Thursday, 29 November 2012

Filthy Apartment: What is a Landlord to do?

What is a clean and acceptable apartment to one person may be viewed as an utter disaster to another person.  To a certain degree, how a person to chooses to live within their own apartment is up to them and them alone.  However, in some circumstances, how a tenant lives and how they keep their home impacts on other tenants, the landlord, and the physical condition of the rental unit and building.

There are some tenants who do not "see" or "smell" the problem in their apartments.  Everything from uncleaned litter boxes, smell of animals, rotting food, unclean laundry, body odours, garbage smells, piled junk (or treasures depending on perspective) and everything in between can cause a serious problem for other tenants or the landlord in enjoying their own units and the common areas of a building.

Some of these cleanliness issues lead to fire-code problems as "hoarding" makes the rental unit inaccessible or a danger to firefighters and anyone who needs to get around the unit in an emergency. Issues like this constitute an illegal act and/or impaired safety, both of which are explicit grounds under the Residential Tenancies Act to serve a Notice of Termination and Evict a tenant at a hearing before the Ontario Landlord and Tenant Board.  This article attempts to address those situations that fall short of impaired safety and illegal act but flow from the same kind of problem which is a complete lack of housekeeping or hoarding.

To be in a position to deal with a situation of bad housekeeping (i.e. smells, rotting food, pet urine smells, etc.), a landlord first needs to understand the legal basis for dealing with the tenant's poor housekeeping and hygiene.  To this end, regard must be had to section 33 of the Residential Tenancies Act which provides that a tenant is responsible for ordinary cleanliness of a rental unit subject only to any condition in the tenancy agreement requiring the landlord to clean it.

It is this section of the Residential Tenancies Act that imposes a duty on the tenant to maintain the apartment that they are renting to a standard of ordinary cleanliness.  Hence, for example, uncleaned dog or cat urine, stacked pizza boxes and uncleaned dishes, filthy bathrooms, dirty counters, grime encrusted floors and stoves, piles of dirty clothing strewn about the apartment, or an excessive amount of stuff stored in the unit (hoarding),  are all examples of the unit not being kept to a standard of ordinary cleanliness.  Of course, the problem lies in assessing what exactly constitutes "ordinary cleanliness".  The phrase is imprecise and open to interpretation.  It is one of those things that you know it when you see it but providing a precise definition that encompasses all of the potential circumstances is impossible.  To that end, my experience at the Landlord and Tenant Board has been that an adjudicator looks at the evidence of the uncleanliness and basically makes a judgment call about whether the state of the apartment is "reasonable".  As far as I know, there is no objective test or criteria to measure "ordinary cleanliness" in any of the caselaw under the Residential Tenancies Act.

So, if your tenant is not maintaining the unit to a standard of ordinary cleanliness, what do you do?  The first thing is to write the tenant a letter advising of your concern.  Perhaps you noticed the condition of the unit on an inspection, a repair, or some other legal reason for having been in the unit.  It would be reasonable to set out in the letter how you became aware of the state of the apartment, that you would like it to be cleaned, and that the tenant has the obligation to keep the unit to a standard of ordinary cleanliness under the Residential Tenancies Act.  If your lease contains a similar provision you may wish to also cite that part of the lease.  Ask the tenant to give you a call to discuss the contents of the letter and in any event to let you know if there is a problem in maintaining the unit to a standard of ordinary cleanliness.  It is important to invite the tenant to discuss the issue with you as some tenants are unable to meet the standard on their own. 

If the inability to meet the standard arises from a disability a landlord may have a duty to accommodate that disability and the inability to meet the standard under the provisions of the Ontario Human Rights Code.  Perhaps you, as the landlord, will have to reach out to community resources to help the tenant get help.  Note that accommodating a tenant under the Human Rights Code does not mean that you have to simply accept or tolerate the problem.  The tenant is still required to comply with a standard of ordinary cleanliness--its just the manner and method of compliance may be different because of the disability that needs to be accommodated.  Asking the tenant if there is an issue is important as it is impossible to accommodate a disability if you are not told about it.

After sending the letter and presuming you hear nothing, you may wish to serve a 24 hour notice of entry for the purpose of inspecting  the unit on the tenant.  If, as a result of that inspection, you find that nothing has improved, it will be necessary to escalate the matter to a more "legal" level.  You will now have to consider whether the problem is such that you need to evict the tenant if the issue is not resolved.  If so, you will need to fill out a Form N5 to inform the tenant that the tenancy is being terminated unless the cleanliness problems are dealt with, within 7 days of the service of the N5 Form. 

