by Aaron Tan Zi Kang (6 December 2021)
You are the landlord of an apartment and you have rented out your apartment to a tenant, hoping that the monthly rent payments collected can be used to cover your mortgage payment. However, after the determination of the tenancy term, the tenant refuses to give up the possession of the apartment. What can you get from the tenant who holds over your apartment?
In such situation, you as the landlord can rely on Section 28(4)(a) of the Civil Law Act 1956 to charge your tenant double rent for the period the tenant holds over your apartment after the determination of the tenancy.
Section 28(4)(a) of the Civil Law Act 1956 provides as follows:
“(4) (a) Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not.”
In an earlier Federal Court case of Krishna Sreedhara Panicka v Chiam Soh Yong Realty Co Ltd [1983] 1 MLJ 65, the court decided that the double rent chargeable at the option of the landlord is actually not rent but serves as a penal sum which the tenant has to pay to the landlord for the inconvenience and loss the landlord has suffered as a result of the tenant’s refusal to give up the possession of the property.
In a more recent Federal Court in the case of Rohasassets Sdn Bhd (formerly known as Wisma Perkasa Sdn Bhd) v Weatherford (M) Sdn Bhd & Anor [2020] 1 MLJ 557 delved into the issue of double rent and its judgment would certainly throw some light on the subject matter. Our apex court has made it clear that a tenant is liable to pay double rent to the landlord if the landlord decides to charge double rent and the tenant refused and/or failed to give up the possession of the property after being told by the landlord to do so. The landlord does not need to show wrongful, wilful or contumacious conduct on the part of the tenant in order for him to charge for double rent.
Simply put, even in the absence of any willful or contumacious conduct, the tenant is still liable to pay double rent to the landlord if:
- the landlord decides to charge double rent;
- the landlord does not consent to the tenant’s holding over; and
- the landlord has requested the tenant to give up the possession of the property but the tenant refused to do so.
The double rent chargeable at the option of the landlord, which is also called the mesne profits, are assessed on the market rental value of the premise at the relevant time. The case of Mohamed Abu Bakar s/o Yusof v Pa Syed Aboothahir s/o P Ahmed [1990] 1 MLJ 26 is particularly instructive here where the High Court through Edgar Joseph JR J (as he then was) had held as follows:
“Mesne profits are in the nature of damages for trespass and they are assessed on the basis of the value of the premises at the relevant time, that is to say, at the time judgment was pronounced in the court below“
Conclusion
In conclusion, the landlord must make his intention clear to the tenant that he does not wish to renew the tenancy and wants the tenant to give up the possession of the property after the expiry of the tenancy. It should be noted that in a situation where the tenancy term has expired but the landlord allows the tenant to stay in the premises and continues to accept the rent paid by the tenant, a tenancy at will is created and the landlord’s conduct of accepting the rent shall be deemed as a waiver of the landlord’s right to charge for the double rent.
Note: This article does not constitute and should not be relied on or treated as legal advice on or with respect to any particular case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.