Thursday, 10 March 2016

FIX MY APARTMENT PLEASE: THE LANDLORD'S OBLIGATION

I'm told by some people that my blog is missing a decent article dealing with the issue of repairing broken things in an apartment.   So this is my crack at addressing that shortcoming.

I've received many dozens of questions that focus on needed repairs and fixes in rental units.  The circumstances under which these questions arise are quite frankly fascinating as they reflect what I assume are the intentions of evil genius.   You see, the Residential Tenancies Act, which governs most residential rental relationships between landlords and tenants in Ontario, has a fairly straightforward and unequivocal requirement that landlords are responsible for repairs and maintenance to a rental unit.  This responsibility further comes with the responsibility to pay for the costs of this maintenance or repair and any attempt to negotiate a fancy lease clause shifting the costs to the tenant are simply illegal (hence the earlier evil genius remark).

Before getting into the specific wording of the maintenance obligation it is worthwhile to at least try to preemptively address the tricks that are tried to shift or limit financial responsibility.   To understand why the tricks don't work you need to understand the structure of the Residential Tenancies Act (RTA).  The RTA was drafted in such a way that it is virtually a complete code regulating the relationship between landlords and tenants.  The RTA covers the most important aspects of the relationship between landlords and tenants.  So much so that landlords and tenants, in the residential context, can enter into a landlord and tenant relationship without signing any kind of paperwork (lease) and the balance of power between them will be fairly even.  The reason for this lies in the fact that regardless of what parties (landlord and tenant) agree to, that agreement is void, unenforceable, not worth the paper it is written on, if any of the terms of that agreement/lease is contrary to anything provided in the RTA. 

The fact that illegal clauses are voided is reflected in section 4 of the Residential Tenancies Act.  It is written quite clearly and as far as statutory sections go, it is used regularly to do exactly what it says.  You can look at the section here.

Another thing profoundly significant thing that you need to know, in the context of maintenance and repair issues, is that the RTA not only voids illegal agreements, it makes pre-leasing agreements respecting maintenance void.  What this means is that it is absolutely and utterly impossible to rent an apartment, house, or any residential rental unit in Ontario on an "as is basis".   An example at this stage is appropriate.  Imagine a landlord inheriting a run down old shack of a place.  Instead of knocking it down right away, the landlord decides to rent it out for a few years until he can afford to knock it down and build a dream home.  Recognizing that the old shack has bad floors, broken handrails, rotting cupboards, poor electricity, etc. etc. etc., the landlord says to a desperate tenant that he'll rent him the place for an exceptionally reasonable price on the understanding that the place is rented on an "as is" basis.  The landlord and tenant can agree that any repairs will be done by the tenant and they can explicitly write and sign in their own blood that they understand and agree that the old shack is a dump that the landlord has no intention or obligation to fix up.

Such an agreement, entered into before occupancy, does not offend the conscience of many people.  Adult, competent, free people should be able to enter into contracts.  It is a "free country" after all.   While that is true in many respects, it does not hold true in the case of the RTA.  The RTA imposes a maintenance and repair obligation on the landlord even if the tenant was aware of the state of non-repair or a contravention of a standard before entering into the tenancy agreement.  To read that section take a look here.

At this stage it is worthwhile mentioning some of the philosophical or policy underpinnings of the Residential Tenancies Act.   It is worth thinking about these as it informs the reason for the various sections of the RTA and it informs how the sections have been interpreted by the Landlord and Tenant Board and the Superior Courts of Justice on appeal.

The Residential Tenancies Act is intended to level the playing field between landlords and tenants.  Until the early 1970's when the first residential landlord and tenant act law came into effect, residential tenants occupied rental units at the mercy of the landlords who held all of the power when negotiating leases.  Like commercial leases, residential landlords and tenants could agree to any terms that consenting legal adults could make.   Landlords had the upper hand and could enforce terms on tenants that were onerous.  While in theory tenants could simply move on and rent somewhere else in the face of an unscrupulous landlord the fact is that residential tenants often did not have the kind of mobility, choice, or financial bargaining power that commercial tenants had. 

