Archive for the ‘Weekly review’ Category

Weekly review: 17 – 21 June 2013

June 22, 2013

Deed of Mutual Covenant: incorporated owners; unauthorised structures

Incorporated owners are not liable to pay for the cost of replacing unauthorised structures that they have removed for some legitimate purpose (Lee Din Chun v Beverly Heights (IO))

Conveyancing: good title: encumbrance

‘In considering if a risk of litigation may constitute an encumbrance, the court will ask : are the facts and circumstances of the case so compelling to the mind of the court that the court concludes beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of the encumbrance.’ (Ho Ching Group Ltd v Tsang Pui Lin [12] J Poon J).

Easements: prescription: implied easements following renewal and extension of Government leases

An easement can be acquired by prescription where the use has been for long enough and so on where the use was ‘on a reasonably regular basis’. Easements can be implied into the renewals and extensions of all Government leases in the New Territories in 1973 and 1999 on the basis of necessity, CPO s.16 and Wheeldon v Burrows where the relevant conditions are satisfied (Cheung Yuk Ying v Lo Koon Fuk)

Weekly review: 10th – 14th June

June 15, 2013

Contract: misrepresentation

A misrepresentation is material if it is one of the factors that induced the representee to enter into the contract. It is enough that, as a matter of fact, the representee was actually influenced by the representation. If a reasonable objective bystander would have been influenced it is for the representor to show that the representee was not influenced (Master Yield Ltd v Ho Foon Yung Anesis)

Leases: break clause: excess rent (for period after the date specified in an effective notice)

If rent is payable quarterly in advance  (for example) and the lease term expires between quarters the tenant need only pay rent calculated to the end of the term. The same is true if the lease ends because of the exercise of a break right and it is clear from the outset that the notice will certainly be effective (there is no outstanding condition). If the effectiveness of the notice is conditional then there will often be an implied right to recover the excess advance rent once the lease has actually come to an end. This is all subject to the general principles of contractual interpretation (Marks & Spencer plc v Bnp Paribas Securities Services Trust Company (Jersey) Ltd)

Proprietary estoppel

The detriment for proprietary estoppel purposes need not be substantial but it must be real and incurred in reliance on the relevant assurance (Cheung Pak Chuen v Au Yeung Wing Chi)

If the statement said to constitute an assurance or representation for promissory or proprietary estoppel purposes  is open to more than one reasonable interpretation (one of which is fatal to the estoppel defence) then the representee is not entitled to rely on what was said without further clarification and there is no basis for an estoppel. (Kim v Chasewood Park Residents Ltd)

Weekly review: 3 – 7 June 2013

June 8, 2013

Lease: periodic tenancy: holding over

If a tenant whose lease has expired is allowed to continue in possession while negotiating a new lease, he is  a tenant at will, until some other interest is granted to him. (Pang Kin Hang v Tsui Hung Restaurant Ltd)

Lease: periodic tenancy: sub-lease for a term greater than one period

A periodic tenant can grant a tenancy for a term that extends beyond a period of his tenancy but it will cease to have effect if the periodic tenancy is determined (Chan Sang v Choy Yuk)

Lease: variation: surrender and re-grant?

An agreement to increase the amount of the rent and the rental deposit did not lead automatically to the conclusion that there had been a surrender and re-grant. It is compatible with an intention to continue the existing lease on revised terms (West Coast International (Parking) Ltd v Secretary for Justice)

Lease: tenancy at will: termination

The assignment by the tenant at will of his interest to a third party is no determination of the tenancy, unless the lessor at will have notice. (Pinhorn v Souster)

Weekly Review: 27th – 31st May 2013

June 1, 2013

Lease: licence: exclusive possession

A right to possession granted in the context of the acquisition of some larger interest (such as a lease), as part of  the agreement in respect of that larger interest itself and pending the grant of the larger interest is a licence only (Cameron Limited v Rolls-Royce plc)

