What is a clean and acceptable apartment to one person may be viewed as an utter disaster to another person. To a certain degree, how a person to chooses to live within their own apartment is up to them and them alone. However, in some circumstances, how a tenant lives and how they keep their home impacts on other tenants, the landlord, and the physical condition of the rental unit and building.
There are some tenants who do not "see" or "smell" the problem in their apartments. Everything from uncleaned litter boxes, smell of animals, rotting food, unclean laundry, body odours, garbage smells, piled junk (or treasures depending on perspective) and everything in between can cause a serious problem for other tenants or the landlord in enjoying their own units and the common areas of a building.
Some of these cleanliness issues lead to fire-code problems as "hoarding" makes the rental unit inaccessible or a danger to firefighters and anyone who needs to get around the unit in an emergency. Issues like this constitute an illegal act and/or impaired safety, both of which are explicit grounds under the Residential Tenancies Act to serve a Notice of Termination and Evict a tenant at a hearing before the Ontario Landlord and Tenant Board. This article attempts to address those situations that fall short of impaired safety and illegal act but flow from the same kind of problem which is a complete lack of housekeeping or hoarding.
To be in a position to deal with a situation of bad housekeeping (i.e. smells, rotting food, pet urine smells, etc.), a landlord first needs to understand the legal basis for dealing with the tenant's poor housekeeping and hygiene. To this end, regard must be had to section 33 of the Residential Tenancies Act which provides that a tenant is responsible for ordinary cleanliness of a rental unit subject only to any condition in the tenancy agreement requiring the landlord to clean it.
It is this section of the Residential Tenancies Act that imposes a duty on the tenant to maintain the apartment that they are renting to a standard of ordinary cleanliness. Hence, for example, uncleaned dog or cat urine, stacked pizza boxes and uncleaned dishes, filthy bathrooms, dirty counters, grime encrusted floors and stoves, piles of dirty clothing strewn about the apartment, or an excessive amount of stuff stored in the unit (hoarding), are all examples of the unit not being kept to a standard of ordinary cleanliness. Of course, the problem lies in assessing what exactly constitutes "ordinary cleanliness". The phrase is imprecise and open to interpretation. It is one of those things that you know it when you see it but providing a precise definition that encompasses all of the potential circumstances is impossible. To that end, my experience at the Landlord and Tenant Board has been that an adjudicator looks at the evidence of the uncleanliness and basically makes a judgment call about whether the state of the apartment is "reasonable". As far as I know, there is no objective test or criteria to measure "ordinary cleanliness" in any of the caselaw under the Residential Tenancies Act.
So, if your tenant is not maintaining the unit to a standard of ordinary cleanliness, what do you do? The first thing is to write the tenant a letter advising of your concern. Perhaps you noticed the condition of the unit on an inspection, a repair, or some other legal reason for having been in the unit. It would be reasonable to set out in the letter how you became aware of the state of the apartment, that you would like it to be cleaned, and that the tenant has the obligation to keep the unit to a standard of ordinary cleanliness under the Residential Tenancies Act. If your lease contains a similar provision you may wish to also cite that part of the lease. Ask the tenant to give you a call to discuss the contents of the letter and in any event to let you know if there is a problem in maintaining the unit to a standard of ordinary cleanliness. It is important to invite the tenant to discuss the issue with you as some tenants are unable to meet the standard on their own.
If the inability to meet the standard arises from a disability a landlord may have a duty to accommodate that disability and the inability to meet the standard under the provisions of the Ontario Human Rights Code. Perhaps you, as the landlord, will have to reach out to community resources to help the tenant get help. Note that accommodating a tenant under the Human Rights Code does not mean that you have to simply accept or tolerate the problem. The tenant is still required to comply with a standard of ordinary cleanliness--its just the manner and method of compliance may be different because of the disability that needs to be accommodated. Asking the tenant if there is an issue is important as it is impossible to accommodate a disability if you are not told about it.
After sending the letter and presuming you hear nothing, you may wish to serve a 24 hour notice of entry for the purpose of inspecting the unit on the tenant. If, as a result of that inspection, you find that nothing has improved, it will be necessary to escalate the matter to a more "legal" level. You will now have to consider whether the problem is such that you need to evict the tenant if the issue is not resolved. If so, you will need to fill out a Form N5 to inform the tenant that the tenancy is being terminated unless the cleanliness problems are dealt with, within 7 days of the service of the N5 Form.
As is the case with all N5 forms, it is very important to include a significant amount of detail in the description of the problem. The form should include: who, what, where, why, and when, in the description and it should also clearly set out what the tenant needs to do to void the Notice. This is a legal requirement and the failure to provide this information will make the Notice automatically void at law (i.e. you will lose at the Landlord and Tenant Board).
