Section 8

Order of Possession

Sub-Section 8.4

Order of Possession - Tenant Not Meeting Obligation (Other Than Non-payment of Rent)


Legislation


s. 154, The Residential Tenancies Act
s. 23, Residential Tenancies 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.

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.

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

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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The landlord must include the following information with the Application for an Order of Possession:

  • a copy of the Notice of Termination, and
  • copies of any letters asking the tenant to correct a problem.

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 addresses 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.

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

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The Branch may issue an Order of Possession if a tenant fails to meet their obligations under the Act or their tenancy agreement. Following are some possible breaches:

  • failure to maintain the rental unit in a clean condition;
  • failure to repair any damage they or their guests caused to the unit or complex;
  • endangering the safety of others in the residential complex or the landlord;
  • Effective August 1, 2014:
  • engages in unlawful activity in the residential complex that:

    • causes damage to a rental unit or the residential complex
    • interferes with the enjoyment of a rental unit or the complex by another tenant or the landlord (or a person either lets into the complex)
    • adversely (badly) affects the security, safety, health or well-being of another tenant or occupant of the complex, the landlord or a person allowed in the complex by the tenant or landlord
  • disturbance of others;
  • failure to comply with reasonable terms and conditions of a tenancy agreement;
  • giving false or fraudulent information on their tenancy application; or,
  • failure to move out after giving the landlord notice.

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The Branch will not grant an Order of Possession if a landlord’s notice of termination is not valid.

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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. If the landlord claimed compensation, the other Order orders the tenant to pay the landlord compensation for rent arrears or damage. The tenant has 14 days to appeal the Order.

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If the Branch grants an Order of Possession, it usually 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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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 any 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 issues an Order of Possession, the Branch orders the tenant to move on or before a specific date. Depending on when the Branch orders the tenant to move, the Branch may also order the tenant to pay the landlord a daily rate for use and occupancy if the tenant doesn’t move as ordered. For example: The Branch issues an Order of Possession on June 23 ordering the tenant to move on June 30 for disturbing other tenants. The Branch also orders the tenant to pay the landlord $16.44 per day starting July 1.

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

If the Branch orders a tenant to move before the end of a rental payment period and the tenant paid the full rent, the landlord must return any unused rent to the tenant. For example: The Branch orders a tenant to move on or before May 15 for disturbing other tenants. The tenant paid the full May rent of $500.00. The tenant moves on May 15. The landlord must refund $263.04 to the tenant ($500.00 x 12 ¸ 365 = $16.44 daily rate x 16 days). If a landlord doesn’t return the rent, the tenant may file a claim with the Branch.

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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 any reason other than non-payment of rent, has 30 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 because the tenant disturbed other tenants in the complex. The Branch 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 July 30.



Procedure

Overview

The landlord applies for an Order of Possession and the Branch schedules a hearing. Based on the information provided, the 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.

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.


Forms & Form Letters


Notice of Termination by Landlord (for cause other than non-payment of rent) (Form 10)

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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