Forfeiture: rent / mesne profits where tenant has already given up possession when the landlord applies to court

In Wong Chun Yu v Kwong Siu Yin ([2004] HKEC 115 (LT) a tenant was in arrears with the rent. She claimed that she had given up possession in January 1991 (although there was no evidence that the landlord had accepted a surrender). In March 1991, the landlord applied to the court for possession because of the tenant’s default. The landlord sought rent / mesne profits for the period up to August 1991 (when he formally took back possession pursuant to a court order). In these proceedings, the tenant sought (among other things) leave to defend the landlord’s claim. There was some doubt as to whether she had indeed vacated the property by January 1991. The Tribunal held that if she had done so then she would have no liability to the landlord for rent or mesne profits for the period after the landlord applied to the court. The tenant was given leave to defend on this basis.

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