The Residential Tenancy Act (19:I)

A. Premises and Persons Subject to the RTA

1. Effective Date

The RTA applies to all residential tenancy agreements entered into or renewed after the date the RTA first came into force (1984). The RTA was modernized in 2004.

2. No Contracting Out

An agreement, or a term in an agreement, which purports to exclude the application of the RTA is of no effect. Where a term in an agreement conflicts with the RTA or the Residential Tenancy Regulations, the term is void. Essentially, neither landlords nor tenants can contract away rights legislated under the RTA.

3. Crown

Generally, the RTA applies to the Crown.

4. Infants

Tenancy agreements entered into by persons under the age of 19 are enforceable under s 3 of the RTA.

5. Hotel Tenants and Landlords

Hotel tenants are fully covered by the RTA if the hotel is the tenants’ primary residence. There are a few rules that apply only to hotel tenants and landlords, namely:

• s 29(1)(c) permits entry into a hotel tenant’s room without notice for the purposes of providing maid service, as long as it is at reasonable times;
• s 59(6) permits an individual occupying a room in a residential hotel to apply to an Arbitrator, without notice to any other party, for an interim order stating that the RTA applies to that living accommodation.

See Policy Guideline 9: Tenancy Agreements and Licences to Occupy.

6. Subsidized Housing

Persons living in publicly subsidized housing paying rent on a scale geared to their income are excluded from the rent increase provisions. They are also excluded from s 34 of the RTA, which deals with assignment and subletting. Not all subsidized housing is directly operated by the B.C. Housing Corporation. For a list of subsidized housing options and to apply for subsidized housing, visit https://www.bchousing.org/housing-assistance/rental-housing/subsidized-housing.

B. Excluded Premises and Agreements

1. Tenancies, Co-tenancies and Licenses to Occupy

The RTA sets out the rights and obligations of landlords and tenants. When a tenancy starts, there should be a tenancy agreement in place. A tenancy agreement means an agreement, whether written or oral, express or implied, between a landlord and a tenant, respecting possession of a rental unit, use of common areas and services and facilities. It also includes a license to occupy a rental unit. Each landlord must prepare a written tenancy agreement that complies with the RTA. However, even if the landlord does not prepare such a written tenancy agreement, the tenant is still protected by all of the standard terms contained in the Residential Tenancy Regulations.

The question may arise as to whether or not a person living in a rental unit is a tenant, a co-tenant, a tenant in common or an occupant. Residential Tenancy Policy Guideline 19: Assignment and Sublet and Guideline 13: Rights and Responsibilities of Co-tenants may provide helpful guidance.

Section 4 of the Residential Tenancy Act seats out living accommodations where the Act does not apply. These include but are not limited to:

• where the tenant shares bathroom or kitchen facilities with the owner of the accommodation;
• where the accommodation is rented by a housing cooperative to a member of that cooperative;
• where the accommodation is owned or operated by an educational institution (e.g. a college or university) and provided by that institution to its students or employees; and
• where the accommodation is included with premises that are primarily occupied for business purposes and are rented under a single agreement.

Traditionally at common law, the test to determine if an occupant is a tenant is whether the occupant has exclusive possession of the rental unit. This test also considers the facts of each case and the intention of the parties In determining whether an occupant is a tenant or not, the Residential Tenancy Branch may consider:

• the absence of a written tenancy agreement;
• the provision of meals;
• laundering and cleaning services provided by the facility;
• if there are no locks on the doors;
• no if a security deposit was paid;
• the lack of exclusive possession; and
• whether the facility is part of a special program and the housing is temporary in nature.

The determination of whether there is a tenancy depends on the circumstances of each case and can only be made by a RTB Arbitrator at a dispute resolution hearing.

In situations where a tenant, named in the tenancy agreement, shares accommodations with a roommate who does not have an agreement with the landlord, only the tenant is protected by the RTA. Any roommates who do not have a tenancy agreement with the landlord are not covered by the RTA and do not have any recourse against the landlord. Disputes between a tenant and roommate cannot be brought to the RTB, but may be brought in Small Claims Court. For more information, seeSection X.E Subletting and Assignment and Policy Guideline 19: Assignment and Sublet.

The determination of whether there is a tenancy depends on the circumstances of each case and can only be made by a RTB Arbitrator at a dispute resolution hearing.

A person who has had his or her personal property seized should consider taking the position that he or she is a tenant and apply to the Residential Tenancy Branch for dispute resolution seeking an order for return of personal property. If the Arbitrator finds that the RTA does not apply then the application will be dismissed. Seizing a licensee’s personal property is not lawful unless the licensor already has a court order. If the licensee has been locked out or has had goods seized without notice, he or she could ask a police officer for assistance or sue in Small Claims Court for an order for the return of goods and/or monetary compensation. A licensee not covered by the RTA may have a remedy under the common law, the Hotel Keeper Act, RSBC 1996, c 206, the Commercial Tenancy Act, RSBC 1996, c 57 (under which “tenant” is defined as including “occupant”), or the regulations authorized by these statutes. The Hotel Keeper Act provides that a hotel keeper has the right to distrain (i.e. the right to seize belongings without first getting a court order) the occupant’s belongings for non-payment of rent. See also local health, safety, fire, and lodging house bylaws, which may give some protection to hotel keepers.

If the licensee has been locked out or has had goods seized without notice, he or she could ask a police officer for assistance or sue in Small Claims Court for an order for the return of goods and/or monetary compensation. The Hotel Keeper Act provides that a hotel keeper has the right to distrain (i.e. the right to seize belongings without first getting a court order) the occupant’s belongings for non-payment of rent. See also local health, safety, fire, and lodging house bylaws, which may give some protection to hotel keepers.

