Category: Landlord/Tenant Page 5 of 8

By: Jennifer Koshan

PDF Version: Landlords, Tenants, and Domestic Violence: Clarifying Privacy Issues

Case Commented On: Centre for Public Legal Education Alberta, Domestic Violence: Roles of Landlords and Property Managers

A recent report written by Professor Lois Gander for the Centre for Public Legal Education Alberta (CPLEA) explores how landlords and property managers can play a part in responding to domestic violence. Domestic Violence: Roles of Landlords and Property Managers concludes that “some property managers and the landlords they represent go to considerable lengths to prevent, intervene, and support victims of domestic violence as much as they can” (at 7). This was the case even before Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, amended the Residential Tenancies Act, SA 2004 cR-17.1 (RTA), to allow victims of domestic violence to terminate their tenancies early without the usual penalties (for a post on Bill 204 see here). The report includes several recommendations to support landlords and property managers as front-line service providers in this context, including the development of training and resources. It also 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). Appendix F sets out several legal issues revealed by interviews with landlords and property managers, including uncertainty about: (1) the extent to which 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). This post will address the first issue; I will comment later on issue 6 and Jonnette Watson Hamilton will discuss issues 2, 3, 4 and 5.

Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

By Jonnette Watson Hamilton

On July 5, 2017

In Landlord/Tenant, Provincial Court

By: Jonnette Watson Hamilton

PDF Version: Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

Case Commented On: C.V. Benefits Inc. v Angus, 2017 ABPC 118 (CanLII)

This decision is important for two reasons. First, Assistant Chief Judge Jerry LeGrandeur awarded the tenant an abatement of her rent based on her landlord’s breach of section 16(c) of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA). Section 16(c) requires landlords to ensure that rented premises “meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.” Usually abatement of rent is granted for a landlord’s breach of section 16(b) of the RTA, which is the landlord’s promise that it will not “in any significant manner disturb the tenant’s possession or peaceful enjoyment of the premises.” Relying on section 16(b) suggests that a tenant must be unable to use or possess all or a part of the rented premises. Indeed, the landlord in this case argued that there needed to be an actual loss of physical use of all or part of the premises before a court could grant an abatement of rent. Tying the abatement of rent remedy to tenants’ inability to physically occupy the premises might seem appropriate if a tenant is forced out of possession by flooding or a bedbug infestation. However, tenants need to be able to be awarded an abatement of their rent when the problems are persistent but less serious breaches of minimum housing standards that do not drive them out of possession or entitle them to terminate their lease. Judge LeGrandeur’s decision made it clear that tenants can rely on section 16(c) when seeking abatement of their rent. Second, rather than calculating the amount of the abatement based on what percentage of the square footage of the rented premises the tenant could not use, Judge LeGrandeur adopted a more contextualized approach that seems much more appropriate.

“Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

By Jonnette Watson Hamilton

On May 26, 2017

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: “Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

Cases Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII) and Shearer v Shields, 2017 ABPC 108 (CanLII)

A landlord can dispose of the belongings that a residential tenant has left behind at the rented premises if those belongings meet the definition of “abandoned goods” in section 31(1) of the Residential Tenancies Act, SA 2004, c R-17.1. That section says “abandoned goods” are goods left at residential premises by a tenant who has either abandoned the premises or has vacated the premises after their tenancy has expired or been terminated. Two recent Provincial Court judgments discuss whether a tenant’s belongings were “abandoned goods” or not. In both judgments, the landlords were found to have acted rashly and the tenants were found to have not abandoned their belongings. However, only one of the judgments considers whether the belongings were “abandoned goods” by paying attention to the definition in section 31(1) of the Act. That definition requires that the focus be on the premises and the tenant’s legal relationship to those premises, and not on the belongings themselves.

When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

By Jonnette Watson Hamilton

On May 10, 2017

In Contracts, Landlord/Tenant, Property, Provincial Court, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable.

Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

By Amy Matychuk

On May 9, 2017

In Access to Justice, Landlord/Tenant, Property

By: Amy Matychuk and Jo-Ann Munn Gafuik

PDF Version: Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

Legislation Commented On: Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006

In the Fall of 2016 the Public Interest Law Clinic at the University of Calgary recommended changes to the Residential Tenancy Dispute Resolution Service Regulation, which expired on April 30, 2017. The Residential Tenancy Dispute Resolution Service (RTDRS) is established under Part 5.1 of the Residential Tenancies Act, SA 2004, c R-17.1 as an alternative to the Provincial Court for dealing with landlord/tenant disputes under the Act. ABlawg has documented significant problems with the RTDRS and the Regulation in several posts written by Professor Jonnette Watson Hamilton here, here, here, and here. The scheduled expiry of the Regulation was an opportunity for the Alberta government to address these problems through amendments. However, the amendments enacted on April 24, 2017, while including some welcome changes, fall well short of addressing noted problems with the RTDRS.