The thing about bedbugs is that the infestation in your apartment can build up over time without you realizing what is happening. That is, until one day, you wake up and find just too many bites on your arms, legs, and body.
Bedbugs are fairly small and in the early stages of having bedbugs it is not unusual to not see them. Generally nocturnal, you will not see bedbugs scurrying around in the day time and even if they are on the move they are small enough to miss unless you are looking for them.
How to treat for bedbugs is a matter of some debate---even among experts. I've heard lots of stories and there are treatments that people swear by that just seem downright odd. In my experience, being at the landlord and tenant board fairly often with bedbug cases, the only truly effective treatments are the ones carried out by professional and licenced pest control companies. The "do it yourself" remedies, if they do anything at all, simply knock down the populations to numbers that are not so intrusive on your daily life (i.e. you're not always covered in bites etc.). I've yet to hear of a truly successful do it yourself treatment. This is especially true in large apartment buildings where infestations of bedbugs tend to spread from unit to unit. This means that any treatment done in one unit will drive the bugs to neighbouring units and when the treatment is done they will slowly come back. Success requires treatment of all infested units.
The point of this article is to advise a tenant of what to do if they have bedbugs. The short answer is--- report it immediately to the landlord in writing and request professional treatment of the bedbugs. Having the landlord drop off a few cans of insecticide is NOT going to work.
If your landlord hires a professional exterminator you can expect to recieve a letter/form from the company advising you how to prepare your unit for treatment. Unfortunately, you will discover from the letter/form that there will be a fair amount of effort and expense on your part in getting ready for the treatment. One of the biggest costs is laundering pretty much everything in your apartment in hot water and then sealing the items in plastic bags until the infestation is eradicated.
Your landlord is indeed required to have your unit treated as part of the landlord's obligation to maintain the premises under the lease. Sometimes, the landlord will seek to impose the costs of pest control on a tenant as the landlord will blame the tenant for the infestation. Generally speaking, the costs of pest control can not be passed on to tenants or at least the Board is not awarding such costs as a matter of course. There are some exceptions of course, where intentional or negligent conduct on the part of a tenant can be demonstrated to have caused the infestation there is a stronger argument that the tenant should bear the cost of treatment. To date, those cases are rare as it is difficult to prove how a rental unit came to be infested.
Michael K. E. Thiele
Ottawa Lawyer
www.ottawalawyers.com
Friday 30 August 2013
Monday 26 August 2013
Renter's Insurance: Ontario Students take notice!
This is the time of year when many young persons are heading out on their own for the first time---off to college, off to university, or perhaps even just away from home. First apartments are being rented and leases being signed with roommates, co-tenants, guarantors. It is an exciting time!
What is often over-looked in the moving away from home process is the issue of insurance. While there may be some continued coverage for property and personal liability under a parent's home insurance policy there tend to be some gaps in coverage that leave the first time tenant inadequately covered in the event of a problem in the new apartment.
Renter's insurance is relatively cheap! You can find policies for as low as $150 plus taxes per year. It makes sense to be insured given what the insurance will cover.
A typical tenant's insurance policy will cover you for theft, water damage, fire damage, personal liability anywhere in the world. Typical policies will provide you with alternate accommodation (payment for it) for a period of time in the event that a fire, flood, or some other disaster makes your premises uninhabitable. For instance, if the upstairs neighbour forgets to turn off the tub, passes out in a chair, and three hours later you come home to find all of your ceilings collapsed and three inches of water in your apartment--you will be fairly pleased with yourself when you remember that you did indeed buy tenants/renters insurance and your insurance company is now paying for your hotel!
The benefits of renter's insurance can also be a pleasant surprise in instances where you just make a silly mistake, or your roommate makes a silly mistake, and causes a fair amount of damage that your landlord sues you for. Perhaps you're wondering what that could be? As an example, and I get these kinds of cases every year, winter arrives in Ottawa and the outside temperature drops. Before the cold snap hits, and without thinking about it, you open the window in the kitchen a crack (couple of inches) to let the cooking odours out. When you do it, the temperature outside is nice so you don't realize or remember that the window is open.
You then decide to go home for the weekend, and just as you're leaving you decide to turn the thermostat down a few degrees to save some money (and save the planet!). Unfortunately, what you don't know or realize is that the following evening the temperature is going to drop well below zero for the first serious freeze of the season. The freezing temperatures, along with the turned down thermostat and the open window in the kitchen cause a pipe just below the open window to freeze and burst. As a result, water pours into your unit and the unit below causing thousands of dollars in flood damage.
Burst water pipes (in a heater or waterline) are a very common occurrence in Ottawa. The damage caused by burst pipes often runs into the tens of thousands of dollars as water floods all the surfaces as it tries to get to the lowest point in the building. In this example, it would be entirely plausible for a landlord to try to 1) evict you and 2) sue you for the cost of repairs, lost rents, and associated expenses. Even if your landlord does not sue you, it is entirely possible that the landlord's insurance company would sue you for negligently leaving the window open and causing the pipe to burst.
The pleasant surprise in having renter's insurance is that you are likely covered for any claim made against you for accidentally leaving the window open. Your insurance company would pay for the repairs, the lost rents, the incidental expenses as well as a lawyer/lawfirm to defend you in any lawsuit. The relatively low premium of a couple of hundred dollars can protect you from many thousands of dollars in expenses.
I often hear tenants say that they didn't get insurance because they didn't think they would need it. Of course no tenant plans to be negligent (i.e. leave the window open), but there are so many silly things that any person can do that they don't realize will lead to a lawsuit. If you are still not convinced, consider that insurance will also pay to defend you from frivolous claims where you haven't actually done anything wrong.
Having a Landlord and Tenant law practice I see so very many problems that could have been resolved if the tenant only had insurance. I can assure you that most landlords will have a very different attitude towards you if you can say to them, in the face of a disaster, I'm very sorry for what happened but I am insured.
Before rushing out to buy a renter's insurance policy/ tenant's insurance policy, consider calling your parents' insurer or broker and checking to see what kind of coverage you already have. The broker or insurer may be able to sell you a separate policy that takes into account your family's relationship with the insurer or they may be able to sell you a rider, through your parents' policy that provides the protection you need.
I can't urge you enough to get insurance coverage as a tenant. It is a small expense for an incredible benefit should a situation arise where you suffer a loss or you cause a loss for someone else.
Michael K. E. Thiele
Landlord and Tenant Lawyer
Ottawa, Ontario
613-563-1131
www.ottawalawyers.com
What is often over-looked in the moving away from home process is the issue of insurance. While there may be some continued coverage for property and personal liability under a parent's home insurance policy there tend to be some gaps in coverage that leave the first time tenant inadequately covered in the event of a problem in the new apartment.
Renter's insurance is relatively cheap! You can find policies for as low as $150 plus taxes per year. It makes sense to be insured given what the insurance will cover.
A typical tenant's insurance policy will cover you for theft, water damage, fire damage, personal liability anywhere in the world. Typical policies will provide you with alternate accommodation (payment for it) for a period of time in the event that a fire, flood, or some other disaster makes your premises uninhabitable. For instance, if the upstairs neighbour forgets to turn off the tub, passes out in a chair, and three hours later you come home to find all of your ceilings collapsed and three inches of water in your apartment--you will be fairly pleased with yourself when you remember that you did indeed buy tenants/renters insurance and your insurance company is now paying for your hotel!
