Just like CRE covered in the first instalment of this legal series, a tenancy agreement is the most important safeguard against future problems with tenants and the law.
Gerry Baxter, executive director of the Calgary Residential Rental Association (CRRA), says that’s why landlords must take the time to sit down with their prospective tenants to go over the lease agreement.
“Don’t presume they’re going to read it,” he says. “Make sure they understand every part.” Doing this, as well as having each renter sign the agreement, prevents anyone living in the property from being able to deny knowing about or understanding the conditions of the lease agreement.
The association provides standard lease agreements to its members, but there are optional conditions that may also be helpful. Alberta’s Residential Tenancies Act (RTA) does not provide the ability to evict tenants because of smoking or pets, but a clause prohibiting smoking or pets can be included in the lease agreement. If the added clause is breached, the tenancy can be ended by applying to the Residential Tenancy Dispute Resolution Service (RTDTS), which is a quasi-judicial body that deals specifically with residential tenancy matters and is authorized to make binding decisions on claims up to $25,000.
If you do choose to allow smoking and/or pets in your property, the Alberta government does allow landlords to charge a non-refundable fee equivalent to one month’s rent in addition to the damage deposit, which is also equivalent to one month’s rent.
Mike Berezowsky, assistant director of communications for Service Alberta, says any sections added to the agreement should include a clause stating, “The tenancy created by this agreement is governed by the Residential Tenancies Act and if there is a conflict between the agreement and the act, the act prevails.”
And like any province, Berezowsky advises to get each tenant to sign the lease agreement, so that everyone living in the property can be legally evicted if there is a problem.
Evicting unruly tenants
If a tenant seriously damages the property or physically assaults you or anyone else, you can immediately serve the tenant with a 24-hour eviction notice. The notice must be in writing, be signed by you or the agent, give the reason for eviction and state the time and date the tenancy ends, Berezowsky says.
If the tenant breaches a condition in the contract by smoking or having a pet inside the property, for instance, there is a more complicated legal process to follow.
In this case, you can apply to the court or to the RTDTS to serve the tenant with a 14-day eviction notice. (The application costs $75.)
The notice must include all of the same information that’s required for the 24-hour notice.
A 14-day notice, however, can be appealed by the tenant to the RTDTS. You, as the landlord, are not required to state this right on the notice, nor are you required to inform the tenant about it.
If the tenant does appeal to the RTDTS, for instance, you should have a detailed report explaining whatever breaches have been made, which includes a list of any incidents or complaints during the tenancy, as well as a copy of the lease agreement and the affidavit, Berezowsky says.
“We recommend that landlords document incidents. If they provide warnings, that should be documented. If they have complaints from other tenants, they should keep those on record because those are things that would help them if they have to go to that step,” he says.
The judge or dispute officer handling the case will then either rule in favour of the tenant’s appeal or reject it – in which case you’ll have to move to the next step.
Baxter says many times a notice is all that’s needed to solve the problem, but that’s not always the case.
“So the landlord can issue the notice and if the tenant decides to move, they’re gone and that’s the end of the problem. However, in many cases for a lot of tenants all that notice means is there’s another 14 days of free rent. They know that the landlord can’t do anything during the 14 days,” he says.
If the tenant has not appealed the notice and is still living in the unit, you can go back to the court to get an order of possession. During this step, Baxter suggests also getting a judgement for any outstanding monies the tenant owes you, along with any costs incurred by the legal process.
The problem is, however, it can sometimes take a week to have your case heard in court, thereby giving the tenant another week of free rent, Baxter says.
Get ‘em out
Once the order of possession is granted, you can then serve the tenant with it and direct him or her to leave by a certain date, which is typically two weeks from when the order was served. If the tenant still does not comply, you can then file the order with the clerk at the Court of Queen’s Bench, Alberta’s provincial court, and appeal for a writ of possession.
Once the writ is granted, you can hire a civil enforcement agency to remove the tenant. Baxter says the bailiff usually will change the locks on the units while the tenant is out of the property. The bailiff will then allow any tenants living in the property to collect their belongings if they agree to vacate the premises.
Baxter says tenants in general should be aware that once a judgement is filed, it stays on the books for 10 years and can be renewed, thereby hurting their credit rating and, of course, their ability to purchase a home.
Non-payment of rent
Non-payment of rent is almost identical to the eviction process followed for a 14-day notice. The difference is this notice should also include the amount of rent due, any additional rent that may become due during the notice period and a statement saying that the tenancy agreement will not be terminated if the tenant pays any outstanding amounts.
Eliminating a step
In Alberta, a writ of possession is still required when a tenant has failed to obey an order of possession issued by the court. But that may soon change.
At the time of writing, a bill reforming the eviction process was in second reading at the Legislative Assembly of Alberta.
The proposed law would eliminate the final step of obtaining a writ of possession and would allow landlords to hire a civil enforcement agency to evict tenants if they do not comply with the order of possession, CCRA Executive Director Gerry Baxter says.
This story from the CRE/CREW achives appeared in the July 2011 issue of the magazine.
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