“Help! I’ve signed a fixed-term tenancy for a year and it’s three months in and I’ve had no heat for a month. Any way I can get out of this?”
“I’m in a two-year lease but now there’s violence in the home and I have to leave to protect my children. Can I break the lease?”
A fixed-term tenancy is a tenancy that lasts for a predetermined amount of time agreed upon by the tenant and the landlord. If you are in a fixed-term tenancy, you are responsible for fulfilling the terms of the tenancy agreement, including paying rent, until the end of the term.
However, sometimes people find themselves needing to leave a fixed-term tenancy early. This article explores when you can do so and how to go about doing so legally. We will also look at some situations where a fixed-term tenancy cannot be broken and what options a tenant may have in these circumstances.
Landlord’s Breach of Material Terms
The Residential Tenancy Branch (RTB) describes a material term as “a term that both parties agree is so important that the most trivial breach of that term gives the other party the right to end the agreement.” The provision of heat or power are typically considered material terms. However, what is considered a material term for one person may not be material for another. For example, if an older adult with mobility issues is living on the third floor of a building and the elevator is broken and is going to be out of service for a while, that would be a breach of that tenant’s material terms, because without the building having a functional elevator the person would never have moved into the apartment. However, for someone who is able-bodied and living on the third floor, the broken elevator may not be a material breach of their tenancy because they can take the stairs. Having a functioning elevator may not be essential to their living there or choosing to live there.
A landlord’s breach of the material terms of your rental agreement may warrant your ending a fixed-term tenancy. If you believe your landlord has breached a material term and you want to end the tenancy, there are several procedures you must follow:
- You must first inform the landlord in writing that there is a problem, and that as the tenant you believe that the problem breaches the material terms of the tenancy agreement. The letter should include your name, your contact information, the date, a detailed description of the issue, and a request that your landlord rectify the issue.
- If the landlord does not or cannot comply with your request, you can write another letter stating that you are ending the tenancy due to a “breach of material terms,” and serve it on your landlord. The notice to your landlord must include your name, the date, the address of the rental unit, the date you plan to leave the unit, and your signature.
Keep in mind that your landlord might argue that there was not a breach of material terms and may still attempt to hold you accountable for any losses they suffer as a result of your ending the tenancy early.
Fleeing Family Violence/Going into Long-Term Care
In December 2016, the legislature introduced amendments to the Residential Tenancy Act (RTA) allowing people in a limited set of circumstances to end a fixed-term tenancy early without financial penalty. One of the amendments affects people fleeing from family violence who need to leave their rental unit to protect themselves or their children (as defined by the Family Law Act). The other amendment affects those who have been accepted into a long-term care facility or who have been assessed as requiring long term care. If you find yourself in either of these situations and need to end your tenancy, here are the steps you must follow:
The first step is to fill out the Ending Fixed-Term Tenancy Confirmation Statement form, available on the RTB website. You will need a third party verifier to confirm that you are fleeing from family violence or that you have been accepted into, or have been assessed as needing to enter, a long term care facility, as the case may be. Some examples of reputable third party verifiers approved by the Residential Tenancy Branch to confirm that someone is fleeing from family violence (see section 39 of the RTA Regulation for the full list) are:
- outreach worker
- police officer who is a member of the provincial or municipal force
- medical physician, nurse practitioner, registered nurse, registered counsellor
- registered social worker
Some examples of reputable third party sources approved by the RTB to confirm that someone has been accepted into or has been assessed as needing to enter a long term care facility (see section 40 of the RTA Regulation for the full list) are:
- medical physician
- manager of a long term care facility
- registered occupational therapist
The next step is to serve your landlord with a one-month notice to end tenancy and your completed copy of Ending Fixed-Term Tenancy Confirmation Statement, according to procedures approved by the RTB. Your tenancy will then officially end on the last day of the following calendar month. You are required to pay rent until this time; however, you have no obligation to remain in the unit until then.
Please note that your landlord cannot dispute your reason for providing a one-month notice to end tenancy. The landlord can, however, dispute the third party source who filled out the form if they have good reason to believe the person is not an authorized third party source.
When a Fixed-Term Tenancy Can’t Be Broken
There may be other situations where you might want to end a fixed-term tenancy early, such as getting a job out of town, or suddenly needing a bigger place because of a growing family. While in these circumstances you cannot end a tenancy early using the methods outlined above, there may be other legal options available to you, depending on the terms of your tenancy agreement:
- You can negotiate with your landlord a mutual agreement to end tenancy on an agreed-upon date.
- You can negotiate an assignment, and transfer your tenancy agreement, along with all of its rights and obligations, to a new tenant.
- You can sublet your unit to a sub-tenant.
Each of these requires that you follow specific legal procedures. Please consult the RTB (250-387-1602) or TAPS (250-361-3521) for more information about these options.
If you break a fixed-term tenancy agreement early for reasons that are not sanctioned by the Residential Tenancy Act, or fail to follow legislated procedures, you may be accountable for the landlord’s loss of rental income. You may also be responsible for paying damages set out in your tenancy agreement.