Governing Legislation in Landlord and Tenant Law (19:II)

XVII. MANUFACTURED HOMES (FORMERLY “MOBILE HOMES”)

A. General

In 2004, the Manufactured Home Park Tenancy Act, SBC 2002, c 77 [MHPTA] was given effect in order to meet the unique needs of landlords of manufactured home parks and owners of manufactured homes who rent the site on which their homes sit. If one rents both the manufactured home and the pad it sits on, the tenant is covered by the RTA, and therefore has the same legal rights as other tenants in British Columbia.

A landlord may authorize assignment or sublease of a manufactured home park site in a tenancy agreement. The agreement should also include information about the proportionate amount of increases to regulated utilities and local government levies. The inflation rate for each calendar year is available on the RTB website. See the Manufactured Home Park Tenancy Regulations, BC Reg 481/2003 [MHPTR].

B. Definitions

1. Common Area

A Common Area is defined as any part of a manufactured home park the use of which is shared by tenants or by a landlord and one or more tenants.

2. Landlord

Includes the owner of the manufactured home site; the owner’s agent or another person who permits occupation of the manufactured home site under a tenancy agreement on the landlord’s behalf; the owner’s heirs, assignees, personal representatives and successors in title; a person, other than a tenant whose manufactured home occupies the manufactured home site, who is entitled to possession of the manufactured home site and exercises any of a landlord’s rights under a tenancy agreement or the MHPTA in relation to the manufactured home site.

3. Manufactured Home

Means a structure, whether or not ordinarily equipped with wheels, that is designed, constructed or manufactured to be moved from one place to another by being towed or carried, and used or intended to be used as living accommodation.

4. Manufactured Home Site

This is a site in a manufactured home park, rented or intended to be rented to a tenant for the purpose of being occupied by a manufactured home.

C. Moving In

Landlords may require a tenant to provide proof of third party liability insurance held by the mover as security against damages caused by the move of a home into a park (MHPTA, s 29).

Prior to a person’s entering into a tenancy agreement with a landlord, the landlord must disclose in writing to that person all rules in effect at the time of his or her entering into the tenancy agreement.

D. Deposits

1. Security Deposits

A landlord cannot require or accept a security deposit in respect of a manufactured home site tenancy. If a landlord accepts a security deposit from a tenant, the tenant may deduct the amount of the security deposit from rent or otherwise recover the amount (MHPTA, s 17). Security deposits held by landlords before the effective date of the MHPTA may be retained until the end of the tenancy. A landlord who does not return or file a claim against the deposit at the end of tenancy could be required to pay the tenant double the amount of the deposit.

2. Pets

Landlords may not charge pet damage deposits.

3. Fees

a) Prohibited Fees (MHPTA, s 89(2)(k); MHPTR, s 3)

A landlord must not charge:

• a guest fee, whether or not the guest stays overnight; or
• a fee for replacement keys or other access devices if the replacement is required because the landlord changed the locks or other means of access.

b) Refundable Fees

So long as an access device is not a tenant’s sole means of access to the manufactured home park, a landlord may charge a refundable fee for that device. The fee cannot be greater than the direct cost of replacing the access device. Some non-refundable fees are permissible (e.g. a $25 charge for late payment of rent or NSF cheques) as long as the fees are identified in the tenancy agreement.

E. During the Tenancy

1. Rent Increases

a) Amount

Landlords are able to increase rent annually by a percentage equal to the Consumer Price Index (CPI) plus 2 percent plus the proportionate increase in local government levies and regulated utilities (MHPTA, s 36(1)(a) and see MHPTR). A landlord may apply to an Arbitrator for approval of a rent increase in an amount that is greater than the amount calculated under the regulations.

NOTE: A landlord may apply under s 36 of the MHPTA for an additional rent increase above the rent increase formula, but can only do so under certain circumstances: see MHPTR, s 33(1).

b) Notice

A landlord must give a tenant notice of a rent increase at least three months before the effective date of the increase, the notice of increase must also be in the approved form. If the increase does not meet these two requirements, the notice takes effect on the earliest date that it does comply (MHPTA, s 35(2)).

c) Timing

A rent increase cannot be imposed for at least 12 months after whichever of the following applies (MHPTA, s 35(1)):

if the tenant’s rent increase has not previously been increased, the date on which the tenant’s rent was first established; or

if the tenant’s rent has previously been increased, the effective date of the last rent increase made in accordance with this MHPTA.