As is the case with all N5 forms, it is very important to include a significant amount of detail in the description of the problem.  The form should include: who, what, where, why, and when, in the description and it should also clearly set out what the tenant needs to do to void the Notice.  This is a legal requirement and the failure to provide this information will make the Notice automatically void at law (i.e. you will lose at the Landlord and Tenant Board).

A Form N5 is by its very nature a voidable notice.  This means that if a tenant complies with the Notice--and cleans the apartment to a standard of Ordinary cleanliness within 7 days of receiving the Notice, then the termination of the tenancy is void and they get to stay.  Assuming that the apartment was cleaned, the N5 becomes technically void.  However, the N5 remains useful for a further 6 months, in that if the tenant allows the unit to fall below the standard of ordinary cleanliness within the six months following the service of the first N5, you can serve the tenant with a second N5.  A second N5 is not voidable by the tenant---meaning you can immediatley apply to the Landlord and Tenant Board for an eviction Order.

If the tenant fails to clean the unit to an acceptable standard within the 7 days following the service of the first N5 you can apply, starting on the 8th day after service, to the Ontario Landlord and Tenant Board for an eviction Order. This is done in form L2.

The hearing and eviction process is not easy.  Proving that a tenant is failing to meet the standard of "ordinary cleanliness" requires high quality evidence.  Simply saying that the tenant is "dirty" is unlikely to meet the burden of proof (balance of probabilities) that rests on the landlord.  If you intend to proceed to a hearing you may wish to get photographs, property standards reports, witness statements, and summons third parties to attend the hearing to explain how the tenant is failing to meet the obligation of ordinary cleanliness under the Residential Tenancies Act.  Without compelling evidence the Landlord and Tenant Board is unlikely to evict  the tenant.

Michael K. E. Thiele
Ottawa, Ontario


  1. This is exactly what I was looking for Thank-you for this excellent explanation!

  2. how do you find an old tenant who damaged my apartment

    1. Hi: Unfortunately there is no easy way to do so. For most "regular" people it comes down to luck in finding someone who knows the person. The alternative is to retain a private investigator or sometimes even process servers. They often have a "skip tracing" service for which they charge. Success in locating the person is not guaranteed. If you have good tenant information in your file (i.e. copies of identification from the application to rent) then this information can be useful for the investigator in tracing the person (for example, having the legal spelling of the name and a birthdate is very useful information to have).

      If it turns out to be impossible to locate the person but you still want to sue the person you can issue a claim with the Court and under the right circumstances get the authorization from the Court to serve the person by an alternative to personal service---this can range from advertising in a newspaper to serving parents or even former lawyers. Getting permission to serve as an alternative to personal service is an exception that is not easily obtained as the law prefers and usually requires that a person who is being sued be given notice of a claim.

      Michael K. E. Thiele

  3. Hi there. The tenant beside me has a smell of human feces emanating from her apartment into the common hallway and my unit. The building manager has engaged a public health nurse in an attempt to gain entry to the unit to clean the floors and carpets, but has been denied entry by the tenant. This tenant shouts expletives, enters the common hallway unclothed, and is now allowing the filth of her apartment to affect my unit. What steps, if any, can I take to see that this issue is addressed by my landlord?

    1. Hi: I trust that it is fairly obvious that your neighbour has or has developed health problems that is causing her to live and behave in this way. Your landlord is correct to try to engage a public health nurse. Your landlord is limited in what they can tell you, but I hope that the landlord has contacted the tenant's family to see if they can get her help. The public health nurse should also be in a position to put your landlord in touch with various crisis services. The smell, the shouting of obscenities, being undressed in public, all speak to the tenant being a incapable of living independently. If the landlord is having limited success in getting this tenant help then perhaps a call to the police for assistance is something that should be done sooner than later (you could call police as well advising that there is a tenant who you believe is unwell and that she should be checked on). The police may require her to be checked out medically.

