Residential Tenancy Law in British Columbia Access Pro Bono Representation Presentation Ask how many have done an RTB phone hearing, how many have advised on a tenancy issue

Tenant Resource & Advisory Centre TRAC provides free legal information for tenants living in British Columbia. Community Legal Assistance Society Who are we? CLAS: Sit on stakeholder committees See hundreds of decisions a year Sit on Renters Advisory Committee Provide legal supervision to TRAC and other advocates Supervise editing of LSLAP res ten manual CLAS provides service to tenants going to court.

Overview When does tenancy legislation apply? Top 10 research resources Dispute resolution: process and practice Common tenancy issues Tips Questions? TEACHERS NOTES: Tenants and landlords cannot avoid or contract out of the RTA. This means that landlords cannot get tenants to agree to terms that are inconsistent with the RTA, unconscionable, or expressed in a manner that does not clearly communicate the rights and obligations under them.

Legal Foundation The landlord/tenant relationship involves: contract (a tenancy agreement) between landlord and tenant common law of landlord and tenant; and statutes: Residential Tenancy Act (“RTA”) and the Manufactured Home Park Tenancy Act (“MHPTA”) and related statutes such as Frustrated Contract Act and Manufactured Home Act The regulations provide standard terms that must be included in any tenancy agreement Parties cannot contract out of the Acts (see s. 5 in both Acts) Josh

Overview of Residential Tenancy Act Juliana

Manufactured Home Parks People who own their own manufactured home (mobile home) and rent a pad for it in a manufactured home park are governed by the Manufactured Home Park Tenancy Act Tenants who rent a manufactured home are usually governed by the Residential Tenancy Act There is a registration process under the Manufactured Home Act

When do the RTA/MHPTA apply? There are some tenancy type situations that are excluded from both Acts Consider whether your clients are covered by the legislation, or whether they are excluded under s. 4 of either the RTA or MHPTA Juliana

When do the RTA/MHPTA apply? Section 4 – exceptions include:  non profit cooperative housing housing provided by an educational institution to its students/employees housing where the tenant shares bathroom or kitchen facilities with the owner living accommodation included with, and rented under an agreement with, business premises holiday accommodation emergency/transitional housing housing under the Community Care and Assisted Living Act, Continuing Care Act, Hospital Act, or Mental Health Act jails tenancy agreements with a term longer than 20 years AND MANY MORE Juliana

When do the RTA/MHPTA apply? Cases that fall under the RTA or MHPTA should proceed at the RTB; those that do not should proceed in court (as appropriate – Small Claims, BCSC, Federal Court) Practice questions arise when you are unsure whether or not the case falls under the RTB’s jurisdiction Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 1: Legislation, Regulations, Rules of Procedure Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 2: Policy Guidelines Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 2: Policy Guidelines Guideline 1: Responsibility for cleaning, maintenance, and repairs Guideline 15: Summons to Attend or Produce Evidence Guideline 22: When a landlord may terminate or restrict a service or facility Guideline 38: Repeated late payment of rent Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 3: TRAC Website, including template letters Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 4: Annotated RTA Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 5: Search 85,000+ Decisions Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 6: LSLAP Manual Landlord Tenant Section Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 7: TRAC Tenant Survival Guide Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 8: Common Law Texts Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 9: Contacts Email and phone numbers for RTB Infoline TRAC Infoline Juliana , RTB will likely offer a faster decision but court judgments can be higher

Resource 10: Povnet Juliana , RTB will likely offer a faster decision but court judgments can be higher

How to handle a landlord/tenant file Initial assessment of the file Does client fall under the legislation? If so which Act (the RTA or the MHPTA)? If so: Have any notices been served (e.g. notice to end tenancy)? Does your client need to dispute a notice? Is there a hearing date? Determine the next steps and identify any deadlines Juliana

How to handle a landlord/tenant file Negotiation (if possible) It is very often best to resolve landlord/tenant problems without going to a hearing, particularly if your client wants the tenancy to continue Use your client’s entitlement under the tenancy agreement and any relevant legislation as a baseline for any settlement proposals Bargaining chips: cost of hiring bailiff, cost of responding to judicial review, payment of arrears etc. Josh

Challenging a Dispute Resolution Hearing Decision RTB Review Consideration Circumstances beyond individual’s control New and relevant evidence Fraud Short timelines specified on form (2 days) RTB Correction Judicial Review 60-day timeline

What are common issues?

