Tenancy Agreements (19:IV): Difference between revisions

Latest revision as of 07:54, 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. General

A “tenancy agreement” is defined as “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” (RTA, s 1). Like any valid contract, there must be an offer, acceptance, and consideration.

A tenancy agreement gives the tenant the right to use, enjoy, and dispose of the property for some duration. The landlord has a freehold in reversion, allowing them to sell their property to someone else. A tenancy continues under the same terms when a rental property is sold in BC. Accordingly, the landlord cannot terminate a lease simply because they want to sell the property; instead, the new owner will take over as the landlord. No new lease is required to be drafted and signed, though this may happen if both parties agree.

1. Two Methods of Creating a Tenancy Relationship

a) By Written Contract

Although section 1 of the RTA contemplates tenancy agreements that are written, oral, or implied, a landlord must prepare in writing any tenancy agreement entered into on or after January 1, 2004 (RTA, s 13(1)).

Vague terms of the tenancy agreement may be framed in the tenant's favour using the principle of contra proferentem, meaning that the agreement will be strictly construed against the party who provided the agreement's wording.

b) By Implied Contract

Notwithstanding the obligation to prepare a written agreement, where there has been offer, acceptance, and some kind of meaningful consideration, the law may imply the existence of a valid tenancy agreement. The law seeks to recognize and validate the relationship where possible, even where the requirement for a written tenancy agreement has not been met.

Oral contracts are hard to prove. If something is important, it should be recorded in writing.

In a fixed term tenancy that does not require the tenant to vacate on the last day, if the landlord and tenant have not entered into a new tenancy agreement, they are deemed to have entered into a month to month tenancy on the same terms (RTA, s 44(3)).

2. Freedom of Contract and the Agreement

Parties may use a standard form tenancy agreement with or without an addendum for additional terms, or they may write their own. Parties are free to add and alter the terms, covenants, and conditions, subject to common law and statute restrictions, which include standard terms that the RTA and RTR require to be in every tenancy agreement.

a) What Tenancy Agreements Must Contain

The standard terms are the clauses that every tenancy agreement must contain (RTR, s 13(1)), and are found in the schedule of the RTR. The standard terms cover key rights and responsibilities of both parties, including repairs, payment of rent, rent increases, security deposits, assignment or sublet, occupants and invited guests, entry of the residential premises by the landlord, locks, ending the tenancy, and the application of the RTA. A tenancy agreement cannot be amended to change or remove a standard term (RTA, s 14(1)), making them a minimum standard that all tenancy agreements must achieve.

All tenancy agreements must comply with the requirements laid out in section 13(2) of the RTA. In addition to mandating that the tenancy agreement include the standard terms, a tenancy agreement must also contain the landlord and tenant’s agreement over certain key terms, such as the parties’ contact information, the duration of the tenancy, the amount and due date of the rent, and the amount and due date of any security or pet damage deposits to be paid.

Form RTB-1 is a standard tenancy agreement form that only contains the standard terms along with fillable boxes to complete the remaining mandatory terms; additional terms can be added as an addendum, or alternatively, the parties could use any other written document that conforms with the requirements from the RTA and RTR. More information about tenancy agreement requirements and Form RTB-1 can be found here.

b) No Contracting Out of Tenancy Legislation

As it is not possible to contract out of the RTA or RTR (RTA, s 5), a tenancy agreement cannot have terms that contradict the RTA or RTR. A tenancy agreement cannot be subsequently amended to change or remove a standard term (RTA, s 14(1)).

A tenancy agreement might purport to contain terms contrary to tenancy legislation, and this may not be identified in some cases until dispute resolution. A tenant is free to argue that a term violates the RTA or RTR and should, therefore, be void.

c) Amendments and Subsequent Contracts

The parties may enter additional or subsequent oral or written contracts on top of the tenancy agreement. If an RTB Arbitrator determines the terms are reasonable and not unconscionable, as defined within section 3 of the RTR, new landlords or tenants that take over or enter into the same tenancy agreement would be bound by the subsequent contract.

Changes in the tenancy agreement must be agreed upon by both the landlord and tenant (RTA, s 14(2)), in writing, and signed and dated by both parties. Generally, changes are only enforceable if both parties offer something in return for the other; however, a change without fresh consideration may be enforceable in the absence of duress, unconscionability, or other public policy concerns (Rosas v Toca, 2018 BCCA 191 at para 183).

d) Pets

If the tenancy agreement is silent about pets, then the tenant can obtain one. Tenancy agreements are allowed to include terms that prohibit pets or restrict the size, kind, or number of pets a tenant may keep on the residential property, or otherwise govern the tenant’s obligations regarding keeping a pet on the rental property (RTA, s 18(1)). This is subject to the Guide Dog and Service Dog Act, SBC 2015, c 17 (RTA, s 18(3)), which in section 3 prohibits a person from denying tenancy or from discriminating with respect to a term of the tenancy against a person who intends to keep a guide dog or service dog in the rental unit.

e) Cannabis

As of October 17, 2018, personal possession of cannabis is legal in Canada. Accordingly, changes to the RTA were implemented around growing and smoking cannabis.

