{"id":18279,"date":"2020-03-02T19:51:22","date_gmt":"2020-03-02T19:51:22","guid":{"rendered":"https:\/\/demo02.houzez.co\/?page_id=17124"},"modified":"2024-03-03T19:00:48","modified_gmt":"2024-03-03T11:00:48","slug":"frequently-asked-questions","status":"publish","type":"page","link":"https:\/\/aionlinehk.com\/zh\/frequently-asked-questions\/","title":{"rendered":"\u5e38\u898b\u554f\u984c"},"content":{"rendered":"\t\t
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Frequently Asked Questions<\/h1>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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Question about Sale & Purchase of Property<\/h3>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tWhat are the different ways of owning a property? What is sole ownership and what are joint tenants and tenants-in-common?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

The different ways of owning a property in Hong Kong are sole ownership and joint ownership. Ask your solicitor for more information about joint ownership if you plan to\u00a0buy a flat with other persons.<\/p>

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a. Sole ownership<\/strong><\/p>

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Sole ownership refers to a property owned by one person only and that person is the sole owner of the property.<\/p>

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b. Joint ownership<\/strong><\/p>

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If a couple who are either married or living together purchase a property in which they intend to live, they usually intend to share the ownership of the property. The most common types of joint ownership are “joint tenancy” and “tenancy-in-common”.<\/p>

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i.\u00a0Joint tenancy<\/strong><\/p>

For a joint tenancy, all the joint tenants are treated as one sole owner.\u00a0When one of the joint tenants dies, his\/her interest in the property will automatically pass to the surviving joint tenant(s) who will own the whole property.<\/p>

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ii. Tenancy-in-common<\/strong><\/p>

For tenancy-in-common, the interests of all the tenants-in-common are normally proportional to their respective contributions to the purchase price of the property. In a tenancy-in-common with 2 owners, for example, the owner who contributed 25% of the purchase price would hold 1\/4 share of ownership. The other owner, who contributed 75% of the purchase price, would hold 3\/4 share of ownership. When one of the tenants-in-common dies, his\/her interest will form part of his\/her estate (i.e. property left after a person’s death), and will be passed on according to the terms of his\/her will or the law of intestacy if there is no will.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t I (as a purchaser) signed the provisional agreement but i want to add my spouse's name or my parents' names into the subsequent formal agreement. Can i do that?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Yes, you can. Before signing the formal agreement, your solicitor will ask you and your spouse (or your parents) to sign an additional document, called Nomination, confirming that you were being nominated to sign the previous provisional agreement on behalf of the “new purchaser”. The “new purchaser” includes you and your spouse (or your parents). This document, will not be subject to ad valorem stamp duty if the \u201cnew purchaser\u201d is not a beneficial owner of any residential property in Hong Kong. (See\u00a0section 29AB<\/span>\u00a0of the\u00a0Stamp Duty Ordinance\u00a0(Cap. 117)). The Nomination must be presented to the vendor’s solicitor for preparing the formal agreement.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tI am not the \"registered owner\" (my name is not written on the title deed of the flat which has been registered in the land registry) but i have paid part or all of the purchase money of the flat. Do i have a say in matters concerning the property? For example, can i prevent the \"registered owner\" from selling the property?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Although you are not the “registered owner”, if whole or part of the purchase money comes from you, you may be the “beneficial owner” of the property. That is to say,\u00a0the property may be held by the registered owner in trust either wholly or partly on your behalf. If you and the registered owner have respectively contributed half of the purchase money, your half share may be held by the registered owner on your behalf. You should immediately notify any intending purchaser and his solicitor of your beneficial interest. This could effectively stop the sale. Alternatively, you could claim against the registered owner for your share of the proceeds if the property is sold.<\/p>

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However, if you intended to buy the property and give it to the registered owner as a gift (in which you had clearly expressed that when you paid the money), your beneficial interest in relation to that property is arguable. That means you may not be able to stop the sale or claim for your share.<\/p>

