COVID-19 and Residential Tenancy Agreements: Part One

Authors: Aaron Marchadour, Kate Millar. This blog was prepared with the assistance of summer law student Scott MacKenzie.

Part one of this series discusses recent legislative amendments resulting from the COVID-19 pandemic and considerations for landlords before proceeding with termination of a tenancy and/or eviction.

Part two discusses the process that a landlord will need to follow in order to terminate a tenancy and evict a tenant. Both posts apply only to residential landlords and tenants governed under Alberta’s Residential Tenancies Act, SA 2004, c R-17.1 (“RTA”).

COVID-19 impacts on residential tenancies in Alberta

Since the Government of Alberta issued the public health emergency order related to COVID-19 on March 17, 2020, which has since lapsed, there have been a series of legislative amendments impacting residential landlords and tenants.

Some of these amendments have since expired, while others continue to have effect. It is important for landlords to be aware of these amendments and consider their impact on a potential termination of tenancy or eviction. A selection of the relevant amendments are described below.

Ministerial Order no. SA: 005/2020 prohibits a landlord from pursuing remedies against a tenant unless the landlord can demonstrate that they first made reasonable efforts to enter into a payment plan with the tenant, or that the tenant did not comply with a payment plan. This applies where the remedy is being pursued because of a tenant’s failure to pay rent, arrears of rent or utilities. The landlord remedies affected include termination of tenancy and eviction. This order took effect April 1, 2020, and remains in effect until August 14, 2020, unless terminated earlier or extended.

Bill 11, Tenancies Statutes (Emergency Provisions) Amendment Act, 2020, prohibited landlords from increasing rent between March 27, 2020, and the expiration of Alberta’s state of public health emergency on June 15, 2020. Now that the public health emergency order is no longer in effect, rental increases can be implemented, but not retroactively during those dates. Where a landlord is attempting to terminate a tenancy due to non-payment of rent, they must ensure that the rent owing has not been subject to increases that are non-compliant with this order.

The Late Payment Fees and Penalties Regulation, Alta Reg 55/2020 prohibited landlords from charging late fees to tenants between April 1 and June 30, 2020. While late fees can now be charged again, landlords cannot retroactively collect late fees accrued between these dates.

Ministerial Order 20/2020 prevented civil enforcement agencies from evicting tenants where their breach of the residential tenancy agreement was related to COVID-19; however, this order expired on April 30, 2020.

Landlord tips and considerations before evicting

Evicting a tenant is an serious measure and should be exercised with caution. Before deciding to  proceed with termination of a residential tenancy and eviction, there are a number of topics for landlords to consider.

  • Standardized policies: Creating a standardized policy will make it easier to ensure all of the proper procedures are being followed. By consistently utilizing a standardized policy for termination of tenancies and evictions, a landlord is better able to defend their action if a tenant claims they are being individually singled out or treated unfairly.
  • Keeping proper records: Proper records make better evidence if a landlord appears before the Residential Tenancy Dispute Resolution Service (“RTDRS”) or the court. Landlords should log and sign communications with tenants. This includes any communications about what problems are occurring, any negotiations, and any discussions about payment plans. Some communications and notices, like the 14-day notice to terminate tenancy, will not have effect unless they are signed by the landlord.
  • Payment plans: Even without the new requirement discussed above, it is generally a good idea to attempt to negotiate a payment plan prior to evicting a tenant. Re-negotiating with a tenant may lead to a resolution that satisfies both of the parties without the headache, expense and uncertainty involved in going to court or the RTDRS. It may also make financial sense, particularly in situations where a repossessed apartment may end up sitting vacant for months.
  • Timelines and procedural requirements: The RTA and related regulations contain several procedural requirements (many of which are discussed in part two of this blog post). Most timelines require “clear” days, meaning the day of notice and the day of the relevant action occurring do not count. Landlords should understand the timelines for the different steps they may take to remedy a substantial breach of a residential tenancy agreement, e.g. obtaining an order for recovery of possession before hiring a civil enforcement agency to evict a tenant.
  • Human rights and potential discrimination: If the reason for eviction is related in some way to a tenant’s age, mental or physical disability, or any other protected ground under the Alberta Human Rights Act, RSA 2000, c A-25.5, this may trigger a duty to accommodate the tenant rather than proceeding with termination of their tenancy.

Landlords should review and understand their full list of rights and remedies available under the RTA and other relevant legislation. The Government of Alberta’s “Landlords and tenants” webpage contains many helpful resources for landlords.

If a landlord is considering proceeding with termination of a residential tenancy and eviction of a tenant, part two of this blog post provides a more in-depth overview of the process.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.