Thursday, July 10, 2008

How to Chase Illegal Tenant?




This post has been long over due, please accept my sincere apology my dear reader especially the one who sent me the email question.

To start with, let me recap the question and issue involved. The sender asked me regarding ‘how to chase out illegal tenant’

There are several ways to ‘chase’ out illegal tenant but in this blog I would rather discuss from the point of Malaysia law (yes I understand, being the landlord and in current ‘not-so-friendly’ situation, any other initiative whether effective or not should be taken only if the law permits!).

  • First of all, tenancy does not necessary require a written agreement, oral agreement is good enough for both parties to be bound with.
  • Even if no such oral agreement is made, any person who rent and pay the rental on monthly basis can be considered under the law and equity as ‘monthly tenant’ and subject to legal remedy in the event of any breach (most often failure to pay rental by the monthly tenant).
  • In Malaysia, the law applicable is Distress Act 1951, a full copy of the law can be downloaded here.
  • Other alternative is by claiming vacant possession through due process of court proceeding.

I would not discuss in detail both methods, but rather advising the sender as per the situation explained to me in the email. I may, while explaining touch a little of both method as comparison for better understanding. As usual, please consult your lawyer for better understanding.

The situation;

  • The landlord is now in Japan so that unable to attend to the situation personally (and immediately).
  • The tenant is/are foreigner.
  • The tenancy was handled by an agent duly appointed by the landlord.
  • The tenant refused or failed to enter/execute a written tenancy agreement.
  • The tenant fail or refuse to pay any deposit or rental (after his check canceled)
  • The agent on behalf of the landlord lodged a police report in order to get back the vacant possession of the premise
  • Being responsible to the landlord, the agent further took his own initiative to cut all utilities supply to the premise hoping that the tenant would deliver vacant possession, but the tenant still remain in the premise till date (presumably).

The solution;

  • Now at this point, the landlord must be determined of what he/she wants, either to continue with the tenancy and claim the overdue rental and deposit or to have the vacant possession immediately (considering the tenant has no legal status at all being a tenant) and claim damages.
  • If the landlord wants to continue with tenancy (though he/she may give notice to quit later, upon failure of further payment as provided by section 25 of Distress Act, 1951) and claims the overdue rental (not more than 12 months due), the legal remedy applicable is as per under section 5 of Distress Act, 1951 (I would refer to as ‘the act’ later).
  • Always bear in mind that an application under the act does not demanding tenant to deliver vacant possession to the landlord but rather merely to secure over due rent by seizing tenant property (exclusion to certain category) and later auction it!
  • Illegal practice in Malaysia:- we often hear landlord took nasty action against the tenant by going to the premise and seal the property with first going to court for a distress order. That is illegal and the landlord may be liable for damages and other claims. So don’t do that!
  • The distress order can be easy taken from court, after all it is an ex-parte application.
  • On the other hand, if the landlord considers the so called ‘tenant’ is not welcome even in first place, we may assume that the ‘tenant’ has trespass into the premise.
  • So the most appropriate action would be an action against trespass.
  • In other word, bring the action to court for the ‘tenant’ to deliver vacant possession and even with cost.
  • The action must be a normal action under summons in lower court or via originating summon in high court. Sorry no summary application allow under Order 89 of High Court Rule (no short cut).
  • Practical steps:
    • Make a police report
    • Don’t go for distress, not so suitable in this case
    • Go under normal summons
    • Try to get attachment before judgment as the ‘tenant’ is a foreigner.
    • Report to utility companies like TNB and SYABAS for any illegal supply tapping.
    • If the premise has security, let them prevent the ‘tenant’ from entering the premise or otherwise they could be held liable.

Ok, I think that is sufficient for now. Good luck.


image taken from: www.irvinehousingblog.com

4 comments:

  1. dear Kamarul

    i have an apartment rented out to a foreigner, she paid 1st month rental and there is none thereafter. its almost 5 months now, my sms n phone calls remain unanswered.

    we signed the agreement using the agent. the agent is also hopeless and helping the case.

    pls advise the proper way to handle this

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  2. dear yellow rubee, you have an agreement right? so, why don't you look at it and look at the clause that related to this issue before we can advise you.. thanks for viewing our blog and we apologize for the late reply..

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  3. In my case , I m a tenant. My landlord demanded a jump of 50% increase in rental just after 1 year rental agreement ,which I refuse . The tenancy Agreement alrdy lapsed/expired .I still have 2 months deposit and utility deposit with the Landlord.He agreed to use the deposit for the last 2 months as rental before i shift out. However , just after 1 month he cut all the utility(water/Elect) to the unit ( I still have sufficient utility deposit with him )and now he claimed I owe him 2 mths rentals without taking into account what he agreed earlier and the deposits I still have with him . He quitely applied for a distress order and now i am stuck with this matter of auction in 14days . What can I do ? I felt cheated and treated unfairly , pls help..urgent advise appreciated . TQ

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  4. dear anonymous, please refer to that agreement to know about you position in this case. for now, we can only advise you to make a police report for your records. meet a lawyer to get them to apply for stay of execution. do it fast. wish you luck.

    ReplyDelete