Distress 1 LAWS OF MALAYSIA REPRINT Act 255 DISTRESS ACT 1951 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 DISTRESS ACT 1951 First enacted ... ... ... ... ... ... ... 1951 (Ordinance No. 28 of 1951) Revised ... ... ... ... ... ... ... 1981 (Act 255 w.e.f 26 November 1981) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 255 DISTRESS ACT 1951 ARRANGEMENT OF SECTIONS Section 1. Short title 2. Interpretation 3. Not to apply to Government rents 4. No distress otherwise than under this Act 5. Application for warrant of distress 6. Provision for distress by one of joint owners 7. Warrant of distress 8. Property exempted from seizure 9. Inventory and estimate of property seized, and notice to tenant of the seizure 10. Application by under-tenant, lodger, etc., for discharge, suspension, or release 11. Payments by under-tenant or lodger to superior landlord to be deemed rent 12. Exclusion of certain goods 13. Exclusion of certain under-tenants 14. To avoid distress 15. Interpretation of sections 10 to 14 16. Application by tenant 17. Powers of court 18. Costs 19. Sale of property seized 20. Procedure where property seizable under a distress is already under seizure by way of execution 21. Removal of goods to avoid distress 22. Where goods removed sold to bona fide purchaser 4 ACT 255 Laws of Malaysia Section 23. Deserted premises 24. Penalty 25. Notice to quit 26. Repeal SCHEDULE Distress 5 LAWS OF MALAYSIA Act 255 DISTRESS ACT 1951 An Act relating to distress for rent. [Peninsular Malaysia--1 September 1951, L.N. 503/1951; Sabah and Sarawak--1 June 1981, P.U. (B) 303/1981] Short title 1. This Act may be cited as the Distress Act 1951. Interpretation 2. In this Act, unless the context otherwise requires-- "bailiff" includes a Sheriff in the High Court; "Judge" means a Judge of the High Court in all cases where proceedings are taken in the High Court, a Sessions Court Judge in all cases where proceedings are taken in a Sessions Court, and a First Class Magistrate in all cases where proceedings are taken in a Magistrates' Court; "landlord" means the lessor or sub-lessor of any premises, under any lease, sub-lease, or agreement of tenancy, and includes any person claiming to be entitled in any capacity to receive rents due under any such lease or agreement; "Peninsular Malaysia" has the meaning assigned thereto in section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the *Federal Territory. "prescribed form" means the form prescribed by any rules of practice and procedure in force in the court where the proceedings are taken; *NOTE--"Federal Territory" refers to the Federal Territory of Kuala Lumpur and Labuan­see P.U. (A) 355/1985. 6 ACT 255 Laws of Malaysia "Registrar" means the Registrar or an Assistant Registrar of the High Court in all cases where proceedings are taken in the High Court, the Registrar of the Subordinate Court in all cases where proceedings are taken in a Sessions Court, and a Magistrate in all cases where proceedings are taken in a Magistrates' Court; "tenant" means any person from whom a landlord claims rent to be due under any lease, sub-lease or agreement; Not to apply to Government rents 3.  This Act shall not apply to rents due to the Government of Malaysia or the Government of any State. No distress otherwise than under this Act 4.  No landlord shall distrain for rent except in the manner provided by this Act. Application for warrant of distress 5. (1) A landlord or his agent duly authorized in writing may apply ex parte to a Judge or Registrar for an order for the issue of a warrant, to be called a warrant of distress, for the recovery of rent due or payable to the landlord by a tenant of any premises for a period not exceeding twelve completed months of the tenancy immediately preceding the date of the application and the Judge or Registrar may make such order accordingly. (2) Such authority may be in the prescribed form, if any, with such variations as circumstances require, and shall be produced at the time of the application. A power of attorney may be accepted as such authority. (3) Arrears of rent may be distrained for after the determination of the tenancy, provided that either the tenant is still in occupation of the premises in respect of which the rent is claimed to be due, or any goods of the tenant are still on the premises. Distress 7 Provision for distress by one of joint owners 6.  Where a right to a distraint accrues to persons jointly or together interested in any premises, such right may be exercised by any one of such persons in his own name and the names of those jointly or together interested with him, and the levy shall be a complete discharge to the defendant for the amount recovered; but the Judge or Registrar may in any case require the party so applying to produce a written authority to distrain, signed by the other persons jointly or together interested with him. Warrant of distress 7.  A warrant of distress shall be addressed to the bailiff, directing him forthwith to distrain any movable property found by him on the premises named therein, or such part of the property as may in his judgment be sufficient, when sold, to realize the amount of rent therein stated to be due to the applicant, together with such sum as may be due to the applicant by way of costs and to the bailiff for his fees and expenses: Provided that before a warrant of distress is issued the court may require the applicant to pay into court in cash such sum as the court considers necessary to cover the fees and expenses of the bailiff. Property exempted from seizure 8. Property seizable under a warrant of distress shall not include-- (a) things in actual use in the hands of a person at the time of the seizure; (b) tools and implements not in use, where there is other movable property in or upon the house or premises sufficient to cover the amount and costs; (c) the tenant's necessary wearing apparel and necessary bedding for himself and his family; (d) goods in the possession of the tenant for the purpose of being carried, wrought, worked up, or otherwise dealt with in the course of his ordinary trade or business; (e) goods belonging to guests at