Difference between revisions of "End of Tenancy (Termination and Eviction) (19:IX)"

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A tenant must deliver up possession at the end of the tenancy. After tenancy ends, there is no “agreement” and the over holding tenant is usually  found to be a licensee or mere occupant. A new tenancy agreement could be created (e.g. by the landlord accepting and providing a receipt for payment of rent), but otherwise the occupant of residential premises is liable to a landlord’s claim for compensation for “use and occupation”  (RTA, s 57(3)). The landlord may join the “tenant” as third party if sued by a prospective tenant for failure to give vacant possession (s 57(4)). The landlord must not take actual possession of a rental unit that is occupied by an over holding tenant unless the landlord has a writ of possession issued under the B.C. Supreme Court ''Rules of Court''.
A tenant must deliver up possession at the end of the tenancy. After tenancy ends, there is no “agreement” and the over holding tenant is usually  found to be a licensee or mere occupant. A new tenancy agreement could be created (e.g. by the landlord accepting and providing a receipt for payment of rent), but otherwise the occupant of residential premises is liable to a landlord’s claim for compensation for “use and occupation”  (RTA, s 57(3)). The landlord may join the “tenant” as third party if sued by a prospective tenant for failure to give vacant possession (s 57(4)). The landlord must not take actual possession of a rental unit that is occupied by an over holding tenant unless the landlord has a writ of possession issued under the B.C. Supreme Court ''Rules of Court''.


A tenant, occupant, or landlord may obtain an order from the RTB respecting his or her right to possess or occupy the rental unit. A landlord may apply for an Order of Possession whether or not a tenant has disputed the Notice to End Tenancy he or she was given. A landlord may not  regain possession after a tenancy agreement has ended unless the tenant vacates, or has abandoned the unit, or (where the tenant remains in  possession) unless the landlord obtains an Order of Possession through a Dispute Resolution hearing. If a tenant is served with an Order of Possession but fails to comply, a landlord may then seek a writ of possession from the B.C. Supreme Court (or Registry; see [[Dispute Resolution in Residential Tenancies (19:X)#3. Enforcing  an  Order  of  Possession | Section X.C.3:  Enforcing  an  Order  of  Possession]]).  What this means is that a landlord may not change  the locks, or lock out a tenant, without judicial backing. The landlord must receive an Order of Possession, a writ of possession and take back possession of the rental unit by employing a court bailiff to change the locks and remove the tenant.  
A tenant, occupant, or landlord may obtain an order from the RTB respecting his or her right to possess or occupy the rental unit. A landlord may apply for an Order of Possession whether or not a tenant has disputed the Notice to End Tenancy he or she was given. A landlord may not  regain possession after a tenancy agreement has ended unless the tenant vacates, or has abandoned the unit, or (where the tenant remains in  possession) unless the landlord obtains an Order of Possession through a Dispute Resolution hearing. If a tenant is served with an Order of Possession but fails to comply, a landlord may then seek a writ of possession from the B.C. Supreme Court (or Registry; see [[Dispute Resolution in Residential Tenancies (19:X)#3. Enforcing  an  Order  of  Possession | Section X.C.3:  Enforcing  an  Order  of  Possession]]).  What this means is that a landlord may notchange the locks, or lock out a tenant, without judicial backing. The landlord must receive an Order of Possession, a writ of possession and take back possession of the rental unit by employing a court bailiff to change the locks and remove the tenant.  


If the landlord gives the notice to end, he or she can apply for the Order of Possession only after the tenant’ s limitation period to file for dispute has expired (s 55(2)(b)). This may be five, 10, or 15 days depending on the reasons for ending the tenancy. A list of reasons can be found on the Notice to End Residential Tenancy form.  
If the landlord gives the notice to end, he or she can apply for the Order of Possession only after the tenant’s limitation period to file for dispute has expired (s 55(2)(b)). This may be five, 10, or 15 days depending on the reasons for ending the tenancy. A list of reasons can be found on the Notice to End Residential Tenancy form.  


