Full legislation
s.51
Meaning of domestic tenancy
(1)
For the purposes of
section 50
,
domestic tenancy
(
住宅租賃
) and
domestic sub-tenancy
(
住宅分租租賃
) mean a tenancy or sub-tenancy of premises
let as a dwelling.
(2)
Notwithstanding the purpose for which premises were let, in determining the
nature of a 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 a 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 Tribunal to the
contrary;
(Amended
76 of 1981 s. 34
)
(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—
(a)
the covenants, terms and conditions in any Government lease, tenancy or
sub-tenancy;
(Amended
29 of 1998 s. 105
)
(b)
any occupation permit given by the Building Authority under
section
21
of the Buildings Ordinance (
Cap. 123
),
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 paid 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
to the primary user of the premises and shall specify in the form the nature of the
dispute.
(4A)
Whether or not a dispute arises as to whether a tenancy or sub-tenancy is
domestic, a landlord, tenant, principal tenant or sub-tenant may apply in the
specified form to the Commissioner for his certificate as to the primary user of the
premises.
(Added
56 of 1976 s. 3
)
(4B)
Where a person applies to the Commissioner under subsection (4A) he
shall—
(a)
specify in the application form a day, other than a public holiday, on
which he would like the inspection to be carried out;
(b)
at the time when he lodges the application, pay such fee as may be
determined by the Financial Secretary; and
(c)
lodge the application form with the Commissioner not less than 10 days
before the day specified in the form.
(Added
56 of 1976 s. 3
)
(4C)
(Repealed
32 of 1985 s. 9
)
(4D)
The Commissioner shall, where practicable, carry out the inspection under
subsection (5) on the day specified in the application or, if the inspection cannot
be carried out on that day, as soon thereafter as is reasonably possible.
(Added
56 of 1976 s. 3
)
(5)
Subject to subsection (5A), where an application under subsection (4) or (4A) is
made to the Commissioner, he shall inspect the premises, and
may—
(a)
where he is satisfied on the evidence available as to the primary user,
issue free of charge in the case of an application under subsection (4) and
serve on the landlord and tenant or principal tenant and sub-tenant, as the case
may be, a certificate 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 in the case of an
application under subsection (4) and serve on the landlord and tenant or
principal tenant and sub-tenant, as the case may be, a notice in the specified
form declining to express an opinion as to the primary user of the
premises.
(Amended
56 of 1976 s. 3
;
29 of 1983 s. 12
)
(5A)
Where the Commissioner issues a certificate under subsection
(5
)(
a)
,
no further application may be made under subsection (4) or (4A) before the expiry of
1 year from the date on which that certificate is issued.
(Added
29 of 1983 s. 12
)
(6)
A certificate issued by the Commissioner under subsection
(5
)(
a)
shall, for all purposes, including an application under subsection (8), be prima
facie evidence of the facts set out therein and of the primary user of the premises
on the day on which they were inspected.
(Amended
76 of 1981 s. 34
)
(7)
(Repealed
29 of 1983 s. 12
)
(8)
A party to any tenancy or sub-tenancy may apply to the Tribunal to determine
whether or not a tenancy or sub-tenancy is domestic and the Tribunal may determine
that question for the purposes of this Part.
(Replaced
29 of 1983 s. 12
)