Thursday, 8 August 2013

Hardwood Floor Damage: Rental Apartment---who is liable?

It may seem odd that I am setting out to write an article specifically on hardwood floors and the damage to them by tenants, wear and tear, or accident.  What is so special about hardwood floors in the residential tenancy context?

In fact, there is nothing about hardwood floors that creates any greater or lesser liability on the part of a tenant than there is for any other part of the residential unit.  A tenant is required to treat a hardwood floor appropriately and in accordance with normal use of that floor.  This is the same rule for all of the other parts of the rental unit.

In that case, what are the rules about how a tenant is required to maintain hardwood floors?  Firstly, there is no section in the Residential Tenancies Act that deals specifically with hardwood floors.  To find the rules you need to apply the general duty of a tenant that applies to all of the things in the rental unit.  When you do that, you find yourself looking at section 33 and 34 of the Residential Tenancies Act.

Section 34 of the RTA provides as follows:

34. TENANT'S RESPONSIBILITY FOR REPAIR OF DAMAGE.---- The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.

Does this section provide a satisfactory answer to your question of the extent of a tenant's liability for hardwood floor damage (i.e. scratches, gouges, wear of finish, popping pieces)?  Likely not.  However, it is from this section that we do determine the extent of a tenant's liability for damage to a rental unit--including for damage to a hardwood floor.

The section uses the phrase "undue damage".  You need to understand this phrase as limiting liability and responsibility for damage.  The phrase implies that some damage is expected to occur in the use of an apartment and the tenant is not responsible for that damage.  It is a fair statement to say that the use of a hardwood floor--in a normal way--will naturally result in some deterioration of the condition of the floor over time.  That "normal use" which inevitably results in damage to the floor is not something that a tenant can be held responsible for.  Therefore, any landlord who delivers a gleaming new scratch free hardwood floor to a tenant at the start of a tenancy can not complain about receiving a less than perfect hardwood floor when the tenancy ends.

The question of course is "how scratched" and "how damaged" can the floor be before the tenant becomes liable.  To complete the circular argument I'll answer this by saying when the damage raises to the level of being "undue damage".

Presuming that this is an unsatisfactory answer, what more can be said?  The question of what constitutes "undue damage" is something that can be given definition by looking at caselaw.  Caselaw is handy in situations like this because it gives us fact scenarios and judicial findings of what constitutes "normal wear and tear" and what constitutes "undue damage". 

I'm sure as you've been reading through this article you have been waiting to read about the phrase "normal wear and tear" being excepted.  It is a common enough concept that people do believe forms part of the law.  In fact, you will not find the phrase in the Residential Tenancies Act, nor the regulations, and in fact you won't even find the word "tear" or "wear" anywhere in the RTA.

The concept of normal/reasonable wear and tear being exempted from a tenant's responsibility is a matter of caselaw (judge made law).  While there are lots of cases that contemplate the section there is an oft cited small claims court decision called Kamoo v. Brampton Caledon Housing Corp [2005] O.J. No 3911 (Ont. Small Claims Ct.), that reviews the law and holds (or reiterates) that the law recognizes an implied condition in residential tenancies that a tenant is not responsible for reasonable wear and tear--which is further defined as "unavoidable deterioration in the dwelling and its fixtures resulting from normal use".

The Kamoo decision then reviews the circumstance of an 8 year tenancy with carpet wear in the unit.  The Court held that the carpet wear was normal and consistent with ordinary use while a cigarette burn in the carpet was not.

Of course, depending on one's view, the line between normal deterioriation and undue damage is less than obvious.  Using the Kamoo example I think it is fair enough to question whether a cigarette burn isn't in fact reasonable wear and tear.  Isn't smoking a relatively common behaviour?  Isn't it likely that over the course of 8 years a single cigarette could fall, be dropped, roll out of an ashtray and cause a single burn?  Isn't this damage caused through the "normal use" of the property? 

Of course it is easy to pick on smokers these days and say that any damage caused by  a cigarette is the problem of the smoker.  How about then, that you change the cigarette burn to a red wine stain.  It seems reasonable to me that at some point in 8 years that there could have been a jostled arm, a knocked over glass, or something that causes a stain on the carpet.  Isn't this normal use?

Of course, the view changes completely if the carpet/hardwood floor is burned, scraped and stained all over the place, a countless number of times.  I think in these circumstances the idea that the damage is caused by normal use is displaced by the rather clear indication that the tenant was indifferent to how the floor was used and abused.

