What Every BC Landlord Should Know About the Residential Tenancy Board

Welcome to another edition of FH&P Lawyers Law Talk. I'm Clay Williams, a partner here at FH&P Lawyers and the host of the program.

I've got a great show for you today. I'm joined by my special guest, Abu Khurana, an associate at FH&P who has been with the firm for roughly three years.

This is a very topical issue. We get a lot of calls about the Residential Tenancy Board, mainly about evicting tenants who are not paying or behaving poorly. In this episode, Abu walks us through the process, the deadlines, the tips, and the real-world pitfalls that every BC landlord should understand.

What kinds of issues does the Residential Tenancy Board (RTB) typically deal with?

There's a variety of different issues. A lot of them have to do with landlords wanting to evict tenants, as you said, for being late on rent or unpaid rent, or if they're causing some other issues with the tenancy, and essentially, the landlord wants to get them out. These days, it can be pretty difficult to do so without getting yourself into trouble. You want to make sure that things are done correctly. It takes time, and it's a bit of a process.

We hear about it all the time on Castanet and other places. Landlords are going long periods of time sometimes without getting paid, and that's tough. In these economic situations, if you try to get ahead and buy a property and then people don't pay, you're on the hook for your own mortgage and then your rental property as well.

How does the Residential Tenancy Board process work?

There's the Residential Tenancy Act, which governs these rental agreements and rental properties, and there's the Residential Tenancy Board, where these disputes are brought up. For example, if you're wanting to evict a tenant, you issue an eviction notice, and then the tenant goes and disputes that notice. Then there's a hearing with the Residential Tenancy Board.

The process is that you serve the tenant with the eviction notice. You put your reasons on there, the grounds that you're trying to evict this tenant on. The tenant will then have a certain period of days to dispute it, typically ten, depending on which eviction notice it is. From there, they'll serve you with an application for a dispute resolution hearing.

The RTB is very tight with deadlines. Typically, the applicant, the one who's making the dispute, has to serve and submit their evidence 14 days in advance of the hearing. The respondent, who is typically the landlord when the eviction notice is served, has to submit and serve their evidence seven days before the hearing.

Why are service deadlines so important at the RTB?

There are certain service procedures. If you paste your evidence package to their door, it's considered served three days afterwards. You want to make sure you've served it by the applicable deadlines, because if it's not served in time, the arbitrator might not even choose to look at your evidence.

You would have to have some valid grounds to adjourn a hearing. If you haven't served in time based on your own negligence, more than likely, the arbitrator is not going to adjourn it. They might consider your evidence, but it just depends on who you're dealing with that day and if there's real prejudice to the applicant or the respondent, whoever's served late.

How are RTB dispute resolution hearings conducted?

Typically, dispute resolution hearings are done through a phone call. You're given a phone number that you have to call at a certain time. That's the hearing. You call in, and the respondent calls in as well. You're taking an oath saying that you're going to be telling the truth.

From there, the applicant starts. They talk about their evidence and why they're wanting to dispute the notice. Then the respondent gets the opportunity to respond. The arbitrator will talk about the file of the case, but they won't make a decision right away. They can take up to 30 days after the hearing to effectively make a decision. Typically, you get it within two to three weeks, but sometimes it can take a bit longer.

It's a lengthy process. It's frustrating for landlords because if they don't issue the eviction notice properly and then they go to this hearing and the arbitrator says, "Your eviction notice isn't valid. You've done this incorrectly," you've waited a month for the hearing and you're waiting another month for the decision, just to say we're not going to agree that your eviction notice was done properly, so we're dismissing this eviction notice. You can file again, but then you're looking at another month for a hearing and another month for a decision. That's no rent, two mortgage payments. It can cause some delays when you're trying to move forward, so you've got to look into the details and the deadlines and ensure that things are getting done on time and correctly.

What role does FH&P Lawyers play in RTB matters?

There are different situations. Sometimes clients retain us prior to the hearing, and they'll say, "I have a hearing in a couple weeks. Can you help me prepare the evidence, let me know what I need to submit, and attend the hearing for me, and prepare written submissions?" That's the kind of work I would do.

There are also situations where a landlord will contact me and say, "This tenant's giving me some troubles. They're not paying rent. Can you assist me with getting them evicted?" I'll take on the file from the start. I'll issue the eviction notice, serve the eviction notice, work with the landlord, and gather whatever evidence we need. That evidence can consist of bank statements, pictures, or text messages demonstrating that rent has been late or unpaid.

