INTRODUCTION

In English Law, the Law of Property Act of 1925 (LPA 1925) defines a lease as an estate in

the land for a length of "years absolute". Tenant is granted a lease by a landlord. A lease,

gives the owner of the property the right to sole possession for a predetermined amount of

time. According to the terms of the lease, the tenant receives contractual rights and a

proprietary interest in the property, both of which can be transferred to a third party. Both the

terms "tenancy" and "lease" relate to the same thing, however more often than not, "tenancy"

is used to refer to shorter-term tenancies, and "lease" is used to refer to long-term leases

lasting more than 21 years.

Meanwhile, in Malaysia, the term “tenancy” in law refers to a “short–term tenancy” of not

more than 3 years. It may be for 1 year or 2 years. Once it exceeds 3 years, it is usually

known as a “lease”. There are no standard terms and conditions in a tenancy. The landlord

and the tenant may agree on any terms or conditions. It is a matter of mutual agreement. It

can be a monthly tenancy. The landlord or the tenant may give one calendar months’ notice

to terminate such tenancy. The monthly tenancy may continue for many years if it is not

terminated.
 ENGLISH LAW OF LEASE OR TENANCY

There are three crucial elements needed to fulfil for a lease to be valid, highlighted by the

court in the important case of Street v. Mountford [1985] UKHL 4. The first element is

exclusive possession. A tenancy without the right of exclusive possession is illogical since by

definition, a tenancy must entail the landlord's granting of exclusive possession. In Street v.

Mountford, Lord Templeman said that the tenant has the right to "keep out visitors and keep

out the landlord" unless the landlord is using the restricted powers granted to him by the

rental agreement to enter, see, and make repairs. Hence, even if your lease may permit the

landlord to enter under certain circumstances, it is actually your consent that makes this

possible, not the landlord's property right. This is one of the key criteria that the courts use to

distinguish between a lease and a licence.

In contrast, a person with a simple permit to occupy does not have the authority to "exclude

other individuals". This can be seen in the case of AG Securities v Vaughan [1988] 1 AC

417. In this case, Vaughan and three other people were tenants of a four-bedroom house that

AG Securities owned and had a long-term lease on. On four consecutive times, each renter

signed their own leases for the home. Then, in 1985, AG Securities cancelled all of the

contracts.

It was held that the Rent Act of 1977's rights could not be used by Vaughan and the other

occupants of the property since they were licensees. The court made this ruling on the

grounds that none of the licensees had been granted exclusive possession; instead, they only

had the right to share the apartment with one another. As a result, the court found that their

rights could not be merged.

A non-exclusive possession occupier cannot be a tenant; instead, they are often a licensee.

Furthermore, just because an occupier has exclusive possession does not always make him a
tenant; he might still be a licensee.

The next element is a fixed term. A lease must have a maximum term that may be determined

at the beginning. Legislative changes and exclusions may apply to this provision. This time

may be determined as an initial term or as a recurring tenancy. Hence, if no side terminates

the lease during the month, it may be extended for an additional month. Although the

maximum lease period is initially unclear, the subsequent terms of the right to exclude are.

The last element is rent. According to LPA 1925 s.205(1), rent is not a necessary component

of a lease, however practically every lease will require the renter to pay rent or a flat amount.

The length of a periodic tenancy is determined by the frequency of rent payments, which is

perhaps better expressed as: the period by which rent is calculated.

After the court’s ruling in Street v. Mountford UKHL 4, there is a presumption of a tenancy if

an occupier is given exclusive possession of residential property for a fixed or periodic

duration for a stated rate. Such assumption could be refuted by exceptional situations. For

instance, David v Lewisham (1977) 34 P&CR 112. In this case, a family was living in

personal affluence rather than as rent-paying renters. Due to evidence of lack of purpose, the

alleged lease to the daughter and son-in-law was held to be a mere licence.

Furthermore, if there are many possible tenants, the co-owners must demonstrate that they are

joint tenants. They must meet the four requirements because, according to Section 36 of the

LPA 1925, only joint tenants are permitted to have a legal title to property. These

requirements are possession, interest, time and title.

