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4. General Landlord Terminations and Eviction Procedures
Caution (a) Overview
Readers reviewing this section regarding a specific termination and eviction application procedure should also be sure to review Ch.13, s.4 "General Board Procedures: General Application Procedures". That section contains information that relates to all of the several different types of applications that can be brought before the Board.
As well, the Board's perspective on Eviction procedures is set out in Interpretation Guideline 10, linked below. In particular, Interpretation Guideline 10 discusses the consequences of procedural non-compliance in a termination and eviction application - both at the Notice of Termination and the Application stages. This Guideline should be reviewed carefully by anyone involved in such a proceeding:
Interpretation Guideline 10: Procedural Issues Regarding Eviction Applications
As before with the Rental Housing Tribunal, the vast majority of applications to the Landlord and Tenant Board will be by landlords seeking termination and eviction orders.
Landlord applications to terminate a tenancy and then evict a tenant are almost always combined (in one application) with additional ancillary requests for orders for "arrears" of rent and "overhold" rent. These ancillary requests are discussed below in s.4(h): "Ancillary Orders".
This section sets out the general principles that apply to such procedures. Additional requirements that apply to termination and eviction proceedings based on specific reasons or causes are set out in Chapters 5-8.
(b) Landlord-Specific Notice of Termination Requirements
In addition to the Notices of Termination requirements explained in s.2(b), above ["Notice of Termination: Requirements Common to All Notices of Termination"], Notices of Termination issued by landlords require that additional information be contained within them. These additional requirements primarily relate to the "reason" or "cause" given for the termination, and to various mandatory advisories to the tenant regarding their rights. Unlike tenant terminations, practically all landlord terminations (and evictions) must be based on some "reason" or "cause".
The additional elements required for landlord Notices of Termination are that they must also [Act s.43(2)]:
Keep in mind that there may still be further additional elements required in Notices of Termination for specific types of landlord terminations. However in practice all of these legal requirements (or blank spaces in which they can be located) are plainly set out in the standard Board-issued Notice of Termination forms, which are all linked in those more specific discussions [in Chapters 5-8].
- include "the reasons and details respecting the termination (for reference, these are listed in "Regular and Early Terminations", below);
- inform the tenant that "if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates" on the date of termination set in the Notice of Termination; and
- inform the tenant that "if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant", and that tenant is entitled to dispute that application.
(c) Regular and Early Terminations
Landlord terminations fall into two main types, generally distinguished by how 'urgent' the reason or cause for the termination is.
. "Regular" Terminations
The first type of landlord termination I call "regular terminations", as they provide for a date of termination falling at the end of the period or term of the tenancy (depending on whether it is a periodic or term tenancy) [for the distinction see Ch.1, s.2(e): "Fundamentals: Formation of a Tenancy: Periodic v Term Tenancies"]. These terminations tend to be less 'urgent', and generally are based on some circumstance of the landlord or the premises, not the tenant's behaviour. "Regular" landlord terminations are discussed in detail in Chapter 5.
Reasons for "regular terminations" include:
. "Early" Termination for Cause
- landlord requiring rental unit for personal possession (by themselves, family member/s or a caregiver);
- purchaser requiring unit for personal possession (by themselves, family member/s or a caregiver);
- intended demolition, conversion to a non-residential use or repair;
- persistent late payment of rent;
- social housing ineligibility;
- employee-tenant termination;
- condominium purchase cancellation.
The second type of landlord termination can be given with a "date of termination" falling anytime, as long as the required notice period is given. These are sometimes referred to as terminations "for cause" or "early terminations for cause", and they generally involve an allegation of tenant misbehaviour. "Early" landlord terminations are discussed in detail in Chapter 6.
Reasons for so-called "early terminations" include:
(d) When to Commence Application to Board
- illegal acts
- substantial interferene with reasonable enjoyment
- social housing income mispresentation
. General Rule
Generally, landlord Applications to terminate and evict may only be commenced by filing them with the Board after proper Notice of Termination has been served on the tenant [Act s.69(1),71]. However this also means that the landlord does not need to wait until the "date of termination" set out in the Notice of Termination has passed - they can start their application as soon as they serve the Notice of Termination [service rules are covered in Ch.13, s.8: "General Board Procedures: Service and Filing of of Documents"].
Further, generally (see below for exceptions) an application "may not be made later than 30 days after the termination date specified in the notice" [Act s.69(2)]. This corresponds to the expiry date of most Notice of Termination [see s.2(e) "Notices of Termination: Expiration of Notice of Termination", above].
