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This version is current as of August 25, 2014.
It has been in effect since October 09, 2008.

Note: Earlier consolidated versions are not available online.


 

C.C.S.M. c. L70

The Landlord and Tenant Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act,

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"crops" means the products of the soil and without limiting the generality of the foregoing includes all sorts of grain, grass, hay, hops, fruits, pulse, and other products of the soil; (« récoltes »)

"family" includes a common-law partner; (« famille »)

"landlord" means the lessor, the owner, or the person giving or permitting the occupation of the premises and that person's heirs, assigns and legal representatives and in Parts II and III includes the person entitled to the possession of the premises; (« locateur »)

"minister" means a member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"standing crops" means crops standing or growing on the demised premises; (« récoltes sur pied »)

"tenant" includes lessee, occupant, sub-tenant, under-tenant, and his or their assigns and legal representatives. (« locataire »)

Registered common-law relationship

1(2)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

S.M. 1990-91, c. 11, s. 204; S.M. 2002, c. 24, s. 33; S.M. 2002, c. 48, s. 28.

Method for service or giving notice, etc.

2(1)        Where, under this Act, a notice, demand, process or other document is required to be served on or given to a person, it may be served on or given to the person

(a) by personal service on the person; or

(b) by leaving it personally with an adult on the premises at the latest address of the person known to the person required to give or serve it; or

(c) except in the case of service required under section 67 or 73, by mailing it by registered mail addressed to the person at the latest address of the person known to the person required to give or serve it.

Substitutional service

2(2)        Where a person required under this Act to serve or give a notice, demand, process or other document on or to another person is unable to serve or give it in accordance with clause (1)(a) or (b), and is unaware or uncertain of any recent address of the other person, the person required to serve or give the notice, demand, process or other document may apply to a judge of the Court of Queen's Bench for an order for substitutional service and the judge may, if he is satisfied that every reasonable effort has been made to serve or give the notice, demand, process or other document on or to the other person, grant an order for such substitutional service on the other person as he deems reasonable.

S.M. 1990-91, c. 11, s. 204.

PART I

LEASES AND TENANCIES COVENANTS RUNNING WITH REVERSION

Remedies accrue to assignees of reversion

3           All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for not performing of other conditions, covenants, or agreements, contained and expressed in the indentures of their leases, demises, or grants against all and every of the lessees and grantees, their executors, administrators, and assigns as the lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times.

Lessee's covenants to run with reversion

4           Rent reserved by a lease and the benefit of every covenant or provision therein contained, having reference to the subject matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other conditions therein contained shall be annexed and incident to, and shall go with, the reversionary estate in the land or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced and taken advantage of by any person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased.

Right of forfeiture before disposition

5           The benefit of every condition of re-entry or forfeiture for a breach of any covenant or condition contained in a lease, extends to, and may be enforced and taken advantage of, by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased, although that person became, by conveyance or otherwise, so entitled after the condition of re-entry or forfeiture had become enforceable.

Remedies apply against assigns of grantor

6           All lessees and grantees of lands, tenements, rents, portions, or any other hereditaments for term of years, life or lives, their executors, administrators, and assigns shall and may have like action, advantage, and remedy against all and every person who shall have any gift or grant of the Queen, or of any other persons, of the reversion of the same lands, tenements and other hereditaments so let, or any parcel thereof, for any condition, covenant, or agreement, contained or expressed in the indentures of their leases as the same lessees or any of them, might and should have had against their lessors, and grantors, their heirs, or successors.

Lessor's covenants to run with reversion

7           The obligation of a covenant entered into by a lessor with reference to the subject matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to, and shall go with, that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, such obligation may be taken advantage of and enforced against any person so entitled.

APPORTIONMENT OF CONDITION OF RE-ENTRY

Apportionment on severance

8(1)        Notwithstanding the severance by conveyance, surrender, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cessor in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease.

Application of sections 5, 7 and 8

8(2)        Sections 5 and 7, and section 8, so far as it is applicable to leases not made by deed, apply only to leases made after April 1, 1931.

SUB-LESSEE AND TITLE TO REVERSION

Sub-lessee cannot call for title

9(1)        On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion.

Saving intention

9(2)        This section applies only if and as far as the contrary intention is not expressed in the contract, and has effect subject to the terms of the contract and to the provisions therein contained.

Application

9(3)        This section applies only to contracts made after April 1, 1931.

DEFECTS IN LEASES MADE UNDER POWERS OF LEASING

Effect of lease where deviation from terms of power

10          Where, in the intended exercise of any power of leasing, whether derived under a statute or under any instrument lawfully creating the power, a lease has been, or is hereafter granted which is, by reason of the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms of the power, invalid as against the person entitled, after the determination of the interest of the person granting the lease, to the reversion, or against other the person who, subject to any lease lawfully granted under the power, would have been entitled to the land comprised in the lease, the lease, in case the same was made in good faith and the lessee named therein, his heirs, executors, administrators, or assigns have entered thereunder, shall be considered a contract for a grant at the request of the lessee, his heirs, executors, administrators, or assigns of a valid lease under such power, to the like purport and effect as the invalid lease, save so far as any variation may be necessary in order to comply with the terms of the power; and all persons who would have been bound by a lease lawfully granted under the power are bound by the contract; but no lessee under any such invalid lease, his heirs, executors, administrators, or assigns, is entitled by virtue of any such contract to obtain any variation of the lease, where the persons who would have been bound by the contract are willing to confirm the lease without variation.

What amounts to confirmation

11          Where, upon or before the acceptance of rent under any such invalid lease, any receipt, memorandum or note in writing confirming the lease is signed by the person accepting the rent, or some other person by him thereunto lawfully authorized, the acceptance shall, as against the person so accepting the rent, be deemed a confirmation of the lease.

Duty of lessee to accept confirmation

12          Where, during the continuance of the possession taken under any such invalid lease, the person, for the time being entitled, subject to the possession, to the land comprised in the lease, or the possession or the receipt of the rent and profits thereof, is able to confirm the lease without variation the lessee, his heirs, executors, or administrators, or any person who would have been bound by the lease if the same had been valid, upon the request of the person so able to confirm the same, shall be bound to accept a confirmation accordingly; and the confirmation may be by memorandum or note in writing signed by the persons confirming and accepting, or by some other persons by them thereunto lawfully authorized; and, after confirmation and acceptance of confirmation, the lease shall be valid and shall be deemed to have had from the granting thereof the same effect as if it had been originally valid.