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The above matters involve complex legal arguments in which legal advice must be sought.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tShould i enter into a sale and purchase agreement or execute a deed of gift if i want to give my property to my husband\/wife?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

A deed of gift may create a potential defect in title. Under\u00a0section 49\u00a0of the\u00a0Bankruptcy Ordinance\u00a0(Cap. 6), the Court make an order to set aside a transaction made by a bankrupt within a period of 5 years before he was adjudicated bankrupt if the transaction is regarded as an undervalue transaction.\u00a0 A deed of gift is regarded as an undervalue transaction under\u00a0section 49(3)\u00a0of the\u00a0Bankruptcy Ordinance\u00a0(Cap. 6).\u00a0 Hence if a person transfers his\/her property to his\/her spouse by way of a deed of gift and then the transferee wants to sell the property to a purchaser within the 5 years period of the deed of gift, the purchaser can challenge that the title is defective as the deed of gift may be set aside by the Court under\u00a0section 49(2)\u00a0of the\u00a0Bankruptcy Ordinance<\/a>\u00a0(Cap. 6<\/a>).<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t Difference between mortgage mortgagor, borrower and guarantor<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Since the introduction of the latest mortgage insurance measures, the proportion of first-home buyers using high-performing mortgages to buy property has increased significantly. A high percentage mortgage can reduce the burden of the first installment, but the contribution income ratio and stress test requirements also increase. If the contribution ability is insufficient, it needs to be shared by the borrower or guarantor to increase borrowing capacity. Generally, when applying for a mortgage loan from a bank or financial institution, the applicant is usually divided into a mortgagor, a borrower, and a guarantor. This time, I will explain the differences between them.<\/p>

Mortgagor has the right to buy and sell the property<\/h4>

The mortgagor, or mortgagee, is the property owner (that is, the owner) and is the only person who has the right to buy and sell the property. It must be filled in the mortgage application. The mortgagor usually becomes the borrower at the same time. Mortgages need to be reviewed for financial and credit status. However, if the mortgagor is not the borrower, the borrower will be responsible for repaying the loan. For example, the husband wants to send a floor to his wife and the husband is responsible for making contributions. The borrower will be responsible for repaying the loan. The mortgagor may also have more than one person at the same time, but if the property is to be mortgaged or sold, it must be agreed by all the mortgagors before proceeding. Because the mortgage loan is a property mortgage, if the mortgagor, borrower and guarantor fails to repay, the bank or financial institution has the right to take over and sell the property.<\/p>

Borrower is responsible for repayment<\/h4>

The borrower is the person who assumes the mortgage loan, it must be filled in the mortgage application, and it must bear the repayment responsibility. When applying for a mortgage, the borrower\u2019s information must be reviewed by the bank or financial institution to ensure sufficient repayment ability to apply successfully. The borrower\u2019s contribution to income ratio and stress test must be 50% and 60%. In addition, When the bank or financial institution approves the borrower\u2019s mortgage application, it will also check its financial and credit status. If the borrower has insufficient repayment ability, more than one borrower or guarantor may be added. If the borrower already owns or guarantees another property, the mortgage percentage, contribution to income ratio and stress test will be reduced by 10%.<\/p>

Guarantor Enhances borrower repayment ability<\/h1>

The guarantor is the person who guarantees the mortgage of the property, most of whom are close relatives of the borrower. Generally, the guarantor is unlimited (depending on the bank \/ financial institution). If the mortgage borrower\u2019s monthly contribution to income ratio fails to pass the HKMA\u2019s regulations, it can increase the guarantor\u2019s ability to repay, but if the guarantor has other debts, it will affect the borrower\u2019s ability to repay. Unlike a borrower, a guarantor cannot be a mortgagor at the same time. It is also important to note that mortgage loans will be recorded on the guarantor\u2019s credit report, which will affect the guarantor\u2019s application for other loans. Moreover, if the borrower loses the ability to make contributions and fails to repay the debt, it will be transferred to the guarantor. If the borrower delays the mortgage, it will affect the credit rating of the guarantor, so you need to consider carefully before becoming a guarantor .<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tHow to Get A Mortgage in Hong Kong?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