What are common issues? Juliana , RTB will likely offer a faster decision but court judgments can be higher

What are common issues? Juliana , RTB will likely offer a faster decision but court judgments can be higher

What are common issues? Juliana , RTB will likely offer a faster decision but court judgments can be higher

What are common issues? Juliana , RTB will likely offer a faster decision but court judgments can be higher

What are common issues? MNR=monetary order for unpaid rent or utilities OPR=end tenancy for unpaid rent or utilities MNSD=to keep pet or damage deposit MNDC=monetary order MND=damage to unit, site or property OPC=end to tenancy for cause

What are common issues? MNSD=return of pet or damage deposit CNC=cancel a notice to end tenancy for cause MNDC MNSD=tenant requesting money CNR=cancel a notice to end tenancy for unpaid rent or utilities CNL=cancel notice to end for landlord’s use

Common tenancy issue #1 A landlord wants to evict a difficult tenant. She needs advice: how she can legally do that? Josh

Major grounds for eviction The possible grounds for eviction are found at Part 4 of the RTA and Part 5 of the MHPTA: Non-payment of rent or utilities Cause End of employment with the landlord Landlord’s use of property Tenant ceases to qualify for rental unit Josh

Eviction – One Month Notice for Cause Reasonable noise is okay. For example: children playing during the day. You may get this notice if you are too noisy.

Eviction – One Month Notice for Cause You may get this notice if you damage something and do not pay to fix it. TEACHERS NOTES: To view some other reasons for receiving a one month eviction notice, refer to RTA Sections 47 and 48.

Eviction – Two Month Notice for Landlord Use of Property You may get this notice if your landlord or their close family decide to move into your place. “Close family”: Landlord’s spouse Parents or children of the landlord or the landlord’s spouse

Eviction – Two Month Notice for Landlord Use of Property You may get this notice if your landlord wants to do extensive renovations that require you to move out. TEACHERS NOTES: You may have heard about “reno-victions”. Some landlords will try to evict tenants because of minor renovations, and then try to find new tenants willing to pay higher rents. It is important to remember that, in order to evict a tenant for renovations, the landlord has to make extensive renovations that require vacant possession for more than a few days. They also need to have all the required permits and approvals required by law. Refer to RTA Sections 49 and 49.1 for more information.

Two Month Notice Compensation If a tenant receives a Two Month Notice for Landlord Use of Property, they get compensated for one month of rent. If you have evidence that you were not given a two month notice for landlord’s use of property in “good faith” and moved out you can apply for compensation. 2 months’ rent TEACHERS NOTES: What typically happens is the tenant will live in the rental unit for free during the second month of the two month notice. However, if the tenant wishes to leave before the end of the two month notice, they must give 10 days written notice to their landlord before moving. The landlord is still obligated to compensate the tenant for an amount that is equivalent to one month's rent. For instance, if a tenant gives written notice to leave 10 days through the second month of their notice, the landlord will have already compensated them with 10 days free rent, and must further compensate them by paying them two-thirds of the monthly rent (assuming it is a 30-day month).

Disputing an Eviction Notice If a tenant does not think they deserve to be evicted, they can dispute the eviction notice. 10 Day Notice = 5 days to dispute One Month Notice = 10 days to dispute Two Month Notice = 15 days to dispute Deadline from day tenant receives notice. Consider deemed service provisions. TEACHERS NOTES: A landlord must issue a Two Month Notice for Landlord Use of Property in good faith. Read RTB Policy Guideline #2 for more information on the good faith requirement. If a tenant discovers that a landlord did not evict them in good faith (e.g. the landlord immediately advertises the rental unit and re-rents it to a stranger), the tenant could have grounds to apply to the RTB for double the monthly rent as compensation. Refer to RTA Section 51 for more information.

Ending a Tenancy (Moving Out) Month-to-month tenancies One FULL month written notice. Give notice at the END of the month: 28th, 29th, 30th, 31st Tenancy ends at 1pm on last day of agreement.

Ending a Tenancy (Moving Out) TEACHERS NOTES: Service of documents is one of the more complicated areas in residential tenancy law. If a document is served in person, it is deemed received that same day. If a document is served by attaching it to a door, leaving it in the mail box/slot, or faxing it, it is deemed received three days later. And, if a document is served by mail, it is deemed received five days later. Furthermore, some documents are considered “special documents” (e.g. application for dispute resolution) and can only be served in certain ways. For more information on service of documents, see RTA Sections 88-90, RTB Fact Sheet #119 and RTB Policy Guideline #12.

