Monday, 29 October 2012

I don't want to shovel the snow!

A question that I get from time to time, especially when winter weather is approaching, is whether a landlord can require a tenant to shovel the snow on the property from walkways and driveways.  Sometimes the question comes up only because the tenant doesn't have the funds to buy a proper snow-shovel and hence is trying to figure out how to make someone else responsible for shovelling or perhaps providing a shovel.

Traditionally, the question of who is responsible for snow shovelling was determined by the nature of the property.  If the property was a single unit like a house or townhouse where only one tenant was making use of the walkways and driveways the arrangement was normally for the tenant to be responsible for snow clearing.  If the property was occupied by several tenants then the landlord would make arrangements with someone to provide snow clearing services.

The law that governs the relationship between residential landlords and tenants is the Residential Tenancies Act.  What does it say about "snow shovelling" and "snow clearing".  In a word, nothing.  Where the Residential Tenancies Act is silent on an issue/topic the common view is that the parties are then free to contract with respect to the issue.  Accordingly, some leases contain clauses respecting snow clearing and shovelling and thereby set out the responsibility therefore.  Where leases are silent, the obligation with respect to snow shovelling and clearing has become an implied term of the lease by the assumption of responsibility by either the landlord or tenant.  For many, this informal arrangement seems to have worked.

The informal arrangements, and in fact the legality of the formal arrangements set out in leases were recently clarified by the Ontario Court of Appeal in a case called Montgomery v. Van.  That case discusses the issue of snow removal and determines that keeping a property clear of snow and ice is in fact a maintenance obligation that falls squarely into the category of a landlord's obligation.  Consequently, this means that a landlord can not evade this responsibility by shifting the snow clearing obligation to a tenant in a lease.  If a tenant does not want to shovel snow the tenant does not have to.

To be clear, the Court of Appeal did not say that a landlord may never make a deal with a tenant for the tenant to provide snow clearing services.  In fact, so long as the snow clearing arrangement is pursuant to a separate contract, outside of the scope of the tenancy agreement, it would appear that a tenant could be made responsible for snow clearing in exchange for some kind of compensation.  At the same time, a tenant's decision to terminate a snow clearing agreement with the landlord can not be a basis for termination of the tenancy.

So, for any landlord counting on the tenant to provide free snow clearing services, you may need to think again about the arrangements and perhaps even the amount of rent to be charged if such a service needs to be hired for a building.

Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O'Connor Street
Ottawa, ON K2P 1V8
Tel: 613.563.1131
mthiele@pqtlaw.com

at

88 comments:

  1. Anonymous27 April 2014 at 17:05

    What happens if a tenant occupies a rural farm house and the driveway is subject to snow drifting? The drive way is 200-300 feet in length. Who is responsible for snow removal if the tenant does not have a plow and the landlord does not supply a plow? The landlord was upset that the driveway was not clear for her car to travel up but the tenant could easily pass in his 4x4.

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    1. Michael K. E. Thiele28 April 2014 at 14:02

      Whether in a rural or urban Ontario setting a landlord's obligations under the Residential Tenancies Act are the same. Section 20 of the RTA provides that a landlord is responsible for providing and maintaining a residential complex. This obligation includes snow removal and keeping a driveway clear of snow. Snow removal is sometimes referred to in a lease as being the obligation of a tenant---i.e. the landlord tries to shift the obligation to the tenant by the terms of the lease. The Ontario Court of Appeal considered such a situation in the case of Montgomery v. Van [2009] O.J. No 5933 (Ont. C.A.), and held that a Landlord is NOT permitted to shift the maintenance obligation to the tenant as a term of the residential lease. The law does not allow the landlord to shift its statutory responsibilities under the Act to the tenant. The Court did go on to say that the landlord could contract separately with the tenant (separate from the lease) for snow clearing--but the tenant's willingness to contract in this regard could not be tied to the right to lease under the RTA.

      In the situation you describe it sounds to me like your landlord is responsible to plow your driveway and pay for it to be kept clean. That the tenant does not complain is a bonus for the landlord. If the tenant wishes, the tenant could demand regular plowing of the driveway--paid for by the landlord---and if the landlord fails to do it the tenant could take the landlord to the Landlord and Tenant Board for an Order requiring the landlord to do the work and a rent abatement.

      Trusting that this is helpful to you.

      Michael K. E. Thiele

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  2. Anonymous18 December 2014 at 13:22

    Hi Michael. I live in the upper part of a house and the landlord lives in the basement. Wondering who is responsible for removing the snow from the entrance to my front door and steps leading to it if I am away for a few days or even a week at a time. Thanks, appreciate your thoughts.

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    1. Michael K. E. Thiele18 December 2014 at 16:24

      Hi Dan:

      The general rule is that the Landlord is required to repair and maintain the property and this includes shoveling the snow. It is not something that can be made a part of a lease agreement as the tenant's obligation. The Ontario Court of Appeal in Montgomery v. Van was fairly clear that snow shoveling is a landlord's duty subject to contracting out to a tenant (outside of the lease agreement) or to other third parties.

      Prior to this decision, there was a general understanding that tenants in multi-premises did not shovel as the walks served the whole building and hence was the responsibility of the landlord. In single unit buildings, where the tenants rent the entire complex, the understanding was that tenants would shovel as they were doing it for themselves. This argument gets some traction still in some cases but I think the safer or better view is that the responsibility for snow shoveling rests with the landlord.

      Michael K. E. Thiele

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    2. Anonymous19 December 2014 at 09:49

      Thanks Michael! That helps me a lot. The landlord DID include in my lease that the tenant (me) would keep the front walk way clear of snow and ice (and I have been), but wondering how I should navigate this now with my landlord. He seems to think that I'm locked in to the lease agreement (that I would shovel) although I do understand from the case you mentioned above that I can't be forced to comply with that part of the lease agreement. What should I do? Thanks again!

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    3. Michael K. E. Thiele19 December 2014 at 14:32

      Hi Dan: Consider writing to the landlord and advising him that the provision of his lease requiring you to shovel the snow (i.e. maintain the property) is illegal. Ask him to confirm that he will do the shovelling. If he refuses or disagrees with your position consider filing a T2 application at the Landlord and Tenant Board (Tenant's Rights) It is free to file. You can ask the Board to rule on the validity of the clause in dispute and direct the landlord to shovel snow. You may combine the the T2 with a T6 (maintenance) which does have a small fee to file.

      While it is tempting to just not do it, I don't recommend letting the property become dangerous to users. While the responsibility may be the landlord's, you could be liable to third parties who slip and fall etc. so it is worth it to get the responsibility clarified in law.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  3. Anonymous20 January 2015 at 11:50

    Michael,

    Thank you again for the detailed response. I appreciate your council on this matter. I've been shovelling all winter (because I do enjoy it) and I haven't had any issues with my land lord. At the initial snow fall this year, he became irate that the snow wasn't shovelled by 8 am the following morning. Hence I wanted to seek out these questions from a professional to know how to handle the situation (seeing that I'm away a lot for my employment). Appreciate your answers! Thank you kindly

    Dan

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  4. Anonymous4 February 2015 at 08:41

    I am renting one room in a house with other four tenants. My concerns was whose responsibility it is to clear to the snow, tenants or landlord? Thanks

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    1. Michael K. E. Thiele4 February 2015 at 08:54

      Hi: From how you've written the comment I presume that there are five separate tenancies in the house--like a rooming house? If there are multiple tenancies in the rental complex (house) then I don't think there is even the slightest argument that the tenant(s) are responsible for snow shoveling. That obligation rests with the landlord as part of its maintenance obligation under the RTA.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Anonymous4 February 2015 at 13:30

      Thanks, I appreciate your response.

      Delete
  5. Anonymous13 February 2015 at 01:23

    Michael,
    I rent the bottom unit of a triplex and have been having many issues with the tenant above me as far as him having a very frequent guests over (stays for weeks at a time) who is a heavy-footed "heel-walker" as well as very loud (always sounds likr shes arguing, but shes just loud!), and happens to love listening to her music so loud for a few hours at a time, that i cannot hear my own tv or even talk on the phone without discomfort. The bass literally makes my ceiling fan and lights vibrate.
    She then leaves, and their is peace once again in the building. The tenant does alsi have a dog that was never really a problem before, but now for some reason she barks on and on constantly when she is alone. Maybe she has gotten old and needy now, but just a guess.
    Anyways, i have over the years expressed these issues with my landlord and truthfully not much has been done or changed, but now that this "guest" is staying more often then not, I have had to go to my landlord with noise related complaints much more often in this last year, and he is just sick if hearing me apperently. It doesnt help that he doesnt live on site, and that he is very chummy as well with the upstairs tenant.
    After my last issue, i received a letter from the lsndlord's paralegal warning that i stop "harassing" both the landlord and the above tenant with my "frivolous claims and vexations" or they will take action against me!
    I have always made notes of all the issues over the years as i feared that one day i would no longer be able to suck it up anymore, and i have MANY recordings of the loud music and the barking dog as well.
    I am now going to file against my landlord for that "reasonable enjoyment" clause, so if there is any advice at all you can give me, i would greatly appreciate it!!!!!

