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End of Tenancy (Termination and Eviction) (19:IX) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 1, 2022}} | ||
{{LSLAP Manual TOC|expanded = landlord}} | {{LSLAP Manual TOC|expanded = landlord}} | ||
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:'''NOTE:''' As of July 1st, 2021, s. 49 (6)(b) is repealed, and landlords can no longer end tenancy in order to renovate or repair the rental unit in a manner that requires the unit to be vacant, except in accordance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). | :'''NOTE:''' As of July 1st, 2021, s. 49 (6)(b) is repealed, and landlords can no longer end tenancy in order to renovate or repair the rental unit in a manner that requires the unit to be vacant, except in accordance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 ==== | ==== 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: | As of July 1st, 2021, under s. 49.2, landlords may make an application for dispute resolution requesting an order to end tenancy if: | ||
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* The only reasonable way to achieve the necessary vacancy is to end the tenancy agreement. | * The only reasonable way to achieve the necessary vacancy is to end the tenancy agreement. | ||
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. | 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.''' | :'''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.''' | ||
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== '''C. Landlord and Tenant Agree in Writing''' == | == '''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. | 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''' == | == '''D. Required Notice''' == | ||
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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. | 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 ==== | ==== c) Landlord’s Personal Use of Property ==== | ||
Section 49 of the RTA requires that a landlord give at least two | 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 | 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. | ||
A tenant would have 30 days after receiving the notice to file a dispute. | 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. | 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. | ||
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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 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 | 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: | 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: | ||
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* under s 47 (for cause): '''10 days'''; | * under s 47 (for cause): '''10 days'''; | ||
* under s 49 (landlord use of property): '''15 days'''; | * under s 49 (landlord use of property): '''15 days'''; | ||
* under s 49 (6) ( | * 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.''' | 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.''' | ||
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== '''E. Failure of a Tenant to Deliver Up the Rental Unit; Regaining Possession''' == | == '''E. Failure of a Tenant to Deliver Up the Rental Unit; Regaining Possession''' == | ||
A tenant must | 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 case (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) | 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. | 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. | ||
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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: | 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) | :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. | :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 if the property is considered to be worth five hundred dollars or more ). 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. | 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 ). 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)). | 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.''' | 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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