Throughout the country, landlords, contractors, and real estate agents will find themselves having to negotiate access to a rental property with a tenant who could be reluctant to grant access due to concerns regarding Covid. This is a highly delicate and sensitive situation.
In a case that we have had to deal with, a tenant simply refused to allow access to a real estate agent as they had concerns about the wellbeing of her children, whom she said could not be vaccinated. Situations like this are complex, and emotions can run high. A landlord has the right to access their property and sell it, yet you must ensure that you listen to the tenant's genuine concerns. Each situation must be handled delicately.
First, you need to understand what the RTA (Residential Tenancies Act) says. Section 48 talks about the landlord's right of entry. Every landlord has a right to enter their rental property, but you must follow the correct steps as outlined in this section.
Let us say, for example, I have a rental property that I want to put on the market. The tenant is on a periodic tenancy. I have two choices.
- Sell the property vacant. If I am to do this, I must give the tenant 90 days' notice to terminate the tenancy, and I must list the property on the market for sale within 90 days of the tenancy ending.
- Sell the property with the tenant in place. Once the property is unconditional, I will then typically give the tenant a minimum of 90 days' notice for vacant possession.
On both occasions, I must give the tenant notice of intent to sell. Failing to do so is an unlawful act.
Let us say I decided to do the second option, and I put the property on the market for sale with the tenant in place. Section 48(3) of the RTA states that with prior consent of the tenant, the landlord may enter the property at any reasonable time for the purpose of selling the property and showing it to prospective purchasers. Section 48(3A) states that the tenant cannot withhold their consent unreasonably and may grant consent subject to reasonable conditions.
The question in this situation is what is reasonable access and what conditions are deemed to be unreasonable? When the RTA was written, no one considered what would happen in a pandemic regarding access. A tenant may have legitimate concerns with regards to allowing access, but is it fair that nobody can enter the property?
Each situation could be incredibly unique, and it is unlikely that you can operate a business such as ours with a black or white policy. We are looking at each situation as a case-by-case scenario. When you look at each situation, these are the questions that you need to ask yourself.
- What does the RTA say, and what sections do we need to be aware of? Section 48 talks about the landlords' rights of entry. But you may also have to consider the tenants' quiet enjoyment (section 38) and the potential consequences if I enter the property without following the RTA.
- What are the recommendations of Tenancy Services or, if I am a property manager, Guidelines that REINZ has set?
- What options do I have available if the tenant simply refuses to allow access? Worst case scenario could be to apply to the Tenancy Tribunal, and a tenant may face exemplary damages if they continue to refuse access without a valid reason. Have I explained to the tenant clearly what protocols we have in place when entering their home to ensure that they are safe from the spread of Covid?
As Omicron works its way through the country, the next few months will be challenging to say the least. Remember, be patient, document your communication with the tenant, and always keep your composure.
