On July 10, 2021, the Order enabling landlords to keep their recreational facilities closed to prevent COVID-19 transmission was repealed. Under those prior protections found in Ministerial Order M195, landlords could restrict or prohibit access to common amenities of a rental property without any corresponding rent reduction owing to a tenant if the restriction was necessary to:
- protect the health, safety or welfare of the landlord, the tenant, an occupant or guest of the rental property due to the COVID-19 pandemic;
- comply with an order of a federal, British Columbia, regional or municipal government authority, including orders made by the Provincial Health Officer or orders issued under the Emergency Program Act; or
- to follow guidelines from the BC Centre for Disease Control or the Public Health Agency of Canada.
Now, landlords wishing to keep their recreational facility doors closed to tenants are opening themselves up to a potential monetary claim.
Back to the Future
The repeal of Ministerial Order M195 means the return of section 27 of the Residential Tenancy Act. Section 27 only permits landlords to close non-essential services or facilities (like swimming pools, social rooms, and gyms) if the tenant is provided with 30 days’ written notice on the mandatory form published from the Residential Tenancy Branch (available here) and the landlord reduces the tenant’s rent in an amount equivalent to the reduction in the value of the tenancy agreement resulting from the removed or restricted service or facility. And while the COVID-19 pandemic is hardly in our rearview mirror, landlords are left with the responsibility of either driving forward with re-opening their recreational facilities or reducing their rental income.
Yes, We’re Open
Opening a recreational facility is not as easy as unlocking the door. Keeping recreational facilities running smoothly and safely requires careful planning. At this time, the BC Residential Tenancy Branch is acknowledging that some people may not be comfortable using common areas without some modifications. To that end, the Branch is encouraging landlords and tenants to work together to find solutions that fit their particular rental property. A modified recreational facility might include implementing ongoing mask mandates, setting occupancy limits, maintaining physical distancing minimums, requiring advance bookings, reducing daytime/evening operations, and leaving room for regular cleaning between uses.
Working together also means working safely. As recreational facilities and other amenity rooms will be a place of work and play, landlords will need to plan their re-opening in a way that complies with WorkSafe BC guidelines and in a manner that follows public health recommendations. One of the key components of a recreational facility re-opening is the creation of a “communicable disease plan” (template available here). Developing a communicable disease plan means assessing the specific area for re-opening, identifying the associated risks of the area (e.g. poor ventilation; crowded space), and adopting the procedures/protocols to minimize those risks (e.g. HVAC upgrade; occupancy limits; cleaning-related closures). The communicable disease plan should also include:
- policies that prohibit persons who are experiencing communicable disease symptoms from using the facilities;
- public reminders to persons to wash their hands regularly and cover their coughs and sneezes;
- provision of hand-hygiene supplies; and
- routine cleaning plans.
Extra! Extra! Read All About It!
Making a plan to re-open a recreational facility also means making that plan known. Posting signage that reminds tenants about the rules and regulations governing facility use, and regularly educating staff about their obligations in safeguarding the facility are key steps to any successful reopening. Landlords may also wish to consider circulating a copy of their communicable disease plan so that both tenants and staff know about the hard work you are doing to keep the facilities they share safely. Remember that spreading the word also means staying on top of any updated guidelines and directions from our health care professionals.