LANDLORD AND TENANT DISPUTES IN MALAYSIA
a) One of the common cause for landlord and tenant disputes in Malaysia is when the tenant refused to pay the rental. When this happened most landlord would want to know what are the reliefs available to them in law.
b) The first thing that the landlord will need to decide is whether he still want to continue to let the property in question to the tenant or he want to terminate the tenancy and take back the property.
LANDLORD WANT TO CONTINUE WITH THE TENANCY
c) If the landlord wishes to continue with the tenancy he may apply for a writ of distress under the Distress Act 1951 (Act 255).
d) Briefly, the Distress Act 1951(Act 255) provides an avenue to the landlord to apply for the issuance of a writ of distress by way of Ex Parte Originating Summons, meaning the Court can grant the application to the landlord without the landlord having to notify the tenant on the distress proceeding.
e) Once the writ of distress has been issued by the Court the properties of the tenant in the premise (subjected to the exclusions of some properties such as the tenant’s bedding) is liable to be seize and auctioned off by the Court’s bailiff to pay off the outstanding monthly rentals.
f) It must be noted that distress proceeding does not terminate the tenancy and if the tenant defaulted in the rental payment again the landlord will have to apply for another writ of distress.
g) It must be stressed upon that Section 4 Distress Act 1951 clearly provides that “No landlord shall distrain for rent except in the manner provided by this Act” and it means it will be illegal for the landlord to take the matter into his own hands such as locking up the premises and seizing the property of the tenant without a Court order.
LANDLORD WANT TO TERMINATE THE TENANCY AND TAKE BACK THE PROPERTY
h) On the other hand if the landlord no longer wish to continue with the tenancy he may proceed to terminate the tenancy.
i) The landlord can terminate the tenancy by first issuing the tenant with a Notice to Quit. A Notice to Quit usually will inform the tenant that the landlord is terminating the tenancy, requires the tenant to surrender the vacant possession of the property to the landlord by certain date failing which the tenant is liable for double rental (mesne profits) and usually is coupled together with the demand for the payment of outstanding rental.
j) Sufficient attention must be given in the issuance of a Notice to Quit in cases where there are no written tenancy agreement because there are areas of laws governing the validity of the Notice to Quit that need to be complied with. An invalid Notice to Quit will means the tenancy still exists and the tenant have the right to occupy the premise until it has been properly terminated.
k) Assuming the tenancy has been properly terminated but the tenant refuse to pay for the outstanding rentals and refuse to vacate the property the landlord will be entitled to sue the tenant for among other things the followings:-
(i) the rental in arrears calculated until the date the tenant is requires to surrender the vacant possession of the property to the landlord;
(ii) double rental calculated from the date the tenant is supposed to surrender the vacant possession of the property to the landlord until the date of actual surrenders; and
(iii) an order that the tenant is required to surrender vacant possession of the property to the landlord.
It must also be noted that an order for the tenant to surrender the vacant possession of the property to the landlord is only an order of the Court and if the tenant refuse to vacate despite this order, it need to be enforced by way of a writ of possession and this will be covered in another topic.