Thursday, 27 March 2014

Terminating the Employment of a Superintendent and Eviction

The fact is that a great many apartment buildings have someone in the building who acts as a superintendent of the building.  The "super" is the person that other tenants go to with complaints, to get things fixed, to serve notices, to make noise complaints, to pay rent, and for anything else such as lockouts, extra keys etc..  The "super" is normally in a position to help tenants with whatever issue has come up but if not, it is the Super who raises the issue with the proper people to get the issue addressed.  Many superintendents provide basic property management services to the landlord which often includes maintenance and repair services for things like dripping taps, door issues, appliance problems, heating and cooling, and other things that fall into the general category of "handy man services".

After considering all of the things that the Superintendent does, for all of the tenants in the building, it becomes quite clear that having a good superintendent can go a long way to having a positive relationship with the landlord.  Unfortunately, the converse is also true and a bad superintendent can be a big problem for tenants and hence be a big problem for landlords.

How can a superintendent be bad?  Imagine a superintendent who fails to clean the building, fails to respond to complaints, loses rent cheques, puts all the elevators on service at the same time, doesn't deal with noise complaints or other anti-social behaviour (or worse contributes to anti-social behaviour), and is generally un-responsive to tenant issues and fails to actively manage the building.  Bad superintendents who are allowed to continue to manage buildings will often cause good tenants to give up in frustration and they hand in their notice of termination and move.  The building, in time will get a reputation, and as the good old tenants move out--less desirable new tenants will be allowed to move in---which causes more good tenants to move out.  The fact is that poor management and a bad superintendent can ruin a building for tenants who want a nice place to live and further, it can cause the building owner to suffer great financial losses in the investment in the building.  From this perspective, having a bad superintendent is not in the interests of the tenants or the building owner.

So what is the recourse for tenants and landlords when a "superintendent" is bad and fails to do their job properly?  In relation to tenants, the answer is to treat the actions of the superintendent as the actions of the landlord.  Hence, if the superintendent is the person to whom the tenants are directed to communicate, and that superintendent fails to do what is required, then the remedy includes applications to the Landlord and Tenant Board and any agencies that may have jurisdiction (i.e. Property Standards).  Interestingly, with respect to behaviours that that are contrary to the Residential Tenancies Act, tenants may indeed have recourse against the superintendent personally (more on that in another article at a later date).

The main point today is what can the landlord do if the superintendent is a bad superintendent.  The answer is not simple and more is involved than what one might first suppose.  As a superintendent is an employee, landlord's will have to ensure that they deal with the employee in accordance with employment standards legislation (and associated laws like WSIB).  Further, the employee's rights must be respected and it would be a mistake to disregard the employee's working conditions and applicable human rights codes (OHRC).  Employment relationships can be complicated, especially when the employee has been working for the employer for a longer period of time.  Accordingly, getting legal advice with respect to employment law matters is always helpful when dealing with problematic employees.  This article does not pretend to deal with employment law issues and I refer anyone with those questions to a good employment law lawyer.

The question then is what does the Residential Tenancies Act provide with respect to superintendents?  What little there is in the RTA, respecting superintendents, is set out in section 93 and 94 of the RTA.  Both of these sections deal with evicting a superintendent from a building after they have been terminated from their employment.

Section 93 of the RTA provides as follows: (1) If a landlord has entered into a tenancy agreement with respect to a superintendent's premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.  (2)  A tenant shall vacate a superintendent's premises within one week after his or her tenancy is terminated. (3) A landlord shall not charge a tenant rent or compensation or receive rent or compensation from a tenant with respec tot he one-week period mentioned in subsection (2).

Section 94 of the RTA provides:  The landlord may apply to the Board for an order terminating the tenancy of a tenant of superintendent's premises and evicting the tenant if the tenant does not vacate the rental unit within one week of the termination of his or her employment.

An of course, as you are reading these sections you are perhaps wondering--what is a superintendent's premises?  Fortunately, that is defined in section 2 of the RTA which provides:  "Superintendent's premises" means a rental unit used by a person employed as a janitor, manager, security guard, or superintendent and located in the residential complex with respect to which the person is so employed.