The benefits of renter's insurance can also be a pleasant surprise in instances where you just make a silly mistake, or your roommate makes a silly mistake, and causes a fair amount of damage that your landlord sues you for. Perhaps you're wondering what that could be? As an example, and I get these kinds of cases every year, winter arrives in Ottawa and the outside temperature drops. Before the cold snap hits, and without thinking about it, you open the window in the kitchen a crack (couple of inches) to let the cooking odours out. When you do it, the temperature outside is nice so you don't realize or remember that the window is open.
You then decide to go home for the weekend, and just as you're leaving you decide to turn the thermostat down a few degrees to save some money (and save the planet!). Unfortunately, what you don't know or realize is that the following evening the temperature is going to drop well below zero for the first serious freeze of the season. The freezing temperatures, along with the turned down thermostat and the open window in the kitchen cause a pipe just below the open window to freeze and burst. As a result, water pours into your unit and the unit below causing thousands of dollars in flood damage.
Burst water pipes (in a heater or waterline) are a very common occurrence in Ottawa. The damage caused by burst pipes often runs into the tens of thousands of dollars as water floods all the surfaces as it tries to get to the lowest point in the building. In this example, it would be entirely plausible for a landlord to try to 1) evict you and 2) sue you for the cost of repairs, lost rents, and associated expenses. Even if your landlord does not sue you, it is entirely possible that the landlord's insurance company would sue you for negligently leaving the window open and causing the pipe to burst.
The pleasant surprise in having renter's insurance is that you are likely covered for any claim made against you for accidentally leaving the window open. Your insurance company would pay for the repairs, the lost rents, the incidental expenses as well as a lawyer/lawfirm to defend you in any lawsuit. The relatively low premium of a couple of hundred dollars can protect you from many thousands of dollars in expenses.
I often hear tenants say that they didn't get insurance because they didn't think they would need it. Of course no tenant plans to be negligent (i.e. leave the window open), but there are so many silly things that any person can do that they don't realize will lead to a lawsuit. If you are still not convinced, consider that insurance will also pay to defend you from frivolous claims where you haven't actually done anything wrong.
Having a Landlord and Tenant law practice I see so very many problems that could have been resolved if the tenant only had insurance. I can assure you that most landlords will have a very different attitude towards you if you can say to them, in the face of a disaster, I'm very sorry for what happened but I am insured.
Before rushing out to buy a renter's insurance policy/ tenant's insurance policy, consider calling your parents' insurer or broker and checking to see what kind of coverage you already have. The broker or insurer may be able to sell you a separate policy that takes into account your family's relationship with the insurer or they may be able to sell you a rider, through your parents' policy that provides the protection you need.
I can't urge you enough to get insurance coverage as a tenant. It is a small expense for an incredible benefit should a situation arise where you suffer a loss or you cause a loss for someone else.
Michael K. E. Thiele
Landlord and Tenant Lawyer
Ottawa, Ontario
613-563-1131
www.ottawalawyers.com
Wednesday 21 August 2013
2014 Guideline Rent Increase Amount
Every year the Ontario Government sets the annual guideline rent increase amount for the upcoming year. For 2014, the maximum allowable rent increase is 0.8% without Landlord and Tenant Board approval. This means that upon giving proper notice, in a Form N1, a landlord may increase the rent once in a 12 month period by 0.8% in 2014.
The maximum guideline amount, without authorization from the Landlord and Tenant Board is the amount that applies to a great number, and perhaps the majority of tenancies in Ontario. However, it should be noted that there are an increasing number of rental units that are exempt from the guideline increase amount. The exemption arises from legislative choices made many years ago beginning with the Tenant Protection Act in or about 1997. That legislation, and subsequently the current Residential Tenancies Act continues an exemption from the annual guideline amount for certain properties. To see which properties are exempt from the Guideline increase amount take a look at the provisions of the Residential Tenancies Act and specifically section 6(2).
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
<a href="http://www.hypersmash.com">Hypersmash.com</a>
The maximum guideline amount, without authorization from the Landlord and Tenant Board is the amount that applies to a great number, and perhaps the majority of tenancies in Ontario. However, it should be noted that there are an increasing number of rental units that are exempt from the guideline increase amount. The exemption arises from legislative choices made many years ago beginning with the Tenant Protection Act in or about 1997. That legislation, and subsequently the current Residential Tenancies Act continues an exemption from the annual guideline amount for certain properties. To see which properties are exempt from the Guideline increase amount take a look at the provisions of the Residential Tenancies Act and specifically section 6(2).
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
<a href="http://www.hypersmash.com">Hypersmash.com</a>
Time Limits on Tenant Claims
It happens often enough that a tenant will feel that a landlord is failing to comply with his/her or its obligations under the Residential Tenancies Act. At first, the tenant feels that the violations are minor and they just put up with it. As time goes by, the violations increase or the situation does not get better and the tenant begins to increasingly resent the landlord's actions. Finally, enough time passes, and the tenant feels that it is necessary to proceed with an application at the Landlord and Tenant Board.
As the tenant sits down with the T2 (Tenants Rights Application) and/or the T6 (Maintenance Application), they begin to recall all of the things that the landlord has done that has made them mad and angry enough to be proceeding with a legal claim. The inclination is to write everything down and to seek Orders--be it for rent abatement, a fine, repairs, compensation for lost property, moving costs--based on the totality of the tenant's experience in the premises since the problems began.
As an example of what I am talking about: Let's presume a timeline of the tenant moving into the unit on January 1, 2012 and the tenant is sitting and filling in the T2 & T6 application on August 29, 2013 (length of tenancy to date is 1 year and 8 months). In deciding what to claim, the tenant makes the following list of things that happened in the rental unit during the course of the tenancy:
CHRONOLGY OF EVENTS
The question is--can the tenant apply to the Landlord and Tenant Board for everything that is on the list above? Strictly speaking, the Landlord and Tenant Board will NOT allow the tenant to make a claim for everything on the above list--based simply on the date that the issue arose.
Under the Residential Tenancies Act there is a 1 year time limit on being able to initiate a claim at the Landlord and Tenant Board for conduct that breaches the provisions of the RTA. Specifically, the language of that limitation is found at section 29(2) of the RTA.
The applications for Tenant's Rights and Maintenance (T2 & T6) are founded in section 29 of the RTA as it is there that the Landlord and Tenant Board derives its authority to make findings that the landlord has done something that is contrary to the RTA. Regardless of the other sections in the RTA, without section 29 (and the applications that are brought pursuant to it), a tenant would have no chance of getting the Orders and Remedies that he/she would normally seek.
Section 29(2) prohibits the filing of an application for any alleged conduct that arose MORE than one year prior to the date of application. This means that the Landlord and Tenant Board will not entertain an application based on events that occured more than one year prior to the application date. Hence for the purposes of bringing a claim to the Landlord and Tenant Board there is effectively a limitation period of one year.
In concrete terms, based on the example provided above (remember the T2 and T6 are being filed out on August 29, 2013)--the issues from July 31, 2012 and before that could not be included in the application (because they occurred more than one year before the filing of the T2 and T6 application).
Does this mean that any claim that is older than one year is automatically barred? In one sense yes, but perhaps not. Whether a Small Claims Court or Superior Court would entertain a claim for damages--for all of the breaches set out above is still a possibility.As at the date of writing this blog, I am unaware of any dispositive authority that says that section 29(2) prescribes the right of action and not just the right to file an application at the Landlord and Tenant Board. If I read the section correctly, and you can get a Court to entertain an Action (tenant v. landlord), I don't see section 29(2) as foreclosing a tenant's right to recover damages for the conduct complained about.
March 9, 2015
For those of you who have read this far. There now appears to be some authority for the proposition that there is a one year limitation period for claims brought by tenants, against landlords, even in the Superior Court of Justice. The case is Efrach v. Cherishome Living 2015 CarswellOnt 812, 2015 ONSC 472, 248 A.C.W.S. (3d) 494. Note that this is a Divisional Court case and would be considered an appellate authority in Ontario. I'm not yet convinced that the case is dispositive of all claims brought by tenants against landlords outside the one year period but it is certainly a case to be considered. If you have a claim against a landlord it would be wise to commence the claim within the limitation period prescribed by the RTA if at all possible.
Michael K. E. Thiele
Ottawa, Ontario
Landlord and Tenant Lawyer
www.ottawalawyers.com
As the tenant sits down with the T2 (Tenants Rights Application) and/or the T6 (Maintenance Application), they begin to recall all of the things that the landlord has done that has made them mad and angry enough to be proceeding with a legal claim. The inclination is to write everything down and to seek Orders--be it for rent abatement, a fine, repairs, compensation for lost property, moving costs--based on the totality of the tenant's experience in the premises since the problems began.
As an example of what I am talking about: Let's presume a timeline of the tenant moving into the unit on January 1, 2012 and the tenant is sitting and filling in the T2 & T6 application on August 29, 2013 (length of tenancy to date is 1 year and 8 months). In deciding what to claim, the tenant makes the following list of things that happened in the rental unit during the course of the tenancy:
CHRONOLGY OF EVENTS
- January 14, 2012----flapper on toilet broke, landlord informed same day, landlord did not fix for 2 weeks;
- January 26, 2012---tenant returned home to find superintendent in the unit doing an inspection because he forgot to do it when the tenant took possession. No notice of entry--hence illegal entry;
- February 17, 2012---Landlord turned the heat down during the day to 16 degrees in the building as he thought all the tenants were at work. He turned it up again at 4:30 p.m.. When tenant complained he said the tenant should wear a sweater, turning the heat down is good for the environment--this continued for two months;
- July 31, 2012,---the landlord disconnected the outside water faucet which the tenant had been using to water her vegetable garden. When tenant complained, the landlord said he didn't want to pay for the water so he took away the service;
- September 2012---landlord entered unit while tenant was at work and replaced the windows--wtihout any notice to the tenant. The unit wasn't ready and the landlord broke two figurines on the window ledge that had great sentimental value to the tenant.
- December 2012,---the landlord informed the tenant that he would not be providing snow shovelling service this year to save on over-head. He advises the tenant that the lease says nothing about him providing this service so the tenant should do it;
- February 2013,--the landlord starts turning down the heat again to 16 degrees in the daytime (the tenant is at home with the flu and notices how cold it is);
- March 18, 2013,---the tenant reports to the landlord that the freezer compartment in the fridge is not working--the landlord says he will replace the fridge in May when his budget will allow.
- June 18, 2013,--the landlord still has not replaced the freezer/fridge and now the taps are dripping, there is a hole in two screens, and the tub does not drain properly. The landlord says he will get to it (nothing happens for over three weeks)
- August 24, 2013,--now the toilet doesn't drain properly either, the tub is basically blocked and the tenant got an email auto-reply from the landlord saying he was away on holiday until September 13, 2013.
The question is--can the tenant apply to the Landlord and Tenant Board for everything that is on the list above? Strictly speaking, the Landlord and Tenant Board will NOT allow the tenant to make a claim for everything on the above list--based simply on the date that the issue arose.
Under the Residential Tenancies Act there is a 1 year time limit on being able to initiate a claim at the Landlord and Tenant Board for conduct that breaches the provisions of the RTA. Specifically, the language of that limitation is found at section 29(2) of the RTA.
The applications for Tenant's Rights and Maintenance (T2 & T6) are founded in section 29 of the RTA as it is there that the Landlord and Tenant Board derives its authority to make findings that the landlord has done something that is contrary to the RTA. Regardless of the other sections in the RTA, without section 29 (and the applications that are brought pursuant to it), a tenant would have no chance of getting the Orders and Remedies that he/she would normally seek.
Section 29(2) prohibits the filing of an application for any alleged conduct that arose MORE than one year prior to the date of application. This means that the Landlord and Tenant Board will not entertain an application based on events that occured more than one year prior to the application date. Hence for the purposes of bringing a claim to the Landlord and Tenant Board there is effectively a limitation period of one year.
In concrete terms, based on the example provided above (remember the T2 and T6 are being filed out on August 29, 2013)--the issues from July 31, 2012 and before that could not be included in the application (because they occurred more than one year before the filing of the T2 and T6 application).
Does this mean that any claim that is older than one year is automatically barred? In one sense yes, but perhaps not. Whether a Small Claims Court or Superior Court would entertain a claim for damages--for all of the breaches set out above is still a possibility.
March 9, 2015
For those of you who have read this far. There now appears to be some authority for the proposition that there is a one year limitation period for claims brought by tenants, against landlords, even in the Superior Court of Justice. The case is Efrach v. Cherishome Living 2015 CarswellOnt 812, 2015 ONSC 472, 248 A.C.W.S. (3d) 494. Note that this is a Divisional Court case and would be considered an appellate authority in Ontario. I'm not yet convinced that the case is dispositive of all claims brought by tenants against landlords outside the one year period but it is certainly a case to be considered. If you have a claim against a landlord it would be wise to commence the claim within the limitation period prescribed by the RTA if at all possible.
Michael K. E. Thiele
Ottawa, Ontario
Landlord and Tenant Lawyer
www.ottawalawyers.com
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
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
Wednesday 7 August 2013
Mediate, Settle, or Fight: How do you choose?
In this article I'm going to try to shed a little bit of light on the decision making process as it relates to settlement, mediation, and litigating (i.e. arguing and letting the Adjudicator decide) an application before the Ontario Landlord and Tenant Board. This article is destined to fail in that it will not be possible to explore all of the factors that go into such a decision in a reasonable number of words. The reality is that the factors that influence how a case proceeds are innumerable and unique to each and every case. From case to case, the underlying facts are never identical, the parties are rarely the same and the positions of the parties are unique to that particular time and space (i.e. a willingness to negotiate a particular case (but not the next one) may be motivated by illness, a trip, an appointment, sympathy, empathy, and the converse is also true).
However, notwithstanding the great differences between each case (on the facts and circumstances), the fact is that most cases settle before the Hearing of the actual application. Settlement happens either between the parties and a private deal is made or a settlement is acheived at the Landlord and Tenant Board with the assistance of a professional mediator supplied by the Board. Either way, the case does not proceed to be heard on its merits but instead is resolved by a consent order, mediated agreement, or withdrawal of the application.
