Welcome back to the last of the “how the heck do I give notice to move out” posts. You can read the first one here, and the second one here. This post is going to talk about fixed term tenancies and what steps you can take to end one.
First, let’s talk about what a fixed term lease actually means. The way a fixed term tenancy works is that both the tenant and landlord are bound by the terms in the lease, including the period of for which the property is going to be rented. The tenant gets some bonuses (the landlord can’t increase the rent during the term of the lease, the landlord can’t end the tenancy during the term of the agreement unless the tenant has done something wrong, etc.), and so does the landlord (the landlord knows that the property will be rented for a guaranteed period of time for a specific amount of money). Most issues come up when one side decides that they don’t want to be bound by the lease anymore. For example, the landlord decides to sell the property and wants the tenant to move out early, or the tenant’s job moves, or is lost, and the tenant needs to move somewhere else.
So, how do you end a fixed term tenancy? You cannot just give a month’s notice like you would for a monthly periodic tenancy. You signed a contract, and one of the terms that you promised to follow was the length of time you would rent the place. The nature of a fixed term tenancy is that the tenancy only ends under the terms of the contract (for example, the tenancy will end on the date stated in the lease), or if the landlord and the tenant agree to end the tenancy early. You can always try to talk to your landlord to see if the landlord is okay with an early end date. If you are able negotiate and come up with an agreement, you should put this agreement in writing. Remember, your landlord does not have to release you from your obligations that you have, so it’s a good idea to think of some negotiating points (“this will give you time to paint the apartment like you said you wanted to do. With all new paint, I bet you could charge more rent”) and to be nice. You are asking for a favour from your landlord, so be courteous and act in a reasonable manner.
If your landlord won’t agree to end the lease early, what can you do? Well, you might be able to sublet or assign your place. Generally speaking, this means that you would find someone who wanted to rent your place, and then that person would move into the property and you would move out. Under an assignment, you would generally give your entire interest in the property over to the new tenant. In a sublet, you would remain responsible, along with the new person, for all obligations of the original lease. So, if your subtenant did not pay rent, then your landlord could come after you to collect the unpaid rent. You must request your landlord’s permission in writing before you assign or sublet. If your landlord does not respond to your request within 14 days, then you can assume that the landlord consented.
What happens if none of these options work for you, and you go ahead and move out anyway? Well, there are consequences that you have to weigh. You remain responsible to pay the rent until the tenancy ends (either because the landlord rents to a new tenant, or the end date in your fixed term occurs). This means that if, for example, you moved out in March and you were supposed to live there until September 30, then you must continue to pay the rent until either the place is rented out again, or until September 30 comes. Your landlord must try to rent out the property again. The landlord has to do all of the things that s/he would normally do to find a new tenant. And if you’re thinking right now that you can just ignore the landlord’s demands for payment, think again. The landlord can contact a collection agency to try and collect the debt, or can make an application against you.
The chances of you getting your security deposit decrease as well. Your lease might have a term that says that if you break the lease, then you must pay the landlord some money in fees, and these fees, if you don’t pay them, can be deducted from the security deposit. You can find out more about these fees in Service Alberta’s Voluntary Code of Practice here. Also, you might be paying rent on your new place and won’t be able to afford to pay rent on the old place, and the landlord can deduct unpaid rent from the security deposit.
Well, we’ve covered most of the common concerns that come up when a tenant wants to move out of the property. Until next time, stay away from those home design magazines at the check-out counter, as they will only lead to a vague feeling of dissatisfaction when you get home.
Disinherited daughters
This blog post is an excerpt from Bench Press in the January/February 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
Four daughters who received nothing from their late father’s estate asked the British Columbia Supreme Court to vary his will.
William Werbenuk left his substantial estate to his only son, making no provision for his daughters.
The Judge stated that what was at issue was whether based on contemporary moral standards, adequate provision for proper maintenance and support was objectively considered by the father towards his daughters.
