Category: Landlord/Tenant Page 7 of 8

By: Jonnette Watson Hamilton

PDF Version: Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

Case commented on: Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins, 2014 ABQB 229 (CanLII)

This is an important decision for residential tenants, with potentially far-reaching impact. If a residential tenant is not in breach of his or her tenancy agreement, a landlord is unable to evict them except for a small number of reasons prescribed by the applicable legislation, either the Residential Tenancies Act, SA 2004, c R-17.1 or the Mobile Home Sites Tenancies Act, RSA 2000, c M-20. But because Alberta has no law limiting the amount by which landlords can increase rent, everyone knows that landlords can force tenants out by raising their rent beyond what they can afford or are willing to pay. This decision by Master Andrew Robertson calls into question that received wisdom. Indeed, by finding that the increase in rent in Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins was really a notice to terminate a periodic tenancy and of no effect as either a notice to terminate or a notice of a rent increase, Master Robertson’s decision potentially signals a significant shift in the power balance between landlords and residential tenants in Alberta.

Read More

By: Jonnette Watson Hamilton

PDF Version: Vindication of a Residential Tenant’s Rights – At Least Temporarily

Case Commented On: Lautner v Searle, 2011 ABQB 263

This very short decision by Master Walter H. Breitkreuz, Q.C., is about an unjustified and unsuccessful attempt by a landlord to quickly evict an elderly and ill tenant from rental premises that had been his home for more than 10 years. Memorandums of Decision – even 8 paragraph ones – are not often written about residential tenancy matters. But this is a victory by a tenant that deserves publicizing, even if the only apparent result of the victory is to extend the time that the tenant has to vacate the premises from 14 days to 3 months. Without publicity, there is no possibility of discouraging other landlords from acting in an equally heavy-handed manner.

Read More

By: Jonnette Watson Hamilton

PDF Version: The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

Case Commented On: Botar v Mainstreet Equity Corp., 2010 ABQB 710

It is unusual for a residential tenancy matter to be heard in the Court of Queens’ Bench of Alberta, as was Botar v. Mainstreet Equity Corp. Residential landlord and tenant law is intended to be accessible; the relationship is regulated by one, fairly comprehensible and comprehensive statute, the Residential Tenancies Act, S.A. 2004, c. R-17.1. Claims under that statute are usually heard in Provincial Court – Civil (also known as Small Claims Court), and that court has a helpful website on the Residential Tenancies Process. Accessible explanations of the process involved in making claims under the Residential Tenancies Act are an indication that Provincial Court – Civil is oriented toward self-represented litigants. Nevertheless, a tenant such as Andrew S. Botar might choose to represent himself in the Court of Queen’s Bench or be required to do so because his claim is for more than $25,000, the upper limit on damages that Provincial Court – Civil can award. In this case, Mr. Botar’s claim was for approximately $75,000. Mr. Botar had also enjoyed some success in the Court of Queen’s Bench against his landlord, Mainstreet, in 2007: see Botar v. Mainstreet Equity Corp., 2007 ABQB 608 and A Tenant’s Right to Withhold Payment of Rent, my comment on that earlier decision. Any preference Mr. Botar might have for the Court of Queen’s Bench, however, might be dissipated by this November 2010 decision by Mr. Justice J.J. Gill.

Read More

By: Nickie Vlavianos

PDF Version: Recovering Increased Rent From a Residential Tenant After Serving a Termination Notice

Case Commented On: Merkl v Wallburger, 2008 ABPC 264

In 2007, amendments were made to Alberta’s residential tenancy legislation to give tenants some protection from the challenges of rent increases and the difficulties of finding affordable rental accommodations in a province experiencing an economic boom. Many critics said the amendments did not go far enough. This recent decision of Provincial Court Judge Derek G. Redman highlights the piecemeal nature of these amendments, and the fact that, despite the amendments, Alberta’s Residential Tenancies Act, S.A. 2004, c. 17.1 (RTA) remains a landlord-friendly statute.

Read More