Difference between revisions of "The Residential Tenancy Act and Related Statutes (19:III)"

Latest revision as of 07:43, 30 August 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 15, 2024.

A. What Is and Is Not Subject to the RTA

The RTB can only hear disputes subject to either the RTA or the MHPTA. If a dispute between a tenant and a roommate arises beyond the jurisdiction of either Act, it cannot be brought to the RTB. Instead, it may be brought to:

the Civil Resolution Tribunal (“CRT”) if the disputed monetary amount is $5000 or less;
the Small Claims Court if the disputed monetary amount is between $5,001 to $35,000; or
the Supreme Court if it is over $35,000.

For more information about proceedings in those bodies, see Chapter Twenty: Small Claims and the CRT.

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. Further resources are available at the end of this Chapter if you need assistance with a tenancy that is not under the jurisdiction of the RTB.

1. No Avoiding Tenancy Statutes

Neither landlords nor tenants can contract out of or avoid the RTA or RTR (RTA, s 5(1)). Any tenancy agreement terms that are inconsistent with RTA or RTR or otherwise any attempt to avoid them are void and of no effect (RTA, s 5(2)).

2. Excluded Premises and Agreements

Section 4 of the RTA sets out a list of situations which are not covered by the RTA. For more information about what is covered by B.C.’s tenancy laws based on the type of housing situation, visit this page of the Government of BC website.

The following discusses some of the housing arrangements that are not covered by the RTA.

a) Renting as a Housing Cooperative Member

If a non-profit housing cooperative rents housing to one of its members, the tenancy is not covered by the RTA (RTA, s 4(a)). Conversely, where a tenant is living in a cooperative housing facility and is paying rent, but is not a member of the cooperative, their rental unit may be subject to the RTA if the arrangement otherwise fits the definition of a tenancy.

b) Sharing Bathroom or Kitchen Facilities

If a tenancy allows for sharing bathroom or kitchen facilities with the owner of the accommodations, the tenancy is not covered by the RTA (RTA, s 4(c)).

c) Roommates Without Tenancy Agreement With the Landlord

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 under the RTA. For more information, see RTB PG 19: Assignment and Sublet.

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

d) Emergency Shelter or Transitional Housing

Sometimes organizations that provide housing may claim that their accommodation falls under the emergency shelter or transitional housing exceptions. However, such claims are not necessarily correct, and only the RTB can make such a determination.

“Emergency shelter” entails an individual being provided with temporary overnight shelter or, in extreme circumstances, shelter beyond overnight until the emergency is over (RTB PG 46). 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 house rules as a condition of their stay”.

The RTR defines “transitional housing” as 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 of these criteria to be excluded from the RTA, even if a transitional housing agreement has been signed.

e) Commercial Tenancies

Premises primarily occupied for business purposes are instead governed by the Commercial Tenancy Act, RSBC 1996, c 57. Furthermore, the RTA does not apply to accommodations rented under the same agreement as premises primarily occupied for business purposes (RTA, s 4(d)). See also RTB PG 14.

f) Other Excluded Arrangements

The other housing arrangements excluded from the RTA under section 4 are:

accommodations owned or operated by an educational institution for its students or employees (RTA, s 4(b));
accommodations occupied as vacation or travel accommodation (RTA, s 4(e));
accommodations provided as part of various medical and care programs, such as certain hospitals or community care facilities (RTA, s 4(g));
accommodations in a correctional institution (RTA, s 4(h));
tenancy agreements with a term longer than 20 years (RTA, s 4(i)); and
tenancy agreements that fall under the MHPTA (RTA, s 4(j)).

3. Minors

Tenancy agreements entered into by persons under the age of 19 are enforceable (RTA, s 3). Despite the Infants Act, RSBC 1996, c 223, this section allows the RTA, RTR, tenancy agreements, and service agreements to be enforced against minors.

4. The Crown

Generally, the RTA applies to the Crown.

5. Hotel Tenants and Landlords

Hotel tenants are fully covered by the RTA if the hotel is the tenants’ primary residence. The following rules apply only to hotel tenants and landlords:

section 29(1)(c) of the RTA permits entry into a hotel tenant’s room without notice to provide housekeeping or related services at reasonable times;
section 59(6) of the RTA permits an individual occupying a room in a residential hotel to apply for an interim order stating that the RTA applies to that living accommodation without notifying other parties.

B. Strata Property

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, SBC 1998, c 43 [SPA].

For more information, see Chapter Twenty-Two: Strata Law.

C. Discrimination Against Tenants

Although overall poverty is not a protected ground under the BC Human Rights Code, RSBC 1996, c 210 [HRC], a landlord must not deny tenancy to a prospective tenant or discriminate regarding a term of a tenancy agreement based on a lawful source of income, such as income assistance or similar benefits (HRC, s 10(1)(a)). The prospective tenant may file a human rights complaint to the BC Human Rights Tribunal. See Chapter Six: Human Rights for more information.

