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Difference between revisions of "Tenancy Agreements (19:II)"
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Tenancy Agreements (19:II) (view source)
Revision as of 21:47, 15 November 2022
, 21:47, 15 November 2022→2. Terms, Covenants, and Conditions
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=== 2. Terms, Covenants, and Conditions === | === 2. Terms, Covenants, and Conditions === | ||
'''a) Covenants and Conditions''' | |||
'''a) Covenants and Conditions''' | |||
A covenant in a tenancy agreement consists of a promise by a person that a certain thing must or must not be done (the RTA eliminates the word “covenant” and uses the more modern word “term”). A “Material Term”, as used in the RTA, is a term going to the root of the relationship and the tenancy agreement. Landlords and tenants may agree to any term they wish, as long as it is not unconscionable or contrary to the RTA. Terms contrary to the RTA may not be identified in some cases until dispute resolution, and a tenant is free to argue that a term violates the RTA and should, therefore, be void. The Arbitrator will take this into consideration when determining reasonableness. For more information, see RTB Policy Guidelines 8: Unconscionable and Material Terms. | A covenant in a tenancy agreement consists of a promise by a person that a certain thing must or must not be done (the RTA eliminates the word “covenant” and uses the more modern word “term”). A “Material Term”, as used in the RTA, is a term going to the root of the relationship and the tenancy agreement. Landlords and tenants may agree to any term they wish, as long as it is not unconscionable or contrary to the RTA. Terms contrary to the RTA may not be identified in some cases until dispute resolution, and a tenant is free to argue that a term violates the RTA and should, therefore, be void. The Arbitrator will take this into consideration when determining reasonableness. For more information, see RTB Policy Guidelines 8: Unconscionable and Material Terms. | ||
'''b) Express, Implied and Statutory Terms''' | '''b) Express, Implied and Statutory Terms''' | ||
Valid express terms or conditions override any implied terms or “usual terms” that might otherwise apply at common law. For residential tenancies, the RTA deems some express terms to be unenforceable The RTA also establishes statutory terms, deemed to be terms in every agreement, that override any express or implied term to the contrary. For tenancies not governed by the RTA, a court will find implied obligations and insert the usual terms if the parties have failed to expressly agree to certain matters. | Valid express terms or conditions override any implied terms or “usual terms” that might otherwise apply at common law. For residential tenancies, the RTA deems some express terms to be unenforceable The RTA also establishes statutory terms, deemed to be terms in every agreement, that override any express or implied term to the contrary. For tenancies not governed by the RTA, a court will find implied obligations and insert the usual terms if the parties have failed to expressly agree to certain matters. | ||
'''c) Express Terms''' | '''c) Express Terms''' | ||
Parties may write their own tenancy agreement with their own terms or may use a standard form tenancy agreement to which they can add their own extra terms. Parties may also adopt a lease in conformity with the Land Transfer Form Act, RSBC 1996, c 252, p 2. | Parties may write their own tenancy agreement with their own terms or may use a standard form tenancy agreement to which they can add their own extra terms. Parties may also adopt a lease in conformity with the Land Transfer Form Act, RSBC 1996, c 252, p 2. | ||
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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). | 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). | ||
'''d) Reasonable Terms''' | '''d) Reasonable Terms''' | ||
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): | 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): | ||
:(a) the term is inconsistent with this ''RTA'' or the regulations; | :(a) the term is inconsistent with this ''RTA'' or the regulations; | ||
:(b) the term is unconscionable; or | :(b) the term is unconscionable; or | ||
:(c) the term is not expressed in a manner that clearly communicates the rights and obligations under it. | :(c) the term is not expressed in a manner that clearly communicates the rights and obligations under it. | ||
:See Policy Guideline 8: Unconscionable and Material Terms. | :See Policy Guideline 8: Unconscionable and Material Terms. | ||
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:'''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”. | :'''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”. | ||
'''e) Pets''' | '''e) Pets''' | ||
In B.C., there is no law that | In B.C., there is no law that prevents a landlord from prohibiting pets in rental units. ''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 Dog and Service Dog Act'', SBC 2015, c 17, s 3, which states that landlords must not deny tenancy or impose discriminatory terms on a person with a disability who intends to keep a guide dog 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 no greater than ½ of a month’s rent, regardless of the number of pets. | 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 no greater than ½ of a month’s rent, regardless of the number of pets. | ||
'''f) | '''f) Prescribed Terms''' | ||
Terms and conditions that must or must not be included in every written tenancy agreement or an application for an agreement may be prescribed by an order-in-council and | Terms and conditions that must or must not be included in every written tenancy agreement or an application for an agreement may be prescribed by an order-in-council and different terms for different classes of tenancy agreements may be prescribed. As discussed above, the RTR sets out in its schedule those terms that must be included in every tenancy agreement. | ||
'''g) | '''g) Common Law Obligations and Usual Terms''' | ||
'''Landlord’s Obligations''' | |||
A landlord must ensure that: | A landlord must ensure that: | ||
* the tenant is given vacant possession on the starting date of the tenancy; | * the tenant is given vacant possession on the starting date of the tenancy; | ||
* the tenant has quiet enjoyment; | |||
* the rental units are reasonably fit for occupation; and | |||
* the rental units are maintained in a state of decoration and repair that complies with housing health and safety standards required by law. | |||
'''Tenant’s Obligations''' | |||
A tenant must ensure that: | A tenant must ensure that: | ||
* he or she pays the rent or other fees on time; | * he or she pays the rent or other fees on time; | ||
* he or she delivers up the rental unit in a reasonably clean condition and in a reasonable state of repair, with exceptions for reasonable wear and tear; and | * he or she delivers up the rental unit in a reasonably clean condition and in a reasonable state of repair, with exceptions for reasonable wear and tear; and | ||
* he or she gives one full month’s notice in writing when terminating the agreement. | * he or she gives one full month’s notice in writing when terminating the agreement. | ||