Landlord’s action of self-help

Self-help is a form of redressing or preventing wrongs by one’s own action without recourse to legal proceedings. Many a time, landlords resort to self-help eviction which can take many forms including changing the locks to the apartments, removing a tenant’s belongings or shutting off the utilities to the apartment without regarding if they are in violation of the law.

Self-help enables landlords to enforce their contractual rights quickly and efficiently without resorting to judicial process. However, self-help measures are controversial because they amount to taking the law into one’s own hands.

Landlords who engage in self-help evictions often argue that the tenant was in violation of the tenancy/ lease in some manner in the first place and thus, the landlord is entitled to possession.

1. Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v. Poh Sweesiang [1987] 2 CLJ 302

1. The learned Hashim Yeop Sani SCJ said that section 7 of the Specifc Relief Act 1950 (Malaysia)  provides that a person entitled to the possession of land may recover it in the manner prescribed by the law @relating to civil procedure. In the context of the provision of s. 7 of the 1950 Act, the word “may” is permissive and discretionary and it is not obligatory on the part of a person entitled to the possession of land to @restore exclusively or solely to a Court of law. In other words, s. 7 of the does not exclude the common law remedy of self-help. This is a remedy which is always available unless expressly excluded.

1. Er Eng Bong [2000] 1 CLJ 289

1. The remedy of self-help was alluded in this case. In this case, the learned Abdul Malik Ishak J stated that the amended s. 7(2) of the Specifc Relief Act 1950 (Malaysia)  which came into force on 31 January @1992 by Act A 811 would relegate 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. S. 7(2) of the Act @is as follows:

1. “When 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 court.”

1. SME Aerospace Sdn Bhd V. Steyr Mannlicher (M) Sdn Bhd [2006] 5 CLJ 121

1. In this case, it was held that the use of the word ‘shall’ in s. 7(2) of the Specifc Relief Act 1950 (Malaysia)  imposed a precondition of obtaining a court order before attempting to recover possession of a @property. Thus, the requirement to first and foremost obtain a court order was a mandatory one. Further, the law does not allow any person to take the law into his own hands and forcibly evict another person from the @property.

1. The learned judge went on further to agree that s. 8(1) of the Act reinforced the right of a person who has been wrongfully dispossessed of an immovable property ‘otherwise than in due course of the law’.

1. Section 8(1) of the Act provides:

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.”

1. Therefore, a tenant who holds over after the expiry of the period of tenancy, is entitled to sue his landlord for possession under Section 8 of the Act, if forcibly dispossessed by him.

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