2. Non-Profit Housing Cooperatives

Residential premises where a non-profit housing cooperative is the “landlord” and a member is the “tenant” are excluded from the application of the RTA; instead, the co-op relationship is governed by the Cooperative Association Act, SBC 1999, c 28 (see RTA, s 4(a), and Burquitlam Cooperative Housing Assoc. v Romund (1976), 1 BCLR 229 (Co Ct)). Where the person paying rent is not a member of the cooperative, and the cooperative or a cooperative member is the landlord, those rental units may be subject to the RTA if the arrangement appears to fit the definition of a tenancy, as opposed to a license.

More information can be found at the website of the Co-operative Housing Federation of BC.

3. Strata Lots

A tenant in possession of a strata title lot (i.e. a condominium), whose landlord is the owner of the title and a member of the strata, is subject to both the RTA and the Strata Property Act. This is a frequent source of problems for tenants. See RTB Policy Guideline 21: Repair Orders Respecting Strata Properties.

4. Twenty-Year Term

Section 4(i) of the RTA provides that the RTA does not apply to a tenancy agreement for a term of over 20 years.

5. Holiday Premises

The RTA does not apply to living accommodation occupied primarily as vacation or travel accommodation (s 4(e)).

6. Manufactured Home Owners

The RTA does not apply to tenancy agreements to which the Manufactured Home Park Tenancy Act applies, i.e. owners of manufactured homes who rent the site on which their homes sit (RTA, s 4(j)). If a person rents both a manufactured home and the pad it sits on, he or she is covered by the RTA.

7. Assisted and Supported Living Tenancies

Assisted and many supported living tenancies may not be not covered by the RTA. In addition to a tenancy agreement as required for regular tenancies, residents must negotiate and sign a separate agreement specifying services, costs, and other terms. Section 4(g) of the RTA excludes community care facilities governed by the Community Care and Assisted Living Act, the Continuing Care Act, hospitals governed by the Hospital Act, some health facilities designated under the Mental Health Act, and others. In addition to a tenancy agreement as required for regular tenancies, residents must negotiate and sign a separate agreement specifying services, costs, and other terms.

8. Emergency Shelter and Transitional Housing

Section 4 of the RTA states that the RTA does not apply to accommodation “provided for emergency shelter or transitional housing.” The Residential Tenancy Regulations were updated in December 2016 to include a three-part definition of transitional housing. according to s.1 of the Regulations, "transnational housing" means living accommodation that is provided:

• On a temporary basis
• By a person or organization that receives funding from a local government or the government of British Columbia or of Canada for the purpose of providing that accommodation, and
• Together with programs intended to assist tenants to become better able to live independently.

Any accommodation must satisfy all three o these criteria to be excluded from the Act, even if a transitional housing agreement has been signed.

Policy Guideline 46: Emergency Shelters, Transitional Housings, Supportive Housing defines "emergency shelter" as "a facility that provides temporary overnight shelter to homeless individuals". Residents of these shelters "may have an immediate need for support services" such as nutrition, hygiene, and health services, and "may be required to abide by the house rules as a condition of their stay".

9. Others Not Covered (RTA, s 4)

• People living in accommodations owned or operated by educational institutions if the institution provides the accommodation to its students;
• People living in accommodations occupied as vacation or travel accommodation;
• People living in a correctional institution;
• People living in accommodation rented under a tenancy agreement that has a term longer than 20 years;
• People living in accommodations covered by the Manufactured Home Park Tenancy Act; and
• Prescribed tenancy agreements, rental units or residential property.

10. Residential Tenancy Branch Information Line

• Call the Residential Tenancy Branch information line (604-660-1020 or 1-800-665-8779) if you are unsure whether the rental units come under the RTA.

C. Discrimination Against Tenants

Although poverty is not a protected ground, a landlord must not discriminate against a (prospective) tenant based on a lawful source of income, such as Income Assistance or similar benefits. The prospective tenant may file a human rights complaint under the B.C. Human Rights Code, RSBC 1996, c. 210 [HRC]. Section 10(1) of the HRC also prohibits a person from denying tenancy or from discriminating with respect to a term of the tenancy against a person or class of persons because of their race, sexual orientation, colour, ancestry, place of origin, religion, marital status, physical or mental disability, or sex. Note also, that pets are not covered under discrimination rules. See Chapter 6: Human Rights for more information.

There are two exceptions:

1. Shared Accommodations

The law does not always apply when kitchen and bathroom facilities are shared with the owner of that accommodation.

2. Adults Only

A landlord cannot refuse to rent to adults because they have children, unless the building or manufactured home park is reserved for people over 55 years old.

D. Application Fees

A potential landlord cannot ask a renter or potential renter for an application fee. If one has paid an application fee and the landlord will not give it back, one can apply for dispute resolution to have it returned. Applicants will need to know the landlord’s proper name and address, and have proof that the fee was paid: see RTA, s 15.

E. Foreign Students

Foreign students should consider how long they plan on studying before signing a fixed-term lease. Students should not sign a fixed-term tenancy that exceeds the time they plan to study. Signing a fixed-term tenancy that extends beyond one’s intended study period can put a tenant into breach, and may result in having to pay liquidated damages and/or any loss of rent incurred by the landlord.

Many foreign students have problems getting back their damage deposits, as some landlords take advantage of the fact the students will be returning overseas after their tenancy ends. As a result, students should make arrangements to appoint someone as their agent if they have to head overseas and have not received their deposits from their ex-landlords.

Some foreign students take furnished rooms by paying “take-over fees” to purchase the furniture and continue the rental agreement. The initial tenancy agreement may have been “taken over” by a dozen students in a row, leading to confusion about who is entitled to the security deposit or the furniture.

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.