Lease valid if grantor owner till valid lease can be granted

13          Where a lease granted in the intended exercise of any power of leasing is invalid by reason that, at the time of the granting thereof, the person granting the same could not lawfully grant the lease, but the estate of the person in the land comprised in the lease has continued after the time when such, or the like lease, might have been granted by him in the lawful exercise of the power, the lease shall take effect and be as valid as if it had been granted at such last mentioned time, and all the provisions of sections 10 and 15 apply to every such lease.

What amounts to exercise of power

14          Where a valid power of leasing is vested in, or may be exercised by, a person granting a lease, and, by reason of the determination of the estate or interest of the person or otherwise, the lease cannot have effect and continuance according to the terms thereof independently of the power, the lease shall, for the purposes of sections 10 to 13, be deemed to be granted in the intended exercise of the power although the power is not referred to in the lease.

Saving rights of lessees under covenants and lessor's right of re-entry

15          Nothing in sections 10 to 15 extends to, prejudices or takes away any right of action, or other right or remedy to which, but for sections 10 to 14, the lessee named in any lease, his heirs, executors, administrators, or assigns would or might have been entitled under or by virtue of any covenant for title or quiet enjoyment contained in the lease on the part of the person granting the same, or prejudice, or take away, any right of re-entry, or other right or remedy to which, but for those sections, the person granting the lease, his heirs, executors, administrators, or assigns, or other person, for the time being entitled to the reversion expectant on the determination of the lease, would or might have been entitled for or by reason of any breach of the covenants, conditions, or provisoes contained in the lease, and on the part of the lessee, his heirs, executors, administrators, or assigns to be observed and performed.

MERGER OF REVERSIONS

Effect of surrender or merger

16          Where the reversion expectant on a lease of land merges or is surrendered, the estate which for the time being confers, as against the tenant under the lease, the next vested right to the land shall, to the extent of and for preserving such incidence to, and obligations on, the reversion as, but for the surrender or merger thereof, would have subsisted, be deemed the reversion expectant on the lease.

RIGHT OF RE-ENTRY

Right of re-entry for non-payment of rent

17(1)       In every demise, whether by parol or in writing and whenever made, unless it is otherwise agreed or provided by statute, there shall be deemed to be included an agreement that if the rent reserved, or any part thereof, remains unpaid for 15 days after any of the days on which it ought to have been paid, although no formal demand thereof has been made, it shall be lawful for the landlord at any time thereafter, into and upon the demised premises, or any part thereof in the name of the whole, to re-enter and the same to have again, repossess and enjoy as of his former estate.

Right of re-entry where bawdy house kept

17(2)       In every such demise as aforesaid, if the tenant or any other person is convicted of keeping a disorderly house within the meaning of the Criminal Code (Canada), on the demised premises, or any part thereof, the landlord may at any time thereafter, into the demised premises, or any part thereof, re-enter and the same have again, repossess and enjoy as of his former estate.

FORFEITURE OF LEASES

Definitions

18(1)       In this section and sections 19 to 22,

"action" includes any proceedings under Part III; (« action »)

"lease" includes an original or derivative under-lease and a grant at a fee farm rent or securing a rent by condition and an agreement for a lease where a lessee has become entitled to have his lease granted; (« bail »)

"lessee" includes an original or derivative under-lessee and the heirs, executors, administrators and assigns of a lessee and a grantee under such a grant and his heirs and assigns; (« preneur à bail »)

"lessor" includes an original derivative under-lessor and the heirs, executors, administrators and assigns of a lessor and a grantor under such a grant and his heirs and assigns; (« bailleur »)

"mining lease" means a lease for mining purposes, that is a searching for, working, getting, making merchantable, smelting or otherwise converting or working for the purposes of any manufacture, carrying away or disposing of mines or minerals, and substances in, on or under the land, obtainable by underground or by surface working or purposes connected therewith and shall include a grant or licence for mining purposes; (« bail minier »)

"under-lease" includes an agreement for an under-lease where the under-lessee has become entitled to have his under-lease granted; (« sous-location »)

"under-lessee" includes any person deriving title under or from an under-lessee. (« sous-locataire »)

Restrictions on and relief against forfeiture

18(2)       A right of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any covenant or condition in the lease other than a proviso in respect of the payment of rent, shall not be enforceable, by action, entry, or otherwise, unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach.

Relief against forfeiture

19(1)        Where a lessor 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 lessee may, in the lessor's action, if any, or if there is no such action pending, then in an action or summary application to a judge of the Court of Queen's Bench 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 section 18 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 injunction to restrain any like breach in the future as the court may deem just.

Where right of entry is under statute

19(2)       This section and section 18 apply, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease, or implied therein, in pursuance of the directions of a statute.

Lease until breach

19(3)       For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant, shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach.

Proceedings stayed on payment of rent

19(4)       Where the action is brought to enforce a right of re-entry or forfeiture for non-payment of rent and the lessee, at any time before judgment, pays into court all the rent in arrear and the costs of the action as between solicitor and client, the proceedings in the action shall be forever stayed.

Lessee's position continues

19(5)       Where relief is granted under this section the lessee shall hold and enjoy the demised premises according to the lease thereof made without any new lease.

Application of section

19(6)       This section applies to leases made either before or after the commencement of this Act and shall apply notwithstanding any stipulation to the contrary.

Exceptions

19(7)       This section does not extend

(a) to a covenant or condition against the assigning, under-letting, parting with the possession, or disposing of the land leased; or to a condition for forfeiture on the bankruptcy of the lessee, or on the lessee making an assignment for the benefit of creditors, or on the taking in execution of the lessee's interest; or

(b) in the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof.

Failure to insure

19(8)       Where the right of re-entry or forfeiture is in respect of a breach of a covenant or condition to insure, relief shall not be granted if at the time of the application for relief there is not an insurance on foot in conformity with the covenant or condition to insure except, in addition to any other terms which the court may impose, upon the term that the insurance is effected in accordance with the covenant or condition.

LEASES, UNDER-LEASES, AND FORFEITURE

Protection of under-leases on forfeiture

20          Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, the court, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor's action, if any, or in any action or summary application to a judge of the Court of Queen's Bench brought by the person for that purpose, may 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 under-lessee to any estate or interest in the property upon such conditions, as to execution of any deed or other document, payment of rents, costs, expenses, damages, compensation, giving security or otherwise, as the court in the circumstances of each case shall think fit; but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease.