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    1. Michael K. E. Thiele16 February 2015 at 08:07

      Hi: Good luck. The key to success will be having the evidence to prove that what you are putting up with amounts to a substantial interference with your reasonable enjoyment of the premises. If you can prove that, then the paralegal's letter should be sufficient proof to establish that the landlord intended to do nothing about your complaints.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. Anonymous1 March 2015 at 20:46

    What if I live in a building with over 224 units and my landlord hasn't cleared on the the emergency exits from the underground to outside. When I asked they said it's the gardeners jobs and that no one uses that stair case.

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    1. Michael K. E. Thiele2 March 2015 at 10:46

      Hi:

      As far as I know there isn't anything in the Residential Tenancies Act that specifically addresses the issue of clearing emergency exits. The duty to maintain and keep the property in a state of good repair is a general obligation under the Residential Tenancies Act and I do believe this would include the removal of snow in front of emergency exits. In what you are describing, it seems that the landlord is taking the position that the staircases you are referring to do not constitute "emergency" exits. Just because there is an exit I guess it does not mean that it must be clear and useable. The task would be to find out if any part of the law requires the exits you are referring to be free, clear, and unobstructed. From an emergency perspective I think that would be something that the fire marshall would have jurisdiction over. It may be worth a call to see if they would inspect and make an order.

      Alternatively, the use of the exit and having the use of the stair case during most of the year is a service. You could assert a claim against the landlord for a reduction in service and seek an order requiring the staircase to be maintained. The argument isn't based on "emergency" but on the idea that you have a use of the staircase and the failure to maintain the staircase warrants a reduction in rent.

      Aside from those avenues of inquiry, I'm fairly certain that if you check with the Property Standards Department of your City that you're going to find a requirement in the property standards by-law or similar by-law that a landowner must maintain staircases and keep them free of snow and ice. Perhaps take a look or call the City to request an inspection.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Anonymous21 July 2015 at 12:05

    Hi Michael, I own a cottage in NWO on someone else's land that I inherited from my parents. The cottage was built in 1952 with a handshake and $15 a year compensation by my grandfather with the father of the present owner. There was never a written lease and I am unsure if the property the cabin is built on was registered land at that time. When the son of the first owner took over the land the rent increased, and kept increasing, until last year when we said we felt it was excessive. He relented and then served us written notice (not from a lawyer) that he wants us to remove our improvements from his land in that he has other plans for it. I don't believe our cottage is moveable, and if moveable, the road is overgrown with trees and unless many come down, it would be impossible. Do we have squatter's rights? Do we have a 99 year lease based on the $15 and a hand shake?

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    1. Michael K. E. Thiele21 July 2015 at 16:05

      Hi: An interesting question. I'm going to have to refer you to a real estate lawyer to get into the technical questions of property law. Squatter's rights, adverse possession, are concepts that ring a bell--but that bell is faint these days. I could offer you an opinion on whether you are covered by the Residential Tenancies Act but frankly, I don't think that is going to solve the issue for you. Try to find a lawyer specializing in real estate, one that has been around for a while. A lot of property law concepts are fairly abstract and they don't come up very often. I think you would be looking for a lawyer with a fair amount of experience--especially in rural areas, lake areas, where property lines are less than precise.

      Good luck

      Michael K. E. Thiele

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  8. Anonymous28 September 2015 at 19:32

    Hi there. I live in a triplex and was being paid by the landlord to do the driveway, however, due to circumstances changing, I can not shovel the huge driveway by myself. I spoke to the landlord and he said it is not his responsibility to do the driveway in winter. Is this true?

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    1. Michael K. E. Thiele5 October 2015 at 10:44

      Hi: Section 20 of the Residential Tenancies Act makes the landlord responsible for maintaining a residential complex. An authoritative text in Ontario on residential landlord and tenant law is Ontario Landlord and Tenant Law Practice 2015 by Jack Fleming. At page 66 of that text, in a commentary section respecting the section 20 obligations of the landlord, Professor Fleming states as follows: "The landlord's obligations extend to the entire residential complex, including the rental units and common areas. The landlord is responsible for, among other things, the general maintenance of the ground of a complex. Cutting the lawn or shoveling snow would come within the landlord's obligation with respect to "maintenance standards". The tenant's only obligation is that of "ordinary cleanliness".

      Michael K. E. Thiele
      www.ottawalawyers.com

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  9. Unknown30 September 2015 at 13:29

    I'm in a similar situation where I'm renting a rural single dwelling property. It would be great if the issue of yard maintenance could also be addressed. There was a verbal agreement that I would be responsible for yard maintenance and snow removal (month to month rental), which I agreed to, however there are a couple of gray areas:

    1. I was not informed that I needed to clear an 8ft. area around the mailbox across the street from the house. Due to road plows the snow banks are 6ft high and there is no where to put shoveled snow. While I am willing to shovel the driveway, the mailbox is very difficult (single mature woman).

    2. When I was viewing the property, the LL said that the snow had to be removed from a sun room roof, as well as the deck, to which I stated that removing snow from a roof was not something I was capable of doing. He replied that he would come and look after it. During the winter I mentioned the snow build up on more than one occasion and he never came by. In the early summer he asked me if I had removed the snow from the roof. I said "you want me to do that?" and rec'd a dirty look. Also very large amounts of snow from the roof, if removed, will fall on the deck, which also has to be cleared.

    3. Re yard maintenance. Someone somewhere has to make it clear what the rules are on yard equipment: Is it the LL's responsibility to provide the equipment, or the tenants? Can't find any straight answer on this anywhere. In my case a lawn tractor was provided for use, but no lawn mower or trimmer. 3 acre of grass to maintain. The lawn tractor came with a flat useless tire, which I replaced and paid for. It then broke down and I split the cost of repair. It has since broke down again but the mechanic did not charge for minor repair. One day after the repair, another issue arose. The LL expects me to pay for repairs on the tractor, or at least split the cost. I have to wait days and even weeks for repairs. At one point in the early summer, the LL told me I should hire someone to cut/trim the grass if it was too much for me (estimated at $200 x twice a month is $400). I did purchase a $200+ trimmer.

    I'm having a few other issues with this LL:

    1. There was water damage to the sun room floor, so he replaced the floor and then proceeded to tell me I had to varnish the quarter round myself.

    2. The front door needed weather stripping. During -30 weather I was told to put a towel under the door (did not help with draft on side of door). Now I'm being told to buy and install weather stripping myself.

    3. There was no washer/dryer initially but I said I would rent the property if they were supplied. Now the washer has broken down and it's so far been a week and no effort has been made to address the situation. I suspect that they will demand some form of payment from me to either fix or replace the washer. I would pay for a minor repair, but suspect it's a much larger issue.

    The LL constantly makes promises and fails to come through. He gets mad at me if I request action. I fear that they will try to evict me if I ask for what is legally within my rights.

    Thanks for any help.

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    1. Michael K. E. Thiele3 October 2015 at 15:16

      Hi:
      This may sound odd, but you really should not fear the landlord and tenant board eviction process. The process is kind to reasonable tenants and eviction is highly unlikely if your positions are reasonable. Even if you are "wrong" for the kinds of things you are talking about in your comment the Board is much more likely to give you a chance to fix it as opposed to evicting you.

      I mention this because I think you will need to take your landlord to the Landlord and Tenant Board a few times--or let him take you there. Your landlord's view of what the law is in relation to being a landlord simply doesn't accord with the actual law. Unfortunately, I've seen fellows like this often enough. They refuse to believe that their actions are not legal and when they finally understand that their actions are illegal they get indignant and refuse to follow the law because the law is "stupid". The only way to beat people like this is to file applications to the Board and keep getting "orders" for rent abatements, reimbursement, etc..

      With respect to your 3 points. 1) Varnish the quarter round. I suppose you could, but that is the landlord's job. You could leave it unvarnished if it doesn't look to bad. If you want the work done you could file an application to force the landlord to do it. A very aggressive alternative is confirm in writing that he wants you to do the work (get his reply), then do the work yourself and send him a copy of the bill for the varnish and a reasonable amount for your time. When he likely refuses to pay, you can self help (which the Board frown's upon), but simply deduct the amount from the rent. This could result in the landlord applying to the Landlord and Tenant Board for termination for non-payment of rent. Let that process happen, and at the hearing acknowledge the rent that is owing and then explain the basis for the deduction. Show the adjudicator the email confirmation requiring you to do the varnishing, show him the receipt for the varnish, and the reasonable wage you calculated for yourself (I'd use minimum wage multiplied by the hours taken to do the work). The adjudicator is likely to award the landlord his rent, as per the application but the adjudicator will also very likely award you your expenses. The effect is that the landlord's application is dismissed with no rent owing. The landlord will lose the $170 application fee. If it happens this way, then this is the first swat in the nose that your landlord gets demonstrating that his view of the law is wrong.

