The Occupiers Liability Ordinance (OLO) imposes a duty of care on the occupiers of premises to ensure that their visitors are reasonably safe in their permitted use of the premises. If a third party is a visitor to the property and suffers an injury within the premises controlled by the occupier due to the negligence of the occupier, the occupier would be liable. Occupier of the property It is important for organisations to determine what premises they are an occupier of, as the ordinance requires a party who is an “occupier” of the relevant premises to have the duty of care on it. The test to determine whether that party is an occupier is whether it has control over the premises. A property manager can be regarded as an occupier who has control over the daily management of a building, for example by allowing those with an access card to enter the building. For a company to determine which areas they occupy, they should review their contractual and practical arrangements, such as those with property management service providers. It is possible for a premise to have multiple occupiers. Visitors of the property A person expressly permitted to stay on the premises is a visitor, for example, guests staying in a hotel. If the occupier knowingly tolerates and takes no step to prevent another person from entering the premises, the person entering the premises may also be deemed as a visitor. In general, employees at work premises for employment purposes can be deemed to be visitors. Organisations should identify who may be the visitors of the premises, to determine to whom they may owe a duty of care. Duty of care A duty of care is imposed on the occupier to take reasonable care to ensure that visitors are reasonably safe in their permitted use of the premises. However, the occupier is not an absolute guarantor of safety. A breach of duty of care on the part of the occupier is, for example, causing a slippery floor and taking no steps to

The Building Management Ordinance and the Building Management (Third Party Risks Insurance) Regulation require an owners’ corporation (OC) to procure and keep in force a policy of third party risk insurance. Third-Party insurance provides compensation for financial loss in the case of the death of, or bodily injury to, a third party in relation to common parts and facilities of the building. The insurance can protect both the owners of the building, by reducing the risk of large compensation faced by owners in case of accidents, and the general public, as it offers better protection against potentially dangerous buildings. If the OC fails to procure third party risk insurance, every member of the management committee of the OC is guilty of an offence and is liable, upon conviction, to a fine of HK$50,000. What liabilities are covered by third party risk insurance? Third-party risk insurance covers liabilities that may be incurred by the OC in relation to the common parts of the building (e.g. external walls, passageways, corridors, staircases, roofs and lifts), in respect of the bodily injury to, and/or the death of, a third party. Third parties include owners, tenants, occupiers, visitors, or trespassers of the building. It is not mandatory for the OC to take out insurance covering property damage. But it is encouraged for OC to do so, or else they will be liable for compensation for damage done to a third party’s property due to the negligence of the OC. It is also not necessary to take out insurance covering liability from unauthorised building works. However, the OC may still be civilly liable for any accident caused by the works, if the court finds that they are responsible for the accident. Therefore, the OC should remove any unauthorised building works in the building to prevent any liabilities from arising. How much should be insured? The minimum insured amount must be $10 million per event. Notice to owners After the OC

The obligation to repair/maintain the leased property largely depends on what is specified in the lease/ tenancy agreement. To avoid unnecessary disputes, parties entering into tenancy agreements should clearly specify the obligations for repair and maintenance. Drafting the tenancy agreement A commonly adopted approach under tenancy agreements is that the landlord is responsible for external and structural repairs and maintenance, and the tenant is responsible for internal and non-structural ones. However, this may still be problematic because the words internal, external, structural and non-structural can have different interpretations under different circumstances. For example, If there is a plumbing issue, the landlord may say that it is the tenant’s fault, as they have failed to clear the toilet’s drain and to maintain the internal structure. The tenant may argue otherwise, that the plumbing is old and is a structural problem with the building. This may lead to a dispute on who is to fix the costly plumbing problem. Therefore, a well-drafted tenancy document will try to anticipate and accommodate all potential areas of dispute that are specific to the particular property, and clarify the parties' duties in detail. Tenant’s obligations The lease imposes an implied obligation on the tenant to use the property in a tenant-like manner, so a tenant is expected to use the property in a reasonable and proper manner and not to destroy or damage the property. Although the tenant has no obligation to carry out repair and maintenance works, a lease will often include a clause for a tenant to carry out such works to a limited extent. This is often due to common practice and on the parties’ unequal bargaining abilities. During the term of the tenancy, the tenant will be occupying and dealing with the property on an ongoing basis, so it is probably normal for the tenant to fix defects and carry out repair works which are necessary. It is