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  • Writer's pictureJohn McDonald

Landlord's beware of Notices and timelines

In a recent decision of the RTDRS, and frankly a topic that comes up on social media frequently is how much notice is a landlord required to give on the sale of a property.

The short answer is, it depends.

There are a few scenarios, one is that the tenant is on a fixed period tenancy, nothing changes, the tenant stays to conclusion of the fixed period tenancy and the buyer either renews, or does not, no notice is required, the security deposit goes to the buyer, and the buyer issues a Notice of Landlord.

Another scenario is that the landlord sells to another person looking for an investment property, in these cases the landlord owes the tenant no notice at all, the new owner of course owes the tenant a notice of landlord, and of course the security deposit transfers to the new owner, nothing changes.

The final scenario is the tenant in a periodic tenancy (We'll focus on the monthly periodic, it's the most common) The RTA lays out that a monthly periodic tenancy can only be terminated for a set of prescribed reasons, the Ministerial Regulation lays those out, the key one for today is that the property must have been sold, either unconditionally, or the conditions must be waived or satisfied, and the buyer must request, in writing, that the landlord give notice to the tenant.

The period is so often mis-stated as 90 days, that is not the case the RTA lays out that the notice period is "three tenancy months", in this case words have meaning. if the conditions clear on the 4th of one month, and the landlord gives notice that day, the notice period starts on the 1st day of the next month, the effective notice period in this case is much closer to 120 days.

Now there is another piece, and that is the notice itself, s.10 of the RTA lays out what the notice must contain:

Be in writing;

Be signed by the landlord;

Set out the Reasons for the termination; and

State the date the tenancy is to terminate.

In Sokolov v Miller (unreported) the TDO held that because the notice given by the landlord did not specifically state "the property has sold, conditions have been satisfied or waiver, and the buyer has asked, in writing, that this notice is given." that the notice was void "ab initio" or from the start and of no force and effect. The TDO also found that even if the notice was valid, it could not have terminated on the day the landlord wished to terminate the tenancy, he calculated the time period at 90 days. The end result is that the tenancy is not terminated, and the landlord has some work to do with respect to the sale of the house.

Nothing in this post should be considered legal advice, this is information only and the facts may not apply to the facts of your dispute.

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