      2) You can proceed in the exact same way with the weather stripping. If you want to try a different way, you could try to get property standards come out (call your local township office). It sounds like you may be way out in the country with that amount of land. If so, this might not be practical. So, do the work and deduct it from the rent. Again be very reasonable and invite the landlord to take you to the Landlord and Tenant Board if he disagrees with your deductions.

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    2. Michael K. E. Thiele3 October 2015 at 15:16

      3) The washer was supplied by the landlord and required to be supplied by the landlord in order to rent you the place. This is a repair/maintenance item and it belongs 100% to your landlord. Take a look at Part 3 and section 20 of the RTA. Your landlord can't download repair and maintenance on to you. Even if you signed a contract saying you would be responsible for maintenance and repair the RTA makes that contract void. Repair and maintenance can't be downloaded to the tenant as part of the lease. Certainly it is legal for the landlord to hire you to do the repair and maintenance but that has to be a contract separate from the lease.

      The situation with the yard equipment is again something that I think is entirely your landlord's responsibility. You don't need to share these costs.

      Perhaps your landlord will get mad. There is nothing that you can do to stop that. Him being mad, however, is not a reason to give up your rights. If you don't like this conflict then perhaps go to town, find a local lawyer who is prepared to represent you on landlord and tenant matters. Set the budget and be clear on it and get the lawyer to write to your landlord. For every stupid response of your landlord the RTA has a remedy. Trying to evict you for enforcing your legal rights is also against the law. While you can't prevent the landlord from behaving stupidly the law does give you remedies for illegal conduct. If you think the landlord is truly unhinged and will act not only stupidly--but illegally and violently--then the best thing is to just terminate your tenancy and get out of there.

      I hope that helps. Good luck. You are being taken advantage of. I hope you're able to get the upper hand soon.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    3. Unknown7 October 2015 at 12:57

      Thank you so much Michael for the very detailed response. I called the Landlord Tenant's Association and they told me the yard/snow/washer/varnishing, etc. was all the landlord's responsibility. On that note, I send a detailed email to the landlord outlining everything that was his responsibility (there are other issues not mentioned in my original post). I was not unfriendly or angry in my email and stressed the importance of legal boundaries.

      Landlord's response to yard maintenance was:

      1. No offer to compensate me for the approx. $300 + monthly gas I spent on yard maintenance so far.

      2. Will no longer ask me to pay for lawn tractor repair (unless it's user's fault).

      3. His wife told me I could pay to have a broken lawn mower fixed in order to use it (since it's such a large property, ideally a lawn tractor, lawn mower and trimmer are all needed). They just don't get it. I don't have to do any yard maintenance at all, yet I'm fine doing it (and it's a lot of maintenance) and just want the tools. Even after the email, they want me to fix the lawn mower. On top of grass maintenance I also have to rake 3 acres of leaves and had to buy a new rake because the one they left was useless.

      4. I also have monthly expenses, ie. gas, trimmer cord, oil that they don't want to pay for - I'm going to start keeping all receipts for expenses incurred and try deducting from my rent.

      Other items will be attended to, some I've been waiting almost a year for. Some work was supposed to be done on the weekend, then on Monday, then on Tuesday, and I've heard nothing from them today. Still "working" on replacing the washer - it's been two weeks.

      They act put out when I request attention to matters, treat me like I'm too demanding, act dumb like "what is it you want us to do exactly". It's really helpful to know that I have legal rights if they try to evict me because of this, although I highly suspect they will use a family member to take over the house, if they decide to go that route. Can't afford a lawyer at the moment. At any rate, while it makes me really uncomfortable to be on bad terms with them, you words are very reassuring and if I have to get tough, I will :).

      Thank you very much for your help, greatly appreciated!

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    4. Michael K. E. Thiele7 October 2015 at 17:08

      Hi: Glad to have helped and good for you in calling the Landlord and Tenant Board. Knowledge is power! Please note that you gave a one year limitation period to file for landlord breaches. This means that for anything you want to claim that you have one year under the RTA to file an application at the Landlord and Tenant Board. Good luck.

      Michael K. E. Thiele

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  10. ss7fox18 November 2015 at 11:23

    HI !
    I am a landlord renting out most of my home and i live in a part of the home and access is through a side door. The access for my tenants is only used by them. Am i responsible for shovelling their private stairs and walkways?We only share the driveway, so i assume i am responsible for shovelling the driveway?

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    1. Michael K. E. Thiele21 November 2015 at 11:07

      Hi: The caselaw cited in the article above dictates that a landlord is responsible for maintenance and that a landlord can not make a tenant responsible for maintenance in a tenancy agreement. Snow shovelling is considered maintenance and hence is the landlord's responsibility. You can make a separate contract with the tenant's to shovel or hire a company or do it yourself.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  11. Jellybean1 December 2015 at 12:07

    Good day!
    I live in a multi-unit (4 apartment) building and the landlord tells me under my lease that tenants are responsible for snow clearing and garbage removal. I have been doing it for over a year on my own and no other tenant attempts to help. Could I be compensated or does the Landlord must to have someone come and remove the snow? Also are they responsible to supply salt/sand?

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    1. Michael K. E. Thiele8 December 2015 at 13:12

      Hi: The landlord is responsible for maintenance on the residential complex. This includes snow clearing. It is not permissible to make maintenance (like snow clearing) a condition of your tenancy. Such a clause is void under the RTA and the caselaw on point. Certainly the landlord may contract separately with you to provide the service and you would be entitled to negotiate a payment if the landlord wanted to hire you to do it. Garbage removal is a little trickier and you would have to explain what is entailed in your garbage removal that seems excessive. Normally, a tenant may be required to bring their garbage to the garbage room, down a chute, or in a bin outside.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  12. Unknown20 December 2015 at 08:20

    Hello sir! After much digging around regarding snow removal, I discovered you here! So with no lease agreement I think I understand you to say, there really are no hard rules as to it being the landlords responsibility. I have to file a complaint after first documenting my requests to him to have snow removed? I live in a duplex which recently changed hands. The previous landlord did have it removed. I really think provincially this issue should be black and white for tenants!! Thanks in advance for any additional advice you may provide! Cheers

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    1. Michael K. E. Thiele21 December 2015 at 11:04

      Hi Tricia: The rules is that the landlord must do the maintenance on the rental property. Snow removal is a landlord's responsibility that can not be downloaded to a tenant through a lease agreement. However, a tenant can agree, in a separate contract, to do the snow clearing so long as the snow clearing is not tied to the tenancy.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  13. Unknown29 December 2015 at 22:59

    This comment has been removed by the author.

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  14. Unknown29 December 2015 at 23:05

    Hey! Thanks for all the great advice! I'm wondering how this applies to my situation- I live in a townhouse complex of 100 houses. The company maintains the main "roads" through the complex as well as the guest parking spaces and lawns. However, in my two winters here, it has been the responsibility of the tenants to clear their driveways directly in front of the houses (with the exception of one bad snowfall last year). So far I am seeing it as a resounding landlord responsibility, does that change in this case because of the type of housing? If it is a landlord responsibility, what is the best way to communicate this to a large property holdings company, in your opinion? Much appreciated!

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    1. Michael K. E. Thiele30 December 2015 at 09:43

      Hi: Lots of questions on this topic today. I wonder if it has anything to do with the first and sizeable snowfall yesterday in Ontario? I had the thought myself as I was shovelling my driveway how nice it would be if this was someone else's responsibility.

      As I have written elsewhere in this blog, there was once and perhaps there still is, an "understanding" that tenants of solely occupied units such as single family homes or town-homes with private driveways that the tenants are responsible for their own snow clearing. I don't know where this "understanding" comes from but it seems to have been generally accepted that tenants could be required to shovel their own driveway. The "understanding" changed if there were multiple tenants sharing the same driveway or walkway in which case clearing the snow was "understood" to be the landlord's responsibility (as opposed to a communal responsibility of the tenants in the building).

      There is a certain simplicity to this "understanding" and I don't think that anyone can really be shocked at the notion of having snow clearing responsibilities in accordance with this "understanding" or lets call it "custom". In fact, I think that the "custom" could easily be the law without any great outcry or objection from tenants. That being said, it is not the law at the present time.

      The caselaw cited in the article is still current and relied upon in various decision. However, ongoing caselaw has made the interplay amongst a landlord's responsibility for snow removal, a tenant's responsibility to keep a property clean, and the duty of all occupiers to ensure that person's coming onto the property are reasonably safe, somewhat more complicated.

