REAL ESTATE BUSINESS FAMILY WILLS ESTATES IMMIGRATION Cell

REAL ESTATE - BUSINESS - FAMILY – WILLS & ESTATES - IMMIGRATION Cell: (604) 817 -7063 Fax: (604) 877 -0330 E-mail: iven@itlawcorp. com Website: www. iventse. com Residential Tenancy Issues in the Age of COVID-19: Evictions, Vacant Possession, and Rent Collection Presentation for CREPA September 18, 2020

Residential Tenancy Issues in the Age of COVID-19: Evictions, Vacant Possession, and Rent Collection For web links and a copy of this text, please email me @ iven@itlawcorp. com or text me at (604) 817 -7063 THANK YOU!

The Residential Tenancy Board: Sources of Rules, Cases, and Authority Legislation: Residential Tenancy Act Regulations Rules: The Rules of Procedure Interpretation: The Guidelines Cases: Past Decisions found in RTB Website

Residential Tenancy Issues During The Covid Pandemic: Failure to Pay Rent : Owner Use or Occupation: Tenants who have been laid off from work or who are Self Employed individuals not eligible for CERB and refuse to pay rent; Tenants cannot be evicted, even with legal notice given for Owners use or occupation. Vacant Possession: Real Estate Contract promises vacant possession but tenants won’t move out because of the ban against eviction even in the case of non payment of rent. Orders for Possession: From May until July 2, 2020 Ban on evictions for almost all reasons Ban on Enforcement of Orders for Possession o

Residential Tenancy Issues During The Covid Pandemic: Frustration of Contract: Rent Repeatedly Late: Extenuating Circumstance Tenants who argue Frustration as a away to break their tenancy agreement because of Covid Tenants are working, not enough to qualify for CERB and always late paying rent. Landlords who argue “extenuating circumstances” because of Covid to either occupy a residence or to begin renovations o

• • The Residential Tenancy Board Hearing Process By Video or Teleconference Parties phone in with an access code Proof of service of notices and evidence documents and receipt of them are assessed and determined Evidence can include cases, letters, photos, videos, audio clips Witnesses can phone in, but cannot be listening while others talk or other evidence is presented Cross examination of witnesses are allowed Applicants usually present first, unless the Applicant alleges bad faith eviction, in which case the Landlord presents first Decision rendered, usually after the hearing, in writing.

QUICK RECAP OF REQUIRED NOTICE PERIODS & COMPENSATION Reason Notice Period Compensation • • to Tenant Non-Payment of Rent 10 Days None For Cause (repeat late rent) 1 Month None Owner Use/Occupy 2 months 1 Months Rent Extensive Renovations 4 months 1 Months Rent

QUICK RECAP OF STEPS FOR GETTING AN ORDER OF POSSESSION Issue Notice of Eviction Service the Notice of Eviction Appy to Court for Order of Possession or Respond to Tenant’s Appeal of the Notice of Eviction Prepare for Hearing, including exchange of Evidence Attend Hearing and Obtain Order of Possession if Successful Serve Order of Possession Apply to Supreme Court for Writ of Possession Hire Bailiffs with the Writ to Enforce Writ of Possession

SPECIAL RULES FOR REPEAT LATE PAYMENTS Landlord's Notice: For Cause • S. 47 (1)A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies: • ……(b)the tenant is repeatedly late paying rent

Definition of Repeatedly Paying Rent RESIDENTIAL TENANCY POLICY GUIDELINE 38. * At least 3 times late paying rent * Does not matter if consecutive or in between on-time payments * If many, many months apart ie 2 years, the Arbitrator may decide this is not considered repeated

BREAKING NEWS

Starting July 2, 2020 Landlords can enforce Orders of Possession for Obtained for Reasons other than the non-payment of Rent During Covid - For Owner Use - For Cause - For Extensive Renovation

Landlord Remedies for Non-Payment of Rent During March 18 2020 to August 2020: • Cannot Issue 10 Day Notice of Evictions until September 2020 • Even then, the 10 day notice still cannot be given until a Repayment Plan is served on the Tenant • On September 1, 2020 Landlords must devise, then serve, a repayment plan to the Tenant, and give 30 days notice for the Plan to take effect.

