July 8th 2021
Last issue we looked at the process involved in evicting a tenant. We saw that the Residential Tenancies Act provides means for a landlord to evict a tenant not only for objectionable behaviour (non-payment of rent, property damage, disturbance to others, etc.) but also because the landlord, either current or newly acquired, needs the unit for himself or for his immediate family.
The process is quite simple. The tenant must be given a minimum of 60 days' written notice from the start of a pay period (generally the 1st of the month, but can be an alternate date such as the 15th if that is when each monthly rental period commences.) The form to be used is called an N12 and is available on the Residential Tenancy Board website.
Once the tenant has been properly served with the N12 eviction notice he is required by law to move out. But what if he does not? The fact that he is required to is no guarantee that he will. I mean, after all, a tenant is required to pay rent each month, but some do not do that either. And when a tenant refuses to move that can cause tremendous problems for the landlord, especially in the case where the property has sold and the new owner has arranged to move in. His current house is sold perhaps. His moving truck is booked and loaded, but he can’t get in. And if the current owner hasn’t anticipated this problem and made provision for it, he will be in a heap of trouble. The Agreement of Purchase and Sale promises vacant possession. Now the seller is in breach and liable for all sorts of costs and damages.
What can be done? The seller can apply to the Landlord and Tenant Board for an eviction, but that process takes time. With current backlogs, a realistic time estimate would be 4 to 6 months in order to have the tenant removed, especially if he challenges the process. So even if the seller realized early on in the process that the tenant in all probability was not intending to move, he simply wouldn’t have time before closing to get the tenant out.
There is a way to hedge your bet. It involves using a form called an L2. “Application to End a Tenancy and Evict a Tenant”. Here’s how it works. An L2 can be filed with the board at any time for up to 30 days after the termination date set out in the Evictions notice. Generally, it takes about 4-5 weeks from filing for the Board to process the Applications and to issue an evictions order.
But the thing is, that the L2 can be filed with the Board at any time after the N12 has been issued. And so, it would be prudent for the landlord to file an L2 with the Board at the same time as the tenant is served the N12. Even though there is no sign that the tenant won’t comply and move out. That way, if at the end of the 60-day period there is a problem, an eviction order has already been issued and the tenant can be promptly removed.
In addition to using an N12, there are a couple of alternate means a landlord can use to evict a tenant such as a mutual agreement between the parties, or a requirement to gain vacant status in order to extensively repair or change existing use from residential. We’ll have a look at these in our next newsletter.
Wayne Quirk, Author, “THE MONEY MACHINE”, wayneq@remax-gc.com