Wednesday, 29 October 2014

Dirty Apartments---A tenant's responsibility to be clean

What is the scope of a tenant's responsibility for the cleanliness of their apartment?  Often enough, it becomes clear that one person's sense of what it means to be neat and tidy is completely at odds with another person's sense.  Conflict arises not just because tenants are messy but also because landlords can have an exaggerated sense of how "clean" a tenant has to keep their unit.  I've seen many lease agreements where landlords have inserted clauses referencing "professional" cleaning, or using language like "spic and span", "like new", or requiring the unit to be returned in the "exact" condition it was received.


Sometimes, tenants are driven to their wits end by demanding landlords who serve 24 hour notices for entry and then provide "violation" notices based on the entry raising objections to things like dishes in the sink, clothing on the bedroom floor, kitty litter boxes being used, random furniture placing, etc..  Tenants are left wondering whether the landlord has the right to dictate the level of cleanliness and frankly tell the tenant how to live.  When the landlord's demands are backed up by language in a tenancy agreement (lease) that says "spic and span" or "professionally cleaned" tenants often feel that they have no choice but to meet the landlord's demands.


From the reasonable landlord's perspective the old adage of "cleanliness is next to godliness" is an apt description of how they wish their properties kept.  With cleanliness usually comes being tidy.  Being tidy and maintaining cleanliness normally demonstrates that care is being taken of the property.  Landlords care about this for several reasons.  A clean and tidy apartment is much less likely to attract pests that will require expensive pest control treatment.  Further, in clean apartments an infestation will be noticed sooner and treatment will be started sooner and therefore will be less difficult to eradicate.  A tenant who is clean and tidy will also tend to be more careful meaning there will be less wear and tear.  Carpets will last longer, and the over-all condition of appliances, walls, floors, tiles, etc., will be better over time.  And lastly, a clean and tidy apartment requires less work--and less money-- to prepare for the next tenant on unit turn over.


Most landlords and most tenants have an innate sense of what is reasonable behavior on the part of the tenant and what is reasonable for a landlord to demand.  There is no perfect definition of what is required but there is a range of what is acceptable and in that sense the best way to describe it is "you know it when you see it".   While "you know it when you see it" is a great standard when the landlord and tenant agree--what are the rules when the landlord and the tenant have very different opinions of what is reasonable?


The first point I'll make is with respect to lease clauses like "spic and span", "like new", "exact condition", "professionally cleaned" and "no wear and tear".  All of these phrases, and ones similar to them, seek to impose a standard of maintenance on a tenant.  By using these phrases in a lease, a landlord is seeking to create a contractual obligation for a tenant to maintain the premises according to the standard imposed by these phrases.  The argument that landlord's often make is that if the tenant does not wish to adhere to this standard then they shouldn't sign the lease.  After-all, no one is forcing the tenant to rent this unit.  Hence, if the landlord lives in a house where the plastic remains on the lampshades the landlord's argument is that the tenant should also live this way if the lease terms require that level of cleanliness.


There is something attractive about the argument as I do think people have a sense that in Ontario people still have a freedom to contract.  As consenting adults we should be able to enter into whatever kind of contract we wish so long as the terms are not illegal (i.e. contract for murder) or contrary to public policy (i.e. contract that discriminates on prohibited grounds).  Why shouldn't landlords be able to hold prospective tenants to a very high standard of cleanliness?


I think the answer to this question is answered in the Residential Tenancies Act (RTA).  The RTA in many respects has taken away the right for consenting adults to make their own private contracts.  The RTA and the predecessor legislation ( Tenant Protection Act and Landlord and Tenant Act), were passed by the Ontario Legislature with the implied understanding that in residential leasing, there is a significant power imbalance between landlords and tenants.  The underlying premise is that landlords have all the power and can impose unreasonable and oppressive terms on tenants if there is no regulation of the leasing arrangement between landlords and tenants.  The RTA today, seeks to take away the unbridled power of landlords in their dealings with tenants so that the ability to negotiate terms in a lease are constrained and kept within certain "reasonable" boundaries.  Effectively, in the residential leasing context, landlords and tenants are intended to have almost equal power with respect to the tenancy.  Of course, many people have wildly varying opinions on whether the RTA accomplishes this, but my point simply is that the RTA does take away the right to contract freely.


