1952-HKRS28-8-19_Part01 — Page 15

Notice to guit to be inopurative in tenancies

to which the Ordinance applies. subject to power of exemption in certain cases by order of the Governor in Council.

Power of Governor in Council to declare by order that implied agreement shall cease to apply.

Application and effect on legal proceed- In3.

(Cap. 255),

3.

(1) Subject as hereinafter provided if and so long as this Ordinance applies to any tenancy and the tenant pays the rent reserved by the tenancy and performs any covenants express or implied applicable to such tenancy any notice to quit given by the landlord prior to the expiration of a period of three years from the commencement of the tenancy shall be and be deemed to have been inoperative.

(3) Nothing in subsection (1) shall affect the validity of any notice to quit given by a landlord to a person other than the original tenant in whose favour the tenancy was created: Provided that such notice may only validly be given to any person deriving title from the original tenant if this Ordinance has ceased to apply to the original tenancy,

(3) The Governor in Council may in any special case in which he considers-

(a) that the tenant has by his conduct forfeited the right to be

protected from eviction;

(b) that, having regard to the quantum of construction money, key money or other premium paid by or on behalf of the tenant and the rent reserved and to any other matter which he may consider materjal, such exemption should be granted,

by order declare that this Ordinance shall as from such date as may be specified in such order cease to apply to such tenancy. The Governor in Council may, in his discretion, refer any applica- tion hereunder to a tenancy tribunal in which event such tribunal shall record any relevant evidence and the submissions of the parties and forward the same to the Governor in Council with its recommendations for his decision.

4. The Governor in Council may by order declare that section 3 shall cease to apply to such class or classes of premises as may be specified in the order.

5. (0) Subject as hereinafter provided this Ordinance shall apply to any tenancy of premises to which the Landlord and Tenant Ordinance does not or would not apply by virtue of paragraph (a) or (b) of subsection (1) of section 3 of that Ordinance whether such tenancy was created before or after the commence- ment of this Ordinance.

(2) This Ordinance shall not apply-

(4) to any tenancy in writing or evidenced in writing for a term certain being a term of more than one month; (b) to any case in which the court is satisfied by evidence that no key or construction money or other premium of a similar nature has been paid;

(c) where the person who but for this Ordinance would be entitled to possession of the premises or would be so entitled upon giving notice to quit to the tenant is not the original landlord and has become so entitled by or under an assignment mortgage charge or other disposition executed or created prior to the material date;

(d) to any tenancy from the Crown or from the Custodian of Property or the Custodian of Enemy Property,

(3) In any legal proceeding commenced before the material date no defence shall be available which would not have been available bad this Ordinance not been passed.

(4) In any legal proceedings commenced after the material date and pending after the commencement of this Ordinance it shall be lawful for any party to set up any defence which would have been available had this Ordinance been enacted prior to the commencement of such proceedings but the court shall deal with any costs incurred in such proceedings prior to the Commencement of this Ordinance in like manner as if this Ordinance had not been passed.

(5) Any judgment in legal proceedings commenced after the 19th day of December, 1951, which would have been erroneous had this Ordinance then been in force shall on the application of the person against whom such judgment was obtained be set aside by the court which delivered such judgment: Provided that no previous order as to costs shall be liable to be set aside and that the costs of any such application shall be borne by the applicant.

(6) Nothing in this Ordinance contained shall be deemed to warrant the setting aside of any judgment already obtained before the 19th day of December, 1951, or to confer any right upon a tenant who has quitted the premises the subject of the tenancy prior to the commencement of this Ordinance.

(7) The onus of satisfying the court under paragraph; (b) of subsection (2) shall lie on the landlord and those claiming under him.