Justice Wong accepted evidence by the daughters that their father ruled the family home, and his wife and daughters by terror.
The son, on the other hand was “favoured and indulged.”
Justice Wong noted: “It is a testament to the strength of character and resilience of the plaintiffs that they rose above their upbringing and manifestly cared for their father.” He ruled that modern contemporary standards reject the father’s declared intention to disinherit his daughters, and that they had a valid moral claim to share in the family wealth.
He wrote: “The provisions of William Werbenuk’s will were not those of a judicious testator acting in accordance with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards. The Judge divided the estate between the five siblings.
Werbenuk v. Werbenuk Estate, 2010 BCSC 1678
Movin' on up, movin' on out (Part 2)
And we’re back! If you’re new to the blog, go back and read my last entry, as this post is a continuation of it.
So you’re renting a place and you’ve decided that you want to move out. You looked at the lease that you signed and you realize that you’re renting under a monthly periodic tenancy, and that the Residential Tenancies Act (RTA) applies to you and your landlord. What steps do you have to take now?
First, you have to give written notice. The notice must give the address of the place that you are renting, you must sign it, and you must also give the date that you will be moving out. There are organizations in Alberta that have developed written notices that you can use. You also have to serve the notice on your landlord.
The RTA says that a tenant in a monthly periodic tenancy must give one full tenancy month’s notice. If the tenant does not give enough notice to the landlord, then the written notice is still effective to end the tenancy, just not for that date. Here’s an example.
If you have a monthly periodic tenancy that begins on the 1st day of the month and ends on the last day of the month, and you give your notice on, for example, February 2 to end the tenancy on February 29, your notice would work to end the tenancy, but not for February 29. See, February 2 to February 29 is not a full tenancy month, but March 1 to March 31 is a full tenancy month. This means that if you gave your notice on February 2, your tenancy ends on March 31. You have to pay the rent for the entire notice period. The tenant must move out by 12 noon on the last day of the tenancy, unless there is an agreement between the landlord and the tenant that states otherwise.
You can talk to your landlord about making a different agreement in relation to the move out date and time and the amount of rent that is due, but your landlord does not have to negotiate with you. Sometimes, if you are a problem tenant, or if the landlord can find a new tenant that wants to move in right away, then the landlord will agree to an early end date. I once spoke to a woman who had been given multiple notices for noise violations from her landlord. She decided she wanted to move out immediately so she spoke to her landlord, and he was more than happy to have her move out right away (I’m sure he would have offered to help her pack if he thought he could have got her out a day sooner). If you can come up with an agreement with your landlord, then you should put this agreement in writing.
If you decide to just walk away and not pay rent for the notice period, then your landlord can keep some or all of your security deposit to cover the unpaid rent. Your landlord could also make an application against you (which isn’t hard, so don’t think your landlord won’t do it). Did you know that a court order in Alberta is good for ten years? That means that if your landlord gets an order against you now, s/he has ten years to collect the money from you. I know many university students out there who may not have money now, but will within ten years, and the last thing they should want is some unpaid court order out there waiting to swoop into their bank accounts and garnish next week’s mortgage payment.
Come back next week to learn about what you can do if you have a fixed term lease and you want to move out.
You can read more about ending a periodic tenancy on the Laws for Tenants in Alberta website here or in Service Alberta’s Voluntary Code of Practice here.
You can read about enforcing a court order on the Alberta Courts website here.
The Definition of a Mother
This blog post is an excerpt from Bench Press in the January/February 2012 issue of LawNow magazine. To view the magazine and subscribe please go to www.lawnow.org.
A Court of King’s Bench justice in Saskatchewan recently ruled that a woman who gave birth to a baby girl in 2009 is not the child’s mother.
The child was conceived through sperm from one partner in a same-sex marriage and an ovum from an anonymous donor. “Mary” carried the baby to term. The same sex couple and Mary asked the province’s Registrar of Vital Statistics to remove the birth mother’s name from the child’s birth certificate.
