What is a Rental Tenancy Contract?
A rental tenancy agreement is a written contract between a landlord and tenant that governs the rental of residential property in British Columbia. Part 2 of the Residential Tenancy Act sets out the legislative provisions that a tenancy agreement is subject to, however, Part 4 allows the parties to negotiate contractual terms that do not conflict with the legislation or add to it. A rental tenancy agreement must be in writing if the tenant has paid a security deposit, pet damage deposit or prepaid rent. Section 5 of the Residential Tenancy Act requires the landlord to complete a prescribed form of rental agreement if the tenant has made any of these payments and the agreement must be signed by both parties. Who is responsible for drafting the rental tenancy agreement is simply a matter of negotiation between the parties. Given the landlord is the one providing the form and completing it, it can be beneficial to the landlord to have the tenant complete the agreement as this ensures the landlord has a signed copy, and contact information, from which to work with in the event of an issue arising during the term, and also allows the landlord to set the terms of the tenancy with a little more certainty . Within the form of agreement, the Act sets out mandatory terms (those that cannot be changed by the landlord and tenant), and those that must be included but can be changed by the parties. In addition to obliging the landlord and tenant to set out primary terms for the tenancy, the prescribed form also includes a number of less common provisions, such as the right to display a business sign and the location of garbage bins, to assist the parties in setting out a comprehensive schedule of terms. In the event of a dispute between the landlord and tenant, the Residential Tenancy Branch will rely heavily on the rental tenancy agreement to determine the obligations of the parties. In other words, what is not in the rental tenancy agreement may be taken into consideration by the Residential Tenancy Branch; however, it would carry much less weight than what was in the written agreement. For example, if the rental tenancy agreement said little to nothing about pets, tenancy law would give greater credence to the landlord’s evidence about their reasons for disallowing them than the tenant’s evidence about their reasons for wanting one.
Rental Tenancy Agreement Essentials for BC
Rental tenancy agreements in British Columbia are in essence a "deal memo". They are not a completed document that one could provide to their lender or the like. But they give you a very good idea of what rights and responsibilities both parties will have.
With most tenancy agreements, the deal terms are very simple. The terms generally will include:
(a) the names of the parties;
(b) the address of the property;
(c) the amount of rent to be paid, including utilities if they are included in the rent;
(d) the amount of the security deposit;
(e) the amount of pet damage deposit;
(f) the length of the term of the tenancy;
(g) the payment information; and
(h) the items that are included and excluded from your tenancy.
This is a relatively safe assumption. Generally, the leaving and moving in dates can be adjusted by the parties. The starting date is not an issue unless it is a legally prohibited date such as Christmas Day or New Year’s Day. A tenant should be prepared to pay for the first 30 days, but the landlord cannot charge more than seven days in advance for the rent. Also, in BC, a landlord cannot even start collecting rent from a tenant until the tenancy agreement is signed.
If the premises are being furnished, the landlord needs to itemize the items that are being provided to the tenant and their condition in the Rental (Residential Tenancy Act) Regulation Form C. These items will include:
(a) the condition of the premises;
(b) fixtures and attached items;
(c) appliances;
(d) furnishings, defined as removable furniture, carpets, curtains and everything not already listed;
(e) items that belong to the tenant.
In addition to the above information, the parties may include other items in their agreement. The items generally vary depending on the type of property being rented and the relative sophistication of the parties. For simple transactions, if a statute does not require a term, it will usually be omitted unless it is important to one of the parties. For example, BC landlords are not required to provide a written tenancy agreement, but it is recommend that they do so.
Legal Requirements for Rental Tenancy Agreements in BC
In British Columbia, landlords and tenants are required to enter into tenancy agreements in order to create a leasehold interest. An oral tenancy agreement may suffice in some situations, but a written agreement is usually required. Written tenancy agreements can be documented on standard forms issued by the Residential Tenancy Branch. It is not mandatory to use the forms, but failing to do so could count against the landlord or tenant if things go wrong and court proceedings become necessary. It is important to note that the Residential Tenancy Act vividly protects the rights of tenants, even where it appears that landlords have the balance of power. Contravention by landlords of the Act may be punished by orders from the Residential Tenancy Branch or the Supreme Court of British Columbia. Tenants may prove claims for wrongful and intentional evictions, raids and other occurrences, and can seek financial compensation for inconvenience and more. In addition, "a landlord must provide at least two keys or other means of entry into the unit to a tenant when the tenant enters into a tenancy agreement or takes possession, whichever occurs first." If these provisions are contravened, a court may become involved in the matter.
Rights and Duties of Tenants and Landlords
A rental tenancy agreement in BC is a two-way street where tenants and landlords each have specific rights and responsibilities. When it comes to the maintenance of the rental property, the rental tenancy agreement provides a more certain standard. Section 32(1)(c) of the RTA provides that "a landlord must ensure that the rental unit and the residential property are clean and fit for occupation and are equipped with and maintained in a reasonable state of repair…and" subject to certain exceptions, that the landlord maintain the property "in a state of good repair and fit for habitation." Section 32(1)(d) of the RTA requires that "A landlord must comply with health, safety and maintenance standards required by law."
What this means is that tenants should be provided a rental unit that is clean, fit for use, in a reasonable state of repair and free from health and safety hazards. Landlords are prohibited from modifying community standards regarding maintenance and safety. If any of these conditions are not met, a tenant may apply to the Residential Tenancy Branch to seek an order for repairs.
