10 Things Every Landlord or Tenant Needs to know
10 Things Every Landlord or Tenant Needs to know
What you will find below is list of questions that I am frequently asked. I have been helping people and clients with Landlord tenancy issues for about 16 years and I am happy to pass on a little of what I have learned. Please remember that while I am a lawyer, each situation is different, and FAQs are no replacement for going to and seeing a lawyer.
1. The Landlord-Tenant relationship is governed by at least two main things:
i.) The Residential Tenancies Act (RTA) and or the Mobile Home Sites Tenancies Act if you are dealing with a mobile home site.
I cannot understate the importance of reading the Act. If you have not read the Act, please do it!
ii.) The Lease
2. What are my responsibilities? This question is, again, answered by reading the Act and the Lease if there is one.
You want to have a look at Sections 15-25 of the RTA—more specifically section 16, as it deals with a Landlord’s obligations:
“16 The following covenants of the landlord form part of every residential tenancy agreement:
(a) that the premises will be available for occupation by the tenant at the beginning of the tenancy;
(b) that, subject to section 23, neither the landlord nor a person having a claim to the premises under the landlord will in any significant manner disturb the tenant’s possession or peaceful enjoyment of the premises;
(c) that the premises will meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.”
And section 19 contains a Tenant’s covenants:
“21 The following covenants of the tenant form part of every residential tenancy agreement:
(a) that the rent will be paid when due;
(b) that the tenant will not in any significant manner interfere with the rights of either the landlord or other tenants in the premises, the common areas or the property of which they form a part;
(c) that the tenant will not perform illegal acts or carry on an illegal trade, business or occupation in the premises, the common areas or the property of which they form a part;
(d) that the tenant will not endanger persons or property in the premises, the common areas or the property of which they form a part;
(e) that the tenant will not do or permit significant damage to the premises, the common areas or the property of which they form a part;
(f) that the tenant will maintain the premises and any property rented with it in a reasonably clean condition;
(g) that the tenant will vacate the premises at the expiration or termination of the tenancy.
3. Can a Tenant withhold rent? The short answer is no! There are steps that can be taken by a tenant to seek an abatement of rent or to terminate the lease if a Landlord has failed to fulfill his obligations but, generally, you cannot unilaterally withhold the rent.
4. Just because you do not have a written lease does not mean that you do not have one. If you move into a residence chances are that you have a month-to-month lease governed by the RTA.
5. I signed a lease for a fixed term, how can a tenant get out of it? I get this question a lot.
Usually a landlord will ask you to sign a lease for a fixed term. 1-year is not uncommon. It is also not uncommon for relationships to break down, job locations can change, or maybe your budget is not what you thought it would be. Either way you want out of your lease.
The easiest way to get out of your lease is to talk to your landlord. If both parties agree to mutually terminate the lease, it will terminate and that is the end of it. Whatever is agreed to, get it in writing.
6. My tenant did a midnight move and we had a fixed term lease what do I do? The tenant will most likely be liable for any rent that runs during the fixed term, BUT this does not mean that you can just sit back and do nothing. You must mitigate your damages. This means that you must take reasonable steps to re-rent the space and if you do not do so then a court may reduce your damages accordingly.
7. My tenant has moved out and they left all their crap behind? The short answer would seem to be, clean it up. Get the space ready to re-rent, right? Not necessarily. While you will end up cleaning up the mess, if the value of the goods is less than the prescribed amount ($2,000.00 as of January 2018) you may simply dispose of the goods and clean up the residence. If however, the goods left behind are equal to or over the prescribed amount you must follow the procedure as laid out in the RTA. Please refer to section 31 of the Act.
8. We did not properly complete the inspection reports. Does this mean that I cannot deduct monies from the damage deposit or make a claim for damages? This is a situation where practice does not necessarily connect with theory.
Section 46(6) of the Act states clearly that:
(6) A landlord shall not make a deduction from a tenant’s security deposit for damages to the residential premises unless the requirements respecting inspection reports under section 19 have been met.
Notwithstanding this however we see on regular basis Landlords who deduct monies for damages from a deposit without complying with section 19. While Landlords are technically, not supposed to do this, the courts, in my experience, regularly assess the Landlord’s damages and make the adjustments as necessary, if they have filed the proper paperwork. Why? I suspect that this is because the result is usually the same.
This question can lead to a much more in-depth discussion.
9. Has the Landlord or Tenant breached our Contract/Lease and if so, do I have to give a 14-day (or some other form) of notice?
This is always a fun question because in many cases there is not a clear-cut answer as to whether there is a breach. Some things on the other hand, such as failure to pay rent, violence, or failure to provide the residence as agreed can be clear and substantial breaches.
Minor or non-substantial breaches include things like: smoking in a non-smoking residence, failure to keep the residence clean, unauthorized tenants, pets, late payment of rent, etc.
Just because a breach may not be substantial does not mean that action should not be taken. In fact, a non-compliant tenant or Landlord who continually breaches the terms of the Lease or the Act may find themselves in a situation where the minor breaches become a substantial breach and expose themselves to liability.
This is also true if something that may normally be considered as a minor breach is defined in the lease as a substantial breach.
14-day notices: Section 29(1) of the Act reads:
29(1) If a tenant commits a substantial breach of a residential tenancy agreement, the landlord may apply to a court to terminate the tenancy or may terminate the tenancy by serving the tenant with a notice at least 14 days before the day that the tenancy is to terminate. (emphasis added)
Please notice the word “may." Serving a 14-day notice is not mandatory.
I usually advise against these types of notices because it usually just eats up more time. I like to act fast and decisively. This usually means that I will utilize each of my remedies in turn and as they present themselves. If I want to terminate a lease and evict the tenant I want them out as quick as possible to minimize my damages.
10. My tenant is 6 months behind in their rent and I want to evict them. How do I do it?
Firstly, why did you let them get so far behind in their rent? Usually the answer is that the Landlord was trying to help the tenant in a ruff spot or they do not think that they can find a new tenant and sit back hoping that this tenant will pay up. Usually the situation ends up getting worse.
(This is not an exhaustive list)
1st option: Do nothing and maybe the tenant will leave on their own. This is not a very good option in my opinion. Why would a tenant move if he is not having to pay rent?
2nd option: Be proactive and try to negotiate with your tenant or landlord to mutually end the lease. This is usually the cheapest way to go and tends to work out nicely if all parties are willing to work together.
3rd option: Issuing a 14-day or depending on the situation, a 24-hour notice. Wait for the time to pass and hope that the other party complies.
4th option: Commence legal proceedings. In Alberta there are 3 avenues that can be utilized which are as follows:
Residential Tenancy Dispute Resolution Service
Provincial Court of Alberta, Civil Division
Court of Queen’s Bench
Please contact a lawyer if you would like to proceed through Queen’s Bench.
If you are on a limited budget and have a simple matter, then the RTDRS is maybe an option worth considering. Out of the three options listed above, I prefer going through either Provincial Court or Queen’s Bench.
This short FAQ is not meant to be a replacement for proper legal advice nor is it meant to provide all the answers. If you have questions or if you are unsure of what your options are please give us a call and we will do what we can to assist you.
I also make myself available as a guest speaker at events or seminars.