I wish for your advice on the right process to reclaim back my shop premises after my tenant has not paid the rental for three consecutive months.
A: Dear reader,
Property lawyer Chris Tan from Chur Associateswho has previously written on the subject shares his advice on the matter:
A tenancy agreement allows the landlord to evict the tenant and/or to recover possession of the demised premises upon the non-payment of rent, nonetheless the landlord is prohibited from evicting the tenant and/or to recover possession of the demised premises without a court order.
Section 7(2) of the Specific Relief Act states that “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.”
Hence, it is advisable for the landlord to:-
1. Issue an eviction notice in accordance to the tenancy agreement to the defaulting tenant giving the tenant certain grace period to handover vacant possession and pay all overdue rental;
2. If the tenant remains in occupation of the premise after the expiry of such notice, the landlord may claim double rental from the date of the expiry of the eviction notice until date of delivery of the vacant possession to landlord;
3. the landlord may file an eviction order against the tenant in court for the outstanding rental, double rental and recovery of the vacant possession; and
4. the eviction order could take three to six months at Sessions Court and the costs of the proceeding would varies from RM7,000-RM25,000 depending on whether the tenant is contesting the said summon.
Under 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”.
In most circumstances, where the tenant left the demised premises without informing the landlord, the landlord would proceed with self-help measures. If the landlord breaks the lock to take possession of the demised premises himself, the landlord might be slapped with a civil suit by the tenant claiming for an exorbitant amount for the landlord’s purported “self-help” however.
The current practice is for the landlord to lodge a police report and break the lock in the presence of a police officer and other independent witnesses in order to avoid further complications. A prudent landlord would take as many as possible photos of the interior of the demised premises to ensure that the tenant would not later claim loss of properties.
It is also advisable to place a notice on the front of the property informing the tenant if he wants to take back his assets in the house, he shall contact the landlord within 1 or 2 weeks’ time. Besides, you may also place a photocopy of the landlord’s police report together with the notice to indicate that the landlord had made the police report.
It is pertinent to note that shutting off the utilities is not advisable because it would put the landlord at a greater risks for being sued for damages for the electronic items etc, worse still if the tenant is bed-ridden and relying on the life-support machine.
Tenants that rent your house do not pay the rental and refuse to move out from the property? Bought an auction property and found that someone occupy the property illegally ? All this kind of scenario are commonly happened in Malaysia. In Malaysia, the legal way to evict the tenants or illegal occupiers from your house is to apply for an eviction court order, but it is time-consuming and costly to get an eviction court order. Hence, it is depend on the cost of your property and whether you think it is worth to do that or not.
To minimize the cost and evict the tenant from your property, there is another informal way, which is still a legal way with less cost. The following is the guide to help you guys to evict the tenants or illegal occupiers out from your property and gain back your control. It is a legal way, with certain of risk but it is not as formal as applying court order.
Auction Sales Always there are auction from bank with attractive price, but the buyer need to make sure he can evict the tenant. First, DO NOT TERMINATE the water supply or electricity supply for that property. This is the most common method that people used to evict the tenant, but it is illegal in Malaysia. Request your lawyer ( normally is your S&P lawyer or tenancy agreement lawyer ) to send an registered post to that property. The letter content should tell the tenant to move out from within one calender month. For examples, if the letter is going to post out on any days on April, you must give the tenant one calender month to move out which is 31th of May. Get a copy for that letter from your lawyer and get the confirmation from lawyer whether the registered post are delivered successfully or return unclaim ( some tenants like to pretend nobody home ). After one calender month, if you still find that the tenant still didn't move out from the property, then you can plan for a 'break in' activities.
The following is the preparation for the 'break in' activities. Planned for a 'break in' date and before 'break in', go to make a police report on the nearby police station. Bring the lawyer letter that you sent to the tenant and the confirmation slip that can prove the tenant received the letter or not. If the letter returned unclaim, you can tell the police, you posted a notice to ask the tenant to evict, nobody claimed that letter. Hence, you assume there is no people staying there and you want to break in that house now. If the letter was delivered successfully, then when you make police report, informed the police that you expect the tenant should have moved out. Ask the police whether they can accompany you for the 'break in'. If cannot, get the telephone number for the police station that you made the report. Get a locksmith with you and a independent witness. Independent witness mean someone that does not have close relationship with you. It cannot be relative or friend. If your property is a condominium or gated townhouse, you can request the staff in the maintenance office to accompany you for the 'break in'. They can be your independent witness. Bring a good camera with you. When you enter the property, use the camera to take photo on every corner of that house. This is to prevent the tenant or the illegal occupier claimed or sued you that you took away his asset. Bring a pad lock with you to lock the house after break in. The following is the matter to take note during 'break in' activities. Go to that property and try to knock the door. If the tenant open the door, then you request him/her to move out politely. Informed him that you had made an police report. If he refuse to move out, call the police. If no one open the door and you feel there is someone inside, then call the police and request them to come before you start to 'break in'. If you confirm no one is inside the house, you can start to break in. After break in, take photo as much as you can. Try not to touch any thing in that house. Put a notice on the front of the property, which can be seen easily. Tell the tenant if he/she want to take back his/her asset in the house, please contact you within 1 or 2 weeks time. Besides, put a photocopy of your police report together with the notice too to indicate that you had made the police report. Change the main door lock and lock it with your new pad lock. After that wait for 1 or 2 weeks time, to see the tenant contacted you or not. If not, then dispose all the thing in that house and you can do anything whatever you want with that property. The above guidelines is just act as a guide for you to evict your tenant or illegal occupier without court order. Different case might have to act differently. Hence, the best is to consult your lawyer. However, I had managed to gain back control on my property by using the steps above. If you want to follow the guide above, use it at your OWN RISK. Good luck to you.