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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 | 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 | 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. | == 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. |