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Can you force your tenant to leave by cutting the utilities in the premises?

June 9th, 2009 · 2 Comments

self-help.jpg 

As mentioned in my previous post entitled “The Legal Issues between Landlords and Tenants“, I wish to discuss more on the issue of “Self-Help” with you.

Is Common Law Self Help applicable in Malaysia?

Before we answer this question, let understand what is Self Help, self help means the landlord is allowed to use his own force to evict the tenant from the property. Such rights is derived from Common Law principle and is a lawful remedy to landlord to evict the defaulted tenant. The use of reasonable force usually including cutting off the connection of power and water utilities, change of pad lock and so on.   

In respect of Malaysian law, I reporduce the relevant sections from the Specific Relief Act here:

Recovery of specific immovable property

7. (1) Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure.

(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.

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

Suit by person dispossessed of immovable property

8. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in the suit.

(2) Nothing in this section shall bar any person from suing to establish his title to any such property and to recover possession thereof.

(3) No suit under this section shall be brought against any Government in Malaysia.

(4) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

Please take note of section 7(1): 

 “…may recover it in the manner prescribed by the law relating to civil procedure”

The key word here is MAY. In Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v Poh Swee Siong [1987] 2 MLJ 611, Hisham Yeop Sani SCJ in Supreme Court said that in the context of provision of section 7 the word “may” is permissive and discretionary and it is not obligatory on the part of the person entitled to the possession of land to resort exclusively or merely to a court of law.

HOWEVER,

Please take note of section 7(2):

“…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.”

In Kuppusamy a/l Berappan v Selvanayagi a/l Fernando & Anor [1993] 4 CLJ 53, the judge, after reading the Explanatory Note to the Bill, was of the view that the application is limited to merely the exclusion of common law remedy of self help.

In view of the above decided cases and relevant sections, I think that the remedy of self help is not applicable in Malaysia especially based on section 7(2). This is always the stand of lawyer as it is anyway a “safer advice”.

So landlords, don’t simply cut man….

Tags: -==Legal Tips==- · Property Law

2 responses so far ↓

  • 1 royleeken // Jul 26, 2009 at 9:21 pm

    My condo is going for auction for the fourth times and is still renting to somebody.
    Can I inform the TNB and SYABAS to disconnect the electricity and water first?

  • 2 Investment Guide // May 24, 2010 at 11:47 am

    Hey eddie, I need your advise in the following matter.

    I bought an auction house since december last year, I already paid the full amount, and legal process for name transfer is in progress.

    Now I found that there is someone stayed inside that unit. I checked with the neighbour, they told me that he is the previous owner. I asked my lawyer to send him an registered post to request him to vacant the possession by one calender month at this 31 May. In this case, what can I do to get my unit ? Can I cut the electric and water? I planned to make a police report and hired a locksmith. Please kindly advise. I tried to go to that unit and want to talk to that owner, but that owner always ” pretend” no one home. Please kindly help

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