Lease: agreement for lease: usual covenants: forfeiture provision

A provision for forfeiture for non-payment of rent is a usual covenant in Hong Kong (Sun Hing Company v Brilliant Investment Co Ltd)

Lease: periodic tenancy: notice to quit

A valid notice to quit can adopt the formula recommended by A.L. Smith L.J. in Sidebotham v Holland (“or at the expiration of the year of your tenancy, which shall expire next after the end of one half-year from the service of this notice,”) ( Leung Chung Ting (No 2) v Tin Yat Co)

Once served, a notice to quit cannot be withdrawn (Kam Wing Property Investments Ltd v Koncord Ltd)

Lease: validity

A purported lease agreement was void when exercise of the tenant’s right to possession would be a criminal offence (Li Wing-Sun v Wu Man)

Tenancy at will: conveyance of reversion

‘The moment the tenant knows that the landlord has done an act which is inconsistent with the continuance of his will – which he has done when he has parted with the reversion, – that is a determination of the will, and the tenant must know that it is his duty to quit at once.’ (Alderson, B) (Doe d Davies v James Thomas)

Weekly review: 13th – 16th May

May 18, 2013

Adverse possession

Whether or not acts of possession done on parts of an area would establish title to the whole area is a matter of degree (Lee Theatre Realty Ltd v Tong Wah Jor,  Cheung JA)

Periodic tenancy: notice to quit

Each party must have the right to bring the tenancy to an end at an ascertainable time (Doe d Warner v BrowneCentaploy Ltd v Matlodge Ltd)

Where the agreement allows a periodic tenancy to be brought to an end ‘at any time’,  this may (depending on the overall process of contractual construction) be taken as an indication that the notice need not expire at the end of a period (Lai Mai-yu v The Attorney-General)

Michael Lower

Weekly review: 6th – 10th May 2013

May 11, 2013

Conveyancing: requisitions on title

There is no duty to reply to ‘requisitions’ which are too vague to be classified as such. Nevertheless, the seller remains under a duty to meet the contractual requirement to show and give good title (Continental Zone Ltd v More Glory International Ltd)

Periodic tenancy: implied: relevant factors

When the courts are considering whether or not an implied periodic tenancy has been created, the fact that T is in possession of L’s land and paying rent at regular intervals is a relevant (sometimes decisive) factor but there can be other relevant factors that reinforce or contradict the suggestion that an implied periodic tenancy has been created (Javad v Aqil).

Periodic tenancy: implied: holding over: relevance of intervals at which rent is paid

Where an implied periodic tenancy arises as a result of a holding over at the end of a fixed term, the intervals at which rent was payable (and according to which it was expressed) are a strong indicator as to the nature of the periodic tenancy (Adler v Blackman)

Periodic tenancy: holding over

Where a tenant remains in possession at the end of a fixed term and the landlord accepts rent, it is an open question as to whether or not a periodic tenancy has been created (there is no presumption to this effect) (Longrigg, Burrough and Trounson v Smith)

Priorities

After Financial and Investment Services for Asia Ltd v Baik Wha International Trading Co Ltd, it is clear that the court can look at the substance of the competing interests (and then consider the impact of registration or a failure to register) (Silver Hope Ltd v Chan Kwai Wah Alice)

Weekly review: April 29 – May 3 2013

May 4, 2013

Conveyancing: execution by Mainland companies

An opinion from a mainland lawyer to the effect that the person giving the opinion was a mainland lawyer applying mainland law and that the execution was valid under Chinese law is ordinarily sufficient proof that the document has been properly executed (Liu Xiaodong v Chase Eagle Development Limited)

Periodic tenancy: nature

‘At common law a periodic tenancy is of indefinite duration determinable by notice to quit.’ (68, HH Judge Cruden).