For the first time buyer looking to enter the Hong Kong Property Market, finding a suitable mortgage plan may seem like a daunting task. Yet in truth, the practical steps behind securing a mortgage via application to your respective mortgage provider can prove quite straightforward. The details are paramount and a number of key considerations should inform your decision making process.\u00a0\u00a0<\/p>

Interest Rate<\/span><\/p>

Broadly speaking, mortgages that are available in Hong Kong can be classified into 3 categories with the key determinant being their varying interest rates: (1) fixed-rate, (2) flexible-rate or (3) deposit-linked. Depending on current market conditions and the state of your personal finances, each option presents their distinct set of pros and cons.\u00a0<\/p>

Fixed-rate Mortgage<\/span>\u00a0<\/p>

If you are adverse to interest rate fluctuations and looking to take out a long-term mortgage, the set rate of interest provided in a fixed-rate mortgage could present a stable if not predictable option. Typically available in 15, 20 or 30 years terms, as a borrower you must be mindful of current interest rates since high levels could make qualifying for a mortgage loan more difficult.\u00a0\u00a0<\/p>

Flexible-rate Mortgage<\/span>\u00a0<\/p>

Determined either by the Hong Kong Interbank Offered Rate (HIBOR) or Hong Kong Dollar Prime Rate (Prime) flexible-rate mortgages typically enables the borrower to qualify for a larger loan with low initial payments. Beneficial in the near term or when interest rates are predicted to fall, rising interest rates could prove punitive to the long-term borrower unless a monthly cap on mortgage expenses are part and parcel to your plan.\u00a0\u00a0<\/p>

Deposit-linked Mortgage\u00a0<\/span>\u00a0<\/p>

Touted as offering a preferential annual interest rate, this mortgage plan either links to your deposit account and provides an interest rate equivalent to your mortgage\u2019s interest or leverages the current deposit amount to reduce your mortgage interest payment for each period. HIBOR or Prime based, it is important for first time buyers to properly consult their banking representatives.\u00a0\u00a0\u00a0<\/p>

Loan-To-Value Ratio and Stamp Duty\u00a0<\/span><\/p>

In deciding upon your mortgage plan, it is crucial to be aware of the maximum Loan-To-Value Ratio as well as stamp duty rates. Whilst a conventional mortgage will allow up to 60-70% of the property\u2019s value depending on price, for properties worth under HKD 10 million, borrowers have the option to apply for the Mortgage Insurance Program which allows for 80%-90% of the property\u2019s value to be covered by the mortgage plan. In terms of stamp duty, this is subject to different price bands and can range anywhere between 1.5% to 4.25% upon the sale or transfer of property.\u00a0\u00a0Ultimately, the issue of affordability comes into play. As a borrower, you have the option to use a variety of online tools including mortgage calculators to make informed budgeting decisions. You also have to be conscious of the fact that you will incur other costs such as the solicitor\u2019s fee and agent commission.\u00a0<\/p>

Applying for a Mortgage<\/span>\u00a0<\/p>

Having selected a property through a realtor, decided on an appropriate mortgage plan and resolved questions of affordability, you can now submit your application to a mortgage provider which by default in Hong Kong, is the bank.\u00a0\u00a0<\/p>

Upon receiving your application the bank will arrange for a valuation of the property you intend to purchase, prepare mortgage terms and assess your repayment ability. In approving your mortgage application, the bank will then arrange for you to sign a confirmation letter as well as various necessary contracts which include the Formal Sale and Purchase Agreement as well as the Assignment Deed. You will then be required to pay the full deposit and the Government stamp duty via your solicitor before receiving the repayment schedule from your bank.\u00a0\u00a0<\/p>

Once your bank has disbursed the mortgage loan amount to the seller, your property buying process\u00a0will be complete.\u00a0<\/p>

Updated:28Feb2024<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tUnderstanding the Pitfalls of Loft Living<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

