A Landlord’s Use Notice and the Evidence of Occupation

The Dispute

A couple who owned a three-bedroom apartment decided to take it back so their adult son could live there, and they gave their tenants notice. The family said the son moved in two days after the tenants left, but the tenants had moved one block away, could see the windows, and became convinced the apartment was empty. Seven months later it went on the market described as vacant, and the tenants asked for a year’s rent.

The Parties’ Positions

The tenants applied to British Columbia’s Residential Tenancy Branch under section 51(2) of the Residential Tenancy Act. That section puts the landlord to proof that the stated purpose was accomplished within a reasonable period, and that the unit was used for that purpose for at least six months. They relied on two text messages the son had sent in the autumn following their departure, in which he stated that his daughter had not yet moved in, and on a sale listing describing the unit as vacant with quick possession possible. A witness who attended the open house described empty cupboards, no bed and a single sofa.

The landlords accepted that the notice had been given for occupation by their child. They maintained that the child moved in two days after the tenancy ended and lived there for close to eight months, which exceeded the six months the section requires. They relied on the child’s utility bills covering the period claimed, and on medical records showing that one of them had suffered a heart attack weeks after the move, after which the family decided the child should return to the parents’ home. They attributed the emptied state of the unit at the open house to advice from their realtor to remove any impression of tenants, and the text messages to a wish to keep the child’s private life from a former tenant.

The Outcome

The arbitrator found the text messages inconsistent with the claim that the child had moved in when the landlords said, and did not accept the explanation for sending them. The utility bills carried the landlords no further, since a bill reads the same whether consumption falls near the start or the end of a billing period. The arbitrator was not satisfied on the balance of probabilities that the child had occupied the unit for a residential purpose across the period claimed, nothing beyond testimony having fixed the move-in and move-out dates. The landlords advanced no extenuating circumstances under section 51(3), and the order requires payment of the equivalent of twelve months’ rent together with the tenants’ filing fee, landing after the apartment had already been sold. The landlords carry a liability equal to a year’s rent on a property they no longer own.

Key Lessons for Residential Landlords and Their Tenants

• Build the record of occupation while it is happening. The onus under section 51(2) sits on the landlord, and the arbitrator here looked for elevator bookings, moving receipts and communication records that would have fixed the dates the family gave in testimony.
• Confirm that the intended occupant is a close family member before the notice is given. Section 49(1) defines a close family member as a parent, spouse or child of the landlord or of the landlord’s spouse, and a grandchild falls outside it.
• Expect contemporaneous messages to be weighed against sworn testimony. Two short texts sent months before the application were what the arbitrator found inconsistent with the family’s account, and the explanation offered for them did not survive the hearing.
• Treat a sale listing as evidence in a tenancy dispute. A listing describing the unit as vacant with quick possession possible, and an open house a prospective buyer can attend and describe, are available to a tenant testing whether the stated purpose was carried out.

The outcome of this matter turned on the evidence available to establish occupation of the unit. A similar dispute may resolve differently.

ATAC LAW acts for residential landlords and for tenants in proceedings before the Residential Tenancy Branch and on judicial review of its decisions.