What else is there in the legislation that helps determine what constitutes normal use and a reasonable expectation of the condition of a hardwood floor at the end of a tenancy?  In fact, I find it incredibly handy to consider the expected useful life of a hardwood floor and compare that to the condition of the floor and its age.  If the floor is close to the end of its expected useful life--then the amount of wear and tear that one would expect is higher.  If the floor is brand new and the law anticipates many years of future life then the expected condition of the floor would be better.

So, what is the expected useful life of a hardwood floor?  The answer lies in Ontario Regulation 516/06 which is a schedule that sets out the useful life of every conceivable thing in a rental unit.  If you review this schedule you see that a hardwood floor is considered to have a useful life of 20 years.  Hence, a floor that is in the range of 10 to 15 years old would be expected to be showing a reasonable amount of wear, dings, dents, gouges, and scatches.  By this of couse I don't mean abuse, but instead you wouldn't expect to find a "perfect" hardwood floor that is 15 years old--even if it has been refinished.

MAKING THE ARGUMENTS

I can't say much more about what constitutes "reasonable wear and tear".  In a sense you have to appeal to the notion that "you know it when you see it".  To that end, if you are arguing the issue you can assist the judge in seeing that it is a matter of reasonable wear and tear by highlighting the condition of the floor when you got it or by highlighting the fact that the condition of the floor at the time of receiving it is unknown, that the floor is old, that the apartment is small and that foot traffic is concentrated over small portions of the floor by the fact that the size of the unit forces people to use sections of the apartment (and floor) more intensely than if you were looking at the use of a floor in a big house (people more spread out therefore the floor is not walked on as much).  Highlight the lack of maintenance, the fact that the floor was not recently refinished, that the use was normal, shoes taken off etc..

The biggest issue of course, that I haven't talked about is the damage to hardwood floors caused by the claws/nails of pets or damage caused by pet urine.  Interestingly, most pet owners seem to accept that any damage caused by their pets is "undue damage" and they expect to have to pay for repairs or carpet cleaning etc..  Is this necessarily the case?  In my opinion damage caused by pets (claws/nails) does for part of the "normal wear and tear".  The argument, to my mind, is that the law explicitly permits tenants to have pets regardless of the landlord's wishes.  The old caselaw--fluffy the cat decisions--highlighted the comfort and importance of pets in people's lives.  Recent Ontario law recognizes the importance of service animals and pets that are needed to give comfort to people and the right to take those pets into locations that traditionally excluded pets.

Does it make sense for the law to create a right to have pets, take pets into places, and then impose a financial liability for the slightest damage caused by pets?  I look at the activity of the pet in the same way as the activity of a person--if the pet  (cat or dog) uses the property normally and some damage is occassioned by their presence--then this is a part of normal wear and tear.  If you don't look at it this way then you have to look at the "right" to have a pet as being encumbered with an automatice financial penalty.

If a pet causes undue damage and you have a floor that is damaged beyond recognition in a short tenancy--then I think it is obvious that liability attaches.  But, if there is damage though nominal, I don't think that liability should be viewed as automatic even though it is caused by a dog or a cat.

Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.ottawalawyers.com

10 comments:

  1. Very interesting article. A lot of renters and tenants do not know their rights. Great clarification!

    floor sanding victoria

    ReplyDelete
  2. I am impressed with your view, I must say. Actually rarely do I encounter a blog that is both educative and entertaining.truly it is a valuable Article. Thanks for sharing it, as I needed the same type of posts.

    ReplyDelete
  3. Hi Michael,

    In many cases, damage caused by tenants is incremental to pre-existing (but nonetheless existing) damage.

    To continue with your hardwood floor example, suppose that:

    1. a 10-year-old hardwood floor contained numerous stains, scratches, dings, dents, and the like (as is to be expected with a 10-year-old floor).

    2. a tenant caused further damage to the floors beyond what might be considered ordinary use, such as a burn mark in the Kamoo v. Brampton Caledon Housing Corp [2005] case cited above.

    Tenants are responsible for undue damage according to the RTA, while Kamoo v. Brampton Caledon Housing Corp [2005] ruled that burn marks do not fall under the umbrella of ordinary use; in other words, burn marks are "undue damage".

    Given the existing damage to the floor, would a tenant be responsible for the cost of repair to only that subsection of floor? Or is a tenant to be held responsible for the cost of repairing the entire floor? For example, could a tenant be required to pay for the cost of re-staining the entire floor because burn marks constitute "undue damage", in spite of the pre-existing damage?