Justice Jacelyn Ann Ryan-Froslie agreed.
She wrote: “It is clear from the definition of ‘mother’ contained in the Vital Statistics Act 2009, that Mary, the gestational carrier, is Sarah’s mother for the purposes of that act as she is the woman from whom Sarah was delivered. Naming her as Sarah’s mother on the registration of live birth raises a presumption that she is also Sarah’s biological mother. In this case, I am satisfied that on a balance of probabilities, that Mary, the gestational carrier, is not Sarah’s biological mother. I am also satisfied that neither (John nor Bill) nor Mary ever intended that Mary would assume any parental rights or obligations with respect to Sarah. As such, a declaration that Mary is not Sarah’s mother is warranted.”
Movin' on up, movin' on out (Part 1)
With a new year comes a time of reflection, when people often think about where they are in their lives and where they want to be, and make decisions about how best they can get there. I’m sure that we’ve all woken up one morning, opened a bleary eye, looked around at the place we’re renting and wondered: “How did I get here? And how do I escape?” in a not-entirely-joking kind of way. Apparently, that’s what a lot of tenants were thinking about when they rolled out of bed on January 1, and many of them decided that they want to move out now; as in today, not tomorrow, not next month, but right now! Can a tenant just pack up and go? What are the laws that a tenant has to follow to end a lease, and what can happen when a tenant doesn’t follow these laws?
First, under the Residential Tenancies Act (RTA) there are two types of tenancies within Alberta. There is a periodic tenancy, which means that there is no end date stated within the lease, and the lease simply continues on indefinitely, until something happens to end it (for example, if the tenant gives notice to end the tenancy). The most common type of periodic tenancies are month-to-month tenancies. Periodic tenancies can also be week-to-week, or year-to-year.
The other kind of tenancy is called a fixed term tenancy. This means that there is an end date stated directly within the lease. The most common type of fixed term lease is a one year lease, but they can be for periods of time longer or shorter than one year. The tenancy automatically ends on the date stated in the lease. If, at the end of the fixed term, the tenant continues to rent the property but does not come up with a new agreement with the landlord, then the tenancy automatically becomes a periodic tenancy.
Each type of tenancy has different rules for how the tenancy ends. Now that I have you all aquiver with anticipation to learn about this subject, I’m going to pull a realty show move and tell you to tune in next week to find out what the rules are to end a tenancy. Insert evil laugh here.
More Information:
- Types of Leases
- Does the lease have to be in writing?
- What can be included in the lease?
- Does everyone who is living in the property have to be named on the lease?
- Can the Landlord require a tenant to provide proof of insurance?
- What happens at the end of a fixed term lease?
LawNow: Charity Law Issue
Canadians don’t just donate money to charities, they also create, oversee and staff them. These folks, especially those who run smaller charities, could use some help understanding what the law expects of them. That’s why LawNow has focused its latest issue on charity law.
Charities must transition under the new Canada Not-for-Profit Corporations Act. Our article “Five Steps to Transition: The Canada Not-For-Profit Corporations Act” clearly outlines the important steps that charities must now take to comply with the new law.
Have you ever been asked to be a board member? You may feel honored (or obligated), but LawNow’s article, “So You Want to be a Board Member? Think Twice Before You Say Yes “ can provide questions to ask and considerations to make.
Articles on charity law for sports organizations, charity guidelines for SPCAs, and conflicts of interests for board members round out this topic.
The intersection of sports and the law is explored in LawNow’s special report. “International Sport Regulation/Canadian Values: What if they Collide?” examines two high-profile sport cases that illustrate the problems that can arise when Canadian values are not reflected in international sports events. “Brain Injuries: A Shot Across the NHL’s Bow” suggests that a lawsuit about brain injuries by former NFL players should raise concerns for the NHL too.
