By: Jennifer Koshan and Jonnette Watson Hamilton
Editors’ Note: ABlawg is pleased to publish this new ebook, Landlords, Tenants and Domestic Violence: An ebook collection of ABlawg posts concerning residential tenancies and victims of domestic violence, on the National Day of Remembrance and Action on Violence against Women in Canada.
This ebook is a compilation of ABlawg posts from the last two years concerning residential tenancies and domestic violence.
In December 2015, Alberta’s Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015 (Bill 204) received Royal Assent, and was proclaimed in force on August 8, 2016. Bill 204 revised the Residential Tenancies Act, SA 2004 cR-17.1, to allow tenants to terminate leases early without the usual consequences where they were forced to vacate the premises because of domestic violence. A June 2014 report by Professor Lois Gander, QC of the University of Alberta and Rochelle Johannson of the Centre for Public Legal Education Alberta (CPLEA), The Hidden Homeless: Residential Tenancies Issues of Victims of Domestic Violence, set the stage for this legislation with its suggestion that financial obligations are often the biggest problem facing victims of domestic violence in the residential tenancy context. In passing Bill 204, Alberta joined other jurisdictions such as Manitoba (see The Residential Tenancies Act, CCSM c R119, ss 92.2-92.4), Quebec (see Civil Code of Quebec, SQ 1991, c 64, article 1974.1), and Nova Scotia (see Residential Tenancies Act, RSNS 1989, c 401, s 10F) in providing some protections for victims of domestic violence seeking to terminate their tenancies. Similar legislation has now been passed in British Columbia (see Residential Tenancy Act, SBC 2002, c 78, ss 45.1-45.3), Saskatchewan (see Residential Tenancies Act, 2006, SS 2006, c R-22.0001, ss 64.1-64.3), Ontario (see Residential Tenancy Act, 2006, SO, 2006, c 17, s 47.1-47.4), and the Northwest Territories (see Residential Tenancies Act, RSNWT 1988, c R-5, s 54.1). Our ABlawg comment on Bill 204 is the first post in this ebook.
Although these amendments are a step in the right direction, there are many other issues faced by landlords and tenants where residential tenancies are affected by domestic violence, and the law is not always clear on how to resolve these issues. A second report by Professor Gander was released by CPLEA in March 2017; Domestic Violence: Roles of Landlords and Property Managers recommends that “further consideration should be given to ways that the law impedes or assists landlords in accommodating the needs of their tenants who are experiencing domestic violence” (at 9). Several legal issues were raised in interviews with landlords and property managers, revealing uncertainty about: (1) whether privacy laws constrain them from reporting domestic violence to tenants’ emergency contacts, guarantors and family members, (2) who is a tenant and how and when a guest or occupant acquires the rights and responsibilities of tenants, (3) the power of landlords to suspend or terminate tenancies for acts of domestic violence, (4) the power of landlords and tenants to change locks and bar access, (5) the ability of landlords to recover the cost of repairs for damages caused by tenants or their guests, and (6) the implications of different forms of no-contact orders for landlords and property managers (at 44-45).
Professor Gander asked to meet with us in June 2017 to see if we would provide analysis on these legal issues on ABlawg. As noted by Professor Gander, “these are complex, intersecting legal issues with far-reaching implications. But they attract little legal comment. So I approached Professors Koshan and Watson Hamilton and was pleased that they were willing to take up the challenge of analyzing the law as it currently exists so that discussion about possible reforms can be well-grounded.”
Our meeting led to a series of six ABlawg posts on “Landlords, Tenants, and Domestic Violence”, addressing the legal uncertainties identified in the CPLEA report.
The first post in the series, Landlords, Tenants, and Domestic Violence: Clarifying Privacy Issues, reviews landlords’ confidentiality obligations under the amendments to the Residential Tenancies Act enacted by Bill 204, as well as under Alberta’s Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 and Personal Information Protection Act, SA 2003, c P-6.5. The post concludes that Alberta privacy laws make it difficult for landlords and property managers to act in a preventative manner in domestic violence cases unless there is an emergency or grave risk of harm. It recommends the consideration of explicit provisions like those in BC’s Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, which allow the collection, use and disclosure of personal information where necessary to reduce the risk of domestic violence.
