In Malaysia when a Tenant has defaulted on paying rent or has failed to complied with clauses in the tenancy agreement that are fundamental, it entitles the Landlord to terminate the tenancy agreement. When a tenancy agreement has been terminated Landlords are often found in a position where they would need to evict the tenants so that they can find new tenants for the property.
Hence, the most common issues faced by a Landlord are when the defaulting tenants continue to hold over the Property by refusing to move out.
Self-help. Is It Legal?
Historically, there is a legal concept known as “equitable self-help” wherein the Landlord of a Property can exercise his rights to recover possession from the Tenant through various means such as changing the locks, terminating their access card and disconnecting utilities.
In Malaysia, however, such means of “self-help” are ILLEGAL, and the Tenant could sue the Landlord in return. This is because the Specific Relief Act 1950 imposes that a Landlord must first obtain a Court Order before recovering the Property.
Sufficient Notice of Termination
Generally, there are two (2) scenarios requiring Notice of Termination to be issued:
- Termination of the Tenancy Agreement
- A material breach of the Tenancy Agreement
In the first scenario, where the parties have signed a Tenancy Agreement, there is usually a Clause specifying a fixed period of Notice to terminate either party’s tenancy. That said, do not fret if there is no written Tenancy Agreement signed between the parties! The reasonable Notice period recognized in Malaysia is 28 days.
In the second scenario, the occurrence of a material breach of the Tenancy Agreement by the Tenant such as non-payment of rent, the Landlord may issue a Notice of Termination to the Tenant, usually accompanied by a Letter of Demand.
Sufficient Notice of Termination is essential to initiate legal proceedings to recover possession of the Property from the Tenant.
Legal Proceedings to Recover Possession of Property.
An aggrieved Landlord may apply to the Court to obtain a Court Order under Section 7(2) of the Specific Relief Act 1950, which reads: –
(2) Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the Property or part thereof, the person entitled to the possession of the Property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the Court.
In the event the Tenant continues to hold over even after a Court Order has been obtained, the Landlord should consider applying to the Court for a Writ of Possession. A writ of possession allows you to enlist the service of the Court Sheriff to take possession of the tenant’s belongings to recover the judgment debt owed to you.
Evicting the Tenant
Once you have obtained a Writ of Possession, the Court will issue a Notice of Eviction to the tenant, informing him/her of the date and time that he/she is required to vacate the premises.
On the date and time of eviction, you must be present at your property for the execution of the writ of possession and eviction.
The Court Bailiff and, occasionally, police officers will also attend and will enter the property by force, if necessary.
The Court Bailiff shall then serve papers on the tenant, list out the items in the premises which shall be seized, and evict the tenant from the property.
HOW WE CAN HELP YOU?
If you need legal advice on recovering outstanding rental payments, tenancy disputes or evicting your tenants, please speak to our lawyers at +603 6419 9511.
Alternatively, you can send us an email at firstname.lastname@example.org