Are you risking giving your tenants a rent holiday?

I came across this decision of Member Phillips (request for review denied by Member Wallace).  It is interesting as it raises the importance of a landlord complying with section 12 of the Residential Tenancies Act, which provides:

12. (1) Every written tenancy agreement entered into on or after June 17, 1998 shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act.

Copy of tenancy agreement

(2) If a tenancy agreement entered into on or after June 17, 1998 is in writing, the landlord shall give a copy of the agreement, signed by the landlord and the tenant, to the tenant within 21 days after the tenant signs it and gives it to the landlord.

Notice if agreement not in writing

(3) If a tenancy agreement entered into on or after June 17, 1998 is not in writing, the landlord shall, within 21 days after the tenancy begins, give to the tenant written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act.

Failure to comply

(4) Until a landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be,

(a) the tenant’s obligation to pay rent is suspended; and

(b) the landlord shall not require the tenant to pay rent.

After compliance

(5) After the landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be, the landlord may require the tenant to pay any rent withheld by the tenant under subsection (4).

At the hearing, the Landlord testified that he believed that he had provided the Tenants with a copy of their signed tenancy agreement. The Tenants submitted that they had never been provided with one. Member Phillips believed the Tenants, and found that, because the Tenants had never been provided with a copy of the lease agreement, the obligation to pay rent was suspended.  The Landlord’s application for eviction was dismissed.

On review, the Landlord argued that the tenancy had, in fact, never been subject to a written lease agreement. However, the Tenants always had his contact information and that, therefore, the hearing Member’s findings under section 12 were based upon a serious error of fact.  The Member found that this evidence could have been  presented at the original hearing, and denied the hearing. 

These types of arguments were much more common when the Tenant Protection Act was first enacted.  For similar results see, for example, TEL-15971 TPA (2000) (Ittleman) and and TNL-31595 (Feldman).  The members found notice of termination for non-payment of rent was ineffective because the landlord had not complied with section 8 of the Tenant Protection Act (now section 12 Residential Tenancies Act).  I also reached similar conclusions when I was a member.  The effect of such a notice is to demand rent, contrary to the subsection 4(b). 

Is this a sign that with the economy being in a poor state, landlords will be faced with these types of arguments again?  

LESSONS LEARNED:

1. For existing tenancy agreements, review your written tenancies agreements and ensure it provides the tenant with your name and address.  If it does not, take a few moments to provide this information to all existing tenants.  Keep copies of this notice. 
2. For oral tenancy agreements, make sure that you have communicated this to your tenants.  Make sure that you comply with the requirement by sending this information out to all tenants.  Again, keep a copy.
3. For all new tenants, get them to sign acknowledgment of the notice.  This can avoid the dispute in the future, or at least provide evidence of compliance if it is raised at the hearing.