The Facts:

• A female resident assistant building manager (the assistant) asked a male tenant repeatedly on several occasions to stop drinking alcohol and flicking cigarettes off the balcony of his apartment.
• One night at approximately 11:00pm, while on duty, as the assistant approached a staircase in the common area, the tenant punched her in the face with his fist and kicked her as she lay on the floor then left her there.  It happened quickly and there were no witnesses.
• After the assistant gathered herself and returned to her apartment, she immediately contacted the building manager and reported what had occurred.  She then contacted the police who told her that they were unable to respond straight away.
• The police responded the following mid-morning and unfortunately interviewed the wrong tenant.  The assistant had, in her traumatized state, given the wrong apartment number for the culprit.  The police discovered the error and interviewed the subject tenant.  He denied assaulting her and accused the assistant of lying.
• After the police interviewed the manager, they concluded that they did not have adequate reason to press charges and that the situation was one where the parties issued back-and-forth accusations, the details on the part of each person’s account were inconsistent and that there was a lack of evidence.  On the basis of the police not laying criminal charges, the assistant decided not to finish a statement she had started to write.
• Meanwhile, the building manager consulted with me on what the appropriate action should be.  I recommended a 24 Hour Notice of Termination be issued on grounds of assault and served within maximum 2 hours and that the assistant file a thorough statement with the police the same day.  Although the assistant said that she felt sore, but did not have overt bruising in the morning, I recommended that the assistant consult a physician the same day and keep daily record of how she felt physically and mentally and returned to the physician if necessary.
• After the building manager became aware of the police’s decision not to press criminal charges, she was ready to claim defeat and doubted the right to issue a 24 Hour Notice of Termination.  My recommendation was to proceed and to try to do so in person, as long as she was not at risk, rather than posting the notice. The various scenarios of how the tenant may react and what actions the building manager would have to take accordingly were discussed.

The Remedy:

The building manager served the 24 Hour Notice of Termination and a 24 Hour Notice of Entry (for the purpose of following up when the 24 hours have expired) promptly on the tenant.  The personal contact paid off and the tenant agreed without argument that it would be best if he vacated.  Armed with a plan of action, the building manager took the opportunity on the spot to get the tenant to commit to a move out date in writing and to acknowledge that the 24 Hour Notice to Terminate would be enforced should he not vacate.

The Outcome:

The police’s decision does not invalidate the tenant’s actions and certainly does not diminish the incident.  The assault happened and it took place in the common area against another resident, regardless of her position as assistant manager.  The Residential Tenancies Act of Alberta provides for dealing with this type of behaviour.  The weight of evidence and testimony is taken into account and the outcome is determined on the balance of probability – in other words, how likely or possible is it that the assault may very well have taken place.

The timeline and sequence of events is of the essence in this case:  The fact that the assistant informed the resident building manager in a timely manner, the building manager therefor becoming an indirect witness and the fact that the incident was reported to the police in a timely manner and a subsequent statement was filed.

The important factor to remember is that a landlord has an obligation to take appropriate lawful action against a tenant who puts another resident or anyone in danger.  The primary concern was, if the landlord did not take action, that the assistant, who is also a tenant, could take legal action against the landlord for failure to provide a safe environment and one of peaceful enjoyment of the property.

The secondary concern was if the tenant assaulted again and there is serious injury as a result, that the resident harmed, could have a strong case to make that the landlord did not take steps to prevent assault from re-occurring by making attempts to remove the perpetrator from the premises in the first instance.

In the event this particular tenant should commit another violation before vacating or fails to vacate, there should be enough accumulated evidence to secure a successful eviction.

Landlords are given the 24 Hour Notice of Termination for assault or damage as one of many tools to manage residential tenancies. Use this tool diligently, but without apprehension.  The worst that could happen is that it is not complied with or is challenged, in which case eviction would be decided by the court.

For a free sample and tutorial notes on completion of a 24 Hour Notice of Termination and a 24 Hour Notice of Entry visit www.evictionservices.ca

Note:  Every situation is unique and the actions taken in this particular matter may not be applicable in other cases involving assault. Recommendations made do not constitute legal advice and the content of this article does not serve as substitute for legal advice.The content of this article is written in the context and legal framework of the Residential Tenancies Act of Alberta, Canada.

