With pandemic eviction bans coming to an end, it is likely many landlords will be queueing up for dispute resolution, some for the first time.
Judging by recent decisions coming out of these tribunals, it is apparent that some landlords are going into dispute resolution unprepared and facing the consequences — waiting all this time to move forward only to lose the case.
Improve the odds of a successful dispute resolution by considering these potential issues:
1. A tribunal proceeding appears less formal than appearing before a judge, but in reality, it is a legal proceeding with its own formal requirements. There are strict rules for the form of notices to tenants, the service of those notices, and the sharing of evidence. An arbitrator cannot enter an order against a tenant unless those rules have been followed to the last detail.
With the pandemic still looming, some of these rules have been modified to comply with social distancing protocols. Research the current rules on the tribunal website, call in for clarification, or work with a legal expert who knows what to do.
The consequences of losing a case on a technicality reach far beyond the $100 or so filing fee. With a glut of cases expected, a loss means going back to the end of the line — and the potential for months of additional lost rental income.
2. What qualifies as grounds for eviction may have changed since the pandemic. For example, when evicting a tenant for nonpayment, it now may be necessary to show what efforts the landlord has taken to negotiate a repayment plan. Make certain the case qualifies before bringing a tenant before an arbitrator or the result could be a disgruntled tenant who won’t pay future rent or care for the property.
3. It is possible that if tribunals become overwhelmed with cases, landlords and tenants may be ordered to enter into settlement discussions or mediation. Be prepared to consider a bottom line in the event the case ends through negotiations.
4. The success of the case hinges on documentary evidence and credible testimony from the landlord. To the extent that this evidence is contemporaneous, credibility is boosted. Likewise, if the landlord can demonstrate a familiarity with applicable rental regulations and testifies with confidence and professionalism, the arbitrator is more likely to accept that evidence and enter an order against the tenant.
5. Landlords must be prepared for any defences a tenant might raise if they contest the eviction or dispute resolution process. That requires a working knowledge of the tenancy and the pertinent rental regulations. The most common defences to expect are that the condition of the property is inadequate, the landlord’s records or recollection of the dispute are incorrect, or that the tenant suffered some injury like interference with quiet enjoyment. Also, expect some tenants to argue impossibility due to pandemic-related unemployment.
These defences may be overcome by showing documentation like a condition inspection report, a repayment agreement, a call log, emails, or text messages that document conversations with the tenant. In some cases, however, the landlord either doesn’t have the records needed to overcome a tenant’s claims or doesn’t present this evidence to the arbitrator. That can result in dismissal of the case, or partial or full rent abatement.
6. Landlords may be on the right side of the law, but often they are outmatched because tenants have access to free legal resources to assist them in the dispute resolution process. In a few instances, the tenants have firsthand experience with the tribunal, which gives them a decided advantage.
Don’t take success before a tribunal for granted. Landlord who are not confident in their ability to prosecute the case should consider getting legal advice to guide them through the process.
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Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.