| Pros | Cons |
| The landlord/landlady can bring all sorts of claims e.g. arrears of rent, forfeiture of deposit, outstanding water and electricity bills, maintenance charges, rectification costs and damages, and so on. Complies with Malaysian laws. Landlord/landlady would not be subject to claims by tenants for unlawful interference to possession, trespass or damage or loss of property, etc. A court order is enforceable via a writ of possession wherein the Court would order the court bailiff to enter and take possession of the landlord’s property. Police officers’ assistance may be requested, if necessary. | Landlord have to pay legal fees |
Being a landlord or landlady comes with its share of rewards and challenges. One of the main worries is whether the tenant pays in full and on time every month. When your tenant breached the tenancy agreement, what can you do (or not)? Discover your rights as a landlord or landlady, before making any rash decision.
Sometimes the unfortunate happen, such as a tenant defaulting on rent or overstaying after termination of rental.
Before evicting a tenant, you could try reasoning and discussing alternatives that work for both parties. If that fails, then the next step is a legal recourse.
iProperty.com.my spoke to a senior associate at MahWengKwai & Associates, Denise Phang, for her legal perspective of tenant eviction.
Reviewing The Tenancy Agreement
A tenancy agreement plays a vital role in taking legal action against those who fail to fulfil their responsibilities as a tenant. The more detailed a tenancy agreement is, the better it is at protecting both parties’ rights.
Disputes often arise when scenarios and issues aren’t included in the tenancy agreement. Both parties can opt to consult with their respective lawyers to review the agreement before signing and stamping it.
READ: Stamp duty, administration and legal fees for a tenancy agreement in Malaysia
Before we get into the thick of tenant eviction, let’s quickly take a detour of what happens if the landlord or landlady would like to terminate when there’s NO breach in the tenancy agreement?
According to Phang, it would largely depend on the terms of the tenancy agreement. Some tenancy agreements allows either party to terminate the agreement at any time subject to advance notice in writing e.g. two months prior to the date of termination.
However, some tenancy agreements are fixed term agreements and cannot be terminated without a breach by either party.
Such agreements usually would have a clause that stipulates that the terminating party would have to compensate the other party and pay damages for the remaining unexpired term of the tenancy agreement.
READ: Early Termination Of Tenancy Agreement In Malaysia And Its Consequences
Can You Evict A Tenant Without Going To Court?
Can a landlord or landlady evict a tenant without going to court when there’s a breach of contract by the tenant?
Phang advised, “From a legal perspective, the answer would be no. Pursuant to Section 7(2) of the Specific Relief Act 1950, a landlord can only recover possession of the property by filing an action in court.
“Self-help measures such as the termination of electricity supply or changing of locks are not legal means of evicting defaulting tenants.”
Currently, Malaysia does not have a specific legislation to govern the relationship between landlords and tenants.
So, parties often would have to rely on the general provisions of the law such as the Specific Relief Act 1950, Contracts Act 1950, Distress Act 1953, Civil Law Act 1956, Limitation Act 1953 and Rules of Court 2012.
The Malaysian Government via the Ministry of Housing and Local Government is in the midst of drafting the Residential Tenancies Bill (RTB) to govern and regulate residential tenancies. However, the RTB has not been tabled in Parliament to date.
4 Steps To Evicting A Delinquent Tenant In Malaysia
1) Seek professional legal advice
2) Issue an eviction notice in writing to the tenancy to notify the tenant of:
- any breaches of the tenancy agreement committed by the tenant, such as defaulting on rent payments;
- termination of the tenancy agreement;
- demand for delivery of vacant possession within a reasonable period of time; and/or
- demand any arrears of rent, outstanding utility bills, maintenance charges, damages, etc.
3) Consider which court action is more suitable based on the landlord’s claims (civil action or writ of distress)
4) Pursue legal action via court proceedings to evict the tenant from your property
Issuing An Eviction Notice – What You Should Know?
If the tenant has breached the contract, such as defaulting on rent payments for many months, then an eviction notice can be issued.
A grace period must be included in the eviction notice, to allow the tenant to vacate the property, settle all overdue rent, and officially handover in all items included in the property.
