Archive for the ‘Remedies’ Category

Goods available for distress

April 21, 2011

A bailiff can (with certain exceptions) levy distress on goods in the apparent possession of the tenant whether or not the tenant owns them.

In Xipho Development Co Ltd v CHM Holdings Ltd  ([1997] HKLRD 36, CA) the tenant was in arrears with the rent. A bailiff went to the property to execute a warrant of distress and seized goods that he found there. A third party then sought to prevent the sale of the property claiming to be the owner of them. The claim failed. The landlord was entitled to sell any goods found at the property that were in the apparent possession of the tenant (see Landlord and Tenant (Consolidation) Ordinance (Cap 7), s.87) with the exceptions found in Landlord and Tenant (Consolidation) Ordinance (Cap 7), s.88).

Contractual licensee can bring possession proceedings

February 7, 2011

In England, a contractual licensee (even if not in possession) can bring possession proceedings if that is necessary to protect the rights conferred by the agreement.

In Manchester Airport plc v Dutton ([2000] QB 133, CA (Eng)) Manchester Airport had been granted a licence to enter woodland adjoining the runway to lop and fell trees. Environmental protesters had occupied the woodland just before the licence was granted. Once the licence had been granted, the airport brought possession proceedings to eject the squatters under RSC O. 113 r.1. The Court of Appeal (Chadwick LJ dissenting) held that the airport was entitled to bring the proceedings even though it had not yet been in possession of the land. Laws LJ held that a licensee (whether in occupation or not) was entitled to a remedy to protect its contractual rights. This includes a right to claim possession where this is necessary to protect the contractual rights granted by the licence (at 149 – 150).

A contractual licence is not binding on a third party

February 6, 2011

A contractual licence is not binding on a third party (such as a creditor with a charging order over the land).

In Lau Chun Ming v Ma Koon Sik ([2006] HKCU 1270) Mr Lau had obtained a charging order over land owned by Mr Ma. Mr Lau sought vacant possession and sale of the land. A third party claimed that it had the benefit of a contractual licence over Mr Ma’s land created before the charging order and resisted the making of an order. It claimed that Mr Lau’s physical inspection of the site must have alerted him to the existence of the licence.  It was held that the charging order was not subject to the licence. A contractual licence does not bind third parties. Deputy High Court Judge Gill relied on  a statement in Halsbury’s Laws of Hong Kong that damages are the only remedy for breach of a contractual licence.