If a tenancy agreement entered into prior to legalization includes a clause prohibiting or limiting smoking and did not explicitly allow for smoking cannabis, then that clause is deemed to apply to smoking cannabis in the same way (RTA, s 21.1(2)). Vaporizing a substance containing cannabis is not “smoking cannabis” (RTA, s 21.1(3)).

Most tenancy agreements entered into prior to legalization are deemed to contain a term prohibiting growing cannabis plants in or on the residential property. There is an exemption for existing operations in or on the residential property that met the following conditions on the day before legalization:

the tenant is growing one or more medical cannabis plants (RTA, s 21.1(4)(a));
growing the plants is not otherwise a violation of the tenancy agreement (RTA, s 21.1(4)(b));
the tenant is authorized under federal law to grow the cannabis plants in or on the residential tenancy (RTA, s 21.1(4)(c)); and
the tenant is in compliance with federal law with respect to the medical cannabis (RTA, s 21.1(4)(c)).

3. Operation of Tenancy Agreement Terms

A term in a tenancy agreement consists of a promise by a person that a certain thing must or must not be done.

a) Material Terms

From RTB PG 8, a material term is defined as a term of the tenancy agreement that, at the time of entering into the tenancy agreement, both parties agree is so important that the most trivial breach of the term entitles the other party to terminate the agreement.

Not all terms of a tenancy agreement are material terms. The circumstances surrounding the creation of the tenancy agreement and the importance of the term in the tenancy agreement as a whole are more relevant to whether the term is material; meanwhile, the consequences of a breach are less relevant. Although RTB PG 8 states that whether the tenancy agreement declares the term to be material is less relevant, Arbitrators are likely to consider a term material if the agreement flags it as such. The same clause can be a material term in one tenancy but not material in another.

b) Express, Implied and Statutory Terms

Valid express terms override any implied terms or “usual terms” that might otherwise apply at common law. For residential tenancies, the RTA deems some express terms to be unenforceable. Furthermore, the terms that the RTA deems to be terms in every agreement override any express or implied term to the contrary.

For tenancies not governed by the RTA, a court will find implied obligations and insert the usual terms if the parties have failed to expressly agree to certain matters.

c) Unenforceable Terms

A term of the tenancy is unenforceable if:

the term is inconsistent with this RTA or the RTR (RTA, s 6(3)(a));
the term is unconscionable (RTA, s 6(3)(b)); or
the term is not expressed in a manner that clearly communicates the rights and obligations under it (RTA, s 6(3)(c)).

The definition of “unconscionable” for the purposes of determining whether a term of a tenancy agreement is enforceable is “if the term is oppressive or grossly unfair to one party” (RTR, s 3). Some of the factors determining whether a term meets this standard can include (RTB PG 8):

whether it grossly impacts the health and living quality of one party;
whether there is a rational basis for the term to exist in the agreement; or
whether the term is so one-sided that it oppresses or exploits the party with weaker bargaining power.

The following are examples of express terms that are void and unenforceable:

a term purporting to hold that the RTA does not apply to the agreement or attempts to avoid the RTA (RTA, s 5);
that the next payable rent becomes immediately due if a tenant fails to comply with a term of the tenancy agreement (RTA, s 22);
that the landlord can seize the tenant’s personal property for rent owing (RTA, s 26(3)(a));
terms that impose unreasonable restrictions on guests or impose a fee for having guests stay overnight (RTB PG 8); or
for a fixed term tenancy, any vacate clauses that require the tenant to move out at the end of the tenancy unless:
- The tenancy agreement is a sublease agreement; or
- The fixed term tenancy was created in circumstances where the landlord or landlord’s close family plans in good faith to occupy the unit after the tenancy ends (RTR s 13.1).

B. Protecting the Tenant During Agreement Formation

A third party may accompany a potential tenant during a rental unit showing, so there is a witness as to the landlord’s representations made during the showing. Tenants should get the landlord’s promises in writing if possible, but note that landlords are not obligated to provide them in writing.

