Tenancy Agreements (19:II)

CHAPTER 3 Residential Tenancy Act Coverage

=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, visit www.bchousing.org/Options/Subsidized_Housing/Listings

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, and includes a licence 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 Regulation. It also does not apply to living accommodations in which the tenant shares bathroom or kitchen facilities with the owner of the accommodation. 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 9: Tenancy Agreements and Licenses to Occupy and Guideline 13: Rights and Responsibilities of Co-tenants may provide helpful guidance. Traditionally, the test to distinguish a tenancy from a license is whether or not the occupant has exclusive possession of the rental unit, taking into account the facts of each case and the intention of the parties. When a person shares a residence with the owner, factors indicating a license include:

• sharing a kitchen or bathroom with the owner (this refers to the owner of the building, not the owner’s agent) (s 4);

• the absence of a written tenancy agreement;

• the provision of meals;

• laundering and cleaning services provided by the facility;

• no locks on the doors;

• no security deposit;

• lack of exclusive possession; or

• 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. Licensees’ rights and obligations are governed by common law. A licensee can be asked to leave (i.e. be evicted) without specific reason, but the licensor must give reasonable notice (written or verbal). This can be as short as a few days. Over two weeks or a month is almost always reasonable. 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. 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.

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 Co-Operatives

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 at www.chf.bc.ca.

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 are 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.

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 exact bounds of the category of “transitional housing” are not entirely clear. Factors that arbitrators have referred to in determining whether housing is “transitional housing” include:

• whether the tenancy is for a fixed, short, term
• whether participation in programming (for example, in relation to mental health or substance use) is a condition of the tenancy
• whether there are rules governing conduct while in the housing, including rules about behaviour or guests

==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 covered by the Community Care Facility Act, SBC 2002, c 75; the Continuing Care Act, SBC 1996, c 70; the Hospital Act, RSBC 1996, c 200; or the Mental Health Act, RSBC 1996, c 288.

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 unit comes 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 remedy is a complaint under s 21 of 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 19: 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.