| Legal risks faced by landlords in Singapore |  |
| Tuesday, 22 March 2011 10:55 |
Mr Foo Cheow Ming
In this column, we have previously written about the risks faced by the tenants in renting accommodation in Singapore. Today we turn the tables and look at some of the laws faced by the landlord. One of the most common and ascertainable business risks is legal risk. The law provides numerous pitfalls for the landlord in Singapore. The legal risk faced by amateur, private landlords (as opposed to professional or corporate landlords) are exceptionally high because amateur or private landlords deal with tenants directly. Every landlord is already well aware of the usual business risks such as non-paying tenants, inconsiderate tenants who irritate other residents in the estate, or tenants causing property damage to landlord’s furniture and fixtures or the estate’s common facilities. In this write-up we address the issue of serious JAIL TIME which a landlord potentially faces if the strict Immigration laws of Singapore are infringed. The rental/leasing market usually caters to mid/long-term visitors to Singapore, so landlords in real life often have to cater to the accommodation needs of foreigners. The law in Singapore provides that any person who harbours any person (this means to provide accommodation to, within the context of this article) who has acted in contravention of the provisions of the Immigration Act or the regulations shall be guilty of an offence, and where the tenant is an illegal immigrant, the landlord may be punished with a jail term of a minimum term of 6 months and up to 2 years and shall also be fined up to $6,000 per charge. Each tenant who is an illegal immigrant would attract one charge. I.e. if there happens to be 5 illegal immigrants living in your property you would face 5 charges. It would be an offence whether the landlord actually knew that the tenant or resident infringed the Immigration Act, or was reckless in his disregard of whether the tenant or resident infringed the Immigration Act, or negligently failed to ascertain whether the tenant or resident infringed the Immigration Act. In fact, you do not even have to be the owner of the property to run afoul of the law. You may yourself be a mere occupier, tenant, licensee or just an employee or family member of the owner of the property. You may also get yourself into a situation where it may be alleged by the Prosecution that you have abetted (i.e. permitted, assisted, consented, instigated, conspired etc in short, ‘’helped’’) the commission of such an offence by the landlord, then you also be charged. In the laws of Singapore, someone who abets an offence suffers the same punishment as the primary offender. I have personally dealt with cases where someone who helped another relative (maybe a sick uncle, or an aged aunt) to manage that relative’s property became charged with abetting someone to give accommodation to immigration offenders. Under the laws of Singapore, only citizens and permanent residents have unrestricted right of indefinite residence within Singapore. All other classes of persons are permitted to remain in Singapore subject to:- (i) entry into Singapore through one of Singapore’s officially designated immigration checkpoints (ii) possession of a valid passport issued by their country of origin (iii) possession of a valid pass issued by the Immigration and Checkpoint Authority or Ministry of Manpower of Singapore. Such passes usually come with built-in expiry period, or are subject to the validity period of the passport issued by the visitor’s country of origin, or subject to the visitor being employed in Singapore. (i) entered Singapore by not going through one of the officially designated immigration checkpoints (for eg by swimming ashore) (ii) did not have any passport, or have an expired passport at the time of entry (iii) was not issued any pass by ICA or MoM of Singapore, or whose pass whilst validly issued had become expired. (iv) induced the ICA or MoM to issue the pass under false pretenses: i.e. by using someone else’s passport, using a false or assumed name, or by presenting forged qualifications and papers, or by furnishing false information to the authorities, or (v) entered Singapore notwithstanding there being a Prohibition Order made against him or her on a previous occasion (i.e. he was previously expelled from Singapore and prohibited from re-entry). Any landlord – therefore – should be vigilant in checking the passport and visit pass of all tenants. For practical considerations, the landlord should personally make a photocopy of the passport and visit pass of all tenants, and personally check it by making enquiries with ICA and MoM, before granting any lease to any tenant who is not a local citizen or permanent resident. Generally speaking, it would not be good practice to allow the tenant to provide you with copies of their passport and visit pass, as there would then be no assurance that the copies are true copies of the tenant’s actual passport and visit pass. You should be aware that even when your Main Tenant (who is a perfectly legitimate visitor) purports to sublet to illegal immigrants you may get in trouble if you become ‘infected’ with knowledge of the presence of such sub-tenants without taking steps to discharge your “due diligence” onus under the law. At this juncture, it may be salutary to share the following ‘’true life’’ cases :- Case No. 1 - 45-yr old female divorcee struggling to bring up four children, operating a beauty parlour from the downstairs premises of a shophouse the upper floors of which she rented out to – oops! – illegal immigrants. Result? Single mom goes to jail for one year. Of course, she now also has a criminal record of having served jail time, which would be a highly inconvenient fact should she ever have to apply for paid employment – especially in the public service. Case No. 2 – a 50 year old businessman dealing wholesale in seafood, did very well in business and invested in 3 properties. One property had an existing tenant, who left and another took his place. Main tenant then sub-let to two more sub-tenants. He was too busy with his seafood business to check properly. Bang, towkay goes to jail for 18 months. Of course, he now also have a criminal record of having served jail time, which would be a highly inconvenient fact should he apply to list his company on SGX or seeks directorships on the boards of listed companies. Case No. 3 – 42-yr old engineer’s father died. Mother moved out of her flat and moved in with him to be better cared for. Mother rented her flat out (which said flat was also engineer’s childhood home). Filial son helped her pick up rental from mother’s flat, repair toilet etc odd chores. Never saw the main tenant mother rented the flat to. No idea at all who was supposed to stay there. Turned out that main tenant sub-tenanted the flat out to 3 other illegal immigrants. The filial son took the blame for his aged mother and was jailed 18 months. Of course, he now also have a criminal record of having served jail time, which would be a highly inconvenient fact should he ever have to apply for paid employment – especially in the public service, Armed Forces, airline, banks etc. Therefore, if you are very well to do and have several properties to rent out, it then becomes a headache to administer all these checks and monitoring yourself. You also do not wish to be exposed unduly to the legal risks above. At this point in time, it may be prudent to retain a professional property management company to interpose between yourself and the tenants so that you no longer have to deal directly with the tenants. You may also wish to distance yourself further from the legal risks by forming a company to hold your properties, over and above retaining a separate professional property management company to manage your assets. If you cannot do any of these, and manage your property yourself, the lesson is : check the original travel documents and visit pass of your foreign tenant, retain copies made by yourself, and reconfirm with ICA and MoM.
|