Leases
What is a lease?
A lease is an agreement that regulates the relationship between landlord and tenant. In New Brunswick, the landlord and tenant must sign a prescribed form of lease, called the Standard Form of Lease. The lease sets out the rights and responsibilities of both the landlord and tenant.
What if the tenant and landlord do not sign a lease?
Every rental agreement implies rights and responsibilities. Even if the landlord and tenant did not sign a lease, the Residential Tenancies Act still regulates the relationship.
May the landlord and tenant agree to additional conditions?
Yes, the landlord and tenant may agree to additional conditions such as keeping pets, setting up water beds, or having boarders. The lease also lets the landlord and tenant decide about other matters. These may include, for example, heat, cable television, parking or snow removal. However, neither the landlord nor the tenant may remove any of the mandatory rights or responsibilities in the lease.
Does the Actapply to all rental units?
The Actonly applies to residential premises such as homes, apartments and mobile home sites. It does not apply to roomers, boarders, students living in residence, vacation accommodations, or business premises.
Security Deposits
What is a security deposit?
A security depositis a sum of money that a landlord requires a tenant to pay at the beginning of a lease. It may be thought of as a sign of good faith on the part of a tenant.
Landlords have the right to ask for a security deposit. However, they cannot ask for any amount they wish. The security deposit can never be more than one month's rent.
May the landlord ask for a prepayment of the last month's rent?
No. The landlord cannot ask for the last month's rent in advance.
Who holds the security deposit?
If the landlord requires a security deposit, the tenant may pay it to a rentalsman or the landlord. The rentalsman holds it in a separate fund. If the tenant pays the security deposit directly to the landlord, the landlord mustdeliver it to the rentalsman within 7 days. It is an offence for the landlord not to deliver security deposits to the rentalsman. The rentalsman's office only accepts cash, money orders or certified checks but some offices are now able to take debit cards and credit cards. After the rentalsman receives a security deposit, he or she will send a certificate to both parties. The certificate will state the amount of the deposit and the premises covered by it.
Who gets the security deposit when the tenant moves?
At the end of the tenancy, the landlord has 7 days to make a claim against the security deposit. The landlord may claim to recover costs for physical damage, cleaning or rent left owing when the tenant leaves. If the tenant keeps the premises in good condition and pays the rent he or she should get the deposit back.
How does the tenant get the security deposit returned?
The tenant may ask the rentalsman to return the security deposit any time after the lease ends. The request must be in writing and forms are available from the rentalsman for this purpose. If the landlord has not claimed the security deposit, or if there is any left, the rentalsman will return it to the tenant.
Tenants and landlords should always inspect the premises together both before and after the tenancy. This is a good way to reach agreement about the landlord's claim against the deposit when the tenancy ends. However, if there is a dispute over the security deposit, the rentalsman will investigate and decide how to divide the money.
What can the landlord do if the security deposit does not cover losses?
The landlord may start an action in court against the former tenant for losses not covered by the security deposit. If the claim is below the small claims limit that process may be used.
Landlord and Tenant Responsibilities
What are the landlord's responsibilities?
The landlord must always keep the rented premises and common areas habitable, safe, and in a good state of repair. The same is true for any chattels provided such as stove and fridge. The landlord must also follow all health, safety, housing and building standards.
What are the tenant's responsibilities?
The tenant must keep the rented premises clean. The tenant is also responsible for any damage, disturbance or nuisance that he or she causes.
What if the landlord or tenant does not live up to his or her responsibilities?
If the parties do not live up to their responsibilities, the Residential Tenancies Actprovides remedies. In short, the tenant who does not meet his or her responsibilities risks having the landlord end the tenancy. The landlord who does not meet his or her responsibilities could lose rent money which the rentalsman may apply to remedy a problem.
Repairs and Maintenance
What repairs and maintenance must the landlord do?
The landlord must fix anything that the
tenant pays rent for that breaks or does not work properly. For example, if the rented premises
came with a fridge and stove the landlord must fix them when they break. The landlord is also
responsible for maintaining and repairing common areas. These include halls, lobbies, stairways,
elevators, security systems, swimming pools, laundry and garbage rooms.
Is the tenant responsible for any
repairs?
