"The landlords are a local couple who intended to sell the flat but only rented it to me coz the economic crisis depressed property prices ... which is why they r not interested in spending a cent on the flat (as recently advised by my very helpful agent)."
This information above and the implications from it (i.e. that they are unlikely to spend any money on the flat regardless of what the contract says) should have been provided upfront. A proper agent understands the intentions of the landlord and clarifies that to the seller, in my view.
That would have avoided complications that need sorting out later on.
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I'm sorry cookie, but do you really think that a landlord (any landlord) is going to disclose to their agent that they have no intentions of honouring the terms and conditions of a tenancy agreement? These facts aren't likely to be shared until after the fact.
In fact, I've had a lot more tenants dishonour agreements than landlords, and they certainly didn't let on beforehand.
The best you can hope for is that anyone entering into an agreement actually intends to stick to it. If it turns out they won't, then you've just got to try and work it out.
Note: A Hong Kong tenancy agreement can be used as toilet paper, but be warned, it's going to be rough!
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brocko, i agree that sometimes you have to trust that the agreement will be honored. but in this case, knowing the intention of the landlord (which the agent should certainly know) would give a strong indication whether they will really honor the agreement or not.
i would not be happy if my agent would not disclose such a fact (or at least make an effort to find out) when i do my assessment whether the landlord will honor the agreement or not.
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Cookie, people rent out flats they would prefer to sell all the time. This hardly indicates that they're going to be trouble.
The effort was made to keep both parties protected in this instance. This is precisely the reason why tenancy agreements exist to begin with.
Further note: If your tenancy agreement takes the form of a simple handshake, then you also can use your copy of the agreement as toilet paper. However, in the interests of your personal hygiene, this is not advisable.
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Gucci
15 yrs ago
Hi Brocko, r u an agent as u said above that u've had alot more tenants dishonour agreements than landlords? If so, from yr experience would u know if a LT judge has jurisdiction to rule on covenants as he did on the condition of rent (as discussed above by a very helpful Liebster)? Still wondering why he didn't just settle the entire matter there n then.
Find it a bit strange/tiresome to have a single clause of the TA covered at the Lands Tribunal (which should be renamed Landlord's Tribunal) and the rest at another Tribunal.
I intend to push for damages for my hefty loss of designer clothes caused by the landlords' negligence in not fixing the patio drainage problem despite a written notice. Not too optimistic tho given my experience with the judge at the LT who was soooo one-sided in the landlords' favour ...
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Lloyd what does Gucci's age have to do with anything? Tort laws in the States have existed well prior to the OJ Simpson trial. Whether or not the clothes were hung up or insurance was taken out, or whether or not a tenant stopped paying rent, should have no bearing in a small claims court if there is a mechanism to claim damages based on negligence or accident. If there is no such mechanism in HK that's another story.
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Hi Gucci. Yes I am an agent, and yes I have had a lot more tenants default on their agreements than Landlords. Just look at the thread topics on the Property Advice page... So many people asking how to get out of tenancy agreements early, and so many of them also seem to expect their deposit back!... (another issue for another time).
A lot of the regular posters here love to suggest ceasing rent payments in lieu of repairs on the property. Well, I'm sorry if it upsets the regulars, but it's just bad advice (as you've already found). As far as the LT is concerned, you were the first to break the terms of the tenancy agreement. Trying to get a ruling in your favour from here on in is going to be an absolute bitch!
Also sorry Gucci, you're not likely to get anything for the damage to your clothes and property. The landlord is responsible for the upkeep of their property - not yours. I've not heard of anyone getting a cent for damage to personal property.
Never trust legal advice you don't have to pay for. As helpful as some of the advice posted above may be, none of it appears to be from lawyers (check your personal messages for invoices).
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Perhaps so but level of maturity should also have no impact, as justice is blind (or at least we'd like to think so). Nor does his/her relative luck at getting out of a rental agreement have any bearing to a damages claim. I'm not saying he/she may not be a bona fide jerk, but your reply read - to me at least - as if he/she wouldn't have a case for those reasons. My only worry is that this might discourage someone else who might have been harmed and wants to pursue options for recovery.
And agree... the "sue everybody" mentality of the US is long overdue for change
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hi brocko,
just to clarify. if there is a specific provision in the tenancy contract about the drain, and the landlord fails to correct it, he is in breach of his contract. you absolutely can get damages from that (i have done so before).
a lot of it has to do whether the landlord is at fault. if a pipe suddenly bursts without warning, then its less likely a tenant can claim damages. but if the tenant has been complaining to the landlord repeatedly, and been ignored, the landlord can be viewed to violate one of the implied conditions of the contract.
none of this is relevant to the original posters situation, as he is at fault and wont be able to claim anything.
there are many instances where the landlord's/owner's responsibility extends beyond the property of his own dwelling.
for example, if a pipe bursts in your apartment, and leaks down to the apartment below, you can be liable for any damage of the apartment below.