The inequity inherent in this relationship led to the passage of the Landlord and Tenant Act and a specific sub-part dealing with residential tenancies.  The rules related to residential tenancies changed the playing field completely.  Over several decades various Ontario provincial governments (Liberal, Conservative, NDP) passed different versions of residential landlord and tenant laws and they experimented with rent controls and regulating the residential landlord and tenant relationship.  The ebb and flow of that regulation led to the current Residential Tenancies Act and its predecessor the Tenant Protection Act.

The thrust of the current RTA is to give tenant's security of tenure.  The RTA is structured so that it is impossible to evict a tenant from a rental property unless one of the grounds set out it the RTA applies.  Those grounds are limited--some say severely limited.  The reason that it is difficult to evict a tenant is that the stability of the family relationship, access to work, healthcare, social services, and all of the things that make up a persons life is better if a person has a stable housing situation.  If tenants could be forced to move on the whim of a landlord or for minor or trivial offences it is believed the society is worse off for the instability caused by the lack of security of tenure.

Security of tenure is an exceptionally important concept in Residential tenancies law.   I mention it here because it also informs the duty to maintain and repair a rental unit.  Security of tenure and the ability to live properly in a rental unit means very little if the landlord is permitted to allow a rental unit to fall into disrepair as a inducement to get tenants to leave.  Security of tenure requires that repair and maintenance be an integral part of it so that having the right occupy and remain in a rental unit has real meaning.

So the above is the context in which I approach the legal requirements of maintenance and repair in residential tenancies.  The legal duty is actually captured in short sections of the RTA.   Section 20 of the RTA provides as follows:  A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

The section 20 obligation is a rather serious and all encompassing requirement.   Landlords can not shift the burden of repairs, or minor repairs, or repairs costing less than $10 or any other amount onto tenants.  Landlords must shovel snow, they must repair the outside of the residential complex and they must repair the inside of rental units.  Landlord must even make the repairs if the damage or issue with the property was caused by a tenant.  In many respects the duty to repair and maintain is an absolute obligation.

Now, before we get too carried away with this duty, it is to be noted that while a landlord may be required to fix damage caused by a tenant, a landlord can evict a tenant and get a judgment against the tenant for the cost of a repair where the repair was required because of the negligent or willful conduct of the tenant or the tenant's guests (see section 62 and 63 RTA).

The RTA provides tenants with a simplified application process in which tenants can ask the Landlord and Tenant Board to order a landlord to fix or repair the rental premises.  The RTA provides the tenant with a broad range of remedies, including rent abatement, authority to fix the things and deduct the cost from the rent, reimbursement of expenses flowing from the non-repair, and a broad catch all authority that lets the Board do justice between the parties for any problems that should have been taken care of by the landlord.  It is also worth mentioning that landlords can be held liable for the injuries caused to tenants, occupants or guests of tenants on the property if the injury arose from a lack of repair or maintenance.

WHAT DOES REPAIR OR MAINTENANCE MEAN

Repair means what it sounds like it would mean.  A landlord is required to repair things in a rental unit that are broken.  From door knobs, to shelving, to windows and screens to appliances, fixtures, and everything in between.  Things that are in a rental unit must function as designed.  This does not mean that a tenant may require a landlord to improve something that is in a rental unit.  A tenant might like a modern stove, or fancy windows, or other modern improvement.  However, so long as the old thing functions and is in good repair the landlord is not obliged to upgrade the thing. 

Maintenance is a more subtle issue and one that is not so clearly defined.  A maintenance schedule can vary and until something is broken it is difficult to say that maintenance must be done.  An interesting example and question that I often get relates to duct cleaning.  Must a landlord clean the ducts in a rental unit just because a tenant wants them cleaned?  Some regard duct cleaning as an important maintenance item to be done on a somewhat regular schedule.  Others see no value in it unless there is major construction.  What can a tenant require from a landlord by way of maintenance?

In my view maintenance demands are contextual and there needs to be, in my view, an urgent nature to the maintenance requirement.  For the most part, my view is that regular maintenance allows a great deal of leeway to a landlord and it is difficult to require work to be done on a tenants schedule.  If a tenant wants furnace filters changed every couple of weeks--as a maintenance item, this is unlikely to fly with a landlord.  The maintenance demand needs to be linked to a objectively recognized standard as something that should ordinarily be done.  If the request meets such a standard it can likely be imposed.

