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

Revision as of 20:12, 15 November 2022

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 1, 2022.

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.

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 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.

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. Infants

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

3. Excluded Premises and Agreements

s. 4 of the RTA sets out a list of situations which are not covered by the RTA:

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.

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.

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.

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.

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:

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.

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.
If your issue does not fall under the RTA, please see section XIX for additional resources.

4. 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 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

5. Crown

Generally, the RTA applies to the Crown.

6. 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.

B. Discrimination Against Tenants

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.

There are two exceptions:

1. Shared Accommodations

The law does not always apply when kitchen and bathroom facilities are shared with the owner of that accommodation.

2. Adults Only

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.

C. Foreign Students

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.

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.

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.

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 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.
-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.
+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.
 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.
 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.
 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.