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

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Section 44 of the RTA lists the situations where a tenancy can end. A residential tenancy agreement continues, unless the tenant or landlord gives the other party notice in writing, or the tenancy agreement states a move-out date when the tenancy is signed.

A tenant can end the tenancy by giving notice. (See the required form of notice below, Section IX.B.1: Form and Basic Requirements).

If a landlord breaches a material term, the tenant must first give written warning that a term has been breached and requests that the breach be corrected. If after a reasonable time, the landlord has not corrected the breach, the tenant can end the tenancy one day after the landlord receives notice in writing.  

A landlord may give notice to end a tenancy if rent is unpaid on any day after the day it is due. If the tenant pays the overdue rent within five days after receiving a notice under s 46 the notice has no effect.

The landlord can give notice to end tenancy for non-payment of rent, then after 5 days have passed, go to the RTB and make a direct request for an order of possession without a hearing.

A variety of circumstances can qualify as cause to end a tenancy:

*the tenant or a person permitted on the residential property by the tenant is engaged in illegal activity that has caused damage to or jeopardized the property (see Section IX.A.6: Illegal Activity).

A landlord may end the tenancy of a person employed as a caretaker, manager or superintendent of the residential property of which the rental unit is a part by giving notice to end the tenancy if the rental unit was provided to the tenant for the term of the caretaker’s (tenant’s) employment, the tenant’s employment as a caretaker is ended, and the landlord intends in good faith to rent or provide the rental unit to a new caretaker, or manager.

Notice to end tenancy may be given by the landlord where:

A landlord who gives notice to end a tenancy under s 49 must pay the tenant, on or before the effective date of the notice an amount that is equivalent to one month’s rent as compensation (s 51(1)).

A landlord can give an eviction notice to a tenant for illegal activity. The standard of proof for ending a tenancy under this heading is based on a balance of probabilities. Under RTA, s 47(1)(e), and MHPTA, s 40(1)(d), the illegal activity must be of a sufficient nature to:

*jeopardize or be likely to jeopardize a lawful right or interest of another occupant or the landlord.

According to s 44(1)(c), the landlord and tenant can consent in writing to end a tenancy.

For a notice to end a residential tenancy to be effective, it must be in writing and must be signed and dated by the landlord or tenant giving notice, include the address of the rental unit, state the effective date of the notice. When the landlord gives notice, it must state how to challenge the eviction (RTA, s 52). A landlord must state the grounds for ending the tenancy; tenants giving notice are not required to provide any such grounds (RTA, s 45(1) or (2)). An official form is available from the Residential Tenancy Branch. A landlord must use RTB approved forms (s 52(e)) when giving notice to end a tenancy in order for it to be effective. A mailed notice is presumed to be received in five days, while a posted notice is deemed received three days after being posted. Generally before a landlord issues a notice to end tenancy for cause, the landlord should give the tenant some written warnings in relation to the conduct at issue and a reasonable opportunity to adjust his or her conduct.

A simple way for a landlord to give notice is to use one of the Notice to End a Residential Tenancy forms put out by the RTB. Tenants and landlords can agree to use the Mutual Agreement to End Tenancy form, but tenants should add a clause barring the landlord from claiming damages.

The RTA sets out when a landlord may issue a notice to end tenancy and the length of the notice period. Time limits to apply to the Residential Tenancy Branch for dispute resolution are also set out. Certain time limits may be extended in exceptional circumstances. See Residential Tenancy Policy Guideline 36: Extending a Time Period, which sets out information regarding the meaning of exceptional circumstances.

If the rent goes unpaid, a landlord can give a 10 day Notice to End Tenancy for Unpaid Rent or Utilities following the day the rent was due (RTA, s 46). The tenant may pay all the rent due within five days of receiving the notice to render the notice void, or dispute the notice by applying for dispute resolution within five days of receiving the notice. If they do nothing then the landlord can go to the Residential Tenancy Branch and make a Direct Request for an order of possession without a hearing. Tenants should request a receipt for the rent payment if they are concerned that the landlord will try to evict them anyway.

If a tenant fails to pay the utilities, the landlord can give written notice demanding payment, and then, 30 days after the tenant receives the demand for payment, treat any unpaid amount as unpaid rent (RTA, s 46(6)).

The minimum notice given by a landlord where there is cause is one month, effective on the last day of the ensuing rental period (RTA, s 47). Practically speaking, the full month requirement means notice must be received the day before rent is due, so notice given on May 31 is effective to end the tenancy on June 30, but notice given June 1 would be effective to end the tenancy only on July 31. A tenant may dispute a notice under this section by applying for dispute resolution within 10 days after the date the tenant receives the notice. The minimum notice of one month does not apply if the tenant is engaging in illegal activity.  

Section 49 of the RTA requires that a landlord give at least two month notice if he or she wishes to take back the property for personal use: see s 49(2). A tenant has 15 days to apply for dispute resolution to challenge the notice.

Where the ground for eviction is end of employment as a caretaker or manager of the premises (RTA, s 48), the tenant must file for dispute resolution to dispute the Notice to End Tenancy within 10 days of receiving it (s 48(5)). The notice period must be at least one month after the date the tenant receives notice, not earlier than the last day the tenant is employed by the landlord, and the day before the day in the month, or in the period on which the tenancy is based, that rent, if any, is payable under the tenancy agreement.

Under the RTA, s 50, if the landlord gives a tenant a notice to end a periodic tenancy under s 49, a tenant may end a tenancy early by giving 10 day notice for a date earlier than that specified by the landlord at any time during the period of notice and pay rent up to the end of that 10 days. This does not apply to tenants in a fixed-term tenancy.

At the dispute resolution hearing, the landlord must provide convincing evidence that justifies not giving full notice and demonstrate it would be unreasonable or unfair to wait for a notice to take effect.

If the tenant wants to end a month-to-month tenancy, he or she can always give one month’s written notice “on or before the last day of a rental payment period to be effective on the last day of an ensuing rental payment period” (e.g. give notice no later than May 31 to move out on June 30). The landlord cannot dispute the tenant’s notice. But, if the tenant’s notice does not comply with the rules under the RTA (ss 45(1) and 45(2)), the tenant may have to pay an extra month’s rent.

Under s 59 of the RTA, a tenant may dispute a Notice to End a Residential Tenancy from the landlord by applying to the RTB and filing an application for dispute resolution to set aside the notice within the following time limits:

An Arbitrator may extend a time limit established by the RTA only in exceptional circumstances. In respect to a notice given by a landlord for non-payment of rent (s 46(4)(a)), time limits can only be extended if: the landlord has provided written permission for an extension, or the tenant has deducted the unpaid amount because the tenant believed that the deduction was allowed for emergency repairs or under an Arbitrator’s order (s 66(2)). Personal hardship is not a reason for more time.

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.

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)).

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.

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.

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: