Bill 68 (Legislature 14, Session 5)

L14 S5 1807

Alberta — Bills

No. 68 5th Session, 14th Legislature, Alberta 11 Elizabeth II BILL 68 A Bill respecting- Landlords and Tenants HON. MR. MANNING Printed by L. S. WALL, Printer to the Queen's Most Excellent Majesty, Edmonton, Alberta, 1963

Explanatory Note General. This Bin is divided into four main Parts.

Part 1 deals with the conditions and covenants under leases. Many of these provisions are already paI'lt of the genera'! law of the Province .and are gathered together in this Bill for convenience. As indicated in the explanatory notes most of these provisions ol'ligina'ted in Engl!1sh Slta!tutes dating as :far ba'ck as the 13rtJh Century.

Part 2 deals wi:th overholding tenants.

Part 3 deals with

summary proceedings for non-payment of rent.

Part 4 deals wHh a landlord's righ:ts on bankruptcy. The pro- visions of this Part are presently found in The Landlord's Rights on Bankruptcy Act, R.S.A. c. 171. 2.

Definitions. 3. The Act does not apply to mineral leases. 4. (1) and

(2) Rent, etc., annexed to reversionary estate. T'aken :flI'1om rflhe Ooo.veYlandng anld Law of Property Aot, 1'8181, 44 & 45 Vic. c. 4, s. 10(1).

BILL No. 68 of 1963

An Act respecting Landlords and Tenants (Assented to , 1963) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. This Act may be cited as "The Landlord and Tenant Act". 2.

In this Act, (a) "crops" means the products of the soil, and includes all sorts of grain, grass, hay, hops, fruits, vegetables and other products of the soil; (b) "land" includes land of any tenure, buildings or parts of buildings, whether the division is horizontal, vertical or made in any other way, also a rent charged upon or payable in respect of any land, and an easement, right, privilege or benefit in, over or derived from land, but not an undivided share in },and; (c) "landlord" includes a lessor, owner, or person giv ing Oi· pernlitting the occupation of land and their respeotive successors in title. 3.

This Act does not apply to minerals or any dealings in mineral's.

PART 1 COVENANTS AND CONDITIONS 4.

(1) Where the reversionary estate in land, or any part thereof, immediately expectant on the term granted by a lease is severed, (a) ,the rent reserved by the lease, (

b) the benefit of every covenant or provision in the lease, relating to the leased premises and to be observed or performed on the tenant's part, and (

c) every condition of re-entry and other condition con tained in the lease, is annexed and incident to and goes with that reversionary estate.

(2) Any rent, covenant or provision is capable of being

(3) Recovery by person eniit11ed by conveyance. '!be sUbsection (other than the provJso) is taken from

section 111 of the Convey ancing Act, 1911, c. 37.

(4) Application of section. 5.

(1) Covenants of landlord annexed to reversionary estate. Taken from (1881) 44 & 45 Vic. c. 4, s. 11. (2) 'and

(3) Application and effect of

section . . 6. Condition of re-entry when land severed. Taken from 44 & 45 VIet. c. 4, s. 12.

2 recovered, received, enforeed and taken advantage of, by the person from time to time entitled, subject to the term, to the inCiOme of the whole or any part, as the case may require, of the land leased.

(3) Where a person becomes so entitled by conveyance or otherwise, he may recover, receive, enforce or take ad vantage 'Of the rent, covenant 'Or proviisiDn notwithstanding that he becomes SD entitled 'a£ter the condition of re-entry Dr forfeiture has become enf'Orceable, but this subsection d~es not render enfurcea:ble any cDndition of re-entry or other 'condition waived Dr released before :the persDn be c'Omes so entitled.

(4) Thiissecition 'applies to leases made before or after the commencement 'Of this Act, but does not affect the operation of (

a) any severance of the reversionary estate, Dr (

b) any 'acquisition by 'conveyance 'Or 'Otherwise .of the right to receive or enfDrce any rent, covenant or provision, effected before the commencement of this Act. 5.

(1) The 'Obligation .of a cDvenant entered into by a landlord relating to his leased premises (

a) is, if and as far as the landlord has power to bind the reversionary estaJte immediately expectant 'On the term granted by the lease, annexed and incident to ,and goes with that reversionary es,iJate, or the several p,arts ,thereof, n'Otwithstanding severance of that reversionary estate, and (

b) may be taken advantage 'Of and enforced by the perSDn in whom the term is for the time being vested by conveyance, devolution in law, or otherwise, and, if and as f'ar the the landlord has power to bind the person from time to iJime entitled to that reversionary estate, the obl,igaiJion may be taken advantage 'Of and en foreed against any person SD enti~led.

(2) This sedtion applies to leases made before or 'after the oommencement IOf this Act whether the severance of the reversionary estate was effected before Dr after such com mencement.

(3) This

section takes effect without prejudice t'O any liability affecting a covenantor or his estate. G. N otwHJhstanding the severance by cDnveyance, sur render or .otherwise, of the reversiDnary estate in any land c'Omprised in a lease, 'and n'Otwithstanding the avoidance or cesser lin lany other manner 'Of the term granted by a lease as tD part .only 'Of the land cDmprised therei!l,. every c0!lditi~n or right 'Of re-entry, and every 'Other cDnditIOn contaIned In the lease, shall be apportiDned, and (

a) shall remain annexed tD the severed parts of the reversionary estate as severed, and

3 7. Merger of reversions. Taken from the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 9. 8. Waste by tenants. 9. Defects in lea-se made under power of leasing may take effect as a contract for the grant of a lease.

3 (

b) shall be in force with respect to the term where'On each 'severed part.is reversion,ary, or lthe term in any land which has n'Ot been surrendered or as to which the term has not been avoided or has not otherwise ceased, in Hke manner as if 'the land 'o'Omprised in each severed part, or the land las to which the term remains S'ubsiSiting, as the case may be, had ·alone originally been comprised in the lease. 7.

