Intro:

To begin this article, allow us briefly explain what we mean by 'landlord' and 'tenant' in this context of today's discussion.

For those who are not familiar with the term, landlord is the owner land or premise be it dwelling house, shop lot or factory etc, either having registered interest or beneficial interest. And the tenant means a person, company or organization renting the premise, either on contractual basis or 'monthly basis'.

In any part in this world renting premises is a common practice. The relationship between the landlord and tenant however may differ. In Malaysia, unless for expensive rental rate or business premises, most rental practice do not have any kind of written contract binding upon landlord and tenant. Though, written contract of tenancy is highly encouraged, any tenancy with no written agreement is also valid and enforceable by law (Evidence Act- the tenant is estopped from denying the ownership/right of landlord). Such tenancy is called monthly tenant.

Problem Scenario:

1. We have discussion before on how the landlord should do in the event his/her tenant fail to pay rent (please refer to our last post) and that the landlord wants to take back his/her premise from the tenant, but still from our feedback we notice that 'the same old illegal practice of taking the law in the landlord's own hand is still 'happily' preferred.
   
2. So, this article will focus on what is the position under the Malaysian law 'governing' the situation.
   
3. Please read carefully, because if the landlord fails to follow the correct procedure, the landlord may face civil (or even criminal) suit claiming damages from the tenant notwithstanding that the rent is still overdue!
   

Our law:

1. Repossessing rented premise from tenant fall under statutory law of Specific Relief Act in particular section 4, in which the law make it compulsory for landlord to get court order to evict and repossess.
   
2. Failing which the tenant may press suit against the landlord for damages.
   
3. The law simply a blanket provision, it covers written or verbal tenancy contract, or monthly tenant.
   

Stop taking matter in your own hands

1. Our normal practice of 'locking out (or in)' the premise from the tenant, cutting utilities, sealing premises and whatsoever are directly against the intention of the law.
   
2. The tenant beside having the right to claim damages from landlord, he may also initiate an injunction proceeding enforcing his right to rent or right to stay or prohibiting landlord from disturbing his harmonious rent or stay on the premise.
   

Solutions:

1. If the landlord wishes to collect his overdue rental from the tenant, the landlord may file a distress proceeding against the tenant.
   
2. If the landlord wants to recover back his premise and at the same time claiming overdue rental, the landlord should file a simple eviction summons in court against the tenant.
   
3. But before that, the landlord should serve eviction notice to the tenant giving the tenant certain grace period to handover vacant possession and pay all overdue rental.
   
4. Bonus to the landlord is that after the expiry of such notice the landlord may claim double rental if the tenant remains in occupation of the premise.
   
5. If the landlord feel that the tenant may try to escape his liability (to pay overdue rental) by 'moving out at night' J the landlord may immediately after filing his suit in court apply for 'attachment of property before judgment' (though this application may not be very popular or rarely allowed by court, but a good advocate may deliver the work well).
   

hi,

i saw ur blog at this add: http://legal-malaysia.blogspot.com/2009/01/malaysian-highway-concession-agreement.html

not sure can I ask question 2 u o not here?

i'm a freelancer designer artist, what kind of legal agreement should i make between client and my side?



thx.

Answer,

What kind of legal agreement ?

1. Nature of business/ service.
   
2. Consideration
   
3. Your right(s)
   
4. Your client right(s)
   
5. General provisions.
   

Thank you,

Azhar

Salam,

We wish Selamat Hari Raya Aidil Fitri to all muslim readers of blog..

We would like to wish all muslim followers and visitors of our blog to have a great Ramadhan month ahead, may God bless us..

Sumber: Utusan Malaysia Online 29/07/2009 7:10pm

BUTTERWORTH 29 Julai - Seorang peguam mati selepas dipaksa minum sejenis cecair oleh sekumpulan lelaki di sebuah kuil di Jalan Perai Baru di sini, Isnin lepas.

Ketua Polis Daerah Seberang Perai Tengah, ACP Dr. Mohd. Shah Hussin Shah berkata, kejadian berlaku pada kira-kira pukul 11 pagi semasa R. Thinakaran, 37, hendak meletak kenderaannya untuk bersembahyang di sebuah kuil di jalan itu.

Beliau berkata, empat lelaki tiba-tiba muncul dan terus menyerbu masuk ke dalam kereta Thinakaran dan memaksa peguam itu meminum satu botol cecair, sebelum melarikan diri.

Katanya, Thinakaran kemudiannya terus bergegas ke Hospital Seberang Jaya untuk mendapatkan rawatan selepas muntah-muntah serta pening kepala, dan dia meninggal dunia di hospital berkenaan pada kira-kira pukul 11.40 malam.

