The Residential Tenancy Act (the Act) provides that a tenancy ends if the tenant vacates or abandons the rental unit. In short, the fact that the tenant is absent from the rental unit for a prolonged period of time does not, on its own, allow the landlord to consider the rental unit as having been abandoned. While an arbitrator has the discretion to determine whether a rental unit has been abandoned, the Residential Tenancy Branch suggests that a landlord could consider a rental unit abandoned if the rent remains unpaid for at least one month and one of the following applies:
- The tenant removed their possessions from the building;
- The tenant has told the landlord that they do not intend to return; or
- The landlord has a reasonable expectation that the tenant will not return.
Where a tenant has abandoned the rental building, the landlord may apply to the Residential Tenancy Branch to be compensated for expenses such as unpaid rent, lost future rental income (particularly where a tenant has abandoned a fixed-term tenancy) and cleaning expenses. Also, while the landlord still has an obligation to complete and sign a move-out inspection report, the landlord may do so without the tenant and has no obligation to provide the tenant with any opportunities to participate in this inspection.
Last revised: April 17, 2016
- Where a tenant does not follow the rules set out by the Residential Tenancy Act to lawfully end their tenancy and instead forces your hand by not paying rent and simply vacating the rental unit on their own terms, you may consider the rental unit abandoned by the tenant. You should inform the tenant in writing that they have not lawfully ended the tenancy and as a result of their departure, you consider to rental unit to have been abandoned. You should also inform your tenants of your intention to make an application for monetary damages resulting from their breach.
- If a tenant has not lawfully put an end to a fixed-term tenancy, you still have an obligation to mitigate your damages and will likely be precluded from making a claim for the entire rent owed for the duration of the fixed-term. Rather, you will have to take reasonable steps to re-rent the rental unit as soon as you have deemed the rental unit to be abandoned. If you are successful in re-renting the rental unit, you should claim against your former tenant for any outstanding unpaid rent and lost rental income during the gap of time that the rental unit was not rented.
- If you are only able to re-rent the rental unit for a lower price than paid by your former tenant, you may also claim for the difference in rent for the duration of former tenant’s fixed term. For example, if your former tenant had 6 months left in the tenancy’s term from the time that you re-rented the rental unit, your former tenant was paying $1000/month in rent and your new tenant is paying $900/month, you will be able to claim $600 in lost rental income against your former tenant.
- You should also review the rental agreement to check whether it contains a ‘liquidated damages’ clause. The purpose of a liquidated damages clause is to provide a genuine pre-estimate of the landlord’s specified damages if the tenant unlawfully ends the tenancy agreement. If your tenancy agreement contains a liquidated damages clause, you will still be able to claim for unpaid rent until the end of the tenancy, cleaning costs and any property damage caused by the tenant. However, depending on the wording of the agreement, the costs of re-renting the unit and/or your claim for lost future rental income may be limited to the amount specified by the liquidated damages clause.