Can a Landlord and Tenant Legally Agree to Waive Rights or Duties Prescribed Within the Statute Law?

Terms Within A Lease or Other Form of Agreement That Are Inconsistent With the Residential Tenancies Act, 2006 Are Void and Unenforceable.

Understanding the Supremacy of the Residential Tenancies Act, 2006 As Applicable Regardless of Agreed Lease Terms

Residential Lease Document Despite that a landlord or tenant may be willing to waive certain rights or duties that are statutorily prescribed, with only a very rare exceptions, such rights and duties are unalterable and any terms within a lease or other agreement purporting to waive such rights or duties are void and unenforceable.

The Law

In Ontario, most residential tenancy relationships are governed by the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 which contains various statutorily prescribed rights and duties that are unalterable despite any lease or other form of agreement that may purport to do so. Specifically, the Residential Tenancies Act, 2006, states:

Provisions conflicting with Act void

4 (1) Subject to subsection 12.1 (11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.

There are many cases to confirm that attempts to contractually alter the prescribed provisions within the Residential Tenancies Act, 2006, or regulations thereto, are void and unenforceable.  Such cases, among others, include White et al. v. Upper Thames River Conservation Authority, 2020 ONSC 7822, wherein each it was said:

[28] According to s. 4 of the Act, should a provision in a tenancy agreement be found to be inconsistent with the Act or the regulations, the provision is void.

Summary Comment

Regardless of any lease terms or other form of agreement, a landlord and tenant are unable to alter or forgo the statutory rights and duties as prescribed within the Residential Tenancies Act, 2006, and regulations thereto, and any agreement purporting to do so is void and unenforceable.

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