The post Landlords, Tenants, and Domestic Violence: Who is a Tenant? explains why it may be difficult to determine who is a “tenant” under Alberta’s Residential Tenancies Act, and reviews the importance of this inquiry for issues including who a landlord can evict or lock out, who is obligated to pay rent, and who might be responsible for damage to the property. It notes that many more occupants meet the definition of tenant than is commonly thought, mainly because a tenant need not sign a written lease. The post also discusses definitions of “tenant” in legislation from other Canadian jurisdictions, showing some possibilities for reform of Alberta’s Residential Tenancies Act.
The third post in this series is Landlords, Tenants, and Domestic Violence: Landlords’ Power to Terminate Residential Tenancies for Acts of Domestic Violence (and an Argument for Publicly-Accessible RTDRS Reasons for Decisions). It reviews the different circumstances in which landlords may terminate tenancies, noting the lack of flexibility or alternatives to termination, such as the ability to suspend a tenancy or to convert a tenancy into one with fewer tenants. It also notes the problems with the Residential Tenancies Act termination provisions, including uncertainty about what will amount to “significant” interference or “significant” damage for the purposes of termination, the problems with using a simple notice to vacate to terminate a tenancy, and the requirement to terminate the whole tenancy rather than only part of it.
Landlords, Tenants, and Domestic Violence: Clarifying the Implications of Different Protection Orders reviews the availability of protection orders under various statutes and the implications of these different orders for residential tenancies. Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27, allows for protection orders that grant victims of domestic violence exclusive occupation of the family residence, with a related right not to be evicted simply because they are not a party to the lease and to take over the lease from the respondent in these circumstances. Exclusive possession orders are also available under the Family Law Act, SA 2003, c F-4.5 and Matrimonial Property Act, RSA 2000, c M-8, and those obtaining such orders are deemed to be tenants. The post Landlords, Tenants, and Domestic Violence: Changing Locks and Barring Access discusses the repercussions of these different types of orders for landlords’ and tenants’ ability to change locks or otherwise bar access to residential premises to perpetrators of domestic violence, as well as for who is responsible to pay rent and for the security deposit.
The penultimate post in this series is Landlords, Tenants, and Domestic Violence: Liability for Damage to Residential Premises. This post reviews the general rules in Alberta about responsibility for damages to residential premises, as well as responsibility for security deposits and for damage that exceeds the amount of a security deposit, concluding with suggestions for reform.
Matters are more complicated still for domestic violence victims who live on First Nations reserves in light of jurisdictional issues and specialized legislation such as the Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20. Elysa Darling’s post, Landlords, Tenants, and Domestic Violence: The Family Homes on Reserves and Matrimonial Interests or Rights Act, discusses some of these jurisdictional complexities, and notes how victims of domestic violence living on First Nations reserves may face legal vacuums or other hurdles when they seek exclusive possession of the family home.
Collectively, these posts show that landlords and property managers are rightly concerned about how the law may impede them “in accommodating the needs of their tenants who are experiencing domestic violence” (Domestic Violence: Roles of Landlords and Property Managers at 9). This is unfortunate, as the CPLEA report found that many property managers and landlords genuinely wish to support victims of domestic violence (at 7). The recent amendments to Alberta’s Residential Tenancies Act may make it easier for victims to leave residential tenancies, but they do not make it easier for them to stay, even if their landlords are supportive. Alberta may wish to consider implementing second generation amendments to residential tenancy legislation, such as those adopted in some Australian states, which give victims of domestic violence more and better choices in this context (see Landlords, Tenants, and Domestic Violence: Who is a Tenant? for a discussion of these amendments).
These posts also illustrate the many intersecting laws that victims of domestic violence face even in the relatively narrow context of dealing with residential tenancy issues. When one considers that many victims must also interact with the criminal and family justice systems, and sometimes with immigration laws and social assistance regimes, their legal situations become even more complex. Jennifer Koshan is studying these intersections in a Social Sciences and Humanities Research Council (SSHRC) funded project, Domestic Violence and Access to Justice Within and Across Multiple Legal Systems (with Wendy Chan, Michaela Keet, Janet Mosher and Wanda Wiegers), and Elysa Darling’s LLM project focuses on the specific access to justice issues faced by Indigenous women in this context. Jennifer and Elysa will post future research results from the SSHRC project to ABlawg, and are grateful for SSHRC’s funding, which supported some of the posts in this ebook.
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