      Once the landlord has taken steps to get this tenant help, the landlord should be serving the tenant with a Notice of Termination and proceeding to the Landlord and Tenant Board for termination and eviction. The termination and eviction process will likely dovetail with the attempts to get the tenant help. The tenant's help (if it arrives) will likely include a legal clinic, lawyer, or some person (mental health worker) who attends at the Board to speak for the tenant. Through that person the landlord, the Board, and yourself (if you attend) might learn that the tenant has a problem that is being treated. A plan may be put forward that allows the tenant to live independently again and which plan will be supervised by some agency, family member, social worker, etc..

      The Landlord and Tenant Board will weigh how the tenant is living and what she is doing against the reason for that happening and the plan to stop that from happening in the future. If the Board is satisfied that the explanation for the behaviour arises out of a disability requiring accommodation under the Human Rights Code and that accommodation may be provided without any real difficulty then the Board will maintain the tenancy with conditions.

      If no one steps forward to help the tenant and no one identifies any kind of disability on the part of the tenant and no one proposes any kind of action plan to change the behaviour, and the landlord demonstrates to the Board that the tenant was served with the legal paperwork to terminate and evict and that various social agencies including the police were contacted and advised of the apparent distress of the tenant (and nothing happened) then it is likely the Board will proceed with a termination and eviction of the tenant.

      There are lots of variables in the fact scenario you describe so it is impossible to say exactly how the case will move forward. However, I can confirm that simply putting up with the behaviour and the smell is not something the law or the LTB will require of you. It will change or the tenant will be evicted. How quickly that happens also depends on a number of factors, however, it is your landlord that is the driver of the case and depending on how quickly he acts will determine on how much longer this will continue.

      Hope that helps

      Michael K. E. Thiele

  4. I want to comment on the functioning of Landlord and tenant Board Ontario. This may apply to other Boards as well. I am a small landlord and over years I have seen how the Board is biased against landlords. Not only that the Board is so lazy and taking long time to process eviction cases, it keeps on dragging the cases. I have been harmed by the Board several times and I am feeling so helpless. For example, recently (June & July 2015), I filed an L1 for non payment of rent. Tenant was also present at the hearing. The tenant agreed to make payments by certain dates. The order stated that in case the tenant did not make any payment, the landlord could file for violation under S. 78. The tenant never paid a cent & violated all the terms. I filed L4 with the board. The tenant was clearly in violation and I should have got an eviction order right away. To my utter surprise and dismay, the board fixed another date for hearing after a month. So I will be going to the Board again in August 2015, spending another day at the Board. How unfair? Not only that I will have to appear again for the hearing, the tenant in the meanwhile continues to enjoy living for free. I also have to pay to the Board. So both the LTB and the tenants make a living at the cost of Landlords. Both are parasites feeding on the miseries of Landlords. Small landlords like me get lynched between the LTB and the tenants. Landlord is the only loser in between. LTB should be overhauled and lots of its incompetent and lazy members need to be fired.

  5. Hi, Michael Thiele
    my tenant left the rental unit in a very messy situation, the kitchen was all dirty, stove. oven never cleaned in 2 years, broke the fridge compartments, carpet was in such a bad condition that cleaning company advised to remove instead of cleaning, urine in one of the wall/windows, (you could see the windows base filled up with urine) bathrooms never cleaned, there was so much stain that required industrial cleaners to remove stain as regular stain product did nothing. Cleaning crew spent 4 hours just in the oven and half of the kitchen cabinets and 6 more hours in the rest of the house.
    Painters used an special pain because all the wall where that dirty that regular paint may not stick.
    I do have the last month deposit and wondering how much I can deduct to cover all that mess that I had to pay for plus an entire long weekend I spent cleaning what the cleaning crew did not cover.

    1. Hi: I'm sorry for your unfortunate experience with your former tenant. Hopefully you have fully documented the condition of the apartment and have taken many photos and video. It is helpful as well if you get the various contractors to comment in their invoices to you as to the condition of the premises before they started their work. I presume of course that the rental unit was in normal condition when the tenant moved in.

      The Last Month's Rent deposit can not be applied to anything other than the last month of rent that is due. If the rent is fully paid up, then technically the Last Month's Rent deposit needs to be returned to the tenant without deduction.

