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After the Flood for Landlords and Tenants in Alberta

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With help from some great people, we’ve developed a resource for landlords and tenants who have been devastated by the floods in Alberta. You can click the picture below to read the info sheet, and you can click here to listen to an audio Q & A version. Thanks to Marc Affeld at CJSW 90.9 FM, Calgary’s Community Radio station, for developing the recording and making it available.

 So many people in Alberta have been involved with the floods; please pass this information along to those who need it.

The resource answers common questions, like:

  • What if the rental property has been damaged by a flood?
  • Does the tenant have to keep paying the rent after a flood?
  • Can the tenant move out because of the flood?
  • Can the landlord use the security deposit to pay for damages?
  • Who pays for stuff that is damaged?
  • What if the tenant thinks the property isn’t safe or healthy to live in?
  • Tips to help
  • Where can tenants and landlords get more help?

AfterTheFloodPromoImage

Law Day in Alberta

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Law Day logo

Do you want to know how our justice system works in Alberta?
Do you want to take a tour of your courthouse?
Get answers to your legal questions?
Watch a mock trial?

Law Day is family friendly, so bring the kids and learn about the law!

April 13, 2013 in Calgary, Edmonton, Lethbridge and Red Deer.

April 17, 2013 in Drumheller.

April 19, 2013 in Wetaskiwin.

April 27, 2013 in Medicine Hat.

May 25, 2013 in Fort McMurray.

Ask A Lawyer

Who pays for heat when utilities are included in the rent?

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Utilities, including heat, are included in my rent. Yesterday, my landlord gave me a copy of the heating bill and said that I had to pay for the heat from now on, because the bill was too expensive. Do I have to pay?
No, you don’t have to pay the bill. The lease agreement that you have with your landlord is a contract, and both of you are bound by the terms of the contract. Just like you could not decide to pay your landlord $50 less a month in rent just because you felt like paying less, your landlord can’t tell you to pay more a month. When your landlord agreed to pay the utilities, he accepted the risk that utility costs might increase. The landlord, in order to get more money, could increase the rent. As noted in Service Alberta’s RTA Handbook:

Landlords cannot require tenants to pay utilities after a tenancy has started if the residential tenancy agreement:
• Contains express wording that the utilities are included in the rent,
• Is silent on who is responsible for utilities, but the landlord has always taken a portion of the rent to pay the utilities.
Landlords and tenants can mutually agree that utilities will no longer be included in the rent.
To recover higher utility costs, landlords must give a legal written notice of a rent increase.

But what if your landlord sends you a bill for the heat anyway? You may want to consider writing your landlord a letter, setting out the reasons why you are not going to pay the utility bill. It is a good idea to have things in writing, just in case you end up in a dispute with your landlord. If you are refusing to pay because a term of the lease states that the utilities are included, then attach a copy of the lease with that term highlighted. You could even attach the RTA Handbook section that we already talked about  to the letter, so that the landlord can then contact Service Alberta for more information.
If the landlord decides to increase the rent to cover the higher than expected utility costs, then the landlord must follow the rules regarding rent increases. You can read our Rent Increases Tipsheet to find out more information.

Do you have to tell your landlord if you're going on vacation?

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You’ve been dreaming of that perfect vacation for months and it’s finally here: you can practically hear the surf hitting the shore and feel the sun warming your skin while the warm breeze lightly sifts through your hair. Then there’s a knock on your door, interrupting your holiday daydreams and bringing you back to the winter wonderland that is Alberta. Your landlord is at the door, wanting to know if the rumours she’s heard about you leaving tomorrow on a three week vacation are true. If you are leaving for that long, she tells you, then you were supposed to let her know in advance and the rent has to be paid now, instead of on the first of the month, because she wants to make sure that she has the money before you go out of town.

Does the landlord have the right to know when a tenant is going on vacation?

Can the landlord demand that rent be paid in advance of a tenant going on vacation?

Your landlord may have the right to ask for details regarding your vacation plans. The landlord would have this right if there is a term in the lease that provides that the tenant must inform the landlord of absences from the property. The reason that some landlords include this provision within the lease is usually for insurance purposes. Sometimes a landlord’s insurance policy will state that if the rental property is vacant or uninhabited for a period of time, then the insurance will lapse and the landlord would no longer have valid insurance on the property.