The tenants have all the right to exclusive possession, and there should be not divided

interest. Besides that, the interest should start and finish at the same time. Then, the estate

must be under one document. In the case of Antoniades v Villiers (1988) HL, it was held that

because the two appellants intended to occupy the apartment as man and wife and the
respondent was aware of this intention, the agreements were interdependent on one another

and should therefore be interpreted as constituting a single transaction. As a result, the true

nature of the arrangement was to establish a joint tenancy. So, rather than creating a licence,

the agreements established a shared tenancy.

A lease may exist by operation of law. It must adhere to official criteria in order to be lawful.

Although the term of the lease is important in this situation, it must still meet the fundamental

standards of a lease. Oral agreements for leases of up to three years can be made. For this to

function the tenant must be in possession and paying 'best rent' which implies not a trivial

sum or at a fine.

According to Section 27(2)(b)(i) of the Land Registration Act of 2002, a lease longer than

7 years must now be registered in order to be enforceable at law in addition to being created

by deed. Even if someone tries to establish a formal lease but falls short of the requirements,

there may still be an equitable lease. The agreement must comply with the estate contract

standards outlined in section 2 of the Law of Property (Miscellaneous Provisions) Act

1989 in order for it to be valid.

The contract is a particularly enforceable agreement, according to Walsh v. Lonsdale [1882]

21 Ch D 9, and equity "looks on that as done which ought to be done," which may apply to

the failure. The extent to which a leasing agreement is equivalent to a lease is an issue that is

frequently discussed. That could be as far as the parties are concerned, but it is not in a few

other ways. The doctrine hinges on the discretionary remedy of specific performance.

For instance, Coatsworth v Johnson (1886) 54 LT 520. In this case, the claimant signed a

lease of 21 years with the landlord. The defendant then ousted him due to his failure of

paying the rent. The defendant considered him to be a mere tenant-at-will. The claimant then
seek for specific performance. It was held that, specific performance due to the fact that the

claimant did not follow the agreement of paying rent.

Forfeiture is the landlord's legal right to re-enter the property as a result of a tenant's covenant

violation. It should be mentioned that there are specific restrictions on losing residential

leases. Without a forfeiture provision, a lease cannot be terminated for violation of covenant;

but, if the landlord waives the breach, the forfeiture may still not be enforced.

For example, Matthews v Smallwood (1910) 1 Ch 777. According to this case, the lessor

does not renounce a re-entry right under a lease unless, after becoming aware of the

circumstances giving birth to the right, he takes a clear action that acknowledges the

continuation of the lease. Just by indicating at the time of payment that he accepts it without

affecting his right to forfeiture, a landlord cannot avoid receiving a rent payment from acting

as a waiver of violation.

However, under Section 146(2) LPA 1925, the tenant may seek for relief against forfeiture at

any point before the landlord has re-entered. Meanwhile, subtenant may likewise apply for

relief according to Section 146(4) LPA 1925, as may the holder of a charge on the subject

property. This can be seen in the case of Bland v Ingrams Estates Ltd (2001) 2 WLR 1638

where by joining the tenant as a defendant and asserting remedy in his place, the equitable

chargee of a lease may seek relief from the forfeiture of the lease.

In addition, any party may end a lease by providing the other party notice. The lease's

pertinent term must be expressly invoked in the notification. According to Aylward v. Fawaz

(1997) 29 HLR 408, if either the landlord or the tenant wishes to do so, one month's written

notice of the intention to do so must be submitted to the other party before the conclusion of

the initial six months of the tenancy.

 MALAYSIA LAW FOR LEASE AND TENANCY

Tenant and landlord relationships are currently not governed by a particular legislation in

Malaysia, hence neither party's rights nor duties are spelled out in the tenancy agreement.

Imagine if the contracts are broken. In such situation, the National Land Code, the

Contracts Act (1950), the Particular Relief Act (1950), and the Distress Act (1951) shall

be resorted to as the appropriate legislation in Malaysia for the jurisdiction to resolve such

conflicts.

As there is no legislation in Malaysia that governs the relationship between a landlord and

tenant, either party may file a civil lawsuit in a regular civil court and seek damages if a

disagreement results from a contractual arrangement. Nevertheless, the time and resources of

the parties—either the landlord or the tenant—are required for the processes and procedures

of a civil complaint before the regular court.