Parties to action for forfeiture

21          Where a lessor is proceeding by action to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, every person claiming any right, title or interest in the demised premises under the lease, if it be known to the lessor that he claims such right or interest or if the instrument under which he claims is registered in the proper registry or land titles office, shall be made a party to the action.

Licence to assign not to be withheld unreasonably

22(1)       In every lease made after April 1, 1931, containing a covenant, condition or agreement against assigning, under-letting, or parting with the possession, or disposing of the land or property leased without licence or consent, the covenant, condition or agreement shall, unless the lease contains an expressed provision to the contrary, be deemed to be subject to a proviso to the effect that the licence or consent shall not be unreasonably withheld.

Application to court where licence withheld

22(2)       Where the landlord refuses or neglects to give a licence or consent to an assignment or sub-lease, a judge of the Court of Queen's Bench, upon the application of the tenant or of the assignee or sub-tenant, made by way of originating notice according to the practice of the Court of Queen's Bench, may make an order determining whether or not the licence or consent is unreasonably withheld; and, where the judge is of opinion that the licence or consent in unreasonably withheld, permitting the assignment or sub-lease to be made; and the order is the equivalent of the licence or consent of the landlord within the meaning of any covenant or condition requiring it, and the assignment or sub-lease is not a breach thereof.

LICENCES

Restriction of effect of licence under power

23          Where a licence to do any act which, without the licence, would create a forfeiture, or give a right to re-enter under a condition or power reserved in a lease, is given to a lessee or his assigns, every licence shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant, or to the actual assignment, under-lease or other matter thereby specifically authorized to be done, but shall not prevent a proceeding for any subsequent breach unless otherwise specified in the licence; and all rights under covenants and powers of forfeiture and re-entry in the lease contained shall remain in full force and virtue, and shall be available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by the licence, in the same manner as if no licence had been given; and the condition or right of re-entry shall be and remain in all respects as if the licence had not been given, except in respect of the particular matter authorized to be done.

Restricted operation of partial licences

24          Where in a lease there is a power or condition of re-entry on assigning or under-letting or doing any other specified act without licence, and a licence has been or is given to one of several lessees or co-owners to assign or under-let his share or interest, or to do any other act prohibited to be done without licence, or has been or is given to a lessee or owner, or anyone of several lessees or owners, to assign or under-let part only of the property, or to do any other such act in respect of part only of the property, the licence shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees or owner or owners of the other shares of interest in the property, or by the lessee or owner of the rest of the property, over or in respect of the shares or interest or remaining property, but the right of re-entry shall remain in full force over or in respect of the shares or interests or property not subject of the licence.

WAIVER OF COVENANT

Restriction of effect of waiver

25          Where an actual waiver of the benefit of a covenant or condition in a lease, on the part of a lessor or his heirs, executors, administrators or assigns, is proved to have taken place in any one particular instance the actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which the waiver specially relates, nor to be a general waiver of the benefit of any such covenant or condition unless an intention to that effect appears.

COVENANT TO PAY TAXES

Taxes not include local improvements

26          Unless it is otherwise specifically provided in a lease made after April 1, 1931, a covenant by a lessee for payment of taxes shall not be deemed to include an obligation to pay taxes assessed for local improvements.

NOTICES TO QUIT

Notice to quit

27          A week's notice to quit and a month's notice to quit, respectively, ending with the week or the month, is sufficient notice to determine, respectively, a weekly or monthly tenancy.

TENANT TO NOTIFY LANDLORD

Penalty for not notifying landlord

28          Every tenant to whom a writ in an action for the recovery of land has been delivered, or to whose knowledge it comes, shall forthwith give notice thereof to his landlord, or to his landlord's bailiff or receiver; and, if he omits so to do, he is answerable to his landlord for all damages sustained by him by reason of the failure to give the notice.

DISTRESS FOR RENT

Distress for three month's arrears

29(1)       No person may distrain as against the tenant or any other person for more than the next preceding three month's arrears of rent where the rent is payable quarterly or more frequently, nor for more than the next preceding one year's arrears where the rent is payable less frequently than quarterly.

Distress reasonable

29(2)       Distress shall be reasonable.

Distress for rents seck

29(3)       Every person may have the like remedy by distress, and by impounding and selling the property distrained in a case of rent-seck, as in case of rent reserved upon lease.

Distress on determination

30          A person having any rent due and in arrear, upon any lease for life or lives or for years, or at will, ended or determined, may distrain for the arrears, after the determination of the lease, in the same manner as he might have done if the lease had not been ended or determined, if the distress is made during the continuance of the landlord's title or interest, and during the possession of the tenant from whom the arrears became due.

Distress in case of death

31          A person entitled to any rent or land for the life of another may recover by action or distress the rent due and owing at the time of the death of the person 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.

Personal representative may distrain

32          The executors or administrators of a landlord may distrain for the arrears of rent due to the landlord in his lifetime and may sue for the arrears in like manner as the landlord might have done if living; and the powers and provisions contained in this Act relating to distresses for rent are applicable to the distresses so made.

PROPERTY LIABLE TO DISTRESS

Right to distrain grain, etc.

33          A person having rent due and in arrear upon any demise, lease, or contract may seize and secure any sheaves or cocks of grain, or grain loose, or in the straw, or hay, lying or being in any barn or granary or otherwise upon any part of the land charged with the rent, and may lock up or detain the same, in the place where the same is found, for or in the nature of a distress until the same is replevied, and, in default of the same being replevied, may remove and sell the same.

Right to distrain cattle, etc.

34(1)       A landlord may take and seize, as a distress for arrears of rent, any cattle or livestock of his tenant feeding or pasturing upon any highway, or on any way belonging to the demised premises or any part thereof.

Right to distrain standing crops

34(2)       Subject to subsection (4), a landlord may take and seize standing crops as a distress for arrears of rent, and may cut, gather, make, cure, carry, lay up and thresh the same, when ripe, in the barns or other proper place on the demised premises, and if there is none on the demised premises then in another barn or proper place which the landlord hires or otherwise procures for that purpose as near as may be to the premises, and may in convenient time appraise, sell or otherwise dispose of the same towards satisfaction for the rent for which the distress is made, and of the charges of the distress, appraisement and sale in the same manner as other goods and chattels may be seized, distrained and disposed of, and the appraisement thereof shall be taken when cut, gathered, threshed, cured, and made and not before.