Ending a Tenancy (Moving Out) Fixed-term tenancies If you move out early, you may owe your landlord money Loss of rental income Liquidated Damages Landlord has duty to mitigate loss Show the rental unit to prospective tenants, advertise at a reasonable rent, etc. TEACHERS NOTES: If a tenant ends their fixed-term tenancy early, their landlord may be able to claim for loss of rental income. However, it is important to note that the landlord must first make reasonable efforts to re-rent the rental unit (e.g. show the unit to prospective tenants, advertise at a reasonable rent, etc.). If the landlord loses money after making those reasonable efforts to re-rent the unit, they may have grounds for a monetary order for loss of rental income. Read Policy Guidelines #3 and #5 for more information. If a tenant is considering ending their fixed-term tenancy early, they should also check their tenancy agreement to see if there is a “liquidated damages” clause. Read RTB Policy Guideline #4 for more information.

Common tenancy issue # 2 A tenant has been served with a notice to end tenancy that says he must move at the end of the month. Is there anything he can do? Juliana

How a tenancy ends Part 4 of the RTA and Part 5 of the MHPTA set out how a tenancy may end: Notice to End Tenancy Time for tenant to pay overdue rent, if applicable, or file an application for dispute resolution Conclusive presumption if overdue rent not paid or application for dispute resolution not filed Order of Possession Writ of Possession Court bailiffs Neither the landlord nor the police can remove a tenant or their belongings. Juliana

Tenancy Agreement A legal agreement (contract) between tenant and landlord. Landlord’s contact information: phone number Address TEACHERS NOTES: It is important to have the landlord’s correct legal name and address, as both are required in order to apply for dispute resolution through the RTB. If a tenant needs to apply for dispute resolution, but does not have their landlord’s contact information, refer to TRAC’s Fact Sheet “Finding Out Who My Landlord Is” at www.tenants.bc.ca. Questions around disclosure of personal information are never easy to answer. For more information, refer to The Office of the Information and Privacy Commissioner’s “Privacy guidelines for tenants and landlords” at http://www.oipc.bc.ca/tools-guidance/guidance-documents.aspx.

Tenancy Agreement Month-to-month or fixed-term? TEACHERS NOTES: If a tenant does not have a written tenancy agreement, they are still covered under the RTA. However, we strongly recommend that all tenants have written tenancy agreements. Some tenants may live in “illegal” suites. These may be secondary suites that have not been registered with local government, do not comply with zoning regulations or are in violation of municipal bylaws. Importantly, tenants living in these suites are still covered under the RTA and can enforce their legal rights through the RTB. If a City does find out about a tenant’s illegal suite and wishes to shut it down, they have the power to do so under the RTA. In these cases, the landlord is required to give tenants a one month notice under RTA Section 47(1)(k) (although the actual move-out deadline could be shorter depending on the situation). The landlord does not have to compensate tenants for their moving costs. - Fixed term tenancies become month-to-month unless the agreement states that the tenant must move out at the end

Tenancy Agreement Landlord must give tenant a signed copy within 21 days. TEACHERS NOTES: According to RTA Section 13(3), a landlord must provide a tenant with a copy of their tenancy agreement within 21 days of entering into an agreement. If a tenant does not have a tenancy agreement because their landlord will not give them a copy, they can apply for dispute resolution through the RTB for an order that the landlord comply with the RTA. If a tenant does not have a tenancy agreement because their landlord does not want to sign one with them, the tenant can at least fill out, date, and sign one on their own. If you have no written agreement, you still may be protected by BC’s tenancy laws.

Eviction – 10 Day Notice for Non-Payment of Rent You may get this eviction notice if you do not pay all of your rent on the day it is due. TEACHERS NOTES: Refer to RTA Section 46 for more information.

Eviction – 10 Day Notice for Non-Payment of Rent If you are late paying your rent and your landlord gives you an eviction notice, you have 5 days to pay in order to cancel the eviction notice. You are not allowed to do this every month. If you do not pay within 5 days, you must move out by the 10th day. TEACHERS NOTES: If a tenant is repeatedly late paying rent, they could receive a One Month Eviction Notice for Cause. Refer to RTB Policy Guideline #38 for more information.

