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A tenancy agreement will contain what the landlord and the tenant have agreed to be their rights and duties. However, in common law, certain rights and duties will be implied in a tenancy even if the tenancy agreement does not expressly provide for the same. The general legal principle is that such implied covenants will automatically apply to a tenancy, unless there are express and contrary provisions in the tenancy agreement.
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Implied covenants of the landlord |
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| a. |
Tenant to have quiet enjoyment of the property
The purpose of the covenant is twofold: (i) to protect the tenant against eviction or dispossession from the property and (ii) to protect the tenant in occupation against interference with his normal use and enjoyment of the property. The landlord impliedly covenants with the tenant that the tenant's enjoyment and possession of the property will not be disturbed by any act of the landlord, his agents or servants.
To enjoy quiet enjoyment, the tenant must pay rent punctually and perform and observe his covenants in the tenancy agreement. A landlord does not have to observe this implied covenant if the tenant fails to pay rent or is in breach of other terms of the tenancy in which case he may take action to evict the tenant and claim damages for the tenant's breach.
Generally speaking, if a landlord disconnects the supply of water, electricity or gas to the property whilst the tenant is still in possession, such act will constitute a breach of this implied covenant.
Case
Yeung Wah James v. Alfa Sea Ltd. [1993] 1 HKC 440 – A tenant occupied a third-floor flat in a block owned by the landlord. The landlord failed to persuade the tenant to surrender his tenancy. One day, the tenant, having returned to Hong Kong from overseas, found himself locked out of the premises. Further, the landlord had, in the tenant's absence and without his consent, broken into the flat to carry out renovation work. The High Court held that the landlord was in patent breach of his covenant for quiet enjoyment and awarded $50,000 as general damages and $50,000 as exemplary damages to the tenant.
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| b. |
Fitness for habitation
There is an implied covenant on the part of the landlord to ensure that the property is at the beginning of the tenancy reasonably fit for human habitation where the property is let with furniture.
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| c. |
Landlord not to derogate from his grant
The landlord impliedly covenants not to directly or indirectly interfere with or affect the purpose for which the property was let to the tenant and his reasonable enjoyment thereof.
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2. |
Implied covenants of the tenant |
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| a. |
To pay rent on the due date
Rent is usually payable in advance on a specified date of each month. Unless expressly provided to the contrary, rent is outstanding if not paid before midnight on the due date for payment.
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| b. |
To repair and maintain the property's interior
This covers all the internal physical condition of the property and its fixtures, furniture and electrical appliances. This does not, however, cover fair wear and tear, and structural and latent defects.
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| c. |
To pay rates
If the landlord has not agreed to pay the rates, the implied obligation is on the tenant to pay the rates since rates are an occupier's tax and the tenant, being an occupier, is therefore liable. However, in practice, there is usually an express agreement between the landlord and the tenant as to who is going to pay the rates.
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| d. |
To use the property in a "tenant-like" manner
A tenant has the implied obligation to use property in a reasonable and proper manner and to take care of the property as a reasonable tenant will do in his circumstances.
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| e. |
Not to commit waste |
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| i. |
It is implied under common law that a tenant shall not commit waste. "Waste" consists of any act or omission which causes a lasting alteration to the nature of the property to the prejudice of the landlord or such act as may impair title to the property. |
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| ii. |
Examples of waste include removal of wainscots (skirting boards) or floors, permitting walls to decay and converting residential premises into commercial or industrial premises and vice versa. |
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The obligation not to commit waste is an obligation in tort, independent of contract. |
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| iv. |
The measure of damages is the injury to the landlord, by considering the depreciation in value of the property. |
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| f. |
To yield up vacant possession of the property upon expiry of the tenancy
Besides yielding up vacant possession of the property, the tenant also impliedly covenants to deliver up the property in a good, clean and tenantable condition (fair wear and tear accepted).
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Common provisions |
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The following are provisions regarding a tenant's obligations commonly found in a tenancy agreement:
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To pay rent on the day and in the manner specified in the tenancy agreement. |
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| b. |
To maintain and repair the interior of the property, save and except for structural and latent defects and fair wear and tear. |
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| c. |
To be liable for loss or injury caused to any person through the defective condition of any part of the interior of the property and to indemnify the landlord against all claims and proceedings made against the landlord in respect of such loss or injury and all incidental costs and expenses. |
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To permit the landlord and/or his authorised agent with or without workmen at all reasonable times to enter and view the state of repair of the property, to take inventories of the fixtures and fittings, to carry out any work or repair. |
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Upon notice from the landlord, to carry out repair work which is the tenant's responsibility with all possible dispatch and without any delay. |
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| f. |
To perform and observe the terms contained in the Deed of Mutual Covenant relating to the property and to indemnify the landlord against any breach thereof. |
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| g. |
To pay all charges for water, electricity and fuel charges in respect of the property. |
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| h. |
To take all precautions to protect the interior of the property against damage by storm or typhoon or flooding. |
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| i. |
To use the property for the purpose stipulated in the tenancy agreement only. |
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| j. |
Not to erect, install or alter any fixture or partitioning without the landlord's prior written consent. |
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| k. |
Not to produce any noise or sound so as to be audible outside the property, which becomes a nuisance or annoyance to the landlord or other occupiers of the same building. |
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| l. |
Not to do anything whereby any policy of insurance on the property against loss or damage may be rendered void or voidable or whereby the premium may be increased. |
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| m. |
Not to keep in the property any arms, ammunition or other explosive or combustible or hazardous goods without a licence from the relevant authority. |
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| n. |
Not to use the property for any illegal or immoral purpose. |
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| o. |
Not to obstruct or cause obstruction to any common area or facility in the building. |
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| p. |
Not to assign, sublet or part with possession of the property or any part thereof irrespective of whether any consideration is given unless with the landlord's prior written consent. |
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| q. |
During a certain period of time before the termination of the tenancy (usually three months) to allow the landlord within reasonable time to show the property to prospective tenants or purchasers. |
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| r. |
At the expiration or sooner determination of the tenancy to deliver up to the landlord vacant possession of the property in good, clean and tenantable condition. |
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