As we braved through the Movement Control period for Covid 19 pandemic entering the Recovery MCO, many Landlords face the issue of Tenants unable to pay for the rental and questions have been flooding our emails in pertaining to the right things to recover rental.
Here are several Pro- tips!
REMEMBER ! REMEMBER ! REMEMBER!
DO NOT take action by yourself. There are people who will advise you to terminate the electricity or water supply to the Tenant or change the lock or block the access to the premise, however, this is actually illegal! Taking action as mentioned above is called as SELF HELP.
It is not a new law to say you are not allowed to conduct SELF HELP. It is a Common Law since before the Independence of Malaysia. Do you know that by carrying out the so-called Self Help exercise, you will be sued by your Tenant instead? It is an established tortious act and a strict law- which in another word, if the Tenant is able to show and prove you have carried out Self Help, you are liable for the tortious act.
Landlord does not have the right to enter the property without consent or carried out measures to terminate or interfere with the utilities and enjoyment of the Tenant EVEN IF there is a default in rental payment.
Section 7(2) of the Specific Relief Act 1950 states:
“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.”
So, it is a clear and unambiguous statement of law for the above. The only way the Landlord may recover the property is by way of legal proceeding in the Court.
Good news is this- there are several steps you may take before going to Court.
First- Issuance of Letter of Demand (LOD)
It is always wise to engage a lawyer to issue a letter of demand for the rental defaults. I will always advise my client and property agents that Letter of Demand should be issued once the Tenant defaulted and failed to pay for 14 days from the due date.
Why? This is due to the fact that Landlord only retained 2 months rental deposit of which will result in the loss of rental income once the Tenant fails to pay more than 2 months of the rental!
Thus, action should be taken as soon as 14 days from the designated date in your agreement to pay for the rental deposit to start sending a Letter of Demand.
Normally, the LOD will provide 7 days for the Tenant to pay up or the next step will follow!
Step 2- Letter of Termination and Notice to Quit
Many people would have neglected this very important step! It is important for the Landlord to exercise the rights to terminate the Tenancy Agreement based on the default of payment of rental. Or else the Tenancy Agreement will still continue running and the Court will question when is the effective date when the Agreement is breached and terminated?
Then it must follow by the Notice to Quit which is very important for a simple reason- once the Notice to Quit is issued, every day that the Tenant continues to stay and hog the place, the Landlord is entitled to claim for DOUBLE RENTAL! I believe most of you would agree, double rental is a lot of money.
Thus, if the Landlord fails to exercise this- will also means that the Landlord would have lost the opportunity to claim double rental!
Section 28(4) of the Civil Law Act:
“Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not”
Thus, it is so important to understand the law. What we do recommend is that, for the issuance of the LOD and Notice to Quit- you should get a proper legal advice as the wording and form of these documents are really important in Court later.
So what happened if the Tenant still reluctant to leave?
Step 3: Commence a proceeding in Court
It comes to the final step where you may engage a lawyer to commence a lawsuit to claim for the rental defaults and also the next step to carry out the legal proceeding of writ of possession– namely to repossess the premise with the help of the Bailiff.
It is a double-steps procedure which requires double legal proceeding applications at court. Many will ask, how long does it take- the answer is it varies depending on the different Courts and processes which estimated to be at least 5 months to a year.
If you have any query and need a legal advice on this- you may contact the writer at firstname.lastname@example.org .