Gimme a Break: Breaking News on Provincial and Federal COVID-19 Relief for Residential Landlords and Tenants

On March 25, 2020, both the BC Provincial Government and the Federal Government announced significant changes for residential tenants and landlords in an effort to cure some of the impacts of the COVID-19 pandemic.

UPDATE: On March 30, 2020, the BC Provincial Government codified its announcement by way of a Ministerial Order, M089, made pursuant to the Emergency Program Act (the “Order”). Importantly, the terms of the Order are effective as of March 30^th. Please see our updates below for more. The full Order can be reviewed here.

I. Provincial Announcement

To assist landlords and tenants, the Province has immediately implemented the following measures:

a. Rental Supplement of up to $500

For tenants who qualify, they could be eligible for a new temporary rent supplement of an amount up to $500 per month administered through BC Housing. In order to qualify, tenants must apply and provide proof of lost income through Employment Insurance documents.

At this time, it is understood that BC Housing will issue the supplemental rent directly to landlords. It is yet unclear whether this supplement will be paid on a “per tenant” or per “rental unit” basis, and the administration process is still under development. What is clear is that neither tenants nor landlords should expect a supplemental rental payment before April 1, 2020.

UPDATE: The Order does not account for the announced Rental Supplement.

b. Moratorium on Evictions

For the time-being, the Province has halted all evictions, subject to limited exceptions. A landlord will be able to apply to the Residential Tenancy Branch for an Order of Possession in exceptional cases where an eviction may be needed to protect health and safety or to prevent undue damage to a rental property. Put differently, a landlord will not be able to evict a tenant if they fail to pay their rent on time.

UPDATE: Pursuant to the Order, a landlord must not issue a tenant a new Notice to End Tenancy during the period the Order is in effect. However, if a landlord gave a tenant a Notice to End Tenancy for:

1. non-payment of rent,
2. for cause,
3. end of employment with a landlord,
4. landlord’s use of property, or
5. tenant ceases to qualify for rental unit,

before the date of the Order, then the Notice to End Tenancy remains in effect, subject to the dispute resolution process of the Residential Tenancy Branch, and an Order of Possession may be granted.

While landlords are unable to issue a new Notice to End Tenancy to tenants in the interim period, tenants can still end tenancies under certain circumstances. In addition, the parties can always end a tenancy by mutual agreement, or the tenancy may end by virtue of frustration.

In sum, landlords can still pursue evictions if they issued Notices to End Tenancies before the Order came into effect. However, a landlord’s ability to follow through with an eviction is another matter which is discussed below.

c. Enforcement of Existing Orders of Possession

For the time being, the Province has halted the enforcement of existing eviction notices, otherwise known as Orders of Possession, issued by the Residential Tenancy Branch, except in extreme cases where there are safety concerns. As it relates to Court ordered evictions, the Province has deferred the enforceability of such orders to the Court.

UPDATE: Pursuant to the Order, and in addition to the reasons noted in the above section, the Resident Tenancy Branch can issue Orders of Possession if

1. a rental unit must be vacated to comply with an order of a federal, British Columbia, regional or municipal government authority, including orders made by the Provincial Health Officer or under the Emergency Program Act, and
2. it would be unreasonable to wait for the Order to no longer apply.

Otherwise, the Resident Tenancy Branch must not grant Orders of Possession.

That said, if a landlord managed to obtain an Order of Possession before the Order came into effect, the enforcement process is less clear. Indeed, the Order provides that an Order of Possession that was submitted to the Court for filing on or before the date of the Order, but for which no Writ of Possession has been granted, may be refused for filing and returned to the tenant or the landlord who filed it. At this time, it is unclear on what grounds the Court may refuse to accept or issue the aforementioned documents.

Further, the Order prevents a tenant or landlord from enforcing a Writ of Possession that was issued after the Order came into effect. The prohibition is to last for the duration of the time the Order is in effect.

d. Annual Rent Increases Frozen

All annual rent increases, including those scheduled for April 1, 2020, have been frozen.

UPDATE: Pursuant to the Order, a rent increase does not take effect during the period of the Order if a landlord (a) gave a Notice of Rent Increase before March 30, 2020 and the effective date of the rent increase is after March 30^th, or (b) gives Notice of Rent Increase during the period the Order in effect.

However, the freeze does not apply to a rent increase that is based on an increase in the amount of occupants taking residency in a rental unit.  Put differently, a landlord is able to increase rent that a tenant must pay if additional occupants are taking up residency in a rental unit and the rental agreement entered into with the original tenant provides that the rent to be paid will vary depending on the number of occupants.  Importantly, the rental agreement must specify the amount of the rental increase.

e. Restricting the Spread of COVID-19

i. Landlord Access to Rental Units

The Province is preventing landlords from accessing rental units without the consent of a tenant (for example, for showings or routine maintenance), except in exceptional cases where it is needed to protect health and safety or to prevent undue damage to a rental unit. The door is no longer open for routine inspections.

UPDATE: Pursuant to the Order, a landlord must not enter a rental unit that is subject to a tenancy agreement, even if the landlord gave the tenant written notice that the landlord would be entering the rental unit.  Further, if a landlord gave written notice before the Order came into effect, that notice is null and void.

