VOL 7, NO 2
HOUSING AUTHORITY'S DISCRETION
217
prevent overcrowding caused by a tenant permitting additional persons to live with him. The intention of the sub-clause would thus seem very reasonable, but unfortunately the words 'or in any other manner whatsoever' are so wide-embracing as to prohibit even overnight non-paying guests. This problem could be solved simply by adding a proviso to the sub-clause whereby the tenant would be permitted to allow one non-paying guest to remain in the flat for a period not exceeding one week.
Finally, the tenant's repair obligations in clauses 2(c) and 2(d) are illustrative of the failure of the tenancy agreement to reflect accurately the actual policy of the Authority. The Authority's policy is to pay for all repairs except those caused by the carelessness or deliberate vandalism of the tenant or any of his family, servants or licensees.20 However, under clause 2(c) the tenant agrees to keep the interior of the flat and the landlord's fixtures clean and tidy throughout the tenancy 'fair wear and tear and damage by fire excepted,' while clause 2(d) inter alia obliges the tenant to pay to the Authority the cost of repairs to fixtures and fittings rendered necessary 'otherwise than through fair wear and tear.' In order to implement the present policy of the Authority, the wording of the exemptions in both clauses would need to be amended so as to read 'fair wear and tear and damage by fire, storm or typhoon excepted.' The danger inherent in retaining the present wording is that a tenant may undertake and pay for the cost of repairs without notifying the Authority on the wrongful assumption that he is obliged to pay.
In summary, it can be seen that the Authority has used its discretionary power to prescribe the contents of the tenancy agreement in such a way as to maximise its own legal rights at the expense of the position of the tenant. Indeed, it could be argued that the one-sidedness of the agreement amounts to a breach by the Authority of its obligation under the Housing Ordinance, section 4(2) (e), to exercise its managerial functions 'having regard to the welfare and comfort of the tenants . . .'
However, in order to do justice to the Housing Authority, it should be recognised that its tenancy agreement is less onerous than those drafted by many public housing authorities overseas. Many of the tenancy agreements relating to public housing in Australia and the United States are particularly onerous.21 Taking the tenancy agreement of the Housing
2o Information supplied by Mr Fung Tung, Deputy Director, Estate Management,
Hong Kong Housing Authority.
21 For a detailed discussion of Australian public housing tenancy agreements,