What Often Happens at Hearings
I sit as an observer at the Landlord and Tenant Board. I often do this when waiting for one of our firm’s cases.
Today’s hearing blocks were for matters of arrears of rent. On rent arrears days, landlords often try to do ‘self-help’. That is, I see many of them struggle, getting frustrated with the process and hurriedly filling out forms. Despite their best efforts, the hearing officer often turns them away. Many things can go wrong in an application process. When this happens, a landlord can be denied their eviction and lose even more money.
Most adjudicators are well meaning and attempt to ensure that parties before them get heard. Today, the adjudicator at the Board spent most of his time explaining to the landlords what they did wrong. He advised them how to correct it and why it is necessary to do things in a certain way. I found him to be kind and gentle in his approach, although those appearing before him likely felt on edge. His main point is that some errors can be fatal.
Common Fatal Errors in Your Eviction Application
Your Initial Notice to the Tenant is the Most Vital Step in Your Case
Errors can occur in different stages of the eviction process:
First, there is the original notice. The notice is the most important part of your eviction process. It is important that your notice to your tenant be filled out correctly. Many landlords want to retain us to represent them at the hearing, but upon reviewing their notices, I immediately see a problem. The math is added incorrectly. Allegations are poorly spelled out and are not specific enough to meet the requirements of Ball v Metro Capital. Specific infractions of the Residential Tenancies Act are not identified. It is not enough to know what box to check off, but why.
Using the Correct Termination Date
Second, the timing may be wrong. It makes a difference for the termination date, depending on how the notice is delivered to the tenant. Even one less day than required, the notice can be void. The law allows you to file an application with the Board after a certain number of days. However, if the tenant stopped doing the offending act or paid all of their rent by the termination date in the notice, you cannot apply to the Board. Many landlords have experienced this, but still want to evict their tenants anyways. They often ask me if there are other ways to do this. Sadly, no (unless the rent falls again into arrears or the tenant’s offending behaviour starts again).
Do Not Try to Use the N12 or N13 Unless You Really Mean It
Third, the notice may be in bad faith. Are you really going to move into that rental unit, or move a family member there? You may be aware there has been a crackdown of sorts on issuing N12 notices for personal use. If you tell your tenant you are going to be moving in, you better be doing so, or there can be heavy penalties including a fine from the Board. Seek legal advice if this becomes an issue in your case. It is important to do this right, so if this is in your plans, your legal advisor can ensure you will be able to do this.
Know When and How to Fill Out the Application
Fourth, mistakes can be made in the application. If you are claiming arrears, there has to be clear connection between the amount stated on the notice and the amount on the application. Don’t worry if your hearing is scheduled for the following month. You can update the Board at the time you appear before them. A common error is that landlords forget to bring a completed L1/L9 Update Form to the Hearing, or they complete them wrong. This form is an important part of your evidence and your eviction will not be carried out without a properly completed form.
Fifth, if you are granted an eviction and your tenant has not moved out, you can only enforce it through employing the Sheriff at your local courthouse. At this point, we cannot use private bailiffs for residential evictions. The Sheriff’s office will give you a time and date when he/she will be at the property to carry out the eviction. You are advised to bring a locksmith and to secure the premises after the tenants are led out of the unit.
The Importance of Seeking Legal Advice
Because of the large numbers of landlords attempting to appear before the Board on their own, and having their evictions denied, it is important that they seek legal help. The Board may appear to be easy to navigate on your own, but many have found issues along the way. Invictus Legal LLP has an active team of paralegals that can guide you through the process to ensure you maintain full control of your property and minimize your losses.