[Photo by Tierra Mallorca from Unsplash]
By Bryan Boo
You are the owner of an apartment. As you already have your own place to stay, you decided to rent out the apartment to a nice young man for a year. At the start of the tenancy, all seems well. Both you and the tenant have a cordial relationship and the tenant pays the rent on time. You feel thankful that you have found a good tenant. However, starting from the third month of rental, the tenant fails to pay the rent. You contacted the tenant and was assured that the rent will be paid. Unfortunately, the tenant did not pay the rent as promised. In fact, the tenant also did not pay the rent for the fourth and fifth month of the tenancy. You demanded that the tenant pay the rent and, because the tenant has breached the Tenancy Agreement, you informed the tenant that the Tenancy Agreement is therefore terminated and demanded that he vacate the premises. The tenant ignored your demands and continued to stay at the premises without paying rent.
The above scenario is not an uncommon one and truly is the bane of landlords. Not only is the landlord not being paid the rent, but the landlord is also unable to rent the property to other potential tenants as the current tenant refuses to vacate the premises. What can the landlord do in such a situation?
Taking Matters Into Your Own Hands?
The common and intuitive response to such a situation is to change the locks or to cut the electricity and/or water supply. However, landlords must be cautioned against such measures. Section 7(2) of the Specific Relief Act 1950 reads as follows:
Recovery of specific immovable property
(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
It is clear from Section 7(2) of the Specific Relief Act 1950 that a landlord cannot take matters into his/her own hands and must instead initiate an action in court. A landlord taking matters into his/her own hands may be liable to be sued by the tenant.
What then are the available options? There are 2 ways under which a landlord may claim the unpaid rent – initiating a civil suit or by way of a distress action
#1: Initiating a Civil Suit
A landlord may initiate a civil suit. A tenant’s obligation under a Tenancy Agreement is, among other things, to pay rent to the landlord within the stipulated time. The failure to pay the rent is a breach of the Tenancy Agreement. The rent then becomes a debt that is due and outstanding. As such, the landlord may sue the tenant for the recovery of the rent. It is therefore pivotal that the Tenancy Agreement clearly outlines the rights of the landlord in such a situation.
While our article entitled “Commencing A Legal Action to Recover A Debt in Malaysia” lists the jurisdiction of the courts based on the amount claimed, the Subordinate Courts Act 1948 provides that the Sessions Court may try all disputes between landlord and tenant regardless of the quantum of the claim.
#2: Distress Action
A landlord has the right under the Distress Act 1951 to confiscate the tenant’s movable properties and auction the said properties to recover the unpaid rent. However, a landlord intending to recover rent under the Distress Act 1951 may only recover the rent due and payable for a period not exceeding 12 months preceding the date of the application for a warrant of distress.
It must be noted that a warrant of distress does not give the landlord the right to barge into the rented premises and confiscate all of the tenant’s belongings. A warrant of distress is in actual fact addressed to the bailiff. As such, it is the bailiff that will enter the premises, confiscate the tenant’s belongings, the value of which is commensurate with the rent in arrears, and auction the said belongings.
Can I Claim for Double of The Rent?
Section 28(4) of the Civil Law Act 1956 provides that the landlord’s right to recover double the rent only arises where the tenant overstays, i.e. the tenant continues to stay after the determination of the tenancy. A tenancy is determined when the tenancy expires. If the tenant overstays after the tenancy expires, then the landlord may choose to charge double the amount of the rent until the landlord regains possession of the rented premises.
Having to sue a tenant in court to recover the rent that is due and in arrears may seem to be onerous, lengthy and expensive. As such, it is always advisable to not only ensure good communication between the landlord and the tenant but also to ensure that the Tenancy Agreement accurately reflects the intentions and rights of the parties.
It must be noted that the above methods to claim the unpaid rent from the recalcitrant tenant does not automatically recover the rented property. The issue of recovery of possession of the rented premises will be discussed in a subsequent article.