Where a reversion expectant on a lease 'Of land is sur rendered or merged, the estate or interest that as against the tenant for the time being confers the next vested right to the land shall be deemed the reversion for the purpose of preserving the same incidents and obligations as wDuld have 'affected the original reversion if there had been nD surrender or merger ,thereof. 8.

(1) Subj ect to ,the e~press terms of any lease, Dr of any covenant, agreement or stipulation affecting the ten ancy, (

a) every ·tenant for years and every tenant fDr life is liable to his landlord land to every other person for the time being having a reverS'ionary interest in the leased premises f'Or v'Oluntary waste and for per missive waste in respect 'Of the premises tD the ex tent by which the interest of the landlDrd and other person, if any, having a reversiDnary interest in the premises is detrimentally affected thereby, and (

b) every ,tenant at wiH is liable t'O 'his l'andlDrd and every other person havting 'a reversionary 'interest in the leased premises for voluntary waste in re spect 'Of the premises to the extent by which the interest of the landlord and other persons, if any, having a reversionary interest in the premises is detrimentally affected thereby.

(2) Every landl10rdand every person having a reversiDn ary interest in any leased premises may in respect of any waste by a tenant in respect of the premises bring an action for damages or ,an injunction, or bDth. 9.

(1) Where in ,the intended exercise of any power of leasing whether cDnferred by a statute Dr by any 'Other instrument, a lease is granted, that by reasDn 'Of a failure tD cDmply with the terms 'Of the pDwer is invalid, if it was made in gODd faith, ·and the lessee has entered thereunder, the lease (

a) as against the person entitled after the determina tion of the interest of ,the grantDr tD the reversiDn, 'Or (

b) as laga;inst any other person, WhD, subj ect to any lease properly granted under the pDwer, would have been entirtled tD the lland comprised in the lease, takes effect as a contract for the grant, at the request of the lessee, ofa valid lease under the power, on the same terms

4 as the inv-alid lease, subject to such variati'Ons as may be necessary in order to comply with the terms 'Of the p'Owers.

(2) A lessee under 'an invalid lease is not, by virtue 'Of subsection (1), entitled to obtain a variation of the lease if the other persons who w'Ouild have been bound by the contract 'are wining and able to c'Onfirm the lease without variati'On.

(3) Where-a lease granted in the intended exercise 'Of a power 'Of leasing conferred by a statute or .other instrument is invalid by reas'On 'Of the grantor not having pDwer to grant the lease :at the date thereof, but the g~antor's interest in the land ~omprised therein continues after the time When he might, in the exercise of the power, have properly granted a lease in the like terms, the lease takes effect as a valid lease in the l'ike manner a.s if it had been granted at that date.

(4) Where during the ,continuance 'Of the possessi'On taken under 'an invaHd lease -the pers'On for the time being entitled, subject to such possession, to the land comprised !therein Dr to the rents land pr'Ofits thereof, is able to c'Onfirm the lease with'Out variation, the lessee, Dr 'Other person who would have beeen bound by the lease had it been valid, is, at the request of the person so aJble to confirm the lease, bound to accept a c'Onfirmation thereof, and thereupon the lease has effect and is deemed to have had effect as a valid lease fr'Om the grant thereof.

(5) A ,confirm'ation under subsection (3) may be by a memorandum in writing signed by Dr on behalf of the per sons respe'otivelyconfirm'ing and accepting the confirmation of the lease.

(6) Where a receipt or a memorandum in writing c'On firming an invalid lease is, upDn or before the acceptance 'Of rent thereunder, signed by 'Or 'On behalf 'Of the person accept ing the rent, that acceptance is, as against the person, a confirmation 'Of the lease.

(7) This

section dDes n'Ot affect prejudicially (

a) any right of acti'On 'Or other right or remedy that, but for this section, the lessee named in an invalid lease w'Ould Dr might have been entitled to under any c'Ovenant 'On the part 'Of the grant'Or for title or quiet enj'Oyment c'Ontained ,therein or implied thereby, Dr (b) ,any vight 'Of re-entry 'Or other right 'Or remedy that, for this secti'On, the gran'tor or 'Other pers'On for the time being entitled t'O the reversi'On expectant 'On the terminati'On 'Of the lease, W'Ould or might have been entitled t'O by reas'On 'Of any breach 'Of the c'Ovenants. c'Onditi'Ons Dr provisionscDntained in the lease and binding 'On the lessee.

(8) Where a valid plOwer 'Of leasing is vested in or may be exercised by a pers'On wh'O grants a lease that, by reas'On 'Of the determlil1'ati'On 'Of the interest 'Of the grantDr 'Or 'Otherwise, cann'Ot have effect 'andc'Ontinuance acc'Ording t'O the terms

5 10. Implied powers of lessor. II. Re-entry on convic'tion of keeping a disordedy hlOuse. For a definition of "disordeTly house" see

section 168 of the Criminal Code. 12. Effect OIf licenc:e ito bre,ach la covel!l!a'n:t oifa le1ase. Taken from 1859, 22-23 Vic. c. 3'5, SS. 1 and 2.

5 thereo.f independently of the power, the lease shall fo.r the purposes o.f this

section be deelned to have been granted in the intended exercise of the power although the power is not referred to in the lease.

(9) This

section takes effect without prejudice to. the pro.vision in this Act for the grant 'Of leases in the name and 'On behalf of the es:1Jate owner of the land affe0ted. 10. In every lease, unless a different intention appears therein, there are implied the following powers in the lessor, tha t lis tn say: (

a) that he may, by himself .or his agents, enter upon the demised lands and view the state 'Of repair there of, and may serve upon the lessee, or leave at his last or usual place of abode, or upon the demised land, a notice in writing 'Of any defect, requiring the lessee within a reasonable time, to be therein mentioned, to repair the s'ame, in so far as the lessee is bound to. do ~so; (

b) that in case the rent 'Or any part thereof is in arrears for the space of two calendar months, Dr in case default is made in the fulfilment of any covenant, whether expressed or implied in the lease, on the part of the lessee, and is 'continued for the space of two calendar months, or in case the repairs required by the notice, as aforesaid, are not completed within the time therein specified, the lessor may enter upon and take possession of the demised land in the manner provided by law. 11.

