1994 Legislative Session: 3rd Session, 35th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
HONOURABLE JOAN SMALLWOOD
MINISTER OF HOUSING, RECREATION
AND
CONSUMER SERVICES
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 The following section is added to the Residential Tenancy Act, S.B.C. 1984, c. 15:
1.1 (1) Despite section 16.2 of the Infants Act, a tenancy agreement entered into by a person under the age of 19 years is enforceable by and against the person to the same extent as if that person had been an adult on the date of entry into the tenancy agreement.
(2) Subsection (1) has retroactive effect to the extent necessary for it to apply to all tenancy agreements in effect on the coming into force of this section.
2 Section 2 is amended by adding the following subsections:
(5) If a person enters into 2 or more tenancy agreements within 12 months giving the person, or the person's heirs or assigns, the right to occupy or reoccupy all or part of the same residential premises for a total in aggregate of more than 20 years with or without interruption, the term of each of these tenancy agreements is deemed to exceed 20 years for the purposes of subsection (3).
(6) A tenancy agreement for which prior approval is required under subsection (3) is void if it is entered into on or after June 13, 1994 and the prior approval is not obtained.
(7) If a tenancy agreement is void under subsection (6),
(a) the sum of all payments made by or on behalf of the tenant under the tenancy agreement is a debt owed by the landlord to the tenant, and
(b) the tenant may occupy the residential premises until the later of
(i) the date 6 months from the day the tenancy agreement was entered into, or
(ii) one month after the sum owing under paragraph (a) is paid in full.
3 Section 9 is amended by adding the following subsection:
(6) In addition to other remedies a tenant may have under this Act, an order under this section may authorize a tenant to deduct up to one month's rent and to spend this amount on any repair, service or facility ordered under this section if, within the time specified in the order, the landlord fails to comply with an order under subsection (2) (a) or (3) (a).
4 The following sections are added:
9.1 (1) In proceedings for an order under section 9 (2) (a) or (3) (a), or if the landlord fails to comply with an order under section 9 (2) (a) or (3) (a), the court, on application, may order that rent payable by the tenant is reduced by the amount the court considers commensurate with the reduced value of the tenancy to the tenant as a result of the landlord's failure to comply with
(a) this Act or the tenancy agreement, or
(b) the order under section 9 (2) (a) or (3) (a).
(2) A reduction in rent under subsection (1) does not apply to rent that becomes payable after the landlord complies with the order under section 9 (2) (a) or (3) (a).
9.2 (1) In this section "emergency repairs" means repairs to
(a) major leaks in the pipes or roof,
(b) damaged or blocked water or sewer pipes or plumbing fixtures,
(c) the central or primary heating system,
(d) defective locks that give access to the residential premises, or
(e) in prescribed circumstances, the residential premises or residential property that are urgent and necessary for the health and safety of persons or the preservation and use of the residential property or residential premises.
(2) A landlord must post and maintain in a conspicuous place on the residential property the name of the person who will respond for the landlord in an emergency and the telephone number where this person can be reached if emergency repairs are necessary.
(3) If emergency repairs are not made within a reasonable time after a tenant has made a reasonable effort on 2 or more occasions to contact the person at the telephone number referred to in subsection (2), the tenant may have repairs made, but the landlord may take over completion of these repairs at any stage.
(4) A landlord must reimburse a tenant for the tenant's expenses under subsection (3) except expenses that the court, on application, finds to be
(a) not for emergency repairs,
(b) for emergency repairs for which the tenant failed to comply with subsection (3) or (5),
(c) beyond a reasonable cost for the emergency repairs, or
(d) for emergency repairs the need for which arises primarily from the actions or neglect of the tenant or a guest of the tenant.
(5) A tenant must provide a landlord with a written account, with receipts for each expense incurred, for emergency repairs made under subsection (3).
(6) If a tenant complies with subsections (3) and (5), the tenant may, in addition to other remedies the tenant may have under this Act, withhold from rent that becomes due an amount equal to the reasonable expenses incurred by the tenant under subsection (3), less reimbursement received under subsection (4).
10.1 (1) If the court, on application, is satisfied that a landlord may contravene section 11, the court may
(a) authorize the tenant to change the locks and other means that give access to the residential premises, and
(b) order that, while the tenancy continues, the landlord must not change these locks or obtain the keys or other means that give access to the residential premises.
(2) For each change made under subsection (1) (a), the tenant must give to the landlord at the end of the tenancy the keys and other means that give access to the residential premises.
(3) If at the end of the tenancy the tenant does not give the landlord the keys and other means that give access, the reasonable cost to the landlord to replace the locks and other means that give access may be deducted from the security deposit
(a) by agreement between the landlord and tenant, or
(b) by order of an arbitrator.
