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Renewal of tenancy / lease agreement

The landlord and tenant are bound by the terms of the tenancy agreement. Their rights are provided for in the said agreement. The principle of freedom to contract ensures a win-win situation for both parties provided that there is a consensus ad idem (“meeting of minds”). Therefore, it is not true that there is only one standard tenancy agreement. An astute person would ensure that the terms are not one sided.

When a person rents a house he would like to be assured that he is able to continue to stay there for a reasonable period. At the same time, he does not want to be committed indefinitely. The landlord who is usually the owner of the premises also does not want to commit himself for an indefinite period for he may need the premises for his own use or he may need to sell the premises at some time.

Though the landlord is willing to rent out the premises for the foreseeable future, he may not want to commit himself to the same rental for the entire period he is willing to let out the premises.

Hence, it is not uncommon to enter into a tenancy agreement for an initial period of one, two or even three years and a tenancy agreement is accordingly drawn up. Renewal with a possible rent adjustment must be mutually agreed upon. The usual practice is that the tenant is given the first option to renew the tenancy of which the tenant must give notice of such intention three months before the expiry of the tenancy.

This gives a unilateral right to the tenant to renew the tenancy for a further term and an opportunity for the landlord to have the land rent adjusted. Such a clause would effectively serve the interest of the tenant in securing an extended term of the tenancy if the extended term were to be the same with an increase or percentage increase stipulated. The tenant’s interest would be well protected even if the mechanism for fixing the rental was provided for.

Unfortunately, many tenancies or even lease agreements do not spell this out. If an existing lease or tenancy or agreement is examined many of them will be found to contain an option clause which does not fix the rent but which leaves the issue to be decided later.

Thus, a typical option clause may read:

“Upon the expiration of the term hereby stipulated the tenant shall by notice given three months before the expiry of this agreement renew the tenancy for a further term of three years upon the same terms and conditions herein stated except this clause as to rental. The rental for the renewed term shall be mutually agreed upon between the parties.”

In some cases it may even be provided that the rental shall be determined by the landlord. The question that arises is as to whether in such instances the tenant would have a meaningful right of renewal? Arising out of a clause like this there are two matters that require attention. One is the need for the tenant to give notice at or before the stipulated time to the landlord.

If giving of the notice is overlooked, the right to an option is lost unless the landlord agrees to waive this requirement. The other issue relates to rental for the renewed term. This is where the perceived rights of the tenant may be again lost because either the parties cannot agree to the rental.

Popular Book Co Pte Ltd v Sea Sun Furnishing Pte Ltd [1991] 3 MLJ 10

  • Where the renewed term was to be “for a period of three years commencing from the date immediately following the expiration of term hereby created, at a revised rent to be determined by the landlord and upon terms and conditions as shall be imposed by the landlord.”
  • When the earlier term came to an end, the plaintiffs were informed by the defendants’ solicitors that their clients were prepared to renew the lease for a further term of three years at a rent of S$28,728.
  • The plaintiffs rejected the notification on the ground that the rent was unconscionable and far in excess of the market rate.
  • An application was made to Court for a decision as to whether in the circumstances the right of the landlord to revise the rental was subject to such revision being fair and reasonable?
  • It was contended by the tenant that there are three types of options for renewal of leases:
    1. (1) Where there is no formula for quantifying the rent and no machinery to determine it;
    2. (2) Where there is a stated formula but no effective machinery; and
    3. (3) Where both the formula and the machinery are provided.
  • It was argued by the tenant that the option to renew the lease was of the first type and therefore it was for the court to provide the formula so that the tenancy and the option clause would not be frustrated.
  • The court, however, went on to decide that as the rent demanded by the landlord was not acceptable to the tenant there was no renewal of the tenancy which had therefore come to an end.
  • A distinction was drawn between the tenancy in this case which was for three years and English cases involving leases where the court had intervened and provided the formula to exercise its power to either fix a rent or provide a mechanism to do so.
  • What was involved in the English cases where the courts were willing to intervene was a rent review in the context of an existing lease period as against the renewal of a tenancy.

It would therefore serve tenant’s interests to be aware that where either:

  1. (i) The rental for the renewed term of the tenancy is not pre-agreed; or
  2. (ii) A formula or mechanism for its determination is not provided for, the right of the tenant to renew the tenancy where the rental is to be agreed upon;

the power to determine the rental is placed in the hands of the landlord which may turn out to be illusory.

Letter to landlord giving notice to renew

This preview is an excerpt from the following publication. this publication for access to all the commentary and precedents.

Jump to this this section below.

Tenancy and Leases - Step by Step Guide & Precedents

by By Lawyers For Lawyers author - Jayadeep Hari & Jamil

Overview

This publication provides comprehensive guidance when dealing with the law governing landlord and tenancy in Malaysia. Although there are some legislative provisions relating to this area, landlord and tenant disputes are largely governed by common law. The lack of legislative certainty surrounding this area means it can be difficult to navigate. This step-by-step guide provides clear and practical direction which aims to ensure protection for both landlord and tenant alike.

This guide details the difference between a licence, a tenancy and a lease. It provides all the tools necessary to resolve a dispute efficiently and effectively including links to relevant legislation and references to relevant case law. The commentary highlights all of the areas of possible contention and aims to ensure that the relevant lease/tenancy agreement pre-empts any possible problems.

The guide also includes a comprehensive suite of precedents including;

  • Simple tenancy agreement
  • Commercial tenancy agreement
  • Agricultural land lease agreement
  • Sub tenancy agreement
  • Notice to vacate
  • Notice of termination

Whether you are acting for the Lessor or Lessee, Landlord or Tenant this publication provides useful guidance which will aid efficiency, time management and productivity.

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