End of Tenancy (Termination and Eviction) (19:XI): Difference between revisions

{{REVIEWED LSLAP | date= September 7, 2020}}

:NOTE: For clarity, “family violence” is defined under the Family Law Act, SBC 2011 c. 25 to include

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.

 

=== 1. Non-Payment of Rent (RTA, s 46) ===

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.

=== 2. Cause to End Tenancy (RTA, s 47) ===

=== 3. Landlord’s Notice: End of Employment with Landlord (RTA, s 48) ===

=== 4. Landlord’s Use of Property (RTA, s 49) ===

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.

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.

'''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 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)).

According to RTA, s 44(1)(c), the landlord and tenant can consent in writing to end a tenancy.

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 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.

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 add a clause barring the landlord from claiming damages.

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.

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(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.  

 

If the landlord is giving notice for RTA s 49(6), which would include most forms of building renovations, the landlord must give at least 4 months’ notice. If the tenancy is a fixed term tenancy, the landlord cannot terminate the tenancy before the fixed term is over.

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.

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.

* under s 49 (6) (renovations): 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: Subsections 4(3) to (5) of Ministerial Order 89 of 2020 prevented parties from obtaining writs of possession for section 54 or 55 orders of possessions between March 30th, 2020 and June 23rd, 2020. Section 5 of the Ministerial Order also prevents the enforcement of writs of possession obtained before March 30th, 2020 until the aforementioned expiration. Section 4 of Ministerial Order 195 of 2020 allows parties to file orders of possession after July 1st, 2020. Check https://www.emergencyinfobc.gov.bc.ca/covid19-provincial-state-of-emergency/ to see if the BC Provincial State of Emergency is currently in effect. Refer to https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/covid-19#serving for the most up to date information.

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 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.

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 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.