A Form N5 is by its very nature a voidable notice. This means that if a tenant complies with the Notice--and cleans the apartment to a standard of Ordinary cleanliness within 7 days of receiving the Notice, then the termination of the tenancy is void and they get to stay. Assuming that the apartment was cleaned, the N5 becomes technically void. However, the N5 remains useful for a further 6 months, in that if the tenant allows the unit to fall below the standard of ordinary cleanliness within the six months following the service of the first N5, you can serve the tenant with a second N5. A second N5 is not voidable by the tenant---meaning you can immediatley apply to the Landlord and Tenant Board for an eviction Order.
If the tenant fails to clean the unit to an acceptable standard within the 7 days following the service of the first N5 you can apply, starting on the 8th day after service, to the Ontario Landlord and Tenant Board for an eviction Order. This is done in form L2.
The hearing and eviction process is not easy. Proving that a tenant is failing to meet the standard of "ordinary cleanliness" requires high quality evidence. Simply saying that the tenant is "dirty" is unlikely to meet the burden of proof (balance of probabilities) that rests on the landlord. If you intend to proceed to a hearing you may wish to get photographs, property standards reports, witness statements, and summons third parties to attend the hearing to explain how the tenant is failing to meet the obligation of ordinary cleanliness under the Residential Tenancies Act. Without compelling evidence the Landlord and Tenant Board is unlikely to evict the tenant.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.pqtlaw.com
Thursday 29 November 2012
41 comments:
IMPORTANT NOTICE
Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Subscribe to:
Post Comments (Atom)
This is exactly what I was looking for Thank-you for this excellent explanation!
ReplyDeletehow do you find an old tenant who damaged my apartment
ReplyDeleteHi: Unfortunately there is no easy way to do so. For most "regular" people it comes down to luck in finding someone who knows the person. The alternative is to retain a private investigator or sometimes even process servers. They often have a "skip tracing" service for which they charge. Success in locating the person is not guaranteed. If you have good tenant information in your file (i.e. copies of identification from the application to rent) then this information can be useful for the investigator in tracing the person (for example, having the legal spelling of the name and a birthdate is very useful information to have).
DeleteIf it turns out to be impossible to locate the person but you still want to sue the person you can issue a claim with the Court and under the right circumstances get the authorization from the Court to serve the person by an alternative to personal service---this can range from advertising in a newspaper to serving parents or even former lawyers. Getting permission to serve as an alternative to personal service is an exception that is not easily obtained as the law prefers and usually requires that a person who is being sued be given notice of a claim.
Michael K. E. Thiele
Hi there. The tenant beside me has a smell of human feces emanating from her apartment into the common hallway and my unit. The building manager has engaged a public health nurse in an attempt to gain entry to the unit to clean the floors and carpets, but has been denied entry by the tenant. This tenant shouts expletives, enters the common hallway unclothed, and is now allowing the filth of her apartment to affect my unit. What steps, if any, can I take to see that this issue is addressed by my landlord?
ReplyDeleteHi: I trust that it is fairly obvious that your neighbour has or has developed health problems that is causing her to live and behave in this way. Your landlord is correct to try to engage a public health nurse. Your landlord is limited in what they can tell you, but I hope that the landlord has contacted the tenant's family to see if they can get her help. The public health nurse should also be in a position to put your landlord in touch with various crisis services. The smell, the shouting of obscenities, being undressed in public, all speak to the tenant being a incapable of living independently. If the landlord is having limited success in getting this tenant help then perhaps a call to the police for assistance is something that should be done sooner than later (you could call police as well advising that there is a tenant who you believe is unwell and that she should be checked on). The police may require her to be checked out medically.
DeleteOnce the landlord has taken steps to get this tenant help, the landlord should be serving the tenant with a Notice of Termination and proceeding to the Landlord and Tenant Board for termination and eviction. The termination and eviction process will likely dovetail with the attempts to get the tenant help. The tenant's help (if it arrives) will likely include a legal clinic, lawyer, or some person (mental health worker) who attends at the Board to speak for the tenant. Through that person the landlord, the Board, and yourself (if you attend) might learn that the tenant has a problem that is being treated. A plan may be put forward that allows the tenant to live independently again and which plan will be supervised by some agency, family member, social worker, etc..
The Landlord and Tenant Board will weigh how the tenant is living and what she is doing against the reason for that happening and the plan to stop that from happening in the future. If the Board is satisfied that the explanation for the behaviour arises out of a disability requiring accommodation under the Human Rights Code and that accommodation may be provided without any real difficulty then the Board will maintain the tenancy with conditions.
If no one steps forward to help the tenant and no one identifies any kind of disability on the part of the tenant and no one proposes any kind of action plan to change the behaviour, and the landlord demonstrates to the Board that the tenant was served with the legal paperwork to terminate and evict and that various social agencies including the police were contacted and advised of the apparent distress of the tenant (and nothing happened) then it is likely the Board will proceed with a termination and eviction of the tenant.