In every lease there is implied an 'agreement that if ,the tenant lOr any other person is convicted 'Of keeping a dis orderly house, within the meaning of the Criminal Code (Oanada), IOn rthe demised premises, 'Or any part thereof, the landl.ord may at any time thereafter, re-enter intQ the demised premises, or any part thereof, rep.ossess 'and enj.oy the premises las of his former estate. 12.

(1) Where a licence is granted to a tenant to do any act, the licence, unless otherwise expressed, extends 'Only (

a) to the permission actually given, or (

b) to the specific breach 'Of any provis,ion or covenant referred to, 'Or (

c) to any other matter thereby specifically authorized to be done, and the licence does not prevent any proceeding for any subsequent breach unless othe,rwise specified in the licence.

(2) Notwithstanding any licence, (

a) all rights under covenants and powers of re-entry contained in the lease remain in full force and are avaHableas against any subsequent breach 'Of c'Ovenant, condition Dr 'Other matter not specifically authorized or waived, in the same manner as if nQ licence had been granted, and

6 13. Where a lease provides for subletting with the landlord's consent the consent may not be unreasonably withheld. 14. Tenant to give notice of proceedings to landiliord. Taken from the Common Law Procedure Act, 18&2, c. 20:9.

6 (

b) the condition or right of entry remains in force in all respects as if the licence had not been granted, save in respeot of the particular matter authorized to be done.

(3) Where a lease contains a power or condition of re entry on the tenant assigning, subletting or doing any other specified act without a licence, and a licence is granted (

a) to anyone of two or more tenants to do any act, or to deal with his equitable share or interest, or (

b) to any tenant, or to anyone of two or more tenants to assign or underlet part only of the property, or ,to do any act in res'pect of part only of the property, the licence does not operate to extinguish the right of entry when there is a. breach of covenant or condition by the co lessees of the other shares or interests in the property, or by the tenant or tenants of the rest of the property, as the case may be, in respect of such shares or interests or remain ing property, but the right of re-entry remains in force in respect of the shares, interests of property not the subject of ,the licence. (4) Subsection (3) does not authorize the grant after the commencement of this Ac,t of a licence to create an undivided share in 'a 'legal estate. 13.

(1) In a lease containing a covenant, condition, or agreement against assigning, subletting, or parting with the pos'sessiion or dis'posing of the land leased without licence or consent, the coven'ant, condition or agreement shall, unless the lease contains an express provision to the contrary, be de'emed to be subject (a) ,to a proviso to the effect that the licence or consent shall not be unreasonably withheld,and (

b) to a proviso to the effect tha.t no fine or sum of money in the nature of a fjne shall be payable for or in respect of the licence or consent, but this proviso does not preclude the right to require the payment of a reasonable sum in respect of any legal or other expenses incurred in relation to the licence of ,consent. (2) "'here a landlord refuses or neglects to give a licence or 00nsent to 'assign or sublet, a judge of the district court, upon the applica.tion of the tenant or assignee or subtenant, m'ay make an order determining whether or not the licence or 'consent is unreasonably withheld, and where it is so withheld permitting the assignment or sublease to be nlade.

(3) An order under subsection (2) permitting 'an assign ment or sublease is the equivalent of a licence or consent of the l'andlord within the meaning of the covenant or condition requiring Ithe licence or consent, and the assignment or sublease is not a breach of the covenant or condition. 14. A tenant to whom there is delivered any process of any ,court for the recovery of the premises demised to or

7 IS. In an aCition :lhr re-entry the landlliord is 1x> j10in all paI'!ties who claim an interest under the le.ase. 16. Effect of waiver. Taken from 1860, 23-24 Vic. c. 3'8, s. 6. 17. Implied covenant. The Land Titles Act (Alberta), s. 99. 18. Noti'ces to terminaJte tenancies.

7 held by him, lOr to whose knowledge any such process comes, shall forthwith give notice thereof to his landlord or his agent, and if he fails to do so, he is liable for an damages sustained by the landlord by reason of the failure to give the notice. 15. Where a landlord is proceeding by action to enforce a right of re-entry or forfeiture under a covenant, provi,so or stipulation in a lease, every person claiming an interest in the demised premises under the lease ,and whose interest is registered in rthe land titles office sha:H be made a party to the action. 16.

Where 'an actual waiver by a lessor, or the persons deriving title under him, of the benefit of a covenant or con dition in a lease is proved to have taken place in any particu lar instance, the waiver does not, unles,s 'a contrary intention appears,extend to any instance, or to any breach of covenant or condition except that to which the waiver specially relates or operates as a general waiver of the benefit of the covenant or condition. 17.

In every lease, unless a contrary intention appears therein, there is implied the following covenant by [the lessee, that is to ,s'ay, thalt he will at all times during the continu anee of the lease keep and at the >termination thereof yield up ,the demised land in good and tenantable repair, accidents, and damage to buildiings from fire, storm and tempest and reasonable wear 'and tear excepted. 18.

(1) Unless otherwise express'ly agreed upon (

a) a weekly tenancy may be determined by one week's notice to quit, ending with the week, (

b) a monthly tenancy may be determined by one month's notice to quit, ending with the m:onth, and (

c) a tenancy from year to year, other than one under anagricultura'l lease, may be determined by three months' notice to qu1t and a tenancy under an agri cultural lease may be determined by not less than six months' notice to quit, ending (

i) in the case of 'a tenancy originally from year to year, with the annivel'isary of the last day of the first year thereof, and (ii) in [the case of all other tenancies from year to year, with the anniversiary of ,the last day of the original tenancy.

(2) A notice under subsection (1) is sufficient although the day on which the tenancy terminates is not named therein.

(3) Where a ,tenant, upon the determination of his lease, whether created by writing or by parol, remains in posses sion with the consent, express or implied, of the landlord, he is deemed to be holding subject to the terms of the lease, so far as they are applica'ble.

