Meaning of **domestic tenaocy".
(7) The Governor may in his absolute discretion by order exclude from the further application of this Ordinance any class of tenancy or sub-tenancy, any class of premises or any particular tenancy or sub-tenancy or premises.
4. (1) For the purposes of section 3. "domestic tepancy" and "domestic sub-tenancy" means a tenancy or sub-tenancy of premises let as a dwelling.
(2) Notwithstanding the purpose for which premises were let, in determining the nature of a tenancy or sub-tenancy for the purposes of this Ordinance, the following provisions shall apply
(a) in any agreement in writing between a landlord and tenant, or between a principal tenant and sub-tenant, a term that the premises shall be used for a specified purpose shall be prima facie evidence that the premises are being used for such purpose:
(b) notwithstanding any evidence as to whether premises were originally let as a dwelling or not let as a dwelling. where such premises are being used primarily for another purpose, they shall be deemed to have been let for such other purpose:
Provided that where such primary user is user as a dwelling in breach of any term in the agreement with the landlord or principal tenant, as the case may be, then the temaal or sub-tenant shall be required to establish that such user has been agreed to by the landlord or principal tenant, expressly or by implication, or acquiesced in by him;
(c) subject to paragraph (d), where there exists insufficient evidence as to whether premises were let as a dwelling or not, the nature of the tenancy or sub-tenancy shall be determined by the primary user of the premises; (d) where there is evidence that promises were let other- wise than as a dwelling, or that they were being used otherwise than as a dwelling at the commencement of a sub-tenancy, any premises the subject of such sub- tenancy shall themselves be deemed to be used other- wise than as a dwelling until the sub-tenant satisfies the court to the contrary:
(e) the use of premises as a boarding or lodging house is
a use other than as a dwelling.
(3) In determining whether premises were let, or are being used, as a dwelling, the following may be taken into account-
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(a) covenants, terms and conditions in any Crown lease.
tenancy or sub-tenancy;
(b) any occupation permit given by the Building Authority
under the Buildings Ordinance, or under any Ordinance (Cap. 123) replaced thereby, in relation to the premises;
(c) normal additional uses of the premises consistent with the same being let as a dwelling, having regard to the following
(i) floor area in occupation part or full-time for such
USOS:
() the number of people engaged in such uses but not dwelling on the premises;
(ii) the furnishings, Attings and contents of the premises; and
(iv) the gross profits resulting from such uses relative to the rent or proportion thereof paid by the person making such profits.
(4) Where a dispute arises as to whether a tenancy or sub-tenancy is domestic, the landlord, tenant, principal tenant or sub-tenant may, if primary user is relevant to the dispute, apply in the specified form to the Commissioner for bis certificate as to the primary user of the premises.
(5) Where an application under subsection (4) is made to the Commissioner, he shall inspect the premises, and may-
(a) where he is satisfied, on the evidence available, as to the primary user, issue free of charge a certificate as to the primary user of the premises on the day of his inspection:
(b) where he is not so satisfied, decline to give a certificate.
(6) A certificate issued by the Commissioner under subsection (5)a) shall be prima facie evidence of the facts set out therein and of the primary user of the premises on the day on which they were inspected.
(7) A landlord, tenant, principal tenant or sub-tenant may apply to the court-
(a) for a review of a certificate issued by the Commissioner: (b) where the Commissioner has declined to issue his certificate, for a determination as to whether the tenancy or sub-tenancy is domestic; or
(c) generally for a determination as to whether the tenancy
or sub-tenancy is domestic.