The obligation to repair/maintain the leased property largely depends on what is specified in the lease/ tenancy agreement. To avoid unnecessary disputes, parties entering into tenancy agreements should clearly specify the obligations for repair and maintenance.
Drafting the tenancy agreement
A commonly adopted approach under tenancy agreements 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, this may still be problematic because the words internal, external, structural and non-structural can have different interpretations under different circumstances. For example, If there is a plumbing issue, the landlord may say that it is the tenant’s fault, as they have failed to clear the toilet’s drain and to maintain the internal structure. The tenant may argue otherwise, that the plumbing is old and is a structural problem with the building. This may lead to a dispute on who is to fix the costly plumbing problem.
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 detail.
Tenant’s obligations
The lease imposes an implied obligation on the tenant to use the property in a tenant-like manner, so a tenant is expected to use the property in a reasonable and proper manner and not to destroy or damage the property.
Although the tenant has no obligation to carry out repair and maintenance works, a lease will often include a clause for a tenant to carry out such works to a limited extent. This is often due to common practice and on the parties’ unequal bargaining abilities. During the term of the tenancy, the tenant will be occupying and dealing with the property on an ongoing basis, so it is probably normal for the tenant to fix defects and carry out repair works which are necessary.
It is also common that the tenant’s obligations for repair and maintenance are limited by the phrase “fair wear and tear excepted”. This excuses the tenant from being responsible for damages arising from the passing of time and the ordinary and reasonable use of the property.
In the lease agreement, the tenant will usually be required to pay management charges, which are used for the maintenance and repair of communal areas. How much a tenant has to pay depends on the management company of the building, and the size of the premises they occupy.
Landlord’s obligations
Most leases will have a clause that expressly provides for the landlord’s right to enter, inspect and/or carry out repairs to the property, but this does not equate to duty for the landlord to repair the property. The landlord will only exercise such a right in very serious circumstances(e.g. serious water leakage within the property), by giving prior notice/appointment with the tenant.
Despite the parties’ obligations as agreed, it is common in Hong Kong that the landlord will volunteer to carry out repairs and maintenance works. This is done out of goodwill to preserve the relationship with the tenant, and also because tenancy terms in Hong Kong are quite short. The landlords may agree to incur expenses to remedy any defects in the property (e.g. patching up of damaged walls.).
Generally, the landlord’s obligations for structural repairs and maintenance should only arise upon notice of the structural defects, as the landlord is not in occupation of the property and cannot be expected to remedy defects or problems unless they are aware of it.
The landlord may be under other statutory obligations to maintain the property as required by Government departments:-
- The Buildings Ordinance confers power on the Building Authority to declare a building dangerous and to compel an owner to remedy any structural defects.
- The Public Health and Municipal Services Ordinance confers power on specified public officers to require the owner or occupier of a property to clean the property or take steps to deal with nuisances which are injurious to health (e.g. water seepage which from the property itself)
There are other schemes that the Government has imposed on the safety and maintenance of properties.
- Mandatory Building Inspection Scheme requires selected owners of buildings that are 30 years old to appoint a Registered Inspector to carry out certain prescribed inspections. If the building requires repair works, the collective owners of the building must appoint a Registered Contractor to carry out the prescribed repair works.
- Mandatory Window Inspection Scheme requires selected owners of buildings at least 10 years old to appoint a Qualified person to conduct window inspections and if needed for repair, the building.
A landlord should comply with the demands or orders issued by government authorities, otherwise, they may be liable to penalties or other adverse consequences (e.g. re-entry by the Government). A tenant should inform the landlord if they receive such orders, so the landlord could take the necessary action as soon as possible.
The Incorporated Owners of a building (or its management company) may also demand the landlord (or the tenant) to carry out appropriate steps to terminate any nuisance or other damage (e.g. drainage blockage) caused to other occupants of the building.
Key Takeaways
- A well-drafted tenancy agreement will specifically state the repair/ maintenance obligations of both the landlord and the tenant.
- Usually, the landlord is responsible for external and structural repairs and maintenance, and the tenant is responsible for internal and non-structural ones