Hong Kong Ordinances

LANDLORD AND TENANT (CONSOLIDATION) ORDINANCE - SECT 115A

Determining the nature of a tenancy

(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) 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, 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; but where such primary user is user as a
        dwelling and in breach of any term in the agreement with the landlord,
        the onus is on the tenant to establish that such user has been agreed
        to by the landlord, 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 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;

   (e)  the use of premises as a boarding or lodging house is a use other than
        as a dwelling.

(2) 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 or
        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 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.

(3) Where a dispute arises as to whether a tenancy is domestic, the landlord
or 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.

(4) Whether or not a dispute arises as to whether a tenancy is domestic, a
landlord or tenant may apply in the specified form to the Commissioner for his
certificate as to the primary user of the premises.

(5) Where a person applies to the Commissioner under subsection (4) 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 by notice published in the
        Gazette; and (Amended 32 of 2002 s. 9)

   (c)  lodge the application form with the Commissioner not less than 10 days
        before the day specified in the form.

(6) The Commissioner shall, where practicable, carry out the inspection under
subsection (7) 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.

(7) Subject to subsection (8), where an application under subsection (3) or
(4) 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 (3) and serve on the landlord and tenant 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 (3) and serve on the landlord and tenant
        a notice in the specified form declining to express an opinion as to
        the primary user of the premises.

(8) Where the Commissioner issues a certificate under subsection

(7)(a), no further application may be made under subsection (3) or (4) before
the expiry of 1 year from the date on which that certificate is issued.

(9) A certificate issued by the Commissioner under subsection

(7)(a) shall, for all purposes, including an application under subsection

(10), 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.

(10) A party to any tenancy may apply to the Tribunal to determine whether or
not a tenancy is domestic and the Tribunal may determine that question for the
purposes of this Part. (Added 53 of 1993 s. 27)