Order of Possession

 Order of Possession - Application by Cooperative

s. 3(1)(c), The Residential Tenancies Act
s. 18, 25(1)(c), Residential Tenancies Regulation
s. 244(1),(2),(3), 280(2-5), 280(8), 281, 282, The Cooperatives Act
 

Appeal tribunal: a panel of 3 or 5 people appointed by the Registrar of Cooperatives to hear an appeal on a notice of termination from a member.

Application for an Order of Possession: an application a cooperative completes asking the Branch to enforce a Notice of Termination and order a member to move.

Hearing: a meeting where an application is decided. The cooperative and the member present information to an officer.

Housing cooperative: a cooperative that provides residential housing to its members.

Mediation: a confidential process that the Branch uses to help people discuss problems, think of possible solutions and reach their own agreement. Mediation can take place in meetings, conference calls or separate telephone conversations.

Member: a person having the right to occupy a housing unit because of a membership interest in a housing cooperative.

Notice of Termination: a written notice, by the directors of a housing cooperative, to terminate membership in the cooperative.

Order of Possession: a written Order, issued by the Branch, that enforces a valid notice of termination. The member must move out of a rental unit on or before a set date.

Registrar: the Registrar of Cooperatives

Special resolution: for the purpose of this policy, a special resolution is one passed by the directors of a housing cooperative to end a membership. The cooperative’s articles may show the majority needed to pass a special resolution. If there isn’t any information in the articles, then a two-thirds majority is required.
 

A cooperative may apply to the Branch for an Order of Possession if a member:

• doesn’t move after receiving notice of an unconditional special resolution terminating their membership from the directors of the cooperative and doesn’t appeal the notice to the Registrar; or
   

• doesn’t move after an appeal tribunal confirms a notice of termination.

When applying for an Order of Possession, a cooperative must use the application form the Branch provides. The Branch does not accept applications on any other forms.

A cooperative may apply for an Order of Possession at the nearest Branch office. The Branch holds hearings in Winnipeg, Brandon and Thompson as well as in other judicial centres in the province. The Branch decides where the hearing will be held. This decision is based on the location of the rental unit and the addresses of the parties involved. The Branch usually schedules a hearing in the judicial centre closest to the rental unit. A cooperative may ask to have their hearing outside of the nearest judicial centre. The Branch will accommodate a request for a different location if it appears fair to both the cooperative and the member.

When a cooperative applies for an Order of Possession, they must pay the Branch a non-refundable filing fee.

When applying for an Order of Possession, a cooperative must give the Branch either:

• a copy of the appeal tribunal decision, if the member appealed to the Registrar; or
   

• a copy of the notice sent to the member telling them of the meeting on the special resolution and a copy of the unconditional special resolution terminating the membership.

Some cooperatives issue special resolutions stating that a person’s membership will be terminated if they don’t meet certain conditions. For example: If the member doesn’t pay their outstanding rent by a specific date, their membership will be terminated. The Cooperatives Act does not grant a cooperative a right to terminate a membership conditionally. The Branch will not grant an Order of Possession on a conditional special resolution.

When a cooperative applies for an Order of Possession, the Branch considers whether the cooperative followed the requirements of The Cooperatives Act for terminating a membership.

However, the Branch does not have the authority to consider whether the directors had a valid reason or grounds under the cooperative’s by-law for issuing the notice of termination.

The Branch also does not have the authority to offer mediation to the cooperative or the member.

The Branch makes decisions on applications for Orders of Possession at a hearing. After the hearing, the Branch will issue a decision granting or denying the Order of Possession. If the cooperative or member want to appeal the Branch’s decision, they may apply to the Court of Appeal for leave. They must file their application for leave within 14 days of receiving the Branch’s decision.

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The Branch has the authority to award compensation for a breach of The Residential Tenancies Act, The Life Leases Act or a tenancy agreement.

However, the Branch does not have the authority to order a member to pay compensation to a cooperative.

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If a member or a cooperative has any questions about the appeal process under The Cooperatives Act, they should contact:

Financial Institutions Regulations Branch
1115 – 405 Broadway
Winnipeg, MB R3C 3L6
(204) 945-4466
 

Overview

A cooperative applies for an Order of Possession and the Branch schedules a hearing. Based on the information provided at the hearing, an officer makes a decision and issues an Order.

Steps

1. A cooperative applies for an Order of Possession and pays the filing fee.
    

2. The Branch schedules a hearing and gives the cooperative a copy of the application for their own records and a copy for the member. The application includes information on the date and time of the hearing. The cooperative must give the member notice of the hearing at least five days before the hearing date.
    

3. If the cooperative can’t give the notice of the hearing to the member, they may apply in writing for substitutional service and/or a new hearing date.
    

4. An officer follows the steps for hearings. (See Hearings in Section 11)
    

5. The hearing officer generally issues a decision within two working days of the hearing. Before issuing the decision, the officer may confirm that the member has not filed an appeal with the Registrar. The decision is sent by courier or priority post to the cooperative and the member.
    

6. If either the cooperative or the member appeals the Branch’s Order, the Order is stayed. This means the Branch’s Order is no longer in effect and cannot be enforced in the Court of Queen’s Bench.
    

Notice of Appeal Housing Cooperative, Form 19, The Cooperatives Act
 

For information on enforcing an Order of Possession, see this section.
For information on amending an Order, see section 11.
For details on hearings, see Section 11.
 

March, 2004

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