      If you are interested in the interplay, then it is worth reading a recent case from the Ontario Court of Appeal in Miaskowski v. Persaud. (cut and paste this link as I can't make it live in a response to a comment: https://www.canlii.org/en/on/onca/doc/2015/2015onca758/2015onca758.html?searchUrlHash=AAAAAAAAAAEAFjIwMDkgT05DQSA4MDggKENhbkxJSSkAAAABAAwvMjAwOW9uY2E4MDgB&resultIndex=2 )

      The caselaw above is dealing with the liability for a slip and fall on a rented property and it calls into question whether a tenant has snow clearing responsibility. My reading of the case as well as the earlier decisions and the RTA provisions leads me to the conclusion that the landlord remains responsible for snow-clearing. That being said, it is possible that a tenant could be liable to someone who is injured following an accident that is caused or contributed to by a lack of snow-clearing, shovelling, sanding, or salting of the rental property.



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    2. Michael K. E. Thiele30 December 2015 at 09:43

      It appears to me that a tenant can enforce the snow clearing, ice removal, against the landlord through the RTA provisions at the Landlord and Tenant Board. That this work is an aspect of winter "maintenance" does not seem to be in serious dispute and it is clear that landlords have a maintenance obligation that is not easily shifted to a tenant in a lease. The nuance may be that a tenant has a responsibility to persons coming onto the rental property arising from maintenance related things that are the responsibility of the landlord to perform. Accordingly, a tenant should not allow their rental property to become unsafe with snow and ice accumulation and they should not ignore the danger to third persons on the basis that this is the landlord's responsibility. If a tenant of a rental property allows persons to enter upon the rental property, and those persons are injured, the tenant indeed may be liable to those persons under the Occupiers Liability Act.

      As for requiring your landlord to clean the driveways, I think the best approach is to put the issue to the landlord's management by letter. Cleaning all of the driveways will represent a significant expense to the landlord in a community of 100 houses. Even the best deal will be more expensive than the free labour of the tenants. I would make the issue "live" with the landlord, see what the response is, and then consider an application to the Ontario Landlord and Tenant Board to put the issue squarely before the Board and get a ruling on the extent of a landlord's responsibility for snow clearing and winter maintenance of the property.

      It is interesting to note that the caselaw referred to arises in the personal injury context and that the Residential Tenancies Act is being interpreted, in relation to this responsibility, not by the Landlord and Tenant Board at first instance. Given that winter maintenance is such a big issue in Ontario I think it would be great to get a clear line of cases setting out the scope of responsibility with those cases starting at the Landlord and Tenant Board. The personal injury cases are ultimately focused on liability for injuries and the interpretation of responsibility for winter maintenance takes on the rationale of tort law. It would be interesting to analyze the question in a case where the only issue is who is responsible to work the shovel and scraper.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. Unknown30 December 2015 at 08:49

    Hey Michael
    Just wondering if this snow removal responsibility has changed I'd like to post some information, and inform people how to enforce the ruling

    ReplyDelete
    Replies
    1. Michael K. E. Thiele30 December 2015 at 09:44

      Hi Norm:

      See the comment above about November 2015 caselaw.

      Michael K. E. Thiele

      Delete
  16. Lame Duck30 December 2015 at 21:31

    Mr. Thiele, I live in the first floor apartment in a four-unit apartment house; I am physically disabled with severe osteoarthritis in both knees, and scoliosis. I routinely use my back door (a separate entrance, exclusive to my apartment) because there are fewer stairs and doors to deal with, but my landlord never shovels a safe path to ANY of the rear entrances, those being the shared laundry room door, my stairs and the fire escape. I have told him repeatedly of the need, but he doesn't do anything about it, as a result of which I often have to trudge through knee-deep or even waist-deep snow to get in and out during the winter. Is there some way I can legally compel him to take care of this matter?

    He also allows large ice jams to form on the roof of the building, which pose a very real hazard to anyone using our laneway or the laneway next door. Some of these slabs of ice can weigh as much as 50 to 100 kilograms, but he just leaves them there 'till they finally fall. I narrowly escaped being hit by one of these large slabs of ice last winter, and if it had hit me, I would almost certainly have been killed! How can I legally compel him to take care of this dangerous problem?

    Is there someone I can call to enforce these things, or is taking him before the Landlord/Tenant Board my only option? My mobility and endurance are severely limited, so any additional outings (beyond the absolute minimum, ie: grocery shopping or doctors appointments) are an added hardship, and especially so during the winter.

    Thanks very much for any help you can give me, sincerely, G. LaBerge

    ReplyDelete
  17. Unknown2 January 2016 at 17:57

    Hi Michael,
    I live in a duplex and have had previous issues where my landlord threatened to evict me for having roommates. Now that situation has been resolved however the tenants in the basement unit, who are close with the landlord, were harassing me for some time about the roommates so there is tension there. Without the issues there, I would simply do my share of the snow removal, knowing full well my landlord is receiving the services for free. These tenants take care of the lawn in warmer months and I was told they would do the same for snow removal. Now that it is snowing, they are not shoveling the entire driveway. I have asked my landlord about it and he said he is not responsible for shoveling the snow. I wrote back asking him to confirm that he was not taking responsibility and he proceeded to say that he lives in Toronto and if I wanted him to shovel I would have to wait. And as a result he would be moving back in at the end of the lease (Sept) and would be forwarding the eviction papers. What can I do in this situation?

    ReplyDelete
  18. Anonymous12 January 2016 at 08:57

    Hi Michael

    Question for you about between cars in an apartment lot. Who's responsibility is that? My building has open space around it and has caused decent snow drifts. Couple that with rain and then freezing over night, in some spots we're looking at 8 inches of ice build up just outside a car. It's dangerous for walking on as a guy let alone my roommate when she's in heels. The landlord provide basic clearing for the lanes between cars, but at this point refuses to acknowledge that it is an issue or that anything needs to be done. Just wondering what options are available.

    ReplyDelete
    Replies
    1. Anonymous12 January 2016 at 16:09

      I just reread that and it's ambiguous at points. They do clear on the main drives in the lot. But nothing gets cleared between the side by side cars.

      Delete
  19. Anonymous12 January 2016 at 18:48

    Hi Michael,

    Is there anything in the case law that says how long after a snowfall a landlord has to clear the snow? I read the Toronto bylaws and it's cited as 12 hours on their winter maintenace page (http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=1597a84c9f6e1410VgnVCM10000071d60f89RCRD) and 24 hours on their 311 page (http://www.toronto.ca/311/knowledgebase/94/101000038194.html).

    I have a dispute with my tenant on what would be considered reasonable time frame.

    Appreciate your insight.

    Thank you!

    ReplyDelete
  20. Anonymous21 August 2016 at 21:01

    Hi Michael,

    I am considering buying a triplex. The property is adjacent to a fourplex. They both share a parking lot situated between them. As it turns out, the triplex owns the parking lot but there is a right of way for the fourplex over the entire parking lot. The fourplex does not have a parking lot of its own. Who would be responsible for the snow removal and would the triplex owner be able to charge for parking? Are the fourplex tenants allowed to park there freely?

    Currently both buildings are owned by the same owner so it has not been an issue in the past but as there will be a new owner would this be an issue? Thanks!

    ReplyDelete
    Replies
    1. Michael K. E. Thiele22 August 2016 at 11:44

      Hi: Thanks for the interesting question. I'll be perfectly blunt and say I don't have a clue as to the answer. The question(s) you are asking will obviously impact landlords and tenants in the residential leasing arrangements, however, the questions with respect to easements, rights of way, and all legal issues that flow is something that you should get a very clear answer about from your real estate lawyer and preferably in writing. In fact, this is something that you might want to speak with your real estate agent and lawyer about before even submitting an offer on the property. The reason to do that is to insert conditions in the offer that have to be satisfied with respect to the rights of way/easements before a binding agreement is reached.

      I strongly urge you to get your real estate lawyer involved as soon as possible as it is clear that you are realizing the potential nightmare of a conflict that might arise between different tenants, different landlords, and the tenants of different landlords, all in relation to parking, maintenance, and travelling across the parking lot.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  21. Unknown30 October 2018 at 12:03

    Hi Michael I use to do the snow removal for many years new owner has end that and is now expecting us tenant to advise him of our schedule and is going to force us to move our vehicles to allow a plow to clear the lane way. I see this as a problem as we are a cross from an open field and offensive don't get our street clear till everything else is bin done. Basically can they force us to move and get stuck in the street simply for his convince or is this bordering on harassment?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele25 November 2018 at 06:51

      Hi: Well this is a new one for me. A tenant who wants to shovel the snow! Unfortunately, there is a mix of responsibility and liability in this issue. The new landlord may simply be thinking about his liability when deciding to send a winter maintenance company to your property. While you may be willing to do the work yourself it is entirely possible that if you or your guests fell on the property and were injured that your landlord could be sued for not maintaining the property. This is the case even if you agreed to do the snow clearing because the landlord is not allowed to shift the snow clearing responsibility onto the tenant.