There are lots of variables in the fact scenario you describe so it is impossible to say exactly how the case will move forward. However, I can confirm that simply putting up with the behaviour and the smell is not something the law or the LTB will require of you. It will change or the tenant will be evicted. How quickly that happens also depends on a number of factors, however, it is your landlord that is the driver of the case and depending on how quickly he acts will determine on how much longer this will continue.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
I want to comment on the functioning of Landlord and tenant Board Ontario. This may apply to other Boards as well. I am a small landlord and over years I have seen how the Board is biased against landlords. Not only that the Board is so lazy and taking long time to process eviction cases, it keeps on dragging the cases. I have been harmed by the Board several times and I am feeling so helpless. For example, recently (June & July 2015), I filed an L1 for non payment of rent. Tenant was also present at the hearing. The tenant agreed to make payments by certain dates. The order stated that in case the tenant did not make any payment, the landlord could file for violation under S. 78. The tenant never paid a cent & violated all the terms. I filed L4 with the board. The tenant was clearly in violation and I should have got an eviction order right away. To my utter surprise and dismay, the board fixed another date for hearing after a month. So I will be going to the Board again in August 2015, spending another day at the Board. How unfair? Not only that I will have to appear again for the hearing, the tenant in the meanwhile continues to enjoy living for free. I also have to pay to the Board. So both the LTB and the tenants make a living at the cost of Landlords. Both are parasites feeding on the miseries of Landlords. Small landlords like me get lynched between the LTB and the tenants. Landlord is the only loser in between. LTB should be overhauled and lots of its incompetent and lazy members need to be fired.
ReplyDeleteHi, Michael Thiele
ReplyDeletemy tenant left the rental unit in a very messy situation, the kitchen was all dirty, stove. oven never cleaned in 2 years, broke the fridge compartments, carpet was in such a bad condition that cleaning company advised to remove instead of cleaning, urine in one of the wall/windows, (you could see the windows base filled up with urine) bathrooms never cleaned, there was so much stain that required industrial cleaners to remove stain as regular stain product did nothing. Cleaning crew spent 4 hours just in the oven and half of the kitchen cabinets and 6 more hours in the rest of the house.
Painters used an special pain because all the wall where that dirty that regular paint may not stick.
I do have the last month deposit and wondering how much I can deduct to cover all that mess that I had to pay for plus an entire long weekend I spent cleaning what the cleaning crew did not cover.
Hi: I'm sorry for your unfortunate experience with your former tenant. Hopefully you have fully documented the condition of the apartment and have taken many photos and video. It is helpful as well if you get the various contractors to comment in their invoices to you as to the condition of the premises before they started their work. I presume of course that the rental unit was in normal condition when the tenant moved in.
DeleteThe Last Month's Rent deposit can not be applied to anything other than the last month of rent that is due. If the rent is fully paid up, then technically the Last Month's Rent deposit needs to be returned to the tenant without deduction.
There is an alternative to returning the money but you need to be prepared to take some legal steps. In cases like this I don't think that the tenant really expects to get any money back at all. If you are in touch with the tenant advise the tenant of the amount of money that you are owed for all of the cleaning, carpets, repairs, etc. etc.. I'm sure that amount far exceeds the last month's rent on deposit. Advise the tenant that you would like a certified cheque in the amount of $(whatever you are owed) for the damage, and extra cleaning. Upon receipt of the money you will be pleased to refund the Last Month's Rent deposit. Normally the tenant will simply disappear and hope that you don't do anything else.
If the tenant insists on getting her/his last month's rent deposit back without deduction or payment for damage you will need to decide whether you want his fight or not. If you are prepared to engage in the legal process you can tell the tenant to go ahead and file an application at the Landlord and Tenant Board for a return of the Last Month's Rent deposit. You have no defence to that application because the Board has no jurisdiction over your damages claim because the tenant is no longer in possession of the rental unit. When the tenant applies to the Landlord and Tenant Board you, at the same time, sue the tenant in the small claims court for your damages. Attend at the Landlord and Tenant Board. You can acknowledge that the LMR is owed but advise that you have a claim for damages pending in the small claims court. You can even provide the Court file number. Advise that you are setting off what you owe to the tenant for what the tenant owes you. The adjudicator may not be too pleased or may advise that this is something they can do nothing about as they have no jurisdiction to deal with all of the issues between the parties. If you want to be creative, ask the adjudicator to refuse to hear the application with a direction to the tenant to file a defendants claim in the small claims court. The argument is that the small claims court is the more appropriate forum and the only forum that can hear all of the issues at the same time. A duplication of proceedings-or stretching out proceedings across two forums using judicial resources at the Board and in the Court should be discouraged. Hence it makes sense to dismiss the tenant's application at the Board. If that works, great!