The tenant mustrepair anything on the rented premises which the tenant or
his or her guests are responsible for wilfully or negligently damaging. Tenants are also
responsible for cleaning their own rented premises including, for example, defrosting and
cleaning the appliances.
Should the tenant withhold rent if the landlord is not making
repairs?
No. A tenant cannot force a landlord to meet his
or her responsibilities, such as making repairs, by withholding the rent. A tenant should always
start by calling, and then writing, the landlord or superintendent. The tenant should explain
what is wrong and ask to have it fixed. If the tenant has done this and the landlord has not
fixed the problem, then the tenant should contact the rentalsman. The rentalsman can explain the
options available to the tenant. The rentalsman has the authority to apply rental money towards
repairs. Depending on the problem, it may also be appropriate for the tenant to call a building,
health or fire inspector.
Entry and Privacy
Can the landlord enter rented premises at
anytime?
A landlord
can normally enter rented premises only after giving advance notice to the tenant or with the
tenant's consent. The times of advance notice vary according to the situation. For example, if
the landlord intends to carry out repairs, the tenant must have 7 days notice, preferably in
writing. For general inspection and to show the premises, the landlord must give 24 hours notice,
preferably in writing. Entry must be between 8 a.m. and 8 p.m. and on a day other than Sunday or
a holiday. In an emergency the landlord may enter at any time.
Rent Increases
Can the landlord increase the rent at
anytime?
A landlord
can only increase the rent if he or she gives the tenant advance written
notice of rent increase. The amount of advance
notice varies with the type of tenancy. However, there is no situation that requires less than
two months notice. For example, in a month to month lease, for an increase to take effect on
December 1st, the tenant should receive written notice no later than October 1st. If the
tenant has lived in the premises for more than five years though, the notice of
increase must be three months.
What if the tenant feels he or she did not get proper notice
of a rent increase?
If the tenant feels that the landlord
has not followed the law in giving notice, the tenant can contact the nearest Office of the
Rentalsman.
What if the tenant would rather move than pay more
rent?
If the tenant gets notice
of a rent increase, he or she may treat it as a
notice of termination. The tenant may then give the landlord
appropriate written notice that he or she intends to end the tenancy.
Ending a Lease
How does a lease end?
A lease can end in several ways. A lease for a fixed term ends
automatically at the end of the term. However, the landlord or tenant can end a tenancy that runs
week-to week, month-to-month or year-to-year by giving notice of termination . The notice of
termination must always be in writing. The time required for this notice differs according to
the type of lease involved. For example, in a year-to-year tenancy, notice must be given at least
three months before the anniversary date of the lease. If the tenancy is month-to-month, then one
month's notice is required.
A notice of termination
must be received a full period before the date on which it is to take place.
Consider a tenant in a month-to-month tenancy who wants to end the lease. If the rent is due on
December 1st, the landlord must receive the notice
by December 1st for it to be effective for December 31st. If the tenant mails
the notice, he or she must allow three days for it to arrive.
What if a tenant has rented the same place for a long
time?
If a tenant has occupied a rental unit for 5 years
or more, the landlord cannot end the tenancy unless the tenant breaks a condition of the lease or
the landlord needs the unit for a close family member or plans to make major changes to it. A
tenant who has rented the same unit for at least 5 years may end the tenancy by giving one
month's notice.
Can the landlord end the tenancy if the tenant does not pay
the rent?
If the tenant does not pay the rent when it is
due, the landlord can take immediate action to end the tenancy. He or she can serve the tenant
with a notice to vacate, giving the
tenant 20 days to leave. If the landlord waits 10 days before acting on the non payment of rent,
he may serve a notice to vacategiving the
tenant 10 days to leave. The landlord must give a copy to the Rentalsman within 7 days of serving
the notice. The tenant has 7 days to pay all the rent after receiving the notice. If the tenant
pays in this time, then the notice does not take effect.
If the rent is late again, the landlord does not have to give
the tenant a second chance. At this point the landlord may give the tenant a
final notice to vacate. The tenant may have to
leave by the date in the notice. The tenant is still responsible for paying the rent.
Can the landlord end the tenancy if the tenant breaks a
condition of the lease?