The size of Hong Kong properties is a commonly derided topic, yet there are gems in the rough that boast practical layouts which optimize a property\u2019s saleable area in addition to featuring high ceilings, large windows and an abundance of wall space to let your creativity shine: loft spaces.\u00a0In Hong Kong, landlords who own commercially zoned properties, have followed the worldwide trend to convert these spacious units into attractive, value for money living spaces that include structural elements like open ceilings, polished concrete floors, crossbeams and steel, creative lighting and space for expressive art.\u00a0\u00a0The functionality and design of these bare and unadorned \u201capartments\u201d are hard to resist and real estate agents in Hong Kong often get asked for assistance by prospective tenants, who are interested in these commercial properties for residential use.\u00a0<\/p>

In Hong Kong, this does not correspond with the \u201cZoning Law\u201d which dictates how real estate property and land can or cannot be used and which does not permit the use of commercial or industrial space in warehouses to be rented for residential purposes.\u00a0\u00a0<\/p>

Many of these former commercially used units can be found in Aberdeen, Ap Lei Chau, Chai Wan and other industrial areas, albeit not without significant risk for both sides, landlord and tenant. If the government steps in and issues an eviction note, the tenant has to move out without legal recourse.\u00a0Real estate agents in Hong Kong are able to assist in renting such a property provided both parties sign a disclaimer and declare in writing that they have been informed about the risks of entering into such an agreement but wish to proceed nevertheless.\u00a0<\/p>

In case of any dispute between tenant and landlord, such a tenancy agreement would not hold out in court and may not be enforceable. The tenant carries the risk of potential loss of the security deposit or any other advance rents paid to the landlord.\u00a0<\/p>

This lifestyle can be quite lonely during weekends, when restaurants and shops in the area are closed and offices and other premises are empty. During the week it may be quite busy and noisy or even smelly, depending on the nature of businesses occupying neighboring units. Your neighbor could be running a printing machine or other loud equipment and it is worth evaluating this ahead of signing any agreements.\u00a0<\/p>

On the other hand, you can turn up the volume of your TV or music and nobody will notice. Your neighbor could also end up being one of Hong Kong\u2019s famous private kitchens, an art gallery or trendy fashion designer! It is definitely a unique way of living and may be worth a try as long as everyone knows the risks involved!<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tShould I Buy and Hold Real Estate through a Company in HK?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Property investors often use companies to hold real estate because personal property ownership could get expensive: when treating property as an investment, a small percentage difference in taxes between company and personal ownership can translate into a difference of millions of dollars. Using holding companies to transfer the ownership of properties is therefore a sought-after tactic to reduce taxes. But\u2014is it for you? We look at the pros and cons of using companies to buy and transfer property.<\/p>

Pros<\/strong><\/p>

Save on Stamp Duty<\/strong><\/p>

Avoid the extra taxes imposed on personal home buyers by buying property through the transfer of company shares. If you\u2019re buying property as an individual for the first time, you will have to pay ad valorem stamp duty (AVD) of up to 4.25% \u2014compared to the 0.2% stamp duty for purchasing or selling a company.\u00a0<\/p>

Cons<\/strong><\/p>

Risks of acquiring the liabilities of a company<\/strong><\/p>

Property investors who acquire the shares of companies face investment risks including hidden debts. Thorough due diligence by your lawyer should be conducted before any company acquisitions to ensure the company being acquired doesn\u2019t own other assets or have other liabilities.\u00a0<\/p>

Cost of acquiring and maintaining a company\u00a0<\/strong><\/p>

When acquiring a company-owned property, your lawyers will not only need to conduct due diligence on the property (to check for\u00a0encumbrances),\u00a0but also on the company being purchased (to ensure it doesn\u2019t have other assets\/liabilities as described above). Thus the legal\u00a0costs for\u00a0acquiring a company-owned property are higher than when purchasing a property directly.\u00a0In terms of ongoing maintenance costs for the holding company, Hong Kong shelf companies typically face annual costs of around HK$10,000 to HK$40,000 (including audited financial statements). The actual costs depend on the service provider and the number of properties the company holds (though generally a company being sold will only own one property).\u00a0\u00a0<\/p>