However, a landlord may enter a rental unit that is subject to a tenancy agreement if:

1. an emergency in relation to the COVID-19 pandemic exists, and
2. the entry is necessary to protect the health, safety or welfare of the landlord, a tenant, an occupant, a guest or the public.

In addition, a landlord could presumably seek access to a rental unit if their respective tenant agrees to the access request. Indeed, the Order only prohibits a landlord’s unilateral access.

Practically speaking, a landlord can only access a rental unit to address a COVID-19 related emergency.

ii. Serving Notices

The Province is restricting the methods that renters and landlords can use to serve Notices to reduce the potential transmission of COVID-19 (no personal service and allowing email).

UPDATE: Pursuant to the Order, a person must not give or serve any document required to be given or served under the Residential Tenancy Act, the Residential Tenancy Regulation or any term of a tenancy agreement by leaving a copy of the document with a person.

Put differently, there can be no hand delivery of notices and/or documents to a tenant or landlord.  Instead, and depending on the circumstances, parties will be required to serve materials by the other methods provide under the Residential Tenancy Act (e.g. regular mail, registered mail, mailbox delivery, door posting, etc.).  Please note that service methods add deemed delivery time to the delivery process (e.g. a document delivered via door posting is deemed to be received three days after posting). Now that hand delivery is prohibited, parties should budget extra time for delivery.

iii. Use of Common Areas

Landlords are allowed to restrict the use of common areas by tenants or guests to protect against the transmission of COVID-19. The goal is to keep the rental building together while keeping its residents apart.

UPDATE: Pursuant to the Order, it is not unreasonable for a landlord to a restrict tenants’ (occupants’, guests’, etc.) access to common areas of a residential property if the restriction is necessary:

1. to protect the health, safety or welfare of the landlord, the tenant, an occupant or a guest of the residential property due to the COVID-19 pandemic,
2. to comply with an order of a federal, British Columbia, regional or municipal government authority, including orders made by the Provincial Health Officer or under the Emergency Program Act, or
3. to follow the guidelines of the British Columbia Centre for Disease Control or the Public Health Agency of Canada.

Otherwise, a landlord must not prevent or interfere with the access of a tenant, another occupant of the rental unit or a tenant’s guest to the tenant’s rental unit.

Practically speaking, a landlord is permitted to restrict one’s access to a common area of a residential property if it pertains to COVID-19. If posting a sign restricting access, be sure to indicate the basis for the restriction on the posting.

f. Relief for Landlords?

Other than allowing landlords the ability to restrict the use of common areas by tenants or guests, today’s announcement provided little relief for landlords as it relates to their own financial obligations to third parties (e.g.. banks and mortgagors). That said, Premier Horgan encouraged tenants to work with their landlords to find solutions and, importantly, and asked tenants who could afford to pay their rent to do so.

II. Federal Announcement

Though not tied directly to residential tenancies, the Federal government has agreed to provide a taxable benefit of $2,000 a month for up to 4 months to:

• workers who must stop working due to COVID-19 and do not have access to paid leave or other income support;
• workers who are sick, quarantined, or taking care of someone who is sick with COVID-19;
• working parents who must stay home without pay to care for children that are sick or need additional care because of school and daycare closures;
• workers who still have their employment but are not being paid because there is currently not sufficient work and their employer has asked them not to come to work; or
• wage earners and self-employed individuals, including contract workers, who would not otherwise be eligible for Employment Insurance.

Indeed, any tenant who finds themselves in one of the above-noted categories may have difficulties meeting rent payment obligations. Therefore, such persons do have access to funds that will, hopefully, allow them to meet their rent payment obligations amongst other things.

III. The Take Away

While COVID-19 has impacted almost every facet of our daily lives, the Government has taken a step to minimize the effects felt by both tenants and landlords.  Though not perfect, the Province’s announcement attempts to ensure that no one will go homeless during these trying times.

Importantly, the Province has encouraged tenants and landlords to work together to address issues that may affect a tenancy. Put differently, parties to a residential tenancy agreement should be communicating and working together to minimize the adverse effects that, but for COVID-19, would not have otherwise arisen. In attempting to minimize those impacts, both tenants and landlords may have questions regarding their obligations to each other. For example, a landlord may wonder, “what constitutes an issue of health and safety or undue damage to a rental unit”?  Conversely, a tenant may query, “how and when can my landlord access my rental unit”? The answer to these questions must be reviewed on a case by case basis to ensure that neither tenant nor landlord is running afoul of the new rules.

If you need advice on navigating the Province’s announcement regarding changes to the residential tenancy matrix, feel free to contact us.

UPDATE: While the Province has done its best to codify its announcement to provide relief to tenants and landlords, each party still has recourse to the Residential Tenancy Branch to seek relief under certain circumstances.  Feel free to contact us if you are in need of assistance to better understand how the Order impacts you and your rental property.

Contact Information:
Anil Aggarwal, Associate
Direct Line: 604 484 1772
Email: aaggarwal@www.ahbl.ca