After establishing the tenancy and before the tenant moves their personal possessions into the rental unit, the landlord and tenant must jointly conduct a condition inspection and fill out and sign the RTB’s Condition Inspection Report (RTA, s 23). This report notes the condition of various elements of the rental unit, such as what needs to be repaired. It is a good idea to take photographs at the initial move-in inspection as well as the move-out inspection. The landlord must provide the tenant with a copy of the Condition Inspection Report within fifteen days (RTA, s 23(5)).

1. Illegal Application Fees

A potential landlord cannot ask a renter or potential renter for application or processing fees relating to the following:

accepting a tenancy application (RTA, s 15(a));
processing the application (RTA, s 15(b));
investigating the applicant’s suitability as a tenant (RTA, s 15(c)); or
accepting the person as a tenant (RTA, s 15(a)).

If someone has paid an application fee and the landlord will not give it back, they 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. If a landlord does this as a business practice, the tenant should report this to the director of the RTB, or to the RTB’s Compliance and Enforcement Unit (CEU), who can launch an investigation. For more information about the CEU, see here.

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+{{REVIEWED LSLAP | date= August 15, 2024}}
 {{LSLAP Manual TOC|expanded = landlord}}
-CHAPTER 3 Residential Tenancy Act Coverage
-=A. Premises and Persons Subject to the RTA
+== A. General ==
-==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==
+A “tenancy agreement” is defined as “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” (''RTA'', s 1). Like any valid contract, there must be an offer, acceptance, and consideration.
-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==
+A tenancy agreement gives the tenant the right to use, enjoy, and dispose of the property for some duration. The landlord has a freehold in reversion, allowing them to sell their property to someone else. A tenancy continues under the same terms when a rental property is sold in BC. Accordingly, the landlord cannot terminate a lease simply because they want to sell the property; instead, the new owner will take over as the landlord. No new lease is required to be drafted and signed, though this may happen if both parties agree.
-Generally, the RTA applies to the Crown.
-==4. Infants==
+=== 1. Two Methods of Creating a Tenancy Relationship ===
-Tenancy agreements entered into by persons under the age of 19 are enforceable under s 3 of the RTA.
-==5. Hotel Tenants and Landlords==
+==== a) By Written Contract ====
-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;
+Although section 1 of the ''RTA'' contemplates tenancy agreements that are written, oral, or implied, a landlord must prepare in writing any tenancy agreement entered into on or after January 1, 2004 (''RTA'', s 13(1)).
-*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.
+Vague terms of the tenancy agreement may be framed in the tenant's favour using the principle of contra proferentem, meaning that the agreement will be strictly construed against the party who provided the agreement's wording.
-See Policy Guideline 9: Tenancy Agreements and Licences to Occupy.
+==== b) By Implied Contract ====
-==6. Subsidized Housing==
+Notwithstanding the obligation to prepare a written agreement, where there has been offer, acceptance, and some kind of meaningful consideration, the law may imply the existence of a valid tenancy agreement. The law seeks to recognize and validate the relationship where possible, even where the requirement for a written tenancy agreement has not been met.
-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=
+Oral contracts are hard to prove. If something is important, it should be recorded in writing.
-==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.
+In a fixed term tenancy that does not require the tenant to vacate on the last day, if the landlord and tenant have not entered into a new tenancy agreement, they are deemed to have entered into a month to month tenancy on the same terms (''RTA'', s 44(3)).
-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);
+=== 2. Freedom of Contract and the Agreement ===
-*the absence of a written tenancy agreement;
+Parties may use a standard form tenancy agreement with or without an addendum for additional terms, or they may write their own. Parties are free to add and alter the terms, covenants, and conditions, subject to common law and statute restrictions, which include standard terms that the ''RTA'' and ''RTR'' require to be in every tenancy agreement.
-*the provision of meals;
+==== a) What Tenancy Agreements Must Contain ====
-*laundering and cleaning services provided by the facility;
+The standard terms are the clauses that every tenancy agreement must contain (''RTR'', s 13(1)), and are found in the schedule of the ''RTR''. The standard terms cover key rights and responsibilities of both parties, including repairs, payment of rent, rent increases, security deposits, assignment or sublet, occupants and invited guests, entry of the residential premises by the landlord, locks, ending the tenancy, and the application of the ''RTA''. A tenancy agreement cannot be amended to change or remove a standard term (''RTA'', s 14(1)), making them a minimum standard that all tenancy agreements must achieve.
-*no locks on the doors;
