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= July 1, 2022}}
+{{REVIEWED LSLAP | date= August 15, 2024}}
 {{LSLAP Manual TOC|expanded = landlord}}
-Landlord-tenant law was written to protect the rights and identify the responsibilities of both landlords and tenants. The law serves to prevent and resolve disputes that may arise within a tenancy, in the clearest and lowest-conflict manner possible. This guide seeks to provide basic legal information, including about the rights and responsibilities of tenants and landlords, and about the processes available for resolving disputes between tenants and landlords.
+== A. What Is and Is Not Subject to the ''RTA'' ==
-The primary source of landlord-tenant law in British Columbia is the ''Residential Tenancy Act'' [''RTA''].  The ''Manufactured Home Park Tenancy Act'', SBC 2002, c 77 [''MHPTA''] is a counterpart to the ''RTA'' that applies to owners of manufactured homes who rent the site on which their homes sit.
+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'' 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 licence to occupy a rental unit.
+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.
-== '''A.	Premises and Persons Subject to the ''RTA''''' ==
+=== 1. No Avoiding Tenancy Statutes ===
-=== 1. Effective Date ===
+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)).
-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. Excluded Premises and Agreements ===
-=== 2. Infants ===
+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].
-Tenancy agreements entered into by persons under the age of 19 are enforceable under s 3 of the ''RTA''.
+The following discusses some of the housing arrangements that are not covered by the ''RTA''.
-=== 3. Excluded Premises and Agreements ===
+==== a) Renting as a Housing Cooperative Member ====
-s. 4 of the ''RTA'' sets out a list of situations which are not covered by the ''RTA'':
+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.
-* a living accommodation rented by a not for profit housing cooperative to a member of that cooperative
-* a living accommodation owned or operated by an educational institution and provided by that institution to its students or employees,
-* a living accommodation in which the tenant shares bathroom or kitchen facilities with the owner of that accommodation,
-* a living accommodation included with premises that are primarily occupied for business purposes, and are rented under a single agreement
-* a living accommodation occupied as vacation or travel accommodation
-* a living accommodation provided for emergency shelter or transitional housing
-* a living accommodation in a community or continuing care facility, hospital, mental health facility, or other health facility
-* a living accommodation in a correctional institution
-* a living accommodation rented under a tenancy agreement that has a term longer than 20 years
-* a tenancy agreements to which the ''Manufactured Home Park Tenancy Act'' applies
-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 appears to fit the definition of a tenancy.  More information can be found at the website of the Co-operative Housing Federation of BC at www.chf.bc.ca.
+==== b) Sharing Bathroom or Kitchen Facilities ====
-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 under the ''RTA''. Disputes between a tenant and a roommate cannot be brought to the RTB but may be brought to the Civil Resolution Tribunal if the disputed monetary amount is under $5000. Otherwise, the dispute can be brought to Small Claims Court if it is below $35,000, or to the Supreme Court if it is over $35,000. For more information, see Policy Guideline 19: Assignment and Sublet.
+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)).
-The determination of whether there is a tenancy depends on the circumstances of each case and can only be made by an RTB Arbitrator at a dispute resolution hearing.
+==== c) Roommates Without Tenancy Agreement With the Landlord ====
-A person who is not a tenant (i.e. someone whose housing is excluded from the ''RTA'' or who is an occupant, such as a roommate) may have a licence to occupy. Licensees’ rights and obligations are governed by common law. A licensee can be asked to leave (i.e. be evicted) without a 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 their personal property seized should consider taking the position that they are a tenant and apply to the Residential Tenancy Branch for dispute resolution seeking an order for the return of personal property. If the Arbitrator finds that the ''RTA'' does not apply, the application will be dismissed.
+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.
-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, they 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.
-Sometimes organizations that provide housing may claim that their accommodation falls under the emergency shelter or transitional housing exceptions.  However, only the RTB can make such a determination, and such claims are not necessarily correct. The Residential Tenancy Regulations were updated on December 2016 to include a three-part definition of transitional housing. According to s.1 of the Regulations, "transitional housing” means living accommodation that is provided:
+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.
-* 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 Act, even if a transitional housing agreement has been signed.  “Emergency shelter” is defined in Policy Guideline 46 as a facility that “provides a homeless individual with temporary overnight shelter”. 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”.
-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.
+==== d) Emergency Shelter or Transitional Housing ====
-* 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''.
+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.
-* If your issue does not fall under the ''RTA'', please see section XIX for additional resources.
-=== 4. No Contracting Out ===
+“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”.
-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 Act Regulations'', the term is void. This means that neither landlords nor tenants can contract away rights legislated under the RTA when the RTA would have otherwise applied to the situation
+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.
-=== 5. Crown ===
+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 [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.
+==== 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 [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.
+=== 4. The Crown ===
 Generally, the ''RTA'' applies to the Crown.
-=== 6. Hotel Tenants and Landlords ===
+=== 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;
+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:
-* 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.
+*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.
-See '''Policy Guideline 9: Tenancy Agreements and Licences to Occupy'''.
+== B. Strata Property ==
-== '''B. Discrimination Against Tenants''' ==
+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].
-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.
+For more information, see [[Introduction_(22:I)|Chapter Twenty-Two: Strata Law]].
-There are two exceptions:
+== C. Discrimination Against Tenants ==
-'''1. Shared Accommodations'''
+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.
-The law does not always apply when kitchen and bathroom facilities are shared with the owner of that accommodation.
+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.
-'''2. Adults Only'''
+There are three exceptions:
-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.
+=== 1. Shared Accommodations ===
-== '''C. Foreign Students''' ==
+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)).
-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 security 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)).
-{{LSLAP Manual Navbox|type=chapters15-22}}
+{{LSLAP Manual Navbox|type=chapters15-23}}