A question that I get from time to time, especially when winter weather is approaching, is whether a landlord can require a tenant to shovel the snow on the property from walkways and driveways. Sometimes the question comes up only because the tenant doesn't have the funds to buy a proper snow-shovel and hence is trying to figure out how to make someone else responsible for shovelling or perhaps providing a shovel.
Traditionally, the question of who is responsible for snow shovelling was determined by the nature of the property. If the property was a single unit like a house or townhouse where only one tenant was making use of the walkways and driveways the arrangement was normally for the tenant to be responsible for snow clearing. If the property was occupied by several tenants then the landlord would make arrangements with someone to provide snow clearing services.
The law that governs the relationship between residential landlords and tenants is the Residential Tenancies Act. What does it say about "snow shovelling" and "snow clearing". In a word, nothing. Where the Residential Tenancies Act is silent on an issue/topic the common view is that the parties are then free to contract with respect to the issue. Accordingly, some leases contain clauses respecting snow clearing and shovelling and thereby set out the responsibility therefore. Where leases are silent, the obligation with respect to snow shovelling and clearing has become an implied term of the lease by the assumption of responsibility by either the landlord or tenant. For many, this informal arrangement seems to have worked.
The informal arrangements, and in fact the legality of the formal arrangements set out in leases were recently clarified by the Ontario Court of Appeal in a case called Montgomery v. Van. That case discusses the issue of snow removal and determines that keeping a property clear of snow and ice is in fact a maintenance obligation that falls squarely into the category of a landlord's obligation. Consequently, this means that a landlord can not evade this responsibility by shifting the snow clearing obligation to a tenant in a lease. If a tenant does not want to shovel snow the tenant does not have to.
To be clear, the Court of Appeal did not say that a landlord may never make a deal with a tenant for the tenant to provide snow clearing services. In fact, so long as the snow clearing arrangement is pursuant to a separate contract, outside of the scope of the tenancy agreement, it would appear that a tenant could be made responsible for snow clearing in exchange for some kind of compensation. At the same time, a tenant's decision to terminate a snow clearing agreement with the landlord can not be a basis for termination of the tenancy.
So, for any landlord counting on the tenant to provide free snow clearing services, you may need to think again about the arrangements and perhaps even the amount of rent to be charged if such a service needs to be hired for a building.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O'Connor Street
Ottawa, ON K2P 1V8
Monday, 29 October 2012
I don't want to shovel the snow!
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