Pubdate: Tue, 12 Aug 2014
Source: Province, The (CN BC)
Copyright: 2014 Postmedia Network Inc.
Contact: http://www2.canada.com/theprovince/letters.html
Website: http://www.theprovince.com/
Details: http://www.mapinc.org/media/476
Author: Cassidy Oliver
Page: A3

PRINCE GEORGE LANDLORD CLAIMS SHE IS LEFT HIGH AND DRY BY TENANCY BRANCH

Prince George Resident Angela Cunningham Thought She Had Found the 
Perfect Tenant in James Wilson.

Employed, well-spoken and clean-cut, the 32-year-old Wilson, a framer 
by trade, struck Cunningham and her husband, Kelly, as an honest, 
personable guy who would pay his rent on time and treat the house on 
Trout Road in Salmon Valley as his own.

For the first few months, he did just that, even earning himself a 
seat at the Cunningham's dinner table last Easter where he was 
served, along with the other 20-30 assembled guests, a plate of 
turkey with all the fixings.

But it was soon after that meal that the Cunninghams relationship 
with Wilson started to deteriorate. Missed rental payments quickly 
escalated to an eviction notice being served, and later, the 
discovery of a marijuana grow-operation on their rental property.

The first-time landlords now find themselves with a tenant who 
refuses to budge and an unfavourable ruling from the Residential 
Tenancy Branch that's left them questioning whether B.C.'s tenancy 
legislation is balanced, or biased toward the renter.

"I did exactly what I was told to do and he is still there," said 
Angela Cunningham. "I'm horrified that I am asking for help and have 
to keep jumping through hoops. I am shocked, shocked that this is 
allowed to continue."

Their case highlights some of the issues LandlordBC, a group that's 
more often on the receiving end of bad press in renter/landlord 
disputes, can have when trying to evict problem renters, including 
those who are growing pot.

Speaking generally about the matter, David Hutniak, CEO of 
LandlordBC, a professional association for landlords who works 
closely with the Residential Tenancy Branch, agreed that it indicates 
there is room for "significant improvement" in how situations like 
these are handled by the RTB.

Yet he stressed that there remains a strong onus on property owners 
to understand the particulars of the Residential Tenancy Act (RTA) 
and the proper steps to take when trying to evict a tenant.

"LandlordBC agrees that landlords need more protection when an 
illegal grow-op is located on their rental property," he said in an 
email. "This situation appears, however, to be complicated by the 
fact that the landlord may not have full knowledge of the RTA, and 
had they, the outcome likely would have been different. This does not 
preclude the fact that when an illegal grow-op is found in a rental, 
the subsequent eviction of the tenant should be less cumbersome."

Cunningham began jumping through the bureaucratic hoops on June 16 
when she served Wilson with a 10-day eviction notice for failing to 
pay his rent the previous two months, despite continued verbal 
urgings. She said Wilson accepted the written eviction notice with a 
smile, and even posed for a picture, in which he waved for the camera.

On the eve the notice was to expire, Cunningham went by the rental 
property to check if Wilson was preparing to leave. He wasn't there, 
but there was no sign, Cunningham said, that he was planning on 
complying with the notice.

When Cunningham went to the back of the property to check if earlier 
changes Wilson had allegedly made to the back deck had been restored, 
she stumbled upon a mid-sized grow-op, consisting of about 80-100 
plants, in one of the property's outbuildings.

Within 24 hours, the RCMP, acting on video and photo evidence 
provided by Cunningham, had dismantled the operation and seized the 
pot. A Prince George RCMP spokesman said investigators are just 
finishing a report to Crown counsel recommending several drug related charges.

Armed with this new evidence against her tenant, Cunningham applied 
for an emergency hearing before the Residential Tenancy Branch last 
month. Under section 56 of the RTA, a rental agreement can be 
terminated early if, among other things, the tenant has engaged in 
illegal activity that "has damaged or is likely to damage the 
landlord's property" or the tenant has "seriously jeopardized the 
health and safety or lawful right or interest of the landlord or 
another occupant."

