Academic journal article Asia Pacific Law Review

Termination of Public Housing Tenancies in Hong Kong

Academic journal article Asia Pacific Law Review

Termination of Public Housing Tenancies in Hong Kong

Article excerpt

I. Introduction

Hong Kong is well known for its expensive accommodation. In recent years, due to the drastic rise of prices and rental charges for private residential property1 and the complete abolishment of rent control in Hong Kong,2 public housing has become the major accommodation source for most local low income and a growing number of middle income families. The decision to terminate a public housing unit ('PHU') tenancy, therefore, is a serious matter to both the tenant and his family members.

This article attempts to critically evaluate and review the principles in relation to the termination of PHU tenancies in Hong Kong as a result of judicial intervention through judicial review. The first part of this article will discuss the mechanism for terminating a PHU tenancy and explain why the court and the principles of judicial review are involved in a seemingly private landlord-tenant decision. The second part, with due respect, submits that the Hong Kong courts have adopted a policy-based approach which has resulted in applying inconsistent standards in reviewing a PHU termination decision based on the reasons of termination. It is then argued that the inconsistent approaches are undesirable as it not only creates a state of confusion, but also ignores the terms of the contract entered between the HKHA and its tenants and imposes an unreasonably high burden of proof on the HKHA. The article finally concludes with a two-step approach and proposes that such a uniform approach should be applied to all public housing tenancy termination decisions.

II. Brief History of Public Housing in Hong Kong

The early development of the public housing policy of Hong Kong is very much unstructured. The first public housing project in Hong Kong was a temporary measure in response to the social concern raised in 1954 after a tragic fire in a slum area in Shek Kip Mei occupied by 50,000 immigrants.3 It was not until 1972 that a formal public housing programme was introduced with the establishment of the HKHA, an independent statutory corporation4 which has a statutory duty to secure the provision of housing to low income families,5 to implement the programme. As at September 2013, about 30 per cent of the total population in Hong Kong lived in PHUs6 and the HKHA remains the sole landlord for managing all PHUs in Hong Kong.

III. Terminating a HKHA Tenancy: Mechanism

When an applicant is allocated a PHU, the HKHA will enter into a tenancy agreement with the tenant, using a standard form ('HKHA Tenancy Agreement').7 A termination clause is found under clause 4(c) of the HKHA Tenancy Agreement which permits the HKHA and the tenant each to terminate the tenancy by giving at least one calendar months' notice in writing expiring at the end of any calendar month. At the same time, additional termination mechanisms are found in the Housing Ordinance ('HO') (Cap 283). Section 19(1) of the HO stipulates that notwithstanding the terms in the HKHA Tenancy Agreement, the HKHA may terminate the tenancy agreement:

(1) without notice, if, in the opinion of HKHA, that the land held under the HKHA Tenancy Agreement has become unfit for human habitation, a nuisance, dangerous to health or unsafe;8

(2) without notice, if, in the opinion of the HKHA, no person authorised under the HKHA Tenancy Agreement to occupy the land or part thereof occupies the land or part thereof;9 or

(3) otherwise, by giving such notice to quit as m ay be provided for in the HKHA Tenancy Agreement or one month's notice to quit, whichever is the greater.10

The termination power under section 19(1)(b) of the HO to some extent supplements the termination power found under the HKHA Tenancy Agreement. However, a tenant who is served with the notice to quit ('NTQ') under the HO but not the HKHA Tenancy Agreement can, not later than 15 days of receiving such notice, appeal to a panel of the Appeal Tribunal.11 The Appeal Tribunal is equipped with wide powers to confirm, amend, suspend or cancel the NTQ after the hearing. …

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