Section 8

Order of Possession

Sub-Section 8.3

Order of Possession - Non-Payment or Late Payment of Rent


Legislation


s. 154, The Residential Tenancies Act
s. 20, 23, Residential Tenancies Regulation
s. 3, Residential Tenancies Interest Regulation


Definitions

Application for an Order of Possession: an application a landlord completes, asking the Branch to enforce a Notice of Termination and order a tenant to move. On the application, the landlord may also claim unpaid rent or other compensation.

Conditional Order of Possession: a written Order, issued by the Branch, that enforces a notice of termination if a tenant fails to meet a specific condition. For example: A tenant owes two months’ rent. The landlord applies for an Order of Possession. Before the hearing, the tenant pays one month’s rent. The tenant promises to pay the balance in a week. The Branch issues a conditional Order of Possession that orders the tenant to move if they don’t pay the rent on or before a specific date.

Habitual late payment: rent is paid after the due date, without valid or good reason, three or more times during a year or during the term of a fixed-term tenancy agreement.

Hearing: a meeting where a landlord and tenant present information about their case to an officer to have their claim or application decided.

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

Mediated agreement: a written document a mediation officer prepares to outline an agreement between a landlord and tenant. Mediated agreements are confidential. They are not a matter of public record.

Notice of Termination: a written notice, by either the landlord or tenant, to end a tenancy.

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

Residential Tenancies Commission: a board that hears appeals on decisions or Orders the Branch issues.

Subsidized Housing: for the purpose of this subsection, subsidized housing is a rental unit where the amount of the tenant’s rent is based on their income.

Tenancy agreement: a contract between a landlord and a tenant that sets out the basic rules for living in a rental unit. It can be written, oral or implied


Policy

A landlord may:

  • 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;

  • give a tenant a Notice of Termination and the Application for an Order of Possession at the same time; or

  • 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:

  • take the rent and filing fee and allow the tenant to stay in the rental unit; the landlord should advise the Branch that they are withdrawing their application for the Order of Possession; or

  • 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:

  • didn’t pay rent;
  • 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:

  • the tenant can show that they have contacted their source of income;

  • the source of income confirms that they have sent or will soon send the rent to the landlord.

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When deciding an application based on habitual late payment, the Branch may consider:

  • the history of the past year of the tenancy or the current tenancy agreement;
  • any oral or implied agreement for late payment;
  • any oral or written warning given by the landlord; and
  • 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.

Note: Effective August 1, 2014 if a person does not take part in a hearing at the branch for an order of possession for non-payment of rent, that person will need to apply for leave to appeal if they want to appeal the branch’s order.

This means that if either a landlord or a tenant doesn’t take part in the hearing, they have to get “permission”, or leave to appeal, from the Residential Tenancies Commission to appeal the order.

If someone wants to apply for leave to appeal, they must take their evidence, showing why they could not take part in the hearing, to the Commission within the appeal deadline, and pay a filing fee. Leave to appeal may be granted if:

  • the person can show why they were reasonably unable to take part in the hearing, or
  • they can show that the order was based on false or misleading information.
If leave is granted, the person doesn’t have to pay another filing fee 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 $100.00.

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 $80.00. That amount includes $10.00 for August 1 and $2.00 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 $100.00. That amount includes $10.00 for August 1 and $2.00 for each day from August 2 to the date the late payment fee reaches the maximum of $100.00.

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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.



Procedure

Overview

The landlord 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 landlord applies for an Order of Possession and pays the filing fee.

2.The Branch schedules a hearing and gives the landlord a copy of the Application for Order of Possession for their records and a copy for each tenant. The application includes information on the date and time of the hearing. The landlord must give the tenant notice of the hearing at least five days before the hearing date.

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

4.Before the hearing, a mediation officer may contact the landlord and tenant to see if they can reach an agreement on extending or terminating the tenancy. When the tenant owes rent, the landlord may agree to continue the tenancy as long as the tenant pays the rent. The mediation officer may prepare a payment schedule.

5.If mediation is not successful, a hearing officer follows the steps for hearings. (See Hearings in Section 11.)

6.A tenant may receive notice of the hearing, but move out before the hearing date. In this case, the hearing officer may still issue an Order on any claim for compensation.

7.The hearing officer generally issues a decision within two working days of the hearing. The decision is sent by courier or priority post to both the landlord and tenant.

If either the landlord or tenant appeal 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.

NOTE: Effective August 1, 2014:
If a person does not take part in a hearing at the branch for an order of possession for non-payment of rent, that person will need to apply for leave to appeal if they want to appeal the branch’s order.

This means that if either a landlord or a tenant doesn’t take part in the hearing, they have to get “permission”, or leave to appeal, from the Residential Tenancies Commission to appeal the order.

If someone wants to apply for leave to appeal, they must take their evidence, showing why they could not take part in the hearing, to the Commission within the appeal deadline, and pay a filing fee. Leave to appeal may be granted if:

  • the person can show why they were reasonably unable to take part in the hearing, or
  • they can show that the order was based on false or misleading information.

If leave is granted, the person doesn’t have to pay another filing fee to appeal the order.

Forms & Form Letters



(Form 8) - Notice of Termination by Landlord for Non-Payment of Rent.
( Form 8.1) - Notice of Termination by Landlord for Non-Payment of Rent or d’Tenant Services Charge.
(Form 9) - Notice of Termination for Non-Payment.


X-Referencing

For details on ending a tenancy, go to Notice of Termination in Section 7.
For information on late payment fees, see Section 2.
Enforcing an Order of Possession is in this section.
For information on amending an Order, see section 11.
Hearings are covered in Section 11.
For more information on filing fees, costs and interest, see Section 12.


Policy Developed

September, 1992


Last Revision

June, 2015


Other Resources

None


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