Apply to Court for Possession of Property
A landlord can apply to court for an order for possession of the property if for any reason the tenant or others living in the property have not left after being served with notice, or after a tenancy has ended.
As a tenant you might be served with notice to leave rented premises. The notice could be for a number of reasons, as follows:
If you do not move out by the date given in the notice the landlord can apply to court for an order for possession of the property. The notice to end the tenancy must have been valid in order for an application for possession to be successful.
| For example, in the case of a 24-hour notice your landlord must apply for termination and possession within 10 days of the notice being served. |
A landlord can also apply for possession of property where a fixed term has ended and the tenant has not moved out.
Procedure in Applying for Possession
An order for possession of the property can be requested from Provincial Court or the Court of Queen’s Bench. The landlord must file an affidavit giving full details of the termination of the tenancy or occupation and the reason the tenant has left, if known. The affidavit and notice of application must be appropriately served on you as the tenant, at least three days before the hearing.
If the landlord can only serve you within less than three days from the hearing date, he will need to get special permission from the court.
You have the right to file an affidavit at court to state why you feel you should not leave the property. A judge will make the decision whether to grant the order for possession or not.
If an order for possession is granted it will direct you or any other person living in the property to give up possession to the landlord by a specific date. The order will state that if it is not obeyed by the specified date, a writ of possession will be issued without further notice.
A landlord can also ask the court for damages resulting from your failure to leave the premises:
- general damages, i.e. a general sum for your failure to leave the property
- special damages, i.e. specifically the amount the landlord might owe to a new tenant who was going to rent the premises. For the special damages to be established, the landlord has to show that you could reasonably have known that the landlord might owe this amount because you were not leaving the property
Eviction if Tenant Does Not Leave Premises
If you do not move out after the order for possession is given, the order will state that a Writ of Possession can be issued automatically. The landlord can then instruct a civil enforcement agency to evict you. If the original order for possession was obtained from Provincial Court, the order must be filed in the Court of Queen’s Bench before a civil enforcement agency can be instructed to take any action.
Civil enforcement agencies are regulated by the Sheriffs' Office. The Sheriff's Office appoints the bailiffs who carry out the enforcement procedures. The landlord will have to provide the agency with all relevant documents including the order for possession, the tenancy agreement, and the fee required. The eviction can only occur between 6 a.m. and 10 p.m. The enforcement agency might have the police present during an eviction if there is a fear of a breach of the peace. The agency may also contact social services if there is a possibility that a tenant will be homeless as a result of the eviction.
May 2005