‘In the absence of express provision to the contrary, yearly tenancies arise where rent measured with reference to a year, is paid and accepted.’ (68, HH Judge Cruden)

‘At common law a yearly tenancy, in the absence of agreement, may be unilaterally terminated upon either party giving to the other one half-year’s notice.’ (68, HH Judge Cruden) (Lew See-Chun v Yu Kin-Keung)

Periodic tenancy notice to quit

The party to a periodic tenancy serving a notice to quit has to show the date when the tenancy began. Where notice ise served by an agent having only limited authority to act for the landlord, the notice must state expressly that it was served by the agent on behalf of the landlord (Lemon v Lardeur)

Periodic tenancy: implied: holding over

Where a periodic tenancy arises from an implied agreement after the end of a fixed term tenancy, the periodic tenancy begins immediately after the end of the fixed term (in the absence of agreement to the contrary (Croft v William F Bly Ltd)

Weekly review: 22nd – 26th April 2013

April 27, 2013

Break clause

The draftsman of a notice exercising the right to determine a lease pursuant to a beak clause may expressly provide that the day of service is to be included in the calculation of the period of notice given (Trafford MBC v Total Fitness (UK) Ltd)

Break clauses: periodic tenancies

Notices served pursuant to a break clause and notices to quit belong to the same class of document. Normal principles of contractual interpretation are to be applied to their construction. The question is how a reasonable recipient would have understood the notice (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd and Carradine Properties Ltd v Aslam)

Periodic tenancies: notice to quit

An agent of the tenant living at the demised premises has implied authority to accept service of a notice to quit (Tanham v Nicholson)

Periodic tenancies

A notice to quit (in the absence of agreement to the contrary) must expire at the end of a period and the tenancy will then end at midnight on that day (Crate v Miller)

Weekly review: 15th – 19th April 2013

April 20, 2013

Periodic tenancy: creation: holding over

There is no yearly tenancy where a tenant holds over at the end of a fixed term without paying rent and where there is no evidence of an intention to create a yearly tenancy. If a tenant holds over and rent is expressed and paid in weekly terms then this is evidence that militates against an intention to create a yearly tenancy (Ladies’ Hosiery and Underwear Limited v Parker)

Periodic tenancy: notice to quit

The parties can agree that the notice period for the landlord and the tenant respectively can be different from each other (Allison v Scargall)

Provided the requirements of certainty are observed a temporary restriction can be imposed on a landlord’s right to serve a notice to quit (Breams Property Investment Co Limited  v Stroulger)

Valid service of a notice to quit brings a periodic tenancy to and end and cannot be revoked (though the parties can agree to grant a new lease) (Clarke v Grant )

Weekly review: 8th – 12th April 2013

April 13, 2013

Adverse possession

Once a squatter is in possession of land, this possession is not lost by virtue simply of a later scaling down of its activities there. Trivial activity on the land by the paper owner once the squatter is in possession is not enough to amount to a taking back of possession (Law Bing Kee v Person(s) in occupation of RP)

Construction: contract: interpretation

When interpreting a term in  a lease (as in any other contract) the court can have regard to the factual matrix and the purpose of the relevant provision insofar as it can be discerned in the light of the factual matrix and the rest of the document (New Mercury Holdings Corp v Secretary for Justice)

Contract: landlord and tenant: damages: duty to mitigate

Where a landlord cannot give vacant possession at the start of the agreed lease term and the lease is rescinded, the tenant’s duty to mitigate its loss requires it to act as an ordinary, prudent business man would act in the circumstances. It can recover expenditure occurred on its behalf by a third party (at least in circumstances where the loss to the third party will fall equally on the tenant). (Mega Yield International Holdings Ltd v Fonfair Co Ltd)

Deed of mutual covenant: common parts: trespass by tenant

Where a tenant takes possession of common parts a landlord who permitted this can be jointly liable in trespass (海怡閣(成和道) 業主立案法團v 泓璟集團有限公司)

Rectification

‘a party seeking rectification for a common mistake should show that (a) the parties had a common continuing intention in respect of a particular matter in the instrument to be rectified, (b) there was an outward expression of accord, (c) the intention continued at the time of the execution of  the instrument sought to be rectified, and (d) by mistake the instrument did not reflect that common intention.’ (Re Lee Mei Yan KrisDeputy Judge Marlene Ng [19])