1959-HKRS29-8-26_Part03 — Page 2

5

Landlord's

liability in virtue of obligation Lo repair,

occupier, this section shall apply as if the terranicy were a contrac between the landlord and the tenant,

(5) This section, in so far as it prevents the common duty of care from being restricted or excluded, applies to contracts entered into and tenancies created before the commencement of this Ordinance, as well as to those entered into or created after its commencement; but, in so far as it enlarges the duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to obligations which are undertaken after that commencement or which are renewed by agreement (whether express or implied) after that commencement.

5. (1) Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the main- Lenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation, as if he were an occupier of the premises und these persons or their goods were there by his invitation or permis- sion (but without any contract).

(2) Where premises are occupied under a sub-tenancy, subsection (1) shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the Occupier for the maintenance or repair of the premises is put by the sub-tenancy, and for that purpose any obligation to the occupier which the sub-tenancy puts on a presne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated as put by it also on any landlord on whom the mesne landlord's tenancy puts the like obligation towards the inesne landlord.

(3) For the purposes of this section, where premises comprised in u tenancy (whether occupied under that tenancy or under a sub-tenancy) are put to a use uot permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescencu or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the promises shall be deemed to be lawfully on the premises as regards that landlord or any superior landlord of the premises. whether or not they are lawfully there as regards an inferior landlord.

(4) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to the occupier of the promises unless his default is such as to be actionable at the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord.

(5) This section shall not put a landlord of premises under a greater duly than the occupier to persons who or whose goods are

lawfully on the premises by reason only of the exercise of a right of

way.

(6) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section.

(7) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy, and "tenancy" includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and "landlord" shall be construed accordingly.

(8) This section applies to tenancies created before the com- mencement of this Ordinance, as well as to those created after its comumencement.

Liability in contract.

in contracts.

6. (1) Where persons enter or use, or bring or send goods to. Implied terna any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right. shall be the common duty of care.

(2) Subsection (1) shall apply to fixed and moveable structures as it applies to premises.

(3) This section does not affect the obligations imposed on a person by or by virtue of any contract for the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel, aircraft or other means of transport, or by or by virtue of any contract of bailment,

(4) This section does not apply to contracts entered into before the commencement of this Ordinance,

General,

7. This Ordinance shall bind the Crown, but as regards the Application. Crown's liability in tort shall not bind the Crown further than the to Crown, Crown is made liable in tort by the Crown Proceedings Ordinance, (18 of 1957), 1957, and that Ordinance and in particular section 4 of it shall apply in relation to duties under sections 3 to 5 of this Ordinance as statutory duties.

Passed the Legislative Council of Hong Kong, this 21st day of October, 1959.

(Secretariat GR L/M 11075/59)

Sallyman

Deputy Clerk of Councils.