Landlord Remedies for Non-Payment of Rent During March 18 2020 to August 2020: • Then, the Tenant is allowed to repay in accordance with this Plan and if the Tenant follows this payment plan, even if there arrears, the Landlord cannot issue the 10 day Notice. • The Tenant still has until July 21, 2021 to pay off the outstanding rent, so the Re-Payment Plan should divide what was owing between the number of months until July 21, 2021 plus 30 days notice in equal instalments. • Landlords can issue 10 Day Notice of Evictions for non payment of payments that were supposed to be made under repayment plans.

SPECIFIC SITUATIONS: LANDLORD’S USE OR OCCUPANCY Including Sale to a New Buyer

• Landlord’s use of property applies when the landlord is going to: • Move in or have a close family member live in the rental unit • Sell the property and the new owner, or a close family member of the new owner, will live in the rental unit

Close Family Member Who does this include?

• Close family member: means the father, mother or child of the landlord or the landlord’s spouse. • Does not include the brother or sister of the landlord or the brother or sister of the landlord’s spouse. However: If a family corporation owns the rental unit, then a close family member would also include an individual who owns, or whose close family member owns, all the voting shares.

Two Ways to End a Tenancy for New or Soon to Be Landlords for Rental Property 1. The buyer makes a written request to the seller to end the tenancy before they take possession of the property (this cannot be a condition of sale) – the existing landlord then must give their tenant a Two Month Notice to End Tenancy for Landlord’s Use of Property. If there are more than one Tenant, it has to be served on EACH of the tenants. NOTE Unless a landlord (seller or buyer) serves a proper notice to end tenancy, the tenancy continues under the terms of the original tenancy agreement. 2. Once the buyer takes possession of the property, they can serve a Two Month Notice to End Tenancy for Landlord’s Use of Property

TWO MAIN ISSUES • 1. Tenant Does Not Want to Move Out Despite Valid Notice Given as Part of Contract of Purchase and Sale • 2. Tenant Disputes the Notice on the Basis of Bad Faith

Issue One: Tenant Does Not Vacate 1. During the Eviction Moratorium, the Seller would be in breach of the Contract and liable for damages 2. Some buyers or sellers cited Frustration of Contract because of Covid, but the Pandemic does not qualify because it is not permanent and does not change the fundamental nature of the contract 3. Buyers will have to complete and sue for breach of contract and will likely win 4. The problem is the issue of damages – what is the cost for taking possession of a house with Tenants? 5. Costs of Damages May include 1. Storage fees; 2. Cost of Alternative accommodation; 3. Legal Costs; 4. Costs related to the Tenancy such as unfinished work or repair orders from the Residential Tenancy Board; unpaid Rent from Tenants who refused to pay because they lost their jobs.

Issue Two: Tenant Challenges the Landlord’s Good Faith: The Good Faith Requirement

Good Faith Requirement: • A landlord must act in good faith if they plan to end a tenancy to: • 1. Move into the unit, or have a close family member live in it • 2. Sell the property and the new owner, or a close family member of the new owner, plans to live in the rental unit Definition: • That means the landlord has honest intentions and no ulterior motive. The landlord must honestly intend to use the rental site for the purposes stated on the notice to end the tenancy. There may be extenuating circumstances that allow the Residential Tenancy Board to excuse the Landlord for not moving in or occupying the home.

How to Fight Allegations of Bad Faith: • Good Documentary Evidence • Rational Reasonable Testimony • Independent Witnesses

Actual Cases • I acted for a Tenant who often fought with the Landlord • Tenant received a 2 month notice to vacate, for relative who was moving in – we found out it was a son who was living in the US. • I questioned the Landlord like this: • Q: What status does the Son have in LA? (US Citizen); • Q Does the Son own a house in LA? (Y) • Q Is the Son working there right now (Y). • Q Has the Son notified his boss, to start looking for a replacement? (N) • Q Has the Son started to list this place for sale? (N) • Q Has the son applied for a Canadian Visa? (N) • Q Has the son started selling his place? (N) • Q Has the Son starting advertising his home for rent? (N) I successfully argued that it was a bad faith eviction because the Landlord Failed to provide any evidence at all of intention. No planning, no preparation, no evidence.