Menurutnya, laporan bedah siasat semalam menunjukkan buah pinggang Thinakaran rosak akibat pengambilan cecair itu.

Mohd. Shah berkata, polis sudah menahan seorang rakan Thinakaran bagi membantu siasatan, dan kes sedang disiasat mengikut Seksyen 302 Kanun Keseksaan. - Bernama

Comment: Now lawyers need protection! lol

Source: Utusan Malaysia Online

KUALA LUMPUR 27 Julai - Mahkamah Tinggi di sini hari ini membenarkan wakil Persatuan Undang-Undang Bagi Rantau Asia Pasifik (LawAsia) bertindak sebagai peguam pemerhati dalam perbicaraan terhadap Pengerusi DAP, Karpal Singh yang didakwa menyebut kata- kata hasutan membabitkan Sultan Perak.

Pesuruhjaya Kehakiman, Azman Abdullah bagaimanapun berkata, terma dan syarat bagi kebenaran tersebut akan dimaklumkan kepada LawAsia apabila perbicaraan berjalan kelak.

Beliau juga mengarahkan LawAsia menulis secara rasmi kepada mahkamah dan salinan surat berkenaan dihantar kepada pejabat pendakwa raya, peguam bela dan Majlis Peguam.

Azman memutuskan demikian semasa sebutan berhubung permohonan bekas hakim Mahkamah Tinggi dari Australia, Jeffery Allan Miles yang berhasrat menjadi peguam pemerhati dalam kes itu mewakili LawAsia.

LawAsia merupakan organisasi antarabangsa melibatkan persatuan peguam, peguam, hakim, ahli akademik undang-undang dan pihak-pihak yang berminat serta prihatin terhadap profesion perundangan di rantau Asia Pasifik.

Question:-

Good day, Mr. Kamarul Irzuan,

I need some professional advice for my case. I hope you can make me more clearly in the case and guide me what to do for the next step.

Here is about my case:

I have built a company with my friend in year 2006. This is a partnership company. Everything is 50-50 ( No agreement ). I have withdrawn from this company and built another new company on early of March 2009. I have taken out my name from the ROC. Now my previous company is belonging to my ex-partner.

My question is:

1. Can I get back the money from my previous company? That company is earning money all the time from 2006 to 2009.
   
2. I had taken out my name at March 2009. We didn't sign for any agreement at that time. Verbally my ex-partner said he will return the money to me but after a month document signed, he told me he won't pay me even 1 cent. Reason is I already signed the document. I no more a part of the company. Is he right?
   
3. I still pay the accountant fees and the income tax, 50-50 according to the account at June 2009. I have the company P&L on hand. My friend, an accountant told me I can should able to get back the half of the profit earns. It is right?
   

Thanks.

(name deleted)Melvin Hew

(h/p no: deleted)

Answer:-

1. Rights of a partner in any partnership could be established even without a written profit-sharing or partnership agreement.
   
2. In a simple presumption, if no agreement exist, and the partnership comprise of two people, then a 50-50 arrangement is easily understood.
   
3. The withdrawal date would be the cutoff date for you the claim. In your case, March 2009.
   
4. Before the cutoff date you are entitle for any profit of the partnership and also liable for any liability occurred during the period. That's also explain why you need to pay for tax and accountant fees.
   
5. In short, yes you may claim your 50% share of the partnership business's profit, if any during the partnership…
   

Good luck.

Due to 'irresponsible act' by some visitor of this blog that treating the Yahoo Messenger as 'social chatting' avenue, I have to remove the chat roll. As usual, for any problems or inquiries please email me at ki_my@hotmail.com or join our new facebook group. Sorry for the inconvenience.

Source: Malaysian Bar Council

1. POLICE STOPS YOU

1.1 Not in uniform, ask for identification

Say: "Please, show me your Police authority card".

1.2 Police authority card

Red : Suspended Police Officer. He has no authority to do anything to you. Walk away.

Other colours:

• Blue : Rank of Inspector and above

• Yellow : Below the rank of Inspector

• White : Reserve police

Note his name and ID number

1.3 In uniform

Note his name and ID number on his uniform.

1.4 Police vehicle

Note the number plate of the patrol car or motorcycle.

2. POLICE QUESTION YOU WHEN STOPPED

2.1 Your identification

Only give your name, ID card number and address.

2.2 The police ask other questions

Politely ask "Am I under arrest?"

2.3 When you are under arrest

You are arrested if the police:

• tells you "yes";

• does not allow you to leave/want to take you to the Police Station; or

• handcuffs you

if you are not under arrest, you may walk away/refuse to follow him back to the Police station or anywhere else, if asked.

2.4 When you cannot be arrested

The police cannot arrest you just because you are a potential witness and want to take a statement from you (112 / Witness Statement).

