I'm pleased to publish today an Article written by my assistant Heather. As you have seen in prior Articles, Heather has developed a keen interest in Landlord and Tenant Law issues. I'm pleased that she has written about how a tenant terminates a tenancy, legally, as far too many tenants still think that their tenancy automatically ends after a fixed term expires or that a simple phone call will do the trick. As Heather discusses, termination of a tenancy, by a tenant, engages a formal process under the Residential Tenancies Act and a tenant is required to comply strictly with the law just as a landlord is required to do. Thank you Heather for your interesting piece. Michael K. E. Thiele
No-Fault Termination: A Tenant’s Notice of Termination by Heather Campbell
When you think of providing a “Notice of Termination,” there is distinct undertone of negativity, or if you’re in the least bit nerdy like me, you think of Arnold Schwarzener as a half-man half-robot. However, unlike Arnold, when a tenant gives a landlord a Notice of Termination, they are not planning on coming back.
Life has a way of taking us to places that we never thought we’d go, especially at times when we are not at all prepared for such a substantial shift. Recently, a friend of mine gave me a call with just this type of situation. After completing a university degree in English at Carleton and a college degree in the Library Technician program at Algonquin, she had been accepted to a Masters Program in Library Science at the University of British Columbia. The catch, she would be starting in the winter semester, meaning she had to be out of Ottawa and in Vancouver in less than three months. As a result, she would need to give her landlord notice that she was leaving and she needed some guidance on what needed to happen and how to do it. So, I figured I would write a blog to share with you, in general terms, what I was able to share with her about tenants giving a Notice of Termination.
First things first, when a tenant is considering giving their landlord a Notice of Termination of Tenancy, you’ll need to know what type of tenancy you have. For the sake of this blog, there are two general types, a fixed term tenancy or a month-to-month tenancy. A fixed term tenancy generally occurs for example when you begin a new tenancy and sign a lease for let’s say a one year term. If you have signed a lease agreement and the original term in the agreement has not passed or if it was formally renewed, then you would likely have a fixed term tenancy. In the alternative, if the original term in your lease has passed and no steps were taken to renew the lease, you’re likely on a month-to-month tenancy.
Now for the big question, why does it matter what type of tenancy I have? For the answer, we look at Section 47 of the Residential Tenancies Act (RTA) which deals with tenants giving Notice to Terminate. Under the RTA, a tenant can give the landlord notice to terminate the tenancy at the end of the period or term of the tenancy (Sec 47). This means, if you’re in a fixed term tenancy, if you’re giving your landlord notice you’re leaving, you would have to wait until the end of your rental term to actually move out. For example, if you’re 9 months into a 12 month tenancy, you would have to give notice for the end of the 12 months. In the alternative, if you’re currently living on a month-to-month tenancy, then your end of term is considered to the end of the current month. If you need to terminate a fixed-term tenancy before the term ends, there is a process of that, however that is a whole other blog.
In the case of my friend, thankfully her tenancy was month-to-month so she was able to give notice right away. However there is a distinction between the date for notice and the date for termination. For an explanation we turn yet again to the RTA but this time we look at Section 44. Section 44 (1) looks at notice and termination periods for daily or weekly tenancies, under that section a landlord or tenant must be given at least 28 days notice before their tenancy is terminated under a Notice of Termination. In other words at least 28 days have to pass between the termination date on your Notice to Terminate and the day the landlord is given the notice for daily or weekly tenancies. Section 44 (2) looks at notice and termination periods of monthly or month-to-month tenancies, under this section a tenant wishing to terminate their tenancy would have to provide a landlord with at least 60 days notice.
To go back to my friend, her flight to Vancouver was set for December 28, 2013. Up to that date, she would need access to her apartment. Given that she was on a month to month tenancy, the best termination date for her was December 31, 2013, as a termination date has to be at the end of term in this case the end of the month (Section 47). So now she had her termination date, she needed to know when she would have to give her landlord notice and how to do it. After looking at Section 44, she now knew she needed give her landlord at least 60 days notice, so now all she had to do count backwards. As a side note, the RTA and Landlord and Tenant Board have specific requirements when it comes to giving/ serving Notices, so you need consult the relevant sections to make sure you are counting any extra days that may be required based on your form of service.
My friend had a really good relationship with her landlord and wanted to give them as much notice as possible so she decided to give more than the 60 days notice required. Now all she needed now was to know how to give the notice. Section 43 of the RTA deals with what must be included in a Notice of Termination. The Landlord and Tenant Board has a form specifically for Tenant’s to use when giving landlords notice of their intention to move out, it is the N9-Tenant’s Notice to Terminate the Tenancy form. It is available from the Landlord and Tenant Board or can be downloaded from the LLTB website.
Section 43 states that all Notices of Termination shall be in a form approved by the Board. There are cases with other types of form have been accepted, however, save yourself a headache and just use the N9 if you are a tenant looking to end their tenancy. Again, giving the notice to the landlord (also known as service or serving) must be done in accordance with the RTA and Rules of the Landlord and Tenant Board, so please consult the relevant documents depending on your individual situation. Regardless of how you choose to serve the Notice, it is always prudent to complete a Certificate of Service, which is provided by the Landlord and Tenant Board. The Certificate of Service is used to prove that you have provided the landlord with the Notice should any issues come up and the matter proceeds before the Landlord and Tenant Board. This should be done right after serving the N9.If you look at the N9 Form, Section 43, 44 and 47 of the RTA, there are many more issues that relate to tenants giving notice and situations and consequences of giving a landlord a Notice of Termination of Tenancy. All of which, are unfortunately more than can be dealt with and explained in a blog. So if you have specific questions, please feel free to leave comments or to seek legal advice. I hope this blog has shed a little light on tenants giving notice to end their tenancy, and useful should you ever find life leading you on to new adventures.