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 Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age. Note that pets are not covered under discrimination rules.

There are three exceptions:

1. Shared Accommodations

These provisions do not apply where a tenant and landlord will share the use of any sleeping, bathroom or cooking facilities in the space (HRC, s 10(2)(a)).

2. Older Adults Only

These provisions, as they relate to age and family status, do not apply to rental spaces in residential buildings in which every unit is reserved for rental by people who have reached 55 years of age, or for by two or more people, at least one of whom has reached 55 years of age (HRC, s 10(2)(b)).

3. Units Designed to Accommodate Disability

These provisions, as they relate to physical or mental disability, do not apply if both the rental unit and the residential premises containing it are designed to accommodate persons with disabilities, and the unit is offered for rent exclusively to someone with a disability, or to two or more persons, at least one of whom has a disability (HRC, s 10(2)(c)).

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+{{REVIEWED LSLAP | date= August 15, 2024}}
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-== A. Premises and Persons Subject to the RTA ==
+== A. What Is and Is Not Subject to the ''RTA'' ==
-=== 1. Effective Date ===
+The RTB can only hear disputes subject to either the ''RTA'' or the ''MHPTA''. If a dispute between a tenant and a roommate arises beyond the jurisdiction of either ''Act'', it cannot be brought to the RTB. Instead, it may be brought to:
+*the Civil Resolution Tribunal (“CRT”) if the disputed monetary amount is $5000 or less;
+*the Small Claims Court if the disputed monetary amount is between $5,001 to $35,000; or
+*the Supreme Court if it is over $35,000.
+For more information about proceedings in those bodies, see [[Introduction_to_Small_Claims_(20:I)|Chapter Twenty: Small Claims and the CRT]].
-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.
+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''. Further resources are available at the end of this Chapter if you need assistance with a tenancy that is not under the jurisdiction of the RTB.
-=== 2. No Contracting Out ===
+=== 1. No Avoiding Tenancy Statutes ===
-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.
+Neither landlords nor tenants can contract out of or avoid the ''RTA'' or ''RTR'' (''RTA'', s 5(1)). Any tenancy agreement terms that are inconsistent with ''RTA'' or ''RTR'' or otherwise any attempt to avoid them are void and of no effect (''RTA'', s 5(2)).
-=== 3. Crown ===
+=== 2. Excluded Premises and Agreements ===
-Generally, the RTA applies to the Crown.
+Section 4 of the ''RTA'' sets out a list of situations which are not covered by the ''RTA''. For more information about what is covered by B.C.’s tenancy laws based on the type of housing situation, visit [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/calculators-and-resources/tenancy-laws-rules/tenancies-types this page of the Government of BC website].
-=== 4. Infants ===
+The following discusses some of the housing arrangements that are not covered by the ''RTA''.
-Tenancy  agreements entered into by persons under the age of 19 are enforceable under s 3 of the RTA.
+==== a) Renting as a Housing Cooperative Member ====
-=== 5. Hotel Tenants and Landlords ===
+If a non-profit housing cooperative rents housing to one of its members, the tenancy is not covered by the ''RTA'' (''RTA'', s 4(a)). Conversely, where a tenant is living in a cooperative housing facility and is paying rent, but is not a member of the cooperative, their rental unit may be subject to the ''RTA'' if the arrangement otherwise fits the definition of a tenancy.
-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:
+==== b) Sharing Bathroom or Kitchen Facilities ====
-*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.
+If a tenancy allows for sharing bathroom or kitchen facilities with the owner of the accommodations, the tenancy is not covered by the ''RTA'' (''RTA'', s 4(c)).
-=== 6. Subsidized Housing ===
+==== c) Roommates Without Tenancy Agreement With the Landlord ====
-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 http://www.bchousing.org/Options/Subsidized_Housing/Listings
+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 under the ''RTA''. For more information, see RTB PG 19: Assignment and Sublet.
-== B. Excluded Premises and Agreements ==
+The determination of whether there is a direct tenancy with the landlord depends on the circumstances of each case and can only be made by an RTB Arbitrator at a dispute resolution hearing.
-=== 1. Tenancies, Co-tenancies and Licenses to Occupy ===
+==== d) Emergency Shelter or Transitional Housing ====
-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''.
+Sometimes organizations that provide housing may claim that their accommodation falls under the emergency shelter or transitional housing exceptions. However, such claims are not necessarily correct, and only the RTB can make such a determination.
-It also does not apply to living accommodations in which the tenant shares bathroom or kitchen facilities with the owner of the accommodation.
+“Emergency shelter” entails an individual being provided with temporary overnight shelter or, in extreme circumstances, shelter beyond overnight until the emergency is over (RTB PG 46). 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 house rules as a condition of their stay”.
-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 Guidelines 9: Tenancy Agreements and Licenses to Occupy and Guideline 13: Rights and Responsibilities of Co-tenants may provide helpful guidance.
+The ''RTR'' defines “transitional housing” as 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.
