Hong Kong Ordinances

LANDLORD AND TENANT (CONSOLIDATION) ORDINANCE - SECT 51

Meaning of "domestic tenancy" (住宅租賃)

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 29 of 1998 s. 105

(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)

"domestic tenancy" (住宅租賃) and "domestic sub-tenancy"
(住宅分租租賃)