If the tenant breaks a condition
of the lease, other than rent, the landlord may serve him or her with a written notice of complaint. The tenant has 7
days to set matters straight. If the tenant does not do so, the landlord may inform the
rentalsman by sending a copy of the notice served on the tenant. The rentalsman has the authority
to investigate including inspecting the premises. The rentalsman may require the tenant to
fulfill his or her responsibilities. If the tenant does not, the landlord can ask the rentalsman
to serve a written notice to quit on the tenant.
In an emergency, the landlord may contact the rentalsman directly without the
usual notices and waiting periods. The rentalsman may then investigate immediately.
What can the tenant do if the landlord does not meet a
condition of the lease?
If the landlord has breached any
of his or her responsibilities, the tenant may serve a written notice
of complaint on the landlord. The landlord must fulfill his or her
responsibilities within 7 days of getting the notice. If not, the tenant may inform the
rentalsman attaching a copy of the notice of complaint
served on the landlord. The rentalsman has the authority to require the
landlord to live up to his or her responsibilities.
In an emergency, the tenant may contact the rentalsman directly without the usual
notices and waiting periods. The rentalsman may then make an immediate investigation.
What if the tenant breaks the lease and just moves
away?
The tenant has a contract with the landlord. If the
tenant moves without giving proper notice or assigning or subletting the tenancy, there will be
consequences. The landlord must make a reasonable effort to reduce his or her losses by finding a
new tenant for the remainder of the term. However, the tenant may be liable for the rent if the
landlord cannot find a new tenant.
Assignment and Subletting
How can the tenant get out of a
lease early?
If the tenant needs to end a lease early, he or she can ask the
landlord to agree to this. The agreement should be in writing. If the landlord will not agree the
tenant may be able to sublet or
assign the tenancy to someone else.
A sublet is referred to in the lease as a partial
assignment. This means the tenant rents his or her place to somebody
for a portion of the lease. The tenant may move back when the
sublet ends. If the subtenant has caused damage or owes rent, it
could put the tenant's security deposit and lease at risk. The landlord must send the tenant a
copy of any notice served on the subtenant.
If the tenant does not intend to move back, he or she may prefer
to assignthe tenancy. In this case the
tenant gives the right to the tenancy to someone else who becomes the new tenant. The original
tenant is no longer responsible for the rented premises.
Can the landlord refuse to let the tenant sublet or assign the
tenancy?
If there is no lease, the landlord cannot stop assignment. If there is a lease, it
will depend on what it says. For example, the lease may not permit the tenant to assign or sublet
or, it may say the tenant must get the landlord's consent to do so.
If the lease requires landlord consent, the tenant must inform the landlord. The
landlord has 7 days to reply. The landlord cannot refuse without a good reason. If there is no
reply in this time, the tenant may assume the landlord consents.
Does the tenant have to pay the landlord a fee to assign or
sublet?
The landlord may charge a fee to cover expenses
where the lease requires consent to assign tenancy rights. However, he or she cannot charge more
than $20.00.
What if the landlord sells the rental
property?
When the landlord sells the property, he or she
must send proper notice to the rentalsman and the tenant. The person taking over the property
becomes the new landlord. He or she assumes the responsibilities under the existing lease
agreements.
Evictions
Can the landlord evict a tenant who will not leave after
getting proper notice?
If the tenant will not leave after receiving proper notice, the landlord can ask
the
rentalsmanfor help. The rentalsman may get an order for the
sheriff and his or her officers to remove the tenant from the premises.
The landlord cannot take possession of the rented premises
without such an order. The landlord does not have the authority to evict the tenant by preparing
his or her own written or verbal eviction notice. Only
the sheriff may evict the tenant.
Can the landlord change the locks?
Neither the landlord nor the tenant may change the locks unless they both
agree, or the rentalsman authorizes the change. The landlord cannot try to evict the tenant by
locking him or her out. If the landlord does this, the tenant can take legal action to get back
in the rented premises.
Can the landlord evict a tenant for complaining to the
rentalsman?
No, the landlord cannot force a tenant to move
out because of a complaint. Nor can the landlord try to get rid of a tenant by increasing the
rent immediately following a complaint.
