What is likely one of the most frustrating things for a landlord is having an application to the Landlord and Tenant Board dismissed because of a "technicality". Until it happens to you, it is a little hard to believe that an application can be dismissed because of a mistake that seems obvious to everyone and it is clear that the mistake didn't mislead or confuse anyone (including the tenant). The reality, however, is that applications that do not comply with the provisions of the Residential Tenancies Act are dismissed out of hand. This means that a landlord needs to start all over again, from the very beginning, if they want to try to evict the tenant.
It is perhaps easier to write about this topic using an example application so that you can understand how precise (picky) the legislation is. Lets consider the application to terminate a tenancy for non-payment of rent. That application starts with a Form N4 (Notice of Termination for Non-Payment of Rent). This Notice calls for a notice period of 14 days. What this means is that you need to give the tenant 14 days Notice of Termination for Non-Payment of Rent and this date (at least 14 days after you give the tenant the Form N4) is called the Termination Date.
On the N4 Form you will see a box in the middle of the first page in which you are required to put a date---this date is the Termination date. Every single Notice of Termination (Form N4, N5, N6, N7, N8, N12) has a box on it that requires the insertion of a termination date. Each Form has its own number of days of notice that must be provided and on some forms it changes depending on whether it is a first notice or second notice.
The question is--how do you calculate the date that you need to insert in the box on the form? It is extremely important to calculate this date correctly as this is one of those "technicalities" that can result in the immediate dismissal of an application if the date is wrong.
The general rule for calculating a Notice Period is that you do not include the day of doing something but you do include the day that would be the final day of the period. What does this mean? By example, if you physically hand the N4 form to the tenant on the 5th day of a month you would not start counting the 14 day notice period until the 6th day of the month (meaning the 6th becomes the first day of the notice period). You would then continue counting out 14 days of Notice and you would discover that the 14th day is the 19th day of the month. Pursuant to the general rule for calculating Notice periods you would include the 14th day as notice-- meaning the termination date that you would insert in the N4 (for an N4 served on the 5th day of the month by hand personally) would be the 19th of the month or later.
It is perhaps worth mentioning that Notice Periods (Termination Dates) are minimum notice periods. You are permitted to give more than the minimum.
So, in the context of an N4 it seems straight forward enough that you don't count the day that you hand the tenant the notice, but you do include the 14th day after service. Can it get any trickier? In fact, the rule we just went through is dependent on the method of how you deliver the Notice of Termination to the tenant. The rule we just discussed presumes that you hand the Notice of Termination to the Tenant or that you place the Notice of Termination in the mailbox where mail is normally delivered. The calculation method changes if, instead of handing it to the tenant or putting it in the mailbox, you mail the Notice of Termination or you Courier it to the tenant.
In the case of mailing, the law provides that the Notice is not deemed served until five days after mailing. So, using our N4 example of serving on the 5th of a month--the following would result. By mailing an envelop on the 5th it would not be deemed delivered to the tenant until the 10th of the month (exclude the date of mailing and include the date of deemed service). Therefore, if the Notice is deemed delivered on the 10th you don't include the 10th for the purpose of calculating the 14 day notice period. You start counting the 14 day period on the 11th of the month--which takes you to the 24th of the month. Hence, the termination date is the 24th of the month at the very earliest.
The Rules are different again for service by courier--which deems service to be effective the day after sending a document by courier. Hence, your 14 day period for an N4 would not start until two days after serving by courier even if you know for an absolute fact that the Courier company delivered the envelop on the same day that it was given to them for delivery.
The whole of this article has been dealing with a concept often referred to as "computation of time". It is not just Landlord and Tenant law that has special rules for calculating time periods and in fact all court systems and different levels of courts have their own rules about service and computation of time. How is a regular person supposed to become familiar with the rules? Unfortunately, the way most people learn is through making mistakes and effectively learning the hard way. Certainly, the forms contain guides and if you read carefully you should be able to get it right.
For someone who wishes to be precise the best way to determine if everything is being done correctly is to review the Landlord and Tenant Board Rules--and for computation of time the Rules to review is Rule 4. For a complete understanding of the interplay between the computation of time and the method of service you should also have regard to Rule 5. The Landlord and Tenant Board Rules can be found at this link.
The manner of calculating time and the rules surrounding it are very dull and boring. However, in the process of terminating tenancies nothing can be more important than getting these dates absolutely correct. Being off by one day is enough to wipe out all of the work that went into an application as well as losing the $170 application fee (there are no refunds).
If you have questions about computation of time be sure to get legal advice before starting on the process. Mistakes in relation to Notice can not be corrected or amended or fixed not matter how reasonable it might seem to make an allowance for a small error. It may seem draconian, unfair--and even impossible--but the fact is that there is no wiggle room at all for mistakes in relation to the calculation of Notice Periods in Notices of Termination.
Michael K. E. Thiele
Sunday, 4 August 2013
About Michael Thiele
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