Nobody likes being evicted nor evicting. It’s a long and tedious process where both landlord and tenant are on the receiving end. Although there are some other approaches you can opt for in place of eviction, there are times where you are left with no choice but to kick your tenant out. So before you proceed with this course of action, it’s imperative that you know the process - and the alternatives to it.
Tenancy Agreement: First line of defence
It is usually a good idea to have a tenancy agreement in place to protect both the landlord and the tenant's rights. A tenancy agreement should typically spell down each party's rights and responsibilities throughout the tenancy period, as well as other key terms such as the rental amount and the consequences of nonpayment. As a result, before signing the agreement, all parties should be well informed of their respective obligations.
If a tenant fails to pay rent or the tenancy agreement is breached, the landlord can file a lawsuit to enforce the tenancy agreement's remedies against the tenant. The tenancy agreement is the essential document to resort to whenever a disagreement occurs since the terms are based on the parties' mutual agreement.
So, before you sign, double-check that the agreement properly explains both the tenant's and the landlord's rights. More information may be found in our guide, however, here are a few things to keep an eye out for:
- If you want to check the unit on a regular basis, make it clear in the agreement that you'll give the tenant a notice in advance.
- You reserve the right to enter the apartment if you have compelling proof that the tenant has broken the agreement (with court order)
Ensure a valid reason for eviction first
Difficulties often emerge when a tenant fails to pay rent or when the landlord and the tenant have personal conflicts. But you can't evict a tenant just because they're being difficult, therefore, there are some scenarios where eviction is justified. The following are examples of this:
- Failing to pay rent.
- Causing significant damages to the property.
- Violating the tenancy agreement (for example, subletting or renting with pets when the agreement clearly prohibits it).
It's aggravating when a tenant fails to pay rent. You might be wondering if you can just turn off the utilities or change the locks on the residence. After all, it seems reasonable to do so when you have legal ownership of the property. Unfortunately, these activities might be a sensitive issue touching on infringement of rights (we’ll discuss this later).
As a result, it is crucial for a landlord to obtain legal counsel before going for self-help measures. Keep in mind that taking legal action is a pretty hardcore move that can damage the landlord-tenant relationship and require you to go through lengthy court procedures that can be costly.
Therefore, you should try to speak with your tenant first to seek the unpaid rent and, if feasible, to work out a new payment plan. Always examine your tenancy agreement to understand your rights as a landlord, and get legal advice to determine the best approach to defend your interests if the tenant continues to default on payments or is not being civil with you.
When all else fails, eviction is your last resort
Without a court ruling, landlords cannot evict their tenants or reclaim ownership of the property or room. You would need to get an order from the court to reclaim possession of the property from the tenant. This is true even if your tenancy agreement permits you to do so if they fall behind on their rent.
Not only that, but a landlord is forbidden from changing the locks or evicting the tenant without the required court documentation. Furthermore, if they do so, the tenant can sue them for trespassing.
In fact, you may find yourself in a pickle for trying any of the above, in accordance with Section 7(2) of the Specific Relief Act 1950:
“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 provision states that you will not be able to reclaim your property until you obtain a court order. To do this, you must get a lawyer who will assist you in filing a rent arrears lawsuit against the tenant and requesting a vacant possession order. You can only begin reclaiming control of the property when the court issues the order.
Always remember, you risk being sued for trespass by the tenant if you aggressively enter the property. Even if you claim that the property is yours and that the tenant owes you rent, your case will be fruitless. The court held in Abdul Muthalib Hassan v. Maimoon Hj. Abd. Wahid that a landlord barring entrance to the property because the tenant did not pay rent does not warrant the trespass.
With the help of a lawyer, the landlord should first issue a notice to the tenant to follow the terms in the tenancy agreement that they have broken. If the tenant continues to refuse, the landlord can issue an eviction notice and launch a lawsuit to get a court order.
Notice of eviction
The tenant must be given a specific amount of time to vacate the property and pay any past-due rents. In the given notice, you should demand:
- the tenant pay the due balance
- restore the property to its previous state
- move out of the the premises within a reasonable period.
That reasonable period would be the notice time set forth in the tenancy agreement. However, if the agreement has expired but the tenant continues to occupy the premises on a monthly basis, you must provide the tenant at least one month's notice to vacate the property. The notice time is critical since insufficient period might invalidate your legal action.
The tenant must sign the notice as evidence that they are aware of the notice. The legal fees for issuing this notice ranges from RM500-RM1,000.
Issuing eviction order
If the tenant continues to occupy the premises after the eviction notice has expired, the landlord must get an eviction order from the court before reclaiming the property from the tenant. As the Specific Relief Act 1950 makes it clear that a landlord is not allowed to take matters into their own hands, a Writ of Possession must be obtained.
It is a civil procedure that allows the landlord to sue for recovery of possession if the tenant violates the tenancy agreement's terms in a way that allows the landlord to terminate it, whether by agreement or by law. The eviction order will allow the landlord to seek unpaid rent, double rent (from the moment the eviction notice expires until the possession is returned to the landlord, according to Section 28(4) of the Civil Law Act 1956), and recovery of the property's possession.
Therefore, as a landlord, you may then continue to file a civil suit in court to recover the appropriate reliefs. Once the verdict is in your favour, you may then proceed to apply for a Writ of Possession. The issuance of Writ of Possession will legally instruct the court's bailiff to enter the rented property with whatever force is required and take possession of the property for the landlord.
Depending on the difficulty of the case and whether the tenant contests the lawsuit, this legal proceeding might take anywhere from 4 to 9 months. Furthermore, if the summon is not contested, the legal fees would range from RM8,000 to RM10,000. However, if the case is taken to court, the cost might be higher, ranging somewhere from RM10,000 to RM25,000.
Other legal remedy for monetary relief
Due to the long process of the civil suit, you may want to pursue an alternative recourse, such as a Writ of Distress. The distress proceedings will take less time (roughly three months) and does not require you to notify the tenant. They will only learn about it when the bailiff arrives and seizes their moveable property on the premises.
Governed by the Distress Act 1951, the point of Writ of Distress is to have the court's bailiff travel to the current property where the tenant is still renting and seize their moveable possessions to be auctioned off. The money earned is then used to compensate for the unpaid rent by the tenant. Bear in mind that it can only be used to recoup past-due rent up to a maximum of 12 months' rental arrears.
Although rent in arrears could be recovered in a distress proceeding, utility charges in arrears are not recoverable under the same proceeding. Speaking of utility bills, how do you go about dealing with tenants defaulting in the payments? You don’t have to kick them out, in fact, you can avoid it altogether by preparing prior to the tenant’s move-in. Read our complete guide on this topic by clicking here.
What can we learn from this?
Tenants misbehaving to the point where eviction is necessary is not something any landlord can easily foresee. The best way to avoid this is to filter out potentially bad tenants from the good ones - a process that can be exhausting and time-consuming.
That’s why at Instahome, our tenants are subjected to background checks. We assess their credit score to determine how responsibly they manage their money as well as their overall financial habits, in addition to making sure they suit your tenant profile. We worked with CTOS Data Systems Sdn Bhd (CTOS) to run a credit report on their past, including bankruptcy, legal proceedings, and delinquencies, so that our landlords can be confident in a tenant's reliability before signing an agreement with them.
So what are you waiting for? Rent out your home worry-free with Instahome by your side.