HOW TO GET REPAIRS AND MAINTENANCE

For an obligation that appears to be very clear cut, getting a landlord to do work can be very difficult.  Excuses abound--no money, on a schedule, can't get parts, not now--but none of these are valid excuses.  So why can it be so difficult?  The fact is that repairs and maintenance are unending obligations and they can be very expensive and time consuming.  Hence, some landlords hedge and put off things to another day to save money.  Tenants too don't actively follow up because having a repair person or contractor in the apartment  or rental unit can be a pain and nuisance.  Sometimes it is just easier to tolerate non-repair than it is to go the trouble of getting a reluctant landlord to do the work.

A point that I must make in this regard is that tenants must be aware of their obligation to report repair requirements and damage to rental units.  Failure to inform a landlord of a leak, or other damage, may result in damage getting more severe and hence make the tenant liable for not reporting the problem.

There are other articles in this blog that set out strategies for getting repairs done.  From contacting property standards to taking photographs, hiring home inspectors, and getting third party witnesses to inspect the problems, there are many things that must be done to get the reluctant landlord to comply with his obligations under the RTA.  A tenant has the burden of proof in filing against a landlord and proving that there is a problem to the satisfaction of the Landlord and Tenant Board can be a challenge.

Michael K. E. Thiele
www.ottawalawyers.com   

 

17 comments:

  1. What a great site Michael, and thanks for doing this! I thought I'd ask in the comment on your repairs article rather than sending a whole other question.

    My high-rise apartment was recently flooded from a neighbouring apartment flood. The water flowed into mine under the door. There was minimal damage to my property, but the laminate wood flooring was soaked in about 1/3 of the apartment and needs to be replaced. The flood was the result of faulty plumbing in the building, it was neither the other tenant's or my fault.

    The landlord brought in workers a day or two later to tear up the flooring that had been damaged and for several days (24 hours a day!) ran an industrial dehumidifier inside my unit to dry out the flooring. In my studio apartment, it was like living on an airport runway. Needless to say I got little to no sleep for several days.

    For over 3 weeks I've been living in a mess of bare, dusty concrete floors with items normally housed there crowded into the remaining undamaged part of my unit. They're in the process of replacing the flooring (doing the whole apartment, not just the damaged part) and asked me to box up and move anything I could to make it more convenient for the workers to complete the task. So now for a few days, I have been living in what looks almost like a hoarder's home with boxes and items piled up. I hate going home after work because it's so unpleasant to be there.

    I've had a great relationship with my landlord, and they're doing the right things in terms of repairing my unit etc. But for a month now, I've had to put up with dusty, bare concrete floors, partially ripped up flooring, everything out of place, lots of work for me to move, pack up and when done unpack my items etc. There's been no mention of a rent abatement, but I feel I am due some compensation from the landlord for the severe inconvenience this has caused me, especially considering it was due to faulty plumbing in the building.

    Am I out of line for thinking I'm owed some rent abatement, and if not, any suggestions on what to say? I'd prefer to keep this between me and the landlord without going through any official channels.

    Thanks in advance,
    Pete

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    1. Hi Beverly: The Residential Tenancies Act does not deal with the concept of legal or illegal units. If an apartment meets the definition of a "rental unit" (see section 2 RTA), then the unit is a rental unit whether it is legal or not. A landlord can not require you to vacate a rental unit simply because it is an illegal unit as there is no provision in the RTA to evict for this reason--at least on short notice. If anything, what is being described here is a demolition of a rental unit. Perhaps an N13 could be used to terminate the tenancy on 120 days notice and at the end of term. Clearly not a quick remedy.

      The misrepresentation in the advertisement and the subsequent need to vacate will give you a right to sue the landlord for the damages flowing from having to move etc..

      Good luck

      Michael K. E. Thiele

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    2. Hi Michael,
      Thank you for your reply, kind of thought that would be the case.
      Would just like to add my comment that it seems to me that this creates an unfair playing field which affects security of tenure not to mention a non- compliance with expected safety in that a non-registered unit has not been certified for occupancy fitness: no fire, building, or ESA inspection on newly constructed unit. This safety issue appears to me to be in and of itself a violation of the RTA Act.