Kim Kahts specializes in Alberta evictions and residential tenancy disputes. Follow her on Twitter: Kim Kahts LandlordRX @LandlordRX.
Visit Associated Eviction Services for services, practical solutions and tips for Landlords on disputes, tenant eviction, enforcement and free samples of Alberta residential tenancy forms and notices for landlords.

Reasons a Landlord should favour a fixed term and shun the month-to-month term

Generally fixed term tenancies are perceived to give the Landlord the guarantee of a tenant for the entire term and a predictable revenue stream. Not so!

Although in a fixed term tenancy Tenants have the benefit of having a secured place of residence for a secured period of time at a fixed rental rate, many Tenants do not hesitate to exit the agreement or abandon the tenancy.

Seven benefits of fixed term tenancies*:

With a definite start date and a definite end date it remains the Landlord’s prerogative at expiry to terminate the tenancy, or to propose renewal or change in the tenancy term.

The Landlord has the option to offer a term as short as one month at a time.

The Residential Tenancies Act of Alberta stipulates that notice to terminate is not required in order to terminate a fixed term tenancy.

Where a tenancy is disruptive, the remaining time left in a fixed term may bring natural and timely resolve, or at least leaves limited time the problem tenancy has to be endured.

Fixed terms give the Landlord measured time to get-to-know the Tenant and build trust.

Having fixed terms of various lengths with selected tenants can greatly assist in managing revenue during high vacancy rates in a property portfolio.

Fixed terms allow the Landlord who is considering selling or claiming back the property for own/family use, to plan accordingly.

Month-to-month periodic tenancies may be less cumbersome to manage, but are difficult for Landlords to exit from and could get very messy if not dissolved properly. A good way to view fixed term tenancies versus month-to-month tenancies is to compare it to having a solid pre-nuptial in place so that a divorce more likely comes to a somewhat cordial end.

How to manage fixed term tenancies effectively and exiting month-to-month tenancy agreements will be addressed in coming articles.

Note:*This article considers fixed term tenancies as opposed to monthly periodic tenancies. The benefits are simplified and the value of the benefits is achieved subject to meeting certain tenancy management criteria. The Residential Tenancies Act of Alberta interprets a fixed term to mean a tenancy under a residential tenancy agreement for a term that ends on a day specified in the agreement.
The content of this article is written in the context and legal framework of the Residential Tenancies Act of Alberta, Canada.

Kim Kahts specializes in Alberta evictions and residential tenancy disputes. Follow her on Twitter: Kim Kahts LandlordRX @LandlordRX.
Visit Associated Eviction Services for services, practical solutions and tips for Landlords on disputes, tenant eviction, enforcement and free samples of Alberta residential tenancy forms and notices for landlords.

WHEN IS IT APPROPRIATE FOR A LANDLORD TO REFUSE RENT FROM A TENANT?

The tenancy term, current and desired relationship between landlord and tenant, amount of arrears, loss of time to collect monies owed, and loss of time to gain possession of premises are all factors that play a role in making a decision to refuse rent from a tenant.

What if a fixed term tenancy is ending and the tenant attempts to pay the landlord?

When a tenancy is approaching the end of a fixed term and the landlord has no intention of continuing the tenancy beyond the term, monies, other than arrears, offered by the tenant must not be accepted. Doing so, may be interpreted as an intention to continue the tenancy beyond the fixed term.

Tenants are very aware of this and often attempt to combine an overpayment with payment of arrears before or after the term has expired. To correct this, the landlord should immediately return the overpayment by traceable method of payment, with a cover letter stating the end of the term, no-intention to renew, the breakdown of the amount accepted and amount returned and the date the tenant is expected to vacate. If the tenant continues to stay, the tenant is in breach of the Residential Tenancies Act of Alberta by over-holding on a fixed term.

What if the tenant attempts to make payments when the landlord has already applied to a court for financial remedy and/or termination of tenancy?

