Tenant Refuses to Vacate in Malaysia: What Can a Landlord Do?

A landlord may face a difficult situation where the tenancy has expired or has been terminated, but the tenant simply refuses to leave.

The tenant may continue staying at the property, ignore requests for vacant possession or even stop paying rent altogether.

In such circumstances, the landlord may understandably want to change the locks, disconnect the utilities or enter the property and take possession.

However, landlords in Malaysia should exercise caution before attempting to remove a tenant themselves.

1. Has the Tenancy Actually Ended?

Before taking further action, the landlord should first determine whether the tenancy has legally ended.

This may happen because:

• the agreed tenancy period has expired; or
• the tenant has breached the tenancy agreement and the landlord has validly terminated the tenancy.

Where termination is based on a breach, such as non-payment of rent, the landlord should check the tenancy agreement carefully.

The agreement may require:

• a notice of default;
• a period for the tenant to remedy the breach; or
• a formal notice terminating the tenancy.

The correct procedure should be followed before vacant possession is demanded.

2. Issue a Notice Requiring Vacant Possession

If the tenancy has expired or has been properly terminated, the landlord may issue a notice requiring the tenant to deliver vacant possession of the premises.

The notice should generally identify:

• the tenancy;
• the property concerned;
• the basis on which the tenancy has ended;
• the date by which vacant possession is required; and
• any outstanding rental or other sums due.

Proper preparation and service of the notice can become important if court proceedings are later required.

3. Can the Landlord Just Change the Locks?

Generally, this should not be done while the tenant remains in occupation.

Section 7(2) of the Specific Relief Act 1950 is important in this context.

Broadly, where immovable property has been let under a tenancy, the tenancy has ended and the occupier nevertheless remains in possession, the person entitled to possession should recover the property through court proceedings.

Accordingly, even where the tenancy agreement contains a provision allowing the landlord to re-enter the premises, the landlord should be cautious about physically repossessing the property without a court order.

4. What About Disconnecting Electricity or Water?

Landlords should similarly avoid using utilities as a means of forcing the tenant out.

This may include:

• disconnecting electricity;
• disconnecting water;
• blocking access to the premises;
• removing doors or locks;
• removing the tenant’s belongings; or
• otherwise interfering with the tenant’s occupation.

Such actions may expose the landlord to unnecessary legal disputes.

The safer approach is generally to obtain the appropriate court order and enforce possession through the legal process.

5. Court Proceedings for Vacant Possession

Where the tenant refuses to leave after the tenancy has ended, the landlord may commence court proceedings seeking vacant possession.

Depending on the circumstances, the landlord may also claim:

• outstanding rental;
• double rent for holding over, where applicable;
• utilities or other contractual sums;
• damages;
• interest; and
• costs.

If the landlord obtains an order for vacant possession and the tenant still refuses to leave, further enforcement procedures may be taken.

This may ultimately involve obtaining a writ of possession so that possession is recovered through the court bailiff.

The court process therefore avoids the landlord having to physically remove the tenant personally.

6. Can the Landlord Claim Double Rent?

In appropriate circumstances, yes.

Section 28(4)(a) of the Civil Law Act 1956 deals with a tenant who holds over after the tenancy has been determined.

In appropriate cases, the landlord may claim double the amount of rent for the period during which the tenant continues to occupy the property without the landlord’s consent.

However, double rent should not be assumed to arise automatically whenever a tenancy expires.

An important question is whether the tenant remains in occupation without the landlord’s consent.

For example, the landlord’s conduct after the expiry of the tenancy may become relevant if the landlord:

• continues accepting normal rent;
• allows the tenant to remain;
• agrees to extensions; or
• continues negotiating a renewal.

Landlords who require the tenant to leave should therefore communicate their position clearly.

7. What If the Tenant Continues Paying Rent After Termination?

This is an area where landlords should exercise care.

Suppose the landlord has terminated the tenancy and demanded vacant possession, but the tenant nevertheless transfers another month’s rent into the landlord’s account.

The landlord’s treatment of that payment may become relevant to whether the tenant’s continued occupation was accepted or consented to.

Accordingly, payments received after termination should be dealt with carefully and properly documented, particularly where the landlord intends to continue seeking vacant possession.

8. What If the Tenant Refuses to Return the Keys?

The failure to return keys may be one indication that the tenant has not delivered vacant possession.

Vacant possession generally involves more than simply stopping payment of rent.

The landlord will normally expect the tenant to:

• vacate the premises;
• remove personal belongings;
• hand back possession; and
• return the keys and access devices.

If the tenant remains in occupation or continues exercising control over the premises, the landlord may need to take further steps to recover possession.

9. Can the Landlord Claim Both Vacant Possession and Unpaid Rent?

Yes, depending on the circumstances.

A landlord may be dealing with two problems at the same time.

The first is possession: the tenant refuses to leave.

The second is money: the tenant owes rental or other sums.

Accordingly, the landlord may potentially seek:

• vacant possession;
• outstanding rental;
• double rent, where applicable;
• outstanding utilities;
• damages;
• interest; and
• costs.

The exact relief available will depend on the tenancy agreement and the facts of the case.

10. Practical Steps for a Landlord

Where a tenant refuses to vacate, the landlord should generally consider:

1. Reviewing the tenancy agreement.
2. Confirming whether the tenancy has expired or has been validly terminated.
3. Issuing the appropriate notice demanding vacant possession.
4. Keeping records of communications with the tenant.
5. Avoiding self-help eviction measures such as changing locks or disconnecting utilities.
6. Commencing appropriate court proceedings if the tenant continues refusing to leave.
7. Enforcing any order for possession through the proper court process.

Frequently Asked Questions

Can I evict my tenant immediately if the tenancy has expired?

The expiry of the tenancy may entitle the landlord to vacant possession, but if the tenant refuses to leave, the landlord should generally recover possession through the proper legal process rather than forcibly removing the tenant.

Can I change the lock when the tenant is not home?

Where the tenant remains in occupation, changing the lock without obtaining the appropriate court order may expose the landlord to legal issues.

Can the police remove the tenant for me?

A tenancy dispute is generally a civil matter. Making a police report does not itself replace the need for the appropriate court proceedings to recover possession.

Can I claim double rent?

Potentially. Section 28(4)(a) of the Civil Law Act 1956 may apply where the tenant continues holding over after the tenancy has ended without the landlord’s consent.

What if the tenant also owes several months of rent?

The landlord may consider recovering both possession and the outstanding sums. A warrant of distress may also be relevant for rental arrears, depending on the circumstances.

Conclusion

When a tenancy has expired or has been validly terminated, the landlord is entitled to expect the tenant to return vacant possession.

However, where the tenant refuses to leave, landlords should avoid taking matters into their own hands by changing locks, removing belongings or disconnecting utilities.

The proper approach is generally to issue the necessary notices and, if the tenant remains in occupation, commence the appropriate court proceedings for vacant possession.

Where rental arrears are also involved, the landlord may consider recovering the outstanding sums together with any other remedies available under the tenancy agreement and Malaysian law.

This article provides general information on Malaysian law and does not constitute legal advice. The appropriate legal steps will depend on the terms of the tenancy agreement and the particular facts of each case.

Read more: Tenant Not Paying Rent in Malaysia: What Can a Landlord Do?