Our columnists (or as we like to call them, “the usual suspects”) delivered excellent content this issue, covering topics such as human rights law, online law, aboriginal law, and employment law.
Several of these articles can be viewed for free at www.lawnow.org. Subscriptions start at $29.95/year.
Another bed bug story…
Well, bed bugs in rental housing has come up again, at least in the Edmonton news. There is a lot of information out there that can help you figure out if you have bed bugs, what you should do to deal with them, how you can prevent getting them in the first place, and how you can avoid passing them along to someone else.
Sandra Hamilton, a health inspector with Alberta Health Services, was interviewed on CBC and you can listen to the interview here.
The Edmonton Apartment Association has a lot of information on their website, including the Edmonton Bed Bug Guide, and a Bed Bug Info Sheet.
If you are a renter who thinks you have bed bugs in the rental premises, you can find out which Alberta Health Services, Environmental Public Health office you should contact to receive more information here.
Until next time, while it may be true that no man is an island entire among itself (yes, I have just “Donne” that), the same can’t be said about your bed…
FAQ: Who is Responsible to treat bugs in a rental property?
Exotic Pets and the Law
I really enjoy reading my colleagues blog posts! One particular post about animal imports got me thinking about a biology lesson I taught in school…
Why do we have rules for importing animals?
Many of the restrictions are created to prevent importing invasive species into Canada. Invasive species are plants or animals that originate from another part of the world but are brought into Canada on purpose or by accident. Once they establish in Canada they out compete our local species and devastate the balance of our ecosystems. For example in Ontario invasive zebra mussels set off a chain of events that led to the death of hundreds of waterfowl (Read more here)
Another reason for the restrictions is to stop the spread of disease. For example importing birds from Asia is not allowed because of the potential to spread bird flu. So I think most people would agree it’s good we have rules to protect the environment and stop the spread of disease. Are we doing enough though?
I came across an article published by the Vancouver Humane Society in 2004 titled A Disaster Ignored. The threat to human and animal health from imported exotic wildlife: a review of scientific evidence and opinion.
It was written after the Monkey Pox outbreak in the United States and advocated stricter regulations for the exotic pet industry. In 2003 several people in the US contracted monkey pox from pet prairie dogs. It was discovered that the disease originated in Gambian Pocket Rats from Africa that had been in contact with prairie dogs in the same pet store. This led Canada and the US to ban imports of African rodents.
The article criticized Canada for being reactive and not proactive and asked why African rodents were not banned earlier. Although there have been changes to some of the legislation discussed in the article, many of the concerns raised are still relevant.
You can learn more about Federal exotic pet import rules here
There are also provincial regulations that list some species as “controlled” and therefore under strict rules. The list is available here
Municipal governments may also pass bylaws regulating exotic pets. To read more about these laws, visit your municipal government’s webpage
What is a Sheriff anyway?
A few weeks ago, an Edmonton court halted proceedings in a child pornography trial because there was no provincial Sheriff available to provide security in the courtroom.
I don’t know about you, but when I hear the word “sheriff”, I think of this guy. Even if you don’t think of that particular character, you might, at least, associate that word with the police. In the United States, from which much of our television and movies come, do actually at time use the word “sheriff” to refer to a particular rank of police officer. We do not.
So, In Alberta, what exactly is a “sheriff”? Not surprisingly, as is often the case with these pesky legal definitions, there is more than one answer.
In terms of what happened at the courthouse, however, “sheriffs” are employees of the Solicitor General’s department (Government of Alberta), hired to help support provincial law enforcement agencies and to promote safe and secure communities throughout the province. For example:
- Communications Officers operate a 24-hour security control room where the status of alarm systems throughout the province are monitored, and the coordinate activities of contracted security personnel.
- Perimeter Security Sheriffs maintain safety and security for all persons within designated Government facilities (they do so by conducting security patrols or using complex security equipment, assesses and responds to breaches of security, and assists other security personnel).
