Opseth v. Getz et al., (2004) 249 Sask.R. 151 (CA)

• Judge: Vancise, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 12, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 249 Sask.R. 151 (CA);2004 SKCA 70

Opseth v. Getz (2004), 249 Sask.R. 151 (CA);

    325 W.A.C. 151

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MY.093

Philip Elmer Opseth (appellant) v. Ray Getz (respondent) and Brian Mitchell, Brad Mitchell and Allan Mitchell (interested parties)

(No. 946; 2004 SKCA 70)

Indexed As: Opseth v. Getz et al.

Saskatchewan Court of Appeal

Vancise, J.A.

May 14, 2004.

Summary:

A landlord gave a tenant notice that he was terminating an agricultural lease. The tenant did not vacate the land. The landlord applied for a writ of possession.

The Saskatchewan Court of Queen's Bench refused to grant the writ. The landlord ap-pealed.

The Saskatchewan Court of Appeal, per Vancise, J.A., allowed the appeal and ordered that the writ be issued.

Landlord and Tenant - Topic 1061

Classes of tenancies - Tenancy from year to year - Defined or what constitutes - A written agricultural lease ran from October 24, 1994 to November 1, 1999 - The tenant remained in possession under verbal leases for each year from 2000 to 2003 - During the currency of the lease, the parties negotiated the rent for the upcoming year - They were unable to agree for 2004 - On October 29, 2003, the landlord gave notice that he was terminating the lease - A motions judge held that the tenant had an "implied tenancy from year to year" and was entitled to six months' notice - The Saskatchewan Court of Appeal, per Vancise, J.A., allowed the landlord's appeal - There were a series of one year leases negotiated each year up to 2003 - The presumption of a year to year tenancy was rebutted because the lease had to be renegotiated each year; the land that was leased and the form and amount of rent changed from time to time; and although the tenant remained in possession after negotiations failed, he did not pay rent - Further, the parties had agreed that there would be a one year lease at a rent to be negotiated - The 2003 lease expired by effluxion of time or pursuant to the October 29, 2003 notice.

Landlord and Tenant - Topic 7630

Overholding tenants - Tenancy created - Yearly tenancy - [See Landlord and Tenant - Topic 1061 ].

Cases Noticed:

Heck v. Vaage et al., [1953] 1 D.L.R. 500, refd to. [para. 8, footnote 3].

Gasner v. Bellak Brothers Ltd., [1945] 3 D.L.R. 365 (Ont. C.A.), refd to. [para. 12, footnote 6].

Kretschmer v. Engelbrecht (1989), 80 Sask.R. 291 (Q.B.), refd to. [para. 16, footnote 12].

Authors and Works Noticed:

Halsbury's Laws of England (2nd Ed.), vol. 20, pp. 124, 125, 126 [para. 8].

Counsel:

Gary Meschishnick, for the appellant;

Neil Raas, for the respondent.

This appeal was heard in Chambers, on May 12, 2004, by Vancise, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on May 14, 2004.