Monday, 29 October 2012

I don't want to shovel the snow!

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
Tel: 613.563.1131
mthiele@pqtlaw.com

42 comments:

  1. What happens if a tenant occupies a rural farm house and the driveway is subject to snow drifting? The drive way is 200-300 feet in length. Who is responsible for snow removal if the tenant does not have a plow and the landlord does not supply a plow? The landlord was upset that the driveway was not clear for her car to travel up but the tenant could easily pass in his 4x4.

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    1. Whether in a rural or urban Ontario setting a landlord's obligations under the Residential Tenancies Act are the same. Section 20 of the RTA provides that a landlord is responsible for providing and maintaining a residential complex. This obligation includes snow removal and keeping a driveway clear of snow. Snow removal is sometimes referred to in a lease as being the obligation of a tenant---i.e. the landlord tries to shift the obligation to the tenant by the terms of the lease. The Ontario Court of Appeal considered such a situation in the case of Montgomery v. Van [2009] O.J. No 5933 (Ont. C.A.), and held that a Landlord is NOT permitted to shift the maintenance obligation to the tenant as a term of the residential lease. The law does not allow the landlord to shift its statutory responsibilities under the Act to the tenant. The Court did go on to say that the landlord could contract separately with the tenant (separate from the lease) for snow clearing--but the tenant's willingness to contract in this regard could not be tied to the right to lease under the RTA.

      In the situation you describe it sounds to me like your landlord is responsible to plow your driveway and pay for it to be kept clean. That the tenant does not complain is a bonus for the landlord. If the tenant wishes, the tenant could demand regular plowing of the driveway--paid for by the landlord---and if the landlord fails to do it the tenant could take the landlord to the Landlord and Tenant Board for an Order requiring the landlord to do the work and a rent abatement.

      Trusting that this is helpful to you.

      Michael K. E. Thiele

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  2. Hi Michael. I live in the upper part of a house and the landlord lives in the basement. Wondering who is responsible for removing the snow from the entrance to my front door and steps leading to it if I am away for a few days or even a week at a time. Thanks, appreciate your thoughts.

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    1. Hi Dan:

      The general rule is that the Landlord is required to repair and maintain the property and this includes shoveling the snow. It is not something that can be made a part of a lease agreement as the tenant's obligation. The Ontario Court of Appeal in Montgomery v. Van was fairly clear that snow shoveling is a landlord's duty subject to contracting out to a tenant (outside of the lease agreement) or to other third parties.

      Prior to this decision, there was a general understanding that tenants in multi-premises did not shovel as the walks served the whole building and hence was the responsibility of the landlord. In single unit buildings, where the tenants rent the entire complex, the understanding was that tenants would shovel as they were doing it for themselves. This argument gets some traction still in some cases but I think the safer or better view is that the responsibility for snow shoveling rests with the landlord.

      Michael K. E. Thiele

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    2. Thanks Michael! That helps me a lot. The landlord DID include in my lease that the tenant (me) would keep the front walk way clear of snow and ice (and I have been), but wondering how I should navigate this now with my landlord. He seems to think that I'm locked in to the lease agreement (that I would shovel) although I do understand from the case you mentioned above that I can't be forced to comply with that part of the lease agreement. What should I do? Thanks again!

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    3. Hi Dan: Consider writing to the landlord and advising him that the provision of his lease requiring you to shovel the snow (i.e. maintain the property) is illegal. Ask him to confirm that he will do the shovelling. If he refuses or disagrees with your position consider filing a T2 application at the Landlord and Tenant Board (Tenant's Rights) It is free to file. You can ask the Board to rule on the validity of the clause in dispute and direct the landlord to shovel snow. You may combine the the T2 with a T6 (maintenance) which does have a small fee to file.

      While it is tempting to just not do it, I don't recommend letting the property become dangerous to users. While the responsibility may be the landlord's, you could be liable to third parties who slip and fall etc. so it is worth it to get the responsibility clarified in law.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  3. Michael,

    Thank you again for the detailed response. I appreciate your council on this matter. I've been shovelling all winter (because I do enjoy it) and I haven't had any issues with my land lord. At the initial snow fall this year, he became irate that the snow wasn't shovelled by 8 am the following morning. Hence I wanted to seek out these questions from a professional to know how to handle the situation (seeing that I'm away a lot for my employment). Appreciate your answers! Thank you kindly

    Dan

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  4. I am renting one room in a house with other four tenants. My concerns was whose responsibility it is to clear to the snow, tenants or landlord? Thanks

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    1. Hi: From how you've written the comment I presume that there are five separate tenancies in the house--like a rooming house? If there are multiple tenancies in the rental complex (house) then I don't think there is even the slightest argument that the tenant(s) are responsible for snow shoveling. That obligation rests with the landlord as part of its maintenance obligation under the RTA.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thanks, I appreciate your response.

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  5. Michael,
    I rent the bottom unit of a triplex and have been having many issues with the tenant above me as far as him having a very frequent guests over (stays for weeks at a time) who is a heavy-footed "heel-walker" as well as very loud (always sounds likr shes arguing, but shes just loud!), and happens to love listening to her music so loud for a few hours at a time, that i cannot hear my own tv or even talk on the phone without discomfort. The bass literally makes my ceiling fan and lights vibrate.
    She then leaves, and their is peace once again in the building. The tenant does alsi have a dog that was never really a problem before, but now for some reason she barks on and on constantly when she is alone. Maybe she has gotten old and needy now, but just a guess.
    Anyways, i have over the years expressed these issues with my landlord and truthfully not much has been done or changed, but now that this "guest" is staying more often then not, I have had to go to my landlord with noise related complaints much more often in this last year, and he is just sick if hearing me apperently. It doesnt help that he doesnt live on site, and that he is very chummy as well with the upstairs tenant.
    After my last issue, i received a letter from the lsndlord's paralegal warning that i stop "harassing" both the landlord and the above tenant with my "frivolous claims and vexations" or they will take action against me!
    I have always made notes of all the issues over the years as i feared that one day i would no longer be able to suck it up anymore, and i have MANY recordings of the loud music and the barking dog as well.
    I am now going to file against my landlord for that "reasonable enjoyment" clause, so if there is any advice at all you can give me, i would greatly appreciate it!!!!!

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    1. Hi: Good luck. The key to success will be having the evidence to prove that what you are putting up with amounts to a substantial interference with your reasonable enjoyment of the premises. If you can prove that, then the paralegal's letter should be sufficient proof to establish that the landlord intended to do nothing about your complaints.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. What if I live in a building with over 224 units and my landlord hasn't cleared on the the emergency exits from the underground to outside. When I asked they said it's the gardeners jobs and that no one uses that stair case.

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    1. Hi:

      As far as I know there isn't anything in the Residential Tenancies Act that specifically addresses the issue of clearing emergency exits. The duty to maintain and keep the property in a state of good repair is a general obligation under the Residential Tenancies Act and I do believe this would include the removal of snow in front of emergency exits. In what you are describing, it seems that the landlord is taking the position that the staircases you are referring to do not constitute "emergency" exits. Just because there is an exit I guess it does not mean that it must be clear and useable. The task would be to find out if any part of the law requires the exits you are referring to be free, clear, and unobstructed. From an emergency perspective I think that would be something that the fire marshall would have jurisdiction over. It may be worth a call to see if they would inspect and make an order.

      Alternatively, the use of the exit and having the use of the stair case during most of the year is a service. You could assert a claim against the landlord for a reduction in service and seek an order requiring the staircase to be maintained. The argument isn't based on "emergency" but on the idea that you have a use of the staircase and the failure to maintain the staircase warrants a reduction in rent.

      Aside from those avenues of inquiry, I'm fairly certain that if you check with the Property Standards Department of your City that you're going to find a requirement in the property standards by-law or similar by-law that a landowner must maintain staircases and keep them free of snow and ice. Perhaps take a look or call the City to request an inspection.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Hi Michael, I own a cottage in NWO on someone else's land that I inherited from my parents. The cottage was built in 1952 with a handshake and $15 a year compensation by my grandfather with the father of the present owner. There was never a written lease and I am unsure if the property the cabin is built on was registered land at that time. When the son of the first owner took over the land the rent increased, and kept increasing, until last year when we said we felt it was excessive. He relented and then served us written notice (not from a lawyer) that he wants us to remove our improvements from his land in that he has other plans for it. I don't believe our cottage is moveable, and if moveable, the road is overgrown with trees and unless many come down, it would be impossible. Do we have squatter's rights? Do we have a 99 year lease based on the $15 and a hand shake?

