Difference between revisions of "Tenancy Agreements (19:II)"

Throughout the establishment and duration of the agreement, the parties are generally free to add and alter the terms, covenants and conditions as they see fit – subject to restrictions imposed by common law and statute (e.g. prohibition of contracts for an illegal purpose, '''unconscionable terms''', or contracts in restraint of trade). The RTA and MHPTA both restrict parties from contracting out of requirements of those Acts and from adopting terms that are contrary to the Acts. The changes in the tenancy agreement must be in writing, and be signed and dated by both parties. Some requirements, such as locks on  doors, are automatically included in every tenancy agreement even if the tenancy agreement does not specifically   mention   them.   A   unilaterally   altered   or newly   included   term   may   be unenforceable where there is no consideration for it. a)Collateral Contract The parties may enter into additional or subsequent oral or written contracts, separate from the tenancy agreement, that involve a change in the way the terms of the tenancy agreement are carried out (e.g. agreement by the tenant to do repairs in return for paying a reduced amount of rent). The terms of  the tenancy agreement still exist; they must be performed as stipulated when the collateral contract is fully performed or is otherwise terminated (e.g.  one party dies or goes away). If an Arbitrator determines the terms are reasonable and not unconscionable, as defined within s 3 of the RTR, any purchaser of the reversion will be bound by the former owner’ s  collateral contract. A remedy for the new landlord would be found in an action against the seller.  Generally speaking, oral collateral contracts are hard to prove. If something is important, it should be recorded in writing. 2.Terms, Covenants, and Conditions a)Covenants and Conditions A covenant in a tenancy agreement consists of a promise by a person that a certain thing must or must not be done (the RTA eliminates the word “covenant” and uses the more modern word “term”). A “Material Term”, as used in the RTA, is a term going to the root of the relationship and the tenancy agreement.  Landlords and tenants may agree to any term they wish, as long as it is not unconscionable or contrary to the RTA. Terms contrary to the RTA may not be  identified in some cases until dispute resolution, and a tenant is free to argue that a term violates the RTA and should therefore be void. The Arbitrator will take this into consideration when   determining   reasonableness.   For   more   information, see   RTB   Policy Guidelines 8: Unconscionable and Material Terms. A  condition creates an obligation that arises in the event a certain thing does or does not happen. “Conditions precedent” are conditions that must be  performed or satisfied before other obligations arise. “Conditions subsequent” cause existing obligations to cease when the conditions subsequent occur or are satisfied. b)Express, Implied and Statutory Terms