While the fact that the majority of cases settle is true the issue I'm seeking to address is how do you decide whether your case is one of those cases that should settle or whether it is one of those cases that must go to hearing if the other side doesn't come around and give you what you are seeking. It is this issue/question that I spend the most time talking to my clients about--prior to the hearing and at the mediation itself if we enter into mediation. It is difficult because mediation and resolution by negotiation necessarily means that the outcome of the case is a compromise for the client--meaning they are getting less or giving more than what they wanted to give or get out of the process.
To the extent that every settlement is a compromise the question then becomes how much do you compromise (i.e. how much less than what you wanted do you accept or how much more do you give than what you wanted to give)? Being ever fond of context and examples let me explain a situation that a client of mine recently faced.
FACTS
This client moved into her new apartment on March 1 (6 months ago). On the move in date, she discovered that the renovated unit she visited and the apartment complex (high-rise) that seemed reasonable when she rented the place was in fact an absolute horror show. After getting her keys and within 4 days of moving into the new apartment she experienced the following: solicitation for sexual services in the entrance lobby from males and females, persons high on drugs shoulder surfing to gain entry to the building, people squatting in hallways and common stairwells, people defecating in the hallways, marijuana smoke permeating the building and getting into her unit, intense cooking smells getting into her unit, upstairs neighbour's childrent pounding on the floor repeatedly and endlessly (at least 7 hours per day), the landlord refusing to confront the neighbour, the neighbour threatening the tenant when she begged them to stop, the police advising the tenant that they could do nothing for her after speaking with the neighbour and advising her it was a civil matter, getting stuck in the elevator twice (this continued in the weeks to follow), finding used needles and condoms about the property, and finding that doors to the garage were broken open so anyone could enter at will.
After the first four days, the tenant discovered that the gym and fitness center (which was the big seller) was not going to be open for an indefinite period of time. Her complaints to the landlord were ignored. She lost heat for 6 days (when the temperature was still below zero), and received very little help from the landlord who only told her that the furnace technician said it would take a few days for the system to fully catch up. She also discovered that the landlord, through carelessness, disclosed her personal information to the tenant she was complaining about and thereby suffered retribution from that tenant (i.e. strange liquids being poured on the floor in front of her door and on her balcony).
These facts, and may other incidences, were all well documented in emails, photographs, advertisements, etc..
The monthly rent was approximatley $1100 and the tenant, as a rental incentive got the first month free on the condition that she finish the one year term of the lease.
The tenant could not get any satisfaction from the landlord. The landlord refused to move her to a different unit (there were many available as the vacancy rate is high in the complex), she increasingly felt un-safe and threatened. The upstairs neighbour was driving her crazy and it was affecting her work--and there was no end in sight.
The tenant decided that she needed to get out of this apartment at all costs. She tried to get the landlord to agree to let her go. They refused as they advised that she was in a one year lease and hence could only sub-let or assign her tenancy to a new person. At her wits end, the client came to me.
THE APPLICATION
As I do with all of my clients after getting the outline of the facts, I ask them what it is that they want me to get for them--whether through negotiation, litigation, or a combination of both. It may seem like an obvious question to ask but you may be surprised at how difficult it is for a client to sometimes answer this question. I think the reason for the difficulty is that they are sometimes over-whelmed by everything that is happening to them that they can not look at the entire situation objectively or dispassionately.
In this case, the client advised me that all she wanted was to be allowed to leave--to get out of her lease and to never have to go back to this building. Given this answer from the client, I proceeded to advise her about her right to bring a tenant application in form T2 and that the remedies that she could seek included termination of the tenancy on a date specified by her. I also informed her of her right to seek an abatement of rent, other compensation, a fine, and various orders requiring the landlord to undertake certain actions.
It was in discussing the nature of the potential remedies and how to prove an entitlement to them that the client began to see the strategy or roadmap of how I intended to take her from the situation she was in to the situation that she wanted to be in.
Notwithstanding the client's expressed desire to simply get out of her lease and application was drafted with the client's full agreement seeking termination of the tenancy, a rent abatement of $25,000, damages for misrepresention, moving costs, and a fine. The application was issued and served on the landlord.
THE HEARING
The client was very good at preparing a large package of evidence that proved or at least supported her assertions against the landlord. There were advertisements about the fitness centre, emails from the rental agent confirming that she would enjoy the fitness center, emails about the noise complaints, drug complaints, vagrants complaints, harassment, breach of privacy. There were photographs of various vile things all around the complex and various work orders and timelines of the crazy things that happened. All of these things were served on the landlord in advance of the hearing.
The landlord served no responding documentation. At the hearing, the landlord showed up with three witnesses who would testify in response to the tenant's case.
MEDIATION BEFORE HEARING
As is the norm at Landlord and Tenant Board proceedings in Ottawa, there was an opportunity before the commencement of the hearing for the parties to mediate. In this case, mediation was helped along by the fact that both sides of the case were represented.
In this case, prior to the clients showing up, the landlord's lawyer and I had a chance to talk about our clients' respective positions. Since the commencement of the application, my client had moved out (June 30) and based on legal advice she had also not paid her June rent. Therefore, the length of the tenancy was a maximum of 4 months (March to June) with a total of three months having been paid for (there was a last month's rent deposit).
The landlord's lawyer took an interesting position with respect to the residential complex. He indicated that his client had purchased the property from a rather notorious company that allowed the condition of the units to deteriorate significantly and who also filled the buildings with tenants who passed no kind of reference check. He advised that the landlord was doing everything it could to deal with undesirable tenants, was investigating all complaints, and taking legal action against anyone who was in breach of the Residential Tenancies Act. He asserted that signficant repairs were being done, that my client's apartment had been completely renovated prior to her moving in, and he highlighted the fact that my client, in her own emails even mentioned some of the great maintenance and repairs that were completed as well as upgrades to security via electonic key fobs and cameras. He took the position that the vast majority of what my client was complaining about was indeed out of the landlord's control but that the landlord was responding to complaints and dealing with them in accordance with the Residential Tenancies Act.
The Fitness Centre deserved a special explanation as my client asserted that the rental agent never mentioned that the Fitness Centre was closed. On this point, the lawyer had little to say, except to baldly assert in the face of contradictory emails and flyers that the tenant was not promised what she claims was promised to her.
The lawyer then openly alluded to the secret that everyone who attends the Board regularly knows. This particular property is extremely troubled. It has been in the news for a couple of years, protest groups have formed because of it, and this property is regularly before the Board facing tenant applications that are similar to in nature to my client's application. He then acknowledged that the typical tenant application is resulting in a rent abatement of 10%
The lawyer asked whether my client was employed and whether I would accept service of a Statement of Claim issued against my client in the small claims court. He mused that his client would be seeking to issue a claim against the tenant for the lost months of rent (balance of the one year term) as well as for payment of the "free" first month's rent.
We then proceeded to discuss the fact that the landlord had served a Notice of Termination for Non-Payment of Rent (Form N4) and the legal significance of the landlord terminating the tenancy for non-payment of rent. Is a landlord entitlted to seek compensation for lost rent when a tenant moves out of a unit before the end of term? We debated the recent caselaw (Small Claims level) that says once the tenancy is terminated by N4 the landlord's rights cease with the old caselaw that says the obligation continues even if an N4 was served.
