The Residential Tenancy Act and Related Statutes (19:III)

A. Premises and Persons Subject to the RTA

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

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

Generally, the RTA applies to the Crown.

4. Infants

Tenancy agreements entered into by persons under the age of 19 are enforceable under s 3 of the RTA.

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;
• 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.

6. Subsidized Housing

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

B. Excluded Premises and Agreements

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 does not apply to living accommodation owned or operated by an educational institution and provided by that institution to its students or employees. 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.

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);
• the absence of a written tenancy agreement;
• the provision of meals;
• laundering and cleaning services provided by the facility;