Addressing a Substantial Breach of a Residential Tenancy: Part Two

This blog was prepared with the assistance of summer law student Scott MacKenzie.

This blog forms part two of a discussion on landlord remedies available to address a substantial breach of a residential tenancy.

Part one discussed recent legislative amendments resulting from the COVID-19 pandemic and considerations for landlords before proceeding with termination of a tenancy and/or eviction. If you as a landlord have reviewed the information in part one and are interested in proceeding toward evicting a tenant, read on to better understand the process for doing so.

Substantial breach of a residential tenancy agreement

If a tenant commits a substantial breach of a residential tenancy, a landlord may decide to terminate the tenancy in order to regain possession of the premises. A substantial breach may occur for a number of reasons including where a tenant fails to pay rent when due, or does significant damage to the rental premises. Additionally, multiple less extreme breaches of a tenancy agreement, when considered collectively, may amount to a substantial breach.

A landlord has multiple remedies available when a tenant substantially breaches a residential tenancy agreement. For instance, a landlord may decide against terminating the tenancy and instead choose to apply for recovery of outstanding rent owed. This article focuses on the process for termination of tenancy and eviction, rather than other remedies available.

Evicting a tenant because of a substantial breach

The Residential Tenancies Act, SA 2004, c R-17.1 (“RTA”) and its regulations govern the process a landlord must follow to evict a tenant and regain possession of the rental premises following a tenant’s substantial breach. The basic process is outlined below, with more detail on each step contained later in this post.

Step 1: Terminate the tenancy by either:

  • Option A: Providing a tenant with notice of termination in writing,
  • Option B: Applying to the Residential Tenancy Dispute Resolution Service (“RTDRS”) for an order, or
  • Option C: Applying to the Provincial Court of Alberta (“ABPC”) or Court of Queen’s Bench of Alberta (“ABQB”) for an order.

Step 2: If the tenant does not vacate the rental premises after the tenancy is terminated, then obtain an order for recovery of possession. A landlord may also apply for an order for recovery of possession and order to terminate tenancy (under Step 1, Options B or C) in the same application.

Step 3: If the tenant still does not vacate the premises, then a landlord may hire a civil enforcement agency to evict the tenant.

Landlord’s must remember that Ministerial Order no. SA: 005/2020, which is in effect until August 14, 2020, prohibits a landlord from terminating a tenancy for failure to pay rent, arrears of rent or utilities, unless the landlord has made reasonable efforts to enter into a payment plan with the tenant. Therefore, before proceeding with any of these steps, a landlord must first attempt to enter into a payment plan. Part one of this post contains more details on this and other COVID-19-related legislative amendments.

Step 1: Terminate the residential tenancy

Where a tenant has substantially breached a residential tenancy, one of the remedies that a landlord may choose to pursue is termination of the tenancy agreement. To do this, landlords may (A) provide notice of termination to the tenant, (B) apply to the RTDRS for an order, or (C) apply to the ABPC or ABQB for an order. If applying for an order under option B or C, you may wish to apply for an order for recovery of possession (see Step 2 below) at the same time.

Step 1, Option A: Provide notice of termination to the tenant

  1. Provide notice in writing that the tenancy will be terminated. The notice must meet the following requirements to be valid:
  • Served on the tenant 14 days before the day that the tenancy is to terminate, not including the day of notice and the effective date of termination (unless there is an exception to the 14 day notice period in the RTA, e.g. cases of violence, damage, etc.);
  • Set out the rent due as of the date of the notice;
  • Set out any additional rent that may become due during the notice period;
  • Set out the reasons for the termination;
  • Set out the termination date; and be
  • Signed by the landlord or landlord’s agent.

Where the termination of tenancy is for non-payment of rent, the notice must also:

  • State that the tenancy will not be terminated if the tenant fully pays their unpaid rent owing on or before the termination date indicated in the notice.
  1. Wait out the notice period. After serving the notice, the landlord has to wait and see what action, if any, the tenant takes. The notice of termination is ineffective if either of the following happen during the notice period:
  • If the tenant pays all rent owing up to the date of payment (in cases where the notice to terminate is because of unpaid rent). If this occurs then the notice is rendered ineffective and the tenant remains in the rental premises.
  • If the tenant serves the landlord with a notice in writing objecting to the termination and providing reasons for the objection (in cases other than where the notice to terminate is because of unpaid rent). If this occurs, and the landlord disagrees with the objection, they may still apply for an order to terminate tenancy, described under Step 1, Option B or C below.
  1. The tenancy is terminated. If the notice period ends and the unpaid rent remains unpaid, or the tenant did not object to the termination (as applicable), then the tenancy is terminated as of the termination date indicated in the written notice. Proceed to Step 2 below.

