Statement on Bill no. 87 – Residential Tenancy Act: Six Disappointing Omissions or Reductions in Tenant Protections
This statement is based on feedback and conversations with thousands of tenants since the Fall of 2018. There are many further changes we would like to see in Bill 87. There has been a scaling back of tenant rights, some of which are not mentioned in this statement. Of the 27 recommendations we submitted to the Minister of Social Development and Housing on April 4th 2022 only 4 have been adopted.
- Repair and Maintenance
Bill 87 reduces the landlord’s obligation to keep premises well maintained and fails to act on the introduction of provincial maintenance standards.
Frustration with lack of repair is a major concern we hear about from tenants. Because of the fear of being eased out of the unit if they ask for repairs tenants want to see objective maintenance standards with provincial enforcement.
For over thirty years the obligation of a landlord to provide tenants with well-maintained homes has been set out as a statutory condition of a tenancy in the Rental of Residential Property Act section 6. 1. This section says that a landlord must “keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any enactment regarding standards of health, safety or housing…”
In Bill 87, the obligation to “keep the premises in a good state of repair” has been removed. The only obligation of the landlord with respect to repairs is to “comply with health, safety and housing standards required by law”. Since there are no municipal or provincial maintenance standards which cover the maintenance of the inside of a unit and common areas, the new section 28 (1) has little substance and doesn’t appear to oblige a landlord to maintain much of anything. Section 28 (1) must be amended to include a meaningful obligation on the landlord to keep the premises, both inside units and in common areas, in a good state of repair.
The PEIFAH has for many years advocated for provincial maintenance standards for rental units. These would set out required standards of day-to-day maintenance of rental units (such as non-functioning stove elements and refrigerators, leaking ceilings, rising floor tiles, unkempt common areas and lack of front and back door security and provide enforcement). More information on this proposal can be found in our 2020 submission on the first draft RTA. Bill 87 contains no concrete plans to begin work on this issue.
2. Renovictions
Bill 87, although it has increased notice requirements for eviction for repairs and renovations, still maintains all the machinery of renovictions and allows applications to renovict when the work being proposed is not necessary to the integrity of the building. It has been the stated position of the PEI Fight for Affordable Housing (PEIFAH) since March 2020 that no tenancy should ever be ended for repair and renovations, even where the renovations are necessary and require vacant possession – which would happen very rarely. (see section A 1 of our submission on the second draft Residential Tenancy Act).
We have always proposed that where vacant possession is required the landlord should provide temporary accommodation for the tenant until the work is completed. This is the law in Quebec. [1]
3. Return on Investment as a factor in determining an increase above the guideline
Although Bill 87 places a cap of 3% on increases above the guideline in any given year, it clearly intends that where an increase above the guideline greater than 3 % is approved it can be implemented over several years. For example, an increase above the guideline of 24% would not necessarily be denied, but it could be applied over 8 years. It is therefore very important to examine the factors used in calculating increases above the guideline in section 50 (3). The removal of return on the landlord’s capital investment has been consistently demanded by tenants. It is unfair that while tenant households paying over 30% of their income on rent operate at a loss – meaning that they go without food and essentials – they are nevertheless required to guarantee their landlord a profit through their rents. This factor should be removed. It was not originally in the Act. It was introduced as an amendment in 1989.
The PEIFAH has consistently advocated that data on income levels in the tenant community should be a factor in considering an application for a rent increase above the guideline.
4. A rent registry
Bill 87 fails to provide for a provincial rent registry. Illegal rent increases have been one of the drivers of rent inflation on PEI and can only be effectively prevented and/or penalized by the creation of a public rent registry.
5. The Right to Maintain Occupancy should be a guiding principle within the law – not in the preamble.
The notion of housing as a human right is vague and we don’t feel that it has played a major role in helping Canadian provincial legislatures protect tenants from homelessness. That is why the PEIFAH has, since 2020, advocated that the Right to Maintain Occupancy should be a guiding principle contained within the law. It is already in the Quebec Civil Code.
6. More about repair and maintenance and the discarding of a common-law principle which is crucial to fairness in landlord tenant relationships
Shift of power to landlords:
There has historically been a very important common-law principle in landlord tenant law which brings an element of equality into a legal relationship in which there is, by its very nature, an obvious power imbalance. It is called the “interdependence of material covenants “. This sounds very legalistic, but it simply holds that neither landlord nor tenant can expect the other to perform their obligations if they themselves are not performing theirs. For tenants it means that their obligation to pay rent is tied to whether the landlord is maintaining the premises. It is a part of the existing Rental of Residential Property Act in section 5 (2) and provides a legal basis for tenants to pay rent into a court- or tribunal-approved trust fund if their landlord is seriously neglecting maintenance and repair. It is a very important tool in cases of extreme neglect which benefits the community at large by holding landlords accountable for regular maintenance of their property.
It has been removed in Bill 87. Furthermore Bill 87 states in s 19 (1): “A tenant shall pay rent when it is due under the tenancy agreement, whether or not the landlord complies with this Act, the regulations or the tenancy agreement . . . ” That is profoundly unjust and out of whack with any perception of balanced obligations.
[1] For more details on our proposal regarding a Provincial Housing Planner and landlord plans to rehouse tenants see section 3 in our 2020 submission on the first draft RTA