Nelligan O’Brien Payne gratefully acknowledges the contribution of Sarah Mansour, Student-at-Law in writing this blog post.
If you own a home on a First Nations reserve or on territory that is subject to a treaty or self-government agreement – and you’re not living in it – you may be tempted to rent it out in order to make some extra money.
Before you do, make sure you’re aware of the rules that apply to residential tenancies in that territory.
First, checdk that your potential tenant is allowed to rent the unit – residence on First Nations lands is restricted in various ways in order to protect the use of the land by members of the First Nation.
Second, find out about your obligations, rights and remedies as a landlord. In general, the provincial laws that govern the relationship between a landlord and tenant do not apply on reserve. As a result, some unlucky landlords have found themselves stuck with troublesome tenants and no convenient or affordable recourse against them.
Provincial law governs the rights and obligations of residential landlords and tenants. For example, in Ontario we have the Residential Tenancies Act, while in Quebec the Civil Code governs residential leases. These statutes create special tribunals that have the power to resolve disputes between landlords and tenants. Such tribunals are more accessible and affordable than the courts, and allow for relatively quick and cheap resolution of tenancy disputes.
However, the reach of provincial law respecting landlord and tenant matters onto First Nation lands is limited, due to section 91(24) of the Constitution Act, 1867, which gives the federal Parliament exclusive jurisdiction over “lands reserved for Indians”, and the Indian Act provisions governing the possession of land. Although the Indian Act and self-government statutes allow provincial laws of general application to apply on First Nation lands, they usually exclude residential tenancies laws. As a result, residential tenancies tribunals across the country frequently refuse to intervene in disputes between landlords and tenants on First Nation territory.
However, in some cases the provincial laws can be applied through an express provision in the lease.
Some First Nations have the power to enact their own residential tenancies rules, which is reflected either in s. 81 of the Indian Act or in the self-government legislation that applies to that First Nation. If the First Nation has not passed its own rules, then the landlord must take the matter the matter to court, where it will be treated as a breach of contract.
This is where the matter can get complex and expensive. Depending on the province and the amount of arrears, the landlord may be able to recover unpaid rent in Small Claims Court. This option is not available in Quebec: under the Code of Civil Procedure, the Small Claims Court cannot hear cases arising from residential leases, so the matter must go to Court of Quebec.
Further, the Small Claims Court in Ontario does not have the power to authorize a landlord to evict a tenant. Therefore, in order to get an eviction order an on-reserve landlord would need to take the matter to Superior Court of Justice.
Fortunately, there is some good news for landlords who are successful getting court orders against their tenants. In territories that are governed by the Indian Act, leasehold interests are not exempt from seizure, meaning that a landlord with an eviction order can repossess the property. Further, the seizure exemptions in the Indian Act do not prevent status Indians or Bands from seizing property situated on reserve. Similarly, some First Nations’ self-government legislation allows property to be seized by the First Nation and by certain categories of people, such as members of the First Nation. These provisions give most landlords the ability to seize property in order to collect unpaid rent.
Before offering your house or unit for rent, it is worth taking the time to answer these questions:
1. Is there a First Nation by-law that applies to rentals in the reserve or territory?
2. Will I be able to collect the rent if the tenant stops paying?
3. Will I be able to evict the tenant and repossess the unit, if necessary?
4. What will I need to do in order to enforce my rights as a landlord?
If you’re satisfied with the answers to these questions, then go ahead and rent out that unit! Just make sure that you choose your tenants wisely and be prepared for any legal expenses that may arise.
If you have any further questions about renting out property on reserve land, contact our Indigenous Law Group.