Paying Rent – Flowchart Note: You are not allowed to repeatedly pay rent late

Common tenancy issue #3 A tenant is concerned about the bad state of repair of her rental unit. What are her rights? Josh

Maintenance and Repairs Sections 32-33 of the RTA and s. 26-27 of the MHPTA address landlord and tenant obligations to repair and maintain the rental unit The Policy Guideline: Landlord & Tenant – Responsibility for Residential Premises provides more detailed information Josh

Condition Inspection Report Tenant and Landlord do an inspection of the rental unit together: Move-in Move-out TEACHERS NOTES: Tenants and landlords should complete both move-in and move-out Condition Inspection Reports. However, it is worth noting that it is the landlord’s responsibility to offer tenants the opportunity to complete these inspections and provide copies of the reports. According to the RTA, if a landlord fails to do this, their right to claim against a security deposit or a pet damage deposit, or both, for damage to residential property is extinguished. Refer to RTA Sections 24 and 36 for more information.

Repairs and standards of maintenance bylaws Elevators Bed Bugs TEACHERS NOTES: In addition to the RTA, Standards of Maintenance Bylaws are another tool to keep in mind. They typically cover requirements for housing standards (heat, infestations, electrical systems, etc.) in greater detail than the RTA. You can also request that a Bylaw Officer investigate your problem, which could potentially result in a report and a fine against the landlord. Unfortunately, not all municipalities have Standards of Maintenance Bylaws.

Emergency Repairs What is an emergency repair? Urgent and necessary for health or safety of people or property: Major leaks in pipes or roof damaged or blocked water or sewer pipes or plumbing fixtures Primary heating system Damaged or defective locks Electrical systems

Emergency Repairs Landlord must provide emergency contact number. If the emergency contact cannot be reached after two tries and a reasonable amount of time has passed, tenant can pay for repairs (be reasonable) and get money back from landlord (keep receipts). Carefully review section 33 of the RTA. Tenants shouldn’t withhold rent (almost ever)

Essential Services Essential = necessary, indispensable, or fundamental. A landlord must not terminate a service or facility that is essential to the tenant’s use of the rental unit. For example: heat, hot water, elevator in multi-storey apartment. TEACHERS NOTES: Landlords are allowed to terminate or restrict non-essential services and facilities (e.g. cable television) as long as they provide 30 days written notice in the approved form (RTB form) and reduce rent by an amount that is equivalent to the reduction in the value of the tenancy agreement resulting from the termination or restriction of the service or facility.

Common tenancy issue #4 A tenant is frustrated by the person in the next apartment, who constantly harasses her and uses derogatory language towards her. The landlord isn’t doing anything about it. What are the tenant’s rights? Josh

Quiet Enjoyment Section 28 of the RTA and s. 22 of the MHPTA address the tenant’s right to quiet enjoyment See also the Right to Quiet Enjoyment policy guideline Josh

Quiet Enjoyment Freedom from unreasonable disturbances. For example: smoke and noise. TEACHERS NOTES: For more information on Quiet Enjoyment, refer to RTA Section 28 and RTB Policy Guideline #6.

Quiet Enjoyment Freedom from intimidation and harassment. Loss can be caused by landlord or other tenants

Common tenancy issue #5 A tenant has not received his damage deposit back, 3 weeks after moving out. What are his rights? Juliana

Deposits and Fees Security Deposit: ½ month’s rent. Pet Deposit: ½ month’s rent. No application fees. No guest fees. TEACHERS NOTES: “No application fees” means that a landlord is not allowed to charge a fee for allowing someone to apply for a rental unit (e.g. filling out an application form), processing someone’s application, investigating someone’s suitability as a tenant (e.g. credit check), or accepting someone as a tenant. Refer to RTA Section 15 for more information. A tenant is allowed to have guests (including overnight guests) under reasonable circumstances. Refer to RTR Section 5 and RTR Section 9 in the Schedule for more information.

Returning Deposits Tenant gives forwarding address in writing within one year of the end of the tenancy. Landlord has 15 days to: return deposit to tenant; OR ask RTB for permission to keep deposit. If landlord does not do one of those two things, tenant can apply to the RTB for double the deposit. TEACHERS NOTES: According to RTR Section 4, landlords must return deposits with interest. However, based on the current formula, no interest has accrued on deposits since 2009. For longer-term tenants, the RTB offers a Deposit Interest Calculator on their website.

