How a landlord can legally evict you in British Columbia
By Hannah Mang-Wooley
Occasionally at TAPS we receive a phone call from a tenant in a highly stressful situation. Someone is at their door telling them they need to leave their house immediately and that the locks will be changed once they’ve gone. The tenant often wants to know if this is legal and, if so, what their options are. The truth is, if the person at the door is a certified bailiff, this is allowed. However, sometimes the person is a landlord, landlord’s agent, or even somebody pretending to be a bailiff. The proper procedure for evicting someone is clear, but is not always understood or respected by landlords. This article will lay out the proper procedure for an eviction, and what your rights are once a bailiff arrives.
I’ve just received an eviction notice. What happens now?
If a landlord decides they want to evict you, they need to serve you with a proper notice to end residential tenancy (often called an eviction notice), telling you that you must leave on a particular date. There are a number of different responses that you might have to an eviction notice, but I will just focus on one scenario. Say that you disagree with the eviction and dispute it before the deadline stated on the eviction notice. You will then go through the dispute resolution process (also called arbitration) at the Residential Tenancy Branch (RTB). If the arbitrator decides in favour of the landlord, the landlord will be given what is called an “Order of Possession”. This is a document that affirms who has legal possession of the rental unit, in this case, the landlord. The landlord needs to serve the Order of Possession on you, and you will need to move out within 48 hours of receiving it.
The landlord has just given me an Order of Possession which says I need to be out of my suite within 48 hours. What happens if I don’t leave? Will my landlord kick me out and change the locks?
It is true that you are supposed to move out 48 hours after receiving the Order, but if you fail to do so, your landlord can’t legally force you out. You will be considered an “overholding tenant” and there are specific rules that your landlord has to follow in order to make you leave. At this point, it is illegal for the landlord to force you out, remove your belongings, or change the locks. This is covered by Section 57(2) of theResidential Tenancy Act (RTA), which states, “The landlord must not take actual possession of a rental unit that is occupied by an overholding tenant unless the landlord has a writ of possession issued under the Supreme Court Civil Rules”.
What is a “Writ of Possession”?
This is where things get a bit complicated, but bear with me! If you refuse to leave the rental unit after you are served an Order of Possession, the landlord must still follow a number of steps to make you leave. First of all, they need to check with the RTB to see if you have filed for Review Consideration. This is when the tenant believes the arbitrator has made a serious miscalculation by siding with the landlord and requests that the case be looked at again (the standard for a Review Consideration is very high and is not the same as disagreeing with the arbitrator’s decision and wanting another arbitrator to hear the case). If you have not applied for Review Consideration, the landlord can take the Order of Possession to the Supreme Court of BC to request a Writ of Possession. While this sounds like a really big deal, the process of obtaining a Writ of Possession is mainly administrative and can happen quite quickly. The landlord just has to provide a sworn written statement (an affidavit) to the court to say that they followed the proper process outlined above. Once a landlord has a Writ of Possession, they can hire a bailiff to enforce the eviction.
What is a bailiff and what do they do?
Bailiffs are the only people who are allowed to enforce an eviction by removing you and your belongings from a rental unit and changing the locks. Bailiff companies have to be contracted under the Ministry of the Attorney General, and there are only two of these companies that operate on Vancouver Island: Consolidated Civil Enforcement BC Ltd., and Canadian Western Civil Enforcement. Be aware that sometimes people are hired by landlords to try and pressure tenants to leave, and some of these people may even impersonate bailiffs. If someone is at your door claiming to be a bailiff, ask to see their identification. If they aren’t from one of these two companies, then they are not a bailiff and they have no power to make you leave.
Does the bailiff let me know beforehand that they are coming to my house?
No, they do not have to provide you with notice that they are coming. If you have received an Order of Possession and a Writ of Possession, you can expect that a bailiff may arrive at your house at any time. If you are in this situation, it can be a good idea to be at your house as much as possible and have your important items and documents gathered together to make the process less stressful when the bailiff arrives. Bailiffs can remove your belongings and change the locks regardless of whether you are present. If you think a bailiff may be coming, and you have to be away from your home, try to have someone there while you’re out.
I’ve heard that bailiffs sometimes sell people’s belongings. Is that correct?
Yes. The landlord has to pay the cost of hiring a bailiff, and their services are expensive, usually between $1200 and $1500. Bailiffs have the ability to remove and sell your possessions in order to recover these costs. From a legal perspective, you need to be aware that if a landlord has to use a bailiff to make you leave and your belongings won’t cover the costs, they may file a monetary claim with the RTB and you could be held responsible for paying the remainder of the bailiff fee.
Will the bailiff remove and sellallmy belongings?
No. Some of your belongings are what is called “exempt”, which means that the bailiff can’t sell them even if they are valuable. These exemptions are: necessary clothing, medical and dental aids, $4000 worth of household furnishings and appliances, a vehicle worth up to $5000, and tools or other items that you require for your work, worth up to $10,000.
What happens to my exempt belongings?
If you are there when the bailiff first shows up, they are supposed to give you the chance to claim your exempt items. If you are not at home when the bailiff comes, then all of your valuable items will be taken to storage and the rest of your possessions will be left on the curb. This is where it is a good idea to have someone at your house who knows the situation, even if you have to go out. While that person cannot stop the bailiff from removing your things, they can at least look after anything that might end up on the curb.
What sort of items does the bailiff leave on the curb?
Any belongings the bailiff deems to be of low resale value are often left on the curb or lawn. Most clothing, kitchen items, and furniture that can’t be resold, like beds or couches, would end up on the curb, whereas things like expensive electronics, motor vehicles, valuable jewellery and high-end furniture would be taken by the bailiff and put into storage.
How do I get my exempt belongings out of storage?
The bailiff will leave a notice informing you that your items have been seized. If this happens, it is important that you contact the listed bailiff company right away, because you only have two days to claim any exemptions. If you miss the two-day deadline, you lose the ability to claim anything as exempt.
Will I have to pay storage fees to get my belongings back?
Yes. If you have valuable items that were taken to storage and you claim them as exempt, you will likely have to pay the storage fees in order to access them.
As you can see, the process of a legal eviction is a long one with many steps. Additionally, bailiffs have substantial powers and any situation involving a bailiff is sure to be extremely stressful and potentially expensive. If your landlord is following proper procedure, there are a number of steps before the bailiff comes. It really is best to move out before a bailiff gets involved, if at all possible.
Any eviction that doesn’t follow the steps laid out in this article is illegal. We will go over some improper eviction scenarios and what you can do if you are evicted illegally in an upcoming issue ofTaproot.
If you are at any point in an eviction process and you need help, please contact a tenant advocate at TAPS at 250-361-3521.