      There is an alternative to returning the money but you need to be prepared to take some legal steps. In cases like this I don't think that the tenant really expects to get any money back at all. If you are in touch with the tenant advise the tenant of the amount of money that you are owed for all of the cleaning, carpets, repairs, etc. etc.. I'm sure that amount far exceeds the last month's rent on deposit. Advise the tenant that you would like a certified cheque in the amount of $(whatever you are owed) for the damage, and extra cleaning. Upon receipt of the money you will be pleased to refund the Last Month's Rent deposit. Normally the tenant will simply disappear and hope that you don't do anything else.

      If the tenant insists on getting her/his last month's rent deposit back without deduction or payment for damage you will need to decide whether you want his fight or not. If you are prepared to engage in the legal process you can tell the tenant to go ahead and file an application at the Landlord and Tenant Board for a return of the Last Month's Rent deposit. You have no defence to that application because the Board has no jurisdiction over your damages claim because the tenant is no longer in possession of the rental unit. When the tenant applies to the Landlord and Tenant Board you, at the same time, sue the tenant in the small claims court for your damages. Attend at the Landlord and Tenant Board. You can acknowledge that the LMR is owed but advise that you have a claim for damages pending in the small claims court. You can even provide the Court file number. Advise that you are setting off what you owe to the tenant for what the tenant owes you. The adjudicator may not be too pleased or may advise that this is something they can do nothing about as they have no jurisdiction to deal with all of the issues between the parties. If you want to be creative, ask the adjudicator to refuse to hear the application with a direction to the tenant to file a defendants claim in the small claims court. The argument is that the small claims court is the more appropriate forum and the only forum that can hear all of the issues at the same time. A duplication of proceedings-or stretching out proceedings across two forums using judicial resources at the Board and in the Court should be discouraged. Hence it makes sense to dismiss the tenant's application at the Board. If that works, great!

      If the adjudicator is not so interested in this argument and simply proceeds to issue an order for the LMR to be paid to the tenant you can decide to simply wait. The tenant will need to pay money to convert the Board Order to an order of the small claims court as the Board order has no enforcement mechanism if you do not pay it. Hence enforcement is through Court rules. If the tenant actually converts the Board order to a small claims court order you would then bring a motion in the small claims court to stay the enforcement of the order or for an order paying the money into court and keeping it there pending the resolution of your small claims court action.

      There are a lot of hoops but in the end you would be successful. It is a bonus if the tenant has assets and you can actually get the money that the Court would inevitably award to you after a trial.

      Good luck

      Michael K. E. Thiele

    2. Hi,

      What about landlord's responsibilities with regards to apartment preparation for a new tenant?

      We moved in a rental apartment (1960s building) that was freshly painted and floors finished.
      In couple of days when the smell of floors finish dissolved we noticed there was a smell coming from the walls in dining area. The smell is not a paint smell, but like as if previous tenant cooked something or burnt something and the drywall absorbed it. May be there is some kind of paint reaction. It's been a month already, we twice reported it to super on duty and even called the management. They don't seem to find the problem serious. Superintendent even said "I don't smell anything what would not be normal smell of living." Well, I have never heard this smell anywhere before and I cannot even stay in the dining area with it. It is unacceptable.

      Is there any law that would force management to do something about it?

      Thank you.

  6. What is a tenant to do when it's the landlord/property management who does not clean the common spaces of the apartment building?

    My building hasn't been cleaned in over 5 months since winter. You can imagine the sight and smells that have developed! I've let the landlords/management know over 3 weeks ago, that the building was no longer being cleaned and described briefly the state it's in, but I didn't get a reply.

    I've contacted my city (included detailed photos), but they can't do anything because it's not (yet) an issue of the structure of the building. They, "don't do anything to do with cleanliness".

    All tenants I've spoken to in my building feel the exact same way. Concerns that have arised are health/germs (hands turn black from touching the hand rails), embarrassment when bringing in family and friends, smells, insect issues that have started... and the list goes on.

    I'm stuck on what to do and really don't want to move—my apartment is clean and comfortable and the location is mint. Any suggestion(s) of what to do would be amazing!

  7. I am a landlord with only two apartments that I rent. I have considered in some cases to offer a troublesome tenant a months rent in exchange for them to move and turn over the keys. Is this legal? If so I assume I should do this in writing Correct?

    1. Hi Marcel: Landlords and tenants who are in a fixed term lease or who wish to terminate a month to month lease sooner than the law allows on notice, are entitled to terminate that lease through negotiation. The fruit of that negotiation, if successful, is a terminated lease. The termination of the lease should be recorded in a Form N11 which form is available on the Ontario Landlord and Tenant Board website. The N11 can set a termination for any date that the parties agree will be the end of the tenancy. The N11 can be enforced by application to the Landlord and Tenant Board.

