Let’s face it. Managing a rental property during a pandemic comes with its own unique challenges, and staying on top of the latest Ministerial Orders can feel like a full-time job in itself. Since the Minister of Public Safety and Solicitor General issued its indoor mask mandate on November 24, 2020, landlords across the province have been faced with questions about how these requirements impact the rental housing industry. Can a landlord require tenants to wear masks in common areas? How can a landlord implement a mask mandate in their rental building? What happens if a tenant refuses to wear a mask? When it comes to implementing a mask mandate at a rental property, landlords should ensure they’ve got it covered.
The Order of Things
On November 24, 2020, the Minister of Public Safety and Solicitor General issued Ministerial Order No. M425 in an effort to coordinate a provincial approach to using face coverings in indoor public spaces. This latest Order comes off the heels of various other Orders made under the Emergency Program Act since British Columbia declared its state of emergency on March 18, 2020, because of the COVID-19 pandemic. The goal of this Order was to implement additional preventative measures to prevent the spread of COVID-19.
Notably, the current Order only extends to indoor public spaces as defined under the Order, such as retail businesses, restaurants, malls, conference centres, taxis, public transportation vehicles, and airports. Indoor common areas of office buildings, hotels, hospitals, post-secondary institutions, and courthouses are also covered. Although the current scope of the Order does not apply to common areas in multi-unit residential housing buildings (e.g. rental apartments and strata corporations), it is expected that the Order may be extended to these areas in an effort to further slow the transmission of COVID-19. To that end, it is currently “strongly recommended” by the British Columbia Residential Tenancy Branch to wear masks in common areas and shared facilities in rental apartment buildings and strata corporations, including in elevators, hallways, lobbies, stairwells, laundry rooms, and exercise areas.
May I Take Your Order, please?
Because the Residential Tenancy Act requires landlords to maintain the residential property in a manner that complies with health, safety, and housing standards, it is open to landlords to institute their own indoor mask policy for common areas and facilities for the purpose of preventing COVID-19 transmission. Until an Order is made with respect to residential rental buildings and strata corporations, landlords would be best to adopt a policy that takes from the current Ministerial Order as it pertains to face-covering requirements (i.e. a medical mask or non-medical mask of tightly woven fabric and worn in a manner that covers the nose and mouth), and face-covering exemptions (e.g. persons under the age of 12 or who are unable to wear a mask because of a health condition or disability). A full list of mask exemptions can be found in section 4 of Ministerial Order M425.
Covering Your Bases
When implementing a mask mandate, it is important for landlords to be clear and consistent with their communications. Posting notices in the common areas and the exterior of the building which alert both residents and visitors to these requirements is a good way to get the word out. Updating building “rules” or amending residential tenancy agreements to specifically cover these requirements is another way to clearly delineate a tenant’s responsibility in reducing the risk of COVID-19 transmission in a rental building. As with any term of a tenancy agreement, landlords should also be mindful to review their current mask mandates to ensure compliance with the latest laws of the land. What may be the law today, may not be the law tomorrow.
What if a tenant advises a landlord that they qualify for a mask exemption? The current messaging from our provincial health officer is that we need to take individuals at their word regarding their medical entitlement to a mask exemption. Accordingly, asking tenants to confirm that they have a medical exemption and not just a personal preference to avoid wearing a mask is sufficient due diligence. Because medical information is highly sensitive and highly personal, there has been no requirement on private organizations or housing providers to require “proof” or evidence of an individual’s entitlement to the medical exemption – at least at this time. Given that masks will likely be part of our day to day living for the foreseeable future, it is possible that regulations will be implemented which clarify what housing providers or private organizations can and cannot ask for when it comes to mask exemptions.
Asking for Directions
In the event that a tenant or their visitor refuses to comply with a landlord’s mask mandate or any of our Ministerial Orders, landlords can look to the Residential Tenancy Act for guidance. Section 47 of the Residential Tenancy Act allows landlords to end a tenancy on 1 Month Notice in the event that a tenant or their visitor:
- significantly interferes with or unreasonably disturbs another occupant;
- significantly interferes with or unreasonably disturbs the landlord;
- seriously jeopardizes the health, safety, or a lawful right or interest of another occupant or the landlord;
- puts the landlord’s property at significant risk;
- engages in illegal activity that has adversely affected or is likely to adversely affect the quiet enjoyment, security, safety, or physical well-being of another occupant;
- engages in illegal activity that has jeopardized or is likely to jeopardize a lawful right or interest of another occupant or the landlord; or
- fails to comply with a material term of their tenancy agreement and has not corrected the situation within a reasonable time after receiving written notice to do so.
As ending a residential tenancy is considered to be the last resort to resolving landlord and tenant disputes, it is important for landlords to document their efforts to notify tenants of the mask mandate and to genuinely seek their compliance before pursuing an eviction.
Need help implementing a mask mandate for your rental property? Feel free to contact our group.