Difficulty in obtaining a mortgage<\/strong><\/p>

Banks tend to be reluctant to offer mortgages for property purchases involving the transfer of company shares due to legal complexity and risks, which means investors who purchase company-owned properties may have higher upfront cash costs. In respect of a mortgage,\u00a0 some banks offer packaged bridging loans for company purchases (at a higher interest rate). After completion (usually 2-4 weeks), this loan is converted into a mortgage. The % mortgage may vary but people buying company-owned properties are recommended to speak with banks directly about potential solutions.\u00a0\u00a0<\/p>

Conclusion<\/strong><\/p>

Purchasing companies through the transfer of company shares can be a great way to reduce property taxes\u2014 if you have enough cash to fund the purchase initially, and if the costs of managing the company are small relative to the stamp duty that would otherwise be payable. As a first-time home buyer or property\u00a0investor\u00a0you may be better off simply accepting the applicable stamp duties (while being aware of them and structuring your purchase to minimize them).\u00a0<\/p>

Updated:28Feb2024<\/p>

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Question about renting<\/h3>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tWhat You Should Do Before Renewing Your Lease Agreement<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Lease renewal may seem like a straightforward process\u2014talk to your landlord about your rent, sign an addendum, get it stamped\u2014and you\u2019re done. But, take a good look at your rental home: have the walls begun to peel? Is the air-conditioner radiating hot air? Does your sink leak? These may be issues you would like your landlord to address\u2014but you\u2019re also concerned that raising them would merit your landlord to increase your rent. Here is what you can do to make tenancy renewal a breeze:\u00a0\u00a0<\/p>

Do your research<\/strong>\u00a0<\/p>

Two to four months before your lease agreement expires, let your landlord know that you are interested in renewing the lease. Even if you are happy with your existing rental, it would be a good idea to learn about current home prices since rent will be the focus of your lease renewal. Talk to your real estate agent for more comprehensive market information. Staying informed could improve your bargaining power if your landlord increases your rent without good reason\u2014although it is worth noting that when the property market is booming, chances are, your landlord will not budge.\u00a0\u00a0<\/p>

Ask for more<\/strong>\u00a0<\/p>

The new lease would very likely reflect prevailing market rents, so get the most out of it by discussing with your landlord opportunities for improving the flat, such as deep cleaning the air-conditioner, or replacing the worn-out washing machine. Alternatively, forgo requests for improvement and negotiate for a lower-than-market rent.\u00a0\u00a0<\/p>

Let your real estate agent do the work for you<\/strong><\/p>

When it comes to property prices and the property market, your real estate agent knows best\u2014it\u2019s what he\/she does for a living! That makes him or her the ideal negotiator to persuade your landlord to agree to better rental terms for you. Your landlord would, too, benefit from your agent\u2019s knowledge of the latest property market situation. Your agent may even advise your landlord about the benefits of settling for a mutually agreeable rent, such as saving potential costs incurred from renovating the property for a new tenant, or, worse, an untenanted home.\u00a0<\/p>

Negotiations aside, your real estate agent will also help you (and your landlord) save time by preparing and amending the necessary paperwork, verifying the status of the property, carrying out the stamping of the lease agreement, and preparing and submitting other relevant documents to the government. These factors may even encourage your landlord to share the agent\u2019s fee, if not pay for the cost him\/herself.\u00a0\u00a0<\/p>

While achieving a reduction in rent may not always be possible, your real estate agent will almost certainly help you achieve better terms and greater savings than what you\u2019d be able to achieve on your own\u2014not to mention ensuring that your rights are fully protected in the renewal agreement with his\/her expertise.\u00a0\u00a0<\/p>

It does not stop here: throughout the term of the new lease, you can always count on your agent to provide support and advice, especially when you experience difficulties when communicating with your\u00a0landlord, such as a language barrier, or unresponsiveness.\u00a0If,\u00a0ultimately, you decide not to renew your tenancy, you would at least have a real estate agent on hand for fast and up-to-date information on other flat to rent.<\/p>

