The Distinction Between a Notice of Termination and a Demand for Possession
February 21, 2023 by Sanjeeta K. Johal
In this article, we take a look at the distinction between a notice of termination and a demand for possession. Are they one and the same? Can you issue a demand for possession within the notice of termination?
The answer to both questions is no. A notice of termination gives notice to the tenant that the lease will be terminated as of a specific date. If the tenant does not surrender the premises by that date, a demand for possession is a separate notice that is then issued to the tenant seeking immediate possession of the premises.
The content of the demand for possession is critical because if it contemplates the continued occupation of the premises by the tenant, then it is ineffective. So, for example, if the demand for possession states that the tenant must vacate the premises “within 24 hours” or “by end of business day tomorrow”, it will be held ineffective by the courts. The appropriate language to use in a demand for possession is to seek the immediate possession of the premises.
Is a demand for possession required in order to obtain a writ of possession against the tenant? Yes. Under section 18(1) of the Commercial Tenancy Act, RSBC 1996, c. 57, a demand for possession is one of the 3 pre-conditions to a landlord obtaining an order for a writ of possession. The other 2 pre-conditions involve (1) establishing that the lease is terminated or expired and (2) that the tenant has wrongfully refused to vacate the premises after receipt of a demand for possession. The process for obtaining a writ of possession under the Commercial Tenancy Act will be discussed in further detail in a separate article.
Key Points:
- A notice of termination and a demand for possession are 2 separate notices issued to a tenant;
- The notice of termination is issued first in accordance with the terms of the lease. If the tenant subsequently refuses to vacate the premises by the date given in the notice of termination, a demand for possession is issued; and
- The demand for possession must seek the immediate possession of the premises.
NOTE: The information contained on this website is for information purposes only and should not be taken as legal advice. Please contact our litigation department at 604-635-3000 to discuss any legal issues you may have.