End of Tenancy (Termination and Eviction) (19:IX)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 1, 2022.|
A. Tenant Gives Notice (RTA, ss. 45, 45.1)
A tenant can end the tenancy by giving notice:
- Where there is a periodic tenancy, notice will be effective in terminating the tenancy no earlier than one clear month after it is received by the landlord.
- Additionally, it must take effect no earlier than the day before the day of the month (or another period on which the tenancy is based) that rent is payable under the tenancy agreement.
- E.g. If rent is payable on the first of the month, notice to end the tenancy given on January 1st will be effective in terminating the tenancy agreement no earlier than February 28th, and rent must be paid throughout the notice period; notice given on May 31st would be effective to end the tenancy on June 30th. Note that the time is calculated from the time the landlord receives the notice, not when the notice was sent.
- Where there is a fixed term tenancy, notice will be effective no earlier than one clear month after it is received by the landlord.
- Additionally, it must be no earlier than the date specified in the tenancy agreement as the end date of the tenancy.
- It must be the day before the day in the month (or in the other period on which the tenancy is based) that rent is payable under the agreement.
- 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 after the landlord receives notice in writing.
- Under s 45.1 of the RTA, a tenant is eligible to end a fixed term tenancy early if they are at risk of or fleeing family violence, or if they have a need for or have been accepted into long term care.
- Tenants must fill out form #RTB-49 and submit it to the landlord with one month written notice. Note that the early termination form requires a qualified third-party to verify the risk of family violence or the need for long term care.
- Section 39 of the Residential Tenancy Regulations lists persons qualified to confirm a risk of family violence
- NOTE: For clarity, “family violence” is defined under the Family Law Act, SBC 2011 c. 25 to include:
- (a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,
- (b) sexual abuse of a family member,
- (c) attempts to physically or sexually abuse a family member,
- (d) psychological or emotional abuse of a family member, including
- (i)intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,
- (ii)unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy,
- (iii)stalking or following of the family member, and
- (iv)intentional damage to property, and
- (e) in the case of a child, direct or indirect exposure to family violence.
- Section 40 of the RTR lists persons qualified to confirm the need for long term care.
- Ending a tenancy this way means that all individuals subject to the same tenancy agreement must vacate the rental unit when the tenancy ends.
- A landlord cannot apply for dispute resolution with respect to a tenant's eligibility to end their tenancy, but they can apply for dispute resolution if the basis of the claim is that the confirmation statement was made by a person who was not authorized under the regulations to do so, or if the tenant's notice is not provided in accordance with the RTA, or if there are other claims unrelated to the tenant's notice to end tenancy.
B. Landlord Gives Notice
1. Non-Payment of Rent (RTA, s 46)
A landlord may give a ten-day 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. If the tenant does not pay within those five days or dispute the notice to end tenancy, the landlord can go to the RTB and make a direct request for an order of possession without a hearing.
If the tenant decides to pay the overdue rent after the five day period is over, the landlord is not obligated to accept the late payment.
- NOTE: A landlord cannot end a tenancy for unpaid rent or utilities that came due during the specified period of March 18, 2020 to August 17, 2020 without giving the tenant a repayment plan for the unpaid amount. If the tenant defaults on the repayment plan, the landlord may give a Notice to End Tenancy. See https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/covid-19 for more information.
2. Cause to End Tenancy (RTA, s 47)
A variety of circumstances can qualify as cause to end a tenancy:
- a) the tenant does not pay security deposit or pet damages deposit within 30 days when the deposits are due
- b) the tenant is repeatedly late in paying rent
- NOTE: There is a very high standard to apply this cause; in Guevara v Louie, 2020 BCSC 380, e-transfer caused delays to payment that was sent on the days rent were expected to be paid and this was found to not be a valid reason to terminate a tenancy.
- c) there are an unreasonable number of occupants in the rental unit
- d) the tenant or their permitted guests has done something that:
- a. significantly interfered with or disturbed another occupant or landlord of the property, OR
- b. seriously jeopardized the health or safety or a lawful right of the landlord or another occupant of the property, OR
- c. placed the landlord’s property at significant risk
- e) the tenant or a person permitted on the residential property by the tenant has engaged in illegal activity that
- a. has caused or is likely to cause damage to the landlord's property,
- b. has adversely affected or is likely to adversely affect the quiet enjoyment, security, safety or physical well-being of another occupant of the residential property, or
- c. has jeopardized or is likely to jeopardize a lawful right or interest of another occupant or the landlord;
- f) the tenant or their permitted guests have caused extraordinary damage to a rental unit of residential property
- g) the tenant does not repair damage to the rental unit that is within their obligations (RTA s 32(3)) within a reasonable time
- h) the tenant has failed to comply with a material term of the tenancy agreement and has not corrected the situation in a reasonable time after the landlord gave them written notice
- i) the tenant purports to assign the tenancy or sublet without the landlord’s permission
- j) the tenant knowingly gives false information about the residential property to a prospective buyer or tenant of the residential property who is viewing the property
- k) there is an order to vacate the property by the government
- l) the tenant has ignored an Arbitrator order for 30 days after receiving the order or when the order should take effect, whichever comes later.
