Overholding Tenants Act

Short title

1 This Act may be cited as the Overholding Tenants Act. R.S., c. 329, s. 1.

Interpretation

2 In this Act,

(a) "judge" means a judge of the Supreme Court;

(b) "landlord" means the lessor, owner, person giving or permitting the occupation of land, the person entitled to the possession thereof, and the heirs, assigns and legal representatives of any of them;

(c) "tenant" includes an occupant, subtenant, under-tenant and his and their assigns and legal representatives. R.S., c. 329, s. 2; 1992, c. 16, s. 77.

Complaint by landlord

3 (1) If a tenant, after his tenancy or right of occupation has expired or been determined, does not go out of possession of the land held by him, the landlord or his agent may, without any demand upon the tenant, file a complaint under oath in Form A in the Schedule to this Act, or to the like effect, with a judge having jurisdiction in the place where the land is situate.

Summons to tenant

(2) The judge may issue a summons, in Form B in the Schedule to this Act, directed to the tenant and stating the time and place at which the complaint will be heard and determined. R.S., c. 329, s. 3.

Service of summons

4 A true copy of the summons and complaint shall be served on the tenant at least five days before the day appointed for the hearing, by delivering it to him personally or, if he cannot conveniently be found, by leaving it for him at his last or usual place of abode. R.S., c. 329, s. 4.

Failure of tenant to appear

5 (1) If the tenant does not appear at the time and place appointed for the hearing, a judge, upon proof of due service of the summons and complaint, may issue an order for possession in Form C in the Schedule to this Act.

Hearing where tenant appears

(2) If the tenant appears a judge shall hear the parties, and may issue an order for possession in Form C in the Schedule to this Act to be executed on or after a day named in the order not more than fifteen days after the issuance of the order, or may dismiss the complaint.

Adjournment

(3) The judge may adjourn the hearing from time to time.

Costs

(4) The successful party may be allowed by the judge as his costs a sum not exceeding fifteen dollars inclusive of disbursements incurred by him. R.S., c. 329, s. 5.

6 repealed 1992, c. 16, s. 78.

7 repealed 1992, c. 16, s. 78.

8 repealed 1992, c. 16, s. 78.

Claim for rent

9 (1) The landlord may include in his complaint a claim for any arrears of rent and for the value of the tenants use and occupation.

Defence

(2) The tenant may file a defence, counterclaim or set-off to the claim or may oppose the same at the hearing without filing a defence thereto.

Judgment

(3) The judge, after hearing evidence of the claim, may give judgment for any amount not exceeding five hundred dollars that he considers proper in the circumstances, including costs to the successful party.

Execution

(4) The landlord may issue execution in the usual manner on any such judgment. R.S., c. 329, s. 9; 1992, c. 16, s. 79.

Appeal

10 The landlord or tenant may appeal from any decision or order of the judge to the Court of Appeal. R.S., c. 329, s. 10; 1992, c. 16, s. 80.

Bond on appeal

11 (1) The appellant shall file with the judge cash, or a bond with one or two sureties to be approved by the judge, in an amount to be fixed by the judge, upon the condition that the appellant shall abide by and fulfil the judgment of the Supreme Court and pay such costs as may be awarded against him in the Supreme Court and the Court of Appeal.

Condition for application to fix time of appeal

(2) A judge of the Court of Appeal shall not hear an application to fix a day for the appeal until the bond has been filed or cash deposited. R.S., c. 329, s. 11; 1992, c. 16, s. 81.

Stay of proceedings

12 On the application of the appellant, the judge, as soon as the appeal bond is filed or cash deposited, shall order that any further proceedings on any order or execution that he has issued be stayed. R.S., c. 329, s. 12.

Transmission of record

13 (1) As soon as the appeal bond is filed or cash deposited the judge shall forward to the Registrar of the Court of Appeal all papers in the action including the appeal bond or in the case of a cash deposit, a certificate that the cash has been so deposited, transcript of the evidence and of the decision or order.

Return of record

(2) Should the appellant not apply within the time limited by subsection (1) of Section 14, the Registrar shall return the papers to the judge with a certificate that the appeal has lapsed and the judge shall proceed as if no appeal has been taken and may add the costs of the lapsed appeal to the costs recoverable. R.S., c. 329, s. 13; 1992, c. 16, s. 82.

Application to fix time and place of appeal

14 (1) The appellant shall, within ten days after the decision or order of the judge has been made, apply to the Court of Appeal to fix a time and place to hear the appeal.

Affidavit

(2) The application shall be supported by the affidavit of the appellant, or his agent, setting forth the principal grounds of appeal and that the appeal is not being made for the purpose of delay. R.S., c. 329, s. 14; 1992, c. 16, s. 83.

Duty of court to fix time

15 The Court of Appeal shall appoint a time to hear the appeal which shall be not later than the fourteenth day after the date of the application. R.S., c. 329, s. 15; 1992, c. 16, s. 84.

Notice

16 (1) Notice of the time and place of hearing the appeal, together with a copy of the affidavit upon which the appointment was obtained, shall be served upon the respondent at least three days before the hearing of the appeal.