Contact your AI ONLINE PROPERTY agent today for assistance with lease renewal.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

\n\t\t\t\t\t
\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tWhat is the difference between a TENANCY And a LICENCE ?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

A tenancy has the legal effect of passing an \u201cinterest\u201d in land from the landlord to the tenant. It means that the tenant is given the right to possess the land during the terms of the tenancy (subject to other restrictive covenants on use). During the fixed term of the tenancy(and without any breaches or any \u2018break clauses\u2019 exercisable), a tenant may generally occupy the property as of right without the fear of being evicted by the landlord.<\/p>

\u00a0<\/p>

In contrast, a licence creates no interest in land. The licensor only allows the licensee to use the land, not to exclusively occupy it. Subject to its terms, a license may also be terminated contractually at will or even by way of repudiation by the licensor. The licensee\u2019s remedy against the licensor\u2019s breach of the licence may lie only in claiming damages, but not in occupation of the property.<\/p>

\u00a0<\/p>

Therefore, a licence is typically used for short-term occupation (e.g. for several weeks or months) or where the licensee does not have exclusive occupation of the property, e.g. a car parking space, a hotel room, a newsstand or a \u201ckiosk\u201d in a shopping mall.<\/p>

\u00a0<\/p>

To demonstrate the concept of \u201cinterest in land\u201d, it is worth noting that there is no interest in land in the external walls of a building because a wall, being a vertical surface, is not land. Therefore, the owner who retains the rights and interests in the external walls of a building (typically in a multi-storey building) generally cannot let the walls to another party, but can only license the rights to use the walls.<\/p>

\u00a0<\/p>

It should also be noted that as a licence does not transfer any interest in land, it is not liable to stamp duty. However, it would be futile to label a document as a licence just to avoid stamp duty. Whether a document creates a tenancy or a licence does not depend on the name of the document or other labels given by the parties, but on the true nature of the rights and obligations as evidenced by the agreement. A major factor in differentiating between a tenancy and a licence is to see whether the user has exclusive occupation or possession of the property. Subject to facts that will vary from case to case, the law generally accepts that a grant of exclusive occupation (the user can occupy the property solely and privately) for a term at periodic payments creates a tenancy.<\/p>

\u00a0<\/p>

The above matter involves complex legal arguments. You must consult a lawyer if you have further queries.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

\n\t\t\t\t\t
\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tWhat are the consequences of failing to stamp a tenancy document?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

An obvious consequence is that the landlord and the tenant will be liable to civil proceedings by the Collector of Stamp Duty of the\u00a0Inland Revenue Department. Moreover, a tenancy document must be stamped before it can be lodged with the\u00a0Land Registry\u00a0for registration.<\/p>

A more important consequence is that the Court may not accept an unstamped tenancy document as evidence in civil proceedings. In other words, a party will have difficulties in enforcing the tenancy document against the other party (who has breached the Tenancy Agreement or Lease) in Court.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

\n\t\t\t\t\t
\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tIf the tenant causes nuisance to neighbourd, will the landlord be liable ? Does the landlord have any remedies against the tenant ?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

The landlord may be liable for nuisance committed by the tenant if he has expressly or impliedly authorised the tenant to commit nuisance, or has adopted or continued such nuisance.<\/span><\/p>

\u00a0<\/span><\/p>

Tenancy agreements commonly contain a covenant by the tenant not to cause or permit nuisance, annoyance, inconvenience or disturbance to the occupants of neighbouring premises.<\/span><\/p>

\u00a0<\/span><\/p>

For tenancies of domestic premises entered on or after 27th December 2002, section 117(3) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) implies in the tenancy a covenant that the tenant not cause unnecessary annoyance, inconvenience or disturbance to the landlord or to any other person, if the tenancy does not already contain a covenant substantially to the same effect.\u00a0\u00a0The legislation also implies in the tenancy a condition for forfeiture if such implied covenant is broken.<\/span><\/p>

