Special Rules Apply to Notices Given by Tenants in January and February

A tenancy agreement does not automatically end when the lease runs out. It is also simply not enough for a tenant to tell the landlord they will be moving. Unless proper notice is given terminating the tenancy, or the parties agree to terminate the tenancy, it becomes a month-to-month tenancy on the same terms and conditions.

To be proper, the notice must:

• be in writing (the form is available from the Landlord and Tenant Board website HERE).
• identify the rental unit;
• be signed by the tenant; and
• be effective the last day of a tenancy period which falls at least 60 days after the notice was given in most cases.  If there is a lease, the termination date also cannot be before the end of the lease.

Likewise, if a landlord wishes to terminate a tenancy, they must also give written notice.  The notice period will vary depending on the grounds being relied upon.  I will deal with notices landlord may give in future posts.

But did you know that a tenant’s 60 day notice of termination which is effective either February 28 [in a leap year, February 29] or March 31 is not treated the same as a landlord’s 60 day notice which is effective the same date?  Section 44 of the Residential Tenancies Act provides:

Period of notice, February notices

(5)  A tenant who gives notice under subsection (2), (3) or (4) which specifies that the termination is to be effective on the last day of February or the last day of March in any year shall be deemed to have given at least 60 days notice of termination if the notice is given not later than January 1 of that year in respect of a termination which is to be effective on the last day of February, or February 1 of that year in respect of a termination which is to be effective on the last day of March.

 The subsection only applies to notices given by tenants.  It does not apply where a landlord gives notice.  Landlords need to keep this in mind.  Many a landlord notice has been derailed by this fact, causing landlords to have to restart the whole process over.  

Landlords and tenants should also keep in mind that the manner in which the notice is given will also affect the calculation of whether proper notice has been given.  In calculating the 60 days (and subject to the special rule, above), you do not include the date the notice was served, but do include the termination date.

Let me give you some examples.  Let’s take a notice served on a landlord March 1, 2010:

1. If the notice is handed to the landlord on March 1, 2010, the 60 days notice would be April 30, 2010.  Notice could be effective April 30, 2010 if the tenancy is a monthly tenancy, and the rent is due on the 1st of each month.
2. If the notice is placed in the landlord’s mailbox by the tenant on March 1, 2010, the 60 days would be April 30, 2010.  Notice could be effective April 30, 2010 if the tenancy is a monthly tenancy, and the rent is due on the 1st of each month.
3. If the notice is mailed to the landlord on March 1, 2010, then the notice could not be effective until May 31, 2010.

This is because the notice must meet both requirements – it must be given at least 60 days in advance of the termination date, and the termination date must be the last day of a tenancy period.

When documents are mailed, they are deemed to be given 5 days after mailing. Using this rule, the notice mailed on March1, 2010, is actually said to be given on March 6, 2010. 60 days after this would be May 5, 2010. So you have to take the last day of the a tenancy period after May 5, 2010, which would be May 31, 2010.

If a tenant moves out of a rental unit without giving notice or without giving proper notice (for example, the tenant gives less than the required number of days), the tenancy ends on the earlier of:

• the date the unit is rented to another tenant or
• the earliest termination date that could have been put in a notice to end a tenancy, if the tenant had given proper notice.

Subject to the landlord’s obligation to mitigate their losses, the tenant will be responsible for rent up to this date.

In a later post, I will deal with the challenge faced by a landlord who receives an invalid notice.