Overholding. What Exactly Is It?

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Overholding Tenant and Breach of Residential Tenancy in Calgary, Alberta

Overholding is a term for when a tenant continues to live in a property after the termination or expiration of a lease. At this point, the tenant  is in breach of their contract. This is not an ideal situation for a landlord or tenant to be in. It is troublesome for a landlord if there is another tenant who will be moving in. In contrast it is problematic for the tenant because the landlord will find them in breach of their tenancy.

Consider Both Sides Of The Problem

It is important to note that not all tenants intend to become overholding tenants. Sometimes circumstances arrive where they are unable to leave their place of tenancy. For example, if there is a delay in the tenant’s possession their new build property, they cannot leave because they will not have a home otherwise.

Landlords genuinely trust that their tenants are good people. You interview them, call their references, and verify the tenant’s employment history. Unfortunately, if they refuse to vacate the property, that trust disintegrates. If this happens, it is important to remember that you have options. First, if the tenants intend to rent in the future, you are their reference! Second, you have access to the legal system.

Can A Tenant Become An Overholding Tenant In A Month-To-Month Tenancy?

In situations where a month-to-month tenant stays despite the termination date, they are an overholding tenant. Further, if there is a court notice with a date of eviction, the tenant becomes an overholding tenant after the date of eviction.

My Tenant Won’t Leave! What To Do Next?

As a landlord, there are steps you can take to begin the process of evicting the tenant. You must apply to the Residential Tenancy Dispute Resolution Service (RTDRS). RTDRS is a quasi-judicial tribunal that offers landlords and tenants a method of resolving disputes under the jurisdiction of the Residential Tenancies Act and the Mobile Home Sites Tenancies Act without going to court. This process is available for addressing overholding tenants. In order to use RTDS services, you must apply for an order for recovery of possession.

What Does The RTDRS Process Look Like?

Applications can be submitted online using the RTDRS eFiling Service. Unfortunately, this process can add weeks to the overholding tenants’ stay. Due to the delay in achieving a result, landlords can also apply for compensation for losses due to an overholding tenant. All other related applications are listed at alberta.ca. However, it is important to note that the service is available for both tenants and landlords. As such, tenants can also bring about a claim against the landlord.

How Can I Get An Eviction Notice?

As a landlord dealing with an overholding tenant, you may opt to pursue eviction. The process of attaining eviction first requires an order for recovery of possession. This is achieved by filing an application for an order for recovery of possession with the RTDRS through an application. Once you file your application, you will receive a notice which shows when and where the tribunal will hear the application. You need to serve this notice on the tenant at least 3 business days before the hearing. It is at the hearing that the RTDRS will determine whether they will grant an order or not. If granted, the recovery will tell the overholding tenant to leave the premises in a certain period. In addition, there will be a statement indicating that a civil enforcement agency will have the authority to evict the overholding tenant from the premises once they receive service of the order.

Impact Of Covid-19

During the beginning of the Covid19 pandemic there was an influx of people who lost their jobs due to Covid19, resulting in the inability to make their rent payments to their landlords. A Ministerial Order No.20/2020 suspended enforcement of a few of the eviction orders that were made by the tenancy dispute officers of the Residential Tenancy Dispute Resolution Service (RTDRS) and /or by judges of the Provincial Court of Queens Bench. During this time, the eviction enforcement was only suspended if the basis to terminate the tenancy was the inability to pay the agreed rent and/or utilities and no other reasons, as well if that inability to produce payment was due to circumstances beyond the tenants control caused by the Covid19 pandemic. The order is no longer in effect.

Tips On How To Avoid This Happening In The Future…

Landlords have a responsibility to communicate and confirm with their tenant whether they want to renew their lease. It is imperative to discuss lease renewals at least a month in advance, and in writing. This way, both parties are aware of what the other is planning to do and provides enough time to accommodate for upcoming changes, or lack thereof. Even though the Residential Tenancy Act doesn’t require a landlord to provide written notice that they will not be renewing on a fixed lease. It never hurts to do so. Having written confirmation provides security and certainty that both parties are on the same page with regards to how you are moving forward.

We Can Help!

The Residential Tenancy Dispute Resolution Service process is simpler than the court process. However, many important timelines and rules still apply.  Failure to comply with certain rules could result in forfeiting the application fee and having to begin again. Our lawyers will help ensure that you have submitted all necessary documentation and complied with both the Residential Tenancy Dispute Resolution Service Rules of Practice and Procedure and the Residential Tenancy Act. Although it is not mandatory, there are many advantages to retaining a lawyer for RTDRS hearings.

To schedule a meeting with one of our Residential Tenancy Dispute Resolution Service lawyers, please call or email our litigation team at Kahane Law Office. We can be reached at 403-225-8810 or email us directly here.