What to do when tenants overstay their welcome?

What to do? When Tenants Refuse to Vacate After Tenancy Expiry

If your tenant refuses to leave your property after the tenancy has expired, you might wonder if you have the right to remove them. Yes, you do, but it must be done through a legal process.

Legal Basis for Recovering Possession

Section 7(2) of the Specific Relief Act 1950 states:

“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.”

As a landlord, you will have to obtain a court order to recover possession of the premises from the tenant. This requirement applies even if the tenancy agreement allows you to recover possession because parties cannot contract out of statutory provisions.

Risks of Self-Help Measures

What if you decide to take matters into your own hands by locking out the tenant or forcefully removing their belongings? This approach can expose you to lawsuits for wrongdoing as it breaches Section 7(2) of the Specific Relief Act 1950 and constitutes trespass. Additionally, the tenant may sue you to recover possession under Section 8 of the Specific Relief Act 1950.

Therefore, it is prudent to pursue legal action to recover possession.

Issuing a Notice to Vacate

Before initiating legal action, you should issue a written notice to the tenant, requiring them to vacate the property within a reasonable time, settle any outstanding rent, and restore the premises to a good and tenantable condition.

Determining a Reasonable Notice Period

What constitutes a “reasonable period”? If there is a tenancy agreement, you should follow the notice period specified therein. If there is no tenancy agreement or if it has lapsed but the tenant continues to occupy the premises on a monthly basis, you should provide at least one month’s notice. Insufficient notice can invalidate your legal action.

Dealing with Tenants Who Refuse to Vacate

If the tenant refuses to vacate the premises after notice, Section 28(4)(a) of the Civil Law Act 1956 entitles you to charge double rental for the period the tenant holds over after the tenancy determination until they relinquish possession.

If the tenant still refuses to leave, you may proceed to file a civil suit in court to claim outstanding rent, double rent, recovery of possession, and other appropriate reliefs. Once judgment is granted in your favor, you can apply for a writ of possession. The court bailiff will execute the writ by entering the premises and using necessary force to take possession for the landlord.

By following these legal steps, landlords can lawfully regain possession of their property when tenants overstay their welcome.

Author: Patrick Tan, Partner the firm

patrick@tnhlaw.com.my

Disclaimer:

This article is intended for informational purposes only and does not constitute legal advice. Every situation is unique, and specific legal advice should be sought based on the particular circumstances. Readers are encouraged to contact us at Tang Hong & Lock if they require legal advice or have any questions regarding the content of this article.