Finding a tenant who’s on extremely good terms with their landlord is like finding a needle in a haystack.
But like it or not, there are times when your landlord will have to drop by for repair works or maintenance services.
Sometimes, they just want to check up on how well (or badly) you’re taking care of the place! Prior to visiting, the landlord must inform you at least 24 hours in advance. That sounds fair to us.
But here’s the thing – what if you haven’t been paying your rent for the last few months? In the first place, you’re already in the wrong for falling behind on your payments.
However, as we're currently facing highly uncertain times due to COVID-19 and the various Movement Control Orders (MCOs), there have been people who face financial difficulties and are thus unable to make the monthly payments.
Now, should you be afraid that your landlord will one day break into your home and come after you? Should you install a new lock so that your landlord’s key won’t be able to access your home?
Okay, I Haven’t Been Paying Up. But Does My Landlord Have The Right To Just Barge In?
To answer that question – No, your landlord does not have the right to enter the rented property without consent, even if you’ve defaulted on your monthly payments!
You might think the landlord should be able to, because after all, it’s their property right? But there are two laws in Malaysia which cover this.
Namely, Section 2 (b) of the Contracts Act 1950 (Rev. 1974) as well as Section 7 (2) of the Specific Relief Act 1950. Keep reading to know how these two Acts protect you!
An agreement enforceable by law is a contract.
What this means is that your tenancy agreement isn’t just any ol’ agreement, but a legitimate binding contract which both parties must abide by.
If your tenancy agreement expressly states that the landlord doesn’t have the right to enter the tenant’s house without consent, then you can even take legal action against your landlord if they enter your home unannounced!
But! This is only if the tenant did not violate any of the agreement’s terms either. So if you’re found or suspected to have violated the contract agreement, your landlord may then reserve the right to enter your home and take action against you under a court order.
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.
This law on the other hand, basically states that landlords are not allowed to take any action against their tenant without a court order. Yep, even if the irresponsible tenant fails to pay their monthly rent!
So, thanks to the pro-tenant nature of Malaysia’s legal environment, your landlord isn’t allowed to just step into your home without a court order under any circumstance.
That is, unless they go to the extent of getting an eviction order against you. But trying to evict a tenant in Malaysia isn’t the easiest thing.
It’s a process that takes approximately 7 months and RM10,000! So this is usually the last resort for most people.
That Doesn’t Mean Your Landlord Can’t Do Anything About It!
This doesn’t mean you can just rest at ease, even with 10 months of outstanding rent! Due to the lengthy official procedures, the fact is that many Malaysian landlords tend to resort to certain *cough cough* self-help measures to get back what they were rightfully owed. Among them include:
Changing all the locks
Cutting off the supply of utilities
Removal of tenant’s property from premises
All of these are illegal mind you, and if found, could result in the landlord at fault getting slapped with hefty fines. If you happen to be the poor landlord in this case whose tenant is not paying rent, here’s what you can do instead:
Before commencing legal order, issue a notice of possession, which is essentially an application to the court, requesting them to take back possession of your property from the tenant.
Once the court order is received, file a police report so that you can break the lock and recover the premises in the presence of a police officer.
The Writ of Distress
Under the Distress Act 1951, a landlord is allowed to apply for a Writ of Distress, also known as Distress Action, to seize any removable property from the tenant which will then be sold to make up for rental arrears.
Rental arrears are unpaid rent/debt that is prioritized as they may lead to the eviction of the tenant.
A landlord may only claim a maximum of 12 months of rental arrears prior to the application date to a Judge or Registrar for the issue of said Writ of Distress.
Additionally, the tenant will not be notified of the Writ of Distress to avoid the element of surprise and opportunities to move the removable property elsewhere. This means catching you off-guard when you’re totally unaware!
If you think you might be served with a Writ of Distress, don’t panic just yet as certain items cannot be seized, like:
Tenant’s clothing and bedding.
Any tools or equipment the tenant might use for their business.
Properties/items that do not belong to the tenant.
Items in use of the hands of a person at the time of the seizure.
How the procedure of a Distress Action is carried out:
The landlord will engage a lawyer to issue a Letter of Demand to be sent to the tenant for outstanding rental arrears.
If the tenant fails to repay the debt, a Writ of Distress will be issued against the tenant.
The bailiff has the power to enter, seize, and sell movable properties belonging to the tenant. If the property is vacant at the moment, entry with reasonable force is permitted.