How does the RTA do this?  The answer lies in section 4 of the RTA.  It provides:  PROVISIONS CONFLICTING WITH ACT VOID---Subject to section 194, a provision in a tenancy agreement that is inconsistent with the Act or the regulations is void.


It is section 4 of the RTA that I believe is the basis for making the clauses of "spic and span", "perfect condition", "like new" and "professionally cleaned", void and of no force and effect.  What I am saying is that I believe these clauses are illegal and unenforceable under the RTA.


Of course, section 4 RTA, on its own does not make these clauses illegal.  Section 4, is simply the basis for voiding a clause/lease term if it contradicts the RTA.  So, how does the RTA provide a standard of cleanliness/tidiness that would set a standard that the lease clauses (spic and span etc.) would violate.  The answer I believe is in section 33 of the RTA.


Section 33 RTA provides as follows:  TENANT'S RESPONSIBILITY FOR CLEANLINESS---The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.


The key to section 33 of the RTA are the words "ordinary cleanliness".  The responsibility of a tenant with respect to cleanliness of the rental unit is something that the RTA specifically regulates.  The standard is legislated and a matter of law.  This means that the landlord and tenant are not free to contract to a different higher standard as doing so, and using any kind of clause in a lease to impose a higher standard, would be deemed void pursuant to section 4 RTA as set out above.




Section 33 of the RTA also provides the answer to landlords who have serious concerns about the condition of an apartment that they have rented to a tenant.  What if the lease that is signed is silent on the issue of cleanliness.  Does this mean that the tenant can live how they wish?  What if there is no lease at all?  The answer is section 33 of the RTA and regardless of what the lease provides or even if there is no lease at all, a tenant is required to maintain a rental unit to a standard of ordinary cleanliness.  If the tenant fails to maintain the unit to this standard then a landlord may serve a Notice of Termination on the Tenant (usually a Form N5), and if the situation is not corrected proceed to evict the tenant.


A question you may have is what does "ordinary cleanliness" as used in section 33 of the RTA mean?  Unfortunately, there is no definition of this phrase in the RTA itself.  The words simply mean what they mean---which means that they need to be interpreted by the adjudicator.   Hence, "ordinary cleanliness" will be measured against an "objective" standard of what is commonly understood to be "ordinary cleanliness".  The standard is not fixed or measurable on a precise scale.  There is likely some flexibility in the standard depending on the context of the tenancy.  What is required as a part of ordinary cleanliness may be different depending on the nature of the rental unit, the location of the rental unit and the status of the rental unit.  The context/circumstances of the tenancy will be relevant in informing what constitutes "ordinary cleanliness".


Michael K. E. Thiele
www.ottawalawyers.com  

12 comments:

  1. Dear Mr Thiele,

    I'm having troubles with an excessively dirty roommate, and hoping you can offer me some advice.

    I rent a room in a basement apartment, as does an older man. The kitchen and bathroom is shared with him. I've been here for over 2 years, and he has been here for less than 2 months. We each have our own leases with the landlords who operate a business on the ground floor of the building, and who rent out 2 other units in the building. They brought him here from out of town to do work for them.

    He has zero respect for me as a roommate, and does not keep the apartment reasonably clean. He smokes in his room as well, against agreements with both myself and the landlords. His behaviour to me borders on sexual harassment. I've been brushing it off as cultural/age differences, but it's getting to the point where I am considering filing a police report.

