Distress
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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
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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
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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
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Section
23.
Deserted premises
24.
Penalty
25.
Notice to quit
26.
Repeal
SCHEDULE
Distress
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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.
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"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.
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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;
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(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,
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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.
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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
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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
words "superior landlord" shall be deemed to include a landlord
in cases where the goods seized are not those of an under-tenant
or lodger; and the words "tenant" and "under-tenant" do not include
a lodger.
Application by tenant
16.  The tenant may apply to a Judge to discharge or suspend the
execution of the warrant, or to release any part of the property
seized.
Powers of court
17.  The Judge may, on any such application, deal with the matter
summarily and dismiss the application or discharge the warrant,
or order the release unconditionally or on such terms as he thinks
fit of any property seized, or may direct an issue to be tried, and,
pending the determination of such issue, suspend the execution of
the warrant, or may order the property to be sold and the proceeds
of sale to be lodged in court, or may make such other order on
such terms as he considers fair as between the parties pending the
final determination of the matter.
Costs
18.  Any costs incurred in any such proceedings shall be in the
discretion of the Judge and may in proper cases be added to the
amount leviable under the warrant.
Sale of property seized
19.  Subject to this Act the property seized under a warrant of
distress shall be sold at the time and place named in the notice
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required by section 9; and the net proceeds of sale shall be applied
first in payment of the bailiff's fees and expenses and then in
satisfaction of the rent and costs due by the tenant to the landlord.
The balance, if any, remaining over after such payments shall be
returned to the tenant or other person entitled thereto.
Procedure where property seizable under a distress is already
under seizure by way of execution
20. (1) Where any property liable to be seized under a warrant
of distress has already been seized in execution by order of any
court, it shall not be seized under the warrant of distress so long
as it remains under such seizure; but the officer in possession in
execution shall be notified of the warrant of distress, and shall
thereupon, subject to any prior claim by or on behalf of the
Government of Malaysia or the Government of any State, be liable
to pay out of the proceeds of sale of the goods seized by him, after
payment thereout of the expenses of the execution and sale, but
in priority to any other payment, the amount appearing to be due
to the landlord:
Provided that such payment shall not in any case exceed the
amount due for the last six months' rent.
(2) The officer in possession under the warrant of execution
shall, on being notified as provided in subsection (1), give notice
in writing to the execution creditor and the execution debtor of the
warrant of distress. Notice to the execution debtor may be given
by affixing it to the premises on which the goods were seized.
(3) The execution creditor or the execution debtor may apply
to the court to discharge or suspend the warrant of distress, and
the court may then exercise all or any of such powers as are
provided in sections 17 and 18 in the case of an application under
section 16.
Removal of goods to avoid distress
21. (1) If any person removes or causes or permits to be removed
from any premises property liable to be seized under a warrant of
distress, with the intention of hindering or preventing the distraint
thereof, a Judge may, on application by the landlord, authorize the
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bailiff, within thirty days of such removal, to follow and seize
such property in execution of the warrant, wherever it may be
found, and to deal therewith as if it had been seized on the premises.
(2) The bailiff may, without an order to that effect, follow and
seize any such property discovered by him while in process of
removal.
Where goods removed sold to bona fide purchaser
22. (1) If any property so removed has been sold for fair value,
whether before or after removal, to a bona fide purchaser not
knowing or having the means of knowing that it was liable to
distress for non-payment of rent or was removed in order to hinder
or prevent the distraint thereof, it shall not be seized, or, if seized,
shall be restored to the purchaser.
(2) Any person claiming to be a bona fide purchaser for fair
value of any property seized under section 21 may within four
days of such seizure, or such further time as a Judge may allow,
apply for an order that the property so seized may be restored to
him, and a Judge may make such order accordingly.
Deserted premises
23. (1) Where--
(a) any premises are let at a rack rent or a rent not less than
three-fourths of its annual value;
(b) rent is in arrears for not less than two months of the
tenancy; and
(c) the tenant has abandoned possession of the premises and
left thereon no sufficient property out of which arrears
of rent may be recovered by distress,
a Judge may, on the application of the landlord, authorize the
bailiff to enter on the premises, using such force as may be necessary
to effect an entry into any building thereon, and take possession
thereof; and the bailiff shall in such case enter on the premises
and affix in a conspicuous place thereon a notice that possession
thereof will be delivered to the landlord, unless within ten days
a Judge, on the application of any person interested, otherwise
orders.
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(2) If no such application is made within ten days, the bailiff
shall put the landlord in possession of the premises, and the lease
or agreement of tenancy shall therefrom be deemed to be determined.
(3) If any such application is made, the Judge may make such
order for possession of the premises, and on such terms as to
payment of rent due or otherwise, as he deems fair as between the
parties, and for that purpose may direct that any preliminary question
be tried as an issue.
(4) An order made under this section may be discharged for
sufficient reason and on such terms as the Judge deems fair, on
application by any person interested, notwithstanding that the period
thereby prescribed has expired.
(5) An order made under this section shall be deemed to be a
warrant of distress for the purposes of section 72 and proviso (b)
to subsection 93(1) of the Subordinate Courts Act 1948 [Act 92].
Penalty
24.  Any person who sells or abets the sale of any property seized
under a warrant of distress in contravention of the provisions of
this Act or of any rules of court relating to the sale of property
seized under a warrant of distress, shall, on conviction, be liable
to a fine not exceeding five hundred ringgit or to imprisonment
for a term not exceeding three months.
Notice to quit
25.  Where rent due by any tenant, otherwise than for a term
certain, of any house or premises to the landlord thereof has remained
unpaid for not less than fourteen days after payment thereof became
due and still remains unpaid, then, in the absence of an express
agreement between the parties to the contrary, any notice to quit
given by the landlord to the tenant shall, if the length thereof be
otherwise sufficient, expire on such day as may by the terms of
the notice be appointed for the expiration thereof, whether such
day coincide with the termination of some period of the tenancy
or not.
Distress
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Repeal
26. (1) The written laws set out in the Schedule hereto are hereby
repealed to the extent specified in the third column of such Schedule.
(2) Nothing in this Act shall affect any proceedings pending at
its commencement, unless the court shall otherwise order.
(3) Notwithstanding such repeal, and subject to this Act, the
practice and procedure relating to distress proceedings in the High
Court shall be deemed to continue in force until other provision
is made therefor by rules of court.
SCHEDULE
[Section 26]
Written law
Short title
Extent of repeal
S.S. Cap. 49
Distress Ordinance
The whole
F.M.S. Cap. 7
Civil Procedure Code
Part VI
Sabah Cap. 37
Distress for Rent Ordinance The whole
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Laws of Malaysia
LAWS OF MALAYSIA
Act 255
DISTRESS ACT 1951
LIST OF AMENDMENTS
Amending law
Short title
In force from
Act 160
Malaysian Currency (Ringgit)
29-08-1975
Act 1975
P.U. (A) 359/1980
Distress Ordinance (Extension)
01-06-1981
Order 1980
P.U. (A) 355/1985
Federal Territory of Labuan
16-04-1984
(Modification of Distress Act)
Order 1985
Act A671
Subordinate Courts
22-05-1987
(Amendment) Act 1987
Distress
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LAWS OF MALAYSIA
Act 255
DISTRESS ACT 1951
LIST OF SECTIONS AMENDED
Section
Amending authority
In force from
2
Act A671
22-05-1987
24
Act 160
29-08-1975
DICETAK OLEH
PERCETAKAN NASIONAL MALAYSIA BERHAD,
KUALA LUMPUR
BAGI PIHAK DAN DENGAN PERINTAH KERAJAAN MALAYSIA