The tenant’s willingness to rectify the situation gets tested when the tenant is encouraged to attend a hearing where the next substantial payment could be made and a conditional order (also called a Cinderella Order) may be obtained that would stipulate payments, dates and methods of payment. Alternatively, the landlord may ask the court to order the tenant to pay and/or vacate.

What if the tenant offers payment when the landlord has made it clear that the tenancy is unwanted?

The landlord may use the opportunity to negotiate a settlement in exchange for the tenant to vacate. This must be done with extreme caution and in writing with very clear terms of understanding and strict measurable conditions. When tenants are unable to live up to their commitment, they often will use the failed attempt to accuse the landlord of refusal to accept rent.

The content of this article is written in the context and legal framework of the Residential Tenancies Act of Alberta, Canada.

Kim Kahts specializes in Alberta evictions and residential tenancy disputes. Follow her on Twitter: Kim Kahts LandlordRX @LandlordRX. Visit Associated Eviction Services for services, practical solutions and tips for Landlords on disputes, tenant eviction, enforcement and free samples of Alberta residential tenancy forms and notices for landlords.

BARTER = trade by exchange of goods

The Landlord:

• § “I liked him (the Tenant) enough to rent my home to him, so I trusted him.”
• § “He (the Tenant) said he was handy and did not mind helping out.”
• § “According to the Tenancy Application he (the Tenant) was after all in the trade and self-employed.”
• § “He (the Tenant) seemed like a nice guy and needed a “break” in the rent to bounce back financially after a nasty divorce.”
• § It saved me from having to find someone to do the repair and besides, the Tenant was willing to do the work gradually, which suited my cash-flow shortage.

When Landlords plan renovations or repairs to their very valuable assets, not necessarily extensive or costly, most seem to do their due diligence to research, compare and qualify before retaining the suitable tradesperson/contractor. Yet, so many abandon that due diligence when their Tenants somehow persuade them to accept verbal terms and undertakings at face value.

With a professional contractor the cautious Landlord would enter into a written and signed contract that would contain components and provisions such as the names of the respective parties, the start and end date, description of obligations, value of work or materials, financial consideration, terms of completion and payment, termination of services, guarantee of workmanship, insurance and legal recourse in the event of dispute.

After a long day’s labour, and often working a six-day week, it takes an energetic, disciplined and motivated person to come home and spend down-time or family-time doing, perhaps, what he does all day. It is easy to develop an attitude of indifference toward fulfillment of promises, since the reward is not received in tangible currency, there is no formal deadline, no monitoring and no defined repercussion if the work is not done or completed.

Often the work and time involved were underestimated and the ability to do it, overestimated. The Tenant may find himself in a position where his family’s welfare is in jeopardy by being unable to fulfill the commitment and ultimately not paying the rent.

In a recent case that was brought in front of the Alberta Residential Tenancy Dispute Service, the validity of the fixed-term was called into question, since the Tenant argued that a month-to-month tenancy was implied because the value of the assigned renovations exceeded the value of the total rent that would have been due up until he end of the fixed term. In almost all dispute cases, the arguments become even more creative and more convoluted.

When there is dissatisfaction, dispute arises and quickly escalates to he-said-she-said accusations. The Landlord often is looked upon as taking advantage of or exploiting the Tenant. Even though some form of written agreement may exist between the parties, legal consideration will always be applied in the context of landlord/tenant rights and obligations stipulated under the Residential Tenancies Act, not Contract Law.

For the Landlord, not only is there a loss of rental revenue, but most often loss of materials and damage to the property, or deterioration of the property or materials due to incompleteness or neglect. To the detriment of the Landlord the possibility always exists that the Tenant may misuse intimate knowledge of the condition of the property to his own benefit and to serve his rights as a Tenant first.

Other than for the sake of convenience or compassion, there is no reason to blend Landlord-Tenant relationships with Landlord-Contractor relationships.

If, at any time during the tenancy and especially during the initial interview at showing the rental property, there is even the slightest hint in the language used by the Tenant that may be interpreted or left assumed condoning that the Tenant will do odd or small jobs, it is vital that a very direct reply is issued making it clear that it is the Landlord’s policy not to have tenants carry out maintenance or repairs typically done by qualified tradespersons.