Once the property is seized, an inventory list will be prepared along with an approximate valuation.
The tenant will be served a Notice of Seizure with a copy of the inventory list and valuation to inform of the amount due, as well as the time/place of the sale of the property unless the amount is paid in full within 5-6 days from the date of notice. If the tenant is not on the property at the moment, the notice will be given to someone on the premises, or posted in a public area of the premises.
Once the amount has been recovered through the sale of the seized properties, the balance will be released and returned to the tenant.
Advantages of Distress Action
Disadvantages of Distress Action
Considerably straightforward proceeding.
Does not terminate the tenancy agreement.
Repayment to the landlord is prioritized over other creditors.
May have to be issued again if the tenant continues to fail to pay rent.
Tenant doesn’t need to be notified in advance.
Could be a long and expensive process if the tenant contests the action.
Trespass action may be taken against the landlord in the event of wrongful seizure of properties.
So if you’re really, really behind on your rent and hate surprises that’ll cause you major distress, do consider negotiating with your landlord before Distress Action is taken.
But... I Don’t Want To Leave, What’s Next?
If a tenant refuses to vacate the property, the landlord reserves the right to file an eviction order against said tenant, most commonly in the form of a Writ of Possession.
The Writ of Possession contains an order (or agreement) that the landlord is given possession of the immovable property by the tenant, along with a specific description of said property.
Once it has been issued, arrangements can be made with the bailiffs to schedule an execution of Vacant Possession on the property.
However, if the tenant is still unable to deliver Vacant Possession (in simpler terms, leave the premises) within the stipulated period of time, the landlord may continue to take harsher actions.
Sample Of An Eviction Notice
There Are Situations When Your Landlord Can Set Foot In Your Home, Though
This then raises the question – “Under what circumstance is my landlord allowed to come into my home?” Well, here in Malaysia, the tenant is only obligated to allow the landlord entry into the property in these situations:
1) For inspections and repairs
Say there’s a problem with the plumbing, or the washing machine that came with the unit somehow isn’t working. In cases like these, the landlord is responsible as they’ll most likely be registered under his/her name. Needless to say, they still have to inform you beforehand.
If you look closely through your tenancy agreement, you’ll probably find a paragraph on this, along with the minimum number of days prior which the tenant has to be informed. Some state three days, some say a week.
2) For viewing purposes
In the four weeks before the termination of your tenancy, your landlord or anyone under his/her authority is allowed to view the premises. This could most likely come in the form of a property agent showing potential future tenants around. So don’t just lock the door and pretend like no one’s at home!
So, What Can We Do To Protect Our Respective Rights?
It’s a tricky situation for the landlord when tenants don’t make their payments. Don't even speak of the monetary losses, just trying to reclaim the property alone is already a daunting (and costly!) task.
Prevention is better than cure. And the secret to preventing all this unnecessary headache lies in your tenancy agreement.
Remember when we explained about Section 2 (b) of the Contracts Act 1950 (Rev. 1974)?
That a tenancy agreement is a legally binding contract? So before signing, make sure the agreement clearly states the rights of both the tenant and landlord. Our guide here explains more on that, but here are a few things to look out for:
For the tenant
Be sure to keep a copy of the signed and stamped agreement.
Before signing the agreement, make sure you understand the contents of the agreement and if there’s any doubt on the terms, negotiate politely with your landlord.
For the landlord
State clearly in the agreement that you’ll give advance notice of a certain number of days to the tenant if you wish to periodically check the unit.
That you reserve the right to enter the unit if there is strong evidence that the tenant has breached the agreement.
On that note, here’s a few tips for Malaysian landlords! Before confirming the tenancy, make sure you screen the prospect thoroughly to avoid nightmare situations like this one.
Why All This Mess? Isn’t There A Tenancy Law Or Something?
Unfortunately, Malaysia does not currently have any specific laws that can protect both tenant and landlord.
At present, the only law closest to a Tenancy Act like the ones in Canada and the UK are the two acts mentioned earlier – the Specific Relief Act 1950 and the Contracts Act 1950. Hence why the tenancy agreement is so crucial.
But, good news! Soon, we might be able to expect a Residential Tenancy Act put in place! Until that happens though, in a nutshell, you really only need to know two things:
Your landlord is not allowed to take action against you without a court order.
Your tenancy agreement is everything.