Does Not Having a Written Agreement Mean I Don’t Have a Tenancy?
Does not having a written agreement mean I don’t have a tenancy? It’s an all-too-common question that many landlords find themselves asking when they find themselves renting to someone without having something in writing that establishes a tenancy. It’s a question that can seem unclear when reading the Residential Tenancy Act (RTA), which states “A landlord must prepare in writing every tenancy agreement entered into on or after January 1, 2004.”
Reading this quote from the RTA it would be reasonable to assume that if it is a requirement to prepare an agreement, then that should mean that by not preparing one there is no tenancy established. There are, however, other sections of the RTA which speak to this issue. The first is found in the definitions the RTA has for Tenancy Agreement.
“tenancy agreement” means an agreement, whether written or oral, express or implied, between a landlord and a tenant respecting possession of a rental unit, use of common areas and services and facilities, and includes a license to occupy a rental unit;”
With this definition, we are told that things like what we do and what we say can also establish a tenancy. This is generally done by having a conversation where both parties agree to the renting of a property and the tenant pays money, such as rent or security deposit, for that right.
For most people learning this, the question generally shifts from “Do I have a tenancy?” to “What does my tenancy include?” The RTA provides an answer for this as well with Section 12 which states: “The standard terms are terms of every tenancy agreement whether the tenancy agreement was entered into on or before, or after, January 1, 2004, and whether or not the tenancy agreement is in writing.
So, what are the Standard Terms? They are very simple terms that set out the basics of a tenancy. To be clear, it’s the basics as viewed by a third party that has no stake in the tenancy. This means that rules regarding common areas of concern such as smoking, pets, insurance, and many others are not included. You can find the Standard Terms in the Residential Tenancy Branch Tenancy Agreement.
While its good that the RTA legislates that at the very least there are some terms to refer to in all tenancies, whether in writing or not, by not having a written agreement that covers those common but not “Standard” terms landlords are not setting their tenancies up for success.
Members of LandlordBC, you have exclusive access to our professionally drafted, proprietary tenancy forms, including a comprehensive and compliant Residential Tenancy Agreement.