Notice to tenant

34(3)       Notice of the place where the goods and chattels so distrained are lodged or deposited, shall, within one week after the lodging or depositing thereof, be given to the tenant or left at his last place of abode.

Satisfying such distress

34(4)       If, after a distress of standing crops so taken for arrears of rent, and at any time before the same are ripe and cut, cured or gathered, the tenant pays to the landlord for whom the distress is taken the whole rent then in arrear, with the full costs and charges of making the distress and occasioned thereby, then, upon the payment or lawful tender thereof the same and every part thereof shall cease, and the standing crops so distrained shall be delivered up to the tenant.

Sale of crops

34(5)       Where standing crops are distrained for rent they may, at the option of the landlord, be advertised and sold in the same manner as other goods; and it shall not be necessary for the landlord to reap, thresh, gather or otherwise market the same.

Liability of purchaser for occupation

34(6)       Any person purchasing standing crops at the sale shall be liable for the rent of the land upon which the same are standing at the time of the sale, from that time until the same are removed, unless the rent has been paid or has been collected, by the landlord, or has been otherwise satisfied, and the rent shall as nearly as may be, be the same as that which the tenant whose goods were sold was to pay, having regard to the quantity of land, and to the time during which the purchaser occupies it.

Chattels off premises not to be distrained

35          Save as herein otherwise provided, goods or chattels that are not at the time of the distress upon the premises in respect of which the rent distrained for is due shall not be distrained for rent.

Exemptions from seizure

36(1)       The following chattels are exempt from seizure under any landlord's warrant of distress, namely:

(a) the beds, bedding and bedsteads (including perambulators or cradles) in ordinary use by the debtor and his family;

(b) the necessary and ordinary wearing apparel of the debtor and his family;

(c) one cooking stove with pipes and furnishings, one other heating stove with pipes, two towels, one washbasin, one kitchen table, one tea kettle, one teapot, one saucepan, one frying pan, and for each member of the family the following, namely: one chair, one cup and saucer, one plate, one knife, one fork and one spoon;

(d) all necessary fuel, meat, fish, flour and vegetables for the ordinary consumption of the debtor and his family for 30 days;

(e) the tools, agricultural implements and necessaries used by the debtor in the practice of his trade, profession or occupation, to the value of $600.; and

(f) 50 volumes of books, the books of a professional man, one axe, one saw.

Selections of exemptions

36(2)       The person claiming the exemption shall select and point out the goods and chattels which he claims to be exempt.

Exemptions cannot be waived in leases, etc.

36(3)       Every agreement in any oral or written lease to waive or abandon an exemption from seizure or a benefit, right or privilege of exemption from seizure under this Act and every arrangement, contract or bargain, oral or written, under seal or otherwise, collateral to a lease and every security agreement, as defined in The Personal Property Security Act, that is security for a lease, made or entered into, with or without valuable consideration, whereby an attempt is made to prevent any person from claiming any benefit, right or privilege of exemption under this Act, is void.

S.M. 1993, c. 14, s. 83.

Right to distrain limited to goods of tenant

37          A landlord shall not distrain for rent on goods and chattels the property of any person except the tenant or person who is liable for the rent, although they are found on the premises; but this restriction does not apply,

(a) to crops or grain in favour of a person claiming title under or by virtue of an execution or attachment against the tenant; or

(b) in favour of any person whose title is derived by purchase, gift, transfer or assignment from the tenant, whether absolute or in trust, or by way of a security agreement, as defined in The Personal Property Security Act, other than a security agreement that is a purchase money security interest, as defined in The Personal Property Security Act, in respect of which, at the time the landlord distrains, a financing statement is filed in the Personal Property Registry; or

(c) to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase or by which he may or is to become the owner thereof upon performance of any condition; or

(d) where goods have been exchanged between two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of, or the right of distress by, the landlord; or

(e) where the property is claimed by the spouse, common-law partner, daughter, son, daughter-in-law or son-in-law of the tenant, or by any other relative of his in case the other relative lives on the premises as a member of the tenant's family; or

(f) in favour of any person whose title is derived by purchase, gift, transfer or assignment, whether absolute or in trust, or by way of a security agreement, as defined in The Personal Property Security Act, other than a security agreement that is a purchase money security interest, as defined in The Personal Property Security Act, in respect of which, at the time the landlord distrains, a financing statement is filed in the Personal Property Registry, from the spouse, common-law partner, daughter, son, daughter-in-law or son-in-law of the tenant, or from any other relative of his in case the other relative lives on the premises as a member of the tenant's family.

S.M. 1993, c. 14, s. 83; S.M. 2002, c. 24, s. 33; S.M. 2008, c. 42, s. 53.

Mortgagee or vendor not to distrain goods of tenant exempt from execution

38(1)       The right of a mortgagee of land or of a vendor of land, with or without chattels, under an agreement of sale, or the assigns of either, to distrain under this Act or otherwise for an amount payable under the mortgage or agreement of sale, is notwithstanding anything to the contrary in the mortgage or agreement of sale or in any other agreement relating thereto, limited (except as in this section otherwise provided) to the goods and chattels of the mortgagor or purchaser, and is also limited to such goods and chattels as are not exempt from seizure under execution; but no grain shall be exempt by reason of being grown on exempt land.

Mortgagee or vendor may serve notice and recover rent or rental value

38(2)       In addition to, or concurrently with, the exercise of any other remedy a mortgagee or vendor by a notice in writing served upon the tenant or other person occupying the land may require the tenant or occupant to pay him, in the case of a tenant, the rent, or in the case of an occupant not a tenant, the rental value of the land or so much thereof in either case as has not already been paid and to continue to pay it from time to time as it falls due to the extent, and to be applied on account, of

(a) the interest due, and all taxes or levies and premiums of insurance payable by the mortgagor or purchaser under the mortgage or agreement of sale; and

(b) all moneys which the mortgagee or vendor has paid upon or in respect of a prior mortgage or charge upon the land and for the payment of which the mortgagor or purchaser is liable;

and subject to the exemptions from seizure provided in this section, the rent or rental value may be recovered by the mortgagee or vendor serving the notice, from the tenant or occupant, in the same manner, and with the same rights, as if the relation of landlord and tenant existed between the mortgagee or vendor and the tenant or occupant.