If the adjudicator is not so interested in this argument and simply proceeds to issue an order for the LMR to be paid to the tenant you can decide to simply wait. The tenant will need to pay money to convert the Board Order to an order of the small claims court as the Board order has no enforcement mechanism if you do not pay it. Hence enforcement is through Court rules. If the tenant actually converts the Board order to a small claims court order you would then bring a motion in the small claims court to stay the enforcement of the order or for an order paying the money into court and keeping it there pending the resolution of your small claims court action.
There are a lot of hoops but in the end you would be successful. It is a bonus if the tenant has assets and you can actually get the money that the Court would inevitably award to you after a trial.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi,
DeleteWhat about landlord's responsibilities with regards to apartment preparation for a new tenant?
We moved in a rental apartment (1960s building) that was freshly painted and floors finished.
In couple of days when the smell of floors finish dissolved we noticed there was a smell coming from the walls in dining area. The smell is not a paint smell, but like as if previous tenant cooked something or burnt something and the drywall absorbed it. May be there is some kind of paint reaction. It's been a month already, we twice reported it to super on duty and even called the management. They don't seem to find the problem serious. Superintendent even said "I don't smell anything what would not be normal smell of living." Well, I have never heard this smell anywhere before and I cannot even stay in the dining area with it. It is unacceptable.
Is there any law that would force management to do something about it?
Thank you.
What is a tenant to do when it's the landlord/property management who does not clean the common spaces of the apartment building?
ReplyDeleteMy building hasn't been cleaned in over 5 months since winter. You can imagine the sight and smells that have developed! I've let the landlords/management know over 3 weeks ago, that the building was no longer being cleaned and described briefly the state it's in, but I didn't get a reply.
I've contacted my city (included detailed photos), but they can't do anything because it's not (yet) an issue of the structure of the building. They, "don't do anything to do with cleanliness".
All tenants I've spoken to in my building feel the exact same way. Concerns that have arised are health/germs (hands turn black from touching the hand rails), embarrassment when bringing in family and friends, smells, insect issues that have started... and the list goes on.
I'm stuck on what to do and really don't want to move—my apartment is clean and comfortable and the location is mint. Any suggestion(s) of what to do would be amazing!
I am a landlord with only two apartments that I rent. I have considered in some cases to offer a troublesome tenant a months rent in exchange for them to move and turn over the keys. Is this legal? If so I assume I should do this in writing Correct?
ReplyDeleteHi Marcel: Landlords and tenants who are in a fixed term lease or who wish to terminate a month to month lease sooner than the law allows on notice, are entitled to terminate that lease through negotiation. The fruit of that negotiation, if successful, is a terminated lease. The termination of the lease should be recorded in a Form N11 which form is available on the Ontario Landlord and Tenant Board website. The N11 can set a termination for any date that the parties agree will be the end of the tenancy. The N11 can be enforced by application to the Landlord and Tenant Board.
DeleteIn my view it is perfectly fine to offer a tenant money in exchange for giving up their lease. In fact, from a contractual perspective I think you need to give the tenant something to acquire their rights under the lease. In legal terms--contractual legal terms--it is called an exchange of "consideration". Without "consideration" you can't have a binding contract.
Over the years I've come across some arguments that it isn't "legal" to buy out a residential lease. That, I suppose, is a view but I don't subscribe to it as landlords and tenants need the practicality of negotiating ends to leases that are indeed a different way of ending a lease than the RTA provides.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks Michael I appreciate your feed back
ReplyDeleteHello Mike. How are you? Remember me?
ReplyDeleteI'm starting to think that part of my raison d'etre is to entertain you with my misadventures.
I am evicting a hoarder tenant from my Winchester income property.
She moved in with too much stuff 2 years ago and I have been doing everything I can to help her deal with the problem ever since...I even helped her organize getting a charitable org to send a truck and strong men but, when push came to shove, she parted with just a few boxes.
The upstairs 2 br apt is piled throughout to within 2 ft of the ceiling.
The front door staircase is filled and blocked with stuff.
From the back door, she has a narrow litter-strewn path between the piles that gives her access to the kitchen, the bathroom and to a seat on the couch in the living room...that is where she lives.
Neither bedroom is accessible.
She has 2 male unfixed cats. They do what they want where they want. My commercial flower store tenant has complained of the cat smell.
I went through the LTB steps, had a hearing, she was given a month, I filed an L4.
Monday she was supposed to be gone.
Yesterday (Tuesday) I was about to go to Cornwall to organize the sheriff visit.
The LTB called just as I was leaving and she had asked for and received a motion to set aside the ex parte L4 order.
