Can I take actions to mitigate an anticipated breach of contract and then sue to recover their costs

Question

Disclaimer: I’m not looking for legal advice.

I’m in a month to month lease. I checked, and where I live the landlord cannot end a month to month lease without going through the full eviction process (which didn’t happen). The landlord wants the place back. I told him no, but he’s very adamant. I’ve got a feeling it’s going to come to a physical confrontation where he’s going to show up at the house with his boxes ready to move in.

Since I don’t want it to become physical I was thinking: can I move out and then after sue for damages? My concern is, if I move out before he physically shows up, then he may claim I moved out on my own accord. Maybe this could be fixed by serving him an intent to sue letter?

Does the question make sense? I’m just trying to mitigate conflict, instead of having to phone the cops when he shows up at the door.

Answer 1

On what basis would you sue? There are a few scenarios I'll contemplate:

1. You've paid until the end of the period but move out beforehand

   As you've suggested, he can claim you moved out of your own accord. You would need to provide some evidence that you believed your life was in danger (in which case you may as well provide this to the police and not move out at all).

   Unlikely that you have recoverable damages.

2. You don't move out and then it comes to a physical confrontation

   Provide evidence of any physical confrontation. It might help if there are witnesses. Then you may have criminal charges to press. Also, call the police. I'm not sure why you're hesitant to do that (and I'm really hoping it's not because of politeness or inconvenience, because those just aren't very good reasons), because keeping the peace is literally their job.

   If he causes you to move out without due notice, you may be entitled to specific performance (i.e. he must allow you to occupy the premises for the period specified in your contract) or damages.

3. You serve a letter of intent to commence proceedings

   As of right now, you have no basis to commence proceedings. He has not breached the contract. However (h/t jqning, who reminded me about this) there is a cause of action in anticipatory repudiation.

   You may consider sending a letter/email stating that as per the contract you are entitled to occupy the premises until a specific date, and enclose/attach the lease.

   In this letter you should set out your evidence that the landlord has declared that they will breach the contract, and that you may commence proceedings without further notice unless the landlord withdraws his repudiation. You probably want to ask for such a withdrawal in writing.

   You probably want a lawyer to write this letter for you, and to ensure that the facts support you.

can I move out and then after sue for damages?

As mentioned above, what damages have you suffered? You must make it clear that he has breached the contract by evicting you prior to the specified period, otherwise it is more difficult to prove breach.

In fact, if you're required to give notice before vacating, then it's possible that you may be in breach, depending on the wording of the contract.

Answer 2

You cannot sue until the event that you foresee has actually happened. You can, however, seek an injunction from the court prohibiting the action of the other party that you foresee. That person can still of course take that action but in addition to being a breach of contract it would also be contempt of court.

Answer 3

Speaking only in general terms and not giving any legal advice whatsoever, there isn't any clear resolution to the problem. However, there is a legal process, the Tenant's Application for Dispute Resolution, where you can fill out a form. Most of the form is predicated on the presumption that the landlord is acting legally and you have been given a Notice to End Tenancy. There is a section "Landlord's Action Sought" where you can request that the landlord comply with an act or regulation, and a box to fill in the relevant section. There is a tiny box for giving relevant details, which would be your reason for believing that the landlord intends to break some law. The whole act is spelled out here: sections 46-50 specify allowed landlord grounds for eviction, so one could request compliance with one of these sections. Of course, RTB could reject your application and tell you to wait and see, so it would really depend on your evidence that he plans to violate the law. There is still the $100 application fee, and one has to be careful to follow the rules (for example, "providing evidence" is more than just "saying why" – the applicant has to serve a Notice of Hearing Package to all respondents).