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    1. Hi: An interesting question. I'm going to have to refer you to a real estate lawyer to get into the technical questions of property law. Squatter's rights, adverse possession, are concepts that ring a bell--but that bell is faint these days. I could offer you an opinion on whether you are covered by the Residential Tenancies Act but frankly, I don't think that is going to solve the issue for you. Try to find a lawyer specializing in real estate, one that has been around for a while. A lot of property law concepts are fairly abstract and they don't come up very often. I think you would be looking for a lawyer with a fair amount of experience--especially in rural areas, lake areas, where property lines are less than precise.

      Good luck

      Michael K. E. Thiele

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  8. Hi there. I live in a triplex and was being paid by the landlord to do the driveway, however, due to circumstances changing, I can not shovel the huge driveway by myself. I spoke to the landlord and he said it is not his responsibility to do the driveway in winter. Is this true?

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    1. Hi: Section 20 of the Residential Tenancies Act makes the landlord responsible for maintaining a residential complex. An authoritative text in Ontario on residential landlord and tenant law is Ontario Landlord and Tenant Law Practice 2015 by Jack Fleming. At page 66 of that text, in a commentary section respecting the section 20 obligations of the landlord, Professor Fleming states as follows: "The landlord's obligations extend to the entire residential complex, including the rental units and common areas. The landlord is responsible for, among other things, the general maintenance of the ground of a complex. Cutting the lawn or shoveling snow would come within the landlord's obligation with respect to "maintenance standards". The tenant's only obligation is that of "ordinary cleanliness".

      Michael K. E. Thiele
      www.ottawalawyers.com

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  9. I'm in a similar situation where I'm renting a rural single dwelling property. It would be great if the issue of yard maintenance could also be addressed. There was a verbal agreement that I would be responsible for yard maintenance and snow removal (month to month rental), which I agreed to, however there are a couple of gray areas:

    1. I was not informed that I needed to clear an 8ft. area around the mailbox across the street from the house. Due to road plows the snow banks are 6ft high and there is no where to put shoveled snow. While I am willing to shovel the driveway, the mailbox is very difficult (single mature woman).

    2. When I was viewing the property, the LL said that the snow had to be removed from a sun room roof, as well as the deck, to which I stated that removing snow from a roof was not something I was capable of doing. He replied that he would come and look after it. During the winter I mentioned the snow build up on more than one occasion and he never came by. In the early summer he asked me if I had removed the snow from the roof. I said "you want me to do that?" and rec'd a dirty look. Also very large amounts of snow from the roof, if removed, will fall on the deck, which also has to be cleared.

    3. Re yard maintenance. Someone somewhere has to make it clear what the rules are on yard equipment: Is it the LL's responsibility to provide the equipment, or the tenants? Can't find any straight answer on this anywhere. In my case a lawn tractor was provided for use, but no lawn mower or trimmer. 3 acre of grass to maintain. The lawn tractor came with a flat useless tire, which I replaced and paid for. It then broke down and I split the cost of repair. It has since broke down again but the mechanic did not charge for minor repair. One day after the repair, another issue arose. The LL expects me to pay for repairs on the tractor, or at least split the cost. I have to wait days and even weeks for repairs. At one point in the early summer, the LL told me I should hire someone to cut/trim the grass if it was too much for me (estimated at $200 x twice a month is $400). I did purchase a $200+ trimmer.

    I'm having a few other issues with this LL:

    1. There was water damage to the sun room floor, so he replaced the floor and then proceeded to tell me I had to varnish the quarter round myself.

    2. The front door needed weather stripping. During -30 weather I was told to put a towel under the door (did not help with draft on side of door). Now I'm being told to buy and install weather stripping myself.

    3. There was no washer/dryer initially but I said I would rent the property if they were supplied. Now the washer has broken down and it's so far been a week and no effort has been made to address the situation. I suspect that they will demand some form of payment from me to either fix or replace the washer. I would pay for a minor repair, but suspect it's a much larger issue.

    The LL constantly makes promises and fails to come through. He gets mad at me if I request action. I fear that they will try to evict me if I ask for what is legally within my rights.

    Thanks for any help.

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    1. Hi:
      This may sound odd, but you really should not fear the landlord and tenant board eviction process. The process is kind to reasonable tenants and eviction is highly unlikely if your positions are reasonable. Even if you are "wrong" for the kinds of things you are talking about in your comment the Board is much more likely to give you a chance to fix it as opposed to evicting you.

