rental-property residential-lease british-columbia
How to prove landlord didn&#39;t return damage deposit within required time
<p>According to the <a href="http://www.bclaws.ca/civix/document/id/complete/statreg/02078_01" rel="nofollow noreferrer">Residential Tenancy Act</a> a landlord must return the damage deposit within 15 days time. Isn't it easy for a landlord to not do this but pretend he had tried? For example what if the landlord claims on the 15th day he put a check in a mailbox, on the other side of the country, and then says it must have gotten lost in the mail? Or does act mean it must have been received by the ex-tennant within those 15 days? </p>

<p>If the landlord fails to return the deposit within 15 days, the tenant is entitled to double. If after litigation has started against the landlord (but no hearings had taken place yet) if the landlord then returned the regular damage deposit, could the tenant still accept it and still sue for the double or does accepting it cancel the claim for double? </p>

<p>The law also specifies, in subsection (8), how the deposit is to be returned:</p>

<blockquote>
  <p>(a) in the same way as a document may be served under <a href="http://www.bclaws.ca/civix/document/id/complete/statreg/02078_01#section88" rel="nofollow noreferrer">section 88 (c),
  (d) or (f)</a> [service of documents],</p>
  
  <p>(b) by giving the deposit personally to the tenant, or</p>
  
  <p>(c) by using any form of electronic</p>
  
  <p>(i) payment to the tenant, or</p>
  
  <p>(ii) transfer of funds to the tenant.</p>
</blockquote>

<p>where (88)(c,d,f) are</p>

<blockquote>
  <p>by sending a copy by ordinary mail or registered mail to the address
  at which the person resides or, if the person is a landlord, to the
  address at which the person carries on business as a landlord;</p>
  
  <p>if the person is a tenant, by sending a copy by ordinary mail or
  registered mail to a forwarding address provided by the tenant;</p>
  
  <p>by leaving a copy in a mailbox or mail slot for the address at which
  the person resides or, if the person is a landlord, for the address at
  which the person carries on business as a landlord;</p>
</blockquote>

<p>The laws says that within 15 days</p>

<blockquote>
  <p>the landlord must do one of the following:</p>
  
  <p>(c) repay, as provided in subsection (8), any security deposit or pet
  damage deposit to the tenant with interest calculated in accordance
  with the regulations;</p>
  
  <p>(d) make an application for dispute resolution claiming against the
  security deposit or pet damage deposit.</p>
</blockquote>

<p>That is, the law requires an action by the landlord, and not a specific result: otherwise, the law would have to say "the landlord is responsible for assuring that the tenant receives the deposit within 15 days". Finally, the tenant must supply a forwarding address, and it he does not within a year, he loses the deposit.</p>

<p>Section (90) of the law furthermore defines when a document is deemed to be legally received:</p>

<blockquote>
  <p>A document given or served in accordance with section 88 [how to give
  or serve documents generally] or 89 [special rules for certain
  documents], unless earlier received, is deemed to be received as
  follows:</p>
  
  <p>(a) if given or served by mail, on the 5th day after it is mailed;</p>
  
  <p>(b) if given or served by fax, on the 3rd day after it is faxed;</p>
  
  <p>(c) if given or served by attaching a copy of the document to a door
  or other place, on the 3rd day after it is attached;</p>
  
  <p>(d) if given or served by leaving a copy of the document in a mailbox
  or mail slot, on the 3rd day after it is left.</p>
</blockquote>

<p>So it is entirely possible that a landlord sent the deposit as required by law, and the deposit takes forever to get delivered. This <a href="http://tenants.bc.ca/wp-content/uploads/2015/03/RTB-Decision-Tenant-Awarded-Double-Security-Deposit.pdf" rel="nofollow noreferrer">case from the RTB</a> may be useful:</p>

<blockquote>
  <p>The tenant had the burden of proof to establish that the deposit 
  existed and that 15 days had expired from the time that the tenancy
  ended and  forwarding address was  given, without the landlord either
  refunding all of the deposit or making application to  keep it.</p>
</blockquote>

<p>In this instance, the landlord admitted that he had not returned the deposit within 15 days – the landlord shouldered the tenant's burden of proof.</p>

<p><a href="http://www.housing.gov.bc.ca/rtb/decisions/2010/07/Decision1022_072010.pdf" rel="nofollow noreferrer">In another case</a>, the tenant initially failed to provide a forwarding address, and tenant's initial application for double refund was accordingly dismissed. Tenant then sent the forwarding address by registered mail, however the mail was returned by Canada Post to sender, "unclaimed". Based on this, plus section (90), it was found that the tenant did mail the forwarding address on a specific date, and therefore it was served to the landlord 5 days later, even though he did not receive the address. The point is that the law only requires the landlord to send the refund, so the tenant would have to prove that the refund was <em>not</em> sent by that date. Then it becomes a matter of looking at the preponderance of evidence – is it more likely that the landlord didn't send the deposit on time, or than he did? If the landlord uses registered mail, that pretty much makes it an open and shut case. If not, there is still the question of how long after the deadline the refund was received – if it was a month, that makes the claim of timely action implausible.</p>