8 19. Right of distress for rent. 20. When distress for rent may be made. Taken from 17(}9, 8 Anne c. 18, ss. 6, 7. 21. Distress when rent for the life of another. ".Da~en Nom 32 Hen. 8, c. 37, s. 4. 22. Distress by estate of a landlord. The Trustee Act (Alberta), s. 35. 23. Attornment to a stranger. 24. Grant effective without attornment of the tenant. Taken from 1705, 4-5 Anne c. 16, s'S. 9, 10.

8 19. where rent is payable or reserved by virtue of a deed, transfer or other assurance, or by will, which contains no express right of distress for the rec'Overy of the rent, the person enititled to receive the rent has the s'ame right of distress for the recovery of the rent as if it were rent re served upon lease. 20. Upon the determination of a lease, the person entitled as. landlord to receive ,any rent made payable thereby may at any time (

a) within six m10 nth s next after the determination of the lease, and (

b) within such six months during the continuance 'Of the landlord's interest, and (

c) within sU'ch six months during the possession of the tenant from whom the rent became due, distrain for any rent due and in 'arr~ar in the same manner as he might have done if the lease were not determined. 21. A person entitled to rent 'Or land for the life 'Of another m'ay recover by ac.tion or dis,tress the rent due and owing at the time of the death of the person for whose life the rent or land depended as he might have done if the person by whose death the estate in the rent 'Or land determined had continued in life. 22.

(1) The execu'tors or administrators of a landlord may distrruin for the arrears of rent due to such landl'Ord in his lifetime in like manner as such landlord might have done if living.

(2) The arrears m'ay be distrained fur at any time within six months after the determination 'Of the term and during the continuance of the possession of the tenant from whom the arrears became due. 23.

(1) An attornment of a tenlan t of land to a stranger claiming title to the estate of his 'landlo~d is null and void, and the possession of his landlord is not changed, altered or affected by the attornment, but nothing in this

section vacates or effects 'an attornment made (

a) pUl'lsU'ant to and in consequence of a judgment or order of 'a court, or (

b) with the privity and consent of the landlord.

(2) Nothing in this

section alters, prejudices or affects any rights that a vendor, mortgagee or encumbrancee may now pos1sess under 'any law or statute. 24.

(1) A grant or conveyance of any rent or of the reversion or rem'ainder of land is good and effectual without an attornment of the tenant of the land 'Out of which that rent issues, 'Or 'Of the particular tenant upon wh'Ose parti cular estate ,that reversi'On or remainder is expectant or depending.

9 25. Effect of surrender and renewal of head lease on undel1" leases. Taken from 1730, 4 Geo. 2, c. 2:8, s. 6 and s. 103 of The Land Titles Act (Alberta). 26. Renewal of leases by court order. Taken from 11 Geo. 4 and 1 Wm. 4, c. 65, '8S. 18, 20, 2,1, 35. And see S5. 2 to 6 of '!'he Infants Act (Albel'lta) for similar proV'isions applicable in the case of infants only.

(2) A tenant is not prejudiced O'r damaged by the pay ment of rent to' a grantO'r or by breach of any cO'nditiO'n for nO'n-payment of rent befO're nO'tice to' him of the grant by the grantee. 25. Where a lease is surrendered in order to' be renewed, and a new lease is made and executed by the chief landlO'rd (

a) the new lease is, without a surrender of all or any of the under-leases, as good and valid as if all the under-leases derived thereout had been likewise surrendered at lOr before the time of taking of the new lease, (

b) a person in whom an estate ror Hfe, or lives, or for years, is vested by virtu'e of a new lease, is entitled to .the renis, covenants and duties,and has the sam~ remedy for recovery thereof, (

c) an under-lessee holds and enjoys the land comprised in the under-lease as if the original lease had been kept on foot and continued, and (

d) the chief landlord has the same remedy by distress or entry in and upon the land comprised in any under-lease for the rents and duties reserved by the new lease, so far as the same do not exceed the rents and duties reserved in the lease out of which the sub-lease was derived, as he would have had if the former lease had been still continued or as he would have had if the under-lease had been renewed under the new principal lease. 26.

(1) Where a person who, in pursuance of a covenant O'r agreement in writing, if within the Province and amenable to the process of the Supreme Court, might be compelled to execute a lease by way of renewal, is not within the Province, or is not amenable to the process of the Court, the Court upon the application, by originating notice of mo tion, of a person entitled 'to the renewal, whether that person is or is not under any disa'bility, may direct such person as the Court thinks proper to appoint for that purpose to accept a surrender of the subsisting lease, and to make and execute a new lease in the name of the person who ought to have renewed it.

(2) A new lease executed by the person appointed under subsection (1) is as valid as if the person in whose name the lease was made was alive and not under any disability and had himself executed it.

(3) Instead of making an order under subsection (1), the Court, in its discretion, may direct an action to be brought to establish the right of the person seeking renewal.

(4) A renewed lease shall not be executed by virtue of this

section in pursuance of a covenant, or agreement, unless the sum of money, if any, that ought to be paid on the renewal and the things, if any, that ought to be performed

10 2'7. Llife estate in farm llands. Taken from the Landlord and Tenant Act, 1851, c. 25, s. 1. 28. DefinUions.

10 in pursuance of the covenant or agreen1ent by the tenant are first paid and performed.

(5) The tenant shall execute counterparts of a lease renewal pursuant to this section.

(6) All sums of money that are had, received or paid for, or on account of, the renewal of a lease by a person out of 1;,he Province or not amenable to the process of the Supreme Court, shall after a deduction of all necessary incidental charges and expenses, be paid to such person or in such manner or into Court to such account and be applied and disposed of as the Court directs.

