Difference between revisions of "Forced End of Tenancy (Termination and Eviction) (19:X)"
(→b) By a Tenant)
m (Desy Wahyuni moved page Forced End of Tenancy (Termination and Eviction) (19:XI) to Forced End of Tenancy (Termination and Eviction) (19:X): Restructuring within chapter 19 in the 2019 edition)
Revision as of 10:01, 6 September 2019
A. Types: End of Tenancy Agreements
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.
B. Tenant Gives Notice (RTA, ss 45, 45.1)
A tenant can end the tenancy by giving notice. (See the required form of notice below, Section XI.E.1: Form and Basic Requirements).
- 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 other 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 landlord must receive the tenant’s notice to end tenancy before the final month’s rent is due. When it is given is less relevant than when it is received.
- 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, and 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 one day 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 a 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, and 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.
C. Landlord Gives Notice
1. Non-Payment of Rent (RTA, s 46)
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. 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.
2. Cause to End Tenancy (RTA, s 47)
A variety of circumstances can qualify as cause to end a tenancy:
- the conduct of the tenant or invitee significantly interferes with or disturbs other occupants of the property or the landlord;
- the tenant or guest causes extraordinary damage;
- the tenant’s occupancy causes damage exceeding reasonable wear and tear and he or she has not taken steps to repair the damage;
- the tenant fails, within 30 days of entering the agreement, to give an agreed upon security deposit or pet deposit;
- the tenant knowingly misrepresents the rental unit to a future tenant or purchaser;
- the act or omission of a tenant or guest seriously impairs the health, safety or other lawful right or interest of the landlord or other occupant in the property;
- there are an unreasonable number of occupants in a rental unit;
- the tenant is repeatedly late paying rent;
- a tenant fails to comply with a material term;
- a vacating of the rental unit is required under an order by a provincial, regional, or municipal government authority;
- the tenant purports to assign or sublet the residential rental unit without the consent of the landlord; or
- 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.B.5: Illegal Activity).
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.
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 he or she intends to occupy the property (RTA, s 49(5)(c)) (i.e. the purchaser intends to move in);
- the landlord or a member of his or her immediate family (consists only of spouse, child or parent of the landlord or spouse) intends to occupy the property (s 49(3)); or
- the landlord has all the necessary permits and approvals required by law, and intends to demolish the property, convert it into a strata lot or co-op, enter into a fixed-term tenancy greater than 20 years, convert it into non-residential property or a caretaker’s premises for more than six months, or intends to renovate the rental unit in a manner that requires it to be vacant (s 49(6)).
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)).
NOTE: If the landlord does not take steps within a reasonable time to use the property for the reason stated on the eviction notice, the landlord must pay the tenant double the monthly rent payable under the tenancy agreement (s 51(2)). The landlord’s use must be for at least six months after the effective date of the notice, to prevent landlords from simply moving a relative in for a month.
5. Illegal Activity
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:
- cause or be likely to cause damage to the landlord’s property;
- adversely affect or be likely to adversely affect the quiet enjoyment, security, or safety of another tenant of the residential property; or
- jeopardize or be likely to jeopardize a lawful right or interest of another occupant or the landlord.
NOTE: In these situations a landlord may also apply for an Arbitrator’s order to have the tenant evicted immediately, without a one month notice, if the tenant’s conduct is serious enough to justify the end of tenancy earlier (RTA s 56).
See RTB Policy Guideline 32: Illegal Activities.
D. 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.
E. Required Notice
1. Form and Basic Requirements
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 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 a 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 Notice to End a Residential Tenancy forms put out by the RTB. Failing to do so may constitute failure to provide notice. 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.
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. 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 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.
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.
c) Landlord’s Use of Property
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.
d) End of Employment as a Caretaker
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.
e) 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 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.
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 [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, 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.
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; and
- under s 49 (landlord use of property): 15 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.
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.
NOTE: A tenant should never ignore 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 with a hearing.
F. Failure of a Tenant to Deliver Up the Rental Unit; Regaining Possession
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.
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 Section XII.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.
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)).
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:
- 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
- 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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