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YOUR PERSONAL ADVISER: FINANCE

How can landlord reclaim house when tenant fails to pay rent?

Q MY FRIEND’S three-room terrace house in Singapore was rented out to a divorcee and her daughter. The tenant put down a total deposit of $1,200, consisting of one month’s rental of $1,000 and $200 for utility bills.

The tenant last paid rent in April last year. She owes four months’ rent, or $4,000. Before that, she had been late in making payments for several months. Unpaid bills for utilities add up to about $100.

The landlord has chased the tenant for rental payment since June. At first, the tenant gave many excuses and promises, but they all turned out to be false.

Since late July, the tenant has stopped answering the landlord’s calls to her mobile phone and has also not returned any SMSes. She and her daughter were hardly ever at home.

In late July, the landlord locked the front and back gates of the house with extra padlocks but did not enter the house. The tenant’s possessions are still in the house. The tenant did not attempt to enter the house or contact the landlord.

The landlord made a police report that the tenant owed money and could not be contacted. The landlord’s primary goal is to reclaim the house and rent it to someone else. The money owed is secondary.

A notice containing details of the amount owed and of the police report that had been made was posted on the front door of the house. The same notice was circulated to neighbours.

The tenant’s furnishings were bought from a furniture company on instalment.

My questions are:

a) Does the landlord have the right to lock up the front and back gates of the house without entering the house?

b) What are the landlord’s liabilities if he enters the house and then sells the tenant’s possessions to reclaim part of the money owed?

c) What are the landlord’s liabilities if he enters the house, takes photos of the interior of the house with all the tenant’s possessions, for documentation purposes, and then moves the possessions into a storage room?

After that, can the landlord rent out the house to another tenant but keep the storage room for his own use in order to store the previous tenant’s possessions?

d) If the tenant makes a police report that the landlord entered the house and took her possessions, can the police arrest the landlord?

e) Can the furniture company make a claim against the landlord for selling the furnishings that are still being paid for by instalment?

f) What is the best method to evict the tenant in my friend’s case?

A WHEN a tenant fails to pay rent, the landlord may of course sue the tenant for the arrears of rent, just as he could with any other debt due and owing.

The action must be brought within six years of the date that the arrears became due.

However, the landlord has two other specific remedies, namely, distress under the Distress Act and forfeiture of the lease.

Distress is an ancient remedy that is quite similar to seizure and sale – that is, the tenant’s goods are seized and sold, and the rent owing must not exceed 12 months of the tenancy.

Such an action may be brought if the tenant is still in occupation or has his goods or belongings on the property. The procedure starts with the filing of a writ of distress that is addressed to the sheriff. The sheriff will seize the goods, and make an inventory and a valuation. He will also give the tenant a notice of the seizure, informing him of the rent owed and that the goods seized will be sold at a stated place and time.

Such a notice may be pasted in a conspicuous place on the premises. The tenant has five days to pay up from the date of notice or to apply to court for an order to stop the sale.

On the tenant’s application, the court may order that the goods be released unconditionally, direct that an issue be tried and so suspend the writ, or hold that the goods may be sold.

Of course, if no application is made, the goods will be sold and the proceeds applied first to pay the sheriff’s costs and then to satisfy the outstanding rent. The balance, if any, would be returned to the tenant.

Certain items cannot be distrained, such as things in actual use in the hands of the tenant, tools and implements, and his necessary clothes and bedding for himself and his family.

Only movable items may be seized, so fixtures are excluded. It is also common for most hire-purchase companies to expressly provide in the hire-purchase agreement that the hiring shall automatically terminate if the hirer’s landlord takes any steps to levy distress. Therefore, such goods cannot be seized and, if seized, would be released by the court.

Where the tenant has abandoned the premises and there is insufficient property for distress, then if (a) the rent is not less than 75 per cent of the annual value of the property and (b) the rent has been in arrears for at least two months, the landlord may apply to court to enter and take possession of the premises.

The sheriff will paste a notice informing the tenant that possession will be given to the landlord unless the tenant applies within 10 days, or the court orders otherwise, on the application of the tenant or some other interested party.

If the distress action is brought after bankruptcy proceedings have started against the tenant, then only three months of arrears of rent are recoverable against him. The landlord may also file a proof of debt with the Official Assignee against the bankrupt tenant, just as he could with any other unsecured creditor.

The landlord may also apply for forfeiture of the lease, which would effectively bring the lease to an end. This is usually an action for possession, and a well-drafted agreement will usually contain a clause for re-entry in the event of the tenant’s failure to pay rent.

However, the tenant may apply to court before judgment for relief from forfeiture by paying into court all the arrears of rent and costs, in which case the tenant would be able to continue with the lease and not have to enter into a new lease.

Even after judgment for possession, the tenant is still entitled to relief if he pays up the judgment sum with costs within four weeks of the judgment. The law is not explicit about whether relief is still available to the tenant where the landlord has entered into possession peaceably and changed the locks. While the court might still be able to grant relief, it would, however, take into account the lapse of time as it would not be fair to the landlord if the tenant were to appear out of the blue and pay the arrears to reclaim the lease. The tenant’s significantly long absence could well be read as an implied surrender of the lease.

In your friend’s case, it appears that he has entered into possession peaceably and that has effectively brought the lease to an end.

However, your friend should be mindful of the tenant’s right to apply for relief. The tenant’s right to relief is extinguished only if your friend issued and served proceedings for possession, obtained judgment and then entered the premises on the strength of that judgment.

As for the tenant’s goods, it is prudent and best to apply for a court order as the tenant might make all sorts of allegations that his property had not been properly valued or had been sold at an undervalued price.

The police usually treat disputes between landlord and tenant as a commercial matter.

 

Source: The Sunday Times 6 Jan 08

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