Canada: One Safe Method For A Landlord To Recover Possession Of Commercial Premises

Last Updated: July 18 2012
Article by C. Nicole Mangan

Commercial tenancies end for a wide variety of reasons. Leases may expire, a renewal option may not be exercised (or may be exercised improperly), or a tenancy may be terminated by the landlord due to a breach of the lease by the tenant. In some cases, the issue for a landlord is not whether a lease has come to an end but the fact that a tenant refuses to leave - even though their right to lawfully remain on the property has reached an end. . Often a landlord will simply resort to self-help remedies, such as changing the locks and removing the tenant's goods, but what about the uncertain cases? What should a landlord do when the grounds for terminating the lease are in dispute or when the lease term expiry date is uncertain? One wrong move and the landlord could expose itself to a significant claim for damages. When the stakes are high, and the right to evict is uncertain, we often recommend the commercial landlord seek a court order for possession of the premises.

The Commercial Tenancy Act, R.S.B.C. 1996 c. 57 ("CTA") outlines two separate procedures for a type of "fast track" hearing available to a landlord to obtain an order for possession of commercial premises. The choice of procedure usually depends on whether the lease has expired or been terminated before the court proceedings are commenced. The right to obtain an order for possession under the CTA is a statutory remedy and the prerequisites of that legislation must be strictly followed. Sections 18 to 21 of the CTA, and this article, deal with some of the legal criteria and considerations when using the first, and most commonly used, eviction procedure. This procedure applies when the lease has expired or been terminated.

1. Preconditions to Application

There are generally three pre-conditions to a landlord obtaining an order for possession under section 18(1) of the CTA:

  • the lease has been terminated or expired,
  • a written demand for possession has been delivered by the landlord to the tenant following the termination or expiry of the lease, and
  • the tenant has wrongfully refused to vacate after getting that demand.

In addition to the statutory pre-conditions, the particular lease may have certain procedural requirements with which the landlord must comply. For instance, the lease may require that a notice of default be issued for the non-payment of rent or the non-performance of some other covenant and stipulate a time period within which the tenant has the right to cure a breach. If your lease has such a requirement, then the default notice must be given, and the appropriate time periods complied with, before taking steps under the CTA.

2. The Hearing Process

If a landlord can present some basic evidence, in affidavit form, which satisfies the pre-conditions to the application, then the court will grant a date for an inquiry to answer three questions:

  • Has the lease expired or been terminated?
  • Does the tenant hold possession of the premises against the right of the landlord?
  • Has the tenant wrongfully refused to give up possession of the premises?

If the tenant fails to appear at the time and place appointed for the inquiry, then the court may grant the landlord an order for possession, direct the sheriff to remove the tenant and put the landlord into possession of the premises. In British Columbia today, all services which the sheriff used to perform in the eviction process are now performed by a private bailiff. The bailiff is hired and paid by the landlord but operates under the authority of a Writ of Possession issued by the court.

If the tenant appears at the time and place appointed for the hearing, then section 21(2) of the CTA contemplates that a form of trial will take place, in a summary manner, where witnesses are called to give evidence and to be cross-examined. While the CTA contemplates a court hearing with witnesses, often the hearing will be conducted on affidavit evidence alone, especially where there are no contentious facts or credibility issues.

The proceedings must be commenced, and the hearing must take place, at the court house which is located within the judicial district where the premises are situated.

The costs of the proceedings may be recoverable from the tenant if the Writ of Possession is granted.

3. Common Defences

A common defence raised by a tenant is the failure of the landlord to separate the first two pre-conditions set out in section 18(1) of the CTA (i.e. terminate the lease by one letter and then deliver the demand for possession in a second, subsequent letter). If a landlord fails to separate those two steps then the legal process will have to be re-started after the proper notices have gone out.

Another common defence raised by a tenant is the acceptance of rent by the landlord, after the lease has expired or been terminated. By accepting rent the landlord will create a new tenancy which can only be terminated on fresh notice, or will reinstate the old lease. The proper course for a landlord to follow when trying to evict a tenant is not to accept any rent, after the lease has expired or been terminated, but to claim damages for the tenant's use and occupation of the premises (i.e. as if the tenant were a trespasser).

Perhaps the most common defence raised by a tenant, to a landlord's action for possession, is the "relief from forfeiture" defence. Essentially, if the tenant is found to be in breach of the lease it asks the court to exercise a discretionary power to give the tenant a second chance to stay in the premises. Generally speaking, the power of the court to grant relief under the Law and Equity Act, R.S.B.C. 1996 c. 253 ("LEA") is discretionary and no party is entitled to relief from forfeiture as a matter of right.

While the wording of section 24 of the LEA suggests that there aren't any limits on the court's power to relieve against penalties and forfeitures, over the years the courts have interpreted that power to only grant relief where:

  • the forfeiture was in essence a right given to the landlord to secure payment of a specific sum of money for arrears of rent or taxes, or
  • the tenant's breach was caused by reason of fraud, accident, surprise or mistake.

Where the court has granted a tenant relief from forfeiture one time, the court cannot grant the tenant relief, a second time, for breach of the same covenant: section 28 of the LEA. This restriction on the court's ability to grant relief from forfeiture is only applicable if we are dealing with breach of the same covenant in two separate instances. The court could, however, grant relief from forfeiture a second time if it did not relate to the same breach or default as was involved in the first instance.

4. The Remedy Sought

In order to take advantage of this "fast track" summary procedure, the landlord can only ask for the one remedy which the judge is authorized to grant under section 21(3) of the CTA, i.e. a writ of possession. Although section 21(3) of the CTA only authorizes a court to make an order for possession, section 22 of the Act makes it clear that this limitation does not prejudice or affect any other rights or remedies which the landlord may want to pursue, in addition to gaining possession. The most significant of these other rights and remedies is a claim for damages.

Where a dispute exists between a landlord and tenant over the right to possession of premises, even where a lease has been terminated or expired, it can be worthwhile for a landlord to take advantage of the above procedure. Obtaining a writ of possession provides certainty that the court has endorsed the landlord's position and limits any claims for damages by a tenant alleging they were removed from the premises in wrongful circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions