recreational

Let’s get physical: reopening recreational facilities

Obligations and risks for re-opening facilities to tenants
Friday, August 28, 2020
by Lisa N. Mackie

Olympic Heights (fictional property) is a multi-unit residential rental building in Vancouver, British Columbia. Like many other rental buildings across the province, Olympic Heights closed its gym, social room, and swimming pool in March to prevent the risk of COVID-19 transmission in the building.

Now that the province has entered Phase 3 of its Restart Plan, the landlord has received multiple requests from tenants to re-open its facilities. What obligations does a landlord have to re-open recreational facilities to tenants? Are there any risks to re-opening recreational facilities sooner rather than later? Where can a landlord go for guidance? When it comes to starting up a recreational facility, landlords must first sit down with a plan.

Sorry, We’re Closed

As part of several emergency measures put into place in British Columbia in March, landlords were given special permission to restrict or otherwise shut down common areas, facilities and services that present a risk of COVID-19 transmission. This permission was initially given to landlords on March 30, 2020 under Ministerial Order No. M089 and was recently extended under the replacement Ministerial Order (Order No. M195) on June 24, 2020. Under this Order, it is still reasonable for a landlord to restrict a tenant or guest’s access to common areas of a residential property if the restriction is necessary to:

  • protect the health, safety or welfare of the landlord, the tenant, an occupant or a guest of the residential property due to the COVID-19 pandemic;
  • to comply with an order of a federal, British Columbia, regional or municipal government authority, including orders made by the Provincial Health Officer or under the Emergency Program Act; or
  • to follow the guidelines of the British Columbia Centre for Disease Control or the Public Health Agency of Canada.

Whereas the ordinary course of restricting or terminating a recreational facility would require a landlord to deliver a mandatory 30 day notice to tenants along with a corresponding, proportionate rent reduction (see: sections 27, 30, Residential Tenancy Act), these COVID-19 related restrictions are exempt from such requirements.

At the time of this article, Ministerial Order M195 is still in force. Yet with the arrival of Phase 3 of our provincial Restart Plan, not all tenants are in favour of continued recreational facility closures. Ultimately, the decision to re-open a recreational facility is the landlord’s decision to make, and one that requires careful consideration and planning.

Reading the Room

Re-opening a recreational facility means reading the room. Each recreational facility will come with its own re-opening considerations and challenges. When making a plan to re-open a recreational facility, landlords may wish to consider the following questions:

  • Does the facility enable recommended physical distancing (currently two metres)?
  • Will the facility require any physical modifications or supplies to comply with health and safety standards?
  • How will the facility’s use be monitored and regulated?
  • Will there be a limit on the number of patrons in the facility at any one time?
  • Will there be new or reduced hours of operation?
  • Is the facility subject to pre-scheduled bookings, or will it be available on a first-come, first-served basis?
  • How and how often will the facility be cleaned?
  • Will sanitizers or disinfectants be supplied to patrons in the recreational facility?
  • Will patrons be required or encouraged to wear masks?
  • Does the facility prohibit rental units with persons exhibiting COVID-19 symptoms or persons who have returned from recent travel?
  • Who will be permitted to use the facility (i.e. is the facility restricted to residents, or will residents’ guests be permitted)?
  • What sort of restrictions or rules will be implemented, if any? How will they be distributed? How will they be enforced?

Fortunately, landlords needn’t look very far to find help answering these questions.

Both the British Columbia Residential Tenancy Branch and the British Columbia Centre for Disease Control offer COVID-19 educational resources and publications to help guide the public through Phase 3 of the provincial Restart Plan, and help reduce the risk of COVID-19 transmission. These publications include personal hygiene recommendations, public area warnings, and recommended cleaning procedures for public spaces. Before re-opening any recreational facility, it is advisable to consult with these resources and publications and check back frequently for updates. These publications can also be printed and distributed to residents and posted at the recreational room itself. Landlords should also consult with their local health authority for guidance.

If it Ain’t Broke…

Remember that as long as the Ministerial Order remains in force, a landlord may keep recreational facilities closed for the purpose of preventing COVID-19 transmission. Deferred re-opening is especially encouraged in a rental building with a confirmed case of COVID-19, or when there is serious doubt as to whether or not the facility can be safely re-opened.

Before re-opening a recreational facility, extra care should be taken to ensure that the facility is in a condition that complies with current health and safety standards (see: section 32, Residential Tenancy Act). Measures should also be in place to ensure that residents cooperate with their own individual hygiene and physical distancing efforts in the facility, and to maintain reasonable health, cleanliness and sanitary standards throughout the rental property (see: section 32, Residential Tenancy Act). Everyone must do their part to safeguard against COVID-19 transmission.

A Word of Warning

At the end of the day, it is important for both landlords and tenants to keep informed about COVID-19. Seniors and persons with underlying medical conditions or compromised immunity are especially vulnerable to exposure. And while the risk of COVID-19 transmission may go without saying, it ought to be said. Given that COVID-19 is extremely contagious, there is an increased risk of COVID-19 exposure when using common facilities, shared spaces and communal equipment. Posting notices and disclaimers inside and outside of a recreational facility is one way to remind facility users of this risk.

Landlords may also wish to request that patrons sign a user-agreement acknowledging their need to comply with recreational facility rules and procedures, as well as acknowledging the risks they assume by using the communal space and/or equipment. Although physical distancing is the key to preventing COVID-19 transmission, it is important for landlords and tenants to get on the same page when it comes to their use of a recreational facility.

Lisa N. Mackie is a partner and leader of the Strata Property Practice group at Alexander Holburn Beaudin + Lang LLP, a Vancouver-based, full service law firm. Her clients include strata and rental property owners, landlords, and property managers. Email: lmackie@ahbl.ca ; Telephone: (604) 484-1759.

Update to article:
Since the original publication of this article, the special permission afforded to B.C. landlords to restrict or close common areas, facilities and services for COVID-19 related purposes has now been codified in a Regulation to the Residential Tenancy Act. In addition, these new laws prohibit Residential Tenancy Branch arbitrators from awarding tenants compensation or rent reductions as a result of these authorized restrictions or closures, giving landlords more breathing room to re-open common areas and facilities when the time is right and it is safe to do so.

This article is reprinted with permission from LandlordBC’s The Key, 2020 summer issue.

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