You may benefit from letting your landlord know of your absence too. If your landlord knows that you will be away, then the landlord may be willing to drive by the property to check on it, or may be willing to help you with sidewalk cleaning in the winter. Also, it’s a good idea to provide the landlord will the contact information for the person you have checking on the place or house-sitting for you, if you have made those arrangements with someone else. If there is an emergency, the landlord may need to get in touch with you or with the person you designate. If you do not have anyone else checking on the place for you, then you should make sure that the landlord has a reliable way to get in touch with you (and remember, you probably did not provide your landlord with your cell phone number when you moved in).

The landlord cannot demand that rent be paid in advance of the date that the rent is due. The rent is due on a specific day and at a specific time, and the landlord cannot unilaterally change that term without the tenant’s consent. Make sure, though, that you have a reliable way to pay your rent while you are gone. If you pay by cheque, how are you going to get the cheque to the landlord if you’re out of town? Do you have a reliable friend that could deliver the cheque for you? If you pay by email money transfer, do you know that you have a reliable and secure internet connection in the place you are visiting?

You’re probably going to have to clean a foot of snow off your car in the airport parking lot when you get back; you don’t need to be greeted with an eviction notice on your door too.

Tenant Rights When the Landlord Sells the Rental Property

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There are few situations that bring home the somewhat tenuous nature of renting more than when the landlord puts the rental property up for sale. Does the tenant have any rights to object to showings? Does the landlord have to even tell the tenant that the place is being sold? Can the landlord end the lease early?

You can find the answers to these questions and more by going to our new publication What You Need to Know if the Place You are Renting is Sold.

 
FAQ:  Does a landlord have to tell tenants if the property is sold?

Resources About Hoarding

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I get the occasional question about tenants who are hoarders, and what rights the landlord has, and doesn’t have, to address this issue. The Residential Tenancies Act sets out the obligations that a tenant has, and one of them is to keep the premises reasonably clean. If the tenant is a hoarder, does that mean that the tenant has automatically breached the Residential Tenancies Act and can be evicted? The Access Review blog has tackled this question, and Sarah Eadie has wrote an informative blog post about human rights and accommodations.

Eviction Notice (Notice of Termination of Tenancy for Substantial Breach)

Global TV Edmonton has also been covering the story of a family who is dealing with a mother who hoards. On their website, they have highlighted some of the services available in the province, and in Edmonton, to help.

Can a landlord charge a tenant for renovations?

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I just got a question from a tenant. The landlord replaced all the windows in the rental property, and then gave the tenant a bill for half the cost of the renovations. Seriously.
The tenant doesn’t have to pay the landlord the money. There are some costs that are simply the costs of doing business, and maintaining the property by replacing windows is just one of many costs this landlord is going to run into.\

Landlord and Tenant Responsibilities

If the tenant had broken a window because, I don’t know, there was an intense game of indoor baseball going on, then yes, for sure, the landlord could charge the tenant for the repair and replacement of the window. Or the landlord could charge the tenant when the tenant moved, and keep some of the security deposit to cover the cost.
The Residential Tenancies Act doesn’t actually set out who is responsible for repairs and that’s why sometimes, there is confusion about what repairs the landlord can charge the tenant for, and what repairs the landlord can’t charge for. The common sense approach is that any “big” repairs are the landlord’s responsibility and “teeny tiny” repairs are the tenant’s responsibility. So, while the tenant can change the lightbulb, it’s the landlord that installs the new light fixtures when the old ones break.
There is also the Minimum Housing and Health Standards that can help us to decide who should pay for repairs. One of the landlord’s responsibilities is to make sure that the rental property meets these standards. The standards set out that the windows must be in good repair, free of cracks and weatherproof. So, if the windows in the property do not meet this standard, then it’s the landlord’s job to make sure that the windows get repaired or replaced. If the property is not being maintained, then the tenant can call Environmental Public Health and talk to an inspector about the problem that they’re having with the rental.
What should the tenant do? The tenant should tell the landlord, in writing, that they are not going to pay for the windows. The tenant could put in reasons why they aren’t paying (and while it might be tempting to write that you aren’t paying because the charge is ridiculous, it’s probably better to refrain). Hopefully the landlord will just go away at this point. If the landlord still insists on being paid, then there are three ways the landlord may react.

