Residential Tenancy Agreement - November 1, 2004

The residential tenancy agreement, whether written or oral, cannot take away any of the rights, benefits, or protections for tenants contained in the Act.

STATUTORY REFERENCES

Residential Tenancies Act (RTA) sections:

1(1)(e)   fixed term tenancy definition
1(1)(f)   landlord definition
1(1)(h)   overholding tenant definition
1(1)(i)   periodic tenancy definition
1(1)(k)   rent definition
1(1)(l)   residential premises definition
1(1)(m)   residential tenancy agreement definition
1(1)(n), 43(1), 43(2)   security deposit
1(1)(t)   tenant definition
2   application
3   no waiver of rights
8   notice to terminate monthly tenancy
13   implied periodic tenancy
15   notice to terminate not required - fixed term tenancy
16   landlord's covenants
17   copy of agreement to tenant
18   notice of landlord
21   tenant's covenants
29   termination for substantial breach by tenant
38   possession unobtainable

There are no sections in the Regulations relating directly to "residential tenancy agreement".

GUIDELINES

Renting residential premises is a business agreement that includes both landlords and tenants. Landlords and tenants agree to the terms of their business agreement in a contract called a residential tenancy agreement. This residential tenancy agreement is the most important part of the landlord and tenant relationship and can be written, oral or implied.

Like other contracts, the residential tenancy agreement outlines the terms of the relationship that will exist between the landlord and the tenant. It also sets out any conditions that have been agreed to by the landlord and the tenant. For example: the rent amount, the services provided by the landlord and the responsibilities of both parties.

The tenant has the option of refusing to enter into a residential tenancy agreement that contains conditions they do not want to live by. The tenant may negotiate changes to the tenancy agreement or may choose to rent elsewhere.

The law is clear that once the landlord and the tenant both agree to the terms and conditions of the contract, it cannot be changed unless both parties agree.

To eliminate any "surprises" once the tenancy has begun, a residential tenancy agreement should be in writing and contain the following information:

  1. Date of agreement

  2. Names and addresses of all parties

  3. Address or description of the location of the residential premises

  4. Term of the tenancy

  5. Rent amount, where, when and how it is to be paid

  6. Clauses about whether utilities (referenced court case: #40), furniture, appliances, parking, etc. are provided and at whose expense

  7. Names of the people who are permitted to live in the residential premises

  8. Security deposit: amount, authorized deductions and interest

  9. Care, maintenance and repair responsibilities

  10. Insurance requirements

  11. Rules for additional fees (such as NSF charges), guests, pets, etc.

  12. Signatures of landlord and tenant

The RTA requires a notice of landlord to be given to the tenant within 7 days after the tenant takes possession of the residential premises. The notice of landlord must contain the name of the landlord and a postal address and physical location in Alberta for that person. This information can be included in the residential tenancy agreement. If the name, postal address or physical location of the landlord changes, the landlord has to provide all tenants with a new written notice of landlord, which must contain all three elements to meet the requirements of the RTA. The landlord must either give a copy to each tenant, or, in the case of projects with common areas, display a new notice where all the tenants can see it. The landlord must ensure that the notice is replaced whenever the landlord becomes aware that the notice has been removed.

The RTA applies to tenants who rent residential premises such as houses, apartments, mobile homes and duplexes. It also applies to rooming house and boarding house residents where the landlord provides both the room and meals, as long as the landlord does not reside in the residential premises. If a tenant pays to rent a room in a hotel or motel, etc., the RTA applies if the tenant lives there for more than six consecutive months.

The RTA does not apply to:

  • Mobile home sites covered in the Mobile Home Sites Tenancies Act

  • Business premises with living premises attached and rented under a single agreement

  • Rooms in the living quarters of a landlord, if the landlord actually resides there

  • Residential premises on military bases on federal lands

  • Residential premises on First Nations reserves on federal lands

  • Student premises at educational institutions, if students do not have exclusive possession of a self-contained dwelling

  • A nursing home as defined in the Nursing Homes Act

  • Lodge accommodation run by a management body or by an agreement with the Minister responsible for the Alberta Housing Act

  • A social care facility licensed under the Social Care Facilities Licensing Act

  • A correctional institution

  • Or any other prescribed premises

If an employer rents residential premises to an employee, the RTA applies.

If a written residential tenancy agreement is dated August 1, 1992 or later the agreement must contain the following statement in print larger than the other print in the agreement: "The tenancy created by this agreement is governed by the Residential Tenancies Act and if there is a conflict between this agreement and the Act, the Act prevails."

