Moving out and Residential Tenancies (19:X)

A. Tenant Obligations

Give proper notice;

participate in move-out condition inspection;

leave the unit clean;

repair damage caused (above normal wear and tear), including damage caused by guests or pets above normal wear and tear levels; and

remove all possessions from the rental unit and the residential property.

B. Landlord Obligations

Give proper notice;

schedule and participate in the move-out condition inspection and provide the tenant with a copy of the condition inspection report; and

return security deposit and pet damage deposit or file to retain them in accordance with the RTA (see Section V.C: Return of Security Deposit and Pet Damage Deposit).

C. Condition: Moving Out

The landlord and tenant together must inspect the condition of the rental unit before a new tenant begins to occupy the rental unit on or after the day the tenant ceases to occupy the rental unit, or on another mutually agreed day (RTA, s 35(1)). The landlord must offer the tenant at least two opportunities for the inspection and must complete the inspections report in accordance with the RTR. Both the landlord and tenant must sign the condition inspection report and the landlord must give the tenant a copy of that report in accordance with the RTR – within 15 days of the date the condition inspection is completed or the date the landlord receives the tenant’s forwarding address in writing, whichever is later.

1. Landlord

Unless the tenant abandons a rental unit, the right of the landlord to claim against a security or a pet damage deposit, or both, for damage to residential property is extinguished if the landlord does not offer the tenant at least two opportunities for the inspection or does not participate on either occasion, or having made an inspection with the tenant does not complete the condition inspection report and give the tenant a copy of it in accordance with the RTR.

2. Tenant

The right of a tenant to the return of a security deposit or a pet damage deposit, or both is extinguished if the landlord complies with RTA s 35 (provides two opportunities for inspections), and the tenant has not participated on either occasion (s 36(1)).

D. Breaking a Fixed-Term Tenancy

If a tenant moves out before their fixed term ends without finding another tenant approved by the landlord to take over the fixed term tenancy, the tenant may be responsible for the landlord’s advertising and administrative costs incurred in finding a new tenant, as well as rent (at the tenancy agreement rate) until the unit is rented or the fixed term expires.

NOTE: Refer to the tenancy agreement, as some agreements will have move-out clauses that will express what a tenant’s obligations will be upon breaking their fixed term tenancy.

NOTE: A landlord cannot evict a tenant except for cause during the term of a fixed-term tenancy. A landlord may not give a notice before the end of the fixed term even if the property is sold or the landlord’s family wishes to move into the rental unit.

E. Subletting and Assignment

1. Right to Assign or Sublet and Duty to Obtain Consent

According to s 34 of the RTA, a tenant may assign or sublet his or her interest in a tenancy agreement with the written consent of the landlord (RTA s.34(1)); in other words, the landlord’s written consent is always required for an assignment or subletting of the agreement. However, the landlord must not be arbitrary or unreasonable in withholding consent if the tenant has a fixed term tenancy of six months or more (s 34(2)). A tenant may apply for an Arbitrator’s order where a landlord has unreasonably withheld consent: see RTA s 65(1)(g). Section 34(3), stipulates that a landlord must not charge a tenant anything for considering, investigating or consenting to an assignment or sublease.

Public housing tenants or tenants receiving a rent subsidy (those renting premises owned by the Crown, or by a non-profit organization receiving rental subsidy by agreement with the Crown, or whose landlord is the B.C. Housing Management Commission) are exempt from these assignment and sublet provisions. Generally this means a subsidized housing tenant cannot assign or sublet a rental unit.

Permitting an occupation by way of a license contract does not constitute assignment or subletting. The contract must actually create a license, and not a sub-tenancy.

2. Creating a Sublet

Generally, sub-tenants have many of the same rights against the tenant they rent from as do tenants against the original landlord, with the exception that they cannot themselves dispute the actions of the “main” landlord, as this can only be done by the original tenant. This only applies, however, if a sub-let is actually created. Where an individual takes on a roommate, and that roommate does not either hold a sublet approved by the landlord, or is subletting a clearly defined, separate portion of the property, that roommate will not be considered a sub-tenant. As a result, individuals moving in as roommates may wish to ensure either that they are named on a written lease as a co-tenant or tenant in common, or that they are sub-letting with the written consent of the landlord. If they are not named on such a written lease, they will have no recourse against the landlord at the RTB unless they can prove that a tenancy agreement has been created between the two in some other way.

Tenants wanting to create sublets must retain an interest in the tenancy. This is done by making sure that the sublease ends before the first tenant’s lease with the original landlord does. For example, if a tenant has a fixed term tenancy agreement that lasts for six more months and wants to sublet to a sub-tenant, that sublease must, at maximum, be for six months less a day so that the tenant still retains an interest in the tenancy. In a periodic tenancy, there must be an understanding that the sublet continues on a month-to-month basis, less one day, in order to preserve the original tenant’s interest in the tenancy. Where a sublet continues for the full period of the tenancy, it likely amounts in law to an assignment instead. See Policy Guideline 19: Assignment and Sublet.