Yet, the landlord-tenant relationship may be analysed from the standpoint of land law. In Sen

Loon Heng v. Zabon@Zaitun bt Sulaiman [1996] 1 CLJ 775, the appellants were the new

owners and heirs of people who had been renting a section of the respondent's land. On the

land, the respondent had given the appellants permission to build four homes.

Notwithstanding the absence of a documented lease, the appellants had continued to pay the

respondent monthly rent. The appellants were asked by the respondent to return unoccupied

possession of the land to its original location after receiving a written notice from the

respondent.

In this case, the Federal Court upheld the ruling in Mok Deng Chee v. Yap See Hoi & Ors

[1981] 2 MLJ 321, which stated that a tenancy paired with equity cannot be terminated by a
simple quit notice. According to Section 223 of the National Land Code(NLC) 1965 , a

tenancy may be established for a period of three years or less by either a written contract or

verbal agreement. Tenancies that are exempt from registration are those where registration is

not necessary. An endorsement must be provided on the issue document of title for a tenancy

to have a right recognised by the NLC 1965 .

In Than Kok Leong v. Low Kim Hai [1983] 1 MLJ 187, the court had to decide whether a

tenancy exempt from registration that had not been signed on the registered instrument of

ownership was enforceable against a future buyer. When the defendant was a tenant of the

previous owner, the plaintiff bought the property on which it was situated. The defendant

steadfastly resisted leaving the property. The court analysed NLC provision 213(3) and

determined that the oral arrangement between the defendant and the former owner fell under

NLC section 213 and was a tenancy exempt from registration. As there was no endorsement

on the registered instrument of title, it was further decided that the tenancy did not bind the

plaintiff.

The right of a tenant to use rented space for a predetermined period of time is known as

security of tenure. In most cases, security of tenure takes effect if a tenant has been paying

rent for a while and has not yet received a legitimate notice of termination from the landlord

during that time. When a tenant enjoys security of tenure, the landlord can only end the

tenancy for a select few causes. There are three different categories for the length of a

tenancy or lease. namely, tenancy for a certain amount of time, periodic tenancy, and tenancy

at will.

A fixed-term lease has a clear start and end date as well as the potential for a renewal clause.

A periodic tenancy is one that lasts for a specific amount of time that is specified by the

length of the rent payment term. Tenancy may be for a whole year, a month, or a week.
Tenancy at will is a tenancy arrangement in which a tenant occupies a property with the

owner's consent and where neither party has agreed in writing to a certain rent amount or

rental term. It may be cancelled at any moment with sufficient notice from either the landlord

or the renter. This kind of tenancy may also develop if a renter stays after the initial rental

period has ended or if a tenant with a void tenancy moves in but has not yet paid the rent. For

example, in the case of Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd & Anor [2019]

MLJU 1484, Federal Court held that “A tenancy at will may be created either expressly or by

implication.

According to the Special Relief Act of 1950 (SRA 1950), the landlord may remove a tenant

who violates the terms of the lease agreement. Under SRA 1950's Section 7(1), a person who

is legally entitled to the ownership of a certain piece of real estate may reclaim it in

accordance with the rules of civil process.

According to Section 7(2) of the SRA 1950, if the tenancy has been determined or

terminated but the occupier is still occupying the property or a portion of it, the person

entitled to possession of the property may not exercise his right to recover it against the

occupier without first filing legal proceedings. Although there is no a single law or regulation

that governs the relationship between a landlord and a tenant in tenancy in general, these

clauses are connected to damages that a landlord can ask the court to enforce in order to

protect his or her rights as a landlord. So long as the landlord has obtained court orders, he or

she is permitted to evict the renter from the property.

THE DIFFERENCE BETWEEN ENGLISH AND MALAYSIAN LAW OF TENANCY

AND THE WEAKNESS OF MALAYSIAN LAW TOGETHER WITH

SUGGESTIONS TO OVERCOME THE WEAKNESS.