Consent of prior mortgagees

38(3)       A mortgagee or vendor may exercise the rights conferred by subsection (2) only with the previous consent in writing of all prior mortgagees and vendors or in the absence of that consent only while no such prior mortgagee or vendor is exercising his rights to recover the rent or rental value.

Determination and settlement of disputes as to rental value

38(4)       The amount and periods for payment of the rental value claimed by such a mortgagee or vendor and the time of payment thereof shall be specified in the notice served on the occupant, and the amount shall be the fair rental value of the premises, and the periods for payment, in default of an agreement to the contrary in pursuance of which the occupant has possession of the premises, shall be in accordance with the usual practice relating to premises of a similar nature; and in case the occupant disputes the amount claimed or the period for, or time of, payment thereof, he may apply, and whether disputed or not the mortgagee or vendor may apply, to a judge of the Court of Queen's Bench under Part II, and that Part shall apply, with such modifications as the circumstances require, to the settlement of disputes or to the determination of any question relating to rental value between mortgagees or vendors and occupants of land.

Mortgagee accountable for receipts

38(5)       No mortgagee or vendor shall, when acting under this section, be held accountable for any rent or money claimed as rental value not actually received by him, but all moneys received by him shall be pro tanto satisfaction of the rent or other sums owing by the tenant or occupant.

Application of section

38(6)       This section applies to the personal representatives, successors and assigns of a mortgagee or vendor, and applies in the case of any mortgage or agreement of sale whenever made; but nothing in this section affects any pending litigation.

TENANT'S RIGHT OF SET-OFF

Right of set-off

39(1)       A tenant may set-off against the rent due a debt due to him by the landlord, in which case he shall give notice of the claim or set-off in Form 1 in the Schedule, which may be given before or after the seizure.

Effect of notice

39(2)       When the notice is given the landlord is entitled to distrain, or to proceed with the distress, only for the balance of the rent after deducting any debt justly due by him to the tenant which is mentioned in the notice.

Service of notice

39(3)       The notice may be served either personally or by leaving it with a grown-up person in, and apparently residing on, the premises occupied by the person to be served; and if the landlord cannot be found and his place of abode is not known, or admission thereto cannot be obtained, the posting up of the notice on some conspicuous part of the premises is good service.

Defects not to invalidate

39(4)       No proceeding under this section is rendered invalid by any defect in form.

FRAUDULENT REMOVAL

Landlords may distrain goods carried off for 30 days

40(1)       Where any tenant, for life or lives, term of years, at will, sufferance, or otherwise, of any messuages, lands, tenements, or hereditaments, upon the demise or holding whereof any rent is reserved, due, or made payable, fraudulently or clandestinely conveys away, or carries off or from the premises his goods or chattels to prevent the landlord from distraining the same for arrears of rent so reserved, due or made payable, the landlord or any person by him for that purpose lawfully empowered, may, within 30 days next ensuing the conveying away or carrying off, take and seize such goods and chattels wherever the same are found, as a distress for the arrears of rent, and the same sell or otherwise dispose of in such manner as if the goods and chattels had actually been distrained by the landlord upon the premises for the arrears of rent.

Exemptions

40(2)       No landlord or other person entitled to the arrears of rent shall take or seize, as a distress for the same, any such goods or chattels which have been sold in good faith and for a valuable consideration, before the seizure made, to any person not privy to such fraud.

Right of landlord to break open buildings, etc.

41          Where any goods or chattels fraudulently or clandestinely conveyed or carried away by any tenant, his servant, or agent, or other person aiding or assisting therein are or are believed to be in any house, barn, stable, outhouse, yard, close or place, locked up, fastened or otherwise secured so as to prevent them from being taken and seized as a distress for arrears of rent, the landlord or his agent may take and seize, as a distress for rent, the goods and chattels, first calling to his assistance a constable or peace officer who is hereby required to aid and assist therein, and, in case of a dwelling house, oath being also first made of a reasonable ground to believe that the goods or chattels are therein, and in the day time, break open and enter into the house, barn, stable, outhouse, yard, close or place and take and seize such goods and chattels for the arrears of rent as he might have done if they were in an open field or place upon the premises from which they were so conveyed or carried away.

Penalty for fraudulent removal

42          If a tenant so fraudulently removes, conveys away or carries off his goods or chattels, or if any person wilfully and knowingly aids or assists him in so doing, or in concealing the same, every person so offending shall forfeit and pay to the landlord double the value of the goods, to be recovered by action in any court of competent jurisdiction.

IMPOUNDING DISTRESS

Beasts distrained

43(1)       Beasts or cattle distrained shall not be removed or driven out of the municipality in which they are distrained.

Separate impoundment

43(2)       No cattle, or other goods or chattels, distrained or taken by way of distress for any cause at one time shall be impounded in several places.

Penalty

43(3)       Every person offending against this section shall forfeit to the person aggrieved $20. in addition to the damages sustained by him.

Where goods to be impounded

43(4)       Any person lawfully taking any distress for any kind of rent may impound, or otherwise secure the distress so made, in such place or on such part of the premises chargeable with the rent as is most fit and convenient for that purpose, and may appraise, sell and dispose of the same upon the premises; and it shall be lawful for any person to come and go to and from such place or part of the premises where any distress for rent is so impounded and secured, to view, appraise and buy, and to carry off or remove the same on account of the purchaser thereof.

POUND BREACH, OR RESCUE

Damages for pound breach

44          Upon any pound breach or rescue of goods or chattels distrained for rent the person offending, or the owner of the goods distrained, in case the same are afterwards found to have come to his use or possession, shall forfeit to the person aggrieved $20. in addition to the damages sustained by him.

SALE OF GOODS DISTRAINED

Sale of distress when made

45          Where any goods or chattels are distrained for any rent reserved and due upon any demise, lease or contract, and the tenant or owner of them does not, within five days next after the distress taken and notice thereof with the cause of the taking, left at the dwelling house or other most conspicuous place on the premises charged with the rent distrained for, replevy the same, then, after the distress and notice and the expiration of the five days, the person distraining shall cause the goods and chattels so distrained to be appraised by two appraisers, who shall first be sworn to appraise the same truly, according to the best of their understandings, a memorandum of which oath is to be endorsed on the inventory, and after the appraisement the person so distraining may lawfully sell the goods and chattels so distrained for the best price which can be got for the same towards satisfaction of the rent for which the same were distrained and of the charges of the distress, appraisement and sale, and shall hold the over-plus, if any, for the owner's use and pay the same over to him on demand.