Landlords can, in some circumstances, obtain an Order of Possession without attending a hearing. An Arbitrator may issue the order directly where the tenant has failed to dispute a Notice to end Tenancy for unpaid rent within the time limits (s 55(4)).  
Landlords can, in some circumstances, obtain an Order of Possession without attending a hearing. An Arbitrator may issue the order directly where the tenant has failed to dispute a Notice to end Tenancy for unpaid rent within the time limits (s 55(4)).  


G.A bandonment and End of Tenancy; Surrender At common law, abandonment does not necessarily bring about a surrender (end) of the tenancy. A landlord can re-enter and re-let the rental units as the tenant’ s agent. If the landlord conducts him or herself in a manner consistent with ending the interest, the tenancy is “surrendered”; the landlord’ s intentions are not critical. If the tenancy is not surrendered, the landlord may sue the tenant for the debt of rent as it is due, and is not limited to damages for loss suffered up until the end of the tenancy (although in certain circumstances, a landlord may bring about a surrender and still sue for damages to the end of the unexpired term). For month-to-month tenancies, any such losses will be minimal. Abandonment of the rental unit by the tenant is one of the automatic grounds for ending a residential tenancy agreement (RTA, s 44(1)(d)). This most commonly arises when the landlord decides the rental unit has been abandoned and the tenant will want to dispute the end of the tenancy and the landlord’ s finding of abandonment. Please note that the landlord’ s duty to mitigate and re-rent, and the landlord’ s  right to remove the  tenant’ s  goods depend on a finding that the rental unit was abandoned. A landlord can consider a unit abandoned only after rent has not been  paid for one month. In rare circumstances, the landlord may refuse to consider the rental unit abandoned, and a tenant may want to insist that the landlord wrongfully disregarded certain circumstances that constituted abandonment. The landlord’ s  covenant to ensure quiet enjoyment, and  to comply with s 29 entry procedures, continues while the agreement exists, i.e. while there is no abandonment. The landlord can enter where  the tenant abandons the rental unit. However, the landlord may not be able to determine if there is abandonment without re-entering the rental unit; if there is no abandonment and the landlord has improperly entered, he or she has breached s 29. The landlord could enter under the emergency provision, or if he or she is certain that substantially all the tenant’ s  chattels have been removed; otherwise, the landlord should give written notice of entry for a reasonable purpose. Alternatively, the landlord could apply for an Order of Possession if he or she believes  the rental unit have been abandoned but wants clear legal grounds to establish the right to enter the suite. This may also require that a Notice to End a Residential Tenancy be formally served. Part 5 of the Residential Tenancy Regulations, sets out guidelines to assist the  landlord to dispose of abandoned personal property, and/or assist the tenant to recover such property.
== G. Abandonment and End of Tenancy; Surrender ==
 
At common law, abandonment does not necessarily bring about a surrender (end) of the tenancy. A landlord can re-enter and re-let the rental units as the tenant’s agent. If the landlord conducts him or herself in a manner consistent with ending the interest, the tenancy is “surrendered”; the landlord’s intentions are not critical. If the tenancy is not surrendered, the landlord may sue the tenant for the debt of rent as it is due, and is not limited to damages for loss suffered up until the end of the tenancy (although in certain circumstances, a landlord may bring about a surrender and still sue for damages to the end of the unexpired term). For month-to-month tenancies, any such losses will be minimal.  
 
Abandonment of the rental unit by the tenant is one of the automatic grounds for ending a residential tenancy agreement (RTA, s 44(1)(d)). This most commonly arises when the landlord decides the rental unit has been abandoned and the tenant will want to dispute the end of the tenancy and the landlord’s finding of abandonment. Please note that the landlord’s duty to mitigate and re-rent, and the landlord’s right to remove the  tenant’s goods depend on a finding that the rental unit was abandoned. A landlord can consider a unit abandoned only after rent has not been  paid for one month. In rare circumstances, the landlord may refuse to consider the rental unit abandoned, and a tenant may want to insist that the landlord wrongfully disregarded certain circumstances that constituted abandonment.  
 
