The Residential Tenancies Act is fairly comprehensive, and considers circumstances where a tenant carries out an illegal act or illegal business in the rental unit. Here’s what you should know.
What is considered an illegal act by the tenant
There are several conditions that a tenant’s act would need to meet to be characterized as illegal:
- An illegal act cannot be trivial or purely technical. For example, losing an access card to underground parking cannot be considered an illegal act: it is both trivial and purely technical.
- An illegal act must be related to the tenancy and the rental unit: it must be such that it harms the unit or significantly interferes with the life and enjoyment of other residents on the landlord. Accordingly, if, for example, the tenant was charged with an offence of careless driving while driving home from work, while the act is illegal, it cannot be used as a ground for eviction. On the other hand, if the tenant turned his/her apartment into a carpenter’s workshop (runs an illegal business), this may create a ground for eviction.
- If a tenant’s act is illegal under the Residential Tenancies Act, such as non-payment of rent, damaging the unit, etc, the tenant must be evicted on the ground of violating that particular provision. Eviction for committing an illegal act is for circumstances where the tenant has done something illegal that affects the tenancy, but is not discussed in the Residential Tenancies Act as a separate grounds for eviction.
- The tenant can be evicted for an illegal act done by his/her guest or occupant, not just illegal acts the tenant has personally done.
How to evict a tenant for committing an illegal act
As always, the process is set out by the Residential Tenancies Act, and the first step is a serving a tenant with the appropriate eviction date. The termination date varies based on the type of illegal act that was committed.
Under the Residential Tenancies Act a tenant can be served with the notice to terminate the tenancy based on damages to the rental unit, interference with reasonable enjoyment of the residential complex by other tenants or landlord, and/or an overcrowded apartment. The Act allows the tenant to avoid eviction based on these grounds if he/she fixes the situation and eliminate the ground for eviction. However, if the same ground emerges once again within 6 months period after the first notice, the landlord can serve the tenant with a notice to terminate tenancy based on the illegal act in Form N6. In this case the term of the notice can be 14 days. The tenant cannot stay even he/she eliminate this ground for eviction.
If an illegal act committed by the tenant includes production of an illegal drug, trafficking an illegal drug or possession of an illegal drug for the purpose of trafficking, the term of the eviction notice can be 10 days. Sometimes a landlord receives the information that his/her tenant is a drug addict. This fact alone is not a sufficient ground for eviction. It must be specifically proven on the balance of probabilities proven that the tenant produces or involved in trafficking of an illegal grounds.
The next step is filing an application with the Landlord and Tenant Board to evict the tenant for committing an illegal act. The application can be filed immediately after the notice to terminate the tenancy on this ground is given to the tenant. However, it cannot be filed later than 30 days after the date, which is set on the notice a termination date. The Landlord and Tenant Board schedules a day for the hearing of the application upon receiving the landlord’s application. Preparation and conducting a hearing is the part, which represent more difficulty than all previous steps. Burden of proof of the illegal act lays on the landlord. Though it should be proven on the balance of probabilities (the standard which is lower than the one set for the criminal procedure, where the standard of proof is “beyond reasonable doubt”), the thorough preparation for the hearing is a good idea. All kind of evidence, including witness statement, photographs and documentary evidence should be carefully collected and properly presented.
Please don’t hesitate to contact us for a free assessment of your tenant’s case.