We also debated whether the facts described by the tenant would be severe enough---and have enough unmpf (power) to convince the adjudicator that s/he should terminate the tenancy. Effectively, the adjudicator would have to find that termination of the tenancy was necessary to effect justice as an abatement of rent would not be sufficient in the circumstances.
MEETING WITH THE CLIENT/TENANT
My client was nervous about the hearing process, about testifying, about winning, about losing, and about everything about what appearing at the Landlord and Tenant Board entailed. This, in my experience, is perfectly normal---some lawyers refer to these feelings as litigation stress.
Because the Landlord and Tenant Board does not require the exchange of pleadings nor the exchange of documentary evidence, nor does it allow for examinations for discovery, my client learned the thrust of the landlord's defence in the minutes before the hearing was to commence. And in fact, she only learned it then because I took the time to speak with the landlord's lawyer to try to find out what the landlord's position was. I had in fact tried to get the landlord's position in the weeks leading up to the hearing but the landlord's lawyer was not in a position to advise me of anything until the hearing.
So, imagine that you are my client and that you have lived the experience that I've described for you in the early parts of this article. Clearly you are upset, feel that you deserve something for having gone through this ordeal.
Now, with your case ready to be called at any moment, I've pulled you aside to tell you the things that the landlord's lawyer has told me. I'm telling you this because you 1) have a right to know, 2) I have a duty to tell you, and 3) I need to have your reaction to some of the things said to gauge whether the statements are true, how we will counter them in your evidence, and what evidence you could lead to counteract the landlord's evidence.
My description to you of the landlord's view of the facts raises with specificity, for the first time, the landlord's strategy. Hence, we now find that the landlord will not deny many of your allegations about the conduct of other tenants. Instead, the landlord will focus on the fact that they are aware of the problems, that they are taking every legal step they can to evict the problem tenants. All of a sudden, the email from the property manager--wherein she invited you to "fill her in-box" with complaints takes on a new meaning.
The landlord's strategy--of not denying--but acknowledging and saying they are dealing with the complaints turns out to be a clever defence. As I explain to you, rent abatements in Residential Landlord and Tenant law fall within a relatively narrow band of 10 to 30% of the monthly rent (for no real reason other than they just "do". Also, the RTA contemplates that rent abatements are more significant if the landlord was made aware of an issue but did nothing about the problem (in fact the RTA directs the Board to consider whether the Landlord was given notice in repair applications s.30(2)---and it is my opinion that this consideration carries through in all applications).
The comment about whether you are employed and whether I would accept service is a comment that puzzles you. I explain to you that the landlord does not have the legal right to commence an application at the Landlord and Tenant Board when you are out of possession. Hence, any claim the landlord has would have to be adjudicated in the Small Claims Court. What claim could they have? Well, the free first month rent that you received was written into your lease with a condition that they discount would only apply if the entire term of the lease were completed and you (the tenant) did not terminate the lease early. The landlord could sue you for the first month of "free" rent. The landlord could also sue you for the balance of the term of the lease. I advise you that it is unlikely that the landlord would get 8 months of rent from you, that the landlord has a duty to mitigate its losses and that it needs to try to re-rent your unit. At this stage, we recognize that the landlord's false statement that vacancy stands at 10% is not helpful as from your own observations you think the vacancy rate in the building is closer to 40%. This matters because the landlord has no obligation to re-rent your unit in priority to other available units.
I ask you whether the landlord would actually sue you in the Small Claims Court or whether this is more likely a bluff. You don't know (obviously you can't know), but you're inclined to think that they would---especially if you won money in the Board hearing.
You then ask what the chances are in a small claims case if you win termination at the Board. The answer is that winning a termination of the tenancy at the Board certainly absolves you from ongoing liability for rent--and your risk in Small Claims Court is zero for ongoing rent. However, the wording of the "free rent" clause makes a claim in small claims court something to be concerned about.
You then get stressed at the thought of being sued in the small claims court as the "litigation stress" rekindles and you think about the fact that a small claims court action will mean days off of work, the expense of defending, a need to think about the very horrible things that happened--along with a potential financial risk of the landlord winning back a month of rent or perhaps more months if the Landlord and Tenant Board does not terminate the tenancy. You can only conclude that if this is a bluff---it is a good one.
Aside from the specific information conveyed by the landlord's lawyer, we now consider the three witnesses that the landlord has brought to testify. We discuss what they might say, how faithful to the truth some or all of them might be. Would any of them be sympathetic to you--you think not--except that you bought two of the maintenance guys a case of beer as a thank you for their work before you left (one of them is here to testify). You wouldn't have mentioned this to me except that the landlord's lawyer told me about it in passing.
At this stage you are wondering what this all means. Does it mean anything? The reason why you are at the Landlord and Tenant Board has not changed. The things you went through--still happened and you still suffered for having moved into this property. Won't the Judge understand that you ask. On that topic we discuss the personality of the adjudicator and how this particular adjudicator has ruled in similar cases in the past. I inform you of whether you have a "good" draw for your case--reminding you that it is only my opinion and much will depend on how the evidence comes out.
RE-CAP
In the vast majority of cases where I have been counsel for the landlord or tenant--there is some sort of discussion that touches on the kinds of things that I have recounted above. The discussion arises because it is human nature to gauge one's chance of success and to re-analyze the chance of success in light of new information. "New information" includes all of the last minute bits of information and it even includes intangible factors such as the weather, the length of the list, the mood of the Adjudictor. All of the actors in a case are human--and even ascribing only the best intentions to all of them the fact remains that external factors do influence how a case unfolds.
What I haven't written about yet--but which you should presume---is that while the landlord's lawyer was advising me of "new facts" (with his spin), I was of course also advising him of new facts and my interpretation of those facts (my spin). While we were having our conversation the landlord and its lawyer were having the same kind of discussion--re-weighing, assessing and balancing the risks of the case.
Once we have assimilated the "new information" the inevitable question that every client asks is whether my view of the case has changed. I will get "what are my chances now?", "should we try to settle?". Alternatively, for the client who is refusing to see the forest for the trees----I will ask them, perhaps rhetorically, whether anything they have heard has raised any concerns for them.
My goal at this stage of the process is not to encourage the client to settle or to proceed with the hearing. Instead, it is my goal to ensure that the client has all of the facts at hand, is aware of the risks, and knows the range of possible outcomes as reasonably foreseeable if the case goes to hearing. Sometimes, the client asks me "what would you do?" to which I can't provide a helpful answer for the simple reason that what is acceptable to me, my risk tolerance, my willingness to deal with or accept a negative outcome is necessarily different than the clients. That being said, this question usually results in a cost benefit analysis that takes into account all of the known circumstances. On the facts of the case recited as an example above they include:
- legal costs to date and to the end of the hearing;
- will this hearing end it all today;
- will the landlord proceed to small claims court; and what are the risks and costs of proceeding there;
- if you win money from the landlord will this make the landlord more likely to sue you in small claims court? (you said "yes");
- the attitude of this adjudicator (how does he deal with tenant claims)---(this adjudicator is balanced);
- that the percentage range of rent abatement is 10 to 30% (this landlord has been ordered to pay 10% abatements for recent similar cases for people from your building);
- that the financial part of the claim for rent abatement is now limited in range to $300 to $900 because the tenancy was ended after 4 months (i.e. 10% to 30% of $1000 per month--first month free);
- that the caselaw involving N4's terminating tenancies is not settled;
- that getting a rent abatement is likely--whether your experience is enough to have the adjudicator terminate the tenancy is more a 50/50 question
- that your entitlement to the "free" first month is a question without an obvious legal answer even if you win an abatement and a termination of the tenancy--and in any event this claim can be pursued in small claims court.