      Regarding security of tenure: The intent of Bill 140 was to 1) increase safe affordable (25% of household income) rental stock and 2) increase opportunity for homeownership by allowing 2nd unit rental income from registered/legal units.
      Under the scenario I find myself in the owner is assured rental income and has full protection under the RTA Act. On the other hand, I can be terminated on 120 days notice AND be without kitchen facilities during this notice period . Not only am I not getting what I paid for (a fully equipped legal, safe unit ) but must disrupt my "quiet enjoyment" and stability to find another place and move in a depressed market (Brampton). Clearly, it's not just about "moving costs", its about security of tenure/permanent housing.
      As problematic, the LL in this situation, has gone to great lengths to first of all deny the illegality of the unit, but secondly, to "hide" the tenancy: no exterior lighting, shared mail delivery, hide recycle/garbage, no guest parking.
      My question is, do you forsee changes to the RTA Act which would reflect the realities of the rental market per the intent of Bill 140? The LL unlawfull act of refusing to register the rental unit does affect my security of tenure (no tenant fault) and safety (self, propert & pets).
      Would greatly appreciate your opinion and thoughts.

      Thank you.
      Beverly

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  4. Michael

    We have a considerable amount of mould on the walls in various rooms in the house, and I believe that we have asbestos insulation in the ceiling. Is the landlord required to remove the asbestos? I've been spraying and cleaning the mould but it keeps coming back.. what's the landlord's responsibility in this case?

    Thanks!

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    1. Hi: A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. Clearly there is a problem in your unit and there appears to be a breach of these obligations.

      The question is what is to be done? I think that I would start with a property standards inspector from your city or township (hopefully you have a property standards by-law in your area). That inspector should be able to determine what work needs to be done and perhaps identify the source of the mould problem.

      With respect to asbestos the answer is not entirely clear. If the asbestos is loose and in the air there is likely work to be done. Often though, if the asbestos is undisturbed it is common to simply let it be. As I understand it, asbestos is not dangerous if it isn't in the air. It is the case when there is construction or renovations that safety precautions need to be taken because the work puts the asbestos fibres into the air where they can be inhaled. The danger arises from inhaling the small particles deep into your lung tissue where it stays, irritates and causes asbestosis years later--which I understand is like a cancer and it kills you. People in careers where there is a lot of work with asbestos have a high incidence of death from working with it---mechanics who change a lot of brakes (brake pads) have a high incidence of exposure.

      Please take your maintenance and safety advice from a professional with expertise in repairs/maintenance. The Property Standards Officer should be a good place to start. However, if you fear that your health is being compromised keep calling around until you get an expert in whose advice you are confident.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  5. Hi Michael,

    I am a tenant and have been at my current rental condo for a year, and have been having difficultly outlining the responsibilities for cleaning the unit for a while. We are due to move out May1st and our landlord has just reminded us to hire professional house and carpet cleaning upon departure. I argued back at first that we have no such obligation but she was very firm on her stance. I look at my own individual contract with her and realized that in there, she has inserted lines regarding professional cleaning as below:

    "Landlord agrees to have the carpets professionally cleaned prior to the commencement of the
    lease at the Landlord's cost, and Tenant shall have the carpets professionally cleaned at end of
    lease term at Tenant's cost.
    Tenant agrees not to make any decorating changes to the premises without the express written
    consent of the Landlord or his authorized agent.
    Tenant agrees to be responsible for any repair or replacement cost due to the presence of any pets
    on the premises.
    Tenant further agrees that if pets are kept on the premises, Tenant shall, at lease termination,
    have the carpets professionally cleaned and make any repairs that may be necessary to restore
    any damages caused by pets.
    Landlord shall pay real estate taxes, \[condominium fees and parking if applicable\] and maintain
    fire insurance on the premises.
    Tenant acknowledges the Landlord's fire insurance on the premises provides no coverage on
    Tenant's personal property.
    Tenant shall maintain the premises in good repair and in clean and habitable condition at all
    times during the term of the lease. Upon termination of the said lease, the property is in the same
    condition as when it was first occupied except for the usual wear and tear. Minor repair such as
    changing all light bulbs, ballasts, fuels and faucet or repairs to damage caused by the Tenant's
    negligence are to be paid for the Tenant. Other repairs are to be done by the Landlord or by
    obtaining the written consent for the Landlord. Tenant shall be responsible for the first $100.00
    per repair occasion. If emergency repairs are required, the Tenant must make at least two
    attempts to telephone the designated contact person, and then give the landlord reasonable time
    to complete the repairs"

    Unfortunately i have already signed to this, just want to consult you on the eligibility and whether this contract will enable her to make such request of me and wondering on the legal effectiveness of this contract. Anyone with a normal perception walking into our unit will see that the place is completely within normal wear and tear, in fact its quite clean and tidy. The carpets are almost as good as new as this condo was handed over last year.

