Mobile Home – Freedom of Choice to List With Any Agent #60

By Gerry Neely
B.A. LL.B.

An arbitrator acting under the provisions of the Residential Tenancy Act has provided reasons for a decision involving the owner of a mobile home in a park, who had listed her home for sale with a real estate company not approved by the landlord. When the tenant had moved her home onto a pad in the park, the tenant had entered into a tenancy agreement which made the rules of the park part of the tenancy agreement. The Application for Tenancy which was signed by the applicant contained an acknowledgment on her part that she had read the park rules and that she agreed that they were entirely reasonable. The rules allowed her to sell her home privately if she wished to do so. If, however, she wished to employ an agent, then she was obliged to list the home for sale with two companies named in the rules.

When she listed her home with the agent of her choice and that agent placed his sign in the window of the tenant's home, the tenant's refusal to remove the sign resulted in a termination notice. The tenant asked for an order setting aside the Notice of Termination on the basis that her only objection to the park rules was the rule which restricted her freedom to sell through a real estate agent of her choice.

The arbitrator reviewed Section 4 of the Residential Tenancy Act, which describes the terms that are permitted in a tenancy agreement. Those terms must be reasonable and they must deal with the tenant's use, occupation or maintenance of the residential premises and/or a service or facility used in connection with those premises. The arbitrator's initial comment was that limiting a tenant's right to choose an agent had nothing to do with the terms permitted by Section 4. The arbitrator then said that if I am wrong in coming to this conclusion, can it be said that the refusal to allow the tenant to choose her own agent is reasonable. If it is not reasonable, then the rule limiting her to an agent chosen by the landlord would be unenforceable. The landlord's position was that the rule was necessary to protect the landlord's property from abuse, from real estate agents who would improperly conduct themselves on the park property. The landlord further argued that by granting a monopoly to certain companies to sell within the park, the convenience, safety and welfare of everyone residing in the area would be increased.

The difficulty for the landlord with that argument was that the officer of the landlord company who gave evidence acknowledged that he was the president of both the landlord company and one of the companies through which the tenant was expected to list her home for sale. The president also acknowledged that an indirect benefit of twenty five per cent commission was received on the mobile homes which the second company sold. The arbitrator also found as a fact that the landlord withheld its consent where the tenant wished to sell his or her home through an unauthorized company. The arbitrator examined Section 12 of the Residential Tenancy Act which allows a tenant to assign or sublet his interest in a tenancy agreement with the consent of the landlord, and provides that the landlord shall not arbitrarily or unreasonably withhold his consent to such assignment or subletting. As a result of his interpretation of these Sections and of his findings of fact, the arbitrator held that the rule restricting the sale of mobile homes to those companies listed in the rules, was unreasonable and therefore unenforceable.

The arbitrator delivered a final blow at the enforceability of the rule by stating that it was a breach of the fundamental freedom of association guaranteed by the Charter of Rights. The notice of termination was set aside and presumably the tenant was then free to sell through the agent of her choice.

This decision cannot be considered a precedent that will be binding upon other tribunals or Courts. It does, however, provide a reasonable interpretation of Sections 4 and 12 that can readily be followed in somewhat similar circumstances.

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