- You can't be sure of finality unless you make a deal--and litigation stress has been bothering you.
- On the first day that you met me, all you wanted was out of the premises and be free to go--how committed are you to pursuing financial damages and risking future litigation.
The foregoing twelve points went into my clients consideration of whether she wanted to try to mediate a resolution or whether she wanted to proceed straight to the hearing. Both were a choice as she was not required to mediation or negotiate.
The framework for getting to the point of deciding to mediate is interesting and I proceed in this way purposely. Note that I didn't just say to the client---let's go to mediation and see what happens. Playing it "by ear" is not something that I encourage in the Landlord and Tenant environment unless my client is very steady and experienced in litigation. In an adversarial environment that provides no disclosure, no examinations, no pleadings, going into a mediation without having done the serious analysis of the pros and cons is, in my view, inviting a rash decision that will lead to regrets--based on information that is presented on the fly.
Having done the analysis of whether to mediate, which necessarily entails a review of the strengths and weaknesses of the case, the client can be ready to consider compromises to their position. What does this mean?
For anyone who hasn't been through a mediation you will find that most sessions start in the same way. There is an introduction, general statements by each party, sometimes a statement by the lawyers, all of which is intended to get the interests on the table. The positions in relation to the interests follow--and depending on how the parties are interacting the mediator may take the parties into separate rooms and conduct the mediation on a shuttle basis. Inevitably, the opening positions of each party are reflective of the best possible outcome for that party at the end of a hearing.
The opening positions get challenged by the evidence, the comments, the posturing, the innuendo, the willingness to litigate, the willingness to continue the proceeding after today (i.e. appeal, review). It is pure negotiation, pure advocacy, it is the flea market, the swap meet. There are countless books on negotiation and all of those strategies come into play. Threaten to "walk away", spend lots of time and get the other side invested, break the claim down into pieces, etc. etc. etc.. Everyone has a strategy and it is rare that anything is actually what it seems to be.
The mediation process results in offers going back and forth. I've found that it is at this stage that some clients get disappointed because they go into a mediation hoping or expecting that the other side will come to the table offering a big number. It's like they are hoping for a lottery win. Unfortunately this rarely happens and therefore it is simply wrong to rely on "hope" to get a favourable resolution. In fact, the opposite is true and I have found that a client who has a clear appreciation of all of the facts, knows the risks, and has a good sense of the pros and cons is in a position to negotiate a better outcome because they know what they need. In effect, they put a price on their case--in the face of all the factors--and aim for it. Clients who negotiate with this kind of conviction will normally get very close to what they need to settle--either a little more or sometimes a little less.
Knowing the value of your case to "you", knowing the consequences of settling, the risks of trial, and the possible outcomes, makes for a fairly savvy negotiator who is likely to more often have success than failure at the Landlord and Tenant Board.
FACT SCENARIO OUTCOME
If you've read this far you are likely wondering what happened in the case that I have recounted above. It wouldn't be fair to not disclose the outcome, but before I do that I would like you to take a moment and think about what you would do (mediate or not) and if you did mediate--what would you aim for (what's your bottom line). I promise you that the facts of this case are real and were actually faced by a client of mine. Your answer of course reflects your personal circumstances and you haven't had the stress of the tenant in this scenario. Still--what are you aiming for?
What actually happened in this case is that my client decided to mediate. She put a high value on finality and wanting to be finished with the case once and for all. She wanted to mediate for the certainty of finishing everything in relation to her tenancy on the hearing date (i.e. no small claims court, no appeals, no reviews). She decided that money was less important but that she still deserved something for the lack of the fitness center. She could appreciate the landlord's position in relation to the nuisance tenants. She accepted that the law is generally cheap when it comes to damages for tenants and that the principle method of damages calculation is by applying a percentage reduction to monthly rent (i.e. rent abatement). She felt that she would be in the high end of the 10 to 30% range while I assessed her at 20% of rent paid (i.e. $600). On the premise that foregiveness is easier to get than permission and the fact that the tenancy was de facto terminated and given who the adjudicator was, it was my view that it was more likely than not that the adjudicator would indeed terminate the tenancy.
THE DEAL
The matter was indeed settled in mediation. It resolved on the basis that the tenant would withdraw her application in consideration of the landlord not pursuing any claims against her and that this was in full and final satisfaction of all issues arising from the tenancy. This was entered as an Order of the Landlord and Tenant Board. The tenant got: 1) termination of the tenancy, 2) she kept her one month of free rent ($1000), 3) she got finality and a mutual release for anything to do with this tenancy.
There are always reasons to second guess and think of other options, but at the end of this process I was very happy for the client because she has an outcome that meets with her primary objectives. She controlled the process and had a substantial say in the outcome.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.ottawalawyers.com
Sunday 4 August 2013
Calculating Notice Periods
What is likely one of the most frustrating things for a landlord is having an application to the Landlord and Tenant Board dismissed because of a "technicality". Until it happens to you, it is a little hard to believe that an application can be dismissed because of a mistake that seems obvious to everyone and it is clear that the mistake didn't mislead or confuse anyone (including the tenant). The reality, however, is that applications that do not comply with the provisions of the Residential Tenancies Act are dismissed out of hand. This means that a landlord needs to start all over again, from the very beginning, if they want to try to evict the tenant.
It is perhaps easier to write about this topic using an example application so that you can understand how precise (picky) the legislation is. Lets consider the application to terminate a tenancy for non-payment of rent. That application starts with a Form N4 (Notice of Termination for Non-Payment of Rent). This Notice calls for a notice period of 14 days. What this means is that you need to give the tenant 14 days Notice of Termination for Non-Payment of Rent and this date (at least 14 days after you give the tenant the Form N4) is called the Termination Date.
On the N4 Form you will see a box in the middle of the first page in which you are required to put a date---this date is the Termination date. Every single Notice of Termination (Form N4, N5, N6, N7, N8, N12) has a box on it that requires the insertion of a termination date. Each Form has its own number of days of notice that must be provided and on some forms it changes depending on whether it is a first notice or second notice.
The question is--how do you calculate the date that you need to insert in the box on the form? It is extremely important to calculate this date correctly as this is one of those "technicalities" that can result in the immediate dismissal of an application if the date is wrong.
The general rule for calculating a Notice Period is that you do not include the day of doing something but you do include the day that would be the final day of the period. What does this mean? By example, if you physically hand the N4 form to the tenant on the 5th day of a month you would not start counting the 14 day notice period until the 6th day of the month (meaning the 6th becomes the first day of the notice period). You would then continue counting out 14 days of Notice and you would discover that the 14th day is the 19th day of the month. Pursuant to the general rule for calculating Notice periods you would include the 14th day as notice-- meaning the termination date that you would insert in the N4 (for an N4 served on the 5th day of the month by hand personally) would be the 19th of the month or later.
It is perhaps worth mentioning that Notice Periods (Termination Dates) are minimum notice periods. You are permitted to give more than the minimum.