Roommates Co-Tenants Tenants in Common Same tenancy agreement Jointly responsible Tenants in Common Different tenancy agreements Individually responsible Are you both a tenant and a landlord? Is your roommate your landlord?

Common tenancy issue #6 A landlord is concerned his suite is rented to a long-term tenant, way below market rent. How can he go about increasing the rent? Josh

Rent Increases Landlords can raise rent once every 12 months. How much? Check TRAC website or RTB website. 2017: 3.7% 3 months written notice on government form. TEACHERS NOTES: According to RTR Section 2, tenants living in non-profit housing whose rent is related to their income are exempt from the rent increase provisions in the RTA. These same tenants are also exempt from RTA Section 34 regarding Assignment and Subletting.

Rent Increases Part 3 of the RTA and Part 4 of the MHPTA address rent increases Part 4 of the Residential Tenancy Regulations and Part 5 of the Manufactured Home Park Tenancy Regulations also address rent increases There is also a Rent Increase policy guideline Josh

Common Issues and Tips: Before the Hearing Severing matters: End of tenancy and monetary or repairs complaints are almost always severed at the Residential Tenancy Branch [RTB], unless they are directly connected. In general, there is no point in filing together. Application deadlines and fee waivers: The date an application is deemed to be filed is the date the filing fee is paid or the fee waiver and supporting documents are submitted (see Rule 2.6 of the RTB Rules of Procedure). Josh

Common Issues and Tips: Before the Hearing Deemed service: It is important to pay attention to the deemed service provision (RTA, s. 90) as it interacts with deadlines for serving documents. Evidence exchange: The applicant submits evidence first, then the respondent. This can be problematic when the onus lies on the respondent, especially because there is no rule providing for reply evidence from the applicant. However, lawyers and advocates have had success by submitting reply evidence, as soon as possible, on the basis that a new issue arises from the respondent’s evidence and for fairness reasons it should be considered. Note that the deemed service provision also applies to evidence exchange. Staying in touch: There is a high rate of client no-shows at RTB hearings. As some clients may have limited access to phones or email, it is a good idea to establish in advance how they will communicate with you and set a check-in schedule if needed. Josh

Common Issues and Tips: During the Hearing The RTB handles many hearings. The RTB values judicial economy highly. RTB hearings are short, with the majority lasting less than half an hour. Respect the arbitrator’s time constraints and control of the hearing as much as possible. However, it is possible to ask for a continuation if the hearing time has elapsed and critical and relevant questions still need to be asked. Arbitrators each conduct several hearings a day, so they have limited preparation time. Do not assume the arbitrator is familiar with the file. Ensure that everything you need to get across is covered. Josh

Common Issues and Tips: During the Hearing Hearings by conference call. Establish in advance how the client and any witnesses will be accessing the conference call. It may be helpful to have the client in the room with you and join the call together. Make sure you understand how to work your phone system before the call. Some phone systems may have problems with feedback or volume. Have a back-up plan. In case of technical difficulties in connecting to the call, the support line is listed on the Notice of Hearing. Generally, try to call in a little ahead of the hearing time. Make sure only one person speaks at a time and that all comments are directed to the arbitrator. Back and forth between the parties can be especially bad because of the conference call format. Josh

Common Issues and Tips: During the Hearing Settlements. The arbitrator can play a dual role as mediator and may aggressively push for settlement. Settlement is sometimes brought up at the outset, but may be suggested at any point during the hearing. The RTB drafts settlements as orders. Carefully delineate terms of any agreement and take good notes. If procedural issues occur. If there are problems make sure they are put to the arbitrator during the hearing, so that they can potentially be raised later on judicial review.  If a decision is not (or likely will not be) in the client’s favour. In some situations, the arbitrator may have the discretion to assign a later move date when an order of possession is made. Alternatively, they may try to facilitate an agreement with the landlord about a later move date. Generally it will not hurt to request a later date. Josh

Common Issues and Tips: After the Hearing Review process. Caution client in advance about the deadlines to apply for review, as they can be as short as two days (RTA, s. 80). It is good practice to establish in advance what will happen if you lose and who will be responsible for meeting review deadlines. Josh

Questions?