3. Landlord’s Notice: End of Employment with Landlord (RTA, s 48)
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.
An employer may also end the tenancy of an employee in respect of a rental unit rented or provided by the employer to the employee to occupy during the term of employment by giving notice to end the tenancy if the employment is ended.
4. Landlord’s Use of Property (RTA, s 49)
Notice to end tenancy may be given by the landlord where:
- the landlord sells the property and the purchaser asks the landlord, in writing, to give the tenant notice because they intend to occupy the property (RTA, s 49(5)(c));
- the landlord or a member of their immediate family (consists only of spouse, child or parent of the landlord or spouse) intends to occupy the property (s 49(3));
- the landlord is a “family corporation (i.e. a corporation where the voting shares are all own by one individual or one individual and their sibling or immediate family) and a person owning voting shares in the family corporation or their immediate family member intends to occupy the property (s 49(4));
- the landlord has all the necessary permits and approvals required by law and intends in good faith to demolish the property, convert it into a strata lot or co-op, convert it into non-residential property or a caretaker’s premises for more than six months, or renovate the rental unit in a manner that requires it to be vacant (s 49(6)).
- NOTE: As of July 1st, 2021, s. 49 (6)(b) is repealed, and landlords can no longer end tenancy in order to renovate or repair the rental unit in a manner that requires the unit to be vacant, except in accordance with s. 49.2 (Director’s Orders: Renovations or Repairs).
a) Director’s Orders: Renovations or Repairs ("Renovictions")
As of July 1st, 2021, under s. 49.2, landlords may make an application for dispute resolution requesting an order to end tenancy if:
- The landlord intend in good faith to renovate or repair the rental unit and has all the necessary permits and approvals required by law to carry out the renovations or repairs;
- The renovations or repairs require the unit to be vacant;
- The renovations or repairs are necessary to prolong or sustain the use of the rental unit or the building in which the rental unit is located; and
- The only reasonable way to achieve the necessary vacancy is to end the tenancy agreement.
The Director must make an order allowing the eviction before notice can be served to a tenant. Tenants who receive a Notice to End Tenancy for Landlord’s use of Property for renovations or repairs which has not been ordered by the RTB under s. 49.2 should immediately seek dispute resolution to have the Notice cancelled.
- NOTE: In Allman v Amacon Property Management Services, 2007 BCCA 302, the BCCA emphasized that vacancy must be required to end a tenancy; it is not sufficient that vacancy would make the repairs faster, cheaper, or more convenient.
- NOTE: Even if a landlord can prove vacancy is required, that does not necessarily mean the tenancy must be ended. If a tenant can make alternate living arrangements for the duration of brief renovations the tenancy need not be ended (Berry and Kloet v BC (RTA), 2007 BCSC 257).
- NOTE: One of the rulings of Aarti Investments Ltd. v. Baumann, (2019 BCCA 165) states that in a dispute over an eviction on s 49 (6), the onus is on the landlord to establish “good faith.” The tenant is not required to prove the landlord’s bad faith.
Right of first refusal:
Additionally, if the rental unit is one in a residential property containing 5 or more rental units where the landlord ended the tenancy pursuant to s. 49(6)(b) (renovation or repair), the tenant has a right of first refusal under s. 51.2. This means that the tenant is entitled to enter a new tenancy upon completion of renovation or repair if they give notice that the tenant intends to enter into a new tenancy prior to the end of tenancy.
If the tenant gave notice pursuant to s. 51.2, the landlord must give tenant notice at least 45 days before the date of completion informing the tenant the availability date of the rental unit and a tenancy agreement to sign that commences on that availability date.
If the tenant does not enter into a tenancy agreement on or before the availability date, the tenant has no further right.
By s. 51.3, if the tenant gave notice under s. 51.2 and the landlord does not comply with s. 51.2, the landlord must pay the tenant 12 times the monthly rent as compensation. Note that the landlord may be exempted due to hardship as determined by an Arbitrator (s. 51.3(2)).
A landlord who gives notice to end a tenancy under s 49 or 49.2 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)).