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Gucci
15 yrs ago
@Brocko: Thanks for the reality check, will keep it in mind n post how the claim goes at the Small Claims Tribunal on this thread, for the benefit of anyone else who may b in the same position.
In retrospect, I was so p'd off that the landlords were not held accountable for the contractual repairs at the LT, that I didn't realize (until I started this thread n heard some very helpful opinions), the LT judge wasn't too bad as he simply told me to pay up the o/s balance n the landlords' court expenses if I wanted to continue with the same contract, failing which the landlords could hv back their property w/o any liability for the remaining fixed term rent on either side. I'm sure this won't b so easy for everyone who did what I did prob bcoz he understood my motives as being defensive n didn't think I was a 'jerk' (+ I'm a cutie :-)
@beerboy: yes, been burned before by a landlord who gave me a bad check for my deposit ... didn't have time to go to court to recover it n it's prob way out of time by now ... it's in a box somewhere :-)
@LGMV: u r kinda rough n u do make alot of assumptions about people u don't know e.g. above u rudely asked if I was using the problems to get out of the contract, when, if u'd read my posts carefully BEFORE u jumped to that conclusion, u would hv understood that DESPITE the judge giving me an out, I DID pay up to continue the contract as I hate moving n now want a break to calm down n party! Your take on my so-called immaturity also comes out of thin air as it is very common to hear old folks call useless documents toilet paper ... whatever. You also ask about personal/other info that has no relevance to yr point as Ted correctly pointed out. Yr helpful advice is appreciated, but try to draw the line there n hold yr curiosity n baseless assumptions in check.
@Ted: Thanks for tempering LGMV's somewhat -ve perspective ... will post how it goes for the benefit of those interested.
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Gucci
15 yrs ago
Hi Liebster, u say above "... even though its normal practice to award damages in such a case even without the last part of the clause ... " do u know s'one who went through this in HK?
Editing/adding this as I have just seen yr post above to Brocko that u went thro a similar experience ...
Will definitely save the last part of the clause to add to my next contract ... thanks! I did add this to my email notification to the landlords tho which was copied to the agent and acknowldged by the landlords ... who never denied their responsibilities but simply gave a string of excuses over the last few months for not being able to inspect the flat n its problems, n even ignored the agent's offer to oversee the repairs in their absence (when they supposedly went on a sudden month-long overseas holiday).
Why do u say that the original poster (myself) is at fault for the flooded patio (caused by rain not heavy enough to elicit any rainstorm warning) which overflowed into the bedroom destroying some pricey clothes? Tx
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Gucci
15 yrs ago
Re LGMV's unfounded presumption above that I threw a tantrum about a wobbly fence (which was not the description I gave of the patio divider n which he has never seen) to get out of my contract, which I didn't ... had the Buildings Dept. over on Tue who certified the concrete n metal structure as illegal n dangerous, n will b sending a warning letter to landlords on both sides to fix it. Not sure how long it will take as I'm sure BD has bigger things on its plate, but it's a start n I look forward to many bbqs/parties soon :-)
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Gucci
15 yrs ago
@LGMV: Pls hold yr breath while u r wondering n will get back to u on that asap :-)
Presumptions r by definition before the fact, so based on the few facts available, one wonders just how much of yr own standards u project onto me by name-calling, 'emotional,' 'immature,' 'tantrums' n questioning my integrity etc. I am as guilty as u of having presumptions but I don't air the more negative baseless ones to individuals who don't deserve them at public forums, coz that would reflect more on me than on that individual. Guess u just try that on 20-sth Americans.
Yes, this is a public forum, but let's try to b mature individuals n keep our personal frustrations to ourselves while sharing advice n experiences (good/frustrating/bad) about TAs on this thread without resorting to unnecessary personal negative comments that are time-wasting for all, both to read n reply to. I'm now heading out to start a great weekend, hope u hv one too!
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I'm guessing Gucci is a female, late 20's, locally raised but overseas educated. Too many abbrieviations and most 20 year old Americans can't spell worth crap... Gucci does not seem to have that problem. Also American's don't say aircon or commode.
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Wellcome to Hong Kong's law unto itself......... We also have the landlord from "HELL", but got smarter on the second contract (which was in our favour, and was signed in the middle of the financial crisis)........so there is a "god" after all. Once bitten twice shy. The contract is now on our terms.
One thing I cannot understand is how they get away with it!!!!! And the law supports it, and thats even scarier!!!!! Good luck with your next lease, bet you also will be a more informed Tennant.
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Gucci
15 yrs ago
@aussiexpat: thanks, good luck to u too n hope yr contract never gets tested at HK's pro-landlord courts ...
@Ted: good effort tho flawed analysis n conclusiion ... except for the female bit, which was dead easy coz I said I am a cutie n I don't know any guys who would call themselves a cutie or Gucci :-)
abbreviations: guess I text too much
spellings: suppose I should say 'thanks' for the back-handed compliment n agree many Americans can't spell a crap irrespective of age ... btw, it should b "Americans" not "American's" ... make that spelling n grammar :-)))
use of 'aircon' n 'commode': when in Rome ...
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