- Law Courts Sheriffs provide and maintain a safe and secure setting for all persons within the province’s 75 provincial courthouses. For example, they are responsible for staffing metal detectors at courthouse entrances, providing general security, and they are supposed to be present in all criminal and family courtrooms.
- Law Court Sergeants are responsible for supervising Sheriffs, handling and transporting offenders, and providing police support at community events.
- Traffic Sheriffs provide specialized service in: collision investigation, awareness and educational presentations, warrant apprehension, traffic safety enforcement, traffic enforcement and joint force traffic safety operations with Alberta’s policing agencies.
- Traffic Sergeants supervise Sheriffs delivering enforcement, education and awareness initiatives. They also collaborate and partner with stakeholders, clients and other enforcement agencies to reduce collisions.
- Surveillance Sheriffs provide a complex and highly specialized services assisting other law enforcement agencies in surveillance activities and investigation on people of interest.
For more information on these roles you can see here, or watch this short video about Sheriffs. For more information on becoming a Sheriff, see here.
Just to be clear, however, there is another kind of Sheriff. This kind has to do with civil enforcement (a kind of debt collection).
For example: if you buy some new appliances on credit, then don’t make your payments, someone may show up at your door to take the appliances back. In relation to this sort of thing, the Office of the Sheriff oversees the civil enforcement “agencies” (companies) that do all this kind of work. The title of the person who actually does the work (like coming out and taking the appliances) is called a “bailiff”. For more information about that, see here.
Stuff I Wish I'd Known Yesterday
I realized the other day when I was talking to a landlord that I’m always telling people to write a letter. Having a problem with a noisy neighbor? Write him a letter asking him to be quiet. Having problems with a tap in your place? Write your landlord a letter, asking her to fix it. Why do I nag people about putting things in writing? Well, there are a couple of reasons, but for the most part, if you write down the concerns that you are having and suggest a way to fix things, you stand a higher chance of getting what you want done than if you’d done nothing at all. The problem that a lot of people have is that they don’t know how to write the letter in the most effective way, so I’m going to give you some pointers and then show you an example of what the letter can look like.
The kind of letter I’m writing about is generally called a ‘demand’ letter. What exactly is a demand letter? Simply put, a demand letter is a letter that you write to someone (can be a person or a business and for this post, I’m going to refer to the other side as the other ‘party’), demanding that the other party do something by certain date. Demand letters are commonly used when someone owes you money, but they can be useful in other contexts too. If you need repairs done by your landlord, you can write the landlord a demand letter. If you paid a contractor to do some work around your home, and the work wasn’t completed to your satisfaction, you can use a demand letter.
There are some things that you should keep in mind when you write a demand letter.
Good Idea Number 1
You should include certain details. You should put the name and address of the other party in the letter. You should date the letter. You should sign the letter. You should include your own contact information, so that the other party can contact you if they have questions.
Good Idea Number 2
Set out the facts that have happened up to the point of writing the letter. You should include the relevant facts in a clear and calm manner. If, for example, you are using a demand letter to collect a debt that is owed to you, the relevant facts may include the date that you loaned the money, the agreement that you had with the other party for when the money would be paid back, and, if you talked about it with the other party, what would happen if they didn’t pay you back when they were supposed to. If you talked to the other party about the debt after you loaned them the money, then you would include that information too, and any action that you or the other party has done in relation to the debt. If you have dates for when events happened, you should include them in the letter. If you have names of people that you talked to, then you should include those names.
You should not use the demand letter as a platform to vent your frustrations. Before you address the letter to the “scheming, lying jerk” who owes you money, you may want to reconsider. The demand letter could end up forming part of your case if you end up in court, so write the letter with the belief that it will end up being read by a judge. Judges don’t like it when people call other people names; judges like facts. Also, it’s the old adage of collecting more flies with honey: if you are polite and business-like, chances are the other side will respond in the same manner.