Step 1, Option B: Apply to the RTDRS for an order to terminate tenancy

  1. Ensure that no related applications have already been filed in court. A landlord cannot make an application before the RTDRS if there is already an application before the ABPC or ABQB for a related dispute between the parties.
  2. Complete and file a “Landlord’s Application for Termination of Tenancy and Unpaid Rent”. This form is available on the RTDRS webpage. To be valid the form must, at a minimum:
  • Be signed by the applicant,
  • Show the address of the rental property that is the subject of the dispute,
  • Include the full name, address and telephone number of both parties,
  • Set out the remedies sought (e.g. termination of the tenancy), and
  • Indicate that the applicant has not applied to the ABPC or ABQB in the same matter. Serve the tenant. Once the RTDRS receives the application described above, they will issue the landlord a notice of hearing indicating the date, time and location of the hearing to determine whether the order to terminate tenancy will be granted. The landlord must then serve this notice of hearing and a copy of the filed application (including any submitted evidence) on the other party (i.e. the tenant). This must be done at least three days before the hearing, not including weekends, holidays, the date of service or the date of the hearing.
  1. Complete an Affidavit of Service. The proper form is located on the RTDRS webpage. This must be done prior to the hearing.
  2. Attend the hearing to determine if the tenancy is terminated. If the tenancy dispute officer hearing the application believes the order to terminate tenancy is justified, they will grant it.
  3. File the order with the ABQB. If the order to terminate tenancy is granted by the RTDRS it must be filed with the ABQB in order to take effect.
  4. Serve the order on the tenant. The order must be served personally or by registered mail where possible.

Step 1, Option C: Apply to the ABPC or ABQB for an order to terminate tenancy

  1. Ensure that no related applications have already been filed with the RTDRS. A landlord cannot make an application before the ABPC or ABQB if there is already an application before the RTDRS for a related dispute between the parties.
  2. File an application with a court clerk. The application must include a supporting affidavit setting out:
  • The details of the tenant’s breach, and
  • The requested termination date.
  1. Serve the tenant the notice of application. After filing the application, a court clerk will issue a notice of application stating the time and place when the application will be heard. The tenant must be serviced with a notice of the application and the supporting affidavit at least 3 days, exclusive of weekends and holidays, before the hearing.
  2. Attend the hearing to determine if the tenancy is terminated. The court will consider the oral and affidavit evidence submitted in determining whether to grant the order.
  3. File the order with the ABQB. If the order to terminate tenancy is granted by the ABPC or ABQB, it must be filed with the ABQB and served on the tenant for the order to take effect.
  4. Serve the order on the tenant. Service must be done personally or by registered mail where possible.

Step 2: Apply for an order for recovery of possession

If a tenant does not vacate the rental premises when their residential tenancy agreement expires or is terminated, they become an “overholding tenant”. If this is the case, landlords may need to pursue eviction through a civil enforcement agency, which first requires an order for recovery of possession.

  1. File an application for an order for recovery of possession. This can be filed with either the RTDRS, the ABPC or the ABQB. If an application for an order to terminate tenancy is being filed (described in Step 1, Options B and C above) the application for an order for recovery of possession can be filed and heard at the same time. Where the application is made to the RTDRS, use the “Landlord’s Application for Termination of Tenancy and Unpaid Rent”, described above. Where the application is made to the ABPC or ABQB, it must include a supporting affidavit setting out:
  • The date of the tenancy expired, or
  • If the tenancy was terminated, the method and effective date of termination.
  1. Serve the tenant. Once the RTDRS or court receives the application, they will issue a notice that shows when and where the application will be heard. This notice, and the supporting affidavit (if filed with the court), must be served on the tenant at least three days before the hearing, not including weekends, holidays, the date of service or the date of the hearing. The RTDRS also requires that an Affidavit of Service be filed before the hearing (as described for Step 1, Option B above).
  2. Attend the hearing. Attend the hearing at the time and place indicated on the notice mentioned above. The RTDRS or court will determine whether to grant the order.
  3. Receive the order. If granted, the order for recovery of possession must:
  • Direct the tenant to give up possession of the premises to the landlord, either by a specific date or within a specific amount of time; and
  • Include a statement to the effect that a civil enforcement agency has the authority to evict any occupants off the premises after the order has been served.
  1. File the order with the ABQB. If the order for recovery of possession is granted, it must be filed with the ABQB and served on the tenant in order to take effect.
  2. Serve the order on the tenant. A landlord may not proceed to Step 3, evicting the tenant using a civil enforcement agency, unless the tenant has been served with a proper order for recovery of possession.
  3. File an affidavit of service in the ABQB. This is also required in order to proceed to Step 3, unless the order for recovery of possession says otherwise.

Step 3: Evict the tenant using a civil enforcement agency

  1. Evict the tenant. Once the above steps are complete, a landlord may use a civil enforcement agency to evict the overholding tenant and other occupants from the rental premises. The civil enforcement agency may only carry out the eviction in accordance with the order for recovery of possession.

Once the tenant is evicted, the landlord has regained possession of their rental premises and may seek out a new tenant if they wish.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.