It would be a breach of Contract of Tenancy on the part of the Tenant,
Zain who could be liable to the Landlord, Sam, for the following :-
(i) Non payment of the rents for two months;
(ii) Pre-mature termination on the tenancy; and
(iii) Causing damage to the premises.
Normally, the Landlord would approach the agent involved (in this case, Paul) to seek advice as to the Tenant's breach of contract. As a
real estate agent, and not a managing agent, Paul should advise the Sam to seek the advice of a lawyer. However, as a matter of service,
Paul could render some assistance to Sam by offering to write a letter to the Zain to remind him about his legal obligations with regards
to the tenancy. Paul should also let Sam know that if there is no response from Zain, then it is advisable to seek advice from his lawyers.
Under no circumstance should Paul hold himself out as a lawyer by giving legal advice on the matter.
From the legal position, there are a few issues to determine if Zain is indeed in breach of the contract of tenancy when he vacated the
premises :-
a) Whether Zain signed the tenancy agreement as a tenant or the tenancy is signed by the company who currently employs him or if he is a
director of the company(corporate tenant);
b) Whether there is any pre-mature termination clause in the tenancy agreement that allows for a termination of the lease;
c) Whether there is any diplomatic clause in the agreement that allows the Tenant to pre-maturely determine the tenancy due to work reasons
(e.g. where the Tenants fails to reside in Sinagpore due to an invalid work permit, or transferred out of Singapore) provided a
minimum period of stay had expired and a fixed number of months notice in writing is given.
In the absence of (b) or (c) above, where Zain signed the tenancy agreement as a Tenant, then by pre-maturely terminating the tenancy, he
will be personally liable on the contract of the tenancy. This is from the legal point of view. From the practical pont of view, however,
when a foreign tenant leaves the premises, it is going to be an uphill task to try to locate him or to enforce judgement against him, unless
he is still residing in Singapore and you know his whereabouts. If the tenancy agreement is signed by the company, things become much simpler
in that the company, which is legally incorporated in Singapore, could be held liable for the breach of a tenancy contract.
If there is a pre-mature termination clause in the tenacy agreement (e.g. which allows both paries to pre-maturely terminate the agreement),
it will normally stipulate the period of notice and the amount of compensation due (if any). It is normal, however, to give the Landlord 2 months
advance notice in writing of such an intention and/or two months rent as compensation with the initial security deposit agreed to be forfeited
by the Landlord. if Zain complied with this clause by giving the required written notices and payment, then he will not be deemed to be in breach
of the contract but rather exercising his right under the agreed clause in the tenancy agreement.
Should there be a diplomatic clause, such a clause will normally stipulate that
(i) documentary evidence be furnished if the foreigner is unable to reside in Singapore due to reasons of work, e.g. invalid work permit;
(ii) a minimum period of at least 12 months stay had expired if it is a two-year tenancy; and
(iii) two months advance notice in writing to effect the intention to pre-maturely determine the tenancy.
If Zain complied with all the conditions of this clause, he will not be deemed to be in breach of the contact but merely execrising his right under
the clause.
As for the damage to the premises, it is usually stated in the tenancy agreement that the tenant is required to reinsate the premises to its orginal
state or condition (especially in commercial office leases).
Even if this clause is not present in the tenancy agreement, but is clear in the agreegment that the Tenant is required to make good any damaged or
lost items belonging to the Landlord which was the result of willful action on the Tenant part, (except normal wear and tear or damage to the premises
due to natural occurences such as floods), then the Tenants will be contractually obliged to repair or replace the items.
Should the Tenant fail to do this, the Landlord should remind the Tenant that it is a potential breach of the clause in the tenancy agreement. Under
these circumstances, if the Tenant does not respond, the Landlord can use the Tenant's security deposit to repair or replace the damaged items and
request that the Tenant top-up the deposit later.
In some tenancy agreements, there may be a joint repairs responsibility clause: i.e,the Tenant is responsible for any repair or replacement of items
(on a per item per bill basis) for a fixed amount, and the Landlord is respondsible for alll costs in excess of this amount, on a per item per bill
basis. Such a situation makes clear the extent of each party's responsibility to repair or replace damaged or lost items on th e premises.
In our example here, Zain has already vacated the premises before the Landlord could bring an action against him. There are some practical and legal
difficulties here, especially if Zain has left Singapore.
My opinion is that Paul must advise Sam that he should have checked up on Zain immediately when he was one month in arrears of the rent.
At the outset, however, Paul should have encouraged Zain to pay his monthly rent through GIRO or perhaps negotiate with Zain's Singapore-base company
to sign the tenancy on a corporate basis, then issues like this could have been avoided or expeditiously resolved. |
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