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
Lawyer
Ottawa, Ontario
www.pqtlaw.com

1 comment:

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

    ReplyDelete