      If your landlord was willing, the solution to your problem could be that you sign a separate contract with the landlord that he pays you to do the winter maintenance yourself. You then also contract to indemnify the landlord for any claims made as a result of a failure to properly maintain the property. Presumably, but you should check to see if your tenants insurance will respond to such a claim made against you and indemnify the landlord if the landlord is sued for damages arising from an injury due to a lack of winter maintenance.

      As you can see from the above--this is what happens when the lawyers get involved. Something that seems like it should be so simple.

      Another option of course, if you haven't been getting paid to move the snow is to just continue doing it. Then, when the landlord's plow service comes around they will see that there is nothing to do and just leave. A waste of money, but problem solved.

      If the landlord's contractor comes around too early you can probably just send him away and say come later. If the contractor is aware that you are not in a rush I'm sure he'd be happy to put you at the end of his list. There are lots of people who want sooner service so you being willing to be last is probably great. In the mean time, if the contractor isn't around and you're up to it, clean the snow yourself and problem solved.

      Ultimately your question is whether the landlord, being new, changing the way things have been done, is harassing you. I'd say likely not. Changing procedures is not harassment even though the change might be a giant pain in the butt. Whether you have to agree to the exact change--that is unlikely. The LTB will want both sides to cooperate and who "wins" a case will depend on who is being reasonable and who is not. Nothing is permanent or forever and change does happen. Bringing in a snow contractor to clean your laneway is unlikely to be considered harassment by any adjudicator.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  22. effusvmndacity27 November 2018 at 20:08

    Hi Michael,

    I am renting a room in a family home. My landlord's when home take care of the property maintenance (shoveling, repairs, lawncare etc.). Last winter they went out of the country for 4 months and during that time I had to shovel the driveway and walkways or else I would have been unable to get to work/leave the house. It was hard work for me because I don't have much upper body strength. Should they leave again this year, can I request they make arrangements or is it my responsiblity since they are not physically present in the house at that time?

    Thanks!

    ReplyDelete
    Replies
    1. Michael K. E. Thiele27 November 2018 at 21:23

      Hi: From the limited information that you have provided I am concerned that you may not be in a landlord and tenant relationship covered by the Residential Tenancies Act. If you are renting a room in a home that is occupied by the landlord and you share a kitchen and/or bathroom with them then your tenancy is exempted from the RTA. This means that the landlord's duty to maintain the premises (and hence snow clearing) is not necessarily an obligation in your situation. If your tenancy is exempt then the applicable rules, rights, obligations are as set out in your contract with them.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  23. Anonymous3 December 2018 at 11:50

    Hello Michael! If my landlord pays to have the driveway plowed but my car is in the driveway and snow builds up around my car, can I make him clear the buildup?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele3 December 2018 at 13:31

      Hi: I can just imagine how wonderful your relationship with your landlord must be if you're having to fight about piling snow around your car. Not surprisingly, the Residential Tenancies Act does not deal specifically with this issue. That being said, snow removal is the landlord's responsibility and I'd say piling snow around your car is hardly snow removal. From that perspective I'd say "yes" you can require the landlord to clear the snow. However, if the landlord comes to you and tries to make arrangements for snow clearing and gives you some kind of opportunity that is reasonable to avoid the problem then you might be out of luck. If you're talking about the dreaded snow behind your car because of a passing plough you might be completely out of luck as that snow may not be on the landlord's property.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  24. Unknown20 December 2018 at 21:15

    Hello Michael,
    We own a rental property that has two residential units upstairs (rented by two different people) with a commercial unit on main floor (vacant). Are rules for snow removal different for a commercial property with residential mix? My residential tenants share walkway which leads to 2 parking spots.

    ReplyDelete
    Replies
    1. Michael K. E. Thiele21 December 2018 at 07:49

      Hi: Unfortunately there are no explicit rules for exactly what must be done in the context of mixed commercial and residential nor for that matter when there is only a single residential unit or more. Where the rental unit (residential) is covered by the residential tenancies act you as the landlord have a duty to maintain the property and that will include the common areas of the residential complex. If the tenant's parking is included in the rent and you control the property where the cars are parked (and it is attached) I don't see how you get away from the maintenance (and hence snow shovelling) duty.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  25. Clifff Garside21 December 2018 at 08:03

    Hi Michael
    I live in a land lease community. The landlord clears the snow from the road but some of the residents clear their driveway, all residents cut the grass. We all own our homes but not the land. Under the Act can the landlord require us to maintain the land.
    Regards
    Cliff Garside

    ReplyDelete
    Replies
    1. Michael K. E. Thiele30 December 2018 at 12:39

      Hi Cliff:

      Thanks for this question. The "land lease community" is always a bit unnerving because those of us who practice landlord and tenant law know that the rules are mostly the same--but different none the less. Intuitively, people also think the rules are different given the nature of what is being rented.

      So that being said, I'll offer you this. The Rules with respect to maintenance are the same for a landlord in a mobile home and land lease community. The Residential Tenancies Act---has a separate part for Land Lease Communities--that is PART X. Under that part you will see that the landlord responsibilities as set out in section 20 (which is not in Part X) are incorporated into a land-lease landlord's duties. Aside from that, given the unique nature of land lease communities, the RTA has additional responsibilities that are imposed on landlord's in a land lease community. These are set out in section 161 of the Residential Tenancies Act which provides:

      Responsibility of landlord
      161 In addition to a landlord’s obligations under section 20, a landlord is responsible for,

      (a) removing or disposing of garbage or ensuring the availability of a means for removing or disposing of garbage in the mobile home park at reasonable intervals;

      (b) maintaining mobile home park roads in a good state of repair;

      (c) removing snow from mobile home park roads;

      (d) maintaining the water supply, sewage disposal, fuel, drainage and electrical systems in the mobile home park in a good state of repair;

      (e) maintaining the mobile home park grounds and all buildings, structures, enclosures and equipment intended for the common use of tenants in a good state of repair; and

      (f) repairing damage to a tenant’s property, if the damage is caused by the wilful or negligent conduct of the landlord. 2006, c. 17, s. 161.


      So the short answer to your question--the landlord is required to maintain the property as clearly set out in the RTA and can't shift that to the tenants as a tenant obligation under the lease.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  26. Unknown17 January 2019 at 10:25

    Hi Michael, I live in a non profit housing apartment. Can they make us responsible for the maintance of the walkways and stairs in the winter? They put it in our lease that we are

    ReplyDelete
    Replies
    1. Michael K. E. Thiele17 January 2019 at 16:31

      Hi: The answer in general is absolutely not and this is the rule in 99% of situations. I suppose there might be exceptions--so I would need to see the lease clause and understand the layout of the residential complex and the nature of the stairs and walkways.

      Whether the landlord is non-profit or not makes no difference in the obligations to tenants in relation to maintenance and repair.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  27. Anonymous23 January 2019 at 08:56

    Hello Michael,
    I live in a federally-funded, non-profit housing co-operative consisting of townhouses. I have a long driveway that I share with one other house (we each have half). I've been fortunate to have had the same neighbour family for 34 years and we went from alternating shovelling (when we parents were younger) to one of their sons doing the work as we parents got older and mobility-challenged.

    My neighbours have now left and I am a disabled senior who has been told by my doctor to avoid snow shovelling. I cannot afford the rates people--including kids--want to shovel my driveway.

    Because I am not in an accessible unit, (I am on the waiting list), the new Property Management company insists that the Co-op is not responsible to do my driveway; I am, regardless of medical opinion.

    Is there legislation that contradicts the Property Manager's stance and can help me get the shovelling done and remain in my home?

    Thank you, in advance, for your advice.

    ReplyDelete
    Replies
    1. Michael K. E. Thiele23 January 2019 at 14:57

      HI:

      In Ontario, non-profit housing cooperatives are not covered by the Residential Tenancies Act for the issues you describe. So the useful sections of the law that apply in rental housing do not apply to members of co-ops who have occupancy rights based on their membership in the Co-op.

      The RTA provisions that make landlords responsible for property maintenance (including snow clearance) are generally not applicable to Co-ops if you are a member. While highly unlikely, it is at least theoretically possible that you are a tenant of the Co-op--in which case the responsibility to clear the snow does belong to the Co-op.

      Two suggestions to deal with this issue. The philosophical basis of many co-ops is for people to volunteer services etc., to the Co-op and many by-laws establish those obligations (unique to each co-op) for the members. Is there anything in your condo bylaws, occupancy by-law that helps you? You would need to take a close read of them.

      If not, you could see about speaking with the directors of your co-op and advising them of your problem. They might be able to find a volunteer in the Co-op (maybe someone with a truck and plow?). Maybe there is a neighbour who has a snowblower who wouldn't mind blowing your driveway as well as a favour? I have certainly done that for my neighbour as I have a snow blower and love the opportunity to use it.