Moreover, the eviction notice must be signed by the tenant as evidence that he or she is aware of the notice.
“An eviction or termination notice is usually required under the tenancy agreement in order to notify the tenant of any breach of the tenancy agreement committed, termination of the tenancy agreement by the landlord, and the time when the tenancy is required to return possession of the rental property to the landlord.
“Even if such a notice is not required under the tenancy agreement, such a notice should still be issued in order to protect the landlord in the event court proceedings are brought by the tenant,” Phang shared.
Recovery Of Damages Via Civil Action
A landlord can only sue for damages in a civil action, and a writ of possession can only take place after a civil action is commenced and a court order or judgment is obtained.
A writ of possession means that you’re requesting the court to evict the tenant from your property. Once the court grants this writ, the court bailiff can enter the property and take the property back for you by force.
Phang explained, “A court order or judgment for eviction is what a landlord would usually be granted if the court allows the landlord’s civil action against a tenant. A consent judgment is awarded only if parties voluntarily agree to settle the case amicably.”
The pros and cons of recovering damages via civil action
Recovery Of Overdue Rent Via Distress Action / Writ Of Distress
Alternatively, the landlord or landlady may apply to the court for the issuance of a warrant of distress for the recovery of the overdue rent by seizing the tenant’s goods and selling them to recover the outstanding rental. A distress order could take three to six months to get.
Phang explained that a Writ of Distress under the Distress Act 1950 is limited in its scope as it only allows the landlord or landlady to recover a maximum of 12 months of arrears of rent.
This would exclude claims for possession of the rental property whilst the tenant is still in occupation, outstanding water and electricity bills, maintenance charges or rectification costs, and so on.
A separate civil action would have to be taken for these other claims.
“The court will issue a warrant to the court Bailiff to seize and sell the goods of the tenant that are found on the rental property to satisfy any arrears of rent, provided that the tenant is still in occupation of the rental property.
“Landlords may apply for a warrant of distress on an ex-parte basis (without prior notification to the tenant). The enforcement of the warrant of distress would come as a surprise to the tenant which may prompt the tenant to settle the arrears of rent urgently to prevent the seizure of the tenant’s property,” Phang said.
The pros and cons of recovering overdue rent via Distress Action / Writ of Distress
| Pros | Cons |
| Recovery of arrears of rent Fast and less costly compared to a civil action | Limited to claims for arrears of rent only |
Can A Tenant Sue A Landlord/Landlady In Return?
Now, let’s flip the script. We now know that the landlord or landlady can take civil action or distress action against a tenant.
But let’s find out the circumstances where a tenant can sue a landlord or landlady instead. Here’s what Phang shared:
1) If the landlord breaches the terms of the tenancy agreement, the tenant may sue the landlord to compel the landlord to comply with the terms of the tenancy agreement or to recover any cost, expenses or damages incurred.
For example, when the landlord refuses to make certain major repairs to the rental property such as roof leakage.
2) If the landlord unlawfully terminated the tenancy agreement, the tenant may sue the landlord for unlawful termination of the tenancy agreement to recover any deposits paid and any damages resulting from the unlawful termination of the tenancy agreement e.g. renovation costs, damages for disruption of occupation or business carried out on the rental property.
3) If the landlord resorts to threats or self-help measures to force the tenant to desert the premises, the tenant may apply to the Courts for an injunction to prevent the landlord from doing so and claim for any damages arising from the unlawful interference by the landlord e.g. damages suffered or any loss of belongings.
Remember not to take the law into your own hands. Seek the assistance of a law firm such as MahWengKwai & Associates if you decide to take legal action against a delinquent tenant.
READ MORE
Disclaimer: The information is provided for general information only. iProperty.com Malaysia Sdn Bhd makes no representations or warranties in relation to the information, including but not limited to any representation or warranty as to the fitness for any particular purpose of the information to the fullest extent permitted by law. While every effort has been made to ensure that the information provided in this article is accurate, reliable, and complete as of the time of writing, the information provided in this article should not be relied upon to make any financial, investment, real estate or legal decisions. Additionally, the information should not substitute advice from a trained professional who can take into account your personal facts and circumstances, and we accept no liability if you use the information to form decisions.