Why It Doesn’t Matter If Your Tenant Says They Are Leaving!
Ironically, you cannot take a tenant at their word when it comes to an eviction. Here’s how I learned this lesson personally.
In one of my shared accommodation properties a few years ago, I had a tenant who “hurt” his back and was laid off. Now I understand a back injury can be debilitating and can put you down and out quickly, yet this fellow was usually quite spry. Anyway, as rent time came up he found himself short.
I let it ride the first week, but the second week I became a little more emphatic , suggested he be gone by the weekend as he wasn’t paying and he finally agreed to move out in a few days, he just had to arrange to get a buddy to help him. So now I had his agreement that he would move out, he knew he owed me, but he understood he had to go, so I could live with that.
It just happened to turn out that I was out of the city for a couple of days visiting my parents when he was scheduled to move out. Normally I would be there when tenants leave a normal rental, but with a shared accommodation, I usually have them lock the doors behind them and leave the keys inside. I change the locks every three to six months on these properties anyway, so I’m not to concerned.
Anyway, while I am away, I get a call from him, he had talked to the Landlord and Tenant folks and they informed him, I have to provide a 14 day eviction notice and he doesn’t have to leave until the eviction date is due.As you can imagine, I was less than ecstatic about their advice, but legally they were right.
You see, under the Residential Tenancy Act, there is a tiny section that reads;
Act Prevails
3(1) any waiver or release by a tenant of the rights, benefits or protections under this Act is void.
Translated it means if the tenant signs an agreement with you agreeing to vacate and you haven’t provided them with an eviction notice or filed an application with the Residential Tenancy Dispute Resolution Service and received an eviction date, they can change their mind. Whether it’s verbal or written, the act voids their original intent to vacate.
In my case I served the tenant with a 14 day eviction notice within a couple hours of arriving in the city and as per one of my previous posts included not only the non-payment, but a couple other breaches of the lease as well, just to ensure the eviction stuck. If I only had the non-payment on the eviction, if he managed to come up with the payment prior to the eviction date, it would have been void.
He did drag it out to the last day and didn’t attempt to drag it out or fight it anymore, which was a pleasant surprise. In the end though I was out about four weeks rent, I went through way too much frustration and I was much wiser about the process and now you are too! So be cautious if a tenant tells you they are leaving.
Been renting in Banff in a condo that has basically become a frat house. I have made several attempts to contact the property manager but have had little to no response, last month was the last straw for me and finally had to give my notice, asking to break my lease early. The property manager agreed however has told me I have to pay a $500.00 penalty to break the lease. I have been over my lease agreement and do not see any information requiring a penalty. Is a penalty normally done in Alberta for ending a lease early? What course to tenants have when a building becomes unsafe to live in?
Hi Ryan,
Make sure you keep all the notices you provided as backup. Since there is no mention in the lease of a $500 penalty for breaking the lease they can’t really charge you that and even then it may be argues in the RTDRS as they can’t legally charge you a penalty in a Residential Lease in Alberta.
Now, having said that they may still be able to come after you for breaking the lease which is why you need to hang onto any and all documentation you have bringing up the issues and the problems and their lack of attention to it.
They may retain a portion of your security deposit to cover this, but they are also supposed to give you a statement within ten days of you moving out breaking out any deductions and why. If they do keep a portion and they give you a statement you can likely go to the RTDRS and get a judgment against them although they could also counter file for you breaking the lease.
That’s where your documentation comes into to play.
So not sure if I provided enough answers or info, but hopefully it’s a start.
As to becoming unsafe, that is a very broad determination and you are entitled to a peaceful tenancy, so determining whether that is more accurate versus unsafe may be your key.
Bill
Hi bill
I just bought a rental property in Banff with tenants on august 31st. Any of the tenants have written lease .One of the tenant who lives at the premises says that he was helping for the previous land lord for renovations and repairs of the property. Because of that reason he was not paying any rent towards previous landlord. so he says now that he won`t be paying any rent or not ready to vacate. He wants to live there for free. in which way I can evict him .I gave him 3 months notice to vacate. I also gave him two weeks notice for not paying rent. He says he is not going to accept any of this notice. C an u please advice me about this situation
thank u
ASH
Every time I see comments like this my stomach turns. If you ever purchase a rental property you either need it to be vacant, or you need complete documentation and copies of all leases and agreements and side agreements or you end up with situations like this.
If there are no written leases (which I think is what you meant to say), then the current owner has to provide written instructions on what agreements and terms are in place. Your Realtor should have also been on top of this as it’s left you in a precarious position.
You may have to approach the previous landlord, or have your Realtor contact their Realtor for the information to determine if what they told you is valid or not. From there you can determine how to move forward, but until you know the actual agreement that was in place it’s just a guess.
As the new landlord, without written copies, you are assuming the old agreements, verbal or not. Without knowing what they are, it’s pretty hard for you to evict them, although if the agreement was for him to get free rent in return for work on the property, you also need to know what that work entailed if that truly was the arrangement.