Good Idea Number 3
Set out what you think should happen. If someone owes you money, then set out how much money they owe you, and how they can pay it to you. If you are asking your landlord to deal with a noisy tenant next door, then you could suggest that the landlord speak to the tenant, or give the tenant a written warning, or a written noise complaint.
Don’t be unreasonable. If you loaned someone money, but didn’t discuss an interest rate on the loan, then don’t demand 40% interest on the debt. You might be mad at what has gone on, but it’s not up to you to punish the other party; your goal should be to put yourself back into the position that you would have been had you not loaned the money in the first place.
Good Idea Number 4
Set out when you want those actions to be taken. You should be crystal clear on when you want the other side to take action. The amount of time that you give the other side will depend on what you are asking for. Usually, if you are asking for payment of a debt, a reasonable amount of time for the other side to pay you could be between two to three weeks. You should also look at a calendar when you set these dates out, because you may not want the collection day to fall on a weekend, as most banks are not open on the weekend.
Good Idea Number 5
What are you planning on doing if the other party doesn’t take the actions that you’ve requested be taken? Are you going to take them to small claims court? Then put that in the letter. You cannot threaten to bring criminal proceedings against someone (this is called extortion and is a crime), but threatening to bring a civil action against someone is not considered to be extortion, so that’s okay. You may not be sure what you are going to do if the other person doesn’t do what you want them to, and that’s okay too. A classic line to use in those circumstances is to write that you will “begin to consider the legal remedies available.”
Good Idea Number 6
You should keep a copy of the letter, so that you have it available for your use if you end up in court. You may also want to send the letter by registered mail, so that you can prove in court that the other party received it.
Good Idea Number 7
If you have a complex situation, where you are not sure what details to include in the letter or you are not sure what steps you should be asking the other party to take, you may want to consider hiring a lawyer to write the letter for you. There are many law firms who will, for a fee, write the letter and send it for you.
So let’s take an example situation and look at what a demand letter can actually look like. Let’s say that Adam loaned Bob $2,000.00 on March 1, 2011. Bob agreed that he would pay Adam back the entire amount before June 1, 2011. Bob paid Adam $250.00 on April 15, but hasn’t given Adam any money since then. Adam talked to Bob on May 28 and asked for the rest of the money. Adam didn’t hear from Bob at all, and has not received any more money. Bob started avoiding Adam’s phone calls, and Adam gave up trying to contact Bob for a while. Adam found out that Bob just bought a new car, so Adam wants Bob to pay him back the money in full. Adam decided to write Bob a demand letter.
December 1, 2011
Bob Lastname
1234-56 Street
Edmonton, AB
T1A 2B3
To Bob Lastname:
On March 1, 2011, I loaned you $2,000.00. We agreed at that time that you would pay me back the full amount on or before June 1, 2011. On April 15, 2011, you paid me $250.00, which left you owing me $1,750.00.
We spoke on May 28, 2011, and I requested that you pay me the remaining money on or before June 1, 2011, as we had originally agreed upon on March 1. I have attempted to contact you numerous times, but I have not heard from you, nor have I received any further payments.
You owe me a total of $1,750.00. Please pay the full amount that you owe me on or before 4:00 p.m. on December 20, 2011. If I do not receive full payment on or before 4:00 p.m. on December 20, 2011, I will consider my legal options, which may include bringing a claim against you in Provincial Court.
You can contact me to make payment arrangements at 780-111-1111.
Sincerely,
Adam Lender
780-111-1111
The example of Bob and Adam deals with a loan, but there are many situations when a demand letter will be helpful. If you are involved in a landlord and tenant dispute (for example, if repairs are not being completed in the rental property), the Canadian Mortgage and Housing Corporation has a page of “Sample Letters and Worksheets” that are really helpful.
Until next time, enjoy writing those politely worded letters!