an inn; 8 ACT 255 Laws of Malaysia (f) goods in the custody of the law; (g) property of any Government, property vested in any local authority for local authority purposes, and property vested for public purposes in any person or body of persons, whether incorporated or not, which the Minister may by notification in the Gazette declare to be exempted from distress proceedings. Inventory and estimate of property seized, and notice to tenant of the seizure 9. (1) Immediately after seizing any property under a warrant of distress, the bailiff shall make an inventory and an approximate valuation thereof, and shall give to the tenant notice of the seizure with a copy of the inventory and valuation attached, informing him of the amount due under the warrant and that the property seized will be sold at a time and place to be named in the notice (not being less than six days from the date thereof), unless he pays the amount due within five days from the date thereof, or obtains an order restraining such sale. (2) If the tenant is not on the premises, such notice may be given to any person appearing to be in occupation thereof, or, if there is no such person, by posting it in some conspicuous place thereon. A p p l i c a t i o n by under-tenant, lodger, etc ., for discharge, suspension, or release 10. (1) Where any movable property of-- (a) any under-tenant; (b) any lodger; or (c) any other person whatsoever not being a tenant of the premises or of any part thereof, and not having any beneficial interest in any tenancy of the premises or of any part thereof, has been seized under a warrant of distress issued to recover arrears of rent due to a superior landlord by his immediate tenant, Distress 9 such under-tenant, lodger, or other person aforesaid may apply to a Judge to discharge or suspend the warrant, or to release a distrained article: Provided that-- (i) no order shall be made unless such under-tenant, lodger or other person aforesaid satisfies the court that the immediate tenant has no right of property or beneficial interest in such furniture, goods or chattels and that such furniture, goods or chattels are the property or in the lawful possession of such under-tenant, lodger or other person aforesaid; and also in the case of an under-tenant or lodger unless such under-tenant or lodger pays to the landlord or into court an amount equal to the arrears of rent in respect of which distress has been levied and also undertakes to pay to the landlord future rent, if any, due from him to the tenant; and (ii) in no case shall such under-tenant paying at least three- quarters of the full monthly letting value of the premises comprised in the under-tenancy or lodger be liable under this section to pay to the landlord or into court a sum greater than the rent which he owes to his immediate landlord. (2) For the purposes of this section and of sections 11 and 14 a lodger's rent shall include such sum as he pays or owes to his immediate landlord for lodging, board, attendance and use of furniture. Payments by under-tenant or lodger to superior landlord to be deemed rent 11.  For the purposes of the recovery of any sums payable by an under-tenant or lodger to a superior landlord under the undertaking specified in section 10, or under a notice served in accordance with section 14, the under-tenant or lodger shall be deemed to be the immediate tenant of the superior landlord, and the sums payable shall be deemed to be rent; but, where the under-tenant or lodger has, in pursuance of any such undertaking or notice as aforesaid, paid any sums to the superior landlord, he may deduct the amount thereof from any rent due or which may become due from him to his immediate landlord, and any person (other than the tenant for whose rent the distress is levied or authorized to be levied) from whose rent a deduction has been made in respect of such a payment may make the like deductions from any rent due or which may become due from him to his immediate landlord. 10 ACT 255 Laws of Malaysia Exclusion of certain goods 12. Section 10 shall not apply-- (a) to goods belonging to the husband or wife of the tenant whose rent is in arrear, or to goods comprised in any bill of sale, hire purchase agreement, or settlement made by such tenant, or to goods in the possession, order, or disposition of such tenant by the consent and permission of the true owner under such circumstances that such tenant is the reputed owner thereof; (b) to goods of a partner of the immediate tenant; (c) to goods (not being goods of a lodger) upon premises where any trade or business is carried on in which both the immediate tenant and the under-tenant have an interest; (d) to goods (not being goods of a lodger) on premises used as offices or warehouses where the owner of the goods neglects for one calendar month after notice (which shall be given in like manner as a notice to quit) to remove the goods and vacate the premises; and (e) to goods belonging to and in the offices of any company or corporation on premises the immediate tenant whereof is a director or officer, or in the employment, of such company or corporation. Exclusion of certain under-tenants 13.  Section 10 shall not apply to any under-tenant where the under tenancy has been created in breach of any covenant or agreement in writing between the landlord and his immediate tenant. To avoid distress 14.  In cases where the rent of the immediate tenant of such superior landlord is in arrear, it shall be lawful for the superior landlord to serve upon any under-tenant or lodger a notice (by registered post addressed to such under-tenant or lodger upon the premises) stating the amount of such arrears of rent, and requiring all future payments of rent, whether the same has already accrued Distress 11 due or not, by such under-tenant or lodger to be made direct to the superior landlord giving such notice until such arrears shall have been duly paid, and such notice shall operate to transfer to the superior landlord the right to recover, receive, and give a discharge for such rent. Interpretation of sections 10 to 14 15.  In and for the purposes of sections 10, 11, 12, 13 and 14 the