Substituted service

(2) If it is made to appear to the judge of the Court of Appeal on ex parte application that personal service could not be effected on the respondent as provided in subsection (1), he may fix a new time for the hearing of the appeal and may direct a mode in which substituted service of the notice on the respondent may be effected. R.S., c. 329, s. 16; 1992, c. 16, s. 85.

Nature of hearing

17 All appeals under this Act may be heard by a judge in chambers. R.S., c. 329, s. 17; 1992, c. 16, s. 86.

Judgment

18 Every appeal shall be heard de novo and the Court of Appeal shall give such judgment or make such order as the law and the evidence require, whether such judgment or order confirms, reverses or varies the decision appealed from, and the Court of Appeal may hear and determine the complaint whether the decision appealed from purports to be final or not. R.S., c. 329, s. 18; 1992, c. 16, s. 87.

Costs on appeal

19 In all cases the Court of Appeal shall award the successful party his costs before the judge appealed from as well as on appeal, which costs the Court of Appeal shall fix at such sum as it thinks fit. R.S., c. 329, s. 19; 1992, c. 16, s. 88.

Enforcement of order

20 Upon the production of the order of the Court of Appeal, the judge appealed from shall immediately give the successful party such relief under this Act as the order directs. R.S., c. 329, s. 20; 1992, c. 16, s. 89.

21 repealed 1992, c. 16, s. 90.

NOVA SCOTIA

(Territorial Division)

In the Complaint of

John Doe Landlord

Richard Roe Tenant

The Complaint of James Doe of Dartmouth in the County of Halifax, Merchant, who makes oath and says that:

(Here set out the principal facts alleged by the landlord to entitle him to possession, in numbered paragraphs, e.g.

1 He is the agent of John Doe, the landlord of premises situated at 75 Oak Street, Dartmouth, Nova Scotia, and described as a two room flat on the third floor.

2 Richard Roe was a tenant of the Landlord of the premises by oral agreement on a monthly tenancy ending on the last day of each month.

3 On July 30th, 1956, James Doe as agent for the landlord gave Richard Roe a months notice in writing to quit the premises on August 31st, 1956.

4 The said tenant is in arrears of rent for the said premises in the amount of $200.00 covering the period from July 1st, 1956 to date of the expiration of the notices to quit.)

The Tenant wrongfully refuses to go out of possession and the Landlord therefore asks that an Order for Possession issue after due inquiry, and for judgment for the arrears of rent together with such amount as may be determined for use and occupation of the premises.

WHEREAS in the attached Complaint of James Doe of Dartmouth in the County of Halifax, Merchant, it appears upon oath that you are an overholding tenant and in arrears of rent in the amount of $200.00.

If you contest the application, you must appear at the Fire Hall, Sampson Street, Dartmouth, Nova Scotia, on Monday, the 10th day of September, 1956, at 3 oclock in the afternoon, before the presiding judge who will inquire into and determine the complaint.

Issued at Dartmouth, Nova Scotia, the 4th day of September, 1956.

Henry Hoe

A Judge of the Provincial Court

To: Richard Roe,

75 Oak Street, Dartmouth, Nova Scotia.

To any Provincial Constable or any Constable or Police Officer for the City of Dartmouth

Under the provisions of the Overholding Tenants Act I hereby adjudge that the Landlord, John Doe of Dartmouth in the County of Halifax, Merchant, as against the Tenant, Richard Roe, is entitled to the possession of the premises at 75 Oak Street, Dartmouth, Nova Scotia, described as a two room flat on the third floor and that the Landlord is further entitled to recover his costs incurred in these proceedings which I tax at $100.00

You are therefore directed to put the Landlord in possession of the premises on or after the . . . . . . . . . . day of . . . . . . . . . ., 19. . . . . and to cause to be made of the goods, chattels, lands and tenements of the Tenant the sum so taxed and your own fees and to render the costs so taxed to the Landlord.

And immediately after the execution of this order you shall return it to the court with an amount of your doings thereon.

Issued at Dartmouth, Nova Scotia, the 10th day of September, 1956.

Henry Hoe

A Judge of the Provincial Court

1956 C. C. No. 1728

In the Appeal of

Richard Roe Tenant

John Doe Landlord

TAKE NOTICE that the Honourable . . . . . . . . . . a Judge of the County Court for District Number One, has fixed Thursday the 4th day of October, 1956, at 10 oclock in the forenoon at his Chambers in the Courthouse, Water Street, Halifax, Nova Scotia, as the time and place when he will hear and determine this appeal from the decision of Frederick Foe, a Judge of the Provincial Court, which was rendered the 10th day of September, 1956.

THE GROUNDS of the Appeal are set out in the affidavit of Richard Roe a copy of which is attached to this notice.

DATED the 21st day of September, 1956.

Herbert Hoe

of 1091 Portland Street

Dartmouth, Nova Scotia

Tenants Solicitor

To: John Doe,

77 Oak Street, Dartmouth, Nova Scotia

R.S., c. 329, Sch.