If the landlord takes these actions the tenant can contest. To do so, the tenant
must inform the rentalsman within 15 days of receiving a notice from the landlord. The landlord
must satisfy the rentalsman that he or she did not serve the notice to get even for a complaint.
If the rentalsman concludes it was in retaliation, the notice will not be valid.
Human Rights
What if a tenant or person looking for accommodation faces
discrimination?
The New Brunswick Human Rights
Actforbids discrimination on a number of prohibited grounds. These
are race, colour, religion, national origin, ancestry, place of origin, age, physical disability,
mental disability, marital status, sexual orientation or sex.
Landlords cannot screen prospective tenants or otherwise attach conditions of
tenancy on the basis of these prohibited grounds of discrimination. If somebody faces such
discrimination, he or she should contact the New Brunswick Human Rights Commission.
Offences
Is it an offence for landlords or tenants not to meet their
responsibilities?
The Residential
Tenancies Actcreates offences for certain violations of the Act. For
example, it is an offence for landlords not to deliver security deposits to the Office of the
Rentalsman. It is also an offence for landlords or tenants to change the locks without consent or
permission from the rentalsman. The Provincial
Offences Procedure Actsets out the penalties and fines. Depending on
the offence, fines can range up to $7500.
The Office of the Rentalsman
What is a rentalsman
office?
Rentalsmen are
the officials appointed under the Residential Tenancies
Act. They are responsible for informing the public about tenancy
matters and receiving complaints from landlords or tenants. They may conduct an investigation.
Rentalsmen will try to settle disputes between landlords and tenants. There is a chief rentalsman
and six regional rentalsmen offices in the province.
Does it cost money to use the services of the Office of the
Rentalsman?
No. The Office of the Rentalsman provides services to both landlords and tenants free
of charge. Interest earned on security deposits and landlord administration fees helps to defray
the expenses of the Office.
Appeals
Can a landlord or
tenant appeal the decision of the rentalsman?
Yes. Any landlord or tenant may appeal a decision or notice
that he or she receives from the rentalsman. However, they have only 7 days from receiving the
notice in which to so. In this time, they must apply to the Court of Queens Bench to review and
set aside the decision or notice. They may only appeal if the rentalsman did not have
jurisdiction in the matter or if there was an error of law. Landlords or tenants who wish to
appeal should consider getting a lawyer's opinion. A lawyer can determine whether these grounds
exist in their case.
For More Landlord/Tenant Information contact the Office of the Rentalsman nearest
you. These are:
Bathurst Area Rentalsman
Box 5001, Court House
254 St. Patrick Street, 2nd Floor, Room 217
Bathurst, NB, E2A 3Z9
547-2162 fax 547-2106
Campbellton Area Rentalsman
Box 5001, City Centre
157 Water Street, Room 313
Campbellton, NB, E3N 3H5
789-2362 fax 789-4866
Edmundston Area Rentalsman
Box 5001, 121 Church Street, Room 230
Carrefour Assomption Ltée
Edmundston, NB, E3V 3L3
735-2096 fax 737-4427
Fredericton Area Rentalsman
440 King Street, 4th Floor
King Tower, Suite 420
Fredericton, NB, E3B 5H8
453-2557 fax 457-7289
Moncton Area Rentalsman
Box 5001, 770 Main Street, 4th Floor
Assumption Place
Moncton, NB, E1C 8R3
856-2330 fax 856-3177
Saint John Area Rentalsman
Box 5001, 110 Charlotte Street, 2nd Floor
Saint John, NB, E2L 4Y9
658-2512 fax 658-3096
Public Legal Education and Information Service of New Brunswick is
a non-profit organization. Its goal is to provide New Brunswickers with information about the
law.
PLEIS-NB receives funding and in-kind support from the Department
of Justice Canada, the New Brunswick Law Foundation, and the Department of Justice of New
Brunswick.
PLEIS-NB wishes to acknowledge the help and cooperation of the
Office of the Rentalsman in the preparation of this booklet.
Published by:
P.O. Box 6000 Fredericton, N.B.
E3B 5H1 CANADA
Tel: (506) 453-5369
Fax: (506) 462-5193
Email: pleisnb@web.ca
Revised September 2004