The Tenant’s obligations as far as replacing light bulbs, furnace filters, draining outside taps in preparation for winter, knowing where shut-off valves and electrical switchboards are etc. must clearly be distinguished from maintenance or repairs not normally expected from a Tenant for example electrical, heating and ventilation, plumbing, roof or foundation, drywall or door and lock repairs.

Where the Tenant insists on taking some initiative in minor repairs, for example repairing the slide bar of a counter drawer, the Landlord should at the very least be made aware that it was done and it should be inspected.

In instances where the Tenant has been left to carry out repairs or renovations, the line for dealing with emergencies also often becomes blurred. In, for example, a situation where a sewer backs up or a furnace breaks down, the Tenant might report it to the Landlord, but the Landlord might assume that the Tenant is capable of dealing with it, or assigns it with the intention of reimbursing the Tenant. Beware! It is ultimately the responsibility of the Landlord to deal with such situations competently, timely and until they are resolved, regardless of the capabilities of the Tenant.

Desired upgrades or changes on the property by the Tenant, such as painting the walls a different colour or replacing existing light fixtures with preferred light fixtures, should be explicitly authorized in writing and the terms thoroughly detailed including as it relates to colour restoration or fixtures that must remain.

While a tenancy and property repairs or renovations are in motion and there is harmony, it is easy to dismiss these seemingly small or insignificant, sometimes growing verbal agreements as something that is understood equally by the parties. However, when conflict arises, the bottomless depths of bartering could not only swallow your harmonious relationship with your tenant, but will almost certainly swallow your time, your wallet and in extreme cases, potentially even the value of your asset.

The content of this article is written in the context and legal framework of the Residential Tenancies Act of Alberta, Canada.

Kim Kahts specializes in Alberta evictions and residential tenancy disputes. Follow her on Twitter: Kim Kahts LandlordRX @LandlordRX. Visit Associated Eviction Services for services, practical solutions and tips for Landlords on disputes, tenant eviction, enforcement and free samples of Alberta residential tenancy forms and notices for landlords.

Since the launch of the Alberta Residential Tenancy Dispute Resolution Service (RTDRS) in 2006, an initiative designed to provide a more informal and less expensive means of settling residential tenancy dispute matters, the noticeable increased frequency in applications and/or counter-applications for “Abatement of Rent” partly suggests that this is often a feasible option for Tenants who have a need for relatively fast cash in exchange for very little effort and very little, sometimes zero financial cost.

More often than not, not only is the Tenant owing rent, but also commonly owes utility, cell phone, cable providers etc. This may or may not become obvious to the Landlord. It is of course easier to ignore service providers and move on to another. However, it also seems very easy to launch allegations, at times out of nowhere, very often unexpected and unsubstantiated, usually resulting in benefit or no benefit to the Tenant, while resulting in huge cost and further loss to the Landlord.

The Landlord is most often left feeling deceived, gullible, victimized, vulnerable and powerless.

The most common allegations and claims involve pest infestation, Black mould, sewage backup, flood, loss of use of appliances, loss of personal property, unfinished renovations and “improvements” to the premises made by the Tenants. The claim values range from two months’ rent to as much as $15,000.

Recently encountered claims and disputes range from denial that monthly periodic termination notices had been served, to lead water pipe poisoning, to emotional distress, to damage to personal property by a third party.

A case that took several months to resolve, involved a Tenant in a single-family basement suite, who when the roommate absconded, fell into rent arrears and who resorted to obvious sabotage by planting dead cockroaches (not understanding the breeding patterns of cockroaches) and of course contacted Alberta Health Services (previously Capital Health). After the Landlord gained possession of the premises through the RTDRS, the counter/cross-applications were referred to Provincial Court for trial, preceded by mandatory mediation. In short, both parties gained no monetary compensation. The Tenant was represented by highly experienced legal counsel, made available gratis courtesy of tax payers and the Landlord had to retain paid counsel to assist in preparation for at least self-representation.

