Tenant Lease and Landlord

Read below for answers to frequently asked questions
I am under 18 and I need to rent an apartment. Can I sign a lease?

Normally, if you are under 18 you can’t sign (enter into) a CONTRACT. BUT, if the contract is for a necessity (like a place to live, for food, health care) the law makes an exception and allows you to enter into a contract which, in the case of renting an apartment, is probably a lease agreement. But before you sign the lease (or any contract) you need to understand the responsibilities and rights that are included in the lease. You need to do that BEFORE YOU SIGN ANY CONTRACT. You should be allowed time to read the contract carefully and to seek any advice to help you understand it before you sign.

Landlords are often reluctant to rent to young people under 18 but legally, you are allowed to enter into a contract (lease) to rent an apartment or house.

Legal Authorities

Contract law in Canada indicates that minors are able to enter into contracts for the provision of necessities which are for the benefit of the youth (Pyett v. Lampman, [1922] 53 O.L.R. 149).

The court has traditionally defined ‘necessity’ fairly narrowly. The court has enforced contracts regarding housing in Salah v. Cruickshank, [1987] 85 N.S.R. (2d) 13, but a vehicle purchased for work purposes was not considered a necesity in Pyett v. Lampman.

A youth can be held liable for commitments made in contracts, and young people may enforce a contract against another party. Cases show the court tending to hold young people responsible for their actions. In Coull v. Kolbuc, [1969] 68 W.W.R. 76 (Alta. Dist. Ct.) the court enforced a contract against a minor for the purchase of a sports car.

Case Law also suggests that any contract entered into by a minor that includes recurring obligations is binding on the minor until he or she repudiates the contract. See Butterfield v. Sibbitt 1950 Carswell Ont 118 (Ont. H.C.). [/wptabcontent]


What is a Lease?

A lease is a specific type of contract for renting property. It is a written ‘tenancy agreement’. The lease or written tenancy agreement is between a landlord and a tenant (a person wanting to rent from a landlord) that allows the tenant to live on the landlord’s property in exchange for payment of rent by the tenant to the landlord. A lease includes the terms of the agreement such as, the amount of rent to be paid, when it has to be paid, how much the security deposit is, how long the agreement is going to last – all of the landlord’s expectations and requirements of the tenant (the tenant’s promises to the landlord) and all of the landlord’s promises to the tenant.

A lease must be written. A tenancy agreement can be oral but still must be followed (is binding). If you agree to rent a place and you agree to the rules of the property then a tenancy is created even though you have not signed anything. It is better to have a written tenancy agreement (lease) so that everyone knows the rules and obligations of the tenancy.

Types of Tenancy Agreements (whether oral or written):

  • Fixed-Term Tenancy: A Fixed-Term tenancy is an agreement to rent a property (house/apartment) for a ‘fixed’ or specific period of time at a specific rent, usually for 6 months, 1 year, or 2 years. You can only end a fixed term tenancy at the end of the ‘fixed’ rental period, unless the landlord breaks a promise that is part of or in the agreement. Then you have the option to end it early.
  • Periodic Tenancy: A Periodic tenancy is an agreement that does not have an end date and is a month-to-month or week-to-week rental. You are still bound by whatever you and the landlord have agreed to whether it is oral or in writing; however, you can terminate your tenancy without any penalty if you let the landlord know well in advance – at least the amount of time that is agreed to or written in the agreement (typically one full rental period, so one month for a monthly rental or one week for a weekly rental).

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s.1 (m) – residential tenancy agreement

What is a security deposit?

A security deposit is extra money you are usually required to pay to the landlord at the beginning of the tenancy. Most tenancy agreements require the tenant to pay the landlord a “security deposit” or a “damage deposit” which the landlord can use to pay for such things as damage caused by the tenant (greater than ‘normal wear and tear’), cleaning costs when the tenant moves out or changing the locks when the landlord’s keys are not returned.


How much do I have to pay as a security deposit?

A landlord cannot ask a tenant to pay more than one month’s rent as a security deposit. Once the security deposit has been paid and you have moved in, the landlord cannot ask you to pay more money for the security deposit

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17, s.43

When can my landlord keep some or all of my security deposit?

The landlord can keep some or all of your security deposit if you have caused damage to the landlord’s property. The amount the landlord can keep will depend on the damage.

The landlord cannot use your security deposit for “normal wear and tear”. Normal wear and tear means minor damage that happens as a result of you just living in a normal way on the property. For example, a landlord cannot take money from the security deposit for a few scratches on the floor or a carpet that gets a little worn.

  • “Normal wear and tear” does not include damage that is caused on purpose or if you or a friend of yours has behaved recklessly. For example, the landlord can use some or all of the security deposit to fix a hole in the wall if someone has punched or kicked it while you lived in the apartment.

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1, ss. 43-47

What if my landlord does not give back my security deposit when I move out?

If there is no damage to the landlord’s property, you don’t owe any rent, the property has been left reasonably clean, and all of the keys have been returned, the landlord must return your full security deposit within ten days from the day you move out. If the landlord refuses, then you should seek help from a lawyer.

