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
Wednesday, 29 October 2014
Dirty Apartments---A tenant's responsibility to be clean
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