No-Show Landlord: Legal Consequences of a Landlord’s Failure to Occupy After Eviction

The BC Supreme Court affirmed the decision of the Residential Tenancy Branch to award $27,424 in compensation to tenants who were evicted by their landlord. The landlord had issued a Notice to End Tenancy for Landlord’s Use of Property. The landlord failed to establish that she had occupied the unit for six months after eviction, and there were no extenuating circumstances to prevent her from doing so.

Administrative law – Decisions reviewed – Residential Tenancy office; Judicial review – Standard of review – Patent unreasonableness; Landlord and tenant – Residential tenancy agreements – Eviction.

Li v. MacLean, [2025] B.C.J. No. 923, British Columbia Supreme Court, May 21, 2025, R. Hewson J.

Ms. Jane Li was the owner of a property in Kelowna, BC. Starting in August 2020, Ms. Li entered into a residential tenancy agreement with Tina and Scott MacLean (the “MacLeans”). Ms. Li ended the tenancy, on the basis that she planned to reoccupy the unit, which the MacLeans disputed. The Residential Tenancy Branch arbitrator granted a monetary order against Ms. Li. Ms. Li sought to set aside the decision of the arbitrator of the Residential Tenancy Branch, or alternatively to have the decision remitted back to the Residential Tenancy Branch for reconsideration.

The Residential Tenancy Act, S.B.C. 2002, c. 78 (the “Act”) provides at section 49(3) that a landlord who is an individual may end a tenancy for a rental unit if the landlord or a close family member of the landlord intends in good faith to occupy the rental unit. However, the landlord must establish that the rental unit was being used for that purpose for at least six months. If the landlord is unable to establish that the rental unit was occupied as such, the landlord must pay the tenant an amount equivalent to twelve times the monthly rent. Section 51(3) provides an exception if the arbitrator finds that the landlord or close family member was unable to move into the unit due to extenuating circumstances.

Ms. Li served an initial notice to end the tenancy effective on June 30, 2023. On application by the MacLeans, the Residential Tenancy Branch cancelled the notice to end the tenancy and allowed the MacLeans to remain tenants of the property.  Ms. Li served a second notice on the MacLeans on December 7, 2023, this time issuing a Notice to End Tenancy for Landlord’s Use of Property, stating that she intended to occupy the rental unit (the “Notice”). The MacLeans were required, per the Notice, to vacate the property by February 16, 2024, which they did.

However, the MacLeans subsequently suspected that Ms. Li was in fact not occupying the unit and filed an application for compensation with the Residential Tenancy Branch. Following an arbitration hearing, the arbitrator concluded that Ms. Li had not occupied the unit for the required period, and there were no extenuating circumstances in support of her failure to occupy the unit. Accordingly, the arbitrator granted the MacLeans a monetary order of $27,424 (the “Decision”).

Ms. Li’s application for judicial review centered on two issues, namely 1) what is the standard of review; and 2) was the Decision patently unreasonable?

Pursuant to section 58(2) of the Administrative Tribunals Act, S.B.C. 2004, c. 45, the decision to order compensation was found to be a matter over which the Residential Tenancy Branch has exclusive jurisdiction. The standard of review is patent unreasonableness.

During the arbitration hearing, Ms. Li gave evidence that she had not occupied the property as planned because her medical practitioner had advised her to return to Calgary for medical treatment. However, her evidence was contradicted by evidence produced by the MacLeans whereby a neighbor advised that Ms. Li told them in March 2024 she was leaving the province and would be listing the property for sale because she no longer wanted to be a landlord. Ms. Li also failed to produce any evidence that she was under a doctor’s care or required out of province treatment. She did not provide evidence that she moved anything more than basic items into the property to be used during her brief stays at the unit. The BC Supreme Court held that the arbitrator’s finding of there being no “extenuating circumstances” was not unreasonable as the factors relied on by the arbitrator were relevant. The Court similarly found that awarding the MacLeans compensation was not patently unreasonable and dismissed Ms. Li’s application with costs.

This case was digested by Claire Shanna of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].