RIGHT OF LANDLORD ON TENANT'S BANKRUPTCY

Lien of landlord in bankruptcy

46(1)       In case of an assignment for the general benefit of creditors, or an order being made for the winding-up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the preferential lien of the landlord for rent is restricted to the arrears of rent due during the period of three months next preceding, and for three months following the execution of the assignment, and from thence so long as the assignee retains possession of the premises; but any payment to be made to the landlord in respect of accelerated rent shall be credited against the amount payable by the assignee, liquidator or trustee for the period of his occupation.

Rights of assignee

46(2)       Notwithstanding any provision, stipulation, or agreement, in any lease or agreement or the legal effect thereof, in case of an assignment for the general benefit of creditors, or an order being made for the winding-up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the assignee, liquidator or trustee may, at any time within three months thereafter, for the purposes of the trust estate and before he has given notice of intention to surrender possession or disclaim, by notice in writing, elect to retain the leased premises for the whole or any portion of the unexpired term and any renewal thereof, upon the terms of the lease and subject to the payment of the rent as provided by the lease or agreement; and he may upon payment to the landlord of all arrears of rent, assign the lease with rights of renewal, if any, to any person,

(a) who covenants to observe and perform its terms and agrees to conduct upon the demised premises a trade or business that is not reasonably of a more objectionable or hazardous nature than that which was thereon conducted by the debtor; and

(b) who on application of the assignee, liquidator or trustees, is approved by a judge of the Court of Queen's Bench as a person fit and proper to be put in possession of the leased premises.

Election of assignee to surrender

47(1)       The assignee, liquidator or trustee has the further right, at any time before so electing, by notice in writing to the landlord, to surrender possession or disclaim any such lease; and his entry into possession of the leased premises and the occupation thereof by him, while required for the purposes of the trust estate, shall not be deemed to be evidence of an intention on his part to elect to retain possession under section 46.

Right of sub-tenants

47(2)       Where the assignor, or the person or firm or corporation against whom a receiving order has been made in bankruptcy, or a winding-up order has been made, being a lessee, has, before the making of the assignment or order, demised by way of under-lease, approved or consented to in writing by the landlord, any premises and the assignee, liquidator or trustee surrenders, disclaims or elects to assign the lease, the under-lessee shall, if he so elects in writing within three months of the assignment or order, stand in the same position with the landlord as though he were a direct lessee from the landlord, but subject, except as to rental payable, to the same liabilities and obligations as the assignor, bankrupt or insolvent company was subject to under the lease at the date of the assignment or order.

Rental from under-lessee

47(3)       The under-lessee shall, in that event, be required to covenant to pay to the landlord a rental not less than that payable by the under-lessee to the debtor, and if the last mentioned rental was greater than that payable by the debtor to the landlord the under-lessee shall be required to covenant to pay to the landlord the like greater rental.

Settlement of dispute

47(4)       Where a dispute arises under this section, it shall be disposed of, upon a summary application, by a judge of the Court of Queen's Bench.

DISTRAINABLE GOODS TAKEN IN EXECUTION

Goods taken in execution subject to rent

48(1)       Goods or chattels lying or being in or upon any land leased for life or lives, or term of years, at will or otherwise shall not be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the execution is sued out before the removal of the goods or chattels from the premises by virtue of the execution, pays to the landlord or his bailiff all money due for rent of the premises at the time of the taking of the goods or chattels by virtue of the execution if the arrears of rent do not amount to more than three months' arrears of rent when the rent is payable quarterly or more frequently, or to more than one year's arrears when the rent is payable less frequently than quarterly.

When execution can proceed

48(2)       If the arrears exceed three months' rent, when the rent is payable quarterly or more frequently or one year's rent when the rent is payable less frequently than quarterly the party at whose suit the execution is sued out, on paying the landlord or his bailiff the three months' arrears in cases when the rent is payable quarterly or more frequently or the one year's rent in other cases, may proceed to execute his judgment.

Payment to execution creditor

48(3)       The sheriff or other officer shall levy and pay to the execution creditor the money so paid for rent in addition to the execution money.

Crops seized while on land liable for rent

49          Where all or any part of the standing crops of the tenant of any land is seized and sold by any sheriff or other officer by virtue of any writ of execution the crops, so long as the same remain on the land in default of sufficient distress of the goods and chattels of the tenant, shall be liable for the rent which may accrue and become due to the landlord after any such seizure and sale, and to the remedies by distress for recovery of the rent, and that notwithstanding any bargain and sale or assignment which may have been made or executed of the crop by any such sheriff or other officer.

WRONGFUL OR IRREGULAR DISTRESS

Irregularities not to void distress

50          Where any distress is made for any kind of rent justly due, and any irregularity is afterwards done by the person distraining, or by his agent, or if there has been an omission to make the appraisement under oath, the distress itself shall not be therefor deemed to be unlawful, nor the person making it deemed a trespasser ab initio, but the person aggrieved by the irregularity may recover by action full satisfaction for the special damage sustained thereby.

Damages for wrongful distress

51(1)       A distrainor who takes an excessive distress, or takes a distress wrongfully, shall be liable in damages to the owner of the goods or chattels distrained.

Where no rent due

51(2)       Where a distress and sale are made for rent pretended to be in arrear and due when, in truth, no rent is in arrear or due to the person distraining, or to the person in whose name or right the distress is taken, the owner of the goods or chattels distrained and sold, his executors or administrators shall be entitled, by action to be brought against the person so distraining, to recover full satisfaction for the damage sustained by the distress and sale.

LIABILITY OF TENANTS OVERHOLDING

Penalty double value for overholding

52          Where a tenant for any term for life, lives, or years, or other person who comes into possession of any land, by, from, or under, or by collusion with, the tenant, wilfully holds over the land or any part thereof after the determination of the term, and after notice in writing given for delivering the possession thereof by his landlord or the person to whom the remainder or reversion of the land belongs or his agent thereunto lawfully authorized, the tenant or other person so holding over shall, for and during the time he so holds over or keeps the person entitled out of possession, pay to the person or his assigns at the rate of double the yearly value of the land so detained for so long as the same is detained, to be recovered by action in any court of competent jurisdiction, against the recovering of which penalty there shall be no relief.