I also like to include some previous decisions from the RTB. That gives the arbitrator a guideline, because you can point out that this is very identical to my client's situation, so I don't see why you wouldn't rule in our favour. We submit the evidence, serve the evidence for the client, attend the hearing, and then once the decision is out, we let the client know of the next steps.

Why is guidance on evidence so important for RTB submissions?

We're trained in legal proceedings and what is relevant and needed for the issues. For those people who are looking from the outside, they might not know what they need to present, or they may think that something would help that actually doesn't.

I give guidance along the way. I'll tell the client, "This is what I need from you. I'm going to need bank statements." Then I'll have a chat with the client, get the background of what happened, and put together written submissions to include in their evidence, along with any other sort of evidence that would be helpful, like emails or text messages demonstrating that rent was paid late or unpaid. I put that all together and submitted it to the landlord, and it's less stress on them. A lot of these people are working nine-to-five jobs and are busy with their families and their kids. It can be a stressful situation to find yourself in.

What happens if a landlord issues an owner-occupancy eviction incorrectly?

Owner occupancy evictions have caused a lot of trouble. In BC, there is rent control. You're only allowed to increase rent by a certain amount. But if there's a new tenant, the rent resets at market. Landlords might think, "Okay, I'm going to issue an owner occupancy eviction notice and get these tenants out of the property."

I've seen scenarios where landlords will re-rent the property within five months, four months, or six months. When you do that, effectively, you're not abiding by what the notice you issued says. The consequences are that the tenant you put out can make a claim against you for 12 months of rent. That can be quite a bit. It's very unfortunate because once you do that, it's very difficult to overturn, because you're not acting in accordance with the Residential Tenancy Act guidelines and policies. It can be a big financial burden.

Nowadays, you've got to wait a minimum of 12 months before you can re-rent the place. You also can't just leave the place vacant and claim you're occupying it. I've had scenarios where the tenant will drive by the property, take pictures, walk outside the property, look through the windows, and see no one inside. Another thing is that the landlord might not know that they can't post it on Facebook Marketplace at a higher rent. The tenants take that evidence, make a claim with the Residential Tenancy Board, and seek the 12-month compensation of rent. They'll get it. Rent at a couple of thousand bucks a month for 12 months is $24,000 right there.

What are the grounds for evicting a tenant in BC?

A landlord can't willy-nilly evict a tenant for whatever reason. It's pretty restricted on the grounds that they can evict a tenant. There are situations where a tenant has been problematic, and there are some ways landlords can evict a tenant that work pretty effectively.

The first would be late rent. A lot of people don't know this, but if a tenant doesn't pay on the first and they pay on the second, that's still considered late rent, because typically in these residential tenancy agreements, it says rent is due on the first. That's subject to what you put in the agreement, but most people put in the first.

If you pay rent late three times within a year, typically based on the case law and previous decisions, you will get evicted. It's up to the arbitrator's discretion, and if there are any other additional factors for why the rent was late, but those three times in the year are important.

If the tenant pays you on the second and you just accept it without saying anything, you're effectively almost agreeing to accept rent on the second. You're not taking issue with it. I tell clients it's important, when you receive rent late, to send an email saying, "I've received your rent late. Rent is due on the first, and going forward, please pay me on the first. This is considered late rent." That way, it indicates that rent is due on the first, and it's late. If they do it three times in a year, then you can apply to the RTB for an eviction notice for breach of the residential tenancy agreement.

What should landlords do about unpaid rent?

Unpaid rent is the classic. That one is a ten-day notice for unpaid rent. Although it is a ten-day notice, the tenant only has five days to either dispute the notice or pay the rent. If they pay it on the sixth day, you've got to send a message to the tenant saying, "I'm accepting your rent for the occupancy of the property only, and my eviction notice is still in full force and effect."

Basically, you outline that this payment is accepted for use and occupancy only, and it doesn't reinstate the tenancy or waive any prior notices or rights. You're telling the tenant we're accepting your rent for use and occupancy, but our notice is still in full effect.

You've got to get that notice out first. Then, if the tenant pays beyond the five days, you want to tell them it's too late. If you don't do that, it can be assumed that you've reinstated the tenancy. Some arbitrators will take that position. Landlords don't know that, and they just accept the rent and think this is still going to go ahead. When it comes to the hearing, it's a different story.

