TNAG-0669-FCO40-818-Policy-on-housing-and-resettlement-in-Hong-Kong-1977 — Page 35

HKLJ (1977)

228

A J BRADBROOK

an unfettered discretion in all circumstances.

As it has already been suggested that tenants should have a ht of appeal in the case of termination for the above reasons, would seem logical and appropriate to extend their rights of appeal to the area of the exchange of tenancies. There is little danger that there will be a rush of appeals under this proposed head of jurisdiction of the tribunal, as the number of exchanges effected in the past has consistently numbered fewer than one hundred per annum.39

(4) Discretionary powers relating to flats rendered unfit for occupation

This matter relates to clause 4(f) of the present tenancy agreement, which reads:

'Should the said flat or part thereof be rendered unfit for occupation by any cause not attributable to the negligence or default of the tenant, the rent or part thereof proportioned to the damage suffered by the said flat shall abate and cease to be payable until the said flat shall have been again rendered fit for occupation: Provided always that the landlord shall not be required to reinstate the said flat if by reason of the condition of the premises or any local regulations or other circumstances beyond the control of the landlord it is in the opinion of the landlord not practicable or reasonable so to do.'

Although the inclusion of such a rent abatement clause is one of the better features of the tenancy agreement in that it partially rectifies the bias in the document towards the Authority, nevertheless the effectiveness of the clause is weakened by the two broad areas of discretion granted to the Authority: the discretion to determine whether the flat is in fact damaged sufficiently severely to be classed as unfit for occupation and so give rise to an abatement of rent, and the discretion to determine whether it is practicable and reasonable to reinstate the flat.

It is submitted that both these areas of discretion concern matters of sufficient importance to the tenant to justify the establishment of a right of appeal. If the Authority should refuse to exercise its discretion to declare a severely damaged flat unfit for occupation, this could result in the tenant not only having to continue to pay full rent for damaged premises but also

** The previous Housing Authority used to publish in its annual reports the number of exchanges effected each year. For the last three years of its operation, the relevant figures were 66 (1970-71), 84 (1971-72), and 74 (1972-73).