    It seems logical to me that a tenant should only be held responsible for the cost of repairing the damaged portion of the floor; alternatively, given that there's damage all throughout the floor, should the landlord choose to fix/replace the entire floor it seems logical to me that a tenant should only be responsible for a small portion of the total repair/replacement cost. However, I'm curious about other perspectives on this as even thought that seems logical to me, the law isn't always so logical (case in point, a small cigarette burn mark being considered "undue damage").

    Thanks for your perspective, it's much appreciated.

    Dan

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    Replies
    1. Hi Dan:

      The method for determining a tenant's liability for damage at some point becomes guess work or simply picking a number that feels right. If you wanted a principled approach one could ask what was the floor worth at the time that the tenant got the floor and what is it worth after the burn marks. If the before condition is poor enough (i.e. little to no value left in the floor) then perhaps the after condition (with burn marks) doesn't really make a difference to the floor even though it is more damaged than before the burn (i.e. the burn marks result in the floor still having no value).

      Much turns on how the circumstances are characterized and of course the judge's or adjudicator's perception of the condition of the unit and the damaged caused to the unit. Personally, I always thought that a burn mark or two from a cigarette ash would constitute normal wear and tear as smoking in a house is a normal thing to do (less so these days--but there was a time). In my view a small burn mark, here and there, is nothing. But as you indicate, the case law provides differently on this point. My observation is that determining liability is not without a significant subjective element.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  4. Hi Michael,

    Great article! As a tenant getting ready to move out, I'm going through this problem. We've lived in the unit for 3 years and there are some scratches on the floors, one area where the wood was worn down due to an office swivel chair and another beneath a peice of large couch that scratched when it was dragged. Our landlord told us to pay for getting the entire unit sanded which is thousands of dollars and I don't think fair. I want to quote him the normal wear and tear argument but not sure where to find the corresponding "laws". Is there a website that states these rights that I can show my landlord?

    Thanks,

    Dawn

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    Replies
    1. Hi Dawn: You are not going to find the phrase "normal wear and tear" in the legislation. That concept of the tenant not being liable for normal wear and tear arises out of the caselaw. What is useful however, is to look at what the RTA says the tenant is responsible for. In relation to damage it is section 34 of the RTA. That section says that the tenant is liable for the repair of undue damage--implying that a certain amount of damage is expected. That is the wear and tear you are asking about. Look for section 34 on www.canlii.org (a free legal research site).

      Michael K. E. Thiele

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  5. Sorry if this is a double post - I don't see my question here.

    We have lived in out unit for over 2 years. We took it over immediately from the last tenants, so no renovations or repair work was done between our tenancies. The floors look to be about 10 -15 years old, and look pretty worn.

    We had a carpet over the parquet floors (7x5 feet) that our rabbits slept on. In the process of moving we removed the carpet to find water damage (due to the rabbits spilling their water) and black urine stains. The damage is pretty substantial to this area of floor. I do not think it can be fixed through sanding and staining, but will need to be replaced.

    Do you think we will need to pay for that section of floor, or the cost of replacing all of the flooring? We would hate to pay for all new flooring considering the condition the floors were in when we moved in. It is also not something we can afford. I will take responsibility for the section we ruined, but want to make sure the law is on our side.

    Thanks for your response.

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  6. Interesting discussion. We accept that our dog caused scratching damage to the 10 year-old softer wood flooring in our rented condo. We are willing to pay for the damage and asked our trusted carpenter for a quote ($1,200). I estimate the landlord will get an income tax deduction of $500 on the expense leaving $700 for us to pay. The landlord has a verbal quote of $2,100 which she expects us to pay. Who gets to choose the contractor? Is the income tax consideration a red herring? Thank you!

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  7. Floors in my unit are 60 years old have been repaired 5 x and I just received a letter saying the maitenence man stated I washed my floor with soap and water so I have caused the damage to the floors.. I have been in the unit for 1 yr. The floors looked like this when I moved in.. They were out to see about getting the floors repaired because they were so split and pieces of wood were missing.. I complained about the condition and asked for them to be replaced.
    Its really amazing what a landlord will try to pin on a tenant.

    ReplyDelete
    Replies
    1. Hi: Your comment highlights the importance, for both landlords and tenants, to have a move in inspection (signed off) and to take pictures of the unit you received and the condition it is in. For tenants---getting such an inspection and taking pictures is a great way to protect yourself from bogus claims.

      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.