F. Manufactured Home Park Rules and Committee

In accordance with Part 3 of the MHPTA and the associated regulations, the landlord and tenants of a manufactured home park may establish and select the members of a park committee. A park committee must make all of its decisions by unanimous agreement of all members of the committee, except resolutions regarding secret ballots made under MHPTR, s 23(8), which must be decided by majority vote.

A park committee, or if none exist, the landlord, may establish, change or repeal a rule if it is reasonable in the circumstances and if the rule has one of the following effects (MHPTR, s 30):

• it promotes the convenience or safety of the tenants;
• it protects and preserves the condition of the manufactured home park or the landlord’s property;
• it regulates access to or fairly distributes a service or facility; or
• it regulates pets in common areas.

The rule must not be inconsistent with the MHPTA or the regulations. A rule established, or changed is enforceable against a tenant only if (s 30(3)):

• the rule applies to all tenants in a fair manner;
• the rule is clear enough that a reasonable tenant can understand how to comply with the rule;
• notice of the rule is given to the tenant in accordance with s 29 (disclosure); and

• the rule does not change a material term of the tenancy.

G. Tenancy Agreements

Landlords and tenants may agree to any term so long as the term is not an attempt to avoid or contract out of the MHPTA or the regulations. Any attempt to avoid or contract out of the MHPTA or regulations is of no effect (MHPTA, s 5). Furthermore a term will not be enforced if it is found to be unconscionable, or the term is not expressed in a manner that clearly communicates the rights and obligations under it. The rights and obligations established by or under the MHPTA are enforceable between a landlord and tenant under a tenancy agreement.

1. Liability for Non-compliance

If a landlord or tenant does not comply with the MHPTA, the regulations, or their tenancy agreement, the non-complying landlord or tenant must compensate the other for damage or loss that results (s 7(1)).

NOTE: The innocent party always has a duty to mitigate their losses.

2. Specific Terms

a) Pets

A tenancy agreement may prohibit pets or restrict the size, kind or number of pets, and establish rules for pet ownership. Guide animals and existing pets are exempt from the provisions.

b) Tenant’s Right to Quiet Enjoyment

A tenant is entitled to quiet enjoyment including but not limited to the following (MHPTA, s 22):

• reasonable privacy;
• freedom from unreasonable disturbance; and
• use of common areas for reasonable and lawful purposes, free from significant interference.

H. Ending a Tenancy

A tenancy ends only if one or more of the following applies (MHPTA, s 37(1)):

• the tenant or landlord gives notice to end the tenancy in accordance with one of the following: s 38 (tenant’s notice); s 39 (landlord’s notice: non-payment of rent); s 40 (landlord’s notice: cause); s 41 (landlord’s notice: end of employment); s 42 (landlord’s notice: landlord’s use of property); or, s 43 (tenant may end tenancy early).

NOTE: Each of these sections sets out notice requirements. It is important that any notice given meets the form and content requirements set out in MHPTA, s 45.

• the tenancy agreement is a fixed term tenancy agreement that provides that the tenant will vacate the manufactured home site on the date specified as the end of the tenancy;

• the landlord and tenant agree in writing to end the tenancy;

• the tenancy agreement is frustrated; or

• an Arbitrator orders that the tenancy is ended.

=a) Periodic

A tenant may end a periodic tenancy by giving the landlord notice to end the tenancy effective on a date that is not earlier than one month after the date the landlord receives the notice, and is the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.

b) Fixed Term

A tenant may end a fixed term tenancy by giving the landlord notice to end the tenancy effective on a date that is not earlier than one month after the date the landlord receives the notice, is not earlier than the date specified in the tenancy agreement as the end of the tenancy, and is the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.