Time teaches that Tenant behaviour is somewhat predictable and small signs spell what is to come, whether it is a minor comment passed in the heat of the moment or a major outburst filled with accusations. Rental arrears are mostly the trigger and places the Tenant is a position where dignity has to be defended at all cost and where actions, no matter how radical, fabricated or not, have to be justified. The Tenant assumes the mindset and role of victim. Tenants with pre-meditated ill intentions will create incidents, create opportunities or latch onto random occurrences to further their agenda.

Typical early behaviour signs that indicate possible conflict that may lead to abatement claims are avoidance; unauthorized lock change; obstruction of entry of Landlord or representatives; mild belligerence, soft accusations; mild disruptive activity; mild manipulation.

Typical advanced behaviour signs that indicate possible conflict that may lead to abatement claims are accusing Landlord or representatives of illegal entry; false claims to authorities e.g. assault, pest infestation or mould; deliberate damage or sabotage, formulated accusations; severe belligerence; physical aggression; failure to correct behaviour or denial; severe disruptive activity, severe manipulation, intimidation, blatant defiance.

Attempts at blackmailing the Landlord by setting ultimatums and unreasonable demands may precede a legal claim. Enter combat-mode and expose the blackmail attempts.

Escape blackmail or opportunity for exploitation:

Communicate         Correspond          Respond

Predict             Anticipate              Plan

• § Have strictly a business relationship with your Tenant from the start and avoid small-talk or confiding
• § Deal initially face-to-face to truly gauge insinuation, emotion and intention
• § Respond appropriately, decisively, aggressively and persistently in writing until the matter is entirely resolved
• § Appoint one designate to negotiate
• § Plan a strategy
• § Avoid verbal agreements and confirm discussions in writing
• § Take appropriate measured action that suits the defense required
• § Respond in a timely manner
• § Where feasible attempt to end tenancy term by mutual agreement early in conflict

Show diligence:

• § Adopt and rely on property management policies – e.g. appliance service/repair and replacement, routine maintenance, routine inspection for pests
• § Monitor activity e.g. inspect premises, interview other tenants and neighbours
• § Be pro-active by getting appropriate authorities involved a.s.a.p.
• § Cooperate with authorities and obtain written reports
• § Retain objective professionals and obtain reports, retain invoices
• § Keep Tenant informed of progress and relevant outcome in writing
• § Refrain from discussion of maintenance history or deficiencies, resolved or unresolved with tenants or neighbours – they may apply their understanding or misconceptions of what transpired, misjudge the current condition of the property or the effect of previous damage to property and may attempt to make it relevant or current
• § Contractors must discuss deficiencies, maintenance, and assessments only with the Landlord
• § Deliver important and sensitive notices in person and by registered mail and where possible, even ahead of the required time
• § Multiple work-orders over a period of time don’t necessarily show that a property is in disrepair. If documented properly with information containing the exact complaint, the action taken by a qualified person and follow-up written conclusions all in a timely manner, it will, together with past maintenance history and the move-in inspection report prove otherwise
• § Know and understand the value of the compensation claimed – e.g. replacement value of material goods
• § Do all you possibly can to obey the Alberta Residential Tenancies Act and aim to methodically fulfill all Landlord Covenants under Section 16.

Some Tenants will never be satisfied and will become more proficient in the process of exploiting Landlords and will simply move from one Landlord to the next. It is mostly so clear when a malicious claim is launched with the aim to extort. Landlords must guard against subtle or blunt encouragement of Tenants to make counter-applications during any court hearing processes (that is supposed to be fair and unbiased), since the danger is that it leaves an impression with Tenants that it is easy money and guaranteed success.

The consolation in extortion as a means of exercising vindictiveness or financial gain is that those Tenants who choose to engage in it are still in minority, that the attempts could be defeated and that some persons in position of authority have enough understanding of typical behaviour to void such ill-conceived claims.

The content of this article is written in the context and legal framework of the Residential Tenancies Act of Alberta, Canada.

Kim Kahts specializes in Alberta evictions and residential tenancy disputes. Follow her on Twitter: Kim Kahts LandlordRX @LandlordRX. Visit Associated Eviction Services for services, practical solutions and tips for Landlords on disputes, tenant eviction, enforcement and free samples of Alberta residential tenancy forms and notices for landlords.