At the beginning of every tenancy a landlord should be going through the empty rental unit with the new tenant with a checklist. This checklist, that the tenant will be required to sign, is part of the move in inspection. Along with the checklist, a few digital photos stored on a cheap memory stick showing the condition of the floors, walls, bathroom, kitchen, etc., are also good to have. The checklist, along with the photos, establish a baseline of the condition of the premises that the tenant received when they moved in.
Why is this important? It is absolutely necessary for a landlord to be able to establish the condition of an apartment when a tenant moved in because the tenant is only responsible, in law, for any damage or excess wear and tear of the rental unit caused by them. If a landlord is unable to establish what condition the tenant received the unit in--then it becomes very difficult for the landlord to establish that the tenant caused any damage at all. It is not uncommon for tenants to defend a landlord's claim for damage or excess wear and tear by stating that the unit was run down and that things in the unit were already damaged. The move in inspection, the checklist, and the photographs takes this argument away from a tenant.
So, presuming that there is good and clear evidence of the condition of an apartment at the time the tenant moved in--what is the tenant's obligation as to maintaining the condition of the apartment and the things in it? The Residential Tenancies Act requires that the tenant maintain the premises to a standard of ordinary cleanliness (as per section 33 RTA).
Is there a duty on the tenant to maintain and perform minor repairs in the apartment? In short, the answer is not really. The duty to maintain the apartment (repairs etc.) is imposed on the landlord in section 20 of the RTA. It is fair to say that there is no ambiguity in the law about who is responsible for maintaining a residential rental property in Ontario---it is entirely the Landlord! A landlord can not avoid the obligations imposed by these sections of the RTA by including contractual language in the Lease that shifts the maintenance obligation to the tenant. I have seen a number of leases where clauses are inserted saying the tenant is responsible for minor repairs under a certain dollar amount, is responsible to change lightbulbs, leaking taps, plumbing back up (i.e. they must call and pay for a plumber). If there ever was any question if these types of responsibility shifting clauses are legally effective the question, I think, was settled in Montgomery v. Van where the Court of Appeal makes it clear that shifting the responsibility for maintenance to the tenant--in the lease itself---is illegal and void.
What then does the law say the tenant is responsible for? That answer is found in section 34 of the Residential Tenancies Act which provides that a tenant is responsible for the repair of undue damage to the rental unit and the complex whether caused wilfully or negligently by the tenant, occupant, or other person permitted by the tenant to be in the residential complex.
The phrase "undue damage" appears repeatedly in the Residential Tenancies Act in various sections. Unfortunately, no where in the RTA is the phrase defined. As there is no definition in the Residential Tenancies Act we can take a look at Board case law, Court case law, as well as dictionary definition of the common meaning of the words that make up the phrase. If you go through the process of trying to find a clear and static definition of the phrase you will be disappointed. In my experience, the meaning of "undue damage" is determined by looking at the facts of the particular situation in context.
Clearly, the phrase undue damage incorporates the notion of what we understand to be "wear and tear". Undue damage, by definition, allows for the tenant to cause some damage to the rental unit for which s/he would not be responsible. Where along the spectrum/range of zero damage to complete destruction does the liability for damage arise?
In my experience, a specific answer can not be provided without looking at a specific question. The best answer you can get, on a general basis is that reasonable wear and tear does not impose liability on a tenant for the repair of the item. On a specific basis, you need to ask the question with regard to a specific damaged item. For example, a hardwood floor, newly installed at the time that the tenant moved in, that was onsite finished by the flooring company, has been scratched by the claws of two medium sized dogs. The floor needs to be completely refinished notwithstanding that it was only installed one year ago. Is the tenant liable for the cost of refinishing?
The argument for the tenant is that the dogs are permitted to be in the premises by law. There is nothing unusual about the dogs, they didn't disturb anyone, they were groomed regularly and claws clipped as needed by a professional dog groomer. Other than getting rid of the dogs, what else was the tenant to do?
The argument for the landlord is that the floor was brand new. The Regulations to the Residential Tenancies Act recognize that the finish on a hardwood floor is supposed to last 20 years (see schedule to regulations setting out useful life of things here). The flooring is so scratched that the finish has gone hazy white. The tenant, while lawfully entitled to have pets, bears the responsibility for the damage caused by the pets. The right to have pets does not mean that there is the right to have the pets cause damage for which the tenant is not liable.
In contrasting the two positions I hope that you can see that the issue is one of reasonableness using certain known parameters such as useful life and normal and intended use. That same floor, if severely scratched over 15 years, would likely transfer no liability for refinishing on the tenant in the same way that a few small scratches on the floor, even after only a year, would also not attract liability. A landlord has to expect that a rental unit and the things inside it will be used and "used up" over time.
Once you decide that there is liability for a repair (i.e. there is "undue damage") the next question is what should the tenant pay. Should the tenant pay for 100% of the costs to refinish the hardwood floor? A reason the tenant should not pay for 100% of the floor may be that the landlord already got a number of years of the useful life out of the floor. If the landlord already got a number of useful years out of the floor why should the tenant be expected to pay for a new floor that gives the landlord 20 years of useful life? Put another way, what was the value of the floor that the tenant damaged. Doesn't fairness dictate that the tenant only needs to pay to give the landlord a floor with the same number of useful years left on it that was damaged and not a 20 year floor?
A landlord should not expect that the Landlord and Tenant Board will order a tenant to pay for 100% of a brand new anything if the landlord ends up with something better than what they started out with. With respect to repairs to items one can expect closer to getting 100% of the cost if the work essentially puts the landlord back into the position they were in. For example--the costs of patching, sanding, and painting over holes that have been punched in the wall are likely to be reimbursed at 100% of the expense.
In my experience, contested litigation over damage caused by a tenant is rarely cut and dried. Items in a unit were rarely in perfect condition at the commencement of a tenancy and there is always the fact that a degree of damage is expected (and exempted under the legislation) as the items in an apartment get used up over time. When deciding whether to pursue a claim at the Landlord and Tenant Board, Small Claims Court or for claims over $25K in the Superior Court of Justice, a landlord should look very carefully at the nature of the damages and think about current values, useful life, replacement costs, and reasonable wear and tear. Just because it costs a bundle to fix or repair something does not mean that the Board or the Court is going to make the tenant pay.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada
More Articles: Blog Archive
- ► 2014 (18)
- ▼ March (6)