Update as of July 30, 2020
Since our publication in mid July 2020, the BC government has issued further clarification on how residential tenancies and evictions will work. Ministerial Order no. 449 was approved and ordered on July 30, 2020.
Firstly, we remain in a state of emergency in BC. This will continue until it is cancelled or terminated on a specific date.
Key Changes or Highlights
Landlords are now required to enter into a written agreement with the tenant regarding how the tenant is to repay the rent in arrears, otherwise referred to as the repayment plan. The repayment plan must contain the following terms:
- repayment period starts on the date the repayment plan is given by the landlord to the tenant and ends on July 10, 2021;
- payment of the overdue rent must be in equal instalments;
- each instalment must be paid on the same date that rent is due under the tenancy agreement;
- date the first instalment must be paid must be at least 30 days after the date the repayment plan is given by the landlord to the tenant;
- the repayment plan must be in writing;
- the total amount of the affected rent that is overdue must be stated in the plan; and,
- it must specify when the first payment date is.
The landlord must provide the repayment plan to the tenant, as specified in paragraph 1 above.
If a tenant fails to pay rent as set out in the repayment plan, the landlord can serve a Notice to End Tenancy on the tenant.
Here’s a strange anomaly in the Ministerial Order, however. Under paragraph 1.02(4), the landlord “may cancel a prior agreement by giving the tenant a repayment plan for the full amount of the overdue affected rent.” Then, under paragraph 1.05(3), the landlord is prohibited from giving a Notice to End Tenancy if the repayment plan is cancelled pursuant to paragraph 1.02(4).
What does this mean? If the landlord cancels the repayment plan by requiring the tenant to pay the rent in arrears in full, the landlord cannot end the tenancy for breaching the repayment plan.
Prohibited Terminations
Paragraph 1.06(1) prohibits the landlord from giving a Notice to End Tenancy for the following reasons:
- one or more payments of the affected rent are late;
- the lawful right or interest of the landlord is the right or interest to receive the affected rent;
- the affected rent being unpaid is what put the landlord’s property at significant risk;
- the material term with which the tenant failed to comply is the payment of the affected rent;
- the order of the director with which the tenant has not complied is a monetary order for the affected rent.
According to paragraph 1.06(2), the above does not apply to tenant’s failure to pay under a repayment plan. This means that while the landlord cannot give a Notice to End Tenancy on the grounds set out under paragraph 1.06(1), the landlord CAN give a Notice to End Tenancy to a tenant who fails to pay under the repayment plan.
Clarification Needed!
What leads to more confusion is that on the Ministry’s website, it states the following:
The Province plans to lift the ban on issuing evictions for non-payment of rent ahead of September 1, 2020.
- Landlords will be able to issue a Notice to End Tenancy for unpaid rent or utilities if the tenant fails to pay full rent September 1, 2020
A tenant cannot be issued a Notice to End Tenancy for unpaid rent during the emergency unless they have defaulted on their repayment plan.
- A tenant that owes rent from before March 18, 2020 can be issued a Notice to End Tenancy for unpaid rent
According to the above excerpt, landlords will be able to end a tenancy for non-payment of rent starting September 1, 2020 or sooner subject to “the province plans to lift the ban … ahead of September 1, 2020”. So, can you terminate a tenancy for failure to pay rent during the state of emergency, in which we currently remain?
Summary
It appears that despite the proposed plans to “lift the ban … ahead of September 1, 2020”, nothing has been ordered. Right now (as of August 2, 2020), as a landlord, you will not be able to terminate a tenancy unless the tenant breaches the terms of a repayment plan. Non payment of rent or late payment of rent during the state of emergency are not grounds to terminate tenancy. Only non-payment under a repayment plan can be the basis of terminating a tenancy. We will need to watch what the Minister will order regarding the September 1, 2020 deadline.
I only cover the payment of rent under this article. There are grounds to terminate tenancy for other causes, such as damage to property, jeopardizing the safety and security of other occupants, etc.
If you are a landlord and have rent in arrears, you should get a repayment plan in place and serve the repayment plan on the tenant as soon as possible. If you are a tenant, you need to make sure that the repayment plan, the method of service and terms of the plan are in compliance with the statute and regulations.
If you have questions, please feel free to contact us.
Written by Susan Y. Kim, August 2, 2020