Contact Youth Law at 403-207-9029. A letter from a lawyer can often help get your deposit back.


Who is responsible for rent if more than one person is on the lease?

Each person who signed the lease can be forced to pay all of the rent. This means that if your roommates move out before the tenancy is up, you may have to pay their share of the rent – so it is important to pick your roommates carefully.

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. S.21 (a)

What if I did not sign the lease, do I still have to pay if my roommate(s) moves out?

The law is a bit unclear but the landlord may be able to hold you responsible for all of the rent even though you have not signed the lease. This is because you live there in the same way you would if you had signed the lease.

Contact us at 403-207-9029. There may also be a Landlord and Tenant Help Line or organization in your area.

Legal Authorities

  • Critical Control Solutions Corp. v. 954470 Alberta Ltd. [2005] A.J. No. 1364. para 28 “From these definitions it appears that the occupation of premises and the enjoyment of their possession, when coupled with the consent of the tenant, can be sufficient to make the occupant liable for the rent.”
  • Residential Tenancies Act, S.A. 2004, c. R-17.1, s. 21(a)

Can the landlord come into my place?

WITH PERMISSION

If you or an adult in your home has given the landlord permission, the landlord may enter your apartment or house at any time as long as s/he has asked you and you have said it’s okay. Permission can be either verbal or written.

WITHOUT PERMISSION

In some circumstances, the landlord may enter your apartment without permission and without ‘proper notice’.

In Landlord and Tenant matters, Proper Notice means: the landlord must let you know in advance if he or she is going to come into your rental property. The landlord cannot simply tell you. The notice must be in writing, be signed, and tell you why and when the landlord will come in. The notice must be delivered to you at least 24 hours before the landlord enters and the landlord can only enter your place between 8:00 a.m. and 8:00 p.m., and not on a holiday, or a day when you are at religious services.

A Landlord can only enter your residence without permission and without proper notice, if he or she believes there is an emergency or your safety or health is in danger.

The landlord can also come in without your permission but only with proper notice to :

  • make repairs
  • check on repairs or
  • show the property to other people who want to live there if you are moving out.

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s. 23

Can my landlord increase my rent?

Whether your landlord can increase you rent depends on what kind of tenancy you have – periodic or fixed term.

Periodic Tenancy (See ‘What is a Lease?‘ above for definition.)

Landlords cannot increase the rent under a periodic tenancy until at least one year (365 days) has passed since the last rent increase or since the start of the tenancy, whichever is later.

Fixed Term Tenancy (See ‘What is a Lease?’ above for definition.)

Under a fixed-term tenancy the rent and the duration of your rental are agreed to at the beginning so there can be no rent increase until the entire lease has finished (even if more than 1 year). There is an exception if there is a specific rent increase clause in the lease. If there is a rent increase clause, the landlord cannot increase the rent until a minimum of one year (365 days) has passed since the last rent increase or since the start of the tenancy, whichever is later.

A fixed-term tenancy turns into a periodic tenancy after the full duration of the agreement has passed. If the fixed-term was for more than a month the tenancy becomes monthly. If the fixed-term was for less than a month the tenancy becomes weekly (this is for short term accomodation).

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s. 14 (4)
  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s.13
  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s.a (iii)

My landlord increased my rent without telling me. What can I do?

You must be told of any increase in rent. First you should check if your landlord is allowed to increase your rent (See ‘Can my landlord increase my rent?‘ above). If the landlord is allowed to raise your rent then the landlord must tell you in writing (give you notice*) of any rent increase. The rules for different tenancies are listed below. If your landlord has raised your rent without notice, and you have paid it, the law says that you can get that rent back. You might need some help in enforcing your right to get your money back in this kind of situation. Call us at 403-207-9029.

*Notice: Must be in writing, signed and dated by the landlord, and say when the increase will happen.

Periodic

  • If you pay rent weekly, you must be told 12 weeks before you have to start paying the higher rent;
  • If you pay rent monthly, you must be told 3 months before you have to start paying the higher rent;
  • If you pay rent any other way, every two weeks for example, you must be told 90 days before you have to start paying the higher rent.

Fixed
If the landlord is allowed to increase the rent that was written into the fixed-term tenancy agreement then s/he must give the notice that was agreed upon (either in writing or verbally – you can imagine the problems that might arise if the agreement is not written). It will usually be at least 3 months but can be longer.

Contact us at 403-207-9029. There may also be a Landlord and Tenant Help Line or organization in your area.

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s. 14 (7)
  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s. 14 (2)
  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s. 14 (1)

How do I figure out what type of lease or tenancy I have?

Figuring out what type of lease you have can be quite difficult (See ‘What is a Lease?‘ above). A fixed-term tenancy in general means a tenancy that will end on an agreed day. A periodic tenancy is generally one that does not have a specific end date.

If it’s not clear what type of lease you have, contact us at 403-207-9029.

Legal Authorities

  • Residential Tenancies Act, S.A. 2004, c. R-17.1. s.1 (e) – fixed-term, (i) – periodic