. Where "Remedial Oppourtunity" Applies
An exception to the above time frames is where the termination proceedings provide for a seven-day a 'remedial oppourtunity' for the tenant to correct their behaviour [Act s.71]. In the following cases [discussed further in Ch.6] no application may be commenced until the seven-day 'remedial oppourtunity' has expired [Act s.70]:
. 'Non-Payment of Rent' Applications
- damage - regular notice [Act s.62]
- substantial interference with reasonable enjoyment [Act s.64]
- overcrowding [Act s.67]
Applications based on non-payment of rent may only be filed starting on "the day following the termination date specified in the notice" [Act s.74(1)], thus giving the tenant time to avoid the proceeding by catching-up on the rent (there are numerous non-payment of rent "catch-up" provisions: see Ch.7].
In addition (and unlike "When to Commence Application to the Board: General Rule", above), applications to terminate and evict for non-payment of rent are not restricted to being commenced within 30 days after the date of termination (and neither do such Notices of Termination expire at that time) [Act s.69(3)] (ie. they may be made past that 30 day time limit).
Note: (e) Application Documentation
A close reading of Act s.69(3) [which reads "failure to pay rent" suggests that a similar time-extending exception exists for "persistently failed to pay rent on the date it becomes due and payable" [Act s.58; discussed in Ch.5: "Regular Landlord Terminations: Persistent Failure to Pay Rent on Time"], however the Board's Notice and Application forms do not reflect this possibility.
All landlord applications to the Board seeking to confirm a termination by Notice (ie. seeking an Order for termination of the tenancy) must be accompanied by [Reg s.53, clause 1]:
The "main" form used for this Application is Form L2:
- a copy of the notice of termination, and
- a certificate of service of the notice of termination [see Ch.9, s.8: "Board and Other Procedures: Service of Documents].
Form L2: Application To Terminate a Tenancy and Evict a Tenant
(f) Eviction Orders
. Effective Date
Although in most cases a landlord may apply to the Board for orders terminating and evicting tenant's anytime after a Notice of Termination is given by the landlord, orders of eviction by the Board "may not be effective earlier than the [legal] date of termination set out in the notice" [Act s.80(1)], with some exceptions.
The exceptions to this rule are where [Act s.80(2)]:
That said, landlords will still have to deal with any delay stemming from sheriff's procedures, and with any delayed enforcement of the Order imposed by the Board under Act s.204(1) [authority to impose conditions on Orders].
- the termination is for the tenant causing severe undue damage [under s.63(1)(a)(b)] [see Ch.6, s.4(d): "Early Termination for Cause: Damage: Severe Damage Notice of Termination and Eviction"];
- the termination is for "serious impairment of safety" [under s.66(1); see Ch.6, s.3(c)].
Eviction orders expire six months after they are stated to take effect unless filed with the local sheriff for enforcement [Act s.81].
There is a legal principle known as "waiver" or "estoppel". Basically it states that anyone claiming one thing and then doing something inconsistent with it can be argued to have 'waived' or abandoned their first position and will not be legally allowed to return to it. In common law L&T situations "waiver" has been argued in cases where a termination and re-possession are based on a non-payment of rent, and the landlord - in the course of the proceedings - later accepts the rent arrears from the tenant.
The RTA largely abolishes this principle by establishing that (barring the landlord and tenant agreeing otherwise) none of the following acts by a landlord operate to "waive a notice of termination, reinstate a tenancy or create a new tenancy" [Act s.45]:
Basically this means that the landlord can give a Notice of Rent Increase or accept back-rent while still maintaining termination and eviction proceedings. The legal term 'without prejudice' is sometimes used to describe an act or communication done without any intention of waiving other rights.
- giving the tenant a Notice of Rent Increase; or
- the acceptance of arrears of rent or compensation for the use or occupation of a rental unit ["overhold rent"; see "(h) Ancillary Landlord Remedies", below] after any of the following have occured:
- either party has given the other a Notice of Termination;
- the parties have entered into an Agreement to Terminate the Tenancy [s.3, above]; or
- the Board has made a termination or eviction order respecting the tenancy.
(h) Ancillary Landlord Remedies: Arrears of Rent and Overhold Rent
A landlord's application to terminate and evict is typically joined with ancillary orders for arrears of rent and "overhold" compensation [they are combined in the main termination and eviction Application form, linked above in (e)].
