Where to Begin…
Prior to serving such a notice, the landlord must obtain all necessary permits and approvals required by law, and intend in good faith, to carry out the demolition. The Four Month Notice to End Tenancy specifically requires landlords to list all of the permits and approvals they obtained, the date of issuance, the name of the issuer, a description of the permit or approval, and the permit number. Landlords are additionally required to describe the work they plan to do respecting the demolition. One missed permit or approval can mean the end for this Notice to End Tenancy if it is subsequently disputed by a tenant.
The Necessary Ingredients
Obtaining a demolition permit for a rental property may invariably require gathering other permits and approvals. The notice form notes that the landlord must have all permits and approvals required by law before they give a tenant said notice. It further notes that permits and approvals required by law can include demolition, building, or electrical permits issued by a municipal or provincial authority, a change in zoning required by a municipality to convert the rental unit to a non-residential use and/or a permit or license required to use it for that purpose. Local governments may also have their own notice and compensation timelines, which are often called “tenant relocation policies” so it is recommended that landlords confirm whether there are any additional requirements that must be met on top of what the Residential Tenancy Act requires. Other permits that may be required include a hazardous building material report/permit, a salvage and abatement permit, a development/building permit (if the demolition is part of a new construction project) and/or specific site servicing permits (sewer/water). The permits required will largely depend on the municipality that issues the demolition permit.
Landlords are only required to obtain all necessary permits and approvals that can be obtained while the rental property remains tenanted. If, for example, a demolition permit cannot be obtained until the rental property is vacant, all steps that can be taken to obtain the demolition permit should be taken and documented to demonstrate that the only steps left to obtain same is vacant possession of the rental property. Additionally, if a municipality which the rental property is located in does not issue a building permit until after the rental unit is demolished, then a building permit cannot be obtained at the time the notice is issued. RTB Policy Guideline 2B provides further guidance in that it confirms that the permits or approvals required before issuing a notice must cover the extent and nature of work that requires vacancy of the rental unit(s) or the planned conversion. What this means is that a landlord does not need to show that they have every permit or approval required for the full scope of the proposed work or change.
A Tenant’s Rights
Tenants have 30 days to dispute the Notice once they have been properly served. Landlords should document how service was carried out and should complete a proof of service form. If the tenant does not apply to dispute the notice within 30 days of receiving it, the tenant is presumed to accept that the tenancy is ending and must move out by the effective date on the notice.
How Much is this Going to Cost Me?
Landlords who serve a Four Month Notice to End Tenancy for Demolition or Conversion (Form RTB-29) must compensate tenants an amount equal to one month’s rent or they may allow the tenant to withhold their last month’s rent instead of being paid compensation.
A Steep Penalty
Landlords must have a good faith intention to follow through with the purpose for which the notice was served. Landlords who fail to do so are at risk of a steep 12-month penalty if they do not take steps toward the purpose for which the notice was given within a reasonable period (not defined) after the effective date of the notice.
With that being said, a landlord may be excused from paying the 12-month penalty if there are extenuating circumstances that prevented the landlord from accomplishing the purpose for which the notice was served.
Given the steep penalty for failing to follow through with the purpose for which a notice was served, it is advisable that landlords obtain legal advice before serving such a notice. On the other hand, if you are a tenant that has received a Four Month Notice to End Tenancy for Demolition or Conversion that you do not believe was issued in good faith, it is advisable that you obtain legal advice to determine what your rights are.
For further assistance with residential tenancy matters, contact Andrea E. Fammartino, or a member of our Residential Tenancy Group.
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