5 Section 13 is amended
(a) by repealing subsection (1) (a), as enacted by section 4 of the Residential Tenancy Amendment Act, 1993, S.B.C. 1993, c. 68, and substituting the following paragraphs:
(a) a matter for which an application under section 9, 10 (1) and (4), 9.1 (1), 9.2 (4), 10.1, 11 (1) (f), 16, 20, 26 (3), 28, 30, 33 (3), 35, 36, 37, 45.77, 48.2 or 49.1 may be made to the court,
(a.1) a matter for which an application under section 21 (1), (3) or (4) may be made to the court, and , and
(b) by adding the following subsection:
(4.1) Section 38 (2) applies to an agreement under subsection (3).
6 Section 18 is amended
(a) by adding the following subsection:
(1.1) If an order to phase in an increase is made under section 18.3 (2) (c), the date referred to in subsection (1) (a) is the date the first phase of the increase takes effect. ,
(b) by repealing subsection (2) and substituting the following:
(2) A landlord must give the tenant written notice of a rent increase in the prescribed form at least 3 months before the date the rent increase is to be effective. ,
(c) by repealing subsection (5),
(d) in subsection (6) by striking out "This section does" and substituting "This section and sections 18.1 to 18.3 do", and
(e) by adding the following subsection:
(7) If the court or an arbitrator orders that no rent increase is justified, the landlord must not give notice to the tenant under subsection (2) for 12 months from the date of the notice under subsection (2) on which the order is based.
7 The following sections are added:
18.1 (1) A rent increase in any amount stated in the notice given under section 18 (2) takes effect unless the tenant
(a) disputes the increase by applying to the registrar under section 39 (1) within 30 days of receipt of the notice or within a longer period set under section 18.3 (2) (a), or
(b) gives notice under section 24 effective before the increase takes effect.
(2) Subject to section 18.3 (2) (b), the landlord must
(a) at least 7 days before the date of the arbitration hearing, give the tenant who makes the application described in subsection (1) (a) a statement in the prescribed form to justify a rent increase, and
(b) on the date of the arbitration hearing, give a copy of the statement to the arbitrator.
(3) If the landlord does not comply with subsection (2), the increase does not take effect and the landlord may not give a further notice of increase to the tenant within 12 months from the date of the notice to which subsection (1) (a) refers.
18.2 A landlord in preparing a statement in the prescribed form referred to in section 18.1 (2) must calculate, using the prescribed formula for each, the income, change in operating expenses, net income and portion of capital expenditure related to the residential property that is attributable to the residential premises for the 12 consecutive months ending on December 31 of the most recent calendar year and adjust and combine these calculations in the prescribed manner to ascertain the justifiable rent increase for the residential premises.
18.3 (1) Subject to subsections (2) and (5), an arbitrator must adjudicate a disputed rent increase by determining if each item for calculation under section 18.2 that the landlord included in the statement in the prescribed form under section 18.1 (2) is
(a) accurately described,
(b) properly attributable to the residential premises for the 12 consecutive months ending on December 31 of the most recent calendar year, and
(c) accurately calculated using the prescribed formula and, having determined under paragraphs (a) to (c) what the amount for each item should be, adjust and combine these amounts in the prescribed manner to ascertain and award the justifiable rent increase, if any, for the residential premises.
(2) An arbitrator adjudicating a disputed rent increase may, in addition to the other remedies available under this Act,
(a) extend the period within which application may be made under section 18.1 (1) (a),
(b) extend the period within which a statement justifying the rent increase may be given under section 18.1 (2) (a) or may be amended,
(c) if the rent increase is granted in whole or in part, order that the increase granted be phased in over time,
(d) make the coming into force of a rent increase conditional on compliance by the landlord with a previous or concurrent order of an arbitrator under this Act, and
(e) refuse or postpone a rent increase if the statement under section 18.1 (2) justifying the rent increase was false or misleading.
(3) If a tenant has paid a rent increase based on a statement under section 18.1 (2) that was false or misleading, an arbitrator on application may set aside the increase and order the landlord to reimburse the tenant for the amount of the increase that was paid.
(4) If an order is made under subsection (2) (e) or (3), the landlord may not give a further notice under section 18 (2) to the tenant until 12 months after the date of the notice under section 18 (2) for which the order under subsection (2) (e) or (3) was made.
(5) Subject to subsection (3), an arbitrator must not award a rent increase that is less than $0 or more than the total amount specified in the notice of rent increase given under section 18 (2).
8 Section 20 (1) is amended by striking out "for the purposes of section 18 (1)." and substituting "to which section 19 (2) applies."
9 Section 21 is repealed.
10 Section 26 is amended by adding the following subsection:
(4) Subsection (1) does not apply to rent withheld under section 9.2 (6).
11 Section 39 is amended by adding the following subsection:
(2.1) The registrar may waive the requirement under subsection (2) (c) if the registrar considers that the applicant cannot reasonably afford to pay the fee.
