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.