Landlord’s right to collect for rent owing – The Law

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Q: What are the landlord’s rights when the tenant fails to pay the rent? Does it matter if the lease is a crop share or cash rental agreement?

A: One must first look at the lease agreement. What rights does the lease give the landlord if rent remains unpaid? If the lease is silent, then look at various provincial statutes and case law to determine the rights of parties. Since you called from Saskatchewan, I will focus on Saskatchewan law.

A landlord may be able to use one of two remedies when the rent is overdue. Those are the right of re-entry (taking physical possession of the land) or seeking a court order of possession.

The Landlord and Tenant Act provides that it is a term of every lease, unless otherwise agreed, that if the rent has remained unpaid for two calendar months, the landlord is entitled to re-enter and take possession of the land. There is no requirement that notice be given.

There are similar provisions in most provinces. Manitoba legislation allows the landlord to re-enter if rent is unpaid for 15 days. This applies to all leases, although in crop share leases it is not always easy to determine when the rent is due. A tenant has the right to seek court protection asking a judge to continue the lease either because of special circumstances or because the rent is not in arrears.

As an alternative, a landlord can seek a court order granting possession of the land if the lease has been terminated by nonpayment of rent.

In some instances, a landlord may be able to seize the tenant’s crop, cattle or other goods in satisfaction of rent owing. This is known as the right of distress and can occur without getting a court order. However, only property belonging to the tenant that is located on the rented land can be taken for late rent. Notice must be given to the tenant of such action and if the tenant doesn’t redeem the crop, grain, cattle or goods, they can be sold. A quarter of Saskatchewan’s Landlord and Tenant Act is devoted to the distress process. Manitoba legislation, while also recognizing the right to distrain crops, cattle and grain, also provides that “no landlord shall distrain for default in payment of rent by a tenant of farm property.”

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All three prairie provinces have legislation protecting the landlord’s share of the crop in a crop share lease. The landlord’s interest takes priority over the interest of the tenant or other debtors of the tenant.

Both re-entry and distress are self-help remedies and can be full of legal pitfalls. They should be used only with caution and after obtaining legal advice.

The Agricultural Leaseholds Act in Saskatchewan allows a tenant to re-enter land, after seven days notice to the landlord, to complete harvest even though the lease has been terminated. This provision applies even if the tenant was evicted. If the parties disagree, they can seek the assistance of the provincial mediation board.

Given the intricacies of law and differences between provinces, I recommend a landlord dealing with a tenant in arrears of rent seek advice from a lawyer before taking action.

Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.

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