Intro:
To begin this article, allow us briefly explain what we mean by 'landlord' and 'tenant' in this context of today's discussion.
For those who are not familiar with the term, landlord is the owner land or premise be it dwelling house, shop lot or factory etc, either having registered interest or beneficial interest. And the tenant means a person, company or organization renting the premise, either on contractual basis or 'monthly basis'.
In any part in this world renting premises is a common practice. The relationship between the landlord and tenant however may differ. In Malaysia, unless for expensive rental rate or business premises, most rental practice do not have any kind of written contract binding upon landlord and tenant. Though, written contract of tenancy is highly encouraged, any tenancy with no written agreement is also valid and enforceable by law (Evidence Act- the tenant is estopped from denying the ownership/right of landlord). Such tenancy is called monthly tenant.
Problem Scenario:
- We have discussion before on how the landlord should do in the event his/her tenant fail to pay rent (please refer to our last post) and that the landlord wants to take back his/her premise from the tenant, but still from our feedback we notice that 'the same old illegal practice of taking the law in the landlord's own hand is still 'happily' preferred.
- So, this article will focus on what is the position under the Malaysian law 'governing' the situation.
- Please read carefully, because if the landlord fails to follow the correct procedure, the landlord may face civil (or even criminal) suit claiming damages from the tenant notwithstanding that the rent is still overdue!
Our law:
- Repossessing rented premise from tenant fall under statutory law of Specific Relief Act in particular section 4, in which the law make it compulsory for landlord to get court order to evict and repossess.
- Failing which the tenant may press suit against the landlord for damages.
- The law simply a blanket provision, it covers written or verbal tenancy contract, or monthly tenant.
Stop taking matter in your own hands
- Our normal practice of 'locking out (or in)' the premise from the tenant, cutting utilities, sealing premises and whatsoever are directly against the intention of the law.
- The tenant beside having the right to claim damages from landlord, he may also initiate an injunction proceeding enforcing his right to rent or right to stay or prohibiting landlord from disturbing his harmonious rent or stay on the premise.
Solutions:
- If the landlord wishes to collect his overdue rental from the tenant, the landlord may file a distress proceeding against the tenant.
- If the landlord wants to recover back his premise and at the same time claiming overdue rental, the landlord should file a simple eviction summons in court against the tenant.
- But before that, the landlord should serve eviction notice to the tenant giving the tenant certain grace period to handover vacant possession and pay all overdue rental.
- Bonus to the landlord is that after the expiry of such notice the landlord may claim double rental if the tenant remains in occupation of the premise.
- If the landlord feel that the tenant may try to escape his liability (to pay overdue rental) by 'moving out at night' J the landlord may immediately after filing his suit in court apply for 'attachment of property before judgment' (though this application may not be very popular or rarely allowed by court, but a good advocate may deliver the work well).
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