The landlord’s covenant to ensure quiet enjoyment, and  to comply with s 29 entry procedures, continues while the agreement exists, i.e. while there is no abandonment. The landlord can enter where  the tenant abandons the rental unit. However, the landlord may not be able to determine if there is abandonment without re-entering the rental unit; if there is no abandonment and the landlord has improperly entered, he or she has breached s 29. The landlord could enter under the emergency provision, or if he or she is certain that substantially all the tenant’s chattels have been removed; otherwise, the landlord should give written notice of entry for a reasonable purpose. Alternatively, the landlord could apply for an Order of Possession if he or she believes  the rental unit have been abandoned but wants clear legal grounds to establish the right to enter the suite. This may also require that a Notice to End a Residential Tenancy be formally served.  
 
Part 5 of the ''Residential Tenancy Regulations'', sets out guidelines to assist the  landlord to dispose of abandoned personal property, and/or assist the tenant to recover such property.
 
=== 1. Abandonment of Personal Property ===
 
Section  24  of  the  RTR  deals  with  the  situation  where  the  tenant  has  vacated  the  residential premises  at  the  end  of  the  tenancy  but  leaves  personal  property  behind.  The  main  issue  is whether the tenant has “given up possession” of the property. A landlord may consider that a  tenant  has  abandoned  personal  property  if  the  tenant  leaves  the  personal  property  in residential premises that: a)he  or  she  has  given  up  possession  of,  or  that  he  or  she  has  vacated  after  the  tenancy agreement has ended or after the term of the tenancy agreement has expired; or b)for  a  continuous  period  of  one  month,  the  tenant  has  not  ordinarily  occupied  and remained in possession of, and in respect of which he or she has not paid rent, or from which  the  tenant  has  removed  substantially  all  of  his  or  her  personal  property,  and either  gives  the  landlord  an express  oral  or  written  notice  of  the  tenant’ s  intention  not to  return  to  the  residential  premises,  or  by  reason  of  the  facts  and  circumstances surrounding the giving up of the residential premises, could not reasonably be expected to return to the residential premises. The major problem with these criteria is that they are very general. Is the absence temporary (e.g. hospitalization) or permanent? What length of time constitutes a temporary absence? Section 24(3) of the RTR permits the landlord to remove personal property from residential premises that have been abandoned. This includes removing personal property from storage lockers, etc. If the landlord decides property has been abandoned, the landlord is required by s  25(1)(b)  of  the  RTR  to  make  and  keep  an  inventory  of  such  property  as  soon  as  the property  has  been  removed  from  the  rental  unit,  and  to keep  the  particulars  of  the disposition  and  inventory  for  two  years.  In  addition,  the  personal  property,  once  removed from the rental unit, must be kept in a safe place for a period of not less than 60 days if the property  is  considered  to  be  worth  five  hundred  dollars  or  more  (see  the  RTR  for exceptions, e.g.  where  the  personal  property  is  of  no value). Under  s  25(2)  of  the  RTR,  the landlord  may  sell  or  dispose  of  the  property  stored  in compliance  with  s 25(1)  of  the  RTR. The  purchaser  of  such  property  obtains  marketable  title,  free  of  all  encumbrances,  but landlords  should  be  very  cautious  before  selling  a  tenant’ s  property,  and  should  follow  the regulations  carefully.  For  example,  problems  will  arise if  a  landlord  sells  a  tenant’ s “abandoned”furniture if it turns out that the furniture was only leased. Some tenants may have little of value in their residences, and should be aware that the  RTR allows landlords to dispose of property with a value of less than $500 (s 25(2)(a)). The landlord must exercise reasonable care and caution to ensure the personal property does not deteriorate and is not damaged, lost, or stolen (RTR, s 25(1)). A tenant may file a claim for his or her personal property at any time before it is disposed of under ss 25 or 29 of the RTA. Practically  speaking,  any  claim  for  return  of  abandoned  property,  or  for compensation for lost, damaged, or abandoned property must be brought as soon as possible if there is to be any likelihood of success.
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