DISCUSSION

The general import of the provisions of the RTA (s. 93 & 94) is that superintendents, once fired from their job, have a week to vacate their apartment for which they do not have to pay rent for that week.  If the terminated superintendent does not move out, the landlord may apply to the landlord and tenant board for an eviction order.  In fact, the Landlord must apply to the Board to evict the superintendent if the superintendent does not move out.  Self-help evictions (i.e. changing the locks etc.) are not available against former superintendents.

On the surface, the RTA rules seem simple enough--once fired, a superintendent needs to get out quickly.  The fact is that it isn't quite this simple.  The termination of employment of a superintendent is often fraught with stress and unseemly allegations.  Often, where the landlord is wanting possession quickly it is because the superintendent was fired for misconduct or some other problem that precluded a long notice period where the superintendent worked out the notice and was given time to make alternate arrangements.  In the circumstances where a quick termination is sought, the fired superintendent often finds that the landlord is not paying any severance or notice and has taken a "for cause" position on termination.  Often enough, this comes as a bit of a surprise to the ex-superintendent.

The superintendent, freshly fired, is angry.  That superintendent wants to make employment law related claims against the landlord and wishes to do this in response to the landlord's demands for vacant possession in one week.  In these circumstances, freshly terminated superintendents will seek to assert a wrongful termination, want damages, possible reinstatement for human rights code violations and they will want to raise this before the landlord and tenant board.  Will the Board hear these arguments?  For the most part, the answer is "no" (see Onucki v. Fudge [1990] O.J. No 2175 (Ont. Div. Crt)).

The Landlord and Tenant Board, looking at how the provisions of section 93 and 94 are structured, considers its jurisdiction and scope of inquiry limited to whether the employment was terminated, and whether the formerly employed is in a superintendent's unit.  Beyond that, the Board does not adjudicate employment issues as it has no jurisdiction or authority to determine whether a termination is proper, whether proper notice was given under the Employment Standards Act or at common law, nor whether any other employment (contract) related issues were breached etc..  The Board can not engage at that level given that it's jurisdiction as set out in the RTA does not authorise it to adjudicate those disputes.

The result of this is that former superintendents get very frustrated at Board hearings as they try to explain how the landlord's actions are unfair etc..   The Board's consistent response is that they refuse to hear those issues.  Consequently, most hearings involving former superintendents don't last very long as the proof of terminated employment is easily established and an eviction Order follows.

IS THERE NOTHING THAT A FORMER SUPERINTENDENT CAN DO?

Aside from legal action in the employment context (which this article does not address), the Superintendent does have some recourse at the Landlord and Tenant Board.  It is not a rubber stamping eviction process and a former superintendent who focuses on those issues that the Board does have control over can indeed have some success at the Board.

Depending on one's perspective, I presume that the "one week" to vacate will strike many people as being a very short period of time.  Imagine being handed a pink slip on a Monday and being told to be packed and moved by the following Monday.  Who among us could really move that quickly?

With respect to this time period, the former superintendent may indeed ask the Board to delay the eviction beyond the 7 day period to a time that is more reasonable.  The authority to extend the time is under section 83 of the RTA--which is the general discretion section.  Will "discretion" be exercised?  That question is a factual question which will depend on the particular circumstances of each case.  Significant factors will include whether the former superintendent occupies a special supers unit that is needed for a new super (i.e. is it on the ground floor?), the extent of the superintendent's duties and how important those duties are to the operation of the building.  The more important it is for the operation of the building that that landlord regain possession of the unit the less likely it is that discretion will be exercised in favour of the former superintendent for any extended period of time.

As indicated above, the Board's inquiry into employment related issues is limited by the wording of section 93 and a lack of jurisdiction to adjudicate employment type issues.  However, does this mean that there is nothing in the employment relationship that matters to a determination by the Board?  In fact the answer is that some employment issues may indeed be relevant to the Board's determination.  An example is the case of Maystar [2000] O.R.H.T.D. No.127 (O.R.H.T), wherein eviction was refused because the Board viewed the landlord's reason for terminating the employment and hence seeking eviction as arising from the superintendents attempt to enforce his legal rights (albeit under legislation that was separate from the Tenant Protection Act (now the Residential Tenancies Act).   How does this logic flow?  The answer is in section 83(3)(c) where the Board is mandated to refuse eviction if the application is brought for the reason that the tenant has attempted to secure or enforce his or her legal rights.

I'm not confident in the reasoning of the Maystar decision, but nevertheless, it is interesting as the focus of the defence to the application speaks to the Board's jurisdiction.  With a sympathetic story, (and in Maystar there certainly was sympathy for the super) and the right focus on the Board's jurisdiction a former super may indeed have success in delaying eviction or even denying it.

Another interesting defence to former superintendent eviction matters is an inquiry into the timeline of a person becoming a superintendent in a building.  Often enough, a person becomes a superintendent after already having lived in the building as a tenant.  Where the status of the person changes from tenant to superintendent (and the rental unit does not change), it is arguable (and winnable) that the termination of employment results in the former superintendent becoming a "regular" tenant in the building again and hence no eviction.

SUMMARY

I do believe that in most instances, the termination of a superintendent will result in an eviction within a short period of time.  No notice of termination is required and the tenancy of the Superintendent terminates by operation of law.  The RTA presumes the eviction of former superintendents in short order and there is nothing in the case law that lends to a statutory interpretation favouring protection of these tenancies.  That being said, there are exceptions to every general rule in landlord and tenant law and the rules related to superintendents are no different.  When it comes to evicting superintendents it is worthwhile to try and negotiate a reasonable termination date (beyond the 7 days if possible), but at the same time to back up that negotiated date with an Order from the Board--perhaps obtained on consent.

Michael K. E. Thiele
Ottawa Lawyer

Monday, 24 February 2014

Vitamin D, Seasonal Affective Disorder and renting a new Apartment.

How important is the location of your apartment to your mental health, enjoyment of life, vitamin D production, or even to treating seasonal affective disorder?  When renting an apartment (or buying a house for that matter) I suggest that there is one very specific thing that everyone should do, but which no one really does, to ensure that the precise location of your apartment and its orientation contribute to making you happy. 

The Sun
My statement in this regard makes an assumption that human beings, when exposed to the sun are more likely to be happy.  Vitamin D, seasonal affective disorder, and generally one's mood, is affected by exposure to daylight and to the length of our day (measured by light).  As regular readers of this blog know, I haven't recently run off and become a medical doctor or researcher and hence my statements about the importance of exposure to the sun are anecdotal.  That means I presume it to be true, from my own experience in liking access to sit in the sun, the impact on my mindset at sunrise, and from the same affirmation by many people about how much better the sun makes them feel.

So why this article?  Recently, I had the great pleasure of chatting with a good friend of mine who works for a very large property management company.   He works with the residential rental portfolio that consists of several thousands of rental units and great number of apartment buildings.  His job involves analyzing the portfolio and the buildings within the portfolio.  In his work he is looking for indicators that impact profitability and that includes apartment turnover, the amount of revenue generated by buildings, the costs of maintaining, upgrading of units etc..  How utterly boring you might think?  At least I thought so until he told me about a fascinating little fact about the turnover of apartments within apartment buildings.

Because he has all of the data in relation to an apartment building and the individual units, my friend was able to review a number of data sets--which included the date of rental, the length of a tenancy, the amount of rent charged, the costs of maintenance to a unit, legal costs in relation to a tenancy.  He took this data and then correlated those data sets to the exposure (North, East, South, West) of the rental units within the apartment buildings.  The results of this analysis are quite fascinating.  For the buildings to which he applied the analysis he found that the "sun" side of the building--where the windows and balconies of individual apartments got morning sun to early early afternoon sun--the rents were higher, the tenancies longer, and the costs to maintain the units was lower.  Complaints from the sunny side of the building were lower and the time to rent a vacant unit was lower.  These findings were apparent in the numbers over several years and over many buildings.

My friend's analysis of tenant turnover based on a unit's exposure to sun was quite fascinating to me as I immediately thought what an incredibly useful fact this is in the course of deciding what apartment to rent.  How many people when renting an apartment or house consider the exposure to the sun in deciding which unit to rent?  If, when renting, there are choices amongst vacant units then it would be worthwhile to consider how the sun tracks over the rental unit and the rental unit's windows.

Does considering how the sun moves mean you have to hang out at the building all day long?  Of course not! In the days when there is an app for everything there is a handy website at www.suncalc.net that allows you to enter a specific address and then it maps the track of the sun over that address.    This is a handy tool to use.  What you need to do though, to make use of what it shows, is orient the vacant rental unit that you are considering renting within the building so that the sun tracking data is useful to you.

I'd be interested to hear from anyone who has done this or who has moved based on sun exposure to hear of your anecdotal stories and experiences.

Michael K. E. Thiele