    Please help me in getting a educated grasp of this situation and advise if it is worth it to dispute the matter. She has put her agent before me and said that she double checked that this is my responsibility and if i had questions i should contact her agent. From my understanding of Ontario law for rental, this simply does not seem right.

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    1. Hi: As I have written elsewhere in this blog, my view is that "professional" cleaning clauses are illegal and void. Requiring a tenant to "professionally" clean a rental unit imposes a standard that may be inconsistent with the actual legal requirement imposed on a tenant in the Residential Tenancies Act. A tenant is responsible to maintain a unit to a standard of "ordinary cleanliness"--see section 33 of the Residential Tenancies Act where this is quite clearly set out. Note that the RTA requirement of "ordinary cleanliness" is a better or clearer standard than "professionally" cleaned. You could infer that "professionally" means fantastically and marvellously clean or you could infer that it means hiring Jimmy the professional from craigslist who uses a grocery store carpet cleaner. The point is that the clause is open to interpretation and seeks to impose a standard that is other than what the RTA provides--and hence is in my opinion void.

      Whether you fight it or not is something for you to decide. Your landlord, if stubborn enough, may sue you in small claims court for the "cost" of professional cleaning. You may defend of course and decide whether it is worth your time and trouble. Maybe Molly Maid for an hour is cheaper? Given the Landlord's expressed opinion you could preempt a small claims court case and simply file an application at the LTB and ask the Board to rule on the validity of the clause and if you win (which I think you would) then the landlord would have no leg to stand on in Small Claims Court.

      All that being said, make absolutely sure that when you leave the place that you take lots of very high quality pictures of the entire rental unit (including inside cabinets and the oven) and take video as well. Take close ups to see possible stains and zoomed out shots so you get a sense of the whole rental unit. If you can get a third party who has credibility and who would be willing to testify to come through the unit that too would be helpful so that you have evidence to offer respecting the "smell" of the unit.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. My landlord is of the belief that if he has given a 24 hour notice to enter an apt. that he can break the door down or drill the lock off if the tenant refuses to let him in. I recently called the police because he was engaged in an extremely volatile situation with a tenant who refused to let him in and he was trying to force his way in and wouldn't let the tenant close his apt. door. I spoke with the police as they were leaving. They seemed to think he could do this. Can he do this?

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    1. Hi: The answer, in my view, is not a simple yes or no. There is an aspect of "yes" as well as "no" in my answer. The "yes" part is that if proper notice is given under the Residential Tenancies Act then the landlord has the right to enter the rental unit whether or not the tenant consents, whether or not the tenant is present, and whether or not the tenant wishes to arrange another time. The landlord has a right of entry, once the requirements of the Residential Tenancies Act are met. Hence, from this perspective the landlord has a lot of authority to enter a unit and s/he should not be refused entry or access to the unit. This is the "yes" aspect of the answer and it is a fairly strong right that isn't and shouldn't easily be denied a landlord. Imagine if the right was watered down--how could a landlord reasonably and efficiently complete repairs or work in multiple units--imagine trying to coordinate something as important as pest control if the landlord couldn't reliably gain access to units for treatment.

      That being said, it is very rare that any right is absolute. I do think that the Landlord and Tenant Board will always interpret the right of entry into a unit as being subject to certain reasonable limitations. Beyond that, the right of entry will also always be constrained by the Ontario Human Rights Code as well as a duty to accommodate a tenant in the face of a disability. Two examples: If a tenant does not allow access to their unit on a holy day due to the exercise of their religion as entering the unit on that specific day would violate the tenant's religious beliefs ("creed" under the Human Rights Code). In this example I think that the Landlord's right of entry would be curtailed by the tenant's religious rights (on balance). Second example. Imagine a tenant with a particular type of disability that made rising, getting ready, getting out of a unit very early in the morning difficult. Imagine that the disability was such that having anyone in the unit before a certain time in the morning was inordinately inconvenient. In the face of that, imagine a landlord who insists on his "legal right of entry" to inspect the smoke detector at 8:00 a.m.. Clearly in this context the landlord is a jerk--but also, the landlord would be exercising the legal right in contravention of the Human Rights Code where there is a duty to accommodate a person with a disability. The conclusion, again, is that there is no absolute right of entry.