    Over the past month and a half, I've been having back and forth conversations with the landlords about him, and they have made repeated assurances that they would deal with the situation. I emailed them an official complaint on Dec 3rd, after a discussion with them in late Nov. Around Dec 6th, I was told that my roommate would be given notice, but that they had to find him another place to live because they wanted to continue their working arrangement with him.

    It is now Jan 2, and I've had another talk with the landlords. They said he pays rent on the 11th of the month, so they will give him 30 days notice then. It's beyond me why they wouldn't give him 60 days notice from their first decision to evict him, but I can speculate that it has something to do with them wanting to prolong their working arrangement with him. I believe they have a conflict of interest, as they do want him to leave, but they don't want to disrupt the business that he helps them with, so they keep pushing things back, trying to appease my complaints.

    My question is: do I have any remedies, as a fellow roommate? Can I force the landlords to get rid of him? Can they even give him just 30 days notice? I know it's out of your realm of interest, but would filing a police report about the harassment help my situation? I know I have the option to move out, but I do enjoy my current accommodations otherwise, and am not well positioned financially to move.

    Thank you in advance!

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    Replies
    1. Hi Curtis:

      Your living arrangements sound like a "rooming" house to me and from what you indicate the Residential Tenancies Act would apply to your situation. Hence, the landlords are required to take steps to ensure that you have the reasonable/quiet enjoyment of your rental unit. If other tenants are behaving in a way that is contrary to the RTA the landlord must take steps to have the behaviour corrected or alternatively to terminate the tenancy and evict. The Landlord would use Notices of Termination under the RTA. Your statement about the landlord's comment about rent being paid on the 11th seems to indicate that your landlords are either inexperienced in landlord and tenant law procedures or alternatively they are just stringing you along. The date of the tenant paying rent is irrelevant to the complaints that you have. They could (and should) serve a Notice of Termination immediately.

      As for your remedies. If you document your complaints, have proof of them, and still don't get satisfaction you could file an application against the landlord at the LTB (form T2). Before that, it may be worthwhile to get a lawyer, paralegal, or clinic worker (Community Legal Clinic) to write a letter to the landlord about what they are obliged to do and what you will do if they don't fulfill their obligations under the RTA. Perhaps that will get action without the need for going to a hearing.

      Police reports are fine. If there is a crime, harassment, etc., then by all means go ahead and get the help of the police. However, going to the police in order to gain an advantage in Landlord and Tenant proceedings is improper and arguably illegal in the extreme.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  2. Usually i remain here in one room but for four months I completely rented my three bedroom condo, though did not change my permanent address as I was away only for a short time. One tenant decided to leave, giving me less than a months notice, but it worked out as I took the room over as of May1st. I had given notice to all tenants that I would visit in april for mail and to check on the place after some plumbing work was done. I gave them a week notice and then 24 hours notice as well. I came to the door, found it unlocked (I should mention i rent the place furnished so all of my valuables like tv and couch appliances etc are here) I came in to find it empty and very dirty, there was a great deal of build up of gravel on the floor, what looked like ashes as well. My wooden floor is covered in scatches and the smell was very bad, there were three full bags of garbage sitting open in the kitchen. I was not able to find my mail despite telling them to leave it for me. I then went to the bathroom to look at the plumbing and found multiple wet towels on the floor. I should mention as well that I have electric heat in ottawa and it was turned up to 30 with the patio door ajar. there was also just general dirt throughout the apartment and a broken laundry room door. I texted one of the tenants that planned to stay when i moved back saying i was shocked by the appearance of the place and the damage that resulted. he responded by calling and verbally attacking me telling me it was the same as i left it and that it was filthy. I asked why he had not brought these concerns forward earlier and he had no response but continued in a raised voice to tell me off for not addressing issues i was never made aware of, claiming leaks in the kitchen etc but there were none when i was there nor when i moved and he never messaged me about them.