You still want to accept the rent because you still have your bills to pay. That's very helpful in terms of being able to still move forward with your rent payments, but effectively still pursue that eviction notice.

What other grounds can a landlord use to evict a tenant?

There are others. If there's a nuisance being caused or illegal activity at the property, those are big ones. With those, it's important for the landlord to keep everything documented. You need to issue warnings. If there are noise complaints or anything along those lines, it's very important to document things, because all these things can be used as evidence down the road.

If you've warned them verbally a few times but it's not in writing, it's a little harder to prove. Another important thing is, if you have a duplex or something and one unit is being loud, and the neighbour who isn't being loud is texting you saying they're being very loud, you then need to give a warning to the tenant who's being loud. You need to keep those records. If you're issuing warnings, you can use those warnings plus the texts from the other tenant who was making the complaints, submit that as your evidence, and you have some grounds for eviction.

What practical tips should BC landlords follow?

One of the big things I would mention for landlords is a condition inspection report. A lot of landlords don't know about this. At the start of the tenancy, people think, "I'm going to take a damage deposit, and if there's damage to the property, I'm going to withhold that damage deposit." However, there's another step that people often miss, called a condition inspection report. It's a walk-through with the tenant, and you've got to give the tenant a copy of that as well.

For example, let's say you rent out a unit. It's a brand-new unit, you just purchased it, there's nothing wrong with it, and you don't do the condition inspection report. At the end of the tenancy, you do a walk-through and find out this wall is damaged, that wall is damaged, the stove is damaged, and there are substantial repairs that need to be done. You can't go and withhold that damage deposit. If you don't do the condition inspection report, you effectively lose your ability to withhold that damage deposit.

You can still make a dispute to the Residential Tenancy Board for the damage that was caused, but it's a longer process. Who knows if you're going to be able to collect this money as well? When you already have the damage deposit, the money is already there.

A couple of other key tips: communicate everything clearly, keep everything in writing, keep good records, and have your bank records readily available. If rent is paid late, make sure you indicate to the tenant that rent is due on the first and this is late rent. When you're issuing eviction notices, double-check that the dates are correct, the grounds you're pursuing the eviction notice on are correct, you're using the proper form, and you're serving them in time. There are all these little things that you have to pay close attention to.

What real-world horror stories should landlords be aware of?

A common one we see a lot is you go through this whole RTB procedure, and as a landlord, you do the hearing, you get an RTB order of possession that states the tenant needs to be out by a certain date, and you serve that on the tenant. The tenant still doesn't leave. Where does that leave the landlord?

The landlord will have to go and get a court-appointed bailiff. They'll have to file for a writ of possession with the Supreme Court. This can be very costly. The bailiff shows up at the house, goes in, and starts removing everything, whether or not the tenant wants to stay there.

Getting that bailiff in there can cost anywhere from $4,000 to $6,000, maybe more. It depends on how big the unit is, how much stuff is in there, and how many hours they're going to spend there. You can only get a court-appointed bailiff, so there's not a whole lot available.

If you don't effectively get them out right away, another thing that can happen is they can apply for a stay of the RTB order of the eviction. That would be in the Supreme Court. They would file a judicial review and seek a stay of the RTB order until that judicial review has been finalized. I've seen it where they do get it, if they have some valid grounds, especially if it's a short-notice application and the landlord can't even show up or isn't able to obtain counsel in time. It's only the tenant there. It happens more often than you would think. Effectively, the tenancy is now extended for another three or four months until the judicial review, which is effectively an appeal, is complete. Meanwhile, the rent is still not being paid, and the RTB order has a stay on it, so what are you going to do?

It's definitely scary to be a landlord in some of these situations. But if you have the right guidance and take the right steps, there are definitely effective ways to approach this.

For BC landlords, the Residential Tenancy Board process moves on tight deadlines with serious financial consequences for getting it wrong. Whether it's a late-rent eviction, an unpaid-rent notice, an owner occupancy eviction, or a writ of possession, the details and the documentation matter. Getting advice early can help you avoid a six-month eviction that should have taken a month and a half.

If you're a landlord dealing with an RTB matter, a problem tenant, or an eviction you need to get right the first time, reach out to us for a consultation, and we can help you out.

Disclaimer: This material is provided for informational purposes only and should not be construed as legal advice on any subject matter. Consult with a qualified lawyer for advice on specific legal issues.