      If there are no volunteers perhaps you can lobby like minded co-op members to organize a new by-law or policy to have the co-op assume plowing and shovelling duties for co-op members who are unable to do this themselves. You just might find that there is an appetite for making this a new rule/by-law/policy. Certainly the members of the Co-op have the right to vote it as a policy.

      Another angle--though rather confrontational, is to explore the Co-op's obligations under the Ontario Human Rights Code and the duty to accommodate you. Imposing a snow clearing obligation on people who simply can't move the snow and who have limited income could be characterized as a Human Rights violation. You could file an application against the Co-op with the Human Rights Tribunal--there is an online filing process. However, before doing so, try to solve this through dialogue and explanation and seeking help. Litigating with Human Rights claims against the Co-op tends to upset people, it costs a lot of money, and there tend to be hurt feelings that translate poorly to neighbourliness.

      I hope that gives you a few ideas. If the Co-op gets aggressive with you about making you deal with the snow there are a range of defences and I'm fairly certain if this ended up at the Board on an eviction application that you would be successful in defending it if represented by a lawyer or paralegal who knew/know what they are doing.

      Good luck to you.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
    2. Unknown5 February 2019 at 13:53

      Thank you, Michael, for your suggestions.

      Yes, I was trying to avoid having to file a HR claim.

      There actually is a by-law in our Co-op that entitles me to snow-clearing. However, no one has a complete set of up-to-date Bylaws and the property management company, the current administration, refuses to acknowledge this bylaw without seeing it written in their own, out-of-date copy of our Bylaws. (Our previous direct-hire manager took and/or shredded a lot of documents on his way out in an effort to try to cover his extensive and expensive corruption).

      I was told by a few people (who unfortunately cannot give me more excting information) that there is now legislation, not sure whether provincial or federal though I suspect the latter, which, as part of the strategy to aid seniors to remain in their homes and out of institutions, required landlords to clear snow when seniors could no longer do so. I have tried to find such legislation but have been unsuccessful. It was not under Landlord Tenant but under laws dealing with seniors and possibly under Housing Strategy.

      Are you aware of this legislation?

      Thank you so far and in advance.

      Delete
    3. Unknown5 February 2019 at 13:55

      I meant to also say I apologize for taking so long to respond. I've had repeated flareups which have limited my energy and movement severely.

      Delete
    4. Michael K. E. Thiele6 February 2019 at 00:15

      Hi: Unfortunately I am unaware of the legislation you think may exist. I did a quick search in Ontario and Federally for the word "snow" in every piece of legislation. The search returned over 140 documents in Ontario and over 75 documents Federally that contain the word "snow". The trick now is to see if any deal with the issue you are concerned about. If you wish to take the time to do the search you may do it for free. If you go to the website www.canlii.org you can search individual provinces and Federally for any words or phrases and you can restrict the search to legislation as opposed to caselaw. There is a lot to look at but most of the search results I saw would clearly not contain the requirement you are looking for. However, it is a matter of simply searching and looking and hopefully you can find it. If you do have success I would certainly appreciate it if you would let me know. Such a law would certainly be useful for many seniors and others who are unable to do the work or afford to pay someone to do it.

      Michael K. E. Thiele

      Delete
    5. Unknown11 February 2019 at 19:25

      Wow! Thank you so much. What a great website to discover. I will look for the legislation and if I find it I'll definitely get back to you. If I don't find it under "snow" I'm looking for other appropriate words or phrases.

      Much appreciation.

      Delete
  28. Unknown23 January 2019 at 21:17

    Question is there a time restriction as to when the snow removal can happen? My landlord constantly plows and snow blows at 11pm or later? I have a 3 year old that has a bedroom beside the driveway that is being plowed at 11pm. Thank you for clarifying

    ReplyDelete
    Replies
    1. Michael K. E. Thiele24 January 2019 at 17:52

      Hi:

      There is nothing in the Residential Tenancies Act that states when a landlord may do outside snow clearing work. Further, I doubt very much that your town/City has a by-law prescribing the timing of this specific kind of work---though many Cities have bylaws dealing with when grass cutting and other noisy maintenance work can start. Because the RTA does not explicitly deal with it you would only have a cause to complain under the general provisions respecting your right to quiet enjoyment. For this to have any success the Landlord and Tenant Board would have to be convinced that this late hour snow removal constitutes a substantial interference with your reasonable enjoyment. Based on the limited facts you provide here I think you would have a tough time with that argument (on the limited facts you have provided).

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  29. Anonymous30 January 2019 at 17:04

    Hello,

    Thank you for the informative and well written article. Where would one find a standard form/contract to have the tenant, if they agree to shovel the snow, for pay, while also legally relieving the landlord of the responsibility? Is there a name for such a document or does it need to be custom drafted by a lawyer?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele1 February 2019 at 07:59

      Hi: Unfortunately there is no standard form/contract in the landlord and tenant context for this kind of agreement. This agreement is necessarily outside the scope of the landlord and tenant relationship so the LTB does not provide one.

      You may of course hire a lawyer or paralegal to draft such a contract. The trick is to contemplate the scope of the contract and possible things that may or may not happen. This contract will be similar to a snow plowing contract and if you can get a hold of one of those you could "borrow" some of the language. If drafting this yourself you need to draft it in such a way that there is no intertwining with the residential lease or you risk it being void for being contrary to your maintenance obligation.

      There will be "out-there" precedent contracts that you could adjust to your purposes--maybe there are some legal forms companies that you can find such a contract. Otherwise, it is probably worth it to get the form professional drafted to ensure that you get the liability protection that you want in exchange for the payment you are making.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  30. Anonymous12 February 2019 at 16:09

    I own a rental house with two apartments. The lease states that the tenants are responsible for snow removal. Recently, they hired a contractor for snow removal, but the contractor did not remove the snow from the property. He piled the snow up and blocked access to the front entrance of the lower floor apartment. He also pushed snow against the brick wall and the gas meter. The ice accumulated damaged the bricks and loosened the pipe of the high power supply cable from the wall. I have already issued a warning to the contractor. What can I do if he continue his practice like above?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele13 February 2019 at 10:12

      Hi: I would be very concerned about the legality of your lease clause making the tenants responsible for snow removal. I think it is a fair characterization of the law (RTA & Caselaw) to say that such clauses are presumptively illegal. Take a look at the case Montgomery v. Van which you can find at this link: http://canlii.ca/t/26lqx . The problem with an illegal snow clearing clause is that you might find yourself unprotected against a claim for injury or damage that arises out of poor snow removal maintenance--even from the tenants themselves (i.e. that's what the Montgomery case is about).

      With respect to the contractor who is doing the snow removal. You had best speak with him and give him instructions on where and how to clear the snow. You may have a claim against the contractor for damage if he continues to clear the snow in the manner you describe. Whether you have a claim against the tenants--for the damage caused by their contractor--is a little more difficult to answer. Given that you have probably illegally shifted the snow clearing obligation to the tenants I imagine that would be part of their defence should you try to sue them or take them to the LTB for any damage caused.

      Note that there is a way to hire tenants to do the snow--but it needs to be separate and apart from the lease and the right to rent or live in the unit can not be contingent on doing this maintenance.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  31. Anonymous13 February 2019 at 09:57

    Hi Michael,

    Thanks for all the information.

    I live in an attached dwelling with three units. Our landlord also owns the two dwelling beside us, with the same layout - 9 units in total. Tenants with vehicles share the same rear parking lot, with a fairly long laneway to the road. As of last night, we had significant downfall of snow. I went out this morning to try and get out, but got stuck pretty much asap.

    I then messaged our landlord, who stated "snow removal is not included in the lease".

    From what I have read from your previous responses, the onus should still be on the landlord, correct? In addition, the landlord and I have not signed any additional documentation regarding snow removal.

    In addition to this, the lane way is use very often by citizens. By not clearing the snow, can this not be a significant legal issue waiting for them?

    Thanks!

    ReplyDelete
    Replies
    1. Michael K. E. Thiele13 February 2019 at 10:22

      Hi: With the assumption that the rear parking lot is indeed a parking lot and the laneway and the parking lot are part of the residential complex owned by the landlord and your use of the parking lot and the landlord is contemplated as part of your lease then the landlord is indeed obligated to maintain the parking lot and laneway. The lease does not have to include snow removal nor any other precise maintenance obligation in order for that obligation to imposed on the landlord by the Residential Tenancies Act (i.e. each maintenance obligation does not need to be spelled out in the lease). The obligation to maintain the residential complex is in section 20 of the Residential Tenancies Act. Beyond the RTA, the city you are in likely has a by-law dealing with snow removal and maintenance of the travelled portions of private lands (and lighting). These are additional obligations that are incorporated into the landlord's obligation under section 20 RTA--even though these obligations may not otherwise be intuitive.