      In my view it is perfectly fine to offer a tenant money in exchange for giving up their lease. In fact, from a contractual perspective I think you need to give the tenant something to acquire their rights under the lease. In legal terms--contractual legal terms--it is called an exchange of "consideration". Without "consideration" you can't have a binding contract.

      Over the years I've come across some arguments that it isn't "legal" to buy out a residential lease. That, I suppose, is a view but I don't subscribe to it as landlords and tenants need the practicality of negotiating ends to leases that are indeed a different way of ending a lease than the RTA provides.

      Michael K. E. Thiele

  8. Thanks Michael I appreciate your feed back

  9. Hello Mike. How are you? Remember me?
    I'm starting to think that part of my raison d'etre is to entertain you with my misadventures.

    I am evicting a hoarder tenant from my Winchester income property.
    She moved in with too much stuff 2 years ago and I have been doing everything I can to help her deal with the problem ever since...I even helped her organize getting a charitable org to send a truck and strong men but, when push came to shove, she parted with just a few boxes.
    The upstairs 2 br apt is piled throughout to within 2 ft of the ceiling.
    The front door staircase is filled and blocked with stuff.
    From the back door, she has a narrow litter-strewn path between the piles that gives her access to the kitchen, the bathroom and to a seat on the couch in the living room...that is where she lives.
    Neither bedroom is accessible.
    She has 2 male unfixed cats. They do what they want where they want. My commercial flower store tenant has complained of the cat smell.
    I went through the LTB steps, had a hearing, she was given a month, I filed an L4.
    Monday she was supposed to be gone.
    Yesterday (Tuesday) I was about to go to Cornwall to organize the sheriff visit.
    The LTB called just as I was leaving and she had asked for and received a motion to set aside the ex parte L4 order.
    Hearing is set for Apr 14th .
    My questions:
    1. Do I get to see her request (S2) and the "request to extend" that she must have submitted (my L4 affidavit is dated March 4th...much more than 10 days.)

    2. Can I send in an inspector of some sort to officially say that (in the words of my favorite lawyer-guide):
    "...Some of these cleanliness issues lead to fire-code problems as "hoarding" makes the rental unit inaccessible or a danger to firefighters and anyone who needs to get around the unit in an emergency. Issues like this constitute an illegal act and/or impaired safety, both of which are explicit grounds under the Residential Tenancies Act to serve a Notice of Termination and Evict a tenant at a hearing before the Ontario Landlord and Tenant Board..."

    3. I have pictures of the mess that I took when I had to enter to deal with a plumbing problem and she was not there. If I use them, do I get in trouble for being in the place without giving notice?

    Thanks for any advice.


    1. Hi Jamie: At least life is interesting for you! With respect to your questions. To get the documents you are going to have to ask for them. As the documents are typically scanned you can ask for them at any LTB office (i.e. pick the nearest one).

      As long as she is a tenant in the premises you each retain your respective rights and obligations under the RTA. This means that you may indeed enter on 24 hours notice in accordance with the RTA. The eviction order and current proceedings don't prevent you from exercising your rights and obligations under the RTA.

      With respect to the third issue you are likely fine. I presume your presence in the unit was due to an emergency--plumbing leak? There might be an issue raised about taking pictures during an emergency plumbing entry of non plumbing issues. That being said, the pictures are still likely admissible even if objections are raised against them.

      Good luck

      Michael K. E. Thiele

    2. Thanks for the reply, Mike!

      I have now seen her S2 form.
      She claims that she has been unable to comply because of no heat all winter.
      This is nonsense since:
      1. The duplex has only one furnace and there have been no complaints from the flower store downstairs.
      2. Until this form, she has never mentioned the problem.
      3. The place was warm when I was there to fix a plumbing problem on a frigid day in February.
      4. If there was any problem with heat getting into her apartment, it would be because every square inch of floor is covered with piles of stuff...including the heat vents.

      Is the an LTB equivalent to perjury?
      Is there an LTB process for me to try to get her stay stayed because she has made up an excuse?
      Who do I get to inspect to say the place is a danger? Fire department?
      She has no phone. Can I stick my 24 hr request to enter on her door?




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.