Chapter 6 Flashcards
Lease
An instrument granting exclusive possession of land to another for a specified term, usually at a rent.
Licence
A privilege to enter onto premises for a certain purpose without conferring any title, interest, or estate in such property.
Difference between Lease and Licence
A lease creates an interest in land and the relationship of landlord and tenant, while a licence only grants a contractual privilege without creating such an interest or relationship.
Commercial Tenancy
Governed mostly by common law and the terms of the lease, and to a lesser extent by the Commercial Tenancy Act. Examples include leases of factories, warehouses, stores, and offices.
Residential Tenancy
Governed almost completely by statute law, particularly the Residential Tenancy Act. It applies to agreements for possession of rental units, including caretakers’ premises and residential premises provided to employees.
Tenancy Agreement
The contract between the landlord and tenant, pertaining to the letting of residential premises.
Fixed Term Tenancy
A tenancy with a predetermined expiry date. In commercial tenancies, it ends automatically at the end of the term. In residential tenancies, it may continue as a periodic tenancy unless otherwise agreed.
Periodic Tenancy
A tenancy that automatically renews itself on the last day of the term for a further term of the same length until it is terminated by either party with proper notice.
Termination of Tenancy
Different rules apply for commercial and residential tenancies. Commercial tenancies can be terminated with reasonable notice, while residential tenancies require specific reasons and proper notice according to the Residential Tenancy Act.
Security of Tenure
In residential tenancies, security of tenure means that a tenancy cannot be terminated except for specific reasons listed in the Residential Tenancy Act.
Notice of End of Tenancy for Non-Payment of Rent
In residential tenancies, if rent is unpaid, a landlord can give a notice to end the tenancy effective 10 days after the tenant receives the notice. The notice can be canceled if the tenant pays the overdue rent within 5 days.
Notice of End of Tenancy for Cause
Under the Residential Tenancy Act, a landlord can give notice for various causes such as repeated late payment of rent, significant disturbance, or illegal activities.
Quiet Enjoyment
The right of a tenant to enjoy their rental premises without significant interference from the landlord or other parties. This includes reasonable privacy and freedom from unreasonable disturbance.
Rent Increase Notice
In residential tenancies, a rent increase notice must be given at least three months before it becomes effective. The increase must comply with limits set by the Residential Tenancy Act.
Security Deposit
A sum of money paid to the landlord as collateral in case the tenant damages the premises or violates a term of the tenancy agreement. In residential tenancies, it may not be more than one-half of one month’s rent.
Distress
A remedy available to commercial landlords allowing them to seize and sell a tenant’s personal property to recover arrears of rent. This remedy is abolished in residential tenancies.
Mitigation
The obligation of a party suffering a loss to take reasonable action to minimize the amount of loss suffered. Both commercial and residential landlords and tenants have a duty to mitigate damages resulting from breaches.
Assignment
The transfer of a tenant’s entire interest in the leased property to another party. In commercial leases, this is allowed unless expressly prohibited. In residential tenancies, it requires the landlord’s consent.
Subletting
Leasing a portion of or the entire premises to a third party for a period less than the remaining term of the original lease. Allowed in commercial leases unless expressly prohibited and requires landlord’s consent in residential tenancies.
Landlord’s Right to Enter
In residential tenancies, landlords must give at least 24 hours’ written notice for entry and can only enter for reasonable purposes between 8 a.m. and 9 p.m. unless otherwise agreed by the tenant.
Landlord’s Duty to Repair
In residential tenancies, landlords must provide and maintain the premises in a state of decoration and repair that complies with health, safety, and housing standards required by law.
Landlord’s Right to End Tenancy for Own Use
In residential tenancies, landlords can end a tenancy if they or a close family member intend to occupy the rental unit, with a two-month notice period.
Landlord’s Right to End Tenancy for Renovations
Landlords can end a tenancy to carry out significant renovations or repairs, but must apply for an order from the Residential Tenancy Branch and provide at least four months’ notice.
Tenant’s Right to Dispute Notice
Tenants can apply to the Residential Tenancy Branch to dispute a notice of end of tenancy within a specified period depending on the reason for the notice.
Implied Covenant of Quiet Enjoyment
A guarantee to the tenant that they will be able to possess and enjoy the premises without significant interference from the landlord or other parties.
Form and Content of Commercial Lease
A commercial lease should include essential terms such as the names of the parties, a description of the premises, the commencement and duration of the term, the rent, and any other material terms.
