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Category: Landlord/Tenant Page 3 of 8

Domestic Violence and Legal Responses to COVID-19 in Alberta

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On April 10, 2020

In Access to Justice, COVID-19, Family, Labour/Employment, Landlord/Tenant, State Responses to Violence

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Responses to COVID-19 in Alberta

Matters Commented On: Ministerial Order No 2020-011 (Community and Social Services); Court of Queen’s Bench Of Alberta, Amended Master Order #2 Relating to Court’s Response to the COVID-19 Virus; Court of Queen’s Bench Of Alberta, Pandemic Operations/ FAQ; The Provincial Court of Alberta, COVID-19 Pandemic Planning for the Scheduling of Matters

Many commentators have remarked on how COVID-19 and government orders to self-isolate will lead to increased rates of domestic violence and adversely impact victims of domestic violence seeking protection. Last weekend, for example, UN Secretary General António Guterres remarked that there has already been a “horrifying global surge in domestic violence” and urged “all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19.” The law clearly has a significant role to play in this context. As noted in a previous post, domestic violence matters engage many legal issues: civil protection order law, criminal law, family and child protection law, residential tenancies law, social assistance and housing law, and employment law, to name a few. This post reviews some of the efforts of lawmakers and courts in Alberta to respond to domestic violence issues in light of the COVID-19 pandemic and identifies some areas where further measures are needed. My focus is on domestic violence – in other words, violence in the context of intimate partner relationships – rather than child or elder abuse. Child and elder abuse cases also present challenging issues in the current pandemic, but they are beyond the scope of my analysis here.

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Are Landlords’ Late Payment Fees Enforceable?

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On February 5, 2020

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Are Landlords’ Late Payment Fees Enforceable?

Case Commented On: 19007636 (Re), 2020 ABRTDRS 1 (CanLII)

Are the late payment charges that some leases provide for and some landlords demand from tenants who are late with the rent enforceable? Do they have to be paid? Like many questions about the law, the answer is “it depends.” Are the late payment charges a penalty? If they are, then they are not enforceable. Are the late payment charges a genuine pre-estimate of the landlord’s liquidated damages? If they are, then they are enforceable. I wrote about the distinction between penalties and pre-estimates of liquidated damages in 2017: see When are Late Payment of Rent Charges in Residential Tenancies Unenforceable? Nevertheless, now seems a good time to bring the issue up again for two reasons. First and most importantly, in the last week in January, Alberta’s UCP government changed the payment dates of the Assured Income for the Severely Handicapped (AISH) program and the Income Support program from four business days before a new month to the first day of that new month (or the last business day of the previous month if the first of the month is a holiday or weekend); see AISH and Income Support payment date change. The change takes effect March 1, 2020 although, because March 1 is a Sunday, payments will be mailed or directly deposited on Friday, February 28. With rent due the first of the month for many people, a lot of worry has been expressed about whether landlords will charge for late rent payments. Second, the Residential Tenancies Dispute Resolution Board (RTDRS), which hears the vast majority of the residential landlord and tenant disputes in this province, just published 19007636 (Re), a written decision that briefly discusses late rent payment charges. The RTDRS has just started making some of its decisions publicly available, and although the ABRTDRS CanLII database only contained 39 decisions as of February 3, it includes a relevant 2020 decision.

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Wear and Tear, Cleanliness, Repair, Replacement and Betterment: A Landlord’s Claims for Compensation at the End of a Residential Tenancy

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On November 8, 2019

In Landlord/Tenant, Property

By: Jonnette Watson Hamilton

PDF Version: Wear and Tear, Cleanliness, Repair, Replacement and Betterment: A Landlord’s Claims for Compensation at the End of a Residential Tenancy

Case Commented On: Barry v Navratil, 2019 ABPC 229 (CanLII)

This decision by Judge Jerry LeGrandeur deals with several claims by a landlord for compensation for damages allegedly done to residential premises by former tenants. The landlord claimed for the cost of replacing the carpet in the living room, master bedroom and a closet, based on what the landlord said was damage due to pet urine and, in one specific spot, due to cigarette burns. She also claimed for the cost of replacing the kitchen countertops and backsplash due to a burn from a hot cooking pot. These two claims for replacement rather than repair raised the issue of “betterment,” because the landlord ended up in a better position than she would have been in had the carpet and countertop not been damaged. The landlord also claimed for the cost of materials to sand and paint the garage floor which had been stained by the tenant. That claim raised the issue of wear and tear, although it was resolved as a cleaning issue. Judge LeGrandeur’s written decision provides some helpful clarity for both landlords and tenants on the issues of repairing versus replacing, betterment, wear and tear, and cleaning, as well as the burden of proof, standard of proof, and the need for evidence. It also reinforces the rule that a landlord cannot demand more of a tenant than do the statutory obligations in the Residential Tenancies Act, SA 2004, s R-17 (RTA).

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Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

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On April 13, 2018

In Administrative Law, Landlord/Tenant

By: Jonnette Watson Hamilton and Shaun Fluker

PDF Version: Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

Case Commented On: CIBC Mortgages Inc v Bello, 2018 ABQB 176 (CanLII)

This appeal from an order of a Tenancy Dispute Officer of the Residential Tenancy Dispute Resolution Service (RTDRS) is worth noting for several reasons. First, it appears that the question of whether a mortgagee becomes a “landlord” under the Residential Tenancies Act, SA 2003, c R-17.1 (RTA) upon foreclosing on leased residential premises had not been addressed before. This is an important question for tenants looking to recover their security deposits and for foreclosing mortgagees who have not received those security deposits from their mortgagor. Second, the standard of review to be applied on an appeal from a Tenancy Dispute Officer’s order has been controversial within the Court of Queen’s Bench of Alberta. Some decisions have held that correctness is the standard, whereas others, including this one, hold that the standard is one of reasonableness. Third, the court’s clear statement and elaboration of the purpose of the RTA–to address the power imbalance between landlords and tenants–should be helpful to tenants in future cases. Fourth, the decision is a good example of statutory interpretation and eminently suitable for a first year law school course on legislation. Finally, insofar as Tenancy Dispute Officers are not required to give reasons as part of their written orders, the occasional appeals of those orders (which must be accompanied by a transcript of the Tenancy Dispute Officer’s oral reasons) offer rare glimpses into the legitimacy of the dispute resolution services provided by the RTDRS.

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Landlords, Tenants and Domestic Violence: Introduction to a New ABlawg Ebook

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On December 6, 2017

In Landlord/Tenant, State Responses to Violence

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.

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