So, in the context of an N4 it seems straight forward enough that you don't count the day that you hand the tenant the notice, but you do include the 14th day after service. Can it get any trickier? In fact, the rule we just went through is dependent on the method of how you deliver the Notice of Termination to the tenant. The rule we just discussed presumes that you hand the Notice of Termination to the Tenant or that you place the Notice of Termination in the mailbox where mail is normally delivered. The calculation method changes if, instead of handing it to the tenant or putting it in the mailbox, you mail the Notice of Termination or you Courier it to the tenant.
In the case of mailing, the law provides that the Notice is not deemed served until five days after mailing. So, using our N4 example of serving on the 5th of a month--the following would result. By mailing an envelop on the 5th it would not be deemed delivered to the tenant until the 10th of the month (exclude the date of mailing and include the date of deemed service). Therefore, if the Notice is deemed delivered on the 10th you don't include the 10th for the purpose of calculating the 14 day notice period. You start counting the 14 day period on the 11th of the month--which takes you to the 24th of the month. Hence, the termination date is the 24th of the month at the very earliest.
The Rules are different again for service by courier--which deems service to be effective the day after sending a document by courier. Hence, your 14 day period for an N4 would not start until two days after serving by courier even if you know for an absolute fact that the Courier company delivered the envelop on the same day that it was given to them for delivery.
The whole of this article has been dealing with a concept often referred to as "computation of time". It is not just Landlord and Tenant law that has special rules for calculating time periods and in fact all court systems and different levels of courts have their own rules about service and computation of time. How is a regular person supposed to become familiar with the rules? Unfortunately, the way most people learn is through making mistakes and effectively learning the hard way. Certainly, the forms contain guides and if you read carefully you should be able to get it right.
For someone who wishes to be precise the best way to determine if everything is being done correctly is to review the Landlord and Tenant Board Rules--and for computation of time the Rules to review is Rule 4. For a complete understanding of the interplay between the computation of time and the method of service you should also have regard to Rule 5. The Landlord and Tenant Board Rules can be found at this link.
The manner of calculating time and the rules surrounding it are very dull and boring. However, in the process of terminating tenancies nothing can be more important than getting these dates absolutely correct. Being off by one day is enough to wipe out all of the work that went into an application as well as losing the $170 application fee (there are no refunds).
If you have questions about computation of time be sure to get legal advice before starting on the process. Mistakes in relation to Notice can not be corrected or amended or fixed not matter how reasonable it might seem to make an allowance for a small error. It may seem draconian, unfair--and even impossible--but the fact is that there is no wiggle room at all for mistakes in relation to the calculation of Notice Periods in Notices of Termination.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.ottawalawyers.com
It is perhaps easier to write about this topic using an example application so that you can understand how precise (picky) the legislation is. Lets consider the application to terminate a tenancy for non-payment of rent. That application starts with a Form N4 (Notice of Termination for Non-Payment of Rent). This Notice calls for a notice period of 14 days. What this means is that you need to give the tenant 14 days Notice of Termination for Non-Payment of Rent and this date (at least 14 days after you give the tenant the Form N4) is called the Termination Date.
On the N4 Form you will see a box in the middle of the first page in which you are required to put a date---this date is the Termination date. Every single Notice of Termination (Form N4, N5, N6, N7, N8, N12) has a box on it that requires the insertion of a termination date. Each Form has its own number of days of notice that must be provided and on some forms it changes depending on whether it is a first notice or second notice.
The question is--how do you calculate the date that you need to insert in the box on the form? It is extremely important to calculate this date correctly as this is one of those "technicalities" that can result in the immediate dismissal of an application if the date is wrong.
The general rule for calculating a Notice Period is that you do not include the day of doing something but you do include the day that would be the final day of the period. What does this mean? By example, if you physically hand the N4 form to the tenant on the 5th day of a month you would not start counting the 14 day notice period until the 6th day of the month (meaning the 6th becomes the first day of the notice period). You would then continue counting out 14 days of Notice and you would discover that the 14th day is the 19th day of the month. Pursuant to the general rule for calculating Notice periods you would include the 14th day as notice-- meaning the termination date that you would insert in the N4 (for an N4 served on the 5th day of the month by hand personally) would be the 19th of the month or later.
It is perhaps worth mentioning that Notice Periods (Termination Dates) are minimum notice periods. You are permitted to give more than the minimum.
So, in the context of an N4 it seems straight forward enough that you don't count the day that you hand the tenant the notice, but you do include the 14th day after service. Can it get any trickier? In fact, the rule we just went through is dependent on the method of how you deliver the Notice of Termination to the tenant. The rule we just discussed presumes that you hand the Notice of Termination to the Tenant or that you place the Notice of Termination in the mailbox where mail is normally delivered. The calculation method changes if, instead of handing it to the tenant or putting it in the mailbox, you mail the Notice of Termination or you Courier it to the tenant.
In the case of mailing, the law provides that the Notice is not deemed served until five days after mailing. So, using our N4 example of serving on the 5th of a month--the following would result. By mailing an envelop on the 5th it would not be deemed delivered to the tenant until the 10th of the month (exclude the date of mailing and include the date of deemed service). Therefore, if the Notice is deemed delivered on the 10th you don't include the 10th for the purpose of calculating the 14 day notice period. You start counting the 14 day period on the 11th of the month--which takes you to the 24th of the month. Hence, the termination date is the 24th of the month at the very earliest.
The Rules are different again for service by courier--which deems service to be effective the day after sending a document by courier. Hence, your 14 day period for an N4 would not start until two days after serving by courier even if you know for an absolute fact that the Courier company delivered the envelop on the same day that it was given to them for delivery.
The whole of this article has been dealing with a concept often referred to as "computation of time". It is not just Landlord and Tenant law that has special rules for calculating time periods and in fact all court systems and different levels of courts have their own rules about service and computation of time. How is a regular person supposed to become familiar with the rules? Unfortunately, the way most people learn is through making mistakes and effectively learning the hard way. Certainly, the forms contain guides and if you read carefully you should be able to get it right.
For someone who wishes to be precise the best way to determine if everything is being done correctly is to review the Landlord and Tenant Board Rules--and for computation of time the Rules to review is Rule 4. For a complete understanding of the interplay between the computation of time and the method of service you should also have regard to Rule 5. The Landlord and Tenant Board Rules can be found at this link.
The manner of calculating time and the rules surrounding it are very dull and boring. However, in the process of terminating tenancies nothing can be more important than getting these dates absolutely correct. Being off by one day is enough to wipe out all of the work that went into an application as well as losing the $170 application fee (there are no refunds).
If you have questions about computation of time be sure to get legal advice before starting on the process. Mistakes in relation to Notice can not be corrected or amended or fixed not matter how reasonable it might seem to make an allowance for a small error. It may seem draconian, unfair--and even impossible--but the fact is that there is no wiggle room at all for mistakes in relation to the calculation of Notice Periods in Notices of Termination.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.ottawalawyers.com
Thursday 1 August 2013
Nickels and Dimes: Applying for Small Arrears
Every once in a while a case crosses my desk that strikes me as completely ludicrous. That happened this week and I had the chance to have a little laugh at the stupidity exemplified by the application.
