©The Star (Used by permission)
by BHAG SINGH
The concept of double rental for holding over premises seems to be quite deeply embedded, but it also raises questions.
BE it living in compartmentalised units or landed property, ordinary individuals will find it difficult to purchase a property unless there is parental support or a “windfall”. Those who manage to do so on their own will spend a good part of their lives repaying the loan.
There are, by comparison, more renters than owners, which is consistent with the gap between the haves and have–nots.
Those who do not own properties have to rent and there is no law stating the minimum rental period.It all depends on the landlord and the tenant. In anticipation of rising rentals, landlords may be more inclined to grant shorter terms so that the rent can be reviewed, if not raised, at the expiry date.
This brings me to the plight of a reader whose tenancy has come to an end. He is unable to find new premises to move into so he continues to occupy the premises from which he should have moved out. In such a case, the tenant is said to be holding over and has been told that for the period he holds over, he will have to pay double rental.
It seems strange to him that though rentals in the area have gone up by about 10%, he has to pay double rental. It is absurd that while the loss to the landlord is just 10% of the rental, a rental sum amounting to 100% should be paid for the holding over. Such a demand cannot, however, be regarded as frivolous or entirely without basis.
There is a provision by way of Section 28(4)(a) of the Civil Law Act 1956 that “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 many cases, courts have treated the provision as a carte blanche for giving landlords the right to double the rent against tenants the minute there is a holding over. Is it really correct or fair?
Some insight may be obtained from the English Distress for Rent Act 1737: “And whereas great inconveniences have happened and may happen to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession when the landlord hath agreed with another tenant for the same. ”
Other English cases have favoured double rental or double value on account of fraud committed by the tenant which led to difficulties, inconvenience and loss to the landlord. This was founded not on the basis of compensating the landlord but of pushing the tenant.
Statutes providing for double rental in English law have been described as penal statutes. The aspect vis–à–vis the penal nature of the provision was discussed by Justice Avory in Crook v. Whitebread: “In all those cases, it was held that there must be something in the nature of contumacy on the part of the tenant in holding over to render him liable to double value.”
Closer to home, Walter Woon in an article entitled “Mense Profit, Double Rent and Double Value in Singapore” traced the history of the section to the Supreme Court of Judicature Act 1885. Upon examining the Bill, he concluded that there was nothing in it or in the debates of the Legislative Council to indicate where the provision came from or what its rationale was.
With this as the background, the courts have not always endorsed the simplistic view of the section. The exercise of discretion by the courts and the need to look further have occasionally been considered and ventilated.
In the case of Krishna Sreedhara Panicka v. Chiam Soh Yong Realty Co Ltd in 1982, the court noted that “the respondents’ claim was actually not rent but a penal sum which the former tenant had to pay for the inconvenience and loss he caused the landlord in refusing to give vacant possession of the premises on the determination of the tenancy”.
However, the court recognised the provision as being penal in nature and the need for it to be construed with some degree of stricture. It endorsed the view of the judge that it was unconscionable for the respondent to claim double rental.
Two years later in the case of Soong Ah Chow and Anor v. Lai Kok Cheng heard in the Supreme Court, the late Hashim Yeop A. Sani F.J. said: “Section 28(4)(a) of the Civil Law Act 1956 provides that every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double rental until possession is given up by him. The effect of Section 28(4)(a) was examined in Krishna Sreedhara Panicka v. Chiam Soh Yong Realty Co Ltd. The majority judgment held the view that the Court has discretion when to impose double rent. It seems to me that the legislature’s choice of the words ‘shall be chargeable’ clearly implies some discretion.”
Some 20 years later, this approach was also taken by Abdul Hamid Embong J. in Mari Boutique Sdn Bhd v. Jaya Jusco Stores Bhd where his Lordship said: “The phrase ‘shall be chargeable’ found therein must be read as merely an enabling one, subject to the normal process of proof in a trial. The recovery of double rent under Section 28(4)(a) is thus not as of right for the landlord but a matter of the court’s discretion. ”
At a time when most losses in civil matters are to compensate the aggrieved party and not to punish the delinquent party, it would certainly be appropriate if the court looked at whether the appellant’s conduct was wilful, contumacious or unreasonable in deciding whether double rental should be awarded.
> Any comments or suggestions for points of discussion can be sent to mavico7@yahoo.com. The views expressed are entirely the writer’s own.
What are the international justice norms? written by Tan Peek Guat, Sunday, July 20 2014 12:10 am