(7) The Court may order the costs and expenses of and relating to the application, orders, directions, conveyances and transfers, or any of them, to be paid and raised out of or from the land, or rents in respect of which the same are respectively made, in such manner as the Court thinks proper. '27. Where the interest of a landlord in farm land is liable to be determined by death or by an uncertain event and where that land is held by a tenant subject to the payment of a rent that sUbstantialy represents the fair annual letting value of the land, upon the interest of the landlord being so determined (a) (b) (

c) the tenant, in lieu of any claim for emblements, may continue to hold and occupy the land until the ex piration of the then current year of his tenancy and shall then quit upon the terms of his tenancy in the same manner as if the tenancy were then de termined by effluxion of time or other lawful means during the continuance of the landlord's estate, the person succeeding to the interest of the land lord may recover from the tenant in the same man ner as his predecessor could have done if his in terest in the land had not been determined, a fair proportion of the rent for the period between the day upon which the interest of the predecessor ceased and the time of quitting, and the person so succeeding and the tenant respec tively, as between themselves and as against each other are entitled to all the same benefits and ad vanta'ges and are subject to the same liabilities as the predecessor and the tenant would have been entitled or subject to if the tenancy had been de termined by effluxion of time or other lawful means at the expiration of the current year and during the continuance of the predecessor's interest in the land. 28.

In sections 29 to 31, (a) "lease" means an agreement in writing, and a parol agreement whereby one person as landlord confers upon another person as tenant the right to

11 29. Enforcement of right of re-entry or forfeiture. Subsection (1) is taken from 1881, 44-45 Vic. c. 41, s. 14(1) and 189;2, 55-5,6 Vic. c. 13, s. 5.

11 occupy land, and every sublease and every agree ment for a sublease and every assurance whereby any rent is secured by condition; (b) "sublease" includes an agreement for a sublease where the sublessee has become entitled to have his sublease granted; (c) "subtenant" includes any person deriving title un der a suJblease; (d) "tenant" includes every lessee, occupant, subtenant and their assigns and legal representatives. 29.

(1) A right of re-entry for forfeiture under a proviso or stipulation in a lease for a breach of a covenant or con dition in the lease, other than a proviso in respect of the payment of rent, is not enforceable when the breach is capable of remedy or of being compensated by money payment, unless and until (

a) the landlord serves on the tenant a notice specifying the particular breach, and requiring the tenant to remedy or to make compensation in money for the breach, and (

b) the tenant fails, within a reasonable time after the service of the notice, to remedy the breach or to make compensation in money to the satisfaction of the landlord for the breach.

(2) Where a landlord is proceeding by action or otherwise to enforce any right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the tenant may (

a) in the landlord's action, if any, or (

b) if there is no such action pending, then in an ac- tion brought by himself, apply to the court for relief, and the court may grant such relief as having regard to the proceedings and conduct of the parties under subsection (1) and to all the other circumstances the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an in junction to restrain any like breach in the future, as the court thinks just.

(3) This

section applies whether the proviso or stipula tion under which the right of re-entry or forfeiture accrues is inserted in the lease or is implied therein. ( 4) For the purposes of this

section a lease limited to continue as long as the tenant abstains from committing a breach of covenant is and takes effect as a lease to continue for any longer term for which it could subsist, but determin able by a proviso for re-entry on such a breach.

(5) Where a landlord brings an action to enforce a right of re-entry or forfeiture for non-payment of rent and the tenant, at any time before judgment, pays into court all the rent in arrear and the costs of the action, the cause of action is at an end.

]2 30. Relief against forfeiture.

Section 18 of The Judica:ture Act (AJlberta) .

(6) Where relief is granted under this

section the ten ant shall hold and enjoy the demised premises according to the lease thereof made without any new lease.

(7) This

section applies to leases made either before or after the commencement of this Act and notwithstanding any stipulation to the contrary.

(8) This

section does not extend (

a) to a covenant or condition against the assigning, under-letting, parting with the possession, or dis posling of the land leased, or (

b) to a ,condition for forfeiture on the bankruptcy of the tenant or on the taking in execution of the lessee's interest if contained in (

i) a lease of agricultural or pastoral land, or (ii) a lease of a house let as a dwelling-house with the use of any furniture, books, works of art or other chattels not being the nature of fix tures, or (iii) a lease of land with respect to which the per sonal qualifications of the tenant are of im portance for the preservation of the value or character of the property, or on the ground of neighbourhood to the landlord, or to any person holding under him.

(9) Where the whereabouts of the tenant cannot be ascertained after reasonable inquiry or when the tenant is evading service, the notice referred to in subsection (1) may be served on the tenant by leaving it at the place of residence of the tenant with any adult person for the time being in charge thereof, and if the premises are unoccupied, the notice may be served by posting it up in a conspicuous manner upon some part of the demised premises. 30.

(1) The court upon such terms as it thinks proper may relieve againsrt a forfeiture for breach of a covenant or condition in a lease to insure against loss or damage by fire where (

a) no loss or damage by fire has happened, (

b) the breach has in the opinion of the court been committed through accident or mistake or otherwise without fraud or gross negligence, and (

c) there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure.

(2) The court when relief is granted shall direct a record thereof to be made by endorsement on the lease or other wise.

(3) This

section applies to leases (

a) that are for a term of years absolute, (

b) that are determinable on a life or lives or other wise, or

13 31. .A!ppl;ication fur reHef by subtenant in proceedings for for feiture of head lease. Taken from 1892, 55-5'6 Vic. ,c. 13, s. 4. 32. Proceedings for an order for a writ of possession.

13 (

c) that are for the life of ,the lessee or for the life or lives of any other person or persons. 31.

(1) Where a landlord is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under a covenant, a proviso or stipulation in a lease or for non payment of rent, the court, on application by any person claiming as subtenant any estate or interest in the property comprised in the lease or any part thereof, may (

a) in the landlord's action, if any, or (

b) in any action brought or

summary application made to the court by such person for that purpose, make an order vesting for the whole term of the lease or any less term the property comprised in the lease, or any part thereof, in any person entitled as subtenant to any estate or interest in the property.

(2) An order under subsection (1) may be upon such conditions, as to the execution of any deed or other docu menrt, payment of rent, costs, expenses, damages, compensa tion, giving security or otherwise, as the court in the circumstances of each case thinks fit.

(3) A subtenant is not entitled under this

section to re quire a lease to be granted to him for any longer term than he had under his original sublease. PA'RT 2 OVERHOLDING TENANTS 32.

