Landlord's Use Evictions in BC: What You Need to Prove

Overview

 

A landlord's use eviction allows a landlord to end a tenancy so they, or an eligible (defined as a “close”) family member, can occupy the rental unit. It is one of the most litigated areas in tenancy law, and one where landlords who are unsuccessful in their attempt to regain possession over their property face significant delays, expenses, and uncertainty in being able to do so.

​

​

The Legal Basis

 

Landlord's use evictions are governed by section 49 of the Residential Tenancy Act (RTA). A landlord must issue a Three Month Notice to End Tenancy for Landlord's Use of Property in the correct form, which must be generated by the Residential Tenancy Branch (RTB), properly served, containing the correct information..

 

RTB Policy Guidelines 2A and 2B provide the Residential Tenancy Branch's interpretive framework for these disputes. Familiarity with these guidelines is essential for anyone pursuing or defending this type of notice, as it is oft-cited by arbitrators and produced as part of any related judicial review proceedings by the Attorney General's office.

​

​

Who Can the Landlord Evict For?

 

The eligible occupants are referred to as "close family members" in the RTA and strictly defined. The landlord may evict to allow the following to occupy the unit:

• The landlord themselves

• The landlord's spouse or common-law partner

• A child or parent of the landlord or the landlord's spouse

• A purchaser of the property (under a separate provision)

 

There are further restrictions when the property consists of five (5) or more rental units that are owned by the same landlord, or if the landlord is a corporation, but not a family corporation that would require all voting shares to be owned by an individual or that individual and close family members. 

​

What is important is to recognize that the common understanding of being a "close" family member is different than a legal interpretation of a "close family member". While a sibling may be "close", they would not qualify under the RTA's definition.

​​

​

The Good Faith Requirement

​

The single most important element is good faith. The RTB requires that the landlord's stated reason for eviction be genuine, not a pretext for removing a tenant for other reasons such as wanting to re-rent at a higher rate, redeveloping the unit, wanting to avoid repairs, or simply disliking the tenant.

​

Arbitrators examine the landlord's stated intention carefully, oftentimes looking back in the tenancy to see the parties' past conduct. Evidence that is commonly scrutinized includes:

• Whether the landlord actually needs the unit (do they have other available housing?)

• The timing of the eviction relative to lease renewal dates or rent increase cycles

• Communications between the landlord and tenant prior to the notice

• Whether the landlord subsequently re-rented the unit or listed it at a higher price

• The landlord's personal and financial circumstances

 

Caselaw has further refined the definition of "good faith". Courts have found that having a good faith intention means not having an ulterior motive. A motivation to occupy a unit in whole, or in part, by a dishonest purpose is generally found to fail the good faith requirement. 

​

​

The 12-Month Compensation Exposure

​

Under section 51 of the RTA, if a landlord issues a landlord's use notice but fails to occupy the unit within a reasonable time, or vacates it without having genuinely occupied it, the tenant is entitled to claim 12 months' rent in compensation.

This is a significant financial exposure. A landlord who evicts a tenant from a $2,500/month unit in bad faith, or who simply changes their mind and re-rents, faces a potential $30,000 liability.

​

The onus is on the landlord to prove genuine occupancy, or circumstances that were genuinely beyond their reasonable control that prevented them from occupying with the law. Landlords should retain documentation of their move-in, including utility transfers, change of address records, and any other evidence of actual occupation. It's also a good idea for Landlords moving back into their own house to introduce themselves to their neighbours.

 

​

Common Mistakes Landlords Make

​

• Using the wrong form or serving the notice incorrectly, which can invalidate the entire notice.

• Using a landlord's use notice as a strategy to remove a problem tenant, without a genuine intention to occupy.

• Re-renting the unit or listing it for sale shortly after the tenant vacates. one of the clearest indicators of bad faith.

• Failing to document their own move-in and occupation, leaving them unable to meet the evidentiary burden if challenged.

 

While there is no perfect way to prepare for a potential hearing, there are numerous ways to demonstrate occupancy of a property, even if the occupancy is as a secondary or vacation home. What is ultimately important is that the purpose for which the tenancy was ended was ultimately accomplished by the Landlord.

​

​

If a Tenant Disputes the Notice

 

Tenants have the right to dispute a landlord's use notice by filing a dispute resolution application with the RTB. When they do, the onus is on the landlord (or purchaser) that issued the notice to demonstrate their good faith intention. The hearing will focus primarily on whether the landlord's stated intention was genuine, or if there was an ulterior motive that may be causing the tenancy to end.

​

Landlords should be prepared to testify and provide supporting documentation. Credibility and internal consistency are often determinative in these hearings. Legal representation is advisable for any contested landlord's use matter involving significant rent values, especially as it oftentimes serves as a jumping board for a follow-up hearing once occupancy is regained. This take place generally several months after a Landlord has moved into their property, as a Tenant is entitled to file a claim pursuant to section 51 to put the Landlord to proof of their compliance with the law. 

​

Our firm ensures that you are prepared for both potential hearings, and that we can help you navigate the process in a confident manner.

 

​

Speak With a Tenancy Lawyer

​

Bright Law acts exclusively in BC tenancy law. If your matter requires legal advice, we are available to help.