Terminating a Tenancy & Evicting a Tenant In Malaysia.
There are several actions and options that you can take as a landlord if your tenant breached the tenancy agreement.
In this article, we will be explaining what are the legal ways to evict your tenant and to obtain the damages for the lost that you have incurred.
Here are the things that you will be covering:-
What law governs tenancy eviction and damages relief law
If you are a landlord you need to know about Section 7(1), 7(2) and 7(3) of the Specific Relief Act 1950 (“the Act’). Though tenancy has no specific regulation to regulate the relationship between Landlord and a Tenant, these said provisions / sections are related to damages that you as a landlord can claim from the court to enforce your rights as a landlord.
It is trite law meaning it is established that a landlord can forcefully evict a tenant from your property unless and until you obtain orders from the court. Otherwise you can be liable for trespass and possibly liable for criminal offence too.
What can you ask from the Court if your tenant breach the tenancy agreement
So what would be the prayers or claim that a landlord can have for a breach of a tenancy agreement by a tenant?
Consent Judgement to Evict
Firstly, before being legally ‘agressive’, a landlord can get a consent judgment. Consent judgment or Penghakiman Persetujuan is whereby both landlord and tenant agree to resolve the issue between them. This step is much more convenient than having to go through the two other options below to get your tenant to leave the house. Once both parties agree to the terms of eviction or whatever resolution between them, the terms will be recorded in court. Failing which the party going against the agreement may be brought again to court.
Writ of Distress
Secondly, writ of distress. For this particular write, a landlord has to firstly serve a notice of demand to the tenant before applying for the writ. The sole purpose of this writ is to get the Court’s bailiff / sheriff to go to the said property of which the tenant has not yet left and seize the tenant’s movable property and sell all of them. By selling these properties the Landlord would be able to recover back the outstanding rent by way of auction.
However, the outstanding rent is only up to 12 completed months’ rental arrear and utility charges are not recoverable under the proceeding. As a landlord this may hinder to make a new utility account for the property if the tenant does not settle it. If your tenancy agreement covers this aspect you may have the right legal option to solve this.
Writ of Possession
A writ of possession means you are requesting the court to evict the tenant from your property.
A writ of possession needs to be in line with Section 7(2) of the Act. This writ is to be obtained before you can evict the tenant. Once the Court grants this writ, the court’s bailiff or sheriff can enter the property and by using force take the property back for you.
Recovery of Damages
Another legal alternative that you have as a landlord is the recovery of damages. Damages here refers to compensation in monetary form.
The party who wishes to claim would need to bring this matter to the court. The usual recoverable damages that landlord prays from the court here includes unpaid rent, unpaid utility bills, damages to the property, unapproved alterations to the property, etc.
What is an Eviction Notice and why is it important?
Next, let's understand what is an Eviction Notice.
So what is an eviction notice. An eviction notice tells you just that. It informs the tenant that he is being evicted and required to leave the property that he currently has physical possession.
This is an important notice as it is necessary for a landlord to issue the Eviction Notice to the tenant in order to recover possession of the house.
The question is that one has to then answer is what do you do if a tenant refuses to leave after the notice has been given?
One can only evict a tenant physically with a court order (writ). You can’t just do it at your own whim.
Without the said writ, a landlord is prohibited from kicking out the tenant or change the locks of the property. If the landlord do so, they can be sued for trespass by the tenant.
When the tenant fails to obey the notice, you may then continue to apply from the court the writ or the notice for the eviction.
It is important for you to know that the Eviction Notice should include a period of time for the tenant to pack their things and leave the house.
If you intend the eviction notice to be send to the tenant is a court issued eviction notice it may take between three to six months to receive it from the Court.
If your tenancy agreement mentions that the rental should be paid in double amount in the event a tenant stays in your property despite the agreement having terminated, the court is of the view that is allowed. In this scenario this should at least lessen the financial impact and the impact cost for the non wanted tenant on your property.
After the hearing day of receiving the Court’s order to leave the house, the Court will also provide amount of time for the tenant to settle their dues, packing and leave the house. This also includes a proper handover of the keys from the tenant to the landlord.
In what condition should the property be return to the Landlord from the Tenant?
As the landlord is prohibited from kicking out the tenant, the tenant also carries responsibility in returning back the property in its reusable condition.