      I mention this because I think you will need to take your landlord to the Landlord and Tenant Board a few times--or let him take you there. Your landlord's view of what the law is in relation to being a landlord simply doesn't accord with the actual law. Unfortunately, I've seen fellows like this often enough. They refuse to believe that their actions are not legal and when they finally understand that their actions are illegal they get indignant and refuse to follow the law because the law is "stupid". The only way to beat people like this is to file applications to the Board and keep getting "orders" for rent abatements, reimbursement, etc..

      With respect to your 3 points. 1) Varnish the quarter round. I suppose you could, but that is the landlord's job. You could leave it unvarnished if it doesn't look to bad. If you want the work done you could file an application to force the landlord to do it. A very aggressive alternative is confirm in writing that he wants you to do the work (get his reply), then do the work yourself and send him a copy of the bill for the varnish and a reasonable amount for your time. When he likely refuses to pay, you can self help (which the Board frown's upon), but simply deduct the amount from the rent. This could result in the landlord applying to the Landlord and Tenant Board for termination for non-payment of rent. Let that process happen, and at the hearing acknowledge the rent that is owing and then explain the basis for the deduction. Show the adjudicator the email confirmation requiring you to do the varnishing, show him the receipt for the varnish, and the reasonable wage you calculated for yourself (I'd use minimum wage multiplied by the hours taken to do the work). The adjudicator is likely to award the landlord his rent, as per the application but the adjudicator will also very likely award you your expenses. The effect is that the landlord's application is dismissed with no rent owing. The landlord will lose the $170 application fee. If it happens this way, then this is the first swat in the nose that your landlord gets demonstrating that his view of the law is wrong.

      2) You can proceed in the exact same way with the weather stripping. If you want to try a different way, you could try to get property standards come out (call your local township office). It sounds like you may be way out in the country with that amount of land. If so, this might not be practical. So, do the work and deduct it from the rent. Again be very reasonable and invite the landlord to take you to the Landlord and Tenant Board if he disagrees with your deductions.

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    2. 3) The washer was supplied by the landlord and required to be supplied by the landlord in order to rent you the place. This is a repair/maintenance item and it belongs 100% to your landlord. Take a look at Part 3 and section 20 of the RTA. Your landlord can't download repair and maintenance on to you. Even if you signed a contract saying you would be responsible for maintenance and repair the RTA makes that contract void. Repair and maintenance can't be downloaded to the tenant as part of the lease. Certainly it is legal for the landlord to hire you to do the repair and maintenance but that has to be a contract separate from the lease.

      The situation with the yard equipment is again something that I think is entirely your landlord's responsibility. You don't need to share these costs.

      Perhaps your landlord will get mad. There is nothing that you can do to stop that. Him being mad, however, is not a reason to give up your rights. If you don't like this conflict then perhaps go to town, find a local lawyer who is prepared to represent you on landlord and tenant matters. Set the budget and be clear on it and get the lawyer to write to your landlord. For every stupid response of your landlord the RTA has a remedy. Trying to evict you for enforcing your legal rights is also against the law. While you can't prevent the landlord from behaving stupidly the law does give you remedies for illegal conduct. If you think the landlord is truly unhinged and will act not only stupidly--but illegally and violently--then the best thing is to just terminate your tenancy and get out of there.

      I hope that helps. Good luck. You are being taken advantage of. I hope you're able to get the upper hand soon.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    3. Thank you so much Michael for the very detailed response. I called the Landlord Tenant's Association and they told me the yard/snow/washer/varnishing, etc. was all the landlord's responsibility. On that note, I send a detailed email to the landlord outlining everything that was his responsibility (there are other issues not mentioned in my original post). I was not unfriendly or angry in my email and stressed the importance of legal boundaries.

      Landlord's response to yard maintenance was:

      1. No offer to compensate me for the approx. $300 + monthly gas I spent on yard maintenance so far.

      2. Will no longer ask me to pay for lawn tractor repair (unless it's user's fault).

      3. His wife told me I could pay to have a broken lawn mower fixed in order to use it (since it's such a large property, ideally a lawn tractor, lawn mower and trimmer are all needed). They just don't get it. I don't have to do any yard maintenance at all, yet I'm fine doing it (and it's a lot of maintenance) and just want the tools. Even after the email, they want me to fix the lawn mower. On top of grass maintenance I also have to rake 3 acres of leaves and had to buy a new rake because the one they left was useless.

      4. I also have monthly expenses, ie. gas, trimmer cord, oil that they don't want to pay for - I'm going to start keeping all receipts for expenses incurred and try deducting from my rent.

      Other items will be attended to, some I've been waiting almost a year for. Some work was supposed to be done on the weekend, then on Monday, then on Tuesday, and I've heard nothing from them today. Still "working" on replacing the washer - it's been two weeks.

      They act put out when I request attention to matters, treat me like I'm too demanding, act dumb like "what is it you want us to do exactly". It's really helpful to know that I have legal rights if they try to evict me because of this, although I highly suspect they will use a family member to take over the house, if they decide to go that route. Can't afford a lawyer at the moment. At any rate, while it makes me really uncomfortable to be on bad terms with them, you words are very reassuring and if I have to get tough, I will :).

      Thank you very much for your help, greatly appreciated!

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    4. Hi: Glad to have helped and good for you in calling the Landlord and Tenant Board. Knowledge is power! Please note that you gave a one year limitation period to file for landlord breaches. This means that for anything you want to claim that you have one year under the RTA to file an application at the Landlord and Tenant Board. Good luck.

      Michael K. E. Thiele

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  10. HI !
    I am a landlord renting out most of my home and i live in a part of the home and access is through a side door. The access for my tenants is only used by them. Am i responsible for shovelling their private stairs and walkways?We only share the driveway, so i assume i am responsible for shovelling the driveway?

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    1. Hi: The caselaw cited in the article above dictates that a landlord is responsible for maintenance and that a landlord can not make a tenant responsible for maintenance in a tenancy agreement. Snow shovelling is considered maintenance and hence is the landlord's responsibility. You can make a separate contract with the tenant's to shovel or hire a company or do it yourself.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  11. Good day!
    I live in a multi-unit (4 apartment) building and the landlord tells me under my lease that tenants are responsible for snow clearing and garbage removal. I have been doing it for over a year on my own and no other tenant attempts to help. Could I be compensated or does the Landlord must to have someone come and remove the snow? Also are they responsible to supply salt/sand?

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    1. Hi: The landlord is responsible for maintenance on the residential complex. This includes snow clearing. It is not permissible to make maintenance (like snow clearing) a condition of your tenancy. Such a clause is void under the RTA and the caselaw on point. Certainly the landlord may contract separately with you to provide the service and you would be entitled to negotiate a payment if the landlord wanted to hire you to do it. Garbage removal is a little trickier and you would have to explain what is entailed in your garbage removal that seems excessive. Normally, a tenant may be required to bring their garbage to the garbage room, down a chute, or in a bin outside.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  12. Hello sir! After much digging around regarding snow removal, I discovered you here! So with no lease agreement I think I understand you to say, there really are no hard rules as to it being the landlords responsibility. I have to file a complaint after first documenting my requests to him to have snow removed? I live in a duplex which recently changed hands. The previous landlord did have it removed. I really think provincially this issue should be black and white for tenants!! Thanks in advance for any additional advice you may provide! Cheers

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    1. Hi Tricia: The rules is that the landlord must do the maintenance on the rental property. Snow removal is a landlord's responsibility that can not be downloaded to a tenant through a lease agreement. However, a tenant can agree, in a separate contract, to do the snow clearing so long as the snow clearing is not tied to the tenancy.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  14. Hey! Thanks for all the great advice! I'm wondering how this applies to my situation- I live in a townhouse complex of 100 houses. The company maintains the main "roads" through the complex as well as the guest parking spaces and lawns. However, in my two winters here, it has been the responsibility of the tenants to clear their driveways directly in front of the houses (with the exception of one bad snowfall last year). So far I am seeing it as a resounding landlord responsibility, does that change in this case because of the type of housing? If it is a landlord responsibility, what is the best way to communicate this to a large property holdings company, in your opinion? Much appreciated!

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    1. Hi: Lots of questions on this topic today. I wonder if it has anything to do with the first and sizeable snowfall yesterday in Ontario? I had the thought myself as I was shovelling my driveway how nice it would be if this was someone else's responsibility.

      As I have written elsewhere in this blog, there was once and perhaps there still is, an "understanding" that tenants of solely occupied units such as single family homes or town-homes with private driveways that the tenants are responsible for their own snow clearing. I don't know where this "understanding" comes from but it seems to have been generally accepted that tenants could be required to shovel their own driveway. The "understanding" changed if there were multiple tenants sharing the same driveway or walkway in which case clearing the snow was "understood" to be the landlord's responsibility (as opposed to a communal responsibility of the tenants in the building).

      There is a certain simplicity to this "understanding" and I don't think that anyone can really be shocked at the notion of having snow clearing responsibilities in accordance with this "understanding" or lets call it "custom". In fact, I think that the "custom" could easily be the law without any great outcry or objection from tenants. That being said, it is not the law at the present time.

      The caselaw cited in the article is still current and relied upon in various decision. However, ongoing caselaw has made the interplay amongst a landlord's responsibility for snow removal, a tenant's responsibility to keep a property clean, and the duty of all occupiers to ensure that person's coming onto the property are reasonably safe, somewhat more complicated.

      If you are interested in the interplay, then it is worth reading a recent case from the Ontario Court of Appeal in Miaskowski v. Persaud. (cut and paste this link as I can't make it live in a response to a comment: https://www.canlii.org/en/on/onca/doc/2015/2015onca758/2015onca758.html?searchUrlHash=AAAAAAAAAAEAFjIwMDkgT05DQSA4MDggKENhbkxJSSkAAAABAAwvMjAwOW9uY2E4MDgB&resultIndex=2 )

      The caselaw above is dealing with the liability for a slip and fall on a rented property and it calls into question whether a tenant has snow clearing responsibility. My reading of the case as well as the earlier decisions and the RTA provisions leads me to the conclusion that the landlord remains responsible for snow-clearing. That being said, it is possible that a tenant could be liable to someone who is injured following an accident that is caused or contributed to by a lack of snow-clearing, shovelling, sanding, or salting of the rental property.



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    2. It appears to me that a tenant can enforce the snow clearing, ice removal, against the landlord through the RTA provisions at the Landlord and Tenant Board. That this work is an aspect of winter "maintenance" does not seem to be in serious dispute and it is clear that landlords have a maintenance obligation that is not easily shifted to a tenant in a lease. The nuance may be that a tenant has a responsibility to persons coming onto the rental property arising from maintenance related things that are the responsibility of the landlord to perform. Accordingly, a tenant should not allow their rental property to become unsafe with snow and ice accumulation and they should not ignore the danger to third persons on the basis that this is the landlord's responsibility. If a tenant of a rental property allows persons to enter upon the rental property, and those persons are injured, the tenant indeed may be liable to those persons under the Occupiers Liability Act.

      As for requiring your landlord to clean the driveways, I think the best approach is to put the issue to the landlord's management by letter. Cleaning all of the driveways will represent a significant expense to the landlord in a community of 100 houses. Even the best deal will be more expensive than the free labour of the tenants. I would make the issue "live" with the landlord, see what the response is, and then consider an application to the Ontario Landlord and Tenant Board to put the issue squarely before the Board and get a ruling on the extent of a landlord's responsibility for snow clearing and winter maintenance of the property.

      It is interesting to note that the caselaw referred to arises in the personal injury context and that the Residential Tenancies Act is being interpreted, in relation to this responsibility, not by the Landlord and Tenant Board at first instance. Given that winter maintenance is such a big issue in Ontario I think it would be great to get a clear line of cases setting out the scope of responsibility with those cases starting at the Landlord and Tenant Board. The personal injury cases are ultimately focused on liability for injuries and the interpretation of responsibility for winter maintenance takes on the rationale of tort law. It would be interesting to analyze the question in a case where the only issue is who is responsible to work the shovel and scraper.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. Hey Michael
    Just wondering if this snow removal responsibility has changed I'd like to post some information, and inform people how to enforce the ruling

    ReplyDelete
    Replies
    1. Hi Norm:

      See the comment above about November 2015 caselaw.

      Michael K. E. Thiele

      Delete
  16. Mr. Thiele, I live in the first floor apartment in a four-unit apartment house; I am physically disabled with severe osteoarthritis in both knees, and scoliosis. I routinely use my back door (a separate entrance, exclusive to my apartment) because there are fewer stairs and doors to deal with, but my landlord never shovels a safe path to ANY of the rear entrances, those being the shared laundry room door, my stairs and the fire escape. I have told him repeatedly of the need, but he doesn't do anything about it, as a result of which I often have to trudge through knee-deep or even waist-deep snow to get in and out during the winter. Is there some way I can legally compel him to take care of this matter?

    He also allows large ice jams to form on the roof of the building, which pose a very real hazard to anyone using our laneway or the laneway next door. Some of these slabs of ice can weigh as much as 50 to 100 kilograms, but he just leaves them there 'till they finally fall. I narrowly escaped being hit by one of these large slabs of ice last winter, and if it had hit me, I would almost certainly have been killed! How can I legally compel him to take care of this dangerous problem?

    Is there someone I can call to enforce these things, or is taking him before the Landlord/Tenant Board my only option? My mobility and endurance are severely limited, so any additional outings (beyond the absolute minimum, ie: grocery shopping or doctors appointments) are an added hardship, and especially so during the winter.

    Thanks very much for any help you can give me, sincerely, G. LaBerge

    ReplyDelete
  17. Hi Michael,
    I live in a duplex and have had previous issues where my landlord threatened to evict me for having roommates. Now that situation has been resolved however the tenants in the basement unit, who are close with the landlord, were harassing me for some time about the roommates so there is tension there. Without the issues there, I would simply do my share of the snow removal, knowing full well my landlord is receiving the services for free. These tenants take care of the lawn in warmer months and I was told they would do the same for snow removal. Now that it is snowing, they are not shoveling the entire driveway. I have asked my landlord about it and he said he is not responsible for shoveling the snow. I wrote back asking him to confirm that he was not taking responsibility and he proceeded to say that he lives in Toronto and if I wanted him to shovel I would have to wait. And as a result he would be moving back in at the end of the lease (Sept) and would be forwarding the eviction papers. What can I do in this situation?

    ReplyDelete
  18. Hi Michael

    Question for you about between cars in an apartment lot. Who's responsibility is that? My building has open space around it and has caused decent snow drifts. Couple that with rain and then freezing over night, in some spots we're looking at 8 inches of ice build up just outside a car. It's dangerous for walking on as a guy let alone my roommate when she's in heels. The landlord provide basic clearing for the lanes between cars, but at this point refuses to acknowledge that it is an issue or that anything needs to be done. Just wondering what options are available.

    ReplyDelete
    Replies
    1. I just reread that and it's ambiguous at points. They do clear on the main drives in the lot. But nothing gets cleared between the side by side cars.

      Delete
  19. Hi Michael,

    Is there anything in the case law that says how long after a snowfall a landlord has to clear the snow? I read the Toronto bylaws and it's cited as 12 hours on their winter maintenace page (http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=1597a84c9f6e1410VgnVCM10000071d60f89RCRD) and 24 hours on their 311 page (http://www.toronto.ca/311/knowledgebase/94/101000038194.html).

    I have a dispute with my tenant on what would be considered reasonable time frame.

    Appreciate your insight.

    Thank you!

    ReplyDelete
  20. Hi Michael,

    I am considering buying a triplex. The property is adjacent to a fourplex. They both share a parking lot situated between them. As it turns out, the triplex owns the parking lot but there is a right of way for the fourplex over the entire parking lot. The fourplex does not have a parking lot of its own. Who would be responsible for the snow removal and would the triplex owner be able to charge for parking? Are the fourplex tenants allowed to park there freely?

    Currently both buildings are owned by the same owner so it has not been an issue in the past but as there will be a new owner would this be an issue? Thanks!

    ReplyDelete
    Replies
    1. Hi: Thanks for the interesting question. I'll be perfectly blunt and say I don't have a clue as to the answer. The question(s) you are asking will obviously impact landlords and tenants in the residential leasing arrangements, however, the questions with respect to easements, rights of way, and all legal issues that flow is something that you should get a very clear answer about from your real estate lawyer and preferably in writing. In fact, this is something that you might want to speak with your real estate agent and lawyer about before even submitting an offer on the property. The reason to do that is to insert conditions in the offer that have to be satisfied with respect to the rights of way/easements before a binding agreement is reached.

      I strongly urge you to get your real estate lawyer involved as soon as possible as it is clear that you are realizing the potential nightmare of a conflict that might arise between different tenants, different landlords, and the tenants of different landlords, all in relation to parking, maintenance, and travelling across the parking lot.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.