Can a Landlord Physically Evict a Tenant from the Property?

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Imagine this scenario. You’re a tenant renting a house and one day you receive a letter from your landlord giving you notice that he is terminating your tenancy agreement and that he is giving you 30 days to vacate the property or face eviction from your property.

It is also not unusual to see a clause in your tenancy giving a landlord a right to enter the property to evict a tenant and reclaim vacant possession. Under those circumstances, the clause in a tenancy agreement may even deem you to be a trespasser.

So it begs the question as to whether a landlord may actually physically evict a tenant from a property.

Previously, the position in Malaysian law was that although section 7(1) of the Specific Relief Act 1950 states that a person may recover their immovable property the manner prescribed by the law relating to civil procedure. However, the Federal Court in Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v Poh Swee Siang [1987] 2 MLJ 611 held that section 7(1) of the Specific Relief Act does not confer a mandatory requirement to repossess land by way of civil procedure as it does not exclude the use of the common law remedy of self-help.

The common law remedy of self-help is well illustrated in the case of Sidek Bin Haji Muhamad & Ors v The Government of the State of Perak & Ors [1992] 1 MLJ 313 where Raja Azlan Shah CJM sitting in the Federal Court held that:

The owner is not obliged to go to the courts to obtain an order of possession. He is entitled, if he so wishes, to take the remedy into, his own hands. He can go in himself and turn them out without the aid of the courts of law. He can even use force, so long as he uses no more force than is reasonably necessary. He will not then be liable either criminally or civilly. [Emphasis added]

In light of this recognition by the courts, this would mean that the rights of tenants were very limited when it comes to eviction from property. It was therefore a very realistic prospect for a tenant to be hypothetically carried out by a landlord using reasonable force in order to evict a person out of a property.

Considering such a chilling scenario, the Parliament of Malaysia saw it fit to amend the Specific Relief Act to include new provisions namely that of section 7(2) and section 7(3) with these new amendments coming into force on the 31st of January 1992. These amendments are:

  • Section 7(2) “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.”; and
  • Section 7(3) “In subsection (2) “occupier” means any person lawfully in occupation of the property or part thereof at the termination of the tenancy.

The effects of these amendments cannot be overlooked, and now the position in law is that tenants do not have to fear a landlord entering a specific property in order to forcibly evict them from any property. This is because these amendments have effectively relegated the remedy of self-help into oblivion as the owner of the property can only seek to enforce his right to recover his property from the occupier by way of a court action (see the case of Er Eng Hong & Anor v New Kim Eng @ Neo Kim [1999] MLJU 605).

The High Court in the case of Metro Charm Sdn Bhd v Lee Nyon Hon & Brothers Sdn Bhd & Anor [2007] 5 MLJ 272 further held that if a landlord fails comply with these mandatory requirements, a court will order a landlord to “reinstate and to compensate the tenant to its original position before the unlawful eviction”.

A landlord is even prohibited from changing the locks of the property and any such threats could provide grounds for an injunction to stop this from happening. A tenant may even sue a landlord in an action for tort for unlawful eviction from that property if a landlord tried to do the same without a court order pursuant to section 7(2) of the Specific Relief Act. The High Court held in Dr Harjit Singh v Suhaimi Bin Samat & Anor [1995] MLJU 109 per Haidar J:

In the circumstances it would be wrong on the part of the defendants to lock out the plaintiff from the clinic and thereby taking the law into their own hands. Such an act amounted to a tort. Section 7(2) of the Specific Relief Act 1950 clearly showed the intention of Parliament that possession of premises may not be obtained except by proceedings in the court. If the Court were to refuse the injunction, leaving the plaintiff to a remedy to damages for tort, it would be allowing just the mischief which the section was designed to prevent.

If the matter had come before the court on a threat by the defendant to lock out the first plaintiff, I entertain no doubt that an injunction would have been granted. And to quote Lord Denning MR in the Luganda case, ‘They should not be in a better position by wrongfully locking him out’.

As per Stamp J, at page 1116 in Warder’s case

So in the event that your landlord is threatening you with physical eviction from your property, bear in mind that these rights cannot be contracted out of statute and therefore you can still have your day in court before a landlord can lawfully evict you.

However, lawsuits and court actions are not the only way to solve a dispute with your landlord. It is always worth writing in to your landlord to request for an extension of time to vacate the premises or otherwise to agree to an amicable settlement to any dispute that you may have with your landlord.

Ref: Source verbatim from:

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