Given the evidence she had accumulated, Cunningham thought the 
judgment would easily be in her favour. Wilson did not deny that 
there was a grow-op at the site, but as it turned out, the arbitrator 
from the RTB concluded that Cunningham had failed to "provide 
sufficient evidence to establish that the tenant has acted in a 
manner such that the tenancy should end early."

This is despite acknowledgment by both Cunningham and Wilson that 
there was a grow-op on the property. (In her ruling, the arbitrator 
said she was unable view the video evidence Cunningham submitted due 
to apparent technical difficulties. The evidence was therefor not 
considered in the video evidence in her decision.)

"I find is [sic] possible that the tenant is operating an illegal 
marijuana grow-op; however, the landlord has failed to provide 
sufficient evidence that the tenant has seriously jeopardized the 
health or safety or lawful right or interest of the landlord by doing 
so," the arbitrator wrote. "I am confident, based on the descriptions 
of the landlord and the tenant, that even if I were able to view the 
landlord's video, I would not find evidence of how the grow-op 
seriously jeopardized the health or safety or lawful right or 
interest of the landlord."

Exacerbating Cunningham's frustration is that Wilson alleged in the 
hearing that the grow-op actually belonged to her.

Vancouver litigation lawyer Joseph Fearon, from the firm Stevens 
Virgin, also emphasized that a lot of the difficulties in tenancy 
disputes arise from a lack of knowledge both renters and landlords 
have about the law and the process, which he said, for the most part, is fair.

But he also noted that there are some aspects of the process that 
make it difficult for both parties.

For example, many of the arbitrators are not trained lawyers and 
don't necessarily have a firm understanding of the law, he said. 
Also, unlike the rest of the legal system, RTB arbitrators aren't 
bound by precedent.

"The fact that it is very much rough justice," he said. "It can be 
difficult and the most difficult part really, I think, is if you get 
a wonky decision, it is very difficult to review."

After the ruling, Cunningham filed another 10-day eviction notice, 
which she said Wilson blocked by filing for "emergency repairs," 
another section under the act that can lead to dispute resolution. 
That matter is scheduled to go before the RTB in September. 
Cunningham also filed a 30-day eviction notice, which is set to 
expire by the end of the week, and started an online petition asking 
the government to review the RTA and the eviction process.

In the meantime, she said Wilson remains at the property and still 
hasn't paid his rent.

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[sidebar]

Source: The Residential Tenancy Act

Steps you can take

Here are the basic steps to ending tenancy early:

1. File a notice to end tenancy. There are three different kinds of 
eviction notices that landlords can serve to tenants depending on the 
circumstances: A 10-day notice (for tenants who do not pay their rent 
or utilities when due); a 30-day notice (for cases where the tenant 
has caused "extraordinary" damage to the property, engaged in illegal 
activity or jeopardized the safety of the landlord or another 
tenant); and a two-month notice (for when the landlord intends to do 
major construction, use the property or when the tenant no longer 
applies for subsidized housing).

2. Apply for Order of Possession. If the tenant does not apply to 
dispute the eviction notice, a landlord is able to apply for an Order 
of Possession through the Residential Tenancy Branch. This order 
compels the tenant to move out and gives the landlord the power to 
repossess the property and/or unit.

3. Apply for a Writ of Possession. If a renter refuses to vacate a 
property after their tenancy has legally concluded, then a landlord 
is able to apply for a Writ of Possession from B.C. Supreme Court. 
The writ allows a court bailiff to legally remove the tenant from the 
property and return ownership of the property to the landlord.

4. Hire a bailiff. The landlord is required to pay for the bailiff to 
come and remove the renter, which could cost between $900 and $5,000, 
according to a spokesperson from the Residential Tenancy Branch. Some 
of the cost, however, can be recovered from the sale of the tenant's 
possessions.
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MAP posted-by: Jay Bergstrom