by Joyce Arthur
copyright January, 1996
You'd think from the way some landlords complain, that tenants have all the rights and landlords have to suffer the consequences. It just doesn't occur to them when they're looking for "good tenants" to rent to, that the tenants are just as concerned with renting from GOOD LANDLORDS, not ones who think it's their perfect right to:
This happened to my husband and me, and we were badly screwed, not just by our landlord, but by the system that ultimately backed him up. Here's the story, as told to the BC Residential Tenancy Branch in a bitter letter of complaint after our eviction:
In 1992 and again in 1994, my husband and I were evicted from condominiums because the landlords sold them. As a result, the security of our living arrangements and our privacy became critical and sensitive issues to us. In addition, moving is a severe disruption to our lives and exacts a significant financial and emotional toll. (As professionals, we have many possessions, including over 1000 books.)
In June 1994, we rented a house in Burnaby. The landlords, a married man with kids, lived in Ottawa, but through the landlord's local agent, we specifically told the landlord about our concerns with housing security and our previous problems. He assured us he had no plans to sell the house or move back to Vancouver. Although he would only give us a one-year lease, we had good faith in the landlord's assurances and so we signed the lease.
Exactly one week after we moved in, the landlord showed up on our doorstep and asked us to move out immediately! He and his wife had decided to move back to Vancouver and wanted to live in the house. We were devastated by this news. When we refused his request (since we had a one-year lease), the landlord told us he was going to put the house up for sale in a few months. He promised us he would target the house to investors so that we could stay on as tenants.
Because of this turn of events, enjoyment of our new house was virtually ruined, right from the beginning. We were forced to dispense with many of our long-range plans, such as starting a garden and buying a pet, because of the instability of our housing situation.
Six months into our lease, the landlord put the house up for sale. The realtor reiterated the landlord's claim that the house would be specifically targeted to investors. Beginning in January 1995, at least one, and often several parties of buyers viewed the house almost every week for the next five months. During this time, we cooperated fully by allowing unrestricted entry, keeping the house neat and clean, and staying out of the way. Understandably, this ongoing invasion of our privacy, with no end in sight, was becoming increasingly tiresome and vexatious for us. Finally, we discovered upon review of the real estate ads, that from the very start, the house had been marketed to people who would live there! Both the landlord and the realtor had lied to us.
We knew that the sale of the house would mean our almost certain eviction (by the new owners) and we began to feel angry and frustrated at the way the landlord had treated us. We realized that by cooperating with the realtor and the landlord for showings, we were only helping them and hurting ourselves. Therefore, as a way to compensate us, we asked the landlord for a goodwill gesture of $800 to cover our moving expenses once the house sold. There was no response to this request, so we tried to make him understand our dilemma by showing him that he needed our willing cooperation to sell the house.
Our first move was to put some reasonable restrictions on our terms of consent to enter. Also, we told the realtor that if he wanted to come at times other than the specific times we allowed, he would have to give us the legally-required 24-hours written notice. From this point forward, the realtor and the landlord displayed amazing incomprehension and insensitivity to all our conditions and concerns. When we tried to correct or explain again something they had misunderstood, they would simply continue to misinterpret and misunderstand. They were ignorant about the legislation governing landlord/tenant relationships and we found ourselves having to spell out the law to them. They refused to even talk to us about the possibility of compensating us for our distress, and instead acted insulted and outraged at our suggestions of financial compensation. At one point, the landlord even accused us of extortion.
This obtuseness on the part of the landlord and realtor served to escalate and exacerbate the situation, and we became increasingly upset and impatient. During a showing on July 9th, we left the house as usual, but left a pornographic video playing on the VCR! The buyers were apparently offended, but viewed the house anyway. At another showing the following day, my husband, who is a photographer, stood at the window of our living room, in full view of the realtor and buyers coming up the walk, and took photographs of them as they approached. We also ensured they had no choice but to walk through our lawn sprinkler and get soaked. The buyers apparently decided not to enter the house, although we did not refuse them entry.
On July 18th, the realtor had arranged another showing without our consent (he had given us 24-hours notice). My husband repeated his actions, that is, taking pictures of the buyers and realtor as they approached the house. This time, they entered the house and my husband continued to take pictures of them, from a range of about two metres. The buyers got upset, decided not to view the house, and left.