• • Actual Cases I acted for a New Landlord who bought a house and then gave a Two Month Notice to Vacate to Tenants The previous Landlord had unsuccessfully tried to evict he tenant in the past The Tenant had fought the old landlord and won a reduction of rent for nonrepairs, got monetary orders, and extensive work-repair orders The house was sold “as is” to new landlord clients. On the possession date the Tenants told the new Landlord about all the Work Orders that were not done The next day the Tenants received the 2 Month Notice to Vacate Tenants argued the Landlord was evicting them with “bad faith” - the ulterior motive was to avoid having to fix the long list of repairs that previous Arbitrators had Ordered the Previous Landlord to Fix, but which were never done Successfully argued that it was a Good Faith eviction because of good evidence and good testimony

The Landlord provided Credible Documents and Credible Witnesses showing PRIOR planning, preparation, and ongoing intention to reside (i) Purchase documents such as a Form A transfer, Property Transfer Tax Form showing the purchased home’s address as the future address of the Landlord (ii) Mortgage broker evidence that assessed the purchase home not as an income producing asset to determine mortgage amount (iii) Mutual Agreements to end the Tenancy of the Landlord’s former residence shows the Landlord planned to move in to the new home.

BEWARE OF BAD FAITH PENALTIES

12 Months' Rent as Compensation/Penalty • Landlords should beware that when they end a tenancy, they must: • Take steps to accomplish the stated purpose for ending the tenancy under section 49 within a reasonable period after the effective date of the notice, or • Use the rental unit for that stated purpose for at least 6 months beginning within a reasonable period after the effective date of the notice • If they don't, they must compensate the tenant 12 months’ rent payable under the tenancy agreement.

12 Months' Rent as Compensation/Penalty • If a former tenant applies for compensation, a landlord should be prepared to show that the rental unit was used for the reasons given in the notice, or the reason they were not able to use the rental unit for the reasons given in the notice. • An arbitrator can excuse a landlord from paying this compensation if there are extenuating circumstances.

Examples of “Extenuating Circumstance” and Bad Faith Cases • Landlord cited a poor Inspection Report indicated many required repairs as reason for not moving in. The Landlord then demolished the home four months after purchase. This was NOT an extenuating circumstance, because the Landlord could not prove he had to demolish, vs repair, and could not show long it would take to repair it. • Landlord cited Loss of Job as an extenuating circumstance to not move in, rejected, because Landlord could have still moved in and rented the other home.

Examples of Extenuating Circumstance and Bad Faith Cases • The Tenant showed the Landlord’s bad faith by (a) presenting credible evidence from long time neighbours, which was preferred over Landlord’s trades people (who were paid employees of the Landlord), and family (who were biased); (b) pointing out the Landlord’s son moved out at EXACTLY six months after the notice because the Landlord CONVENIENTLY and SUDDENLY had room at his own house; and (c ) the Tenant found out that the House advertised for rent at a higher rental rate soon after. • Tenant tried to point at Low Hydro Bills and periodic “trespass check-in surveillance” such as photos of empty garbage bins to demonstrate Landlord did not occupy unit but this was not enough to show bad faith. The Landlord’s son was in and out, with shift work ate out and generally had small footprint.

• • Examples of Extenuating Circumstance and Bad Faith Cases Landlord gave notice to a Tenant for the Landlord’s use, namely the Landlord’s daughter; Three Months after the eviction, the Pandemic hit and the Daughter moved back home; The Tenant attempted to show the Landlord’s bad faith with vide and photo surveillance evidence that the Landord did not occupy the place for six months. Covid was an “extenuating circumstance” that allowed the Landlord to not have to comply with this “occupy within six months of eviction” rule.

LESSONS on BAD FAITH EXAMPLES • Good Timing: Evidence of Prior Intention, and more than six months of use and occupation before re-renting. • Credible testimony or documents from noninterested Witnesses

For web links and a copy of this text, please email me @ iven@itlawcorp. com or text me at (604) 817 -7063 THANK YOU!