12 Section 40.1 is amended by adding the following subsections:
(3) If the matters to be determined in 2 or more arbitrations are related and it is reasonable that these matters be heard jointly, the registrar may order that the arbitrations be heard jointly.
(4) If an order is made under subsection (2) or (3), the registrar may order that only one fee prescribed under section 39 (2) (c) be paid in respect of the arbitrations heard jointly.
13 The following section is added:
40.2 In addition to other powers and duties under this Act, the registrar and the persons working under the registrar's supervision may
(a) give a landlord or a tenant information about rights and duties under this Act, or
(b) assist landlords and tenants to resolve any dispute that can be or has been referred to an arbitrator under this Act.
14 Section 42 is amended
(a) by repealing subsection (1) (d) and substituting the following:
(d) must give the decision in writing and with reasons, , and
(b) by adding the following subsection:
(1.1) On the request of a party to an arbitration or on the arbitrator's initiative, the arbitrator may amend the application in order to correct a mistake, error or omission.
15 Section 44 is amended
(a) by repealing subsection (1) and substituting the following:
(1) The decision or order of an arbitrator must be given without delay and, in any event,
(a) within 10 days after an award under section 18.3, and
(b) within 30 days after the hearing for a matter not described by paragraph (a). , and
(b) by repealing subsection (1.1) and substituting the following:
(1.1) Despite subsection (1), an award under section 18.3 must be made within a total of 90 days from the giving of notice under section 18 (2) plus the number of days of extension granted under section 18.3 (2) (a) or (b).
16 The following sections are added:
48.1 (1) A landlord must not discriminate against a tenant or prospective tenant based on a lawful source of income.
(2) Contravention of subsection (1) is discrimination under section 5 of the Human Rights Act and a person who alleges having being discriminated against on this basis may file a complaint with particulars under section 11 of the Human Rights Act.
48.2 (1) A tenant may apply to the court for an order that the landlord must return personal property that has been seized contrary to section 48 (2).
(2) If the current value of the personal property is greater than $10 000, section 13 (1) does not apply for the purposes of subsection (1).
17 The following section is added:
50.2 (1) A document required to be served under sections 18 and 18.1 must be served as ordered by an arbitrator or the court or, if no order respecting service is made, must be served
(a) on the landlord by
(i) serving it personally on the landlord or the landlord's agent, or
(ii) sending it by registered mail to the landlord or the landlord's agent, or
(b) on the tenant by
(i) serving it personally on the tenant, or
(ii) sending it by registered mail to the tenant at the address where the tenant resides.
(2) Section 51 (4) (b) applies to service by registered mail under this section.
18 Section 52 is amended
(a) in subsection (2) by striking out "$2 000" and substituting "$5 000", and
(b) by adding the following subsections:
(2.1) A person who coerces, threatens, intimidates or harasses a tenant to deter the tenant from making an application under this Act, or in retaliation for seeking or obtaining a remedy under this Act, commits an offence and is liable, on conviction, to a fine of not more than $5 000.
(2.2) A person who gives false or misleading information in an arbitration proceeding under this Act commits an offence and is liable, on conviction, to a fine of not more than $5 000.
(2.3) A tenant or occupant who wilfully causes damage to the residential property commits an offence and is liable, on conviction, to a fine of not more than $5 000.
19 Section 53 is amended by adding the following subsection:
(4) The Lieutenant Governor in Council may make regulations
(a) prescribing the form of notice for use under section 18 (2),
(b) prescribing the form of statement for use under section 18.1 (2),
(c) defining "income", "operating expenses", "net income" and "capital expenditure" as used for the purposes of sections 18.2 and 18.3 (1),
(d) prescribing for each of "income", "change in operating expenses", "net income" and "portion of capital expenditure", the formula for calculation under sections 18.2 and 18.3 (1), and
(e) prescribing the manner to adjust and combine "income", "change in operating expenses", "net income" and "portion of capital expenditure" to calculate the justifiable rent increase under sections 18.2 and 18.3 (1).
20 The following section is added:
54.1 No application to the court or for designation of an arbitrator under this Act may be brought after 2 years from the end of the tenancy to which the application relates.
21 Section 21 of the Residential Tenancy Amendment Act, 1993, S.B.C. 1993, c. 68, is amended in respect of section 45.3 (1) of the Residential Tenancy Act by striking out "after the date the decision or order was made." and substituting "after a copy of the decision or order is received by the party."
22 Section 24 is repealed.
23 Despite the Residential Tenancy Act, if notice under section 18 (2) of the Residential Tenancy Act is or was received by a tenant during the period from December 14, 1993 to the date sections 6 and 7 of this Act come into force, the tenant may apply to the registrar within 90 days of sections 6 and 7 of this Act coming into force to dispute the rent increase under section 18 (2) of the Residential Tenancy Act.