-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.
+Any accommodation must satisfy all three of these criteria to be excluded from the ''RTA'', even if a transitional housing agreement has been signed.
-When a person shares a residence with the owner, factors indicating a license include:
+==== e) Commercial Tenancies ====
-*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.
+Premises primarily occupied for business purposes are instead governed [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96057_01 by the ''Commercial Tenancy Act'', RSBC 1996, c 57]. Furthermore, the ''RTA'' does not apply to accommodations rented under the same agreement as premises primarily occupied for business purposes (''RTA'', s 4(d)). See also RTB PG 14.
-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.
+==== f) Other Excluded Arrangements ====
-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 bylaws authorized by these statutes.
+The other housing arrangements excluded from the ''RTA'' under section 4 are:
+*accommodations owned or operated by an educational institution for its students or employees (''RTA'', s 4(b));
+*accommodations occupied as vacation or travel accommodation (''RTA'', s 4(e));
+*accommodations provided as part of various medical and care programs, such as certain hospitals or community care facilities (''RTA'', s 4(g));
+*accommodations in a correctional institution (''RTA'', s 4(h));
+*tenancy agreements with a term longer than 20 years (''RTA'', s 4(i)); and
+*tenancy agreements that fall under the MHPTA (''RTA'', s 4(j)).
-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.
+=== 3. Minors ===
-=== 2. Non-Profit Housing Cooperatives ===
+Tenancy agreements entered into by persons under the age of 19 are enforceable (''RTA'', s 3). Despite the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 ''Infants Act'', RSBC 1996, c 223], this section allows the ''RTA'', ''RTR'', tenancy agreements, and service agreements to be enforced against minors.
-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.
+=== 4. The Crown ===
-More  information can be found at the [http://www.chf.bc.ca website of the Co-operative Housing Federation of BC].
+Generally, the ''RTA'' applies to the Crown.
-=== 3. Strata Lots ===
+=== 5. Hotel Tenants and Landlords ===
-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.
+Hotel tenants are fully covered by the ''RTA'' if the hotel is the tenants’ primary residence. The following rules apply only to hotel tenants and landlords:
+*section 29(1)(c) of the ''RTA'' permits entry into a hotel tenant’s room without notice to provide housekeeping or related services at reasonable times;
+*section 59(6) of the ''RTA'' permits an individual occupying a room in a residential hotel to apply for an interim order stating that the ''RTA'' applies to that living accommodation without notifying other parties.
-=== 4. Twenty-Year Term ===
+== B. Strata Property ==
-Section 4(i) of the RTA provides that the RTA does not apply to a tenancy agreement for a term of over 20 years.
+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'', SBC 1998, c 43 [SPA].
-=== 5. Holiday Premises ===
+For more information, see [[Introduction_(22:I)|Chapter Twenty-Two: Strata Law]].
-The RTA does not apply to living accommodation occupied primarily as vacation or travel accommodation (s 4(e)).
+== C. Discrimination Against Tenants ==
-=== 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.
+Although overall poverty is not a protected ground under the BC ''Human Rights Code'', RSBC 1996, c 210 [''HRC''], a landlord must not deny tenancy to a prospective tenant or discriminate regarding a term of a tenancy agreement based on a lawful source of income, such as income assistance or similar benefits (''HRC'', s 10(1)(a)). The prospective tenant may file a human rights complaint to the BC Human Rights Tribunal. See [[Introduction_to_Human_Rights_(6:I)|Chapter Six: Human Rights]] for more information.
-=== 8. Emergency Shelter and Transitional Housing ===
+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 Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age. Note that pets are not covered under discrimination rules.
-Section 4 of the RTA states that the RTA does not apply to accommodation “provided for
+There are three exceptions:
-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 staying at emergency shelters and transitional housing; and
-*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 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 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 [[Governing Legislation and Resources for Human Rights (6:I) | 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.
+These provisions do not apply where a tenant and landlord will share the use of any sleeping, bathroom or cooking facilities in the space (''HRC'', s 10(2)(a)).
-=== 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.
+=== 2. Older Adults Only ===
-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.
+These provisions, as they relate to age and family status, do not apply to rental spaces in residential buildings in which every unit is reserved for rental by people who have reached 55 years of age, or for by two or more people, at least one of whom has reached 55 years of age (''HRC'', s 10(2)(b)).
-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.
+=== 3. Units Designed to Accommodate Disability ===
+These provisions, as they relate to physical or mental disability, do not apply if both the rental unit and the residential premises containing it are designed to accommodate persons with disabilities, and the unit is offered for rent exclusively to someone with a disability, or to two or more persons, at least one of whom has a disability (''HRC'', s 10(2)(c)).
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