For example, if a residential tenancy agreement states that a tenant has to give two months' notice of termination for a monthly periodic tenancy agreement, this clause would be in conflict with the legislation. The RTA states that a monthly periodic tenant is required to give only one month's notice.

Another conflict with the legislation would be if a residential tenancy agreement states that the tenant will have to move out immediately if the rent is not paid in full and on time. If tenants do not pay the rent, the RTA states that landlords may apply to court for an order terminating the tenancy and an order of possession or landlords can give tenants a 14-day notice to terminate the tenancy for substantial breach.

Tenants and landlords should make a habit of keeping a written record of every instance when there is a problem with the other party, what was done by both of them when the problem happened, and how they each responded.

A landlord may choose to offer an abatement of rent to a tenant to compensate the tenant for doing maintenance for the residential premises. This agreement should be in writing to protect both parties.

In Alberta, all landlords and tenants have responsibilities (obligations). The RTA clearly identifies these obligations and they apply to every residential tenancy agreement in Alberta, whether or not they are mentioned in the terms and conditions.

Landlord's Obligations

  • Make the premises available for the tenant on the agreed move-in date.

  • Not to disturb the tenant's possession or peaceful enjoyment of the premises (referenced court cases: case #35, case #37, case #38). This means that the landlord is not to bother the tenant beyond what is necessary to do the landlord's business.

  • Make sure the premises meet the minimum requirements set out in the Housing Regulation and the Minimum Housing and Health Standards under Alberta's Public Health Act at the beginning and during the tenancy. View the Minimum Housing and Health Standards (pdf).

  • Complete move in-and move-out inspection reports and provide copies to the tenant.

Tenant's Obligations 

  • Pay the rent on time

  • Be considerate of the landlord's and other tenants' rights

  • Not do anything that would put other tenants or the residential premises or common property in danger (example, do not let strangers into the building)

  • Not perform illegal acts or do illegal business on the premises

  • Keep the premises reasonably clean

  • Not do, or permit damage to be done, to the residential premises

  • Move out when the residential tenancy agreement ends or is terminated

The Act permits an oral residential tenancy agreement. Landlords and tenants are cautioned that the terms and conditions of an oral residential tenancy agreement are difficult to "prove" in a court if a dispute arises between the parties. Any change that will become part of an existing residential tenancy agreement should be done in writing and be signed by both parties. The date that the change becomes effective should be stated.

The landlord must give the tenant a copy of the agreement within 21 days after the tenant signs and returns it to the landlord. If the landlord does not provide this signed copy to the tenant within the 21 days, the tenant is allowed to withhold payment of rent until a copy is received. Once the signed copy is delivered to the tenant, all the withheld rent is due and payable.

In addition to the rules in the residential tenancy agreement, the landlord may set up house rules for all the tenants. Both the landlord and tenant should have a copy of the rules. Some reasonable rules would be restricting Christmas trees, pets, satellite dishes, smoking or waterbeds. Landlords can change or add rules during the tenancy with the consent of the tenants. Landlords can change their "pet rules". If a landlord brings in a new "no pet rule", tenants who were allowed pets under the old rules can keep them, but cannot replace them. (Note: Adapted from Province of Manitoba, Residential Tenancies Branch Guidebook.)

Tenants must get the written permission of landlords to sublet or assign the residential premises to another party. The landlord may not refuse permission without reasonable grounds. If the landlord decides against the sublease or assignment, the landlord must give the tenant a written reason within 14 days after receiving the request. If the landlord does not answer the request within 14 days, the tenant may assume that the landlord agrees to the sublease or assignment.

In a sublease, the original tenant intends to return to the residential premises and resume the residential tenancy agreement. The original tenant gives all the obligations and rights of the residential tenancy agreement to the new tenant, for a time. The original tenant is still responsible to the landlord if the new tenant does not fulfill the obligations of the contract.

In an assignment, the original tenant will not return to the residential premises. The original tenant gives all the obligations and rights for completing the residential tenancy agreement to the new tenant. The new tenant becomes responsible for the residential tenancy agreement.

PRACTICAL APPLICATIONS

Fixed Term Tenancy

A fixed term tenancy ends on the date specified in the residential tenancy agreement. No notice has to be given by the landlord or tenant to end a fixed term tenancy. It is courteous for the tenant and the landlord to provide the other party with a notice prior to moving out. No time frame is required for such a courtesy notice.

At the end of the fixed term the landlord and tenant may both want to continue the tenancy. At this time they can negotiate a new residential tenancy agreement that could include a change in the rent amount and the conditions of the tenancy. This agreement can be a new fixed term or changed to a periodic tenancy.

