TNAG-0669-FCO40-818-Policy-on-housing-and-resettlement-in-Hong-Kong-1977 — Page 19

assign or sub-let the premises to a respectable and responsible person,12 and there is no legal obligation on a landlord to let the premises in a good state of repair or to keep the premises in repair during the term of the tenancy.13

Secondly, the Authority has derived an advantage from the common law principle of freedom of contract. Under this principle, a lease is regarded at law as a fair and well-balanced document based on the assumption that the landlord and the tenant have roughly equal bargaining strengths and that both parties are able to protect their respective interests by negotiation. Other authors have shown that this principle of freedom of contract often works an injustice on the tenant in the private sector as in reality the tenant is in an inferior position to the landlord in any negotiations on the contents of a lease.14 The principle is manifestly unjust in the 'case of public housing leases. In the exercise of its discretionary powers, the Authority has drafted its own standard form of tenancy agreement which is presented to prospective tenants on a ‘take it or leave it' basis. Any attempt by the tenant to suggest a modification to the tenancy agreement will be met by the comment that the agreement is a standard form and must be adhered to. The weakness of the position of the prospective Housing Authority tenant is compounded by the fact that in order to qualify for a flat he must have been rendered homeless due to a variety of causes15 or have waited on the waiting list for anything up to

12

13

Although at common law, in the absence of a special agreement to the contrary, a tenant has the right to dispose of his interest to a third party without the consent of the landlord, either by assigning his term or by creating a sub-lease, special agreements are invariably included in covenants in the standard forms of residential lease currently in use.

See Cruse v Mount [1933] Ch 278. Common law was only prepared to place the landlord under an obligation to repair in two situations. First, a warranty of fitness is implied where a lease is entered into before the building of the premises is complete (Miller v Cannon Hill Estates Ltd [1931] 2 KB 113). Secondly, there is the anomalous implied condition established in Smith y Marrable (1843) 11 M & W 5; 152 ER 693 (Exch) that in the case of furnished premises the premises are fit for human habitation at

at the commencement of the lease. Even here, however, there is no implied condition that the premises remain fit for human habitation; thus, if the defect rendering the premises unfit occurs during the term of the lease the tenant has no remedy (Pampris v Thanos [1968] 1 NSWR 56).

"See, eg, Mueller, 'Residential Tenants and their Leases: An Empirical Study' (1970) 60 Michigan LR 247; and Arbittier, 'The Form 50 Lease: Judicial Treatment of an Adhesion Contract' (1963) 111 University of Pennsylvania LR 1197.

16 The Housing Authority has established the following categories of eligibility for allocation of housing: victims of fire and natural disasters; compassionate cases recommended by the Social Welfare or Medical and Health Departments;