1973-HKRS28-16-21_Part05 — Page 9

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tenancy for the purposes of this Part, 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, premises which are being used primarily for another purpose shall be deemed to have been let for such other purpose:

Provided that where such primary user is user as a dwelling and in breach of any term in the agreement with the landlord or principal tenant, as the case may be, then the tenant 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 let as 2 dwelling, the nature of the tenancy or sub- tenancy shall be determined by the primary user of the premises:

(d) where there is evidence that premises were let otherwise than as a dwelling, or that they were being used otherwise than as a dwelling at the commencement of a sub-tenancy created out of the original tenancy, any premises the subject of such sub-tenancy shall themselves be deemed to be used otherwise 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-

(CAP. 133.)

(a) the covenants, terms and conditions in any

Crown lease, tenancy or sub-tenancy; (6) any occupation permit given by the Building Authority under section 21 of the Buildings Ordinance, or under any Ordinance replaced thereby, in relation to the premises; (c) normal additional uses of premises consistent with the domestic nature of a tenancy or sub-tenancy having regard to the following--- (i) floor area in occupation part or full- time for such uses:

(ii) the number of people engaged in such uses but not dwelling on the premises;

(iii) the furnishings, fittings and contents of the premises; and

(iv) the gross profits resulting from such uses relative to the rent or proportion thereof puid 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 his certificate as lo the primary user of the premises and shall specify in the form the nature of the dispute.

(5) Subject to subsection (7), where an applica- tion under subsection (4) is made to the Commis- sioner, be shall inspect the premises, and may-

(a) where he is satisfied on the evidence avail- able as to the primary user, issue free of charge and serve on the applicant a certifi- cate in the specified form as to the primary user of the premises on the day of his inspection:

(b) where he is not so satisfied, issue free of charge and serve on the applicant a notice in the specified form declining to express an opinion as to the primary user of the premises.

(6) A certificate issued by the Commissioner under subsection (5)(a) shall be prima facie evidence