Before that last showing, on July 12th, we received a notice of an arbitration hearing at the provincial Residential Tenancy Branch for July 19th. The landlord had applied for an order for entry to the house, something which we had never denied them. This was an example of their negligent abuse of the law. We prepared a detailed statement explaining our position and asking for mediation, since no order could be given under the circumstances. We delivered this statement to the Branch two days before the hearing. When we arrived at the hearing, the Branch had misplaced our statement, and the arbitrator had not even seen it. To add insult to injury, the arbitrator refused to mediate and treated us with a clear lack of respect (while being very courteous to the landlords). Of course, the landlord was forced to withdraw his inappropriate application for an order to enter the premises.
On July 20th, right after the last showing on the 18th, we received a notice of an arbitration hearing for eviction, for interfering with the landlord's interest in selling the property. The landlord was asking for an early end to the tenancy (i.e., a 10-day eviction) and barring that, a 30-day eviction. We prepared for the hearing in good faith, based on sound advice that an early eviction was extremely unlikely and that we had a reasonable chance of getting the 30-day eviction overturned. At the hearing, the arbitrator for the Residential Tenancy Branch ordered a 10-day eviction, based on the landlord's and realtor's testimony. The apparent reasons for this order were:
My husband and I allegedly caused a "serious impairment of the landlord's lawful right to sell the property." However, all we had done was engage in lawful, conventional activities in the privacy of our own home, at the same time that the house was being viewed by potential buyers. These lawful activities occurred on only three separate occasions, after five months of cooperative showings during our one- year lease.
The landlord's realtor "testified" at the hearing that the real estate market would experience a downturn during August, so time was of the essence in selling the house. One this basis alone, the arbitrator awarded a 10-day eviction rather than a 30-day eviction!
The Residential Tenancy Act does not protect tenants from frequent, unwanted, and prolonged intrusions into their home by realtors and potential buyers, even if such intrusions extend over the entirety of the tenants' lease. Tenants have no power under the law to request less intrusive arrangements or compensation. Also, allowing potential buyers into their home places a distressing and onerous burden on tenants, since the sale of their residence would likely mean their eviction. Simply put, the Act fails to recognize that tenants have no reason to cooperate with realtors and buyers, and that in fact, they actually have a strong incentive not to cooperate.
As a result of this weakness in the law, the arbitrator was able to, and chose to, disregard our grievances against the landlord which initially brought about the dispute. These grievances were that our common-law rights to "quiet enjoyment of the premises" and "exclusive possession of the premises" were seriously impaired by the intrusions of the realtor and by the actions of the landlord from the very first week of the lease. A further grievance is that neither the landlord nor the realtor made any attempt at any time to address or even understand our objections.
We had been advised in no uncertain terms by the Tenants' Rights Action Coalition and by a clerk at the Residential Tenancy Branch that an early eviction was simply not applicable in our case. In fact, according to the clerk, it was "ludicrous." In addition, the book Landlord/Tenant Rights in British Columbia (published by Self- Counsel Press), states on page 47 that an early termination is "very serious" and is only used in cases where the tenant is "causing extreme damage or endangering the safety of the landlord or other occupants...."
There is no doubt therefore, that the arbitrator's decision was shockingly unjust and biased in favour of the landlord. We were victimized by a system that puts property owners' financial interests ahead of tenants' legal rights to quiet and exclusive enjoyment of their home. As an agency that allegedly protects both landlords' and tenants' rights, the Residential Tenancy Branch needs to realize that it is the tenants who tend to be in a weaker position. All arbitrators should be sensitive to this fact and accord tenants additional protection when warranted.
In light of all this, we requested that the Residential Tenancy Act be changed to give tenants more rights in situations where their residence is for sale, and that arbitrators be trained to not unduly emphasize property owners' financial interests over tenants' legal rights.
There was no avenue for redress at the time of the decision. No appeal was allowed or possible, in spite of the fact that we should have been entitled to financial compensation under common law and/or civil law, not only for the landlord's victimization of us, but for the Residential Tenancy Branch's further victimization of us.
The Branch's response to our letter was a frosty F-you letter. We also sent copies of the letter to various government officials, and the only response was from the Ministry of Housing's Policy and Research Branch, which claimed that our situation was too unique for them to justify changing the law. However, because of the nature of the real estate market, tenants continually fall victim to this type of situation. It is a common occurrence. Obviously, this issue has significant social and legal ramifications and should be properly addressed in both policy and law.
Perhaps if we had known ahead of time how heavily the system was biased against people without power (like us), we might have been able to take a different approach at our last arbitration hearing. Of course, the resulting 10-day eviction produced tremendous stress, disruption, and expense, none of which we deserved.
The painful lesson we learned is not to rely on the system for justice. In a conflict, if your side does not hold the economic or political power, you are much more likely to lose, regardless of your efforts, regardless of the letter of the law, and regardless of the way things are supposed to be.