      So, the short answer to your question. Yes, there could indeed be a significant legal issue awaiting the landlord.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  32. Benny Lin, GTA Realtor15 February 2019 at 10:49

    Hi Michael,

    Thank you for the many informative pieces you wrote through the years. I've always found them helpful and answered many questions related to the real estate.

    Since now we should document the snow shoveling task in a separate agreement, I wonder what is a suitable consideration for such contract. Will $2 dollar be considered enough consideration just so we can establish the agreement?

    Thank you for your help!

    Benny

    ReplyDelete
    Replies
    1. Michael K. E. Thiele19 February 2019 at 07:24

      Hi Benny:

      As you know, from your use of the word "consideration" the creation of a valid contract requires that something of value flows from each of the parties to the contract to the other side. In law school we often talked about "peppercorns" and that even a peppercorn was sufficient consideration to make a contract valid. The consideration in the form of a peppercorn was nominal but sufficient. For many years the nominal consideration has been $1.00 which now seems to be $2.00 to make an agreement valid as a contract (because something of value flows both ways--i.e. you shovel my snow and I give you $2.00).

      Technically speaking, $2.00 is indeed enough consideration to make a contract valid. Whether you can get anyone to sign that contract is another question. Who would shovel snow for $2.00? I think it becomes impossible to suggest that this contract isn't somehow linked to the tenancy agreement and continued occupation of the premises (which is prohibited). I don't think that any adjudicator will believe that a tenant has a completely separate and subsisting lease (with no maintenance requirement) and they separately wanted to enter into a $2.00 snow clearing contract. But, I suppose, there may be additional circumstances where this works. At a minimum you contract should contain a provision on how the contract can be terminated--at least if the tenant has a clear choice to cancel without it affecting the tenancy then it becomes more believable that the only consideration is the $2.00.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  33. Anonymous16 February 2019 at 10:39

    Hi I will like to ask u a question a rent a room in the house with 5 other people and the landlord lives in the middle level he saying the we have to clean the snow it's are responsibility to shovel the snow please can u let me know thanks in advance

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    1. Michael K. E. Thiele17 February 2019 at 14:26

      Hi: The key to your question is to know whether the Residential Tenancies Act applies. The facts you provide don't answer that question. Do you share a kitchen and/or bathroom with the landlord? If there is an applicable exemption then the maintenance obligation under section 20 of the RTA does not apply. If that is the case then snow shovelling is a matter of contract--if anything. If you are not RTA covered and are, in law, a roommate--then your rights are quite limited.

      If you do have RTA protection then snow shovelling is the landlord's obligation. Simple as that. If he fails to do the work then you could file a T2/T6 application against him at the Ontario Landlord and Tenant Board. The forms are on the LTB website. You could ask for rent money back, an ongoing abatement, and an order requiring the landlord to take care of this maintenance issue.

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  34. Unknown26 February 2019 at 21:18

    What should I do if my landlord has not properly dealt with the lack of snow removal of a side walk that is supposed to be cleared by his snow removal team. On more than one occasion I have spoke with my landlord as they have not cleared a side walk that is supposed to be done. My sidewalk was a sheet of ice for weeks and my 2 year old has fallen on it, luckily was not hurt but is now afraid to leave the deck because of fear of falling. When brought to my landlords attention for the fourth time I was informed that I'm not supposed to use the side walk it's not for a long on. I dont see how this is possible when it is at the end of my deck stairs and along the side of my vehicle where I get in. I'm just at a loss and need help

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    1. Michael K. E. Thiele27 February 2019 at 07:48

      Hi: It appears that there is a fundamental disagreement between you and your landlord about what areas need to be maintained. There are cases where there situations in which certain areas around a residential complex are 3 season areas that are not expected to be used during winter. Whether that is the case with you certainly depends on expressed expectations and in the absence of that what is "reasonable" in the circumstances. You need to be ready to prove that winter maintenance in the area you want it is work that should be done and that this maintenance, in this area, is reasonable to expect.

      Presuming you can establish the above I would approach this two ways. As your landlord has already said "no" I think you are wasting your breath with him. Make sure you have one last written notice to the landlord--email, text, fax, setting out the fact that the walkway is not cleared, that you want it cleared, that members of your household have fallen, and that the landlord has refused to clear that area. With this done you can try contacting your by-law services and asking them to inspect and make an Order. I don't know where you live but in some areas the by-laws have very helpful and thorough snow removal and winter maintenance by-laws. Doing this might solve your problem. If not, or in addition, you can file a T6 & T2 application to the Landlord and Tenant Board. The T6 is the maintenance application and in that application you can ask for remedies including an Order that the landlord maintain this area. For the best chance of success you need to think very carefully about how you prove the problem and location. Photographs will be a big part of this application.

      Consider retaining a paralegal or lawyer or going to a Community Legal Clinic. While the Landlord and Tenant Board is intended to be used by self represented persons it still make a lot of sense to have legal help if you can get it.

      Note--I think you will likely be facing a serious argument about "3 seasons" etc., so get ready for that.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

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  35. Lukas Hoeft28 May 2019 at 18:54

    I live in a house where 7 people signed the lease together but I am unsure as to whether or not we rent the whole house as one entity or if we each rent our individual units. Our lease says that it is our responsibility to clear the snow but there is no separate agreement outside of the lease that states we have to do it. So do I have to shovel the snow in both scenarios?

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    1. Michael K. E. Thiele29 May 2019 at 08:03

      Hi Lukas: The likelihood is that if you all signed one lease that lists the municipal address as the rental property then you have rented the whole house on a single tenancy agreement. Either way, maintenance is the responsibility of the landlord and snow shovelling has been held to be a maintenance obligation of the landlord. Of course, as you indicate as well, the landlord can contract the responsibility to someone else, including the tenants, in a contract outside of the tenancy agreement (i.e. so that the tenancy is not a condition of the tenant doing the maintenance).

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  36. anon4 July 2019 at 12:56

    Hi Michael. We live in a rural farm house. There are two other businesses on the property as well. The landlord is insinuating that it is my responsibility to cut the grass around here. I do not have a problem with maintaining the yard around the house. I have my own riding, and push mowers. The problem I have is the laneway. Both sides. It is a lot of grass! 8 to 10 hours on a riding mower doing all the grass here. 1.5- 2 just around the house, which I will gladly do. She insists that it is my responsibility. I have tried to talk to her, and got "if you dont like it, then move" I have asked for use of their mower, as mine is old, and all that graas which is more like hay is hard on it. Got some bull that I'm not an employee, so I'm not insured.... I am pretty sure the grass is not my problem, but I would just like to confirm this. I did call the LTB this morning, and she was pretty useless to say the least. We also have an inground swimming pool 12 feet outside the kitchen sliding doors to a wooden deck which is rotting. The pool has been inoperative for a few years, and it's 2/3 full of brown/green water complete with bugs and frogs. We call it the cess pool. We have been here almost 2 years now, and the landlord has been stringing us along the whole time saying she's going to have it filled with dirt and taken care of. That has never happened... The other night she came to my wife, and said they were not going to fill it, but instead want to put lillies in it, and turn it into a frog pond..... We're pretty much at our wits end with this woman

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    1. Anonymous10 July 2019 at 13:36

      Please, how do we deal with this?

      Delete
    2. Michael K. E. Thiele11 July 2019 at 14:52

      Hi: My comment relies a lot on how you tell the story in your question above. Based on that, it seems to me that your landlord is fundamentally a disagreeable person and that there really isn't a conversation to have that will reasonably solve the issues. Accordingly, you have a choice to make. Simply put up with it or alternatively go "legal".

      The legal approach would be to fill out a T2 and T6 Form and file them with the Ontario Landlord and Tenant Board. These are the rights and maintenance forms. You can ask for an order clarifying responsibility for grass cutting, ask for compensation for the grass you have already cut, and for an Order requiring the pool to be made operational or be properly decommissioned. As you are out in the country I don't know what your township has for a property standards by-law but you might want to make inquiries with them and see if they can attend and make orders to deal with the pool (and do the work at the landlord's expense if she ignores the order).

      Of course, your relationship with the landlord, which already isn't good, is unlikely to improve as a result of this but perhaps she will become a bit more careful and respectful knowing that you won't be pushed around.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    3. anon12 July 2019 at 21:47

      Thank you Michael

      Delete
  37. Anonymous14 January 2020 at 11:53

    Leasing is also a market thing. I think the rent will be higher at the first place if landlord has to do the snow removal(either by himself/herself or hire someone).The tenants should be given options to do it themself or not, with different prices of cause.Tenants save money on doing the snow shoveling themselves. Just said shifting responsibility is lacking a good understanding of the market fact.

