Tuesday, August 26, 2008

Vacant Possession of Land-continue

Salam,

I was in court this morning handling one of civil litigation case pertaining claiming back vacant possession of land. There are 9 defendants, one of which I have withdrawn the case against him earlier as he already comply with plaintiff notice of demands before the court first mention date.

The other 8 defendants, two represented this morning by a counsel (only made his first appearance in court today). At the first mention date, all the defendants attended, so to save a lot of my time filing affidavit of service confirming that the summons has been duly served on them, fuh…

The court on the first date ordered that all defendants must enter their statement of defense on or before today's sitting. They however, fail to do so. Few days ago I have taken my own initiative to send reminder letters to them saying I will, at court discretion, apply for a judgment in default of defense if they fail to serve me their defense. They did receive the letter but still unable to come out with their defense statement.

So, in pursuance with Order 14 Rule 5(3), Subordinate Court Rules, 1980, I apply for judgment in default of defense, and the court granted it. Meanwhile, after the mention at about 10am, the lawyer appeared in court, asking the court to re-mention the case, and informing that he has just been appointed representing two of the defendants, I did not object, and at the counsel again asked for oral application to set aside the judgment, I objected and ask him to put in his written application saying I will not proceed any execution until he put in his application within two weeks. The court, however a bit lenient this morning, despite the fact the counsel came late and applying orally, the learned judge still allowed his application. I was a bit unhappy with the decision and start arguing with the judge, but hey no point fight the bench, so I stay put with the decision.

On top of that, the other defendants ask the judge to request some time before they deliver vacant possession, again the judge ask me for undertaking not to execute the judgment until certain considerable period, I have to agree on this and told the court that the decision is on my client but I will advise them accordingly.

Oh ya, one more thing the defendants did ask for some amount of money for compensation! Now I already starting to burst…what a typical Malaysian attitude, illegally sit on somebody's land and still have the face to be compensate! This time, I screw them hard in court. And the judge, have to agree, that there is no provision under any law neither under equity that they are entitle for compensation.

Why I screw them and why the plaintiff or any other landlord need not pay any compensation upon claiming back vacant possession, I will discuss further on my next post.


 

Regards,

Kamarul Irzuan, Advocate & Solicitor, High Court of Malaya, Malaysia.

 

4 comments:

  1. Hi,

    Nice blog you got here and thanks for sharing your knowledge.

    I have a question about vacant possession.

    Let say A bought over a piece of land from the seller, B, who is supposed to give vacant possession on completion, as stated in the s&p agreement. The understanding is A buy this piece of land is for new property development but is not worded in agreement. On completion date, B ensure that there is no one staying on that land. But after clearing the weeds and vegetation after completion, A found out that there are many graves left on site.

    So now the question is: does vacant possession include clearing of graves by B? Or this responsibility and cost is to be born by A?

    Many thanks.


    Sand Paper

    ReplyDelete
  2. What about vacant possession for a property where MOT was not perfected? can the purchaser still obtain a vacant possession?

    ReplyDelete
  3. For first question, vacant possession generally meant inhabitant on the land. As for grave my opinion is that the priciple 'caveat emptor' shall apply. Means, let the buyer beware.

    As for the second question, yes even if the mot has not been perfected, the purchaser or the tranferee has the legitimate interest on the land and his right or locus standi could be easily established by the consent of the transferor.

    ReplyDelete
  4. can you post a sample of notice to vacant possession? or where can i get the sample? and if at the 1st place the so called 'tenant' was the landlord brother and he stay/occupied the premises long time ago without actually paying any amount of rent.. so my question is, can the landlord/the lil brother sent the notice to vacant possession?

    ReplyDelete