If a disagreement arises regarding the presence of health and safety standards, landlords are encouraged to consult with a local municipal official. Should parts of the rental unit require repairs under the RTA or by virtue of a written tenancy agreement, the landlord has a duty to address the repairs in a timely manner. However, tenants are simultaneously restricted from damaging the rental unit and are encouraged to carry out regular cleaning and maintenance.
Tenants have an implied right to privacy in their rental unit. A tenant is not to be "harassed" in the rental unit. The RTA provides that tenants may withdraw the right of entry for any purpose by providing 24 hours’ notice, but landlords have implied rights of entry for certain purposes regardless of tenant consent.
Included in the implied rights of entry are provisions which permit landlords to show the rental unit to prospective tenants or buyers, and to carry out periodic inspections. It is acceptable to ask prospective tenants or buyers at the time of showing if they would like to be contacted if another prospective tenant or buyer submits an application to rent or purchase the property. However, landlords do not have the implied right of entry to show a rental unit to other tenants, contractors, or visitors under the provisions of the RTA. There are statutory remedies available to tenants in the event that landlords unreasonably restrict entry or enter the unit without permission or reasonable prior notice. Therefore, it is deemed highly unacceptable to keep entry restricted to landlords and their friends.
Landlords similarly have a right to not be harassed by their tenants. Tenants must respect the provisions of the rental tenancy agreement, and provided that the landlord is carrying out his/her responsibility as outlined in the agreement or the RTA, tenants must not harass the landlord in carrying out his/her duties. Therefore, tenants cannot retaliate against a landlord for making requested repairs under the RTA or the rental tenancy agreement.
If a relative of the landlord moves into the rental unit, tenants should consider whether this constitutes a change in landlords, and should do further research as needed.
What is an Addendum or Special Term?
The use of written addendums and special clauses is extremely common in rental agreement in British Columbia. These are frequently used to address issues not covered by the standard rental agreement form or to set out specific terms of the tenancy that are necessary for that particular situation. For instance, a rental agreement may set out that it is for a fixed term of one year, but have special clauses stipulating that the monthly rent shall be reduced during winter months, that no pets are allowed in the unit, or that the tenant shall post a large security deposit .
Some types of special clauses will not be effective or binding in a tenancy agreement. Section 7 of the RTA states that any part of a rental agreement that is not permitted by the RTA or any other enactment (including bylaws of a strata corporation) or that is contradicted by the RTA or other enactment, is ineffective to the extent of the contradiction. RTA s 9 provides a non-exhaustive list of issues where terms in a rental agreement are not binding with respect to tenants.
In general, we advise landlords to consult with a lawyer in situations where they want to use special terms that are not specifically covered by the RTA.
How to Handle Disputes According to Your Tenancy Agreement
With respect to resolving disputes arising under a tenancy agreement, there are a number of avenues available to landlords and tenants. Often, we see disputes arising between landlords and tenants over an increase in rent not in accordance with the tenancy agreement, arbitrarily raising the rent or failing to provide notice to vacate. A tenant is usually required to provide notice to vacate in accordance with the tenancy agreement for a period of usually 30 days.
This area is governed by the Residential Tenancy Act, which is a substantial piece of legislation setting out the rights, obligations, and remedies of all parties – landlords and tenants.
The Residential Tenancy Branch ("RTB") is the agency responsible for residential tenancies in BC. Unfortunately, its website is not user-friendly, but there is a list of forms available on the RTB website. In order to file a case for dispute resolution with the RTB one must fill out a package of documents depending on whether you are a landlord or tenant. This includes forms to submit a claim to the RTB, instructions on how to serve the other side, additional forms for claiming money or applying to cancel a notice to end a tenancy, among others.
There are three ways to resolve disputes with a landlord or tenant: The fastest way to resolve a dispute under a tenancy agreement is through Alternative Dispute Resolution ("ADR"). An ADR is a mediation session (conducted at no cost by the RTB) and usually occurs most often prior to going to a hearing. If the ADR is unsuccessful, parties may proceed to a hearing.
A hearing is a proceeding before an arbitrator. The hearing may be conducted in person or by phone. If it is similar to a court proceeding the tenant will be placed under oath and be subject to cross-examination.
A determination can be made on a matter and an order issued by the arbitrator. These orders have the same force as any order from a court and can be registered in the BC Supreme Court so that it can be executed in the same fashion as any civil judgment. Specifically, an order can included a monetary award, an order for possession of the rental unit, etc.
Where to Find Help as a Tenant or Landlord in BC
The Residential Tenancy Branch of British Columbia provides a wide range of resources and services to educate both tenants and landlords about their rights and responsibilities. The Residential Tenancy Branch website contains a library of information sheets, a video library, and online education tools, including webinars and a self-help tool to determine next steps to take when things go wrong. Tenants who do not receive enough assistance from the Residential Tenancy Branch can reach out to a Community Resources Centre, which is available throughout the province to advise individuals and families about resolving tenancy issues . The YMCA of Greater Vancouver also provides services for tenants facing eviction due to arrears by providing one-on-one financial coaching, skills development workshops, and workshops around resources or funds that might be available to help pay rent. There are no direct resources from the Residential Tenancy Branch for landlords, and their website encourages landlords to seek legal advice before acting in any situation. Landlords needing assistance resolving tenancy issues can also access Legal Aid BC resources such as lawyers offering brief legal advice, assistance filling out forms, and access to phone and online lawyers.