24 (1) Sections 1 to 20 and 23 of this Act come into force by regulation of the Lieutenant Governor in Council.
(2) On coming into force by regulation, section 2 is retroactive to the extent necessary to give it effect on and after June 13, 1994.
SECTION 1: enacts section 1.1 of the Act to preserve in the context of tenancy agreements the common law rule that an infant can contract for necessities despite legal incapacity for other purposes. Section 16.2 of the Infants Act makes the enactment of the new section 1.1 necessary to preserve the rule in this context.
SECTION 2: strengthens section 2 (3) of the Act which is intended to prevent a landlord from entering into a residential lease for more than 20 years without prior municipal approval.
SECTION 3: amends section 9 of the Act to permit an arbitrator to order that if a landlord fails to comply with a repair order, and the repair cost would be less than one month's rent, the tenant can have the repairs done and deduct the cost of those repairs from the next month's rent.
SECTION 4: adds sections 9.1, 9.2 and 10.1 to the Act.
SECTION 5: expands section 13 of the Act to allow arbitration of the following additional matters:
A new subsection (4.1) is added to section 13 of the Act making any provision of an agreement to opt out of arbitration unenforceable if the inclusion of this provision in the agreement is not agreed to freely.
SECTION 6: amends section 18 of the Act as a consequence of the amendments made by section 7 of this Bill. Further, section 18 (2) of the Act is reenacted to require a notice of rent increase to be served on the tenant and subsection (7) is added to section 18 of the Act to bar for 12 months the giving of a further notice under subsection (2) if, in response to a notice under subsection (2), the court or an arbitrator orders that no rent increase is justified.
SECTION 7: adds 3 new sections to the Act.
The section also provides that an increase that may be justified at arbitration cannot be more than requested by the landlord in the initial notice of rent increase and cannot be less than $0.
SECTION 8: amends section 20 (1) of the Act to clarify that a hidden rent increase is unlawful and may be recovered by the tenant under section 19 (2) of the Act.
SECTION 9: repeals section 21 of the Act. Rent increases given with the intent of evicting tenants will be dealt with under the new section 18.1 (1) of the Act.
SECTION 10: amends section 26 of the Act to prevent a landlord from evicting a tenant for nonpayment of rent if the tenant withheld the rent as reimbursement for the cost of carrying out emergency repairs as permitted under the new section 9.2 of the Act.
SECTION 11: amends section 39 to allow the registrar to waive the requirement that the prescribed filing fee be paid if the applicant cannot reasonably afford to pay the fee.
SECTION 12: amends section 40.1 of the Act to permit the registrar to allow multiple disputes concerning the same landlord and tenant or similar disputes concerning the same landlord and multiple tenants to be joined and heard at the same arbitration hearing with only one arbitration fee to be payable.
SECTION 13: adds a new section 40.2 to the Act describing the role of ministry officials to provide information and assist parties to a dispute.
SECTION 14: amends section 42 of the Act to require arbitrators to issue written reasons for all their decisions and to allow an arbitrator to correct a mistake, error or omission in an application for arbitration of a dispute.
SECTION 15: amends section 44 of the Act to require arbitrators to give their decisions on rent increase disputes within 10 days of the hearings and, with limited exceptions, 90 days of the giving of notice under section 18 (2). A 30 day time frame will continue to apply to other disputes under the Act.
SECTION 16: adds 2 sections to the Act.
SECTION 17: adds a new section 50.2 that requires documents given to initiate or dispute a rent increase be served personally or by registered mail. This parallels the service requirements for other monetary disputes under the Act.
SECTION 18: amends section 52 of the Act, the section specifying the contraventions of the Act that are summary offences. The maximum fine is increased from $2 000 to $5 000 and the following 3 new offences are created:
SECTION 19: amends section 53 of the Act to allow terms and formula to be prescribed for calculation under sections 18.1 to 18.3 of the Act.
SECTION 20: adds to the Act a new section 54.1 that limits the time period within which to commence a proceeding under the Act to 2 years from the end of the tenancy. At the present time, the Limitation Act sets a 2 year limitation for damages and 6 year limitation for debt.
SECTION 21: amends section 21 of the Residential Tenancy Amendment Act, 1993, a provision that has not yet been brought into force. Section 21 of the Bill comes into force on Royal Assent to the Bill and specifies that the time limit for application by a party for review of an arbitrator's decision runs from the date the decision is received by the party.
SECTION 22: repeals section 24 of the Residential Tenancy Amendment Act, 1993, as a consequence of section 16 of this Bill.
SECTION 23: provides that tenants who have received a notice of rent increase since December 14, 1993 can dispute that rent increase by applying for arbitration within 90 days after the Bill comes into force.
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