Illegal and Unconscionable Terms
Changing Terms in a Tenancy Agreement
At the start of a tenancy, the landlord may present the tenant with the Residential Tenancy Branch’s (RTB) standard agreement, or they may prefer to use their own custom agreement. If they choose to use their own agreement, it must contain all the standard terms required by the Residential Tenancy Act and Residential Tenancy Regulation – just like the RTB agreement.
Carefully review your tenancy agreement before signing it. If English is not your first language, or you are uncertain about something in the agreement, consider showing it to a friend or family member for clarification and advice.
Once you have signed the tenancy agreement, your landlord must provide you with a copy within 21 days. Keep your copy in a safe place and take photos so it can be backed up digitally. If your landlord ever tries to change the terms of your tenancy, it may be difficult to prove what was originally agreed to without a copy of the agreement. If your landlord refuses to provide you with a copy of your agreement, use TRAC’s template letter, Copy of Tenancy Agreement. Keep your copy in a safe place and take photos to back it up digitally.
Although the RTA requires landlords to prepare tenancy agreements in writing, it also says that a tenancy agreement can be “oral, express or implied”. This means that you and your landlord do not have to sign an agreement to establish a legal tenancy in BC. While verbal tenancies are covered by the RTA, it is still safest to have a written agreement with your landlord.
According to section 13 of the Residential Tenancy Act (RTA), every tenancy agreement is supposed to include:
- the standard terms, listed in the Schedule of the Residential Tenancy Regulation;
- the names of the tenant and landlord;
- the address of the rental unit;
- the date the agreement is entered into;
- the address and telephone number of the landlord or landlord’s agent;
- the date the tenancy will start;
- the tenancy period (most commonly monthly);
- if a fixed term tenancy, the date the terms ends;
- if a fixed term tenancy with a “vacate clause” (only allowed in limited circumstances), the date the tenant must vacate;
- the amount of rent;
- if the rent varies depending on the number of occupants and, if so, by how much;
- when rent is due and how the tenant may pay it;
- the services and facilities that are included in the rent; and
- the amount of security deposit or pet damage deposit required, and the date it was or must be paid.
The Residential Tenancy Act allows for service of documents by email, but only if the tenant and landlord have both agreed to that. The RTB’s standard tenancy agreement does not contain an “email” field, as it only asks about phone numbers and addresses. If you and your landlord would like the option to give notices and forms to each other by email, make sure to clearly list your email addresses on your tenancy agreement.
Illegal and Unconscionable Terms
Section 5 of the Residential Tenancy Act (RTA) prevents landlords and tenants from avoiding the RTA. All BC tenants are guaranteed certain legal rights by law, regardless of what their tenancy agreement says. This means that any term of an agreement that attempts to avoid or “contract out” of the RTA is unenforceable. For example, it is illegal for a landlord to include a term in an agreement that allows them to inspect a tenant’s home at any time without proper notice. Section 29 of the RTA clearly states that landlords must give at least 24 hours notice in writing, and that rule cannot be avoided. If your landlord tries to unfairly limit your rights in this way, you can insist they provide you with the basic protections outlined in the RTA.
Section 6 of the RTA prevents landlords from including “unconscionable” terms in tenancy agreements. According to section 3 of the RTR and RTB Policy Guideline 8, an unconscionable term is as a term that is oppressive or grossly unfair to one party. For example, RTB Policy Guideline 1 says that it is likely unconscionable for a landlord to include a term in an agreement that requires a tenant to put utilities for another unit in their name.
Types of Tenancy Agreements
A periodic tenancy agreement – often referred to as a “month-to-month” tenancy agreement – does not have a pre-determined date on which it ends. The tenancy continues until the tenant gives proper notice to move out, or until the landlord legally ends the tenancy. Periodic tenancies can be established on a weekly, monthly, or other periodic basis, but month-to-month agreements are by far the most common type. Throughout this website, the terms “periodic tenancy” and “month-to-month tenancy” will be used interchangeably.
- More flexibility: If your life takes an unexpected turn that requires you to move, you are only required to provide one-month notice in writing to end your tenancy.
- “Landlord’s Use” Evictions: If your landlord or a person who purchases the property from them wants to occupy your rental unit, allow a close family member to occupy your unit, make serious renovations to your unit, or demolish your unit, they might be able to evict you with two or four months’ notice for “landlord’s use of property”.
A fixed term tenancy – often referred to as a “lease” – does have a pre-determined date on which the tenancy ends or is up for renewal – most commonly after one year. At the end of a fixed term, the tenant and landlord can mutually agree to extend the tenancy for another fixed term. However, if the tenant would prefer that the tenancy continue on a month-to-month basis, the landlord cannot force them to renew the agreement for another fixed term.
See Residential Tenancy Branch Policy Guideline 30 for more information.
- Stability: For the duration of your fixed term, you cannot be evicted for “landlord’s use of property”.
- Less flexibility: If you need to end your fixed term tenancy early – also known as “breaking a lease” – you could end up owing your landlord some money.
Changing Terms in a Tenancy Agreement
The terms of a tenancy agreement can be changed by mutual agreement, but only up to a certain limit. For example, tenants and landlords are not allowed to change any of the standard terms, listed in the Schedule of the Residential Tenancy Regulation, or attempt to “contract out” of the Residential Tenancy Act.
If you and your landlord both want to change something related to your tenancy, feel free to amend your existing agreement. For example, you can cross out a term, write down the new one, add the date, and both initial the change. Alternatively, you can amend a tenancy agreement by signing an addendum that outlines the agreed-upon change. Either way, make sure you receive a copy of the revised tenancy agreement or new addendum, and take photos so you can back it up digitally.
If your landlord attempts to change a term in your tenancy agreement without your consent, you can use TRAC’s template letter, Illegal Term in Tenancy Agreement, to inform them that you do not accept their proposed change and will continue to follow your existing agreement.
The Residential Tenancy Act does list some exceptions to the rules about mutually changing terms in a tenancy agreement. For example, a landlord can raise the rent once per year by the allowable percentage, without the tenant’s permission.
Previous Legal Decisions
- Utilities for multi-unit house in tenant’s name is unconscionable