Posted by FJ on 3/22/2012, 21:23:14, in reply to "Lease question"
One cannot help but, from what you write, identify an underlying issue in your situation which is so fundamental to contract law I could not restrain myself from hazarding a reply at this late date.
First, a residential tenancy is based on contract law. Contract law has not been rewritten for tenants, in any way, except to the extent that the legislature has ousted it by way of certain provisions it has enacted into the RTA.
Most importantly, there are two fundamental, but completely separate elements of contract formation that you ought to consider in terms of any contract - including the one you speak of: 1) Offer, and 2) Acceptance.
They are separate elements. One ought to consider each element separately for clarity of thought. Each element has to take place as a precondition to the emergence of a contract. A contract, in respect of how I speak of it for these purposes, also includes a revised contract which emerges as the result of an alteration of an existing contract. A revised, or altered contract, is simply another contract.
The general rule is that one cannot simply offer something and thereafter conclude that there must therefore be a contract should the other party not take a positive step. Nor can one accept something for which there has not been an offer. The general rule holds true to the extent that some forms of offer can result in acceptance by certain creative designs. For your purposes, the more relevant caveat is that these legal rules hold true to the extent that the RTA does not ouster the legal rules of the law of contract in certain situations.
A landlord cannot "accept" something you did not offer. If the landlord simply decides to unilaterally rewrite a legal contract by adding, removing or altering terms - contract law considers such an action irrelevant to the existence, operation and obligations of the agreement you made with him (or in respect of some certain agreement the law deems has been made between the two of you, whatever the case may be).
To sum, the premise here is actually very simple - albeit poorly understood: IF there is a valid offer AND thereafter there is valid acceptance of that specific offer, by a person with legal capacity and intention to enter into a binding agreement thereby, you probably have essential elements of contract. If not, you may simply have been handed a meaningless piece of paper you could use as birdcage liner.
Judges, nor tribunal members of the LTB, do not (or, more accurately, should never) give legal effect to birdcage liner of course.
However, again, this is subject to the provisions in the RTA which ouster certain contractual rules in certain defined circumstances - "deeming" provisions as they are commonly referred to. Deeming provisions simply declare that something that does not otherwise legally exist, exists. Or, a deeeming provision can take the opposite form - it may declare that something that otherwise legally exists, does not exist.
--Previous Message--
: Hi there. I have an issue that I can't find
: any help for and I thought maybe someone
: here could help.
:
: It is regarding a lease legality. I moved to
: an apt a few years ago and after about two
: years I could no longer afford the second
: bedroom so I took on my friend who is a
: student.
:
: The student never signed a lease, however we
: did notify the landlord and they took his
: name and ID and eventually appeared on the
: notices and letters and the lease but never
: with his signature and he never signed
: anything. The new lease with his name on it
: was never signed because we were planning to
: moving.
:
: What is the legality of this ? If a person
: comes in later do they have to sign a lease
: or was my signing of the lease automatic
: acceptance for him two years later, or is it
: possible the lease is invalid at least for
: one party or both ? Basically I signed in
: 2007, he joined around 2008-2009. If two
: people share a unit do both of them have to
: be on the lease and do both sign or
: is one party signing away for both tenants
:
: Thanks
: SP
:
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