Tenant Won't Leave After Notice in Nova Scotia

A notice to quit in Nova Scotia does not remove anyone by itself. When the effective date passes and the tenant is still in the unit, the next step is an application to the Director of Residential Tenancies, not a lock change or a call to the movers. The Program's Ending a Tenancy guide says that if a tenant does not comply with any notice to quit, the landlord may apply to the Director for vacant possession using Form J.

The old overholding tenant process is not available. The Residential Tenancies Act says the Overholding Tenants Act does not apply where the relationship of landlord and tenant exists for residential premises. Everything goes through the Act's own process.

The tenant's side of this is in the Nova Scotia eviction process guide. If you have not yet chosen the right notice, start with landlord notices to end a tenancy in Nova Scotia.

Before you file, confirm the notice still has force. A tenant who stays may have a reason.

• Arrears paid. On a Form D for unpaid rent, the tenant has 10 days after receiving it to pay everything in arrears. Once paid, the notice is void and of no effect.
• Notice challenged. A tenant who received a Form D, a breach notice (Form E) or certain Form F notices can apply to the Director to set it aside. For a breach notice the Act sets no deadline for that application, so a tenant can raise it at your hearing.
• Retaliation. The Director or the Small Claims Court can set aside a notice to quit if it was given in retaliation for the tenant trying to enforce their rights under the Act.
• Rent accepted. The research found no Nova Scotia rule saying whether accepting rent after a notice cancels it. Ask the Residential Tenancies Program before you take payment.

If the tenant did not pay and did not apply within the 10 days on a Form D, they are treated as accepting the termination and must leave by the effective date. That is the case where Form K, with no hearing, becomes available.

1. Choose the form. Form J is the general Application to the Director. Form K is for rental arrears only, with no hearing, and it can be used only when the tenant did not dispute the Form D. If the tenant disputed the notice, you cannot use Form K.
2. File. File at an Access Nova Scotia centre or online. The Form J fee is $31.15, which is not payable if you receive the guaranteed income supplement or income assistance or the Director waives it.
3. Serve. Give the tenant Form J and the Notice of Hearing, and return a Certificate of Service to the Program within 7 days of applying.
4. Mediation, then hearing. The Director must try to mediate first. A mediated settlement is binding and cannot be appealed. Hearings are held by telephone, and your evidence must reach the other party and the Director at least 5 days before.
5. Order. The Director makes an order within 14 days of the hearing. The Director can order the tenancy to end on a date and the tenant to vacate on that date.

An emergency hearing (Form DR9) is available for an immediate issue that cannot reasonably wait for a regular hearing. You can only use it if you have already filed Form J and have not yet served the other party. There is no cost, and review takes 2 to 3 days. See the Form DR9 page. The Program's guides do not publish a typical wait time for regular hearings.

An order is not the same as the tenant being gone. You enforce it through the Small Claims Court.

1. Wait out the appeal period. Either party can appeal to the Small Claims Court within 10 days of the Director's order.
2. Ask for a court order. If nobody appeals, you ask that the Director's order be made an order of the Small Claims Court. The request goes to the Residential Tenancy Officer, and there is no charge.
3. Get the right court order. The Small Claims Court issues the order you need. For possession, that is an Order for Vacant Possession. For money, it can be an Execution Order or a Certificate of Judgment.
4. Sheriff. The sheriff's office carries out court enforcement. There are fees for some services provided by the sheriff's office.

If you win on arrears, ask for the money at the same time. The Director may order the payment of money, and the same enforcement route applies. Details are in the Resolving Disputes guide.

The wait is frustrating, but self-help can cost you more than it saves.

• Do not change the locks. Statutory Condition 8 says neither landlord nor tenant may alter an entry door lock during the tenancy without mutual consent.
• Do not bar access. A landlord may not bar a tenant from free access to the premises during the tenancy.
• Do not remove belongings. A landlord may not hold or dispose of a tenant's personal property except under an order of the Director or as otherwise authorized by law.
• Do not cut services. The Program's guide says landlords may not turn off the heat, even if rent is owed or there is a dispute, and may not disconnect utilities that are included in the lease.

Breaking the Act is an offence with a fine of up to $1,000 on summary conviction, with the Attorney General's consent needed for a prosecution. These are the same rules covered in how to evict a tenant in Nova Scotia.

If the tenant appeals. The appeal is a new hearing in the Small Claims Court, which decides within 14 days of its hearing and may confirm, vary or rescind the order. A further appeal to the Supreme Court of Nova Scotia is allowed only on jurisdictional error, error of law or a failure to follow natural justice.

If the person never paid rent. The Act applies where an occupier has paid or agreed to pay rent. Someone who never did may not fit the definition of a tenant. The Protection of Property Act makes it an offence to stay on premises after the occupier directs you to leave, with a fine of up to $500, and a police officer may arrest for that offence. The research found no government page that explains how to remove such a person from a rental unit, so take advice before acting.

If the tenant leaves and belongings remain. You then follow the abandoned property process: an inventory on Form A filed with the Director, a copy to the tenant, and disposal only as the Director authorizes after 30 days.

For the plain-language version of this question, see what to do if a tenant refuses to move out. This guide explains the rules in general terms; for a specific case, ask the tribunal or a licensed legal professional.