      It is my view that the landlord's right of entry does not include the right to enter with force. The Residential Tenancies Act does not authorize a landlord to break into a unit, it does not authorize the use of force, it does not explicitly authorize a landlord to enter over the objections or resistance of a tenant.

      My advice to landlords is that they should try to exercise their right of entry. If they are refused entry they should make a note, make a record of that refusal. Call an officer to make a report if necessary. However, they should not force their way in. If it is an emergency (flood, fire, etc.) then of course one would be more insistent and expect greater help from the police if necessary.

      The denial of the right to enter, especially when no reasonable explanation is offered, is something that can be put on an N5 Notice of Termination. The Landlord, after serving the N5, can try to enter again. If refused, the Landlord can apply to the Board for an eviction Order based on the refusal. This process is preferable, in my view, as it precludes the possibility of violence and it allows each side to argue to an adjudicator whether the landlord had the right to enter or not. It puts the decision in the hands of a neutral third party.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Hi Michael, thanks for your very informative blogspot. I have a very interesting situation. First off, am a landlord but my tenant is the bossy kind because he works for the city and his spouse is a paralegal and is familiar with tenant tricks. So I had major renovations done when I bought my house including a new roof, new airconditioner, furnace and hardwood floors. Unfortunatley the roof started leaking and because i have 5year workmanship warranty i had the roofer come back to fix the leak and this has generally stopped the leak though there are stains in the ceiling from the leak. Recently the leak got serious and I had to open an insurance claim and they are dealing with the repairs which is not extensive and is limited only in the living room and basement. However, my tenant has written me to demand relocation to another property at my cost (I have been contacted by a landlord for reference) even though my house is very livable...infact everything is still exactly where its supposed to be. At the same time, my landlord where am renting has informed me that my lease will not be renewed because the family needs the property, so I will have to move back to my house. I had to give the tenants the N12 60days legal notice but the tenant has informed me that he will get an injunction to stop the repairs being done, that he will not move out of the property and will get legal representation against my notice. In my case, am back in school full time and have no income so I cant get a property to rent because I dont have a job. My tenants on the other have good jobs and can easily rent anywhere but I suspect this intimidation tactics is a pattern with them. what can you advise in my case where the tenant seems to have more economic and social power.

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    1. Hi: I wish I could offer you an answer to facing an opponent with more economic and social power. That is hard. You can only take each legal step that the law allows. With respect to paying to move your tenants this is not an expense that you are expected to cover. Certainly, you can find caselaw where landlords have paid such an expense but it is not a mandatory expense under the Residential Tenancies Act. Given the condition of the premises that you are describing I doubt very much that the tenant would be successful at the Board to get these expenses.

      Interestingly though, the tenant is looking for moving money. Presumably if you contribute some money to their move then they are gone, out of your house and their tenancy terminated? If so, the expense if reasonable may indeed be worth it if you get possession of your house with minimal hassle. If you go this way make sure to sign an N9 (Agreement to Terminate) with your tenant.

      The N12--Landlord's own use, is an entirely separate application and basis for termination of the tenancy. You should file with the Board right away (using an Application form L2) after having served a valid N12. There is no point in waiting to apply. The tenant can try to resist etc. etc. and make the threats that he is making. His threats reveal an ignorance of the law. I would simply proceed with the application and if the opportunity to make a deal presents itself then do so. If you must vacate your current rental then you should certainly apply to the Board immediately. Do not wait. Without an Order from the Board you can not force the tenant to move out.