+All tenancy agreements must comply with the requirements laid out in section 13(2) of the ''RTA''. In addition to mandating that the tenancy agreement include the standard terms, a tenancy agreement must also contain the landlord and tenant’s agreement over certain key terms, such as the parties’ contact information, the duration of the tenancy, the amount and due date of the rent, and the amount and due date of any security or pet damage deposits to be paid.
-*no security deposit;
+Form RTB-1 is a standard tenancy agreement form that only contains the standard terms along with fillable boxes to complete the remaining mandatory terms; additional terms can be added as an addendum, or alternatively, the parties could use any other written document that conforms with the requirements from the ''RTA'' and ''RTR''. More information about tenancy agreement requirements and Form RTB-1 can be found [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/starting-a-tenancy/tenancy-agreements here].
-*lack of exclusive possession; or
+==== b) No Contracting Out of Tenancy Legislation ====
-*the facility is part of a special program and the housing is temporary in nature.
+As it is not possible to contract out of the ''RTA'' or ''RTR'' (''RTA'', s 5), a tenancy agreement cannot have terms that contradict the ''RTA'' or ''RTR''. A tenancy agreement cannot be subsequently amended to change or remove a standard term (''RTA'', s 14(1)).
-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 tenancy agreement might purport to contain terms contrary to tenancy legislation, and this may not be identified in some cases until dispute resolution. A tenant is free to argue that a term violates the ''RTA'' or ''RTR'' and should, therefore, be void.
-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.
+==== c) Amendments and Subsequent Contracts ====
-==2. Non-Profit Housing Co-Operatives
+The parties may enter additional or subsequent oral or written contracts on top of the tenancy agreement. If an RTB Arbitrator determines the terms are reasonable and not unconscionable, as defined within section 3 of the ''RTR'', new landlords or tenants that take over or enter into the same tenancy agreement would be bound by the subsequent contract.
-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.
+Changes in the tenancy agreement must be agreed upon by both the landlord and tenant (''RTA'', s 14(2)), in writing, and signed and dated by both parties. Generally, changes are only enforceable if both parties offer something in return for the other; however, a change without fresh consideration may be enforceable in the absence of duress, unconscionability, or other public policy concerns ([https://canlii.ca/t/hs3c5#par183 ''Rosas v Toca'', 2018 BCCA 191] at para 183).
-More information can be found at the website of the Co-operative Housing Federation of BC at www.chf.bc.ca.
+==== d) Pets ====
-==3. Strata Lots==
+If the tenancy agreement is silent about pets, then the tenant can obtain one. Tenancy agreements are allowed to include terms that prohibit pets or restrict the size, kind, or number of pets a tenant may keep on the residential property, or otherwise govern the tenant’s obligations regarding keeping a pet on the rental property (''RTA'', s 18(1)). This is subject to the ''Guide Dog and Service Dog Act'', SBC 2015, c 17 (''RTA'', s 18(3)), which in section 3 prohibits a person from denying tenancy or from discriminating with respect to a term of the tenancy against a person who intends to keep a guide dog or service dog in the rental unit.
-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==
+==== e) Cannabis ====
-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==
+As of October 17, 2018, personal possession of cannabis is legal in Canada. Accordingly, changes to the ''RTA'' were implemented around growing and smoking cannabis.
-The RTA does not apply to living accommodation occupied primarily as vacation or travel accommodation (s 4(e)).
-==6. Manufactured Home Owners==
+If a tenancy agreement entered into prior to legalization includes a clause prohibiting or limiting smoking and did not explicitly allow for smoking cannabis, then that clause is deemed to apply to smoking cannabis in the same way (''RTA'', s 21.1(2)). Vaporizing a substance containing cannabis is not “smoking cannabis” (''RTA'', s 21.1(3)).
-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
+Most tenancy agreements entered into prior to legalization are deemed to contain a term prohibiting growing cannabis plants in or on the residential property. There is an exemption for existing operations in or on the residential property that met the following conditions on the day before legalization:
-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.
+*the tenant is growing one or more medical cannabis plants (''RTA'', s 21.1(4)(a));
+*growing the plants is not otherwise a violation of the tenancy agreement (''RTA'', s 21.1(4)(b));
+*the tenant is authorized under federal law to grow the cannabis plants in or on the residential tenancy (''RTA'', s 21.1(4)(c)); and
+*the tenant is in compliance with federal law with respect to the medical cannabis (''RTA'', s 21.1(4)(c)).
-==8. Emergency Shelter and Transitional Housing==
+=== 3. Operation of Tenancy Agreement Terms ===
-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
+A term in a tenancy agreement consists of a promise by a person that a certain thing must or must not be done.
-*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)
+==== a) Material Terms ====
-*People living in accommodations owned or operated by educational institutions if the institution provides the accommodation to its students;
