If the Residential Tenancy Act does not apply, what does?

Question

In BC, the RTA stipulates laws regarding rental homes. However, it does not apply under certain circumstances, such as when the tenant shares the kitchen or bathroom with a home owner. My question is, what does apply in these situations if not the RTA? I'm assuming a landlord wouldn't be free to not return the damage deposit just because the tenant isn't covered by RTA?

I'm specifically interested in Quiet Enjoyment. Does such a thing apply when living with the owner? Obviously exclusive access wouldn't but what about the owner making excessive disturbances?

Section 28 of the Residential Tenancy Act (RTA) covers “quiet enjoyment” – an important legal principle that gives every tenant the right to:

• reasonable privacy;
• freedom from unreasonable disturbances;
• exclusive use of their rental unit (unless their landlord is allowed to enter by law); and
• use of common areas for reasonable purposes.

Also assume an RTB-1 form has been signed, which in itself stipulates certain conditions, even if the RTA fails to apply.

Answer 1

Accommodation agreements which are not residential tenancies

Most agreements governed by the Residential Tenancy Act would still be legally enforceable if the Act did not exist. The Act just regulates them by mandating certain terms and creating a special dispute resolution process. If the Act doesn’t apply, an agreement may still be enforceable as an ordinary contract.

For example, in Kitney v. O'Neil, 2006 BCPC 465, the Provincial Court allowed a claim for unpaid rent and expenses under an agreement which was not a residential tenancy:

Whether or not the arrangement was a personal or a business one, it does not amount to a residential tenancy under the Residential Tenancy Act ... because it was cohabitation ... Regardless of who slept in which bedroom, this was a non-arm’s length arrangement between a former couple, not a residential tenancy. I am satisfied this Court [ie. not the Residential Tenancy Branch] has jurisdiction to deal with the claim.

Accommodation agreements may also be regulated by other statutes like the Manufactured Home Park Tenancy Act, the Hotel Keepers Act and the Commercial Tenancy Act.

Damage deposit and quiet enjoyment

These issues are dealt with in sections 4 and 13 of the RTB-1 form which the parties have signed, according to the question. The rules set out in the form are a good guide to the parties’ contractual intention and might be enforced, even though they are based on the mistaken assumption that the Act applies.

Because the Act doesn’t apply, the parties would have to go to court rather than using the less formal dispute resolution process prescribed by the Act. The parties would only be able to rely on the actual contents of their agreement, not on anything which the Act requires a residential tenancy agreement to include.