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  3. I hung up and was beside myself. when the first came around the place was in the same condition, including the three bags of open garbage, it took three people hours to clean it and we have not be able to repair the damage. He refused to help and freely admitted that he never mopped or cleaned because the mop i provided was quote "questionable"... i used it to mop, it was just crusty for non use, its less than 6 months old. the drains are badly backed up and there was damage to the toilet. I decided to issue him a notice to vacate partly due to his demeanor on the phone, and the damage as a result of neglect in the apartment. Since I am living here, and he knew I would be back, and we had not decided on renewing a contract nor on terms for continuing to rent and his initial agreement was only for 4 months though there are text messages between us saying that it should be possible for him to continue renting after, if there were no issues or concerns from either party, these messages were sent before these events and before i was able to see the apartment. and I am now very uncomfortable dealing with him due to his confrontational attitude i issued the notice for 30 days, longer than the 20 for damage but also shorter than 60 however, I did not offer the opportunity to fix the problems as i have cleaned to make the place livable for myself and would not allow the place to return to that state while i am living here, i also offered to repay this months rent if he finds another place sooner. My main concern is that a court would some how decide that he should continue to be guaranteed residence like a tenant while I am living in my home. As the entire place including his room is furnished with my things i worry about damage and more than that I am extremely distressed by the prospect of continuing to live with a person who is so aggressive and confrontational. Is that a likely out come? Not sure how things will progress for now he wants to speak in person more. I am very concerned about the law supporting him and putting me in a potentially dangerous and certainly uncomfortable position in my home where I am forced to remain living with him and my possession will continue to be damaged.

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    Replies
    1. Hi: This is an unfortunate situation. The first question that needs to be determined is whether or not you are covered by the Residential Tenancies Act (RTA). The RTA provides that where a landlord shares a kitchen and/or bath with a tenant then the RTA does not apply to that relationship. However, this exemption from the legislation is not one that can be created by the landlord by moving in after the establishment of a valid RTA covered tenancy. You describe having rented out all of the rooms and being out of the unit. Then one of the roomers left and you moved back in. If the person you are having the trouble with moved in while you were not living there it is possible that the RTA does apply to his circumstances. This means that he has the protections of the RTA and the security of tenure (right to live there) that you are concerned about. If the RTA does not apply then you have far greater flexibility in making him move out.

      Given the condition of the premises and how your property was treated you could indeed look to terminate his tenancy and make him move out. The damage you describe sounds significant and presuming you have the evidence and can link the damage to this particular tenant you could serve him with a Notice of Termination---take a look at the N5 for or even the N7 Form.

      If this roomer is indeed covered by the RTA you simply have to go through the forms and application process under the RTA to evict him. His aggression, abuse of your property, etc., are all grounds to terminate his tenancy and evict.

      Your living arrangements are a little unorthodox and the situation you have gotten yourself into is a bit more complex than an ordinary case. You would be wise to not do any of the legal work yourself on this one. Instead, retain a lawyer or paralegal who is very experienced in Landlord and Tenant Law. They should be able to give you some strategic advice that would get you into the legal position you want to be in.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  4. My boyfriend and his roommate lived in an apartment for a year in Toronto. The apartment is now in good condition (nothing damaged, just a little dusty/dirty). The rental company is requesting that he and his roommate have the walls repainted, carpet cleaned, oven drip pans changed, clean behind the oven, and clean the place top to bottom, including the outsides of the windows. They have stated that if it is not 100% to the company's satisfaction, then the rental company will charge my boyfriend and his roommate for the remaining cleaning that needs to be done. Is this legal?

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    1. I really wish there were an answer to this. My landlord (property management corp) had a list of things for me to clean before I left including professionally clean the carpets (or at least shampoo them). I felt that was beyond my responsibility to keep the unit ordinarily clean. I vacuumed twice. Once for bulk stuff, and again after using an arm and hammer deodorizer, not that it stank but just to make the place smell better. The superintendent came in and started saying I had to have it shampooed, then started taking pictures of the cabinets and washroom after me and mum spent 2 hours cleaning saying it was dirty, asked mum "would you want to live here?!" like I had left the place in complete disarray. Hoping for a simple solution to my end. They may try to nail me for allowing smoking in the unit but there is no damage (had a poster on the wall for the entirety of my 1 year stay and there was no residue from any smoke). Also did not allow smoking in the bedrooms.

