June 27, 2023
Our firm successfully defended the landlord of an aging apartment building in Vancouver which underwent significant repairs to individual units and common areas against dispute proceedings before the BC Residential Tenancy Branch (“RTB”) initiated by building tenants. The tenants in both cases alleged that the building repairs interfered with their right to quiet enjoyment of their residential premises as a result of construction noise, disturbances, and debris, and a loss of use of common areas and building services. Both tenants sought significant monetary compensation from the landlord as a result of these alleged breaches of their right to quiet enjoyment.
The issue the RTB arbitrator had to grapple with in both cases was the balance between the tenants’ right to quiet enjoyment against the landlord’s right and responsibility to maintain and repair the rental premises. In both cases, our firm successfully argued that the landlord appreciated the balance between these two conflicting rights and acted reasonably by taking steps to protect the tenants’ right to quiet enjoyment and accommodating individual needs and circumstances of building tenants.
We anticipate seeing more and more of these types of disputes before the RTB. The supply of new rental housing stock in BC has not kept up with demand for this type of housing, and a significant number of renters live in buildings which were built in the 1960s, 1970s, and 1980s. As these buildings age, they require more and more repairs – often significant repairs – to maintain. As repairs and renovations increase, so too will disputes between landlords and tenants with respect to the impact these repairs and renovations have on tenants.
Conflicting Rights: Quiet Enjoyment vs. the Right to Repair
The Residential Tenancy Act, SBC 2002, c 78 (the “RTA”) protects a tenant’s right to the “quiet enjoyment” of their rental premises. Quiet enjoyment includes, among other things, freedom from unreasonable disturbances and protects the use of common areas for reasonable and lawful purposes, free from significant interference (RTA, section 28).
The RTB has provided some guidance with respect to what is meant by “quiet enjoyment” in Residential Tenancy Policy Guideline 6 – Entitlement to Quiet Enjoyment (“RTPG 6”). “Temporary discomfort or inconvenience” does not breach a tenant’s right to quiet enjoyment. A breach of the right to quiet enjoyment means “substantial interference with the ordinary and lawful enjoyment of the premises” (RTPG 6, page 1).
Despite this guidance, whether a breach of quiet enjoyment has occurred is a fact-specific inquiry, often involving significant evidence with respect to the magnitude and duration of the disturbance and the impacts the disturbance has had on an individual tenant.
The right to quiet enjoyment can quickly become implicated when a landlord engages in repairs or renovations to a tenanted rental property. Repairs and renovations inevitably include some construction noise, attendance at the building by contractors and tradespersons, and construction debris and materials. Depending on the repair or renovation at issue, it can also include a temporary loss of services or facilities at the building.
The RTA requires a landlord to maintain residential property in a state of decoration and repair that complies with the health, safety and housing standards required by law, and having regard to the age, character and location of the rental unit, makes it suitable for occupation by a tenant (RTA, section 32). A landlord cannot avoid repairing or maintaining the rental premises.
To determine whether a breach of the right to quiet enjoyment has occurred as a result of repairs and renovations – including necessary repairs – an arbitrator will balance the tenant’s right to quiet enjoyment against the landlord’s right and responsibility to maintain the premises (RTPG 6, page 1). If a landlord engages in any repairs or renovations to a tenanted building, a tenant’s right to quiet enjoyment must be considered, and the landlord needs to take reasonable steps to minimize the impacts of construction on tenants and provide reasonable accommodations to tenants.
What Landlords can do to Balance These Conflicting Rights
Reasonable steps a landlord can take to protect a tenant’s right to quiet enjoyment during periods of renovation or repair include, but are not limited to:
keeping tenants informed about the scope and duration of repairs, including updating tenants if the timing or scope of work changes;
hiring reputable contractors and tradespeople who will abide by health and safety standards and municipal noise bylaws;
scheduling construction work so that inconvenience to tenants is minimized as much as reasonable possible; and
if a building service or amenity will be unavailable, providing tenants with alternate accommodations or services.
If you have questions about these or other residential tenancy issues, please contact us. All our lawyers act for both landlords and tenants before the Residential Tenancy Branch and would be happy to assist you.