Hearing is set for Apr 14th .
My questions:
1. Do I get to see her request (S2) and the "request to extend" that she must have submitted (my L4 affidavit is dated March 4th...much more than 10 days.)
2. Can I send in an inspector of some sort to officially say that (in the words of my favorite lawyer-guide):
"...Some of these cleanliness issues lead to fire-code problems as "hoarding" makes the rental unit inaccessible or a danger to firefighters and anyone who needs to get around the unit in an emergency. Issues like this constitute an illegal act and/or impaired safety, both of which are explicit grounds under the Residential Tenancies Act to serve a Notice of Termination and Evict a tenant at a hearing before the Ontario Landlord and Tenant Board..."
3. I have pictures of the mess that I took when I had to enter to deal with a plumbing problem and she was not there. If I use them, do I get in trouble for being in the place without giving notice?
Thanks for any advice.
Jamie
Hi Jamie: At least life is interesting for you! With respect to your questions. To get the documents you are going to have to ask for them. As the documents are typically scanned you can ask for them at any LTB office (i.e. pick the nearest one).
DeleteAs long as she is a tenant in the premises you each retain your respective rights and obligations under the RTA. This means that you may indeed enter on 24 hours notice in accordance with the RTA. The eviction order and current proceedings don't prevent you from exercising your rights and obligations under the RTA.
With respect to the third issue you are likely fine. I presume your presence in the unit was due to an emergency--plumbing leak? There might be an issue raised about taking pictures during an emergency plumbing entry of non plumbing issues. That being said, the pictures are still likely admissible even if objections are raised against them.
Good luck
Michael K. E. Thiele
Thanks for the reply, Mike!
DeleteI have now seen her S2 form.
She claims that she has been unable to comply because of no heat all winter.
This is nonsense since:
1. The duplex has only one furnace and there have been no complaints from the flower store downstairs.
2. Until this form, she has never mentioned the problem.
3. The place was warm when I was there to fix a plumbing problem on a frigid day in February.
4. If there was any problem with heat getting into her apartment, it would be because every square inch of floor is covered with piles of stuff...including the heat vents.
Is the an LTB equivalent to perjury?
Is there an LTB process for me to try to get her stay stayed because she has made up an excuse?
Who do I get to inspect to say the place is a danger? Fire department?
She has no phone. Can I stick my 24 hr request to enter on her door?
Thanks.
Hey Mike!
DeleteHope you are having a great summer.
A bit of closure on my hoarder tenant file, for your entertainment...
Finally dislodged her from my apartment this spring.
She left everything.
So I, and two young recruits, have been excavating the site ever since (as one of the 5-7 things I am currently doing).
60+ large garbage bags of clothes had to go to donation bins to make room to sort stuff for a charitable "2-men-and-a-truck" currently planned 3-day (!) pick-up next week.
So far we have:
- 40+ boxes of books.
- 10+ large leaf bags of fake flowers.
- Xmas stuff - 10+ huge boxes (3'x3'x5'high) and 10+, 45 gallon drum, construction-grade garbage bags stuffed...including at least 6 large fake Xmas trees.
- Craft stuff - every craft imaginable...10+ large leaf bags.
- 40+ boxes of kitchen tools, cutlery and glassware and pots and pans.
- 300+ light-bulbs.
- 2+kms of led Xmas lights of every shape and colour.
- At least 1 km of cheap extension cords...never used.
- Trinkets in glass, porcelain, plastic and everything else... 30+ eight cubic ft boxes so far...mostly small forest animals, angels and cherubs.
- 20+ bags of stuffed animals and dolls of every size.
- A small army of better quality dolls that seem to have value on e-bay.
- An incredible number of "get-your-life-organized" products like closet organizers and Tupperware-type stuff and under-bed storage...all still in its wrappers...very sad.
- 60+ random rolls of wallpaper.
- 6 dump-runs so far (in my huge truck) of recyclables and garbage.
And it just goes on and on...
The engineer in me just had to do the math:
My 650 sq ft, 2 br apt, piled an average of 5' high throughout, means I have about 120 cubic yards of crap to extract...that's about 10 tandem dump-trucks-worth.
Damn, I wish I hadn't thought of it that way!
Nice to e-chat with you.
I admire the good you do for the world!
You make a VERY good difference.
Keep it up.
Cheers and thanks again.
Jamie
;)
We are ending a lease on an apartment. we cleaned the apartment and have had third parties inspect the place to insure we are leavinv the apartment in good condition. However The landord will not be able to inspect the place before we leave. What may happen if he says there is a cleaning issue but we are no longer living e.g a pillow or cushion is soiled? Will the former tenants be required to address any issue?