In this particular case my client was the tenant. Her monthly rent was $1125. She had an agreement with the landlord to allow her to do some minor repairs that were needed through no fault of the tenant. The landlord agreed to reimburse the expenses which in this case totalled $97.80. When no one came to collect the receipts or to inspect the work the tenant put a note with her rent cheque and deducted the $97.80 (rounded to $100) from the rent.
In addition to the deduction for the repairs, the tenant made a deal with the landlord respecting the painting of a bedroom in her rental unit (the prior tenant had painted it an awful colour). The landlord agreed to supply the paint and the tenant was pleased to provide the labour. No cash would change hands except that the landlord would provide the paint. The landlord never delivered the paint and ignored the tenant. In response to being ignored, the tenant withheld $200 from her monthly rent and indicated that she wanted the paint.
The landlord, instead of contacting the tenant to make arrangements, proceeded to serve a Notice of Termination for Non-Payment of Rent. He alleged that the tenant was $300 short on her rent as she had paid only $825 towards the rent amount.
On receiving the Notice of Termination for Non-Payment of Rent the tenant got nervous as she had expected a response from the landlord in the form of a conversation. Hence, she paid the Landlord $200 via email money transfer--which is the method she had used in the past to pay rent.
The Landlord, perhaps to prove a point or assert his authority, responded to the email money transfer by saying that the password to get the money did not work. He maintained this position even though the password was the same password used by the landlord for prior months. The Landlord, knowing the tenant was at work, called the tenant's home and left a message on the answering machine stating that the password did not work and that the tenant had an hour to fix it or he was applying to the Landlord and Tenant Board. Less than an hour later, while knowing the tenant was at work, the Landlord filed an application to the Landlord and Tenant Board to terminate an evict.
At the Hearing, the Board learned that the landlord, after filing the application but before the Hearing, collected the $200 email money transfer by using the password that he had used in previous months and which would have worked had he entered it "properly". The Board held that the Landlord should have given the tenant credit for the $200 as it was paid before the deadline in the N4 Notice of Termination. Hence, the amount of the rent in arrears, at the time of application was only $100.
The Landlord admitted that there was indeed an agreement respecting the receipts for $97.80. However, he took two positions in relation to this money. Firstly, he maintained that there was no agreement that it be deducted from the rent and that he wanted to get his rent and then provide the tenant with a cheque. He had no explanation for why the receipts were never picked up nor why the work the tenant did was never inspected and he had no answer to the tenants note, attached to the rent, explaining that she had deducted the cost of the materials for the repairs.
Secondly, the Landlord maintained that even if the tenant were allowed to deduct the $97.80 from the rent, she was still short $2.20 in rent arrears. He maintained that this amount of $2.20 precluded the N4 (Notice of Termination for Non-Payment of Rent) from having been voided by the tenants payment. He insisted that he was entiteld at law to come before the Board for $2.20 and that he should get his $170 application fee for doing so.
The Board concluded that the $97.80 was reasonably deducted from the rent by the tenant. With respect to the $2.20 the Board acknowledge that this amount was indeed short. However, the Board was concerned that the Landlord would think that spending $170 to pursue $2.20 was a reasonable way of proceeding. Given the communication from the tenant the Board felt that the landlord had options other than proceeding to file an application to the Landlord and Tenant Board.
As the Order the Landlord was requesting was for $2.20 plus $170 application fee, the Board referred to section 207(4) of ther Residential Tenancies Act. That section provides that the Board shall not make an order for an amount of money if the amount is less than the prescribed amount. The prescribed amount, is set out in section 58 of O.Reg. 516/06, which indicates that for the purposes of section 207(4) the amount is five dollars ($5.00).
Accordingly, the landlord's application was dismissed and he lost the $170 application fee.
In this particular case my client was the tenant. Her monthly rent was $1125. She had an agreement with the landlord to allow her to do some minor repairs that were needed through no fault of the tenant. The landlord agreed to reimburse the expenses which in this case totalled $97.80. When no one came to collect the receipts or to inspect the work the tenant put a note with her rent cheque and deducted the $97.80 (rounded to $100) from the rent.
In addition to the deduction for the repairs, the tenant made a deal with the landlord respecting the painting of a bedroom in her rental unit (the prior tenant had painted it an awful colour). The landlord agreed to supply the paint and the tenant was pleased to provide the labour. No cash would change hands except that the landlord would provide the paint. The landlord never delivered the paint and ignored the tenant. In response to being ignored, the tenant withheld $200 from her monthly rent and indicated that she wanted the paint.
The landlord, instead of contacting the tenant to make arrangements, proceeded to serve a Notice of Termination for Non-Payment of Rent. He alleged that the tenant was $300 short on her rent as she had paid only $825 towards the rent amount.
On receiving the Notice of Termination for Non-Payment of Rent the tenant got nervous as she had expected a response from the landlord in the form of a conversation. Hence, she paid the Landlord $200 via email money transfer--which is the method she had used in the past to pay rent.
The Landlord, perhaps to prove a point or assert his authority, responded to the email money transfer by saying that the password to get the money did not work. He maintained this position even though the password was the same password used by the landlord for prior months. The Landlord, knowing the tenant was at work, called the tenant's home and left a message on the answering machine stating that the password did not work and that the tenant had an hour to fix it or he was applying to the Landlord and Tenant Board. Less than an hour later, while knowing the tenant was at work, the Landlord filed an application to the Landlord and Tenant Board to terminate an evict.
At the Hearing, the Board learned that the landlord, after filing the application but before the Hearing, collected the $200 email money transfer by using the password that he had used in previous months and which would have worked had he entered it "properly". The Board held that the Landlord should have given the tenant credit for the $200 as it was paid before the deadline in the N4 Notice of Termination. Hence, the amount of the rent in arrears, at the time of application was only $100.
The Landlord admitted that there was indeed an agreement respecting the receipts for $97.80. However, he took two positions in relation to this money. Firstly, he maintained that there was no agreement that it be deducted from the rent and that he wanted to get his rent and then provide the tenant with a cheque. He had no explanation for why the receipts were never picked up nor why the work the tenant did was never inspected and he had no answer to the tenants note, attached to the rent, explaining that she had deducted the cost of the materials for the repairs.
Secondly, the Landlord maintained that even if the tenant were allowed to deduct the $97.80 from the rent, she was still short $2.20 in rent arrears. He maintained that this amount of $2.20 precluded the N4 (Notice of Termination for Non-Payment of Rent) from having been voided by the tenants payment. He insisted that he was entiteld at law to come before the Board for $2.20 and that he should get his $170 application fee for doing so.
The Board concluded that the $97.80 was reasonably deducted from the rent by the tenant. With respect to the $2.20 the Board acknowledge that this amount was indeed short. However, the Board was concerned that the Landlord would think that spending $170 to pursue $2.20 was a reasonable way of proceeding. Given the communication from the tenant the Board felt that the landlord had options other than proceeding to file an application to the Landlord and Tenant Board.
As the Order the Landlord was requesting was for $2.20 plus $170 application fee, the Board referred to section 207(4) of ther Residential Tenancies Act. That section provides that the Board shall not make an order for an amount of money if the amount is less than the prescribed amount. The prescribed amount, is set out in section 58 of O.Reg. 516/06, which indicates that for the purposes of section 207(4) the amount is five dollars ($5.00).
Accordingly, the landlord's application was dismissed and he lost the $170 application fee.
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