Form and Content of Residential Tenancy Agreement
Must be in writing, signed, and dated by both parties, and include terms specified by the Residential Tenancy Regulation, such as the legal names of the landlord and tenant, the address of the rental unit, and the amount of rent.
Rent Review
In commercial leases, rent is typically reviewed at intervals specified in the lease agreement. In residential tenancies, rent increases are regulated by the Residential Tenancy Act and are limited to the Consumer Price Index (CPI).
Security Deposit Interest
In residential tenancies, landlords must pay interest on security deposits and pet damage deposits, compounded annually. The rate is determined by the Residential Tenancy Branch.
Right to Assign or Sublet in Commercial Tenancies
Allowed unless the lease expressly prohibits it. Courts strictly interpret any express prohibition against subletting or assigning.
Right to Assign or Sublet in Residential Tenancies
Requires the landlord’s written consent, which cannot be unreasonably withheld for fixed-term tenancies of six months or more.
Security Deposit Return
In residential tenancies, the landlord must return the security deposit and interest within 15 days after the end of the tenancy, or apply for dispute resolution.
Tenant’s Duty to Repair
Tenants must maintain reasonable health, cleanliness, and sanitary standards throughout the rental unit, and repair damage caused by themselves or their guests, excluding reasonable wear and tear.
Landlord’s Obligation for Emergency Repairs
Landlords must provide emergency contact information and make necessary repairs promptly. If the landlord fails to do so, the tenant may arrange for the repairs and deduct the cost from the rent.
Use and Occupation Compensation
In tenancies at will, if no rent is agreed upon, the landlord is entitled to compensation for the use and occupation of the premises.
Commercial Tenancy Rent Arrears
The landlord can bring a court action, re-enter the premises, or distrain (seize and sell) the tenant’s personal property to recover rent arrears.
Residential Tenancy Rent Arrears
The landlord can give a notice of end of tenancy for non-payment of rent, which is canceled if the tenant pays the overdue rent within 5 days.
Cannabis and Tenancies
The Cannabis Control and Licensing Act amends the Residential Tenancy Act to include terms prohibiting smoking and growing cannabis in tenancies unless expressly permitted in the agreement.
Legal Prohibition on Distress
In residential tenancies, the remedy of distress is abolished, meaning landlords cannot seize and sell a tenant’s personal property to recover arrears of rent.
Commercial Tenancy - Mitigation of Damages
Landlords are not obligated to mitigate damages if a tenant abandons the premises, but the Supreme Court of Canada allows landlords to claim damages for loss of benefit of the lease.
Interesse Termini Doctrine
In commercial tenancies, no estate in land passes until the tenant takes possession. The tenant can sue for damages but not for specific performance if refused possession at the start of the lease.
Caveat Lessee Doctrine
In commercial tenancies, the tenant must ensure the premises are suitable for their use, as the landlord has no obligation to repair unfurnished premises.
Residential Tenancy Repair Obligations
Landlords must maintain the premises in a state of decoration and repair that complies with health, safety, and housing standards, regardless of the tenant’s knowledge of disrepair at the start of the tenancy.
Surrender by Act of Parties
Occurs when a tenant offers to terminate the lease early and the landlord accepts, ending the lease before its natural expiration.
Surrender by Operation of Law
Occurs when the landlord re-enters and attempts to re-rent the premises after the tenant abandons them, without indicating it is done on the tenant’s account.
Commercial Lease - Rent
In commercial leases, rent can be paid in goods or services, and is due on a specific day as per the lease agreement. If not paid, it is in arrears after midnight on that day.
Residential Lease - Rent
Rent increases in residential leases are regulated by the Residential Tenancy Act, limited to the CPI, and require at least three months’ notice before taking effect.
Substantial Interference
If a landlord’s actions significantly interfere with the tenant’s use and enjoyment of the premises, it can be considered a breach of the covenant of quiet enjoyment.
Derogation from Grant
The landlord cannot deliberately prejudice any rights granted to the tenant under the lease.
Dispute Resolution for Residential Tenancies
Most disputes are resolved through arbitration at the Residential Tenancy Branch, which has the authority to make binding decisions.
Manufactured Home Park Tenancies
Governed by the Manufactured Home Park Tenancy Act (MHPTA), which provides protections similar to those under the Residential Tenancy Act.
Rent Control in Residential Tenancies
Landlords can increase rent only once every 12 months and only up to the maximum allowable amount based on the Consumer Price Index (CPI).