ReplyDeleteHi: Before you leave confirm in writing to the landlord (via email or text) that you wanted him/her/it to conduct a move out inspection but that the landlord was unwilling or unable to do so. Confirm in writing that you have cleaned the premises, that a third party has come through the unit to inspect and that the unit is clean and in good condition without any damage. Obviously keep the email. The landlord, in theory, has two years to sue you for any damage to the rental unit. The landlord will have to prove the condition of the unit at time of renting and the condition of the unit when it was returned to him/her/it. Make sure to have pictures of the unit and video so that you are able to prove the condition of the unit at the time of returning it. You can't stop a landlord from suing you but you can put yourself in the best position to win the case. Gathering evidence, having third parties inspect, and confirming this to the landlord in writing all goes in your favour.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much Michael for sharing your insight with us.
DeleteHi Michael, this is a bit different from the issues you've been good enough to discuss above.
ReplyDeleteI have a tenant that uses scents/fragrances ad nausea that permeate the entire building. I have a tenant that is complaining about this.
Do you have any suggestions on what my obligations are and what I can reasonably do?
Thanks in advance..... Greg M.
Hi Greg: You asked this question after one of the other articles--perhaps you lost track of it. Anyway, here is the answer-reposted. Mike
DeleteMichael Thiele18 July 2016 at 11:19
Hi Greg: This is a tough one. Forget for a moment that it is "air freshners" and think of it as "loud music", "shouting", "partying", or something similar. If that were the case you would have no problem issuing an N5 for substantial interference with reasonable enjoyment and the tenant would be required to stop the offending behavior or risk eviction. If you have an air-freshner problem that rises to the level of shouting, partying, then an N5 may be in order. How extreme is this air-freshner issue?
If the use of the air-freshner is reasonable and the whole place doesn't reek of an artificial scent then things are more difficult. Some things coming from a neighbour's unit simply don't amount to "substantial" interference. "Talking", "normal level t.v. sounds", "cooking smells", creaking floor boards from walking, water running, flushing sounds, all of these can be annoying sounds to neighbours but they are the sounds and smells of apartment living. You can't expect to have the same level of privacy and seclusion in an apartment building as you would have in a single family house or by living in the country. Some things are simply just too bad.
I think it is probably important to understand how the smells are going from one apartment to the next. Is there a HVAC solution to the problem? What are the units sharing air and can something be done to stop it. Is it possible to introduce more air, perhaps by mechanical means, into the unit receiving the air-freshner smell? Perhaps there is a solution in caulking, blocking something off, etc.. Of course, if the apartments are sharing a forced air system--i.e. same duct work, there is really very little that you will be able to do. Perhaps the tenant using all of the air-freshners would agree to stop?
As the landlord you need to investigate the complaint and determine in your judgment whether the issues complained of reach the level of a substantial interference. If so, you can seek to compel the tenant using the air-freshners to stop. If the behavior is reasonable and/or the tenant being bothered is being over-sensitive then perhaps your conclusion is that nothing can be done. Obviously investigate if sharing of air can the altered. Beyond that there isn't much else that I can recommend.
Note that "scent free" is an issue in many workplaces and it attracts Human Rights Code attention. I haven't seen the issue in a landlord and tenant context as you describe it here, but if it did come up it would be important to explore solutions and document the investigation and the possible things that could be done.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there - my new landlord is undergoing renovations in our small apartment complex which includes upgrades to my small unit. What I have found over the course of the last few months is that the tradespeople have left my apartment dirty. I've been responsible for picking up after them when they leave for the day. I've addressed this with my landlord multiple times face to face as well as via phone and text message. Last week, after a tradesperson used something from my apartment and it was taken out of my apartment I addressed this with them stating that I'd appreciate if my things were left alone and my apartment was properly cleaned up after. I cited the section in the Tenant Act saying that it's MY responsibility for the apartment to be kept clean, but when is it their responsibility? This week they installed new windows; however they (window installers and landlord), failed to leave a drop cloth. After a long day at work, I went to get into bed and my whole bed was covered in black dirty film (I have pictures). When does it stop being my responsibility (both legal and moral) to pick up after the mess of tradespeople my landlord hires? I'm legally obligated to pay him every month without holding back my rent, but what's my right when my things are touched, not looked after properly, dirtied, sullied and I'm responsible for picking up after everyone? Any help with this matter would be appreciated. Thank you.