+From RTB PG 8, a material term is defined as a term of the tenancy agreement that, at the time of entering into the tenancy agreement, both parties agree is so important that the most trivial breach of the term entitles the other party to terminate the agreement.
-*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.
+Not all terms of a tenancy agreement are material terms. The circumstances surrounding the creation of the tenancy agreement and the importance of the term in the tenancy agreement as a whole are more relevant to whether the term is material; meanwhile, the consequences of a breach are less relevant. Although RTB PG 8 states that whether the tenancy agreement declares the term to be material is less relevant, Arbitrators are likely to consider a term material if the agreement flags it as such. The same clause can be a material term in one tenancy but not material in another.
-==10. Residential Tenancy Branch Information Line==
+==== b) Express, Implied and Statutory Terms ====
-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=
+Valid express terms override any implied terms or “usual terms” that might otherwise apply at common law. For residential tenancies, the ''RTA'' deems some express terms to be unenforceable. Furthermore, the terms that the ''RTA'' deems to be terms in every agreement override any express or implied term to the contrary.
-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:
+For tenancies not governed by the ''RTA'', a court will find implied obligations and insert the usual terms if the parties have failed to expressly agree to certain matters.
-==1. Shared Accommodations==
+==== c) Unenforceable Terms ====
-The law does not always apply when kitchen and bathroom facilities are shared with the owner of that accommodation.
+A term of the tenancy is unenforceable if:
-==2. Adults Only==
+*the term is inconsistent with this ''RTA'' or the ''RTR'' (''RTA'', s 6(3)(a));
+*the term is unconscionable (''RTA'', s 6(3)(b)); or
+*the term is not expressed in a manner that clearly communicates the rights and obligations under it (''RTA'', s 6(3)(c)).
-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.
+The definition of “unconscionable” for the purposes of determining whether a term of a tenancy agreement is enforceable is “if the term is oppressive or grossly unfair to one party” (''RTR'', s 3). Some of the factors determining whether a term meets this standard can include (RTB PG 8):
+*whether it grossly impacts the health and living quality of one party;
+*whether there is a rational basis for the term to exist in the agreement; or
+*whether the term is so one-sided that it oppresses or exploits the party with weaker bargaining power.
-=D. Application Fees=
+The following are examples of express terms that are void and unenforceable:
+*a term purporting to hold that the ''RTA'' does not apply to the agreement or attempts to avoid the ''RTA'' (''RTA'', s 5);
+*that the next payable rent becomes immediately due if a tenant fails to comply with a term of the tenancy agreement (''RTA'', s 22);
+*that the landlord can seize the tenant’s personal property for rent owing (''RTA'', s 26(3)(a));
+*terms that impose unreasonable restrictions on guests or impose a fee for having guests stay overnight (RTB PG 8); or
+*for a fixed term tenancy, any vacate clauses that require the tenant to move out at the end of the tenancy unless:
+**The tenancy agreement is a sublease agreement; or
+**The fixed term tenancy was created in circumstances where the landlord or landlord’s close family plans in good faith to occupy the unit after the tenancy ends (''RTR'' s 13.1).
-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.
+== B. Protecting the Tenant During Agreement Formation ==
-=E. Foreign Students=
+A third party may accompany a potential tenant during a rental unit showing, so there is a witness as to the landlord’s representations made during the showing. Tenants should get the landlord’s promises in writing if possible, but note that landlords are not obligated to provide them in writing.
-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.
+After establishing the tenancy and before the tenant moves their personal possessions into the rental unit, the landlord and tenant must jointly conduct a condition inspection and fill out and sign the RTB’s Condition Inspection Report (''RTA'', s 23). This report notes the condition of various elements of the rental unit, such as what needs to be repaired. It is a good idea to take photographs at the initial move-in inspection as well as the move-out inspection. The landlord must provide the tenant with a copy of the Condition Inspection Report within fifteen days (''RTA'', s 23(5)).
-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.
+=== 1. Illegal Application Fees ===
-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.
+A potential landlord cannot ask a renter or potential renter for application or processing fees relating to the following:
+*accepting a tenancy application (''RTA'', s 15(a));
+*processing the application (''RTA'', s 15(b));
+*investigating the applicant’s suitability as a tenant (''RTA'', s 15(c)); or
+*accepting the person as a tenant (''RTA'', s 15(a)).
+If someone has paid an application fee and the landlord will not give it back, they 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. If a landlord does this as a business practice, the tenant should report this to the director of the RTB, or to the RTB’s Compliance and Enforcement Unit (CEU), who can launch an investigation. For more information about the CEU, see [https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/solving-problems/tenancy-compliance-enforcement here].
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