Difference between revisions of "The Residential Tenancy Act (19:I)"

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=== 1. Tenancies, Co-tenancies and Licenses to Occupy ===
=== 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''.  
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 license 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 Regulations.


It also does not apply to living accommodations in which the tenant shares bathroom or kitchen facilities with the owner of the accommodation.  
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 Guidelines 9: Tenancy Agreements and Licenses to Occupy and Guideline 13: Rights and Responsibilities of Co-tenants may provide helpful guidance.  
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 19: Assignment and Sublet 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.                                          
Section 4 of the ''Residential Tenancy Act'' seats out living accomodations where the Act does not apply. These include but are not limited to:


When a person shares a residence with the owner, factors indicating a license include:
*where the tenant shares bathroom or kitchen facilities with the owner (this refers to the owner accommodation;  
*sharing a kitchen or bathroom with the owner (this refers to the owner of the building, not the owner’s agent) (s 4);  
*where the accommodations are rented by a housing cooperative to a member of that cooperative;
*the absence of a written tenancy agreement;  
*where the accommodation is owned or operated by an educational institution (e.g. a college or university) and provided by that institution to its students or employees; and
*the provision of meals;  
*laundering and cleaning services provided by the facility;
*laundering and cleaning services provided by the facility;
*no locks on the doors;
*where the accommodation is included with premises that are primarily occupied for business purposes and are rented under a single agreement
*no security deposit;
 
*lack of exclusive possession; or
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.  Disputes between a tenant and roommate cannot be brought to the RTB, but may be brought in Small Claims Court.  For more information, see'''Section X.E Subletting and Assignment''' and Policy Guideline 19: Assignment and Sublet.
*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.  
The determination of whether there is a tenancy depends on the circumstances of each case and can only be made by a RTB Arbitrator at a dispute resolution hearing.  


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


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.
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,  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. 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.


=== 2. Non-Profit Housing Cooperatives ===
=== 2. Non-Profit Housing Cooperatives ===
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