      I hope your boyfriends situation was resolved in his favour.

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  5. Hi Michael - great articles.
    I have a rooming house and one of the tenants rooms is really filthy/dirty, his garbage is spreading outside, the smell outside his room is very noticeable, what evidence do I need to bring to the LTB- am I allowed to take photographs of his room? how does one prove a smell?
    Richard

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    1. Hi Richard: Your own observations may constitute evidence and you present that evidence by testifying at the Board. Have other tenants there to testify, have a few write letters describing the problem. With proper notice you may enter the unit to inspect. Photographs can be extremely useful in proving the extent of the problem. Landlord's regularly take photographs of units to prove the nature of the concerns. However, you should be aware that taking photographs is not entirely without controversy. Larger landlords have addressed the controversy by including clauses in their leases reserving the right to take photographs inside rental units to prove an breaches of the RTA. Without such a clause in the lease there is an argument that taking photographs is a breach of the tenant's privacy and a violation of the RTA. It is not a commonly raised defence and query whether such a violation should result in the evidence not being admitted in any event. Given the value of photographs my experience is that landlord's tend to take the photographs. If you do intend to take photographs you should take care to minimize showing anything very personal in the photographs.

      Testifying as to "smell" is the most that you can do. In these cases, unfortunately, the tenant tends to prove the "smell" evidence as they show up at the board and they "smell" bad even there. If the tenant does try to refute that the unit smells bad and the adjudicator is having a very difficult time making a finding, you can always ask the adjudicator to visit the rental unit. This is not done very often--very rarely in fact, but I have had several adjudicators agree to attend a rental unit to get to the bottom of the issue when the two sides were polar opposites.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. Hi Michael,

    What is the obligation of a tenant at the end of the tenancy? Am I obligated to be present for an inspection with my landlord? Nowhere does it state this in my lease, but he has requested it.

    I plan to do a top to bottom clean of the whole place on Saturday (Lease is up Sunday), but he did not give me any specifics to clean and there were no specific clauses for how the place has to be returned.

    Would love your thoughts. Thanks in advance!

    Bart

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    Replies
    1. Hi Bart: It is a good idea to be present for a move out inspection. However it is not required. In fact, not even a move out inspection is required under the Residential Tenancies Act. Yet, it is a good idea. The reason to participate is that you get to see what the landlord considers problematic and in theory you have time to fix whatever the landlord says is your responsibility if you agree. You can get piece of paper that signs off on the condition the place which will be useful should the landlord try to come after you when you have vacated. Even if you do participate in the move out inspection, I still recommend taking photos and videos as you leave the place and ideally get a signed "okay" from the landlord when you return the keys.

      As for cleaning. Some landlords include clauses in the lease that require "professional" cleaning and they use other words to suggest a very high level of cleaning some even purporting to require that carpets be shampooed etc.. In my view, all of these lease clauses trying to force tenants to essentially prepare the unit for the next tenants at their expense is illegal. I take my guidance from the Residential Tenancies Act. It provides that tenants have an obligation to maintain the rental unit to a standard of ordinary cleanliness. This does not mean shampooed rugs and a day of Molly Maid. What is "ordinary cleanliness" is determined on an objective standard--what would a regular person consider to be clean. The law doesn't give much more guidance.

      Note that some landlords will try to force tenants to repair every dent, every picture hook hole, and every little thing. While the words are not used in the Residential Tenancies Act, the caselaw makes it clear that a rental unit can be subject to ordinary wear and tear and that a tenant will not be responsible for those things. With respect to damage generally, a tenant is responsible for damage that is wilfully or negligently caused.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.