That said, Orders for rent owing may be sought without seeking termination and eviction at the same time using the following Application form:
Form L9: Application To Collect Rent the Tenant Owes
"Arrears" of rent commonly accrue shortly before or after a Notice of Termination is given, and can continue to accumulate until the tenancy is legally terminated. "Overhold" compensation is very similar in nature in that it pays for periods during which the rental unit is occupied, but is technically distinct from arrears (and technically not "rent"), in that it accrues after the tenancy is legally terminated.
For instance, if a tenant was given a Notice of Termination for non-payment of June's rent on 05 June (with a notice period of 14 days) and with a termination date of 20th June, the 20 days rent for June 1-20 would be "arrears of rent". If an order was eventually issued 07 July (confirming the 20 June termination date) and the sheriff finally evicted the tenant on 25 July, then another 35 days (10 for June 11-30, and 25 for July 1-25) "overhold compensation" would be added to the order.
In applications for arrears of rent and/or overhold compensation, the landlord may also claim amounts owing for [Act s.87(5)]:
Note that the related subject of legal "costs" awards is covered in Ch.14, s.6(d): "Hearings, Orders and Enforcement:Decisions, Reasons and Orders: Final Orders".
- any bank-charged "NSF" (not sufficient funds) cheque charges for cheques that the tenant has bounced,
- standard RTA-approved NSF cheque "administration charge/s" to a maximum of $20 per cheque. [Reg s.17, clause 5].
A landlord may apply to the Board for an order assessing arrears of rent as long as the tenant is in possession of the rental unit at the date that the application is commenced [Act s.87(1)]. A logical additional landlord request at that time would be for overhold compensation [Act s.86,87(3)], and any NSF cheque charges from their bank and NSF "administration charges" (as explained above). Again, the RTA-prescribed application forms clearly indicate that the landlord can make these several claims.
Note though that if the tenant has vacated the premises before the landlord has commenced a Board application, then they can only pursue arrears, overhold compensation, and NSF charges by way of a regular civil court claim [see Ch.16: "Civil Remedies"].
However, where the tenant is still in possession the landlord will not know how much overhold compensation to request (because it is still uncertain when the tenant will leave or be physically evicted), so the landlord would just state the landlord's daily entitlement to overhold 'rent' based on the legal rent charged. If the tenant vacates prior to the Tribunal issuing the order the Board proceeding continues, and the Board will state a total amount of overhold compensation in the order.
If the tenant remains in possession at the date of the Order, the Board will just restate the daily figure - leaving further calculation to the enforcement stages [see Ch.14, s.7: "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement"]. The 'money parts' of any Board order (as opposed to the 'eviction part') are enforced through the collection procedures of the civil court [overwhelmingly the Small Claims Court with it's $25,000 monetary jurisdiction (since 01 January 2010)]. So when the landlord then seeks to enforce the (money) order for arrears and overhold compensation this final calculation would be made on a Small Claims court enforcement form, the "Affidavit for Enforcement Request".
In ordering arrears of rent and overhold compensation [and damage compensation under s.89(2): see Ch.6, s.4(e): "Early Termination for Cause: Damage: Landlord's Application for Damage Compensation"] the Board will credit the tenant (ie. deduct from the order) the amount of any rent deposit held by the landlord and interest due thereon [Act s.87(4)].
. "Tenant Rights" Defence
As in the case of an application for termination for arrears of rent, a tenant responding to any application seeking arrears of rent (but not overhold compensation) has the right to argue in "defence" (ie. in reduction of the arrears claim) any issues which could have been made by way of separate tenant application to the Board [see Ch.3, s.5: "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications"] [Act s.82(1), 87(2)].
These 'tenant rights applications' relate to landlord breaches of such things as non-repair, breach of work orders, harassment, reasonable enjoyment of the premises, privacy infringement. This is a sort of 'landlord in breach set-off' which is new with the RTA. It is yet to be seen how vigorously this will be embraced by the Board.
Where this is done, the Board has available to it the full range or remedial orders that would be available to it under such a tenant application [Act s.82(2)]. These remedies are quite broad and should be reviewed in Ch.3.
Note that these 'tenant's rights' argument do not have to be raised in a separate "counter"-application by the tenant. As long as supporting documentation is properly served and filed [see Ch.14, s.5: "Hearings, Orders and Enforcement: Evidence"], they can just be argued by the tenant at the main eviction hearing.
. Settlement Orders
If the parties themselves (ie. without a Board mediator) reach agreement on terms settling an application for arrears of rent, provisions exist allowing the Board to "confirm" such terms in an Order (thus giving them greater legal weight) [see Ch.7, s.10: "Non-Payment of Rent Termination: Settlement Orders".]