If the parties do not notify each other of their intention to continue or terminate the tenancy, difficulties may arise. For example, the landlord may be expecting the tenant to leave at the end of the fixed term and may have plans for the premises.

If the tenant continues to live in the premises after the fixed term agreement expires, continues to pay rent, but does not sign a new residential tenancy agreement; the tenancy becomes a periodic tenancy. Once this occurs, the tenant is required to give the landlord proper notice to terminate the tenancy.

Overholding Tenant

If the tenant stays in the premises without the landlord's approval, the tenant becomes an overholding tenant. The landlord can apply to the courts for an order to recover possession of the property.

Implied Periodic Tenancy

The RTA states that an implied periodic tenancy is a combination of a fixed term tenancy and a periodic tenancy. It is the part of the tenancy that continues as a periodic tenancy after the fixed term period ends.

If the tenant stays in the premises after the end of the fixed term period with the implied consent of the landlord, the tenancy continues as a periodic tenancy. If the fixed term was for one month or more, the periodic tenancy becomes a monthly tenancy. If the fixed term was for less than one month, the periodic tenancy becomes a weekly tenancy.

The rules of periodic tenancies then apply to this tenancy. The tenant will have to give proper notice to terminate the residential tenancy agreement.

Periodic Tenancy

A periodic tenancy renews or continues weekly, monthly or yearly without notice. The termination and rent increase provisions contained in the RTA apply to the tenancy.

Additional Fees and Charges

See the Additional Fees and Charges section.

The RTA does not prohibit the landlord and tenant from agreeing to fees and charges that are in addition to the security deposit and rent. Landlords should give receipts for any payments from tenants.

A landlord cannot charge a security deposit plus an additional "deposit", if the total amount exceeds the amount of the first month's rent.

Application Fees

A landlord may want to charge an application fee. An individual who does not want to pay such a fee does not have to apply to rent from that landlord.

Key or Pet Fees

A landlord may want to charge key or pet fees. A landlord may refer to these deposits as additional fees or charges. While these are not against the law, if they are refundable to the tenant, they are added to the security deposit amount. The grand total of all of the charges cannot exceed the amount of the first month's rent.

Refundable Fees

Any refundable fee or charge becomes part of the security deposit.

Non-refundable Fees

Any non-refundable fee or charge is a contractual agreement between the landlord and the tenant and is not subject to the security deposit restrictions. Non-refundable fees cannot be deposited into the security deposit trust account.

Late Payment of Rent Fees

Some residential tenancy agreements allow for a late payment of rent fee or a charge of a certain amount. The charge is usually a daily amount for each day the rent remains unpaid. The courts do allow for a genuine pre-estimate of liquidated damages. For example, a bank may charge additional interest if a landlord is unable to make a loan payment because the tenant did not pay the rent on time. A late payment of rent fee that would cover the interest charged by the bank could be a valid pre-estimate of liquidated damages, if they exist. If however, the late payment of rent fee is far more than the amount the landlord is being charged, then it may be found by a court to be a penalty - and penalties are illegal (referenced court case: #9).

Pets

Some landlords allow pets in residential premises and usually state the conditions in the residential tenancy agreement.

Other landlords include a "no pet" provision in a residential tenancy agreement because:

  1. Units in which pets have been kept often require more extensive cleaning, repainting, repair, and replacement of items, than do units where there have not been pets; and

  2. Other tenants may have allergies to certain animals, or are sensitive to the noise or behaviour of some animals

There is a difference between a goldfish and a large dog; between a canary and a cat; between a hamster and a python. There are many animals that are kept as pets that are important to their owner that do not, or are not, likely to cause any additional cost or expense to the landlord, or aggravation to other tenants.

Some residential tenancy agreements have clauses prohibiting pets in a unit unless the landlord specifically and in writing allows a particular pet.

If a tenant signs a residential tenancy agreement agreeing to a "no pet" policy, and the tenant brings in a pet later on without the landlord's permission, the tenant is in violation of the contract. This violation could result in the landlord terminating the tenancy.

FORMS

Residential tenancy agreement forms are available at a nominal cost from a number of organizations including the Landlord and Tenant Advisory Boards, the Calgary Apartment Association or the Edmonton Apartment Association.

Since the Residential Tenancies Act does not prescribe a particular form of residential tenancy agreement, landlords and tenants are free to prepare whatever form best suits their particular needs. However, the agreement cannot take away any of the rights, benefits or protections contained in the Act.