ReplyDeleteHi: Thank you for writing on this topic. Your obligation to maintain your unit to a standard of ordinary cleanliness is with respect to your own use of the premises. Section 33 of the Residential Tenancies Act (the ordinary cleanliness section) does not make you the landlord's housekeeper. Given that you have complained to the landlord and you have pictures I think it is fair that you demand compensation from the landlord for the time you spent cleaning up after his trades. Figure out what charge you think is fair and advise the landlord that he owes you this amount of money as a rent abatement. The landlord will of course agree or disagree. If he disagrees you can then decide how to pursue the claim. You could simply deduct it from the rent and dare the landlord to start a non-payment of rent application and argue the issue at the Board if the landlord files an application with the Board, or you can continue to pay your rent and instead file a T2/T6 application to the Board explaining what has happened and request an abatement of rent. I have no doubt that you would win an abatement if you have the evidence of the mess that your unit is left in. This is just not acceptable.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi. This is a great find. So the people who moved into the second floor of a 3 floor building have at least one cat, at least 1 snake and some massive body odour. I can't open my windows because the smell wafts up from their open window and makes me want to throw up. The halls in the building now stink to high heaven and other tenants are complaining as well. We can hardly usethe halls and now everyone is using the fire escape just to stay out of the hallway. What can we do about these people?? It is truly disgusting
ReplyDeleteThank you
HI: It is your landlord's responsibility to deal with this problem. You and your other neighbours should complain to the landlord in writing about the problem. Describe in your email/letter how the smell is impacting you and your reasonable enjoyment of the premises and demand that the landlord take action.
DeleteYour landlord should investigate the complaint and then serve the tenants with a Form N5 for substantial interference. If the tenant's correct their behavior they will be entitled to stay. If the behavior is not corrected then the landlord can apply to the LTB for an eviction. With respect to the smell the tenants have an obligation to maintain the premises to a standard of ordinary cleanliness. Presumably the body odour and the cat (litter box) and snake are contributing to the smell? It must be pretty bad if you can't even use the hallways and the smell enters your unit from outside through open windows. The landlord should have no trouble verifying the issue on investigation.
Make sure to keep copies of your written complaints. If the landlord fails to take action then you will actually have the right to take action against your landlord. The landlord is obligated under the Residential Tenancies Act to do something about your legitimate complaints about other tenants.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Can someone other then the landlord complain about the smell coming from a unit? Especially when it is effecting their health?
ReplyDeleteHi: The answer to this question depends on what you mean by "complain". Only a landlord may bring an application to the Ontario Landlord and Tenant Board to evict a tenant for substantially interfering with the reasonable enjoyment of the premises by other tenants (i.e. because of the smell). Other tenants can't apply to evict a tenant. Aside from applications to the LTB I suppose other tenants/neighbours could sue in nuisance for these smells but I doubt that this would be the way you would want to go. The job belongs to the landlord and if the landlord does not take action then you can take action against the landlord (presuming s/he is your landlord as well).
DeleteMichael K.E. Thiele
www.ottawalawyers.com
My new property manager just failed my yearly inspection and stated I'm a level five hoarder on the one to nine scale, I need to clean more, and my home is a fire hazard. Because this is in stark contrast to the state of my home, I asked him to be specific. He said he would send a letter. I was beyond irate. As soon as he left my home, I took pictures of my entire house, sent them all in an email along with a complaint.
ReplyDeleteGranted, I've read that hoarders are usually in denial. So hearing me say I'm not a hoarder is a typical response. However, I'm truly not a hoarder. I sent the same pictures to numerous friends and told them about the situation. Everyone is just as confused as I am.
What steps can I take? I have been taking pictures of my home every day since the inspection as a means of proof. I'm currently waiting to hear back from my insurance company regarding a possible home inspection as a safe guard for myself, due to the property manager's claims.
Oddly enough, other neighbours I have spoken with have assured me that the manager never went to the upper floor of their home. And those whose homes are in "worse" state than mine informed me that the manager never said a word to them about the condition of their home. Just as well, the manager specifically made a b-line for the upper floor of my unit and never stepped foot into the living area or kitchen. Didn't even inspect the utiluty room or appliances. And he most definitely missed a lot of issues requiring serious work in my unit. Including, but not limited to, black mold, structural damage due to shifting foundation, half assed repairs prior to my tenancy and during, rotting window ledges, poor weather stripping, faulty doors and knobs that jam or break and leave us trapped in or out of rooms, poor insulation, so on and so forth. But I digress.
I'm sure someone out there has had a similar experience with false claims from landlords. Do you have any advice?
Hi Sylvia: Your duty as a tenant is to maintain the rental unit to a standard of ordinary cleanliness (section 33 Residential Tenancies Act). If the landlord wants to allege that you are in breach of this section the landlord will need to serve you with an N5 (Notice of Termination). That N5 is voidable and it must provide you with sufficient detail to know what the landlord objects to and what is needed to be done to void the notice. The form further provides that if you disagree with the allegation that you do not need to move out or change anything. The landlord will then be in a position to file the application with the Ontario Landlord and Tenant Board. There you will get to argue and prove that you meet your section 33 obligation and are not in breach. There is a lot of "room" to argue and prove this and the adjudicator, even if they find you are in breach, can order you to do certain things to avoid eviction.
