First set of eviction notices

Tenant Notice - Insurance

The landlord provided this tenant notice by e-mail on August 11, 2014. This notice was never posted on tenants’ doors and therefore was not served in accordance with Section 88 or Section 90 of the Residential Tenancy Act. If served properly, it would have been considered received after 3 days on August 14. Tenants would have had another 3 days to provide proof of insurance and comply with the request.

What happened?

On August 14, the landlord issued 1-month eviction notices to 9 tenants in 6 units (or 8 tenants, if you don’t count the husband of one tenant who was asked by the landlord to evict her husband of 4 years, because the landlord considers him an illegal occupant — and then the landlord went ahead and issued her another eviction notice for that anyway). All tenants @1168Pendrell have submitted proof of insurance to the landlord. The landlord has refused to retract his eviction notices.

Aside: There is one other tenant who is visually-impaired who was issued an eviction notice, even though the tenant has tenant insurance. When the tenant phoned the landlord to discuss why the eviction notice was issued when they had already provided proof, the tenant was told to take it up with the RTB. 

Nothing in the legislation prevents a landlord from issuing multiple, serial eviction notices.  That’s what happened @1168Pendrell where a tenant received 3 different eviction notices in an 8-day period. Once a landlord issues an eviction notice, the tenant must dispute it through the Residential Tenancy Branch or the tenant is deemed to accept the eviction and the landlord’s claims.

Some might call this a legislatively-allowed bullying tactic by a landlord. What do you think? 

With respect to the landlord’s public claim that tenants are not meeting the obligations of their lease, the Residential Tenancy Branch Policy Guideline #8 – Unconscionable and Material Terms states:

Material Terms

A material term is a term that the parties both agree is so important that the most trivial breach of that term gives the other party the right to end the agreement.

To determine the materiality of a term during a dispute resolution hearing, the Residential Tenancy Branch will focus upon the importance of the term in the overall scheme of the tenancy agreement, as opposed to the consequences of the breach. It falls to the person relying on the term to present evidence and argument supporting the proposition that the term was a material term.

The question of whether or not a term is material is determined by the facts and circumstances surrounding the creation of the tenancy agreement in question. It is possible that the same term may be material in one agreement and not material in another. Simply because the parties have put in the agreement that one or more terms are material is not decisive. During a dispute resolution proceeding, the Residential Tenancy Branch will look at the true intention of the parties in determining whether or not the clause is material.

To end a tenancy agreement for breach of a material term the party alleging a breach – whether landlord or tenant – must inform the other party in writing:

  • that there is a problem;
  • that they believe the problem is a breach of a material term of the tenancy agreement;
  • that the problem must be fixed by a deadline included in the letter, and that the deadline be reasonable; and
  • that if the problem is not fixed by the deadline, the party will end the tenancy.

Where a party gives written notice ending a tenancy agreement on the basis that the other has breached a material term of the tenancy agreement, and a dispute arises as a result of this action, the party alleging the breach bears the burden of proof. A party might not be found in breach of a material term if unaware of the problem.”

Let’s review the landlord’s August 11 e-mail notice regarding tenant insurance:

  1. Did the landlord serve the tenant notice dated August 11 in accordance with Sections 88 and 90 of the Residential Tenancy Act(example: a letter was posted on a tenant’s door)
  2. According to Policy Guideline #8, in the tenant notice dated August 11:
    • Did the landlord state there is a problem? (example: “I don’t have a copy of your tenant insurance“)
    • Did the landlord state this was a breach of a material term? (example: “It is my opinion that not having tenant insurance is a breach of a material term of your tenancy agreement“)
    • Did the landlord state the problem must be fixed by a deadline and was the deadline reasonable? (example: “If you do not have tenant insurance, please obtain coverage and submit proof within the next two weeks“)
    • Did the landlord state that if the problem is not fixed by the deadline, he will end the tenancy (example: “If you do not obtain tenant insurance by ________ date, I will serve you with a notice to end your tenancy“)

Final thoughts

Why does the landlord insist that tenants have insurance? There is an interesting online review about Komfort Properties, another Anoop Majithia company. The details are very similar to an RTB dispute resolution decision where a landlord underinsured their property and tried to make a tenant liable for the $5,000 strata deductible:

http://www.housing.gov.bc.ca/rtb/decisions/2012/04/Decision1576_042012.pdf

Can the landlord confirm this dispute did not involve Komfort Properties?

Tenants would appreciate a heads up if they should be verifying hearing dates directly with the RTB, just in case the landlord schedules hearings on dates that tenants have said they are unavailable. (PS: that’s a horrible thing if you did that intentionally)

If the landlord considers tenant insurance such an important and material term, why did he offer new leases with fixed-terms (4-6 months) with a non-negotiable clause that the tenants MUST VACATE (in other words, self-evict) in exchange to be relieved of “unusual terms” such as having tenant insurance?

Will the landlord publicly confirm that 4 tenants @1168Pendrell signed his new lease with fixed-terms and vacate clauses, without any tenant insurance requirement?

The landlord issued a signed statement on his website on September 11 (since taken down, but posted in our previous post):

Plan A Real Estate Services does not condone illegal business practices and we conduct our practices in full accordance with the Real Estate Services Act of BC and the BC Residential Tenancy Act.”

We want to hear from you: do you think the landlord and his company are operating in full accordance with the Residential Tenancy Act?

