I don't practice in the area of residential tenancies. That's because in many cases, the legal costs for a tenant hearing would be greater than the amount in dispute. In some cases, my office can have an articling student or first year lawyer represent a tenant or landlord because with less experience, their rates are lower and it is a good way to get the rough equivalent of trial experience. However, I decided to write a bit about this topic as I see landlords and tenants making basic but very expensive mistakes when entering into residential tenancy arrangements in Saskatchewan. Hopefully, this will help somewhat.
I also need to warn you that residential tenancies legislation is often updated without notice and I can't keep checking to see when the latest changes were. Therefore you'll need to look to the legislation and draw your own final conclusions there. You can use this article mainly to alert you to some issues. Then you can research them properly to make sure you don't make basic mistakes that could easily be avoided.
Contents of a Residential Lease
If a landlord has a tenant sign a written lease, The Residential Tenancies Act, 2006 sets out some basic requirements on what must be in the lease. Even in a month to month tenancy, there are basic requirements that our legislation requires from the landlord. A lot of people just google the topic, find a sample lease from somewhere and use it. That would be your first mistake if you do that. Most or all of those documents will probably not comply with Saskatchewan law. Instead, you need to look at section 19 of our legislation in Saskatchewan. Go through the requirements very carefully. Don't do it too quickly or you'll miss something. Here is a link to the legislation. Look for section 19 and read it carefully a few times: Click Here
These requirements have been put in our Saskatchewan laws because the province wants to protect tenants. I'm sure that the average landlord is reasonable and fair, but unfortunately not all landlords are. That's why laws need to be made. Even if you own property and feel that the legislation is too onerous on landlords, perhaps you have a daughter or son who is or will be a tenant some day. You would want them to have some basic protection. There are two sides to everything.
Here are some examples of mistakes that could be very expensive for a landlord.
- The landlord's "address for service" must be in the document. Most people are focused on saying what property is being written and the amount of rent that they may never think of this. The tenant may know where the landlord is anyway. However, forgetting to put this simple bit of information in the lease could result in the Landlord being liable for damages.
- The lease must contain a telephone number and emergency telephone number for the landlord. My guess is that a form found by a google search isn't going to have this. It might not seem terribly important, but the omission could result in the Landlord being liable for damages.
- The standard conditions under the legislation must be attached to the lease.
- The landlord must give the tenant a signed copy of the lease within 20 days of it being made. This sounds pretty obvious but maybe the landlord only brings one form or tells the tenant to sign both copies, send both to the landlord and then they will sign and return one to the tenant. The landlord might forget altogether, or send it back late.
- Even in a verbal lease, the landlord must send certain information to the tenant in writing with the same 20 days.
- There are other requirements as well. That's why you need to go to the Act and read them carefully.
Rent Can Be Suspended if the Lease or Summary is not Given
If the Landlord doesn't send a copy of the signed lease or basic information on a verbal lease within the 20 days, the tenant's obligation to pay rent can be "suspended". As of January 2017, the meaning of "suspended" is not entirely clear. For example, it might mean any of these:
- It might mean that forever, the tenant doesn't need to pay rent. That is sometimes what tenants or tenant advocates argue in hearings.
- It might mean that, just as your licence can be suspended or a child can be suspended at school, it is only temporary. That sounds more reasonable. Otherwise a different word would have been used in the legislation. Even then, does it mean that the rent is still owed, but it doesn't need to be paid until the landlord complies? Or ... does it mean that the rent stops running until the landlord complies, but the rent before that date is never payable. That seems a little harsh in some cases if someone merely forgot to send a signed copy back, for example, but perhaps that is what the province wanted to do to enforce compliance.
- Section 19 also states that usually, a lease won't be invalid if elements are missing, but under the right circumstances, the lease can be invalid.
In October 2016, the Saskatchewan Court of Appeal gave a decision in Olson v Boardwalk. In that case, a person was a tenant. When his lease came up for renewal, he signed a new one and as instructed, sent both copies back to the landlord for signing. The landlord forgot to return the signed lease. As mentioned, the tenant's remedy for this failure is that rent is "suspended". A dispute arose as the tenant decided he didn't want to stay in the property after all. The dispute had first gone to a residential tenancies hearing and then to the Court of Queen's Bench. The landlord had been made liable for damages because of its error. The amount of damages doesn't matter because every case will be different. However, the landlord appealed to the Saskatchewan Court of Appeal, asking the court to give an interpretation of the word "suspended" ... likely for the reasons I have described above. The Court of Appeal said that they were content to leave the matter resolved as it had been already .. as an award of damages. This particular case had resolved itself in another way. As the amount awarded as damages was appropriate, the Court of Appeal didn't need to interpret the word "suspended". Thus, that question remains to be decided another day.
Rent is not Always Suspended
Rent won't always be suspended if a landlord doesn't comply. For this provision to apply, the landlord's breach must be a failure to send a copy of the lease or summary of the verbal lease to the tenant within 20 days of the deal being made. In all other cases, a breach is treated as something where damages can be awarded against the landlord. However, with a little effort by the landlord when the lease is being made, this can all be easily avoided. Remember to read our province's legislation. Don't just use a generic form from the internet.
Notice: The information on this website is general in
nature only. It relates to Saskatchewan, Canada and may not be
applicable in your jurisdiction. It does not constitute legal
advice to you and no solicitor client relationship will be established.
You should seek specific legal advice regarding your circumstances
from a lawyer entitled to practise law in your jurisdiction.
www.rickcarlson.com | Fri, 17 Aug 2018 15:45:50 CDT1
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