Applying to Court for Possession of Property

 You can apply for possession of the property when:

• The tenant or others living in the property have not left after being served with the your notice to terminate; or
• The tenant has not left the property even though the tenancy has ended (for example, if a fixed term tenancy has ended and the tenant has not moved out of the property); or
• The tenant has committed a substantial breach and you apply to terminate the tenancy.

You can serve a tenant with notice to leave the rental property. There are different kinds of notices that you can serve:

• a 14 day notice for substantial breach
• a 24 hour notice for damage to the property or assault
• a notice that a periodic tenancy is ended,
• a Notice to Vacate to non-tenants to leave after a tenant has left.

If the tenant or occupant does not move out by the date given in the notice, you can apply for an order for possession of the property.

Procedure in Applying for Possession

You can apply for an order for possession of the property from the Provincial Court, Court of Queen’s Bench, or from the Residential Tenancy Dispute Resolution Service.

You must file an affidavit giving full details of the termination of the tenancy or occupation and the reason that the tenant has not left, if known. The affidavit and the notice of the application must be appropriately served on the tenant. Usually, you must serve the tenant with an application at least three days before the hearing date, but you can ask for special permission from the court or RTDRS to shorten this time.

Tenants have the right to file their own affidavit, stating why they believe they should not have to leave the property. A judge or tenancy dispute officer will decide whether or not to grant the order of possession based on the evidence that has been presented by you and the tenants.

The Order for Possession

There are different kinds of orders of possession:

• Unconditional order
  • This kind of order will state that the tenant must give up possession of the premises on a certain date, or within a certain amount of time after the order is served on them. If the tenant does not leave the property as ordered, then you can contact a Civil Enforcement Agency to immediately evict all occupants.
• Conditional order
  • This kind of order will state that the tenant can stay in the property, so long as the tenant is making payments to you, as per the order. If the tenant fails to pay on time and in full as ordered, then you must serve the tenant with a notice of default. The notice of default will state that because of the tenant’s failure to make payment as ordered, the tenant now has a specific amount of time to vacate the property. If the tenant does not leave the property by that date, then you can contact a Civil Enforcement Agency to immediately evict all occupants.
• Conditional Order with no notice of default
  • This kind of order is rare. The order will state that the tenant can stay in the property, so long as the tenant is making payments to you, as ordered. If the tenant fails to pay on time and in full as ordered, then you can contact a Civil Enforcement Agency to immediately evict all occupants.

You can also ask the court for damages resulting from their failure to leave the premises:

• general damages, i.e. a general sum for their failure to leave the property;
• special damages, i.e. specifically the amount you might owe to a new tenant who was going to rent the premises. For the special damages to be established, you have to show that the tenant could reasonably have known that you might owe this amount because the tenant was not leaving the property.

Eviction if Tenant Does Not Leave Premises

 The end result of all of the different kinds of possession orders is that if the tenant does not leave the property, then you can instruct a Civil Enforcement Agency to evict the tenant or occupant. Civil Enforcement Agencies are regulated by the Office of the Sheriff. The Sheriff's Office appoints the bailiffs who carry out the enforcement procedures. You will have to provide the agency with all relevant documents including the order for possession, the tenancy agreement, and the fee required. The eviction can only occur between 6 a.m. and 10 p.m. The enforcement agency might have the police present during an eviction if there is a fear of a breach of the peace. The agency may also contact social services if there is a possibility that a tenant will be homeless as a result of the eviction.

Service Alberta has developed an information booklet about the process for recovering possession that you may want to review.

October 2011