LDPD 152/2024

[2024] HKLdT 25

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 152 OF 2024

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BETWEEN

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J U D G M E N T

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Background

1. This is a complaint by the applicant, as landlord, against the breach of the user clause in the tenancy agreement (“the Tenancy Agreement”) by the respondents, as tenants of Flat D on 9 ^th Floor, Block A, Comfort Gardens, No 60 King’s Road, Hong Kong (“the Premises”).

2. By a tenancy agreement dated 24 August 2023, the applicant let the Premises to the respondents for a period from 1 September 2023 to 31 August 2026. The monthly rent payable by the respondents as reserved in the Tenancy Agreement is $30,000 inclusive of management fee, government rent and rates.

3. Notwithstanding this, there is a break clause in the Tenancy Agreement which provides that either party to the Tenancy Agreement shall be entitled to terminate this agreement earlier than as therein provided by serving not less than 2 months written notice or by paying 2 months’ rent in lieu to the other party provided that the said written notice shall not be served before the expiration of the 24 ^th month of the term of the Tenancy Agreement.

4. Paragraph 1 in Schedule II to the Tenancy Agreement specifies that “The Tenant shall not use or permit to be used the Premises or any part thereof for any purpose other than for residential purpose only.”

5. On 1 February 2024, the applicant applied to the Tribunal for recovery of possession of the Premises on the ground that the respondent has breached the above clause. More particularly, the applicant alleged that the respondents had on 24 August 2023 entered into a lease agreement with somebody for the use of the Premises for “personal occupancy”. The applicant even stated that she had received complaints from parents of students living at the Premises that the respondents had made use of the Premises to run a business for accommodating multiple students from China.

6. The applicant also stated in the Notice of Application that her attempt to address this matter to the respondents was met with resistance. As a result, on 16 January 2024, the applicant drafted a “Termination by notice” to the respondents intending to determine the Tenancy Agreement on 31 January 2024.

7. In support of her allegation, the applicant had attached two“托管合約”(either of which is hereinafter referred to as a “child caring agreements”) whereby the 2 ^nd respondent agreed to accommodate each of the two children at the Premises for a period between 1 September 2023 to 31 July 2024 at a rent of $9,500 per month. Clause 7 of the child caring agreements provides for accommodation of a room with a bed space, a desk and chair, two meals per day during school days from Monday to Friday or otherwise three meals per day, c