(1) Exception for Family Violence or Long-Term Care

Although not yet in force, amendments to the RTA have been passed that will allow tenants who have been assessed as requiring long-term care, have moved into a long-term care facility, or have been confirmed as being at risk of family violence if they remain in the rental unit, may end a fixed-term tenancy by giving one month’s notice to the landlord. The regulations detailing the process for being “confirmed” as falling within one of these situations have not yet been passed, so you should consult with one of the resources listed at the beginning of this chapter if you believe you may be able to take advantage of one of these exceptions.

c) Material Term Breach

If the landlord breaches a material term, the tenant may end the tenancy by giving the landlord notice to end the tenancy effective on a date that is after the date the landlord receives the notice. See Section IX.C Required Notice at 1, Form and Basic Requirements

2. Failure to Pay Rent

A landlord may end a tenancy if rent is unpaid on any day after the day it is due, by giving notice to end the tenancy effective on a date that is not earlier than 10 days after the date the tenant receives notice (MHPTA, s 39(1)). Notice given under this section must comply with the form and content requirements found in s 45. A notice under this section has no effect if the amount of rent that is unpaid is an amount the tenant is permitted under the MHPTA to deduct from rent, if rent is paid within five days of receiving the notice to end tenancy, or if the tenant disputes the notice by applying for dispute resolution. If however the tenant does not dispute the notice and does not pay the amount owed the landlord can go to the Residential Tenancy Branch and apply for an Order of Possession without a hearing.

3. Landlord’s Use

A landlord may end a tenancy agreement by giving notice to end the tenancy agreement if the landlord has all the necessary permits and approvals required by law, and intends in good faith, to convert all or a significant part of the manufactured home park to a non-residential use or a residential use other than a manufactured home park (MHPTA, s 42(1)). A notice to end a tenancy under this section must end the tenancy effective on a date that is not earlier than 12 months after the date the notice is received and is the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement, and if the tenancy agreement is a fixed term tenancy agreement, is not earlier than the date specified as the end of the tenancy. A tenant may be entitled to 12 months’ rent compensation where a landlord gives a tenant notice under s 42 (s 44(1)).

4. Landlord’s Notice: Cause

Refer to s 40(1) of the MHPTA; it is similar to the RTA section regarding Landlord’s Cause.

NOTE: Notice in this section must end tenancy effective on a date that is not earlier than one month after the date the notice is received, and the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.

5. Disputing Notice

Notices of termination or eviction can be disputed by applying for dispute resolution, but must be done so within the following set time limits that start running after the date the tenant receives the notice:

• non-payment of rent: five days;
• landlord’s cause: 10 days; and
• landlord’s use of property: 15 days.

6. Moving Out Early After Receiving a Notice

If a landlord gives a tenant notice to end a periodic tenancy under s 42 (landlord use of property), the tenant may subsequently end the tenancy with ten days written notice to the landlord: see MHPTA, s 43.

7. Required Form

In order to be effective, a notice to end tenancy must be in writing and must be signed and dated by the landlord or tenant giving the notice, give the address of the manufactured home site, state the effective date of the notice, except for a notice under s 38(1) or (2) (tenant’s notice), state the grounds for ending the tenancy, and when given by a landlord be in the approved form (RTB Form) (MHPTA, s 45).

I. Moving Out

Landlords may require a tenant to provide proof of third party liability insurance held by the mover as security against damages caused by the move of a home out of a park.

J. Dispute Resolution

Disputes between landlords and tenants may be resolved by applying to dispute resolution at the Residential Tenancy Branch in the same manner as for an ordinary residential tenancy. The following are typical examples of issues that may lead to a need for dispute resolution:

• rights and prohibitions under the MHPTA;
• rights and obligations under the terms of a tenancy agreement that are required or prohibited under this MHPTA;
• tenant’s use, occupation or maintenance of the manufactured home site; and
• the use of the common areas or services.

A dispute between landlord and tenant generally has to be dealt with in dispute resolution unless the claim is for more than the monetary limit under the Small Claims Act, the application was not filed within the application period before the Supreme Court, or the dispute is linked substantially to a matter that is before the Supreme Court.

See s 52(1) on starting dispute resolution proceedings. Proceedings can be started by either the landlord or the tenant filing an application for dispute resolution with the director. The application must be in the approved form and include full particulars of the dispute, and be accompanied by the fee; it is possible for this fee to be waived.

NOTE: If the MHPTA does not state a time by which an application for dispute resolution must be filed, it must be filed within two years of the date that the tenancy to which the matters relates ends or is assigned (MHPTA, s 53(1)).