\u00a0<\/span><\/p>

Before the landlord can enforce the right of re-entry or forfeiture to terminate the tenancy early, section 58 of the Conveyancing and Property Ordinance (Cap. 219) requires that a prior written notice be served on the tenant, specifying the breach complained of and requesting the tenant to remedy the breach or the compensation payable.<\/span><\/p>

\u00a0<\/span><\/p>

So if it can be proved that the tenant has been causing nuisance or annoyance to the occupiers of adjacent premises and where the tenant has refused to remedy the breach, the landlord may exercise the right to forfeit the tenancy and may claim against the tenant any damages caused by such early termination of the tenancy.<\/span><\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

\n\t\t\t\t\t
\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tThe tenancy agreement stipulates that rent shall be payable in advance on the 1st day of each month. The tenancy will terminate on 15th January. Does the tenant need to pay monthly rent in full on 1st January? If so, does the landlord need to refund the rent for the period 16th to 31st January to the tenant later?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Unless there is express agreement to the contrary, the apportionment mechanism under the Apportionment Ordinance (Cap. 18) does not apply to rent payable in advance, as in this example.\u00a0\u00a0The tenant is still obliged to pay the monthly rent in full on 1st January and it is not a legal requirement for the landlord need to refund the rent for the period 16th and 31st January.<\/span><\/p>

\u00a0<\/span><\/p>

For a tenancy agreement with a break clause which allows for early termination, the entitlement to early terminate the tenancy does not in principle affect the obligation to pay rent of the tenant.\u00a0\u00a0In such a case, it would be more desirable to serve notice to quit on the pay day of the monthly rent.<\/span><\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

\n\t\t\t\t\t
\n\t\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tHow is property tax calculated?<\/a>\n\t\t\t\t\t<\/div>\n\t\t\t\t\t

Property Tax is computed at the standard rate of 15% (from 2008\/2009 assessment year onwards) on the \u201cnet assessable value\u201d of the property. A \u201cNet Assessable Value\u201d is computed as follows:-<\/p>

\u00a0<\/p>
[A]=<\/th>Rental Income<\/td><\/tr>
[B]=<\/th>Less: Irrecoverable Rent<\/td><\/tr>
[C]=<\/th>(A-B)<\/td><\/tr>
[D]=<\/th>Less: Rates paid by owner(s)<\/td><\/tr>
[E]=<\/th>(C-D)<\/td><\/tr>
[F]=<\/th>Less: Statutory allowance for repairs and outgoings (E x 20%)<\/td><\/tr><\/tbody><\/table>

Net Assessable Value= [E]-[F]<\/strong><\/p>

\u00a0<\/p>

It is notable that \u201cRental Income\u201d covers the following:-<\/p>

\u00a0<\/p>

  1. Gross rent received<\/li>
  2. Payment for the right to use premises under licence<\/li>
  3. Services charges or management fees paid to the owner<\/li>
  4. Landlord\u2019s expenditure borne by the tenant, e.g. repairs and property tax paid by the tenant<\/li>
  5. Lump sum premium<\/li><\/ol>

    As explained, the law imposes a flat rate of 20% as statutory allowance for repairs regardless of the actual amount(s) being spent or incurred in repairing\/refurbishment of a property by the landlord.<\/p>

    \u00a0<\/p>

    Further deductions may be made through election on \u201cPersonal Assessment\u201d (for properties wholly owned by individuals)<\/p>

    \u00a0<\/p>

    Based on the foregoing, it is commonplace for tenants to become responsible for and pay management fees directly under a tenancy agreement, while it is usually the landlord who shall be responsible for payment of government rent\/rates by themselves.<\/p>

    \u00a0<\/p>

    For details regarding the exact computation of Property Tax, please visit the\u00a0Inland Revenue Department\u2019s website.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t

    \n\t\t\t\t
    \n\t\t\t\t\t\t\t
    \n\t\t\t
    <\/div>\n\t\t<\/div>\n\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

    Frequently Asked Questions Question about Sale & Purchase of Property What are the different ways of owning a property? What is sole ownership and what are joint tenants and tenants-in-common? The different ways of owning a property in Hong Kong are sole ownership and joint ownership. 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