Tenant Won't Leave After Notice in Alberta

A tenant who stays after a notice or a tenancy has ended is an overholding tenant. The Residential Tenancies Act does not let the landlord solve this alone. The government guidance is that the landlord must apply to the Residential Tenancy Dispute Resolution Service (RTDRS) or the courts for an order for recovery of possession. If the tenant still stays, that order must be filed with the Court of King's Bench and served, and then a civil enforcement agency removes the occupant.

The Act lets you ask for two things in the same application: recovery of possession, and compensation for the tenant's use and occupation of the premises. Damages for failing to vacate are also available under the Act. The first job is to work out which kind of notice you served, because the deadline to act depends on it. The tenant-side view is in our Alberta eviction process guide.

• 14 day notice for unpaid rent: if the tenant paid all rent owing before the termination date, the notice is ineffective and the tenancy continues. If not, and the tenant stays, you apply for an order.
• 14 day notice for another breach: if the tenant gave you a written objection with reasons before the termination date, the notice is ineffective. You must apply to the RTDRS or court, and the tenant may stay until an order is made.
• 24 hour notice (significant damage, assault or threat): you must apply within 10 days after the termination date. If you do not, the notice is ineffective and the tenancy is treated as never terminated by it. Do not let the 10 days pass.
• No-fault notice on a periodic tenancy: there is no objection form. A notice for a reason that is not one of the prescribed reasons is of no effect. If the notice was valid and the tenant stays, you need an order.
• Fixed term that ended: no notice is needed to end it. If the tenant stays and you keep accepting rent with no new agreement, it becomes a periodic tenancy. If you did not accept rent and the tenant stays, you apply for possession.

The notice rules by reason are in our guide to landlord notices to end a tenancy in Alberta.

1. Apply to the RTDRS or the Alberta Court of Justice. You can also go to the Court of King's Bench directly. The RTDRS fee is based on the claim amount: $75 for claims of $7,500 or less and $150 for claims over $7,500, and fee waivers are available. The sources do not give a separate fee for a possession-only application, so check the RTDRS page before you file.
2. Serve the tenant at least 3 clear days before the hearing. For urgent cases such as significant damage, assault or threat, the RTDRS can shorten the service time.
3. Attend the hearing. RTDRS hearings are by telephone. The officer decides then or gives a written decision within 30 days. An order can be conditional, for example a payment plan. If the tenant defaults, you need a Notice of Default before you enforce.
4. File the order. It does not take effect until it is filed with the Court of King's Bench and served on the tenant. An Alberta Court of Justice order is entered in the Court of King's Bench in the same way.
5. Contact a civil enforcement agency. The RTDRS states that the applicant must contact a civil enforcement agency to enforce possession. The agency, authorized by the Sheriff, removes the tenant and the belongings.

The RTDRS explains the process on its hearings and orders page. For the whole eviction path, see how to evict a tenant in Alberta.

Staying past a notice does not give you the right to take matters into your own hands. The Handbook is blunt: landlords are never allowed to physically remove an overholding tenant or their belongings without civil enforcement.

• Do not change the locks or otherwise block the tenant's access while the tenant still lives there. Breaking the lock rules is an offence with a fine of up to $5,000.
• Do not cut off electricity, water or heat. The owner must keep them supplied unless the lease makes them the tenant's sole responsibility.
• Do not remove or dispose of belongings. The abandoned goods rules in the Act apply to goods left by a tenant who abandoned or vacated the premises. They do not apply to goods left when a civil enforcement agency carries out an order of possession.
• Do not enter without proper notice. The tenant is still the tenant until the order is enforced. Entry needs 24 hours written notice for a listed reason. One listed reason is showing the unit to prospective tenants once a notice to end a periodic tenancy has been served.
• Do not take retaliatory action because the tenant complained or applied under the Act.

The tenant asks to undo the order. A party can ask the RTDRS to set aside or vary an order within 20 days, for example if they missed the hearing through accident, mistake or insufficient notice. Once a set-aside or stay order is filed with the Court of King's Bench, any execution or garnishee summons under the original order is stayed unless that court orders otherwise.

The tenant appeals. An appeal to the Court of King's Bench is allowed on a question of law or jurisdiction only, within 30 days after the order is filed. The King's Bench decision is final. An appeal does not stop the order unless the court orders a stay.

You are owed money too. An order for rent or compensation is enforced through the Court of King's Bench, using a writ of enforcement and garnishment or seizure. RTDRS orders are valid for 10 years, with some exceptions. See what to do if a tenant refuses to move out for a short overview.

The person was never a tenant. The Act applies only to tenancies of residential premises, and an agreement can be written, oral or implied. If someone says they paid rent or had your permission, whether an implied tenancy exists is for the RTDRS or the courts to decide. Trespass is covered by separate provincial laws, the Trespass to Premises Act and the Petty Trespass Act. If you have a notice-not-to-trespass situation, the police are the usual first contact.

This guide explains the rules in general terms; for a specific case, ask the tribunal or a licensed legal professional.