- NOTE: If the landlord does not take steps within a reasonable time to use the property for the reason stated on the eviction notice or the director's order, the landlord must pay the tenant 12 times the monthly rent payable under the tenancy agreement (s 51(2)). The landlord’s use must be for at least six months beginning within a reasonable period of the effective date of the notice, to prevent landlords from simply moving a relative in for a month. The landlord may be exempted due to hardship.
- NOTE: Some municipalities have additional protection in place for tenants that are being subject to “renovictions” in addition to the protection offered by the RTA. One such example is the City of Vancouver’s Tenant Relocation and Protection Policy. Check if your municipality has similar policies in place.
- NOTE: A tenant may withhold the last month’s rent if the tenant has been given a notice to end tenancy for landlord’s use of property or a director’s order for renovations or repairs instead of paying the last month’s rent and then waiting for the landlord to repay the required one month’s compensation.
C. Landlord and Tenant Agree in Writing
According to RTA, s 44(1)(c), the landlord and tenant can consent in writing to end a tenancy. Standard form RTB-8 is provided for this purpose.
- NOTE: There have been some cases in which landlords have coerced or misled tenants into signing Mutual Agreements as a way to get around the RTA’s provisions on when a tenancy can be ended. Mutual Agreements signed concurrently with a fixed-term lease have been struck down by the RTB as an attempt to contract out of the Act, a violation of section 5. Generally, the legitimate purpose of the Mutual Agreement to End Tenancy is to terminate a fixed-term lease based on circumstances arising after the tenancy has begun.
D. Required Notice
1. Form and Basic Requirements
For a notice to end a residential tenancy to be effective, it must be in writing, signed and dated by the landlord or tenant giving notice, include the address of the rental unit, and 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 a 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 their conduct.
A tenant’s notice to end tenancy must be in writing and must include:
- the tenant’s signature;
- the date the tenant signed it;
- the address of the rental unit; and
- the date the tenant is moving out.
If a notice to end tenancy does not comply with the RTA, s 52 requirements, an Arbitrator may set aside a notice, amend a notice, or order that the tenancy end on a date other than the effective date shown. A notice to end tenancy can be amended if the Arbitrator is satisfied that the person receiving the notice knew or should have known the information that was omitted from the notice, and in the circumstances it is reasonable to amend the notice (s (68)(2)). Dates are self-corrective, so notice is not void simply because a landlord proposes to have the tenancy end on a date sooner than the RTA allows. Tenants should never ignore a notice, even if they believe it is drafted incorrectly.
In order to properly give notice, landlords must use one of the Notice to End a Residential Tenancy forms put out by the RTB. Failing to do so may constitute a failure to provide notice. Tenants and landlords can agree to use the Mutual Agreement to End Tenancy form, but tenants should seek to add a clause barring the landlord from claiming damages.
2. Length of Notice and Limitation Periods
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. Time limits to dispute a notice to end tenancy cannot be extended past the effective date of the notice. See Residential Tenancy Policy Guideline 36: Extending a Time Period, which sets out information regarding the meaning of exceptional circumstances.
a) Non-Payment of Rent
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 the tenant does not pay the overdue rent in 5 days, the landlord is not legally obligated to accept the payment and reinstate the tenancy.
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)).
- NOTE: A notice under this section has no effect if the amount of rent that is unpaid is an amount the tenant is permitted under the RTA to deduct from rent. However, tenants need to file for dispute resolution in this situation, and not simply ignore the notice, or they will be deemed to have accepted the end of the tenancy.
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(2)). Practically speaking, the full month requirement means the 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.
- NOTE: The reasons for which a landlord may end a tenancy for cause are enumerated in s 47(1) of the RTA and landlords must select one of these enumerated grounds when filling out the required standard form (RTB-33).
c) Landlord’s Personal Use of Property
Section 49 of the RTA requires that a landlord give at least two months’ notice if they wish to take back the property for personal use: see s 49 for the permissible forms of landlord use. A tenant has 15 days to apply for dispute resolution to challenge the notice, unless the landlord intends to demolish the unit or convert it to certain enumerated forms of non-rental property, in which case a tenant has 30 days.
d) Tenant Ceases to Qualify
Tenants in subsidized housing can be evicted if they no longer qualify for the housing subsidy as defined in the tenancy agreement. In this case, landlords must provide 2 months’ notice. Tenants wishing to dispute the eviction have 15 days to file their dispute. See ss 49.1 and 50 for more information.
e) Director's Orders: Renovations or Repairs
If the landlord is giving notice for RTA s 49.2, which would include most forms of building renovations, the landlord must give at least four months’ notice. If the tenancy is a fixed term tenancy, the landlord cannot terminate the tenancy before the fixed term is over.
The four-month notice can only be served to the tenant once an order has been made under the requirements of s 49.2(1). A tenant would have 30 days after receiving the notice to file a dispute. See the above section on Renovictions for more details.
f) End of Employment
Where the ground for eviction is the end of employment (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.
g) Early End to Tenancy
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 days' 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.
Under RTA s 45(3), a tenant may end a tenancy early if they believe the landlord has not complied with a material term of the tenancy agreement, regardless of whether they have a fixed-term tenancy agreement or a month-to-month tenancy agreement. The tenant must first write the landlord describing the problem, stating they believe it is a breach of a material term of the tenancy agreement, asking the landlord to fix the problem and stating that if the problem is not fixed by a reasonable deadline (to be stated in the letter) they will end the tenancy early. The tenant must give the landlord a chance to fix the problem. If the landlord does not fix the problem by the deadline, the tenant may end the tenancy by writing the landlord a second letter stating they are ending the tenancy. The tenant may not end the tenancy until the landlord has received the second letter.
A landlord may end a tenancy early by applying to the Residential Tenancy Branch for dispute resolution, seeking an order ending the tenancy early and an Order of Possession. The usual rules about service and notice to the tenant apply. The landlord must prove the tenant has:
- significantly interfered with or unreasonably disturbed another occupant or the landlord;
- seriously jeopardized the safety, rights or interests of the landlord or another occupant;
- engaged in illegal activity that has caused or could cause damage to the property, disturb or threaten the security, safety or physical well-being of another occupant, or jeopardize a lawful right or interest of another occupant or the landlord; or
- caused major damage to the property or put the landlord’s property at significant risk.
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.
3. Disputing a Notice to End Tenancy
a) By a Landlord
If the tenant wants to end a month-to-month tenancy, they 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.
b) By a Tenant
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:
- under s 46 (unpaid rent): five days;
- under s 47 (for cause): 10 days;
- under s 49 (landlord use of property): 15 days;
- under s 49(6) and s 49.2 (demolition, conversion, and renovation): 30 days.
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 when disputing a notice to end tenancy for non-payment.
- NOTE: An Arbitrator must not extend the time to apply for dispute resolution to dispute a notice to end a tenancy beyond the effective date of the notice.
- NOTE: A tenant can apply for a delayed order of possession in the alternative that the eviction is upheld. To do so, the tenant should explain why a short order would cause them hardship and why an extended order would not prejudice the landlord. Particular attention should be paid to the landlord’s financial interests. - ie if the tenant has paid rent and intends to continue to pay rent, the tenant should indicate that
- NOTE: A tenant should never ignore a notice to end tenancy. If the tenant does not dispute a notice within the time limit, the landlord may apply for an Order of Possession.
E. Failure of a Tenant to Deliver Up the Rental Unit; Regaining Possession
A tenant must surrender 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)). If a prospective tenant is suing the landlord for failure to give vacant possession, the landlord can add the overholding tenant as a party to the dispute (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.
A tenant, occupant, or landlord may obtain an order from the RTB respecting their 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 they were 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) where 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). 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 an authorized court bailiff to change the locks and remove the tenant.
If the landlord gives the notice to end, they 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 5, 10, 15, or 30 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 a participatory hearing taking place. 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)). Monetary orders for rent in arrears may also be granted without a participatory hearing if the tenant’s time to dispute the notice has passed.
F. Abandonment and End of Tenancy
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)). Where a tenant abandons the rental unit before the end of a fixed term tenancy, or without giving proper notice during a periodic tenancy, a landlord may have a claim against the tenant for outstanding rent. Disputes may arise when the landlord claims the rental unit has been abandoned and the tenant disputes the end of the tenancy and the landlord’s finding of abandonment. The landlord’s duty to mitigate and re-rent and the landlord’s right to remove the tenant’s goods both depend on a finding that the rental unit was abandoned. In other words, if a tenant does not clearly communicate to the landlord that they will be abandoning the rental unit, the landlord may not be subject to a duty to mitigate their losses by re-renting the suite until they are sure the rental unit has been abandoned.
The landlord’s covenant to ensure quiet enjoyment, and to comply with s 29 entry procedures, continues while the agreement exists, but ends with 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, they have breached s 29. The landlord could enter under the emergency provision, or if they are 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 they believe the rental unit has 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 of abandoned personal property, and/or assist the tenant to recover such property. Abandonment of Personal 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) the tenant has given up possession of, or that they have 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 they have not paid rent, or from which the tenant has removed substantially all of their 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.
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 unless the landlord reasonably believes either that the property has a total market value of less than $500, the cost of removing, storing, and selling the property would be more than the proceeds of its sale, or the storage of the property would be unsanitary or unsafe.
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 cumulative 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 their 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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