Q: Dear support team,

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.

Please advise.

Thanks.

A: Dear reader,

Chris Tan of Chur Associates.

Property lawyer Chris Tan from Chur Associates who 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”.

Self-help measures

File photo of eviction notice from the Federal Territory Land and Mines Office, as held by a Kg Kerinchi Flats resident who had protested the eviction-KIMBERLY YEO CHUI IN / THE STAR

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.