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What Landlords Must Prove Under Lockdown To Prevent A Suspension Of Eviction Orders By The Court

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What Landlords Must Prove Under Lockdown To Prevent A Suspension Of Eviction Orders By The Court

Lockdown has led to many losing their jobs, salary reductions or their businesses closing. Many tenants are thus not able to pay or have had to reduce their rentals and many landlords have or desire to remove unwanted tenants or tenants that are not complying with their lease agreements. Obviously, you can only remove a tenant via a court order, but the question is, will the courts actually enforce these orders?  Courts have the power to suspend eviction orders until after the "lapse or termination of the national state of disaster". Expect courts generally to lean towards suspending eviction orders. In other words, landlords will in all probability have their work cut out for them.

You as a landlord will have to convince the court that it would be "not just or equitable" to suspend the order, taking into account a whole range of listed factors, including, but not limited to:

  • health considerations relating to the movement of individuals during a pandemic; 
  • the tenant's ability to immediately find a new home; 
  • the impact of the disaster on both parties; and, 
  • whether the landlord acted in good faith and attempted to assist the tenant during these times. It should be noted that, if the tenant is belligerent, the court may not rule in its favour.

The list is not exhaustive, but it is a good guide as to what the courts would look at when deciding to grant an order and permit eviction or suspend the order.

The Rental Housing Tribunal has new powers to urgently restore occupation and/or services to tenants who have been deprived thereof by the landlord. Through the process of an "ex parte spoliation order", the landlord has no right to be heard and the tenant must be returned to occupation.

Both landlords and tenants will have to act fairly and reasonably towards each other here and take into account their respective abilities to comply with the terms of the lease during the state of disaster.

Attempt to help your tenants as far as you can, as the courts take a dim view currently on landlords not showing that they had acted in good faith towards a tenant genuinely in financial trouble. Tenants must act fair and reasonably in asking for relief. Good faith negotiation is key if landlords can expect to have any chance of obtaining an immediately enforceable eviction order.

Author ESI Attorneys
Published 12 Nov 2020 / Views -
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