Double rent where notice to quit

53          Where a tenant gives notice of his intention to quit the premises by him holden at a time mentioned in the notice, and does not accordingly deliver up the possession thereof at the time mentioned in the notice the tenant shall from thenceforward pay to the landlord double the rent or sum which he should otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent or sum before giving the notice could be levied, sued for, or recovered; and the double rent or sum shall continue to be paid while the tenant continues in possession.

ATTORNMENT

Agreement to attorn in mortgage valid

54(1)       Where a mortgagor of land or a purchaser of land, with or without chattels, agrees in writing either in the mortgage or agreement of sale or by a collateral or subsequent writing to attorn, or to be or become the tenant of the mortgagee or vendor of the land, as the case may be, the relationship of landlord and tenant shall be held to be validly constituted between the parties for all purposes and against all persons whomsoever.

Effect of

54(2)       Such an agreement in writing does not, nor does the receipt of rent falling due thereunder, render the mortgagee or vendor accountable for any rent not actually received by him.

Application

54(3)       Nothing in this section affects the rights of any parties in an action or proceeding pending on April 1, 1931.

Nullity of attornment to stranger

55(1)       Every attornment of a tenant of any land to a stranger claiming title to the estate of his landlord shall be void, and the possession of his landlord shall not be deemed to be changed, altered or affected by the attornment; but nothing herein vacates or affects an attornment made

(a) pursuant to and in consequence of a judgment or order of a court; or

(b) with the privity and consent of the landlord.

Mortgages excepted

55(2)       Nothing herein alters, prejudices, or affects any rights which a vendor, mortgagee or encumbrancee may now possess under any law or statute.

Attornment not necessary

56(1)       Every grant or conveyance of any rent or of the reversion or remainder of any land shall be good and effectual without any attornment of the tenant of the land out of which the rent issues, or of the particular tenant upon whose particular estate any such reversion or remainder is expectant or depending.

Tenant not to be prejudiced

56(2)       A tenant shall not be prejudiced or damaged by the payment of rent to any grantor or by breach of any condition for non-payment of rent before notice to him of the grant by the grantee.

RENEWALS OR LEASES

Chief leases renewed without surrender of under-leases

57(1)       Where a lease is duly surrendered in order to be renewed, and a new lease is made and executed by the chief landlord, the new lease shall, without a surrender of all or any of the under-leases, be as good and valid as if all the under-leases derived thereout had been likewise surrendered at or before the time of taking of the new lease.

Rights of parties thereunder

57(2)       Every person in whom any estate for life, or lives, or for years, is from time to time vested by virtue of the new lease, shall be entitled to the rents, covenants and duties, and have like remedy for recovery thereof, and the under-lessees shall hold and enjoy the land in the respective under-leases comprised as if the original lease had been kept on foot and continued; and the chief landlord shall have and be entitled to such and the same remedy by distress or entry in and upon the land comprised in any such under-leases 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 under-lease was derived, as he would have had if the former lease had been still continued or as he would have had if the respective under-leases had been renewed under the new principal lease.

RENEWAL OF LEASE BY ABSENTEES

Renewal on order of court in case of absentees

58(1)       Where any person who, in pursuance of any covenant or agreement in writing, if within Manitoba and amenable to the process of the Court of Queen's Bench, might be compelled to execute any lease by way of renewal, is not within Manitoba, or is not amenable to the process of the court, the court, on the motion of any person entitled to the renewal, whether the person is or is not under any disability, 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 the same.

Validity of

58(2)       A new lease executed by the person so appointed shall be as valid as if the person in whose name the same was made was alive and not under any disability and had himself executed it.

Direction to bring action

58(3)       In every such case it shall be in the discretion of the court to direct an action to be brought to establish the right of the person seeking renewal and not to make the order for the new lease unless by the judgment to be made in the action or until after it has been entered.

Conditions of

58(4)       A renewed lease shall not be executed by virtue of this section in pursuance of any covenant, or agreement, unless the sum or sums of money, if any, which ought to be paid on the renewal and the things, if any, which ought to be performed in pursuance of the covenant or agreement by the tenant are first paid and performed, and counterparts of every such renewed lease shall be duly executed by the tenant.

Payments for to be disposed of by court

58(5)       All sums of money which are had, received, or paid for, or on account of, the renewal of any lease by any person out of Manitoba or not amenable to the process of the Court of Queen's Bench after a deduction of all necessary incidental charges and expenses, shall be paid to such person or in such manner or into the Court of Queen's Bench to such account, and be applied and disposed of as the court shall direct.

Costs

58(6)       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 the rents in respect of which the same are respectively made, in such manner as the court shall deem proper.

PART II

DISPUTES AS TO RIGHT TO DISTRAIN

Definition of "judge"

59          In this Part "judge" means a judge of the Court of Queen's Bench.

Disputes as to distress

60(1)       Where goods or chattels are distrained by a landlord for arrears of rent, and the tenant disputes the right of the landlord to distrain in respect of the whole or any part of the goods or chattels, or disputes the amount claimed by the landlord, or the tenant claims to set-off against the rent a debt which the landlord disputes, the landlord or the tenant may apply to the judge to determine the matters so in dispute, and the judge may hear and determine the same in a summary way, and may make such order in the premises as he may deem just.

Application to judge

60(2)       Where the tenant disputes the right of the landlord to distrain in respect of the whole or any part of the goods or chattels, or disputes the amount claimed by the landlord, the landlord or the tenant may before any distress has been made apply to the judge to determine the matter so in dispute, and the judge may hear and determine the same in a summary way, and may make such order in the premises as he may deem just.

Order pending determination

61          Where notice of such an application has been given to the landlord or tenant, as the case may be, the judge, pending the disposition of it by him, may make such order as he may deem just

(a) for the restoration to the tenant of the whole or any part of the goods or chattels distrained, or preventing a distress being made, upon the tenant giving security, by payment into court or otherwise as the judge may direct; or

(b) for the payment of the rent which shall be found due to the landlord and for the costs of the distress and of the proceedings before the judge and of any appeal from his order, or such of them as the tenant may be ordered to pay.

Jurisdiction of judge

62          The judge has jurisdiction and authority to determine any question arising upon the application that the court of which he is judge has jurisdiction to determine in an action brought in that court.