(1) Where a tenant, after his tenancy or right of occupation has expired or has been determined, does not go out of possession of the premises held by him, the landlord may, on nart less than three days' notice of motion, apply to a judge of the Supreme Court for an order for a writ of possession.

(2) The proceedings under this Part shall be styled: "In the m,atter of (giving the name of the party complaining), landlord, against (giving the name of the party complained against), tenant." (3) 'The application of the landlord shall be supported by an affidavit (

a) setting forth the terms of the lease or occupancy, the amount of rent in arrear, if any, and the time for which it is in arrear, (

b) proving the expiration or determination of the tenancy or right of occupation, and (

c) stating the refusal of the tenant to deliver up pos session and the reasons given for the refusal, if any were given.

14 33. Issue of writ of possession. 34. Application of Rules of Court. 35.

Summary proceedings for non-payment of rent.

14 33.

(1) Where, at the time and place appointed the tenant fails to appear, the judge, if it appears to him that the tenant wrongfully holds against the right of the land lord, may order a writ of possession in Form A in the Schedule, directed to the sheriff commanding him forthwith to place the landlord in possession of the land.

(2) Where the tenant appears the judge shall, in a

summary manner, hear the parties and their witnesses and examine into the matter and may take evidence orally or by affidavit as he thinks fit, and if it appears to the judge that the tenant wrongfully holds against the right of the land lord he may order the issue of a writ of possession. 34.

(1) Except as otherwise varied by this Part, the provisions of the Consolidated Rules of the Supreme Court apply to applications made and proceedings had under this Part.

(2) The judge has the same power to amend or excuse irregularities in the proceedings as he has in an action.

PART 3

SUMMARY PROC'E'EIDING,S FOR NON·PAYMENT O'F RENT 35.

(1) Where a tenant fails to pay his rent wi,thin seven days of the time agreed, the landlord may serve a demand in writing for the payment of the rent or delivery of possession of the premises upon the tenant or upon some adult person upon the premises, or if the premises are vacant may affix the demand to the dwelling or other building or otherwise post the demand on the premises.

(2) If after the demand, the tenant wrongfully refuses or neglects to pay the rent or deliver up the premises demised, the landlord may file with the clerk of the district court for the judicial district in which the premises are in whole or in part situated an aff,idavit (

a) setting forth the terms of the lease or occupancy, the amount of rent in arrear and the time for which it is in arrear, (

b) producing a copy of the demand made for the pay payment of rent or delivery of possession, and (

c) stating the refusal of the tenant to pay the rent or deliver up possession and the reasons given for the refusal, if any were given.

(3) Upon the filing of the affidavit the clerk shall cause to be issued a summons in Form B in the

Schedule calling upon the tenant, three days after service, to show cause why an order should not be made for delivering up possession of the premises to the landlord, which summons may be served in the same manner as the demand.

(4) Upon the return of the summons the judge shall hear

15 36. Costs. 37. Assignment of property.

15 the evidence adduced upon oath, either orally or by affidavit as the judge thinks proper, and make such order, either to confirm the tenant in possession or to deliver up posses sion to the landlord, as the facts of the case may warrant, and an order for delivery of possession may be in Form C in the Schedule.

(5) Where the order is made for the tenant to deliver up possession and he refuses, then upon there being filed with the sheriff an affidavit (

a) showing service of the order, and (

b) stating that the order has not been obeyed, the sheriff or any of his officers shall, with such assistance as he may require, forthwith proceed under the order to eject and remove the tenant together with all goods and chattels that he m,ay have on or about the premises, and make the rent in arrears and place the landlord in possession of the premises.

(6) If, before the execution of the order, the tenant pays the rent in arrears and all costs, the proceedings are stayed and the tenant may continue in possession as of his former tenancy.

(7) Where the premises in question are vacant, or the tenant is not found in possession, or if in possession he re fuses on demand made in the presence of a witness to admit the bailiff, the latter, after a reasonaJble time has been al lowed for admittance, may force open any outer door in order to gain an entrance, and may also force any inner door for the purpose of ejecting the tenant or occupant and giving proper possession of the premises to the landlord or his agent. 36.

(1) The judge may by order award costs according to the tariff of costs contained in the ConsolidaJted Rules of the Supreme Court, or may order payment of a lump sum by way of costs.

(2) Where a landlord is awarded costs against the tenant, the costs so awarded may be added to the cost of the levy f.or rent, if such levy is, or is to be made.

(3) An order for the payment of costs may be filed in the office of the clerk of the district court for the judicial district in which the demised premises are in whole or in part situated and shall thereupon become a judgment of the court.

PART 4 LAN'DLORD'S RIGHTS ON BANKRUPTCY 37. A tenant against or by whom a receiving order or as'signment is m'ade under the Bankruptcy .4ct (Oanada) shall be deemed to have made an assignment of all his property for the general benefit of his creditors before the date of the receiving order or assignment.

16 38. Payment of renit after assignment. 39. Surplus rent. 40. When landlord unable to claim from tenant. 41. Righ'tsand duties of trustee. 42. Surrender of possession by trustee. 43. Cessation of landlord's rights. 44. Dealings by the trustee.

16 38. As soon as the receiving order or assignment is made (

a) the landlord of the tenant is not thereafter entitled to distrain or realize his rent by distress, and (

b) the trustee in whom the property of the tenant vests under the provisions of the Bankruptcy Act (Can ada), shall pay to the landlord in priority to all other debts (

i) an amount not exceeding in value the dis trainable assets of the tenant and not exceed ing three months' rent accrued due before the date of the receiving order or assignment, and (ii) the costs of distress, if any. 39. The tenant is a debtor to the landlord (

a) for all surplus rent in excess of the three months' rent accrued due at the date of the receiving order or assignment, and (

b) for any accelerated rent to which the landlord may be entitled under the lease but not exceeding an amount equal to three months' rent. 40. Except as aforesaid the landlord has no right to claim as a debt any money due to him from the tenant for any por tion of the unexpired term of the tenant's lease. 41.

(1) The trustee is entitled to occupy and to continue in occupation of the leased premises for so long as he re quires the premises for the purposes of the trust estate vested in him.

