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A landlord may:
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give a tenant a notice to move on a certain date and then
apply for an Order of Possession if the tenant doesn’t move;
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give a tenant a Notice of Termination and the Application
for an Order of Possession at the same time; or
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give a tenant notice to move on a certain date. If the
tenant says they’re not going to move, the landlord can apply
for an Order of Possession before the date in the Notice of
Termination.
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When applying for an Order of Possession, a
landlord must use the application form the Branch provides. The
Branch does not accept applications on any other forms.
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When a landlord applies for an Order of
Possession, they must show which months’ rent the tenant owes and
the amount owing. The landlord must also give the Branch a copy of
the notice of termination. If the landlord wants an Order of
Possession because of habitual late payment, the landlord must also
mention this on the application.
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The landlord may also make a claim for rent
arrears, damage or other compensation.
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A landlord 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 address
of the landlord and tenant. The Branch usually schedules a hearing
in the judicial centre closest to the rental unit. A landlord 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 landlord and the tenant.
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When a landlord applies for an Order of
Possession, they must pay the Branch a non-refundable
filing fee.
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If a tenant offers to pay the rent and the filing
fee after the landlord applies for the Order of Possession, the
landlord can:
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take the rent and filing fee and tell the tenant immediately,
in writing, that they still have to move. The landlord can also
ask the Branch to grant the Order of Possession since the tenant
did not pay their rent on time. In this case, the Branch will only
grant an Order of Possession if the tenant has been habitually
late in paying the rent.
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If a tenant pays the rent after the landlord
applies for an Order of Possession, but doesn’t pay the filing fee,
the Branch may still grant the landlord an Order of Possession.
However, the Branch will only grant the Order of Possession if the
tenant has been habitually late in paying the rent.
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The Branch may issue an Order of Possession
because a tenant:
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didn’t pay rent;
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didn’t pay rent on time.
The Branch will not grant an Order of Possession
if a landlord’s notice of termination is not valid. For example:
A landlord gives a tenant a notice to move for non-payment of rent.
The landlord’s notice doesn’t include the required information and
the landlord doesn’t tell the tenant about their right to dispute
the notice. The landlord’s notice is not complete so it’s not valid.
The Branch doesn’t grant an Order of Possession.
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Sometimes a tenant’s rent is paid by their
source
of income and is sent directly to the landlord. For example: A
tenant’s employer deducts the rent payment from the tenant’s
paycheque and sends it directly to the landlord. If the rent is
late, it may be beyond the tenant’s control. In these cases, the
Branch may issue a conditional Order of Possession. The Branch will
only do this if:
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When deciding an application based on
habitual
late payment, the Branch may consider:
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the history of the past year of the tenancy or the current
tenancy agreement;
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any oral or implied agreement for late payment;
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any oral or written warning given by the landlord; and
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the tenant’s explanation for the late payment.
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If a tenant lives in
subsidized housing and
doesn’t pay rent, the landlord may give notice and apply to the
Branch for an Order of Possession. The Branch has jurisdiction to
deal with this kind of dispute. However, if there is a dispute over
how the tenant’s rent is calculated by the landlord of the
subsidized housing, the Branch can’t decide what income figures can
be used to calculate rent. Either the landlord or tenant can apply
to the Court of Queen’s Bench for a declaratory order on determining
the amount of rent.
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A landlord may apply to the Branch for an Order
of Possession if a former caretaker or employee doesn’t move on a
notice of termination. The Branch may grant an Order of Possession.
But, if the landlord claims compensation for rent and the amount of
rent the caretaker is to pay is unstated, the Branch won’t issue an
Order for the former caretaker/employee to pay rent. For example:
The former caretaker stays in the rental unit after ending their
employment. The former caretaker doesn’t pay any rent. The landlord
gives notice for non-payment of rent. The former caretaker doesn’t
move so the landlord applies for an Order of Possession. At the
Order of Possession hearing, neither the landlord nor the former
caretaker can show the actual amount of the rent the former
caretaker is responsible to pay. Since there isn’t any clear
information, the Branch doesn’t order the former caretaker to pay
the landlord. However, the caretaker is obviously responsible to pay
some money to live in the unit. Since the former caretaker didn’t
meet this obligation, the Branch grants the landlord an Order of
Possession, but doesn’t issue an Order for compensation.
