VOL 7, NO 2
HOUSING AUTHORITY'S DISCRETION
229
having to find and pay for alternative accommodation in the private sector until the flat is repaired. Not only would it be extremely difficult for the tenant to find satisfactory alternative accommodation for such a short period, but in view of the financial eligibility requirements for public housing it is highly improbable that the tenant could afford to pay double rent.*0 In this situation the tenant could not even gain assistance from the common law, as there is no implied condition that premises remain fit for occupancy during the term of a tenancy agreement. The importance to the tenant of the second area of discretion speaks for itself as it involves the possible permanent deprival of his home.
(5) Discretionary power to retain part or all of the security deposit
The compulsory payment by all tenants of a deposit of one month's rent or $50, whichever is the greater amount, has already been discussed as a possible source of finance for the proposed tribunal.
In this context, it is important to note that the clause gives an unfettered discretion to the Authority to determine whether all or any part of the deposit should be withheld from the tenant for the payment of the cost of remedying any breaches of agreement by the tenant. The clause was designed to deal primarily with cases of non-payment of rent and damage. The withholding of the deposit for non-payment of rent is seldom contentious as the rent is a fixed sum and the amount of any arrears can be proved conclusively by reference to receipts. However, the withholding of the deposit for repairs can frequently lead to controversy. Disputes may arise as to the cost of repairs, whether the damage was caused by the tenant or a previous occupant of the flat, and whether the tenant should be exempted from the obligation to pay for the repairs on the ground that the damage is classed as 'fair wear and tear' or was caused by events beyond the control of the tenant (a fire or typhoon, for example).
On first consideration, it might be thought that the rights of the tenant in this area are already well protected in that if he disputes the validity of any deduction made from the deposit by * At present, the income limit for a family of three persons is $1,500 per month. For larger families, allowable income is increased by $100 for each additional family member up to a maximum of $2,200 for families of ten or more: Hong Kong Housing Authority, Annual Report 1975-76 32. "See, eg, Pampris v Thanos [1968] 1 NSWR 56.