End of Tenancy (Termination and Eviction) (19:XI): Difference between revisions
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End of Tenancy (Termination and Eviction) (19:XI) (view source)
Revision as of 23:48, 2 July 2016
, 2 July 2016→4. Landlord’s Use of Property (RTA, s 49)
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'''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. | '''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 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. | |||
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. | |||
=== 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. b)Cause 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. | |||