Both English law and Malaysian law have different types of tenancy systems as discuss

previously. In English law, the law of tenancy is governed by a single statute namely the

LPA 1925. However, in Malaysia, no particular tribunal has the authority to hear landlord-

tenant issues. As a result, the National Land Code of 1965, the Distress Act of 1951, the

Contract Act of 1950, and the Particular Relief Act of 1950—whichever applies to the

conflict between the landlord and tenant—are used to decide the case in court.

Besides that, there are also differences between Malaysia and the UK regarding the possible

remedies for settling a dispute or breach of an agreement between a landlord and tenant. In

English law, the remedies is available under the LPA 1925. Meanwhile, the only possible

remedies in Malaysia can be found in many Acts as there is no separate statute governing

residential tenancy transactions.

From this, it can be conclude that Malaysian legislation remains vague in resolving specific

issues about the entrance of parties into a tenancy agreement and a reformed is needed. For

the idea of justice and equality to be fulfilled, it is essential to protect the interests of renters

and landlords in their tenancy agreements. In order to provide comprehensive and all-

inclusive legislation that will bring all these issues under one roof and, ultimately, ensure that

there are provisions to protect and preserve the landlords' and tenants' rights from loopholes

in the existing laws, a specific statute relating to the landlords and tenants relationship is

essential. By offering a standard lease agreement, the Act should outline the rights and

responsibilities of landlords and renters to preserve those rights in the interests of everyone

concerned.
Furthermore, a tribunal for tenancy disputes should be established by Malaysia's government.

One of the issues that many individuals have with tenancy affairs is the lack of a tribunal that

deals with tenancy disputes in Malaysia. As per the existing procedure, it is evident that any

tenancy dispute or issue that arises in Malaysia can only be resolved by putting the subject

before a court. To create a tribunal for tenancy disputes, the Malaysian government must

bring this issue before the legislature.

There are two important grounds for Malaysia establishing a tenancy tribunal. The first is that

tribunals are designed to be a less formal, more affordable, and quicker means of resolving

disputes than the conventional court system. A tribunal can settle the dispute more quickly

than a court since it employs less formalities than a court would. Also, the adjudicators—the

Tribunal members who render the judgment—typically possess unique information regarding

the subject under consideration. Yet judges are supposed to have a broad understanding of the

law, not necessarily specialised knowledge of the field of law they are hearing.
 CONCLUSION

In conclusion, English law of tenancy is governed by a a single statute which is the Land of

Property Act 1925. Meanwhile, in the lack of a particular statute, Malaysian landlord and

tenant disputes, which mostly involve residential properties, are governed by the common

law and equity principles. Moreover, as Malaysia moves towards providing its citizens with

easy access to justice, special proactive measures must be implemented to govern the

relationship between a landlord and a tenant through an appropriate legal framework.

(3046 words)
 BIBLIOGRAPHY

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Legislation

8. Law of Property Act of 1925

9. Rent Act of 1977
10. Land Registration Act of 2002
11. Law of Property (Miscellaneous Provisions) Act 1989
12. National Land Code 1965
13. Contracts Act (1950)
14. Particular Relief Act (1950)
15. Distress Act (1951)
16. Special Relief Act of 1950
Cases
17. Street v. Mountford [1985] UKHL 4
18. AG Securities v Vaughan [1988] 1 AC 417
19. David v Lewisham (1977) 34 P&CR 112
20. Antoniades v Villiers (1988) HL
21. Walsh v. Lonsdale [1882] 21 Ch D 9
22. Coatsworth v Johnson (1886) 54 LT 520
23. Matthews v Smallwood (1910) 1 Ch 777
24. Bland v Ingrams Estates Ltd (2001) 2 WLR 1638
25. Aylward v. Fawaz (1997) 29 HLR 408
26. Sen Loon Heng v. Zabon@Zaitun bt Sulaiman [1996] 1 CLJ 775
27. Mok Deng Chee v. Yap See Hoi & Ors [1981] 2 MLJ 321
28. Than Kok Leong v. Low Kim Hai [1983] 1 MLJ 187
29. Rohasassets Sdn Bhd v Weatherford (M) Sdn Bhd & Anor [2019] MLJU 1484