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    1. Michael K. E. Thiele15 January 2020 at 08:11

      Hi: Thanks for the comment. You are describing, by suggesting that landlords and tenants should have the right to negotiate lease terms and responsibility for work, repairs, and maintenance (like snow removal), a situation of "freedom to contract". Canadians and certainly Ontarians have a reflexive view that once a person is an adult and of sound mind that you have the right to make your own deals subject to those deals being legal (as opposed to being criminal). Most Ontarians would expect that a deal freely entered into should be enforceable. This is notion is what is underpinning your suggestion that tenants be allowed to negotiate to do the snow removal in exchange for a lower rent. In this isolated context--with the sense that there is negotiation--I think your argument gets a lot of takers and people would agree with you. That however is not the law. The idea of "freedom to contract" is not supported in the Residential Tenancies Act. This is not an accident and in fact it is quite on purpose. The government long ago--and every single government (Liberal, Conservative and NDP) all maintained the limitation on freedom to contract. Why you may ask if the proposition you made (about snow clearing) is so obviously acceptable to most people.

      The reason I think is that your suggestion about negotiating a lower rent in exchange for the tenant doing maintenance work presumes that the landlord would in fact "negotiate". The reality, I think, is that a landlord wouldnt negotiate with you at all. If a landlord was allowed to negotiate terms related to maintenance work then the landlord would likely use its superior bargaining position to simply say--the rent is $XXX and you need to do the snow, take it or leave it. Sure, you may try to negotiate a better deal but the landlord can respond simply be saying "next" and the guy/gal in line behind you quickly realizes that if you want a place to live you simply take what the landlord is offering--no negotiation.

      It seems to me that when you say its a "market thing" (i.e. market forces), that you are misidentifying the main driving market force that dictates the amount of rent for a unit. A landlord isn't going to pass along savings to a tenant just to be a nice person. The "market forces" are not focused on maintenance work, snow removal, or other such minutiae. These, in the big picture are meaningless. What really drives the market forces is the vacancy rate. The only time that I have ever seen landlords (by which I mean large corporate landlords with lots of units) actually negotiate and give good deals (like: free rent, free wifi and cable, no LMR deposit) is when the vacancy rate is high. When units are sitting empty then the landlords become interested in attracting new tenants with good deals. Outside of this situation (high vacancy) I don't see landlords offering any kind of deals--because they don't have to. Beyond that, landlords are not motivated to offer rentals to people with financial constraints. Tenants who can afford to pay more are generally more attractive as tenants because their credit history is better, the likelihood of default is lower, and if they do screw-up they are easier to sue and collect against.

      Anyway, thanks for the comment. It's an interesting debate that is essentially a policy choice. Certainly what you suggest is permitted in other jurisdictions--it just isn't in Ontario.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  38. Anonymous27 February 2020 at 18:52

    Hi mike I do have one question and sorry I didn't read all the comments to see if it was already asked in section 26 it says that the landlord is responsible for all external common areas what if the tenant has a separate entrance would that still fall under section 26 or would it be different

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    1. Michael K. E. Thiele28 February 2020 at 15:51

      Hi: I'm sorry but you will need to clarify which section you mean to cite. Section 26 RTA is about Entry without Notice. Please get back to me on the section you are quoting and I'll take a look and post a response. Michael Thiele

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  39. Anonymous29 January 2023 at 22:16

    Hello Michael. My rent a bedroom at a location in Markham. My landlord does provide snow removal on the property (front entrance, sideway and driveway). My question is the landlord also responsible to clear the snow that is on the street that is in front of driveway that the snow plow has piled in front of my car? The snow is not on the driveway, but literally on the street. I leave work earlier than him and I am sometimes have to shovel this in order for me to leave for work. Can I ask him to wake up earlier so he can shovel the snow before I leave for work?

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    1. Michael K. E. Thiele5 February 2023 at 14:08

      It might be a stretch on that one. The short answer I think is that the landlord is responsible for clearing the driveway "ends" that piled up when the plow comes but the timing of removing them would fall into a reasonableness category that I don't think will include getting the landlord out of bed earlier to accommodate your schedule. Perhaps have a chat and see what the landlord might agree to. Absent an agreement I think the landlord can probably get away with saying it will be done within a reasonable time but if you want to cleared sooner you are welcome to do it. As the plow typically passes on a seemingly arbitrary schedule it seems unlikely that the landlord has to be standing by to clear the snow on short notice. [Note that there are some recent Landlord & Tenant Board orders trying to shift the snow clearing responsibility in single unit rentals onto the tenants].

      Delete
  40. Anonymous1 February 2024 at 10:10

    Good morning, Michael

    I've noticed that you have responded to similar threads about situations similar to ours, but wonder if there has been any new case law regarding it.
    Our situation is as follows:
    We rent a farmhouse on a 100 acre parcel of land. Our lease identifies our "unit" as HOUSE. The corporation who owns the land farms a 12.5 acre portion themselves, and rents out that balance of the property (Less a 2 acres parcel on which our rental unit sits). Our landlord included a line in the lease that we would be responsible for outside maintenance, garden weeding, and snow removal. We accept that we are responsible for this if it is for our exclusive use. However, the laneway is used in all seasons by the landlord when farming and harvesting wood from the bush, the farmer who rents the land, hunters who have been granted access, and the landlord who comes out to "check up on things".
    The landlord has helped to clear the snow twice in the 2.5 years we've lived here (third winter), has NEVER provided salt or sand when the driveway turns to ice even when we've asked for it but has maintained the driveway through box grading, adding aggregate, sometimes cutting overgrown grass at the field lines and clearing fallen logs from the laneway.
    We have borrowed a small tractor in the first year to clear the snow (on average 5 hours in the cold doing the work), then purchased and had a mounting bracket custom made to fit our truck which added efficiency and comfort to a job we don't feel is our responsibility.
    This past december we wrote to our landlord saying we've had enough. We asked them, once and for all, to take over the snow clearing (except for the walkway and parking near our house). Our reason was that the driveway is a common element.

    Their response was: It's in your lease. You are responsible.

    They suggested that we'd have to amend our lease, and pay for them to provide the service, but have not clarified the amount they'd charge.

    We have no interest in doing the work, paying them to do their responsible maintenance, no are we willing to do the work and accept liability for any potential accidents.

    Do we file with the LTB? Which form(s)?
    Do we file for the costs we've incurred to do their job?
    Do we even have a responsibility to do the snow clearing?
    Your advice and any help you can offer, would be greatly appreciated.

    Thank you so much!
    Grant and Sheri

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    1. Michael K. E. Thiele1 February 2024 at 10:45

      Hi Grant & Sheri,
      Whether a tenant can be made responsible for outside maintenance (including snow removal) is a question that one might have thought was settled in Montgomery v. Van (2009) 256 O.A.C. 202(CA). The strict rule one could expect was that a landlord was responsible for all maintenance, including snow removal. That responsibility could be shifted to a tenant only if the tenant agreed in a contract severable from the residential lease. It could not be a condition of the tenancy for the tenant to do outside maintenance---whether the maintenance was in an exclusive use space or shared outside space.

      You seem to accept the notion that you can be held responsible to do maintenance in exclusive use space (i.e. remove snow on paths used exclusively by you). I don't subscribe to that view--but certainly there are people who argue that this is indeed permissible (i.e. to impose snow clearing responsibility on tenants in exclusive use spaces). There is a relatively recent Ottawa case from the Superior Court that does conclude that tenants can be responsible for snow clearing in exclusive use spaces and the case purports to distinguish the Court of Appeal decision. Unfortunately, I think this recent case contains a rather glaring error that seems to have passed by all concerned. I do wonder if the decision has been appealed but have no indication that it has been. Hence, there is an authoritative decision (because it is the Superior Court of Justice) out there that imposes on tenants the responsibility to clear snow in exclusive use space---though I think it is wrongly decided on the facts of that decision. Rather interestingly, there is another recent decision that goes entirely the other way from the Ontario Human Rights Tribunal that suggests that any criteria requiring the tenant to clear snow is discriminatory and should not be part of any lease and should not be advertised as part of the tenants obligation as it imposes an unacceptable condition on prospective tenants. It seems impossible to reconcile those decisions.

      As for you now, I do think you simply put the issue in the hands of the Landlord and Tenant Board. Your instinct to distinguish your circumstances from exclusive use space is wise. Make sure to have lots of pictures showing use of the driveway by the landlord and his invitees. That should shut the door on the issue of exclusivity. Use the T6 Form (available on LTB website). Because it is possible to combine an application you should also serve a T2 Form--substantial interference with your reasonable enjoyment. The T6 is a maintenance application. You can have the question of who is responsible to clear the snow determined by LTB. If you start today you might even have an answer from the LTB by next winter! (sorry--a cheeky jab at the LTB's inefficiency).
      Good luck
      Michael Thiele
      www.ottawalawyers.com

      Delete

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