(2) The trustee shall pay to the landlord for the period during which the trustee actuaJily occupies the leased premises from and after the date of the receiving order or assignment a rental calculated on the basis of the lease.

(3) A payment to be made to the landlord in respect of accelerated rent shall be credited against the amount pay able by the trustee for the period of his occupation. 4~. The trustee may surrender possession at any time, but if he occupies the leased premises for three months or more beyond the date of the receiving order or assign ment the landlord is entitled to receive three months' notice in writing of the trustee's intention to surrender possession, or three months' rent in lieu thereof. 43. After the trustee surrenders possession of the leased premises, such of the landlord's rights as are based upon actual occupation by the trustee cease. 44.

(1) This

section applies only to premises leased by (

a) a retail merchant, wholesale merchant, commission merchant or manufacturer, or

17 45. Disclaimer of lease by trustee.

17 (

b) any person who as his ostensible occupation buys and sells goods, wares or merchandise that are or dinarily the subject of trade and commerce, and used by such person for the purposes of his trade.

(2) Notwithstanding the legal effect of a provision or stipulation in the lease, the trustee (

a) may, at any time while he is in occupation of leased premises for the purpose of the trust estate and be fore he has given notice or intention to surrender possession, or disclaimed, elect to retain the leased premises for the whole or a portion of the unexpired term, and (

b) may, upon payment to the landlord of all overdue rent, assign the lease to a person who (

i) will covenant to dbserve and perform its terms, (ii) will agree to conduct upon the demised premises a trade or business that is not reason ably of a more objectionable or more hazardous nature than that that was conducted thereon by the lessee, and (iii) is on application of the trustee approved by a judge of the Supreme Court as a person fit and proper to be put into possession of the leased premises.

(3) Notwithstanding subsection (2), before the person to whom the lease is assigned may go into occupation, he shall (

a) deposit with the landlord a sum equal to six months' rent, or (

b) supply to the landlord a guarantee bond approved by a judge of the Supreme Court in a penal sum equal to six months' rent, as security to the landlord that he will observe and perform the terms of the lease and the covenants made by him with respect to his occupation of the premises. 45.

(1) The trustee may disclaim the lease at any time (

a) before giving notice of his intention to surrender possession, or (

b) before coming under an obligation to give such notice in case of intention on his part to surrender possession.

(2) The entry of the trustee into possession of the leased premises and the occupation by the trustee of the leased premises while required for the purposes of the trust estate (

a) shall be deemed not to be evidence of an intention on his part to elect to retain the premises, and (

b) dO€s not affect his right to disclaim or to surrender possession pursuant to this Part.

(3) If after occupation of the leased premises the trustee elects to retain them and thereafter assigns the lease to a person approved by a judge as provided by

section 44,

18 46. Protection of interest of under-lessee. 47. Covenant of under-lessee to pay rent. 48. Rights of under-lessee. 49. Application of Par,t 4.

18 (

a) the liabil1ty of the trustee whether personal or as trustee, and whether arising out of privity of con tra0t or of estate, and (

b) the liability of the estate of the lessee, subject to this Part, is limited and confined to the payment of rent for the period of time during which the trustee re mains in possession of the leased premises for the purposes of the trust estate. 46.

(1) Where the tenant before the date of the receiv ing order or assignment has demised by way of under-lease any of the leased premises and the trustee disclaims or elects to assign the lease, a judge of the Supreme Court upon the application of the under-lessee may make an order ve~ting in the under-lessee an interest in the property that is the subject of the demise to him equivalent to that interest held by hinl as under-lessee of the tenant.

(2) The equivalent interest referred to in subsection (1) is subject, except as to rent payable, to the same liabilities and obligations as the lessee was subject to at the date of the receiving order or assignment, and performance shall be secured under the same conditions as prov-ided by

section 44 in case of an assignment of lease made by a trustee. 47. The under-lessee, in a case falling within

section 46, (

a) shall covenant to pay to the landlord a rent not less than that payable by the under-lessee to the tenant, and (

b) if the rent mentioned in clause (

a) was greater than that payable by the tenant to the l'andlord, shall covenant to pay to the landlord the like greater rental. 48.

(1) Section 44 shall be read subject to sections 46 and 47 so that an under-lessee if he so desires may have prior opportunity to acquire the right to the possession for any unexpired term of the premises occupied or held by him of the lessee.

(2) If it seems to a judge of the Supreme Court more desirable in the interest of the tenant's estate, and notwith standing sections 46 and 47, an under-lessee may if he so desires be given a prior opportunity to acquire pursuant to

section 44 an assignment of the head lease. 49. This Part shall be read as intending not to conflict or interfere with the operation of a law of Canada but shall be deemed merely to provide for or regulate the rights and priorities of landlords in the happening of any of the events provided for by

section 49 of the Bankruptcy Act (Canada) .

Section 11a taken from 1737, 11 Geo. 2, c. 19, s. 8. (c) Subsection (3) taken fmm 12'67, 52 Hen. 3, c. 15. (

d) Section 24a taken from 1737, 11 Geo. 2, c. 19, s. 7.

PART 5 MISCEtLAN'E'OUS 50.

(1) The Seizures Act, being

chapter 307 of the Re vised Statutes, is an1ended (

a) by adding the following new

section after

section 11: 11a. ( 1 ) The sheriff may seize under a distress for rent any growing crop of grain or roots upon the l'and ~harged with the rent.

(2) The sheriff may seize under a distress for rent any horses, cattle, swine, poultry, livestock and other domestic animals of the debtor that are graz ing, pasturing or feeding upon any highway or road allowance or upon any way belonging to or apper taining to the land charged with the rent. (

b) as to

section 13, subsection (5) by adding im mediately after the words "writ of execution" the words "or distress warrant", (

c) as to

section 19 by adding the following subsection:

(3) Subject to sections lia and 24a, goods and chattels that are not, at the time of the distress, npon the premises in respect of which the rent dis trained for is due shall not be distrained for rent. (

d) by adding the fol,lowing new

section afte'r

section 24: 24a.