      As you mention not being in a strong economic position I presume that hiring an experience lawyer or paralegal is not an expense that you want to incur. I do urge you, however, to find the most experienced lawyer or paralegal in your area and make the best deal for services that you can. While I can't tell you how to equalize the unequal bargaining power of rich and poor I can certainly suggest that having an excellent lawyer or paralegal on your side certainly can level or tilt the playing field to your favour in hearings.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  8. Hello Michael,
    thank you for your informative and proactive blog- I'm learning a lot about my rights as a tenant.
    Currently, I live in a high-rise building and having I'm trouble enjoying my stay at my place due to excruciating and unbearable noise (i.e.: showering, flushing toilet, urinating, etc…) echoing from neighbouring units.

    As a long-time renter, I fully acknowledge that apartments are shared space and noise is inevitable in a community living environment, especially since our building is located on a busy intersection. However, the noise echoing from the neighbouring units are becoming unbearable to the extent that I can hear our neighbors having conversations and when they are using water utilities/washroom. These noise can be heard throughout the house; I have addressed these issues to our neighbours; I'm aware that our neighbors are not being obnoxious, but I feel as though I'm living in the same unit with our neighbors. Moreover, after speaking with our neighbours, it seems as though my unit is experiencing aforementioned issues to the extreme.

    I have addressed this matter to the building manager multiple times since January of this year, both verbally and in writing- but due to the complex nature of this issue, I've sent a formal letter via e-mail with supporting documents (videos) to the building manager requesting the email to be forwarded to a property manager at the head office on March 31st. 2 weeks later, I followed-up with the building manager and informed me that the head office needed in-depth reports on the aforementioned issue. No one from the management came into the unit to follow-up or do any kind of investigation.

    I have documented a 14-day-long daily reports on the noise issue, but I've been out of the country on a 2 month long vacation since April, and will be back in town in 2 weeks. I plan to send an e-mail to have someone come in to the unit and investigate and come up with a resolution to minimize the noise level, along with supporting documents that I have recorded; forwarding it to the property management team at the head quarter (cc-ing the property manager). Also, I plan to call the city to have a specialist come in and investigate on the involuntary noise issue.

    I'm wondering if I am on the right path, and would greatly appreciate it if you can share your expertise and recommendations on this matter.


    Thank you in advance,

    Sarah

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  9. I forgot to note that I've received a notice from the landlord regarding increase of rent, which will be commencing on September. I'm wondering if it is landlord'd obligation to fulfill maintenance requests before the rent increase.

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    1. Hi Sarah: From your email I see no mention of "condominium" so I am hopeful that this is an apartment building where your landlord is the landlord for all of the people living in the building. This is handy as it puts the issues squarely in the realm of the Residential Tenancies Act and the landlord will have the tools necessary to gain access and address the issues that you raise--and which you may raise at the landlord and tenant board.

      It is indeed the correct thing to do to make written complaints and collect evidence of the problems. You have identified the first defence to your complaint and that is that apartment living means putting up with a certain level of noise from neighbours. It is incumbent on you to prove that the noise you are complaining about is far above the threshold of reasonable apartment building noise.

      How you prove this is likely with unbiased witnesses, video, professional reports based on testing, city complaints, and your own testimony. How you proceed to obtain this evidence is likely incrementally as you will want to warn your landlord that the failure to act leaves you with no choice but to get expert evidence, the cost of which you will seek to recover against the landlord in a hearing at the Landlord and Tenant Board.

      What would be ideal is if you could get an expert opinion or clear evidence based explanation of why the sound transmission from your neighbours unit is so clear and loud. There are certain guesses that one can make but this will not really help.

      Ultimately, if the landlord does nothing, you may file a T2 and a T6 application at the Landlord and Tenant Board. You can ask for a rent abatement, repairs, and other sundry remedies as set out in the application forms. You could even ask for an order requiring the landlord to investigate the reason for the noise transmission and prepare and file a report with the Board. The scope of the remedies available is actually quite broad. However, to get there, you need to prove that you are being subjected to an unreasonable level of noise (far above and beyond normal apartment building noises).

      With respect to your second question, the landlord does not have to deal with all maintenance requests prior to raising the rent. However, if you file an application to the Board this is one of the remedies that you could ask for if you win--i.e. landlord to be prohibited from raising rent while maintenance issue remains outstanding.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you for your insightful advice. I'll take necessary steps to hold my landlord accountable for this on-going issue.
      Sir, you are a definition of a great lawyer. Thanks for your help!

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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.