The Low Threshold for a Landlord’s Writ of Possession Claim

The Dispute

A tenant leased space in a commercial building to run a restaurant, and its two principals personally guaranteed the lease. After receiving repeated complaints about cleanliness and code compliance, the landlord sent several default notices and eventually terminated the lease, giving the tenant ten days to leave. When the tenant did not leave, the landlord had the locks changed, and the tenant’s principals broke back into the premises the same day and kept the restaurant open.

The Parties’ Positions

The landlord petitioned the Supreme Court of British Columbia for a writ of possession under sections 18 to 21 of the Commercial Tenancy Act, the summary procedure by which a landlord recovers a leased commercial premises from a tenant who wrongfully refuses to give it up. The landlord relied on the two-stage framework the Court of Appeal set out in Ocean Park Towers, under which a threshold hearing asks only whether the landlord has demonstrated a triable issue before a later hearing determines the parties’ actual rights. On the evidence of its re-inspections, the landlord submitted that the tenant remained in breach of the lease notwithstanding three successive notices of default, and it sought a court-ordered writ after the tenant broke back into the premises once the landlord had changed the locks.

The tenant and its guarantors resisted the application on the ground that the landlord had not strictly complied with every procedural requirement of the Commercial Tenancy Act governing notice and demand for possession, though they did not identify a defect the court found material to the threshold question. Their more pressing request was for additional time: counsel for the tenant asked the court for twenty-one days to compile the material needed to answer the landlord’s application at the second-stage hearing.

The Court’s Decision

The court held that the landlord had demonstrated a prima facie case for possession and had satisfied the requirements of the threshold hearing, so the application proceeded to a full hearing on the merits. It gave effect to the tenant’s request for twenty-one days to prepare by fixing the second-stage hearing several weeks out, and reserved the costs of the first hearing to be determined together with that later hearing. For the tenant and its guarantors, the practical consequence was that the underlying dispute over the lease breaches and the right to possession remained unresolved, and the restaurant continued operating from the premises while that second hearing was pending.

Key Lessons for Commercial Tenants and Commercial Landlords

• Preserve dated inspection records before issuing a default notice. A stage-one hearing does not weigh conflicting evidence or resolve credibility, so repeated, dated inspections are usually enough to demonstrate the triable issue the threshold stage requires.
• Treat a lockout as the start of the process, not its end. A tenant who forces its way back into the premises does not end the dispute, and the landlord will generally still need a court-ordered writ to recover possession.
• Raise a genuine timing need directly, not as a general compliance complaint. Here, a broad complaint about statutory compliance did not stop the matter from proceeding, while a specific request for twenty-one days to prepare was accommodated.
• Expect a personal guarantee to expose the guarantor directly, not only to a later rent claim. The landlord named both individual guarantors of the lease, not only the corporate tenant, as respondents in the writ of possession application.

The outcome of this application turned on the landlord’s documented inspection history and the timing accommodated for the tenant’s response. A similar dispute may resolve differently.

ATAC LAW advises commercial landlords and tenants on lease defaults, terminations and writ of possession proceedings under the Commercial Tenancy Act.

Linting Zhang acted for the tenant and its guarantors in this matter. Linting Zhang, Associate Lawyer