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TERMINATING A RESIDENTIAL TENANCY

One of the most common difficulties faced by residential landlords is collecting the rent each month. Under Alberta's Residential Tenancies Act, a tenant commits what is called a "substantial breach" of the lease agreement, when he or she fails to pay the rent when due. A substantial breach can occur whether the lease agreement between the landlord and tenant is written or verbal.

The Residential Tenancies Act provides various remedies for landlords where a substantial breach has occurred. One such remedy is to terminate the tenancy. Landlords should be careful to follow the specific procedure as set out in the legislation when terminating a tenancy.

The first step in terminating a tenancy, where a substantial breach has occurred, is to provide the tenant with notice of the intention to terminate the tenancy. This notice is called a Notice to Vacate. The Notice to Vacate must be in writing, signed by the landlord or the landlord's designated agent (such as a property manager), and it must contain the following information:

1. the reason(s) for the termination;
2. set out separately:
   1. the rent due as of the date of the Notice, and
   2. any additional rent that may become due during the notice period;
3. the date the tenancy is to terminate;
4. that the tenancy will not terminate if, on or before the termination date specified, the rent is brought back into good standing.

The Notice to Vacate must be given to the tenant at least 14 days prior to the date of termination. If the tenant brings the rent back into good standing by paying the rent due and any additional rent that has become due under the lease agreement as of the date of payment, the Notice to Vacate becomes void, and the tenant is entitled to continue the tenancy pursuant to the terms of the lease. If the tenant commits another substantial breach, the landlord must issue another Notice to Vacate, to start the process over again.

If the tenant does not pay the rental arrears before the termination date listed in the Notice, the tenant is required to vacate the premises by the termination date, and the landlord is free to rent the property to a new tenant.

If the tenant refuses to vacate the premises on the termination date, the landlord is faced with a new dilemma.  In this particular instance, an application must be made to the Court, in order to have the tenant removed. This application can be made to either the Provincial Court or the Court of Queen's Bench, to obtain an Order for the tenant to pay the amount of rent owing including any damage, which has been done to the property, and compelling the tenant to vacate the property by a certain date. Typically the tenant is given 2 weeks to vacate the premises, but the length of time is strictly in the Judges discretion.

Landlords should be aware that they are not entitled to change the locks on the premises, without previously obtaining a Writ of Possession. A Writ of Possession, typically is issued by the court upon the expiry of the time period as set out in the court order, discussed above, and it is what allows the landlord to regain the physical possession of the premises from a tenant who has refused to leave, despite the court's order.

Regardless of the situation, it is wise for any landlord having difficulties with a tenant to first consult the Residential Tenancies Act, the Landlord Tenant Advisory Board, or a lawyer, prior to taking any steps to terminate a tenancy.

By Gina Toni
January 25, 2005