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

{{REVIEWED LSLAP | date= September 7, 2020}}

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

Every tenancy agreement entered into on or after January 1, 2004 must be prepared in writing by the landlord (RTA, s 13(1)).  

If the person in possession pays rent or a deposit and the landlord accept the payment with the intention of creating a tenancy, an agreement is created.

Throughout the establishment and duration of the agreement, the parties are generally free to add and alter the terms, covenants and conditions as they see fit – subject to restrictions imposed by common law and statute (e.g. prohibition of contracts for an illegal purpose, unconscionable terms, or contracts in restraint of trade). The RTA and MHPTA both restrict parties from contracting out of requirements of those Acts and from adopting terms that are contrary to the Acts. The changes in the tenancy agreement must be in writing and be signed and dated by both parties. Some requirements, such as locks on doors, are automatically included in every tenancy agreement even if the tenancy agreement does not specifically mention them. A unilaterally altered or newly included term may be unenforceable where there is nothing offered or given in return for it.

The parties may enter into additional or subsequent oral or written contracts, separate from the tenancy agreement, that change the way the terms of the tenancy agreement are carried out (e.g. agreement by the tenant to do repairs in return for paying a reduced amount of rent). The terms of the tenancy agreement still exist; they must be performed as stipulated when the collateral contract is fully performed or is otherwise terminated (e.g. one party dies or goes away). If an Arbitrator determines the terms are reasonable and not unconscionable, as defined within s 3 of the RTR, new landlords or tenants that take over or enter into the same tenancy agreement would be bound by the collateral contract. A remedy for the new landlord would be found in an action against the seller. Generally speaking, oral collateral contracts are hard to prove. If something is important, it should be recorded in writing.

The RTA requires that all tenancy agreements include standard terms outlining key statutory rights and responsibilities of the tenant and landlord (see RTA s 12, and the Schedule to the Regulation). The standard terms cover repairs, payment of rent, rent increases, security deposits, assignment or sub-let, occupants and invited guests, entry of the residential premises by the landlord, locks, ending the tenancy, and the application of the RTA. To assist landlords and tenants, the Ministry created a standard Residential Tenancy Agreement, available online (http://bit.ly/1eiaQNL). This Agreement incorporates suggestions put forward by landlord and tenant stakeholders and includes the prescribed terms found in the Schedule of the Regulation.

For residential tenancies, the following express terms are void and unenforceable:

*a term purporting to hold that the RTA does not apply to the agreement or attempts to avoid the RTA (s 5(1) and (2));  

Some included requirements of the RTA state that the tenant:

Similarly, terms in a short form lease that are inconsistent with the RTA are unenforceable. The parties may, however, enter into a separate collateral agreement, under which a clause requiring the tenant to perform repairs is binding on the tenant, so long as there is some value given in return (i.e. lower rates of rent).

Changes in the RTA allow more ability to agree to any term landlords and tenants wish than the repealed Act did.

However, a term of the tenancy is unenforceable if (RTA, s 6):

(1) the term is inconsistent with this RTA or the regulations;

NOTE: The RTR defines “unconscionable” for the purposes of s 6(3)(b) of the RTA as follows: a term of a tenancy agreement is “unconscionable if the term is oppressive or grossly unfair to one party”.

In B.C., there is no law that allows tenants to have a pet. RTA, s 18 allows a tenancy agreement to include terms that prohibit pets or restrict the size, kind or number of pets a tenant may keep on the residential property. If the agreement is silent about pets, then the tenant should be able to obtain one. If a tenancy agreement doesn’t allow pets and a tenant gets one anyway, the landlord can tell the tenant to remove it. If the tenant refuses, the landlord may be able to give an effective eviction notice. RTA, s 18 is subject to the rights and restrictions under the Guide Animal Act RSBC 1996, c 177, s 4, which states that landlords must not deny tenancy or impose discriminatory terms on a person with a disability who intends to keep a guide animal in the rental unit.

When a landlord permits a tenant to keep a pet after the tenancy has already started, the landlord and tenant together must inspect the condition of the rental unit on or before the day the tenant starts keeping a pet or on another mutually agreed day (RTA, s 23(2)). Failure of the tenant or landlord to participate in the inspection may extinguish the right of the failing party to the rights relating to the pet deposit (s 24). The landlord can request pet damage deposit of not greater than ½ of a month’s rent, regardless of the number of pets.

'''h) Statutory Terms in the RTA: Duties and Prohibitions'''

For residential tenancies subject to the RTA, the common law implied obligations apply unless their subject matter is superseded by one of the RTA’s obligations.

With the legalization of cannabis in BC, changes to the RTA were implemented around growing and smoking cannabis.

(1) If a tenancy agreement included a “no smoking” clause and did not explicitly allow for smoking cannabis, then the “no smoking” clause is deemed to apply to smoking cannabis. This also applies to any clauses that restrict or regulates smoking. (RTA s 21.1 (2))   

*    For the purpose of RTA s 21.1 (2), vaporizing a substance containing cannabis is not “smoking cannabis.”  

{{REVIEWED LSLAP | date= July 29, 2019}}