  • The landlord could sue the tenant for half of the cost of the renovation. The landlord is going to have to convince a judge that the tenant should have to pay for the windows, which seems unlikely.
  • The landlord could keep the security deposit when the tenant moves out. If the tenant doesn’t agree with a charge made against the security deposit, then the tenant can bring an application in Provincial Court or through the Residential Tenancy Dispute Resolution Service for return of the security deposit.
  • The landlord could pass the bill to a collection agency. If the tenant is contacted by a collection agency, then the tenant can inform the agency in writing that the tenant is disputing the debt, and ask that the landlord prove the debt in court. If the tenant does that, then the collection agency cannot contact the tenant any longer. Service Alberta has a tipsheet about dealing with collection agencies.

In the meantime, the tenant might want to think about moving. If the landlord thinks that the tenant should pay for the windows, what else does he think the tenant should pay for?

Even More Stuff I Wish I'd Known Yesterday

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After I wrote the blog post “Stuff I Wish I’d Known Yesterday,” which was about writing demand letters, I received a few questions. A lot of the questions were the same, so before I find myself repeating “that is not what I meant at all. That is not it, at all” I thought a follow up post would be appropriate. (Free bookmarks to anyone who can identify the quote without using google.)
Let’s go back and think about when you may want to use a demand letter: you did something with someone else, something bad happened, and now you want the other party to do something to fix it. That’s it. If we were to go back to the example of the debt, then basically the situation is this: you loaned money, the other guy didn’t pay you back, and now you want him to pay you by a certain date.
Problem 1
You should not send a demand letter as a first step to getting your money back. Try to talk with the other party first and see if you can come up with an agreement. Sometimes it is true that you can catch more flies with honey than you can with vinegar. A demand letter isn’t a first resort; it’s something you use after you’ve tried being a nice and haven’t gotten anywhere.
Problem 2
Don’t include details that are not important. This is not a confessional; stick to the facts that are relevant, and leave out the stuff that isn’t. What usually matters is that you loaned $500, not that you gave all that money in $20 bills.
Problem 3
Don’t admit things in the letter. Confession may be good for the soul, but it’s not so good when included in a demand letter. Sometimes, a demand letter can be the first step in going to court. That means that you have to be careful what details you include in the letter. Basically, by writing a demand letter, you are telling the other side “look, this is what I want you to do by this date.” If the other party doesn’t think that they should have to do what you want, then it’s up to them to prove why they shouldn’t. Don’t help them by writing down everything single thing you’ve ever done wrong; let them do their own homework.
Problem 4
That being said, don’t lie. Don’t stretch the truth, don’t mix up details, don’t embellish. Stick to the truth and the relevant facts.
Problem 5
Keep the letter short and sweet. If your demand letter is five pages long, you need to edit. Unless you’re a multimillion dollar corporation, your situation should be able to be summed up in a page or less.
Problem 6
Before you send the letter, think about the consequences. If you are sending the letter to someone that you have an ongoing relationship with (for example, someone from your wife or husband’s family), you have to consider what is going to happen after you put the letter in the mail. Are the consequences worth it for you? What if you are only owed a small amount? Is it worth your time to write it and the money to pay for registered mail or delivery? Before you send the letter, think about the worst case scenario and prepare yourself for that to happen. I suppose you could also prepare for the best case scenario (getting the money right away), but in my experience, and to throw around another cliché: hope for the best and prepare for the worst.
Until next time, enjoy writing your concise, accurate and succinct demand letters. Well, hopefully you don’t have to write more than one (and if you do, stop lending people money).

A "Common Law" Query

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Ryan posted about the new Adult Interdependent Relationships publication and we received this question via twitter:

How does one go about signing an AIR agreement? Lawyer?

First of all, how cool is it that we received a question via twitter?? Pretty cool! Second of all, I failed horribly when I tried to answer with 140 characters or less (the annoying lawyer in me took over and wouldn’t stop typing), so we decided to put a post up.
Before you sign an adult interdependent partnership (“AIP”) agreement or other contract, you’ve got to think about why you want to sign that document in the first place.

  1. Do you just want to make sure that you and your partner are “official” AIPs?
  2. Do you want to be an AIP of someone you’re related to by blood?
  3. Do you want to set out what will happen to the house that you bought with your partner in the event that you break up? Do you want to decide what will happen to the cabin that you bought together? What about cars? What about debt that you might collect during the course of the relationship?

