In this scenario the issue is to be ascertained is if the landlord has a right of entry in such cases and any recourse available to the landlord in case of damage to the property.
The Residential Tenancy Act, 2004 states at Section 23 defines a landlord’s right of entry to a leasehold property. This section states that a landlord’s right of entry is confined to two methods. The first is that the landlord may serve 24 hour notice on the tenant and subsequently enter the property after the notice period. On the other hand, the landlord may also communicate with the tenant and obtain his consent and subsequently agree upon a time where he may enter to inspect the property (Black & Stafford, 2013). The tenant enters into a covenant where he must ensure that no damage is done to the leasehold property. Section 21 of the Residential Tenancy Act, 2004 envisages this and prescribes that in case the tenant or any other person does damage the property within the lease period then as per Section 30 (1) of the act the landlord may file an application in court and serve the tenant with a 24 hour termination notice (Clarke, 2017).
As envisaged in Section 23 of the Residential Tenancy Act, 2004 the landlord in this case would have the right to enter the leasehold property in the ways provided in the act. Further if the landlord finds any sort of damage to the property caused by the tenant he would have the right to apply to court and subsequently serve the tenant with a termination notice.
To conclude the landlord would have the right to enter the property as prescribed by the provisions of the act. Additionally the landlord would have statutory remedies available in case of any damage caused to the property.
The issue here is to determine the rights available to the tenant and to determine if the tenant has any recourse in light of the given issue.
Section 16 of the Residential Tenancies Act, 2004 when leasing out a piece of property the landlord must ensure that the property being leased adheres to the minimum standards prescribed by a variety of acts within the jurisdiction of Alberta (Buckwold, 2017). As envisaged by Section 16 this is a statutory duty of the4 landlord. In case of a breach of such a duty the tenant would have the remedy prescribed under Section 37 (1) (a) and (c) of the act. This empowers the tenant to apply to court for compensation for breach of such a duty and recovery of costs for undertaking the landlord’s duty (Oertel, 2016).
In the given case the leasehold property would not meet the requirements of Section 16 and thus the tenant would be able to apply to court for compensation. Additionally if the tenant is made to shovel the property himself he can recover costs for the same under Section 37 (1) (C).
The tenant would have rights to apply to court for compensation for the property not meeting the minimum standards and additionally would be able to incur costs for undertaking the landlord’s obligation.
The issue here is to determine the rights of the tenant in case of not getting possession of the property.
As prescribed by the provisions of Section 16 (a) of the Residential Tenancies Act, 2004 the landlord is obliged to make the leasehold property available to the tenant before the commencement of the tenancy. In such a case Section 38 of the Residential Tenancies Act, 2004 provides a remedy to the tenant in the form of repudiation of the contract, recovery of damages and special damages in case the breach was foreseeable by the landlord (Wolf, 2013).
In the given set of facts and circumstances the landlord did not make the leasehold property available to the tenant. Moreover since an agreement had been entered into he could foresee the resulting breach. Thus he was in breach of his covenants under Section 16 (a) of the Residential Tenancies Act, 2004. In this case the tenant would have the right to remedies under Section 38 of the act including special damages as this was a foreseeable breach.
To conclude the tenant would have the right to get possession of the property, in case he does not he would have remedies available to him under the act.
Black, J., & Stafford, D. (2013). Housing policy and finance. Routledge.
Buckwold, T. M. (2017). The Reform of Judgment Enforcement Law in Canada: An Overview and Comparison of Models for Reform. Sask. L. Rev., 80, 71.
Clarke, D. (2017). Home Court Advantage: Evidence from an Unusual Landlord-Tenant Reform in Canada.
Oertel, C. Y. (2016). The Tenancy Law Reform Act of 2001 and the Risk Perception of Residential Real Estate Investments. In Impact of Public Policy Measures on the German Real Estate Market (pp. 34-56). Springer Gabler, Wiesbaden.
Residential Tenancies Act, 2004.
Wolf, M. A. (2013). Powell on Real Property.