Other legislative and regulatory questions:

  • Why isn’t the landlord required to prove to the RTB that he has acted in full accordance with the Act BEFORE issuing an eviction notice? Wouldn’t this step provide the check-and-balance necessary to prevent a landlord from issuing targeted, serial eviction notices? Doesn’t it make more sense for the landlord to be required to apply and obtain approval to issue an eviction notice that could later be disputed by the tenant?
  • If a landlord has a legitimate claim, why doesn’t the landlord pay the $50 application fee that he can recover from the tenant when he is successful in his claim?
  • While it is up to the landlord to prove his claim in arbitration, if a tenant does not file a dispute within 10 days, the tenant is out on the street. Why is the burden on the tenant to prove their innocence, otherwise by default they are forced out onto the streets?
  • What stops landlords from going building to building, mass-evicting, renovicting, greed-evicting and bullying tenants out of their homes? This gives new meaning to evict first and hope the tenants (don’t go to the media and) ask questions later.
  • Wouldn’t requiring landlords to apply to evict first provide RTB with its own evidence to issue administrative penalties that are so rarely administered against landlords?
  • Why are tenants required to subject themselves to multiple, persistent attacks over a period of time before having sufficient evidence to prove a claim and request for compensation and for penalties to be levied against a landlord?
  • How can tenants locate other tenants subjected to the same abuses by the same landlord? All publicly available dispute resolution decisions are anonymous. Landlords often have multiple numbered companies making it difficult for a tenant or the RTB to prove patterns of behaviour. When a landlord gets into trouble or receives bad reviews online, they simply register a new company and keep up with their old habits.

Bottom line: landlords count on tenants not knowing or asserting their rights, and this is the quick-win for many landlords who bully their tenants out of their homes.

Landlord compliance with the Residential Tenancy Act?

The landlord posted the following statement on his website http://plana.pro yesterday

Anoop's Statement

We respect that the landlord holds the opinion that he and his businesses are fully compliant with the Residential Tenancy Act. 

We offer the following as one example of many to consider. We will be posting more examples over the next several days.

Notice to Enter - August 14, 2014

This notice of entry was signed by Anoop Majithia, managing broker of Plan A Real Estate Services Ltd. and served on tenants’ doors on Thursday, August 14, 2014. The first set of notices of eviction for @1168Pendrell were issued that same day, likely posted on tenants’ doors at the same time.

Any emphasis in the following is added for convenience.

Section 90 of the Residential Tenancy Act states:

When documents are considered to have been received

90 A document given or served in accordance with section 88 [how to give or serve documents generally] or 89 [special rules for certain documents] is deemed to be received as follows:

(a) if given or served by mail, on the 5th day after it is mailed;

(b) if given or served by fax, on the 3rd day after it is faxed;

(c) if given or served by attaching a copy of the document to a door or other place, on the 3rd day after it is attached;

(d) if given or served by leaving a copy of the document in a mail box or mail slot, on the 3rd day after it is left.

Section 29 of the Residential Tenancy Act states:

Landlord’s right to enter rental unit restricted

29 (1) A landlord must not enter a rental unit that is subject to a tenancy agreement for any purpose unless one of the following applies:

(a) the tenant gives permission at the time of the entry or not more than 30 days before the entry;

(b) at least 24 hours and not more than 30 days before the entry, the landlord gives the tenant written notice that includes the following information:

(i) the purpose for entering, which must be reasonable;

(ii) the date and the time of the entry, which must be between 8 a.m. and 9 p.m. unless the tenant otherwise agrees;

(c) the landlord provides housekeeping or related services under the terms of a written tenancy agreement and the entry is for that purpose and in accordance with those terms;

(d) the landlord has an order of the director authorizing the entry;

(e) the tenant has abandoned the rental unit;

(f) an emergency exists and the entry is necessary to protect life or property.

(2) A landlord may inspect a rental unit monthly in accordance with subsection (1) (b).

The Residential Tenancy Branch Policy Guideline #7 states:

“The notice must be served in accordance with the Residential Tenancy Act. If the landlord leaves the notice in the mailbox or mail slot, or attaches it to the door or other conspicuous place on the rental unit, the notice is not deemed to be received until 3 days after posting or placing it in the mailbox or slot. If the notice is sent by mail, the notice is not deemed received until 5 days after mailing. If the notice is sent by fax, the notice is not deemed received until 3 days after faxing it. This additional time must be taken into consideration by the landlord when advising of the date and time of entry.

Other organizations appear to understand this concept. From the Canada Mortgage and Housing Corporation:

“Permitting Landlord Entry to the Premises (Times and Reasons)

Landlords must give a minimum 24-hour up to a maximum of 30 days written notice stating the time and purpose of entry, unless either the tenant consents or there is an emergency. Non-emergency entry is allowed between 8 a.m. and 9 p.m. unless the tenant agrees to another time. If notice is not served in person, it must be taped on the door or served in the mailbox and 3 days must pass before the landlord enters the premises. The Landlord may enter if the RTB issues an order to enter. The tenant may refuse entry if either no reason is given or it is unreasonable according to the RTB.”

Isn’t this something that is taught in Landlord101?

Can someone remind me how many years of rental property management experience does the landlord and his property manager have?

Now imagine for a moment: you come home from work Thursday night at 10 pm and find this notice of entry on your door. You are confused because you’ve just had two landlord suite inspections in the past 7 days. Then you find out that your landlord has served 6 of your neighbours eviction notices that same day and he has posted on your door that he is coming into your apartment in less than 24 hours.

Wouldn’t you like to be at home when the landlord enters for a third suite inspection in the first 11 days that the landlord took possession of the building?

Wouldn’t you be worried if the purpose of the landlord’s “inspection” is to find some reason to evict you?

What if you can’t get time off work to be present when your landlord is inside your suite?

What if you are so distracted at work the next day you can’t get anything done because you are wondering what your landlord is doing inside your apartment?