TNAG-0669-FCO40-818-Policy-on-housing-and-resettlement-in-Hong-Kong-1977 — Page 21

J BRADBKUUK

HKLJ (1977)

view of the extreme difficulty usually experienced by tenants. who qualify for public housing in finding satisfactory accom- modation in the private sector that they can afford.

Two changes are necessary to clauses 1 and 4(c). First, at the initial stages of the tenancy the agreement should continue to provide for a monthly tenancy; however, if during the first six months a tenant proves himself to be a satisfactory tenant by paying his rent promptly and complying with the other terms and covenants of the agreement, it is submitted that he should be granted a yearly tenancy, under which he would be given the security of six months' notice. Secondly, if this suggestion is acted upon, it would seem essential by way of a safeguard to grant the tenant a right of appeal in the event that the Authority refuses to grant him a yearly tenancy. Mention of this right of appeal would need to be inserted in clause 1 of the agreement.

The tenancy agreement overlooks several statutory and common law rights of public housing tenants. For example, objection can be made to the absence of a covenant for quiet enjoyment. It may be argued that to include such a covenant in the agreement would be pointless as its significance would not generally be understood by tenants, and in any event in the absence of an express covenant for quiet enjoyment one is implied at common law.19 However, the inclusion of an express covenant of quiet enjoyment would draw the attention of the tenant to his right to sue for damages if he feels that he has been harrassed by the Housing Authority, and although the wording of such a covenant may be meaningless to him, the oral explanation of the agreement which is always given by the Authority at the commencement of the tenancy may enlighten him as to the significance of the clause. In addition, the document makes no mention of the existence of the Housing Authority Appeals Committee, to which all tenants of public housing have the right of appeal on being served with a notice to quit. The relevant legislation establishing the Appeals Committee and bestowing a right of appeal to tenants will be discussed later, along with a suggestion for the replacement of the committee by a Public Housing Appeals Tribunal exercising a much wider jurisdiction. At this stage, however, it is sufficient to remark upon the need for a well-balanced tenancy agreement to set out in detail any right of appeal allowed the tenant. Although it may be argued that any mention of a right of appeal in any tenancy agreement is superfluous in that the right is granted by

· Markham v Paget [1908] 1 Ch 697; Kenny v Preen [1963] 1 QB 499.