Your property’s just been deemed uninhabitable — now what?

KUALA LUMPUR, March 29 — Most recently, several houses were deemed unsafe and possibly uninhabitable following a landslide in Taman Bukit Permai 2, Ampang Jaya that claimed four lives and injured one person on March 10.

A local authority evacuation order was subsequently issued after a study by the Minerals and Geosciences Department found that the land was unstable, making it unsafe for residents.

Malay Mail spoke to lawyers on what legal recourse is available to homeowners or occupying tenants in the event one’s premises is deemed uninhabitable.

Uninhabitability generally means property unfit for occupation

Generally, a property will be considered uninhabitable when it is found to be faulty, risky and suffering from major and substantial damage, defects or structural weaknesses.

“Uninhabitability could also fall under non-compliance with the laws, by-laws, rules, regulations, orders, requirements and/or guidelines set by the relevant authorities in Malaysia which makes the property to be unsafe, unfit and or not suitable to be inhabited by a human,” lawyer Renan Gautier of Messrs HS Tay, Baharin & Partners explained.

Renan, who specialises in residential and corporate conveyancing practice, noted that the cause for the aforementioned factors could be due to various reasons.

They include, but are not limited to, structural, workmanship and building defects from the developers, contractors or service providers.

“They may also further include fault, action and/or negligence from the homeowner themselves or tenant of the property and/or long-term neglect or improper maintenance of the property,” Renan added.

Separately, another lawyer, Chai Sim Ann of Messrs Chai & Company, said uninhabitability very much depended on the circumstances, but generally included situations when a property is not fit for occupation due to the safety of the structure.

“It can be a lot of things. One such example is latent defects (potential invisible faults that have not been identified through general inspection).

“If flooding takes place and the walls start to crack or leak, that may be caused by inherent hidden defects of the property in that it was not built to the right specifications to withstand a natural disaster,” she said.

This also very much included the impact suffered from natural disasters that may cause the property to be unsafe or unsuitable to be inhabited by people, subjected to the nature of damage suffered.

In any case, Chai further noted that independent assessors or experts should be engaged to determine the fitness for occupation in the event of a dispute.

With the definitions explained, we move on to the legal avenues available for tenants or landlords should their premises be rendered uninhabitable. 

You can initiate legal proceedings against relevant parties

According to Renan, homeowners or landlords can initiate a claim and take legal action via tribunals or through the civil courts against the relevant parties — such as the developer, contractor, service provider or tenant whomsoever — depending on the cause which rendered the property unsafe, unfit or unsuitable for inhabitation.

On a case-to-case basis, Renan said plaintiffs would usually rely on the executed Sale and Purchase Agreement, Tenancy Agreement, including but not limited to relevant provisions under the Housing Development (Control and Licensing) Act 1966, Strata Management Act 2013, Contracts Act 1950 and Special Relief Act 1950.

Afforded similar rights, Renan said tenants too are able to initiate a claim and take action via the same legal route against homeowners or landlords if the rented property is deemed unfit for inhabitation.

“However, it must be proved that the cause of uninhabitability is not attributed to the fault, breach, negligence or actions of the tenant,” he said.

Alternatively, Renan pointed out that landlords could also make claims against insurance providers if the property is adequately insured. 

For Chai, she said one should be initially aware of any force majeure clause in their tenancy agreement before legal action is initiated such as in the event of a natural disaster.

Force majeure is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance is beyond the control of the parties.

“Commonly, force majeure clauses provide for the suspension of rental in the event of a force majeure event, and there are also instances where force majeure clauses provide for the option to terminate the tenancy agreement.

“It must be noted that force majeure clauses have to be specifically provided for the tenant to be afforded the right,” she added.

Nonetheless, Chai also said both tenants and landlords are afforded the rights to initiate a claim under the relevant legislation and tenancy agreement.