Judgment final

63          Where the amount claimed by the landlord does not exceed $100. the decision of the judge is final.

Appeal from summary trial

64          Where the amount claimed by the landlord exceeds $100., an appeal lies from any order of the judge, made on an application to him under section 60, by which the matters in dispute are determined, in like manner as if they were a judgment of the court of which he is judge pronounced in an action.

Appeal from trial

65          Where an issue is tried there is the same right of appeal from the judgment as if the judgment had been pronounced in an action.

Other remedies preserved

66          Nothing in this Part takes away or affects any remedy that a tenant may have against his landlord or requires a tenant to proceed under this Part instead of by bringing an action; but where, instead of proceeding under this Part, he proceeds by action, the court in which the action is brought, if of opinion that it was unnecessarily brought and that a complete remedy might have been had by a proceeding under this Part, may direct the tenant, although he succeeds, to pay any additional costs occasioned by his having brought the action.

PART III

PROCEEDINGS AGAINST OVERHOLDING TENANTS

Application to judge for writ of possession

67(1)       Where a tenant after his lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in any lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects upon demand made in writing to go out of possession of the land demised to him, or which he has been permitted to occupy, his landlord may apply to a judge of the Court of Queen's Bench, to make the inquiry hereinafter provided for.

Material required

67(2)       The landlord shall

(a) set forth, on affidavit, the terms of the demise or right of occupation, if oral;

(b) annex a copy of the instrument creating or containing the demise or right of occupation, if in writing, or, if for any cause a copy cannot be so annexed, then he shall make a statement setting forth the terms of the demise or occupation and the reason why the copy cannot be annexed;

(c) annex a copy of the demand;

(d) state the refusal of the tenant to go out of possession, and the reasons given for the refusal, if any were given; and

(e) add such explanation in regard to the ground of such refusal as the truth of the case may require.

Inquiry and determination

67(3)       The judge shall, in writing, appoint a time and place at which he will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired, or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession.

Notice of proceedings

67(4)       The application under subsection (1) together with a copy of the judge's appointment, a copy of the affidavit required under subsection (2) and copies of other documents to be used on the application, shall be served on the tenant at least five days before the day appointed by the judge for the inquiry into the matter.

Queen's Bench rules apply

68          Except as otherwise varied by this Part, The Queen's Bench Act applies to applications made and proceedings had under this Part.

Intituling proceedings

69          The proceedings under this Part shall be intituled in the Court of Queen's Bench and shall be styled:

"In the matter of (giving the name of the party complaining), landlord, against (giving the name of the party complained against), tenant."

Procedure on default

70(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 landlord, may order a writ of possession in Form 2 in the Schedule, directed to a sheriff, commanding him forthwith to place the landlord in possession of the land.

On appearance

70(2)       Where the tenant appears, the judge shall, in a summary manner, hear the parties and their witnesses and examine into the matter; and if it appears to the judge that the tenant wrongfully holds against the right of the landlord he may order the issue of the writ.

Proceedings court records

70(3)       Such proceedings shall form part of the records of the Court of Queen's Bench.

Power to amend

71          The judge has the same power to amend or excuse irregularities in the proceedings as he would have in an action.

Appeal from order

72(1)       An appeal lies to The Court of Appeal from the order of the judge granting or refusing a writ of possession; and the provisions of The Queen's Bench Act as to appeals apply to the appeal.

Discharging order for possession

72(2)       Where The Court of Appeal is of opinion that the right to possession should not be determined in a proceeding under this Part, the court may discharge the order of the judge, and the landlord may in that case proceed by action for the recovery of possession.

Possession restored

72(3)       When the order is discharged, if possession has been given to the landlord under a writ of possession, the court may direct that possession be restored to the tenant.

SUMMARY PROCEEDINGS FOR NON-PAYMENT OF RENT

Application for possession on failure to pay rent

73(1)       If a tenant fails to pay his rent within three days after the time agreed upon, and

wrongfully refuses or neglects upon demand made in writing and served upon him to pay the rent or to deliver up the premises demised, the landlord may apply to a judge of the Court of Queen's Bench for an order for eviction of the tenant from the premises.

Application of subsecs. 67(2), (3) and (4) to application

73(2)       Subsections 67(2), 67(3) and 67(4) apply with such modifications as the circumstances require to an application made under subsection (1).

Hearings

73(3)       At the time and place appointed for the inquiry and the determination of the application under subsection (1) the judge of the Court shall hear the evidence adduced upon oath and may make such order, either to confirm the tenant in possession or to deliver up possession to the landlord, as the facts of the case may warrant, and the order may be in Form 4 in the Schedule.

Enforcing order for possession

73(4)       Where the order is made for the tenant to deliver up possession and he refuses, a bailiff of the Court 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 may have on or about the premises, and make the rent in arrear and place the landlord in possession of the premises.

Payment of rent a stay

73(5)       Where a tenant, before the execution of the order, pays the rent in arrear and all costs, the proceedings shall be stayed and the tenant may continue in possession as of his former tenancy.

Procedure in case of vacancy

73(6)       Where the premises in question are vacant, or the tenant is not found in possession, or if in possession and he refuses, on demand made in the presence of a witness, to admit the bailiff, the latter, after a reasonable time has been allowed to the tenant or person in possession to comply with the demand 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.

Costs

74          The judge may award such costs as he sees fit, and as the circumstances of the case warrant, to the landlord or the tenant, as the case may be; and those costs, if payable by the tenant, may be added to the costs of the levy for rent, if any such is or is to be made, or in any case, may be recovered by action against the landlord or tenant in the Court.

Order by court for money payments

75(1)        Where, in any proceedings before him under this Act, a judge finds that any net amount is due from any party to the proceedings to any other party thereto after making allowance for any amount found to be due from that other party to the party first mentioned, the judge may make an order for the payment of the net amount so found by the party by whom it is payable, together with the costs, if any, payable by him as fixed by the judge.

Order is a judgment of court

75(2)       Every order made under subsection (1) may be filed in the office of the Court, and when so filed it shall be conclusively deemed to be, for all purposes, a judgment of the Court of Queen's Bench and enforceable as such.

Distraint of farm property abolished

76          Notwithstanding anything contained in this or any other Act of the Legislature, any provision in any contract or any principle of common law, no landlord shall distrain for default in payment of rent by a tenant of farm property.

77          Repealed.

S.M. 1990-91, c. 11, s. 204.

PART IV

78 to 124   Repealed.

S.M. 1990-91, c. 11, s. 198.

 

 


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