3. QUESTIONING BY POLICE WITHOUT ARREST

3.1 112 Statement

When the police are investigating a case and think you have information / knowledge about the case, the police may examine you and take down your answers (112 Statement).

3.2 Informal/Formal Request

Most times, the police make an informal request that you give a 112 Statement. If the place and time is convenient to you, cooperate. If not, tell the police you will do so at a convenient place. If you refuse to cooperate, the police may issue a formal order in writing, signed by an investigating officer (Police Officer) to ask you to cooperate. If you disobey a Police Order, you cannot be arrested. However, it is an offence and the police may request the Magistrate to issue a warrant against you to compel you to cooperate.

3.3 Giving a 112 Statement

You have the right to ask a lawyer to accompany you. This is advisable. In giving a 112 Statement, you may refuse to answer any question / remain silent if the answer is likely to expose you to a criminal offence.

• Bring along a notebook or writing paper with you (Personal Notes).

• Write down every question asked in your Personal Notes.

• Make sure you understand every question asked.

• Take your time and think carefully before writing your answers in your Personal Notes.

• Read your answers to the Police Officer questioning you.

• Keep your Personal Notes for future reference.

3.4 Signing your 112 Statement

Before signing your Statement, read the questions and your answers written by the Police Officer carefully.

• Compare the Statement you are asked to sign with your Personal Notes.

• You have the right to make any corrections/changes to the Statement before signing.

• Sign your signature immediately below the last sentence of your Statement.

4. POLICE ARREST YOU

4.1 Ask: "Why am I under arrest?"

An arrest is unlawful if you are not informed of the reason.

4.2 Do not resist an arrest

The Police have the right to use reasonable force to arrest you if you resist.

4.3 Ask: "Which Police station are you taking me to?"

The arresting Police Officer must immediately take you to the nearest Police station and no other place.

4.4 What to do when arrested

You have the right to telephone call to:-

1. Your relative or friend; and

2. A lawyer. You may also call a nearby Legal Aid Centre (LAC). Inform them:

• you have been arrested;

• the time, place and reason of the arrest;

• the Police station you will be taken to.

4.5 What happens after arrest

You may be detained up to 24 hours:

• at the Police station, or

• in a lock-up to "assist" police investigation.

5. YOUR RIGHTS AFTER ARREST & DURING DETENTION

5.1 Right to consult a lawyer

Once you request for the presence of a lawyer, you have a right to consult the lawyer at the Police Station. The Police must accord you reasonable facilities and a reasonable time for you to meet and consult the lawyer. The Police may, however, deny you this right, if the delay in questioning you may cause the occurrence of another crime or cause danger to others.

5.2 Clothing

You are allowed to have one set of clothing with you in the lock-up.

5.3 Personal belongings

The Police must record and put all your personal belongings in safe custody. Your personal belongings must be returned to you upon your release.

5.4 Welfare

You are allowed to take a bath two times a day. If you are sick, you have the right to receive immediate medical attention. You are to be given proper and adequate food and water during detention.

5.5 How long may the Police detain you

The Police may only detain you up to 24 hours for investigation. The duty of the Police is to complete investigations within 24 hours and to release you as soon as possible. If the Police cannot complete investigations within 24 hours, the Police must bring you before a Magistrate for a remand order to extend your detention beyond 24 hours (Remand Order).

6. REMAND ORDER BY MAGISTRATE AFTER 24 HOURS

6.1 Who is a Magistrate

A Magistrate is a judicial officer. He/She has the power to make a Remand Order to detain you for more than 24 hours.

6.2 Purpose of a Remand Order

It is to give more time to the Police to complete their investigations and decide whether there is evidence to charge you for an offence. The Police cannot ask for a Remand Order only for the purpose of taking a Statement from you.

6.3 How long is a Remand Order

When the Police bring you before a Magistrate for a Remand Order, the Police must give reasons to the Magistrate why it is necessary to detain you for more than 24 hours. The Magistrate's duty is to

consider carefully the reasons given by the Police. The Magistrate has the discretion:

• not to make a Remand Order and release you; or

• make a Remand Order for a period shorter than that asked for by the Police.

In any event, the Magistrate has the power to make a Remand Order of not more than 4 days or 7 days depending on the offence being investigated. The Police may return at the expiration of this time period and apply for a 2nd Remand Order. The Magistrate may make a 2nd Remand Order of not more than 3 days or 7 days depending on the offence being investigated.

6.4 What to say when you are brought before a Magistrate for remand

Tell the Magistrate:

• you want legal representation and you want to contact your lawyer, the LAC and your family;

• you want medical treatment because you are sick or have been beaten;

• if the Police had threatened or beaten you during detention;