TNAG-0669-FCO40-818-Policy-on-housing-and-resettlement-in-Hong-Kong-1977 — Page 18

VOL 7, NO 2

HOUSING AUTHORITY'S DISCRETION

211

society, in most respects public housing authorities and tenants are governed by the same laws.

In Hong Kong, the only major difference between the laws governing the rights and duties of landlords and tenants of private and public rented accommodation is that rent control does not apply to the public sector. The application of part II of the Landlord and Tenant (Consolidation) Ordinance, which imposes a form of rent control over all domestic tenancies in post-war buildings except where the buildings are certified for occupation after December 14, 1973, is expressly excluded by section 50(6). This sub-section states: "This part shall not apply to the following

(e) a tenancy held from the Crown, the Hong Kong Housing Authority, the Hong Kong Housing Society or the Hong Kong Model Housing Society, or a sub-tenancy created out of such a tenancy.' The application of part I of the Landlord and Tenant (Consolidation) Ordinance, which imposes a more strict form of rent control over all domestic tenancies in pre-war buildings, is similarly excluded from applying to public housing by virtue of section 34 (2) of the Housing Ordinance.9

In all other respects except rent control, the Authority is subject to the same laws as private landlords. One corollary of this is that the Authority is able to exercise broad discretionary powers while its tenants are legally in a position of weakness. Two factors have combined to place the Authority in its position of strength. First, the Authority has the advantage of the imbalance in the current landlord-tenant law favouring the landlord. For example, a landlord has no duty to mitigate his damages in the event that the tenant abandons the premises,10 there is no legislation guaranteeing the tenant's right of privacy,11 there is no automatic right vested in the tenant to

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Pursuant to s 50, Landlord and Tenant (Consolidation) Ordinance (cap 7, LHK 1975 ed).

See s 3, Landlord and Tenant (Consolidation) Ordinance, for the detailed rules on the application of part I.

Section 34(2) reads: 'Property vested in or placed under the control of the Authority for the purposes of this Ordinance shall be exempt from the Landlord and Tenant Ordinance.'

See Maridakis v Kouvaris (1975) 5 ALR 197 and Boyer v Warbey [1953] 1 QB 234.

Common law adopted a laissez-faire approach in this matter. In the exercise of the principle of freedom of contract it is left to the tenant and the landlord to negotiate what rights of entry (if any) should be allowed the landlord. The use of standard forms of lease in both the private and the public sector has resulted in an invariable right being given to the landlord to inspect the premises, but the leases contain no remedy for a tenant in the case of unauthorised entry by the landlord.