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The Branch makes decisions on applications for
Orders of Possession at a hearing. After the hearing, the Branch may
issue two Orders. The Order of Possession orders the tenant to move
out of the rental unit by a specific date. The tenant has seven
days to appeal the Order of Possession to the Residential
Tenancies Commission. The other Order orders the tenant to pay the
landlord compensation for rent arrears and/or damage. The tenant has
14 days to appeal the Order.
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If the Branch grants an Order of Possession, it
generally orders the tenant to move on or before a date seven
days after the date it issues the Order of Possession. For
example: The Branch issues an Order of Possession on March 20. It
orders the tenant to move on or before March 27. A hearing
officer has the discretion to allow more time if they consider it
appropriate.
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Before a hearing, a tenant may pay some of the
outstanding rent. They may also promise to pay the balance within a
few days or weeks. In these cases, the Branch may issue a
conditional Order of Possession.
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When a landlord files an Application for an Order
of Possession, they won’t know the final condition of the rental
unit. A landlord may ask the Branch not to apply the security
deposit to the Order for compensation. After the tenant moves, the
landlord may have a claim for damage or cleaning costs. If the
landlord needs to file another claim, they don’t need to pay another
filing fee.
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When the Branch grants an Order of Possession for
rent arrears, they will also order the tenant to pay the rent. If
the landlord claims a late payment fee, the Branch calculates the
fee up to and including the date of the hearing, to a maximum of
$65.00.
Example #1: The tenant’s rent is due on the first
of each month. The tenant doesn’t pay August rent and doesn’t move
on the landlord’s notice. The landlord applies for an Order of
Possession. The Branch holds a hearing on September 5. The Branch
awards a late payment fee of $40.00. That amount includes $5.00 for
August 1 and $1.00 for each day from and including August 2 up to
and including September 5.
Example #2: The tenant’s rent is due on the first
of each month. The tenant doesn’t pay August or September rent and
doesn’t move on the landlord’s notice. The landlord applies for an
Order of Possession. The Branch holds a hearing on October 5. The Branch
awards a late payment fee of $65.00. That amount includes $5.00 for
August 1 and $1.00 for each day from August 2 to the date the late
payment fee reaches the maximum of $65.00.
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If a landlord claims interest on an application
for an Order of Possession and the Branch awards it, the Branch
generally awards interest on the rent at the pre-judgment rate from
the date the rent first became due until the date of the order. The
Branch may also award interest on the rent at the post-judgment rate
from the date of the order until the date it’s paid.
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When the Branch issues an
Order of Possession,
the Branch orders the tenant to move on or before a specific date.
The Branch orders the tenant to pay any unpaid rent and may also
order the tenant to pay a daily rate for
use and occupancy until
they move out of the rental unit. For example: A tenant owes
April and May rent. The monthly rent is $500.00 and is due on the
first of each month. The landlord applies for an Order of
Possession. The Branch orders the tenant to move on or before May
20. The Branch orders the tenant to pay the landlord compensation of
$500.00 for April’s rent. The Branch also orders the tenant to pay
$16.44 per day for use and occupancy starting May 1 until they move.
When the Branch orders a tenant to pay a daily
rate for use and occupancy of the rental unit, the Branch uses the
following formula to calculate the rate:
Monthly rent x 12
365
When the Branch issues an Order of Possession, it
sets a time limit for enforcing the Order. A landlord who receives
an Order of Possession for non-payment of rent has 90 days from the
date the tenant is to move to file the Order in the Court of Queen’s
Bench. For example: The Branch grants a landlord an Order of
Possession for non-payment of rent and orders the tenant to move on
or before June 30. The landlord may file the Order of Possession in
the Court of Queen’s Bench up to and including September 28.
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