(1) Where a tenant of land held under any kind of tenancy under which rent is payable, fraudulently or clandestinely removes or causes to be removed from the land so held by him any goods and chattels liable to distress, (

a) at a time when there are arrears of rent pay able in respect of land, and (

b) with intent to prevent the landlord from dis training the goods and chattels for the arrears of rent payable, the person charged with the execution of a warrant of distress for the rent may, within thirty days next after such removal, seize as a distress for the arrears any goods and chattels so removed, wher ever they are found. (2) Subsection (1) does not apply to goods and chattels that have been sold or mortgaged for valuable consideration before the seizure to a person not having notice of the fraudulent or clandestine removal.

(3) Where the person charged with the execu tion of the warrant of distress for rent has reason able grounds to and does believe (

a) that any goods and chattels have been fraudul-

20 (2) -

(5) Repeal of enaotments now included in this Act. 51. Commencement of Act.

20 ently or clandestinely removed for the purpose of preventing the landlord from distraining them, and (

b) that the goods are in a building, yard, en closure or place in such circumstances as to prevent them from being seized as a distress for arrears of rent, he may enter into and upon the building, yard, en closure or place, and every part thereof, for the pur pose of searching for goods and chattels so removed and to seize any such goods and chattels found there for arrears of rent as he might have done if they were in an open field or place upon the premises from which they were removed.

(2) The Land Titles Act, being

chapter 170 of the Re vised Statutes, is amended (

a) by striking out sections 99 and 100, (

b) as to

section 101 by striking out the words "In any ,su!ch ,case the" and by substituting the word "The".

(3) The Judicature Act, being

chapter 164 of the Re vised SltaJtutes, is amended by striking out

section 18.

(4) The Trustee Act, being

chapter 346 of the Revised Statutes, is amended by sltriking out

section 35.

(5) The Landlord's Rights on Bankruptcy Act, being

chapter 171 of the Revised Statutes, is repealed. 51. This Act comes into force on the first day of July, 1963. FORMA WRIT OF POSSESSION Elizabeth the Second, by the Grace of God of Canada the United Kingdom, Canada and Her other To wit: Re'a'l'm's and Territories Queen, Head of the Com,monwealth, Defender of the Faith. To the sheriff of Greeting.

Whereas Judge of the district court by his order, dated the day of 19 made in pursuance of The Landlord and Tenant Act, on the complaint of against adjudged that was entitled to the possession of with the appurtenances, in your bailiwick, and ordered that a writ should be issued by our Judge accordingly, and also ordered and directed that should pay the costs of the pro ceedings under the Act, which by our Judge have been taxed at the sum of dollars; Therefore, we command you that withoat delay you cause to have possession of those lands

21 and premises, with the appurtenances: and we also com mand you that of the goods and chattels of in your bailiwick, you cause to be made the sum of dollars, being the costs so taxed by our Judge as aforesaid, and have that money before our Judge immediately after ,the execurtJion hereof, to be rendered to And in what manner you shall have executed this writ, make appear to our Judge immediately after the execution hereof; and have there then this writ, Witness, etc. (Signed) Clerk of the Court. FORM B SUMMONS FOR EVICTION In the matter of landlord, and tenant, and The Landlord and Tenant Act.

To the above named You are hereby summoned to appear before, Judge, at his chambers in the , on the third day after service of a copy hereof upon you, or as ,provided in The Landlord and Tenant Act in that behalf, .at ,the hour of o'clock in the noon, to show cause why an order should not be made for the delivery up to as landlord, of the prem,ises mentioned in his demand, that is to say ; and, further to show cause why an order should not at the same time be m,ade for payment by you of the rent alleged to be in arrear for those premises to the landlord, to be m,ade or levied by distress or otherwise, and also as to the costs of these proceedings.

In default of you so appearing, the landlord may proceed to obtain such order against you as to the Judge it rna.>' seem proper to grant. Dated at , this day of 19 By the Court. (Signed) Clerk of the Court.

22 FOR,M C ORDER FOR POSSEiSSION In the matter of landlord, and tenant, and The Landlord and Tenant Act.

Upon reading the notice of demand in this cas·e, the affidavit of servke thereof, the affidavit of proof of the terms of the demise, of the summons issued herein and the affidav1t of service thereof on the tenant, and no cause being shown by the tenant upon the return of the summons (or, and the tenant appearing but failing to disprove the allegations of the landlord, as the case may be), I do order that the tenant do, upon the production to him of this order, forthwith de liver up possession of the premises in question, namely ( ) , to the landlord, or his proper agent or attorney, of whose authority the possession of this warrant is sufficient proof; and in case of refusal by the tenant so to deliver up possession, or of the tenant being abs,ent or the prem:ises vacant, I do hereby, in accordance with the Aict in that behalf, authorize , with such assistance as he may require, forthwith to proceed to eject and remove the tenant, together with his goods and chattels, if any, from and out of the premises, and, whether the tenant is found in possession or the premises are vacant, put the landlord in possession thereof, that the landlovd take and hold possession thereof freed from the demise; and I do further order that the do make the rent in arrear for the premises, amounting to the sum of together with the costs of the levy therefor, and of all necessary proceedings in respect thereof, subject to the provisions of the Act.

I further award the sum of dollars to the landlord, as his costs of this proceeding, to be paid by the tenant or, in dclault of payment, to be proceeded for and recovered as allowed by law. Da ted at this day of (Signed) Judge 19

No. 68 FIFTH SESSION FOURTEENTH LEGISLATURE 11 ELIZABETH II 1963 BILL

An Act respecting Landlords and Tenants Received and read the First time Second time ..... Third time .................... . HON. MR. MANNING Title: 1963 (14th, 5th) Bill 68,

An Act respecting Landlords and Tenants

Document details

Collection	Alberta — Bills
Citation	L14 S5 1807
Type	bill
Volume / chapter	L14 S5 1807
Language	en
Format	json
Source	PROVINCIAL
Identifier	582a7777ea5e1a032b2d2c7b31b0a5be34efc000

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