My guess, and only a guess is either a) the original landlord set something up with the tenant because they just wanted out or b) the tenant is jerking you around. Either way, the onus falls back on you (and your Realtor) for not doing enough due diligence prior to purchasing.
Bill
Continued. At the end of the lease, I returned home from work and was locked out by pm on the 31st. We were good tenents and paid rent on time. I asked the landlord to respond, meet me to return my $1500 damage deposit. A week after my contact he met me at the unit and said that behind the stove wasn’t clean and there were 2 bags of garbage outside – basically looking for things to deduct $. I haven’t seen my damage deposit yet. Does he have the right to withhold it? Did he also have the right to lock me out of my unit before midnight? He didn’t give me a chance to complete the cleaning and he wants to charge me for the broken screen.What action can I take?
Hi Nic,
Continued? Sorry I didn’t see the first comment from you?
At this point you’re going to have to go to court or the RTDRS depending on where you live to get this dealt with.
From the information you’ve provided it sounds like they broke a few rules so far which means you have a very good chance fo getting a judgment and hopefully get everything paid back.
At issue is the landlord locking you out. They can’t do that.
Now if you’d completely moved out and it looked abandoned it would be a different story.If it looked like you were coming back it could get a bit gray depending on any conversation or agreements with the landlord.
The landlord is supposed to provide you with a statement of any deductions and the remainder of the deposit within ten days after you move out. It may be mailed to your last address if you haven’t provided a forwarding address which means it gets sent to your previous address, so you may want to be sure your mail is getting forwarded.
You didn’t mention any walk through when you moved in or out, if the landlord didn’t do a walk through moving in, it’s also very hard for them to hold back anything. Mostly because they can’t prove the original condition.
Since it sounds like he won’t talk to you about this and there may be several infractions, filing to get your security deposit back is the route you’ll want to go down.
Bill
Hi Bill,
I have a roommate that has been living in my home for 2 years now, in the 2 bedroom condo that I own. She has her own room, and we share the rest of the house. She pays a flat monthly rent of $650.00, and I take care of the bills. We alternate with who buys the food. We are at odds with each other, fighting and arguing about everything. We are not compatible to live together, and I want her to leave. There has never been an lease agreement signed, It has just been month to month payments. What must I do to have her leave, and how long must I give her?
Please advise.
Thank you,
Jeff
Hi Jeff,
Even though you don’t have a written agreement there are still basic rules that apply. From your situation though, it sounds like you fit closer to the Innkeeper’s act versus the Residential Tenancy Act. You may be able to fall back to that if things don’t work out.
In the meantime though you have a couple options. First and foremost would be talking to the roommate explaining it’s not working and agree to have her move out. Pick a reasonable target date, say four to six weeks and even potentially help her search as it’s a win for you if she leaves.
Second option would be to raise the rents, due to the nature of the rental where you share common space and you the landlord live there you don’t fit under the Residential Tenancy Act, so there isn’t a specific set of rules for the timeline of this. You could follow the RTA which states a 90 day timeline which consists of three full months. This would leave everything status quo, if you gave her notice this week, and rents would increase February 1st, 2015.
This would either force her out or if you were to receive another say $300 per month make the fighting more acceptable for a while.
Finally you could force her out through the Innkeeper’s Act, this may or may not give you the most headaches. The Innkeeper’s Act is just the closest legislation and it gets treated differently across the province and even from police district to police district.
The Innkeeper’s Act is basically the same laws Hotels abide by and if a guest is difficult they can be removed by the police. If she was violent and combative it would be an easy police assisted eviction, if she is pleasant and agreeable the police would not necessarily evict her and force you to go to court to try and remove her at added cost.
So your preference should be option 1 and then decide between 2 and 3 depending on how she deals with it on her side!
Hope that points you in a direction,
Bill
Hi Bill,
Thanks for your response. It has prompted some further questions.
– Is there an agreement that I should get signed? Can I just have a piece of paper signed by both of us agreeing to the move out date? What if she won’t sign it?
– If I have to take this to court, who do I contact to get her into court, and how do I ensure she will show? I would like to do this without a lawyer if possible.
Thanks again.
Actually, if it’s a roommate situation like the one you pointed out and you are the owner, then the RTA does not apply.
reading that articel, it was struck by how soon some landlords move in for eviction. Here in Ireland it appears the tenants have more rights than the landlord, as we have had experience of some tenants being in arrears of 3 months or more, and still arguing for the return of their security deposit, and being listened to by the tenants rights agencies!!
Hi Bernie,
As a landlord in Alberta we do have more rights than many of the other provinces and states, but it still requires us to take action as quickly as possible. It’s far better to start an eviction early and then have it cancelled than to find your selves two weeks or several months down the road and having to wait even longer before you get anywhere.
Thanks for commenting from Ireland! I’ve had some great tenants from Ireland in the past!
Regards,
Bill