If you answered 1 or 2, then the simple answer is you can go to the Adult Interdependent Partner Agreement Regulation. This regulation sets out the exact form that an AIP agreement must take. Use the exact wording that is used in the reg, sign in front of witnesses (witnesses are not required by law, but it’s a really good idea to have them), and you’re good to go. Congratulations, you’re now an AIP. Now go read the Adult Interdependent Relationships booklet to find out what responsibilities and rights you just acquired.
The big “BUT” that you’ve got to realize is that the AIP agreement that you just signed does nothing but make you an AIP. It is NOT a pre-nup or co-habitation agreement. It does not give you any property rights if your relationship ends.
If you answered 3 (or read the paragraphs above and had an epiphany), and you want to protect yourself in the event of a breakup, then you need a different kind of agreement. This type of agreement is often called a co-habitation agreement. There are a few common reasons for entering into a co-hab agreement.

  • Property
    For married people, there is a presumption that assets and property will be split 50/50 upon marriage breakdown. For AIPs, there is no presumption of equal division. This means that if Bill owned a house and is the only person on title, and Sharon moved in with him and they lived together for 25 years and then ended the relationship, Sharon would not be automatically entitled to receive any interest in the house. By entering into a co-hab agreement, you and your partner can set out what will happen to the house, cars, cabin, investments, etc. if the relationship ends.

 

  • Income
    What if one partner earns triple what the other partner does? What if one partner does not work during the relationship? A co-hab agreement can set out what each party expects to happen regarding partner support if the relationship ends.

What should you do if you want a co-hab agreement? You may want to talk to a lawyer. The lawyer can explain to you what is often included in the co-hab agreement, why those terms are included, and draft it for you. While there is no requirement in Alberta for independent legal advice when entering into this kind of agreement, it is a really, really good idea for both partners to have met with separate lawyers to sign the agreement. If you do end up in court, it is more likely that an agreement will be upheld if both parties met with their own lawyers.
If you are concerned about the cost of the co-hab agreement, you can call around to different firms and ask if they have a standard quote. Also, keep in mind that in the long term, having an enforceable co-hab agreement could mean that you save a substantial amount of money.
Before you sign any document with your partner, you should have a frank and candid conversation about what you both expect to happen if the relationship ends. Not all relationships end, and not all people are unreasonable, but it’s best to be prepared. It’s the same as keeping a spare tire in the trunk: you really hope that your car will be able to get you where you want to go, but you’re ready if a tire blows.

Illegal Activities in a Rental Property

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Marijuana jointI went out of town and a friend was staying at my place to look after my dog. My landlord caught him smoking pot on the balcony, and now the landlord is trying to evict me. Can my landlord do that?
Probably not. Under the Residential Tenancies Act (RTA), if the tenant commits any illegal acts or carries on an illegal trade in the property, then the tenant has committed a substantial breach of the tenancy agreement, and can be evicted by the landlord. But, the issue in your case is that you were not the one who was committing an illegal act; your friend was.
Generally speaking, if you did not have knowledge of or control over the illegal acts, then your landlord cannot evict you for them. In the 2007 case Fairmont Hotels Inc. v. Zwir, from the Provincial Court of Alberta, the landlord tried to evict the tenant for a similar reason. The tenant’s cousin had come to stay with her, and while she was in another apartment, the cousin smoked a joint in her place and got caught by a security guard. The landlord tried to evict her for committing an illegal act, and the Judge wrote at paragraphs 16 and 17 that:

The illegal act here is a criminal act and under criminal law, in these circumstances where the tenant neither knew nor authorized the illegal activity, it is not likely the tenant did anything illegal.

Accordingly, I am not convinced that the tenant, Ms. Zwir, has breached Section 21 of the Act and accordingly I am not convinced that the illegal act here puts Ms. Zwir in substantial breach so as to justify summarily terminating her tenancy.

In your case, ignorance is bliss!
So what to do if your landlord serves you with a 14 day notice terminating your tenancy?
If you don’t want to leave, then you can serve your landlord with a notice of objection. The notice of objection should state the reasons why you do not agree with the termination notice. You must serve this notice on the landlord personally, or by registered or certified mail, before the termination day in the landlord’s notice. If you meet these requirements, then the landlord’s notice terminating your tenancy is ineffective and your tenancy stays in place. If your landlord still wants to evict you, then he has to make an application to terminate your tenancy.
Remember that if you are going to object to the notice, you need to follow the rules and serve the landlord properly and on time.
If your landlord does make an application to terminate your tenancy, then your landlord will serve you with more papers, and you will have a chance to respond to the application and tell your version of events.
And next time you’re out of town, you might want to give your dog a vacation at one of those fancy pet hotels instead.
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