DeleteThe evidence you are collecting is great. Pictures over an extended time showing the condition of you unit will be helpful (as it proves how you normally live). The key, for a hearing, however will the condition of the unit during the 7 days following service of the N5 (that is a voiding period). So, while collecting ongoing evidence is useful, you do not have to be on pins and needles the entire time.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hello there!
ReplyDeleteMy girlfriend just notified me that her landlord has threatened to evict her and her sister(they live together) because he is stating that her apartment is too dirty. This is simply not the case. On any given day her apartment has minor messes, couple dishes in the sink, garbage waiting to be taken out that evening, etc but by not means is it so dirty they should be evicted. They sweep and vacuum daily, clean kitchen and bathroom weekly and are just generally quite neat people. My place is certainly more messy. I'm a little confused where this could be coming from to be honest. They live in a three story low rise, restaurant on the ground floor(owned by landlord) and maybe 10 apartments in the entire building. he told her that if they don't inprove by the next time he is there that they will have to leave in february. I'm actually not sure what to tell her.. not sure how they can be more clean. should they ask, specifically what he'd like cleaner or take some other sort of actions..? please help, i want to be able to give her good news, they are very intimidated.
Hi: The landlord is not allowed to simply say clean up or you're out by February. Such statements could be seen as harassment and threatening. Depending on the manner in which this is delivered to your girlfriend's sister it could be the subject of a tenant application against the landlord. The landlord, if he does have serious cleanliness concerns, should follow the proper procedures. Those procedures will include serving an N5 and alleging that the tenant is in breach of her section 33 (ordinary cleanliness) duty. The tenant then has days to correct the alleged problem. The good thing about the N5 is that in order for it to be valid it must provide sufficient detail to allow the tenant to know what the cause of concern is. Insufficient detail makes the N5 invalid (this is law based on an appellate decision in Ball v. Metro Capital). Presuming the complaint by the landlord is just nonsense, your gf's sister should take lots and lots of photos of her place. Try to get an independent person to walk through who is prepared to testify at a hearing that the place meets a standard of "ordinary cleanliness". Note that "ordinary cleanliness" is not a defined term---it relies on common sense to know what it means.
DeleteIf the landlord still feels that the "ordinary cleanliness" requirement is being breached he must bring an application to the Ontario Landlord and Tenant Board and prove his case. He is not allowed to just demand vacant possession. An adjudicator will then determine whether the standard is breached and further determine whether to evict or some other remedy. Eviction for lack of cleanliness is not automatic.
Your girlfriend's sister should not be too worried. Collect evidence, have people look at the place who would be good witnesses (heck, even call in property standards from your town/city--if you can get them to look at it) and be able to prove the condition of the place. The landlord has the burden of proof to establish a breach of section 33---his simple say so is not enough. He must prove with clear, cogent, and convincing evidence that the standard of "ordinary cleanliness" is being breached.
Hope that puts her mind at ease.
Michael K. E. Thiele
www.ottawalawyers.com
Hi I have a messy tenant who is not keeping the apartment in ordinary cleaned. On the N5 which reason I pick is it reason 2 ?
ReplyDeleteThank you
Hi: I would pick Reason 1. I would assert that the tenant is breaching section 33 of the RTA by not maintaining the unit to a standard of ordinary cleanliness. That breach is likely causing interference with your lawful right interest or privilege or perhaps the smell, attraction of vermin, or something else (fire code issues?) is interfering with the reasonable enjoyment by other tenants or yourself. Reason 1 allows the tenant to void by correcting the behaviour. This seems to be the correct reason for cleanliness issues. Reason number 2 is about damage.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael
ReplyDeleteI had a hopefully quick few questions for you. My landlord has decided to sell and brought real estate agents through.
1) My landlord has demanded that I remove items she deems as "clutter" such as a guitar in a stand, a cat tree, and a workout step. Can she force me to remove my personal items from my apartment if they in a clean condition?
2) She has said that my apartment is dirty and is hiring a professional crew to come and clean the place at my expense. I have had several people tell me my apartment is exceptionally clean. All floors, counters, tubs, tiles, mirrors were cleaned the day before she came. She sees 1 or 2 water drops on a mirror and freaks out. She also didn't give me any notice that she thought it was messy to allow me to rectify whatever it is she thinks is dirty, just straight to the pro crew and invoice. Can I refuse entry to the cleaning crew? I have a cat and don't want unknown chemicals used in my apartment.
3) I have a squat rack and bench in my spare room to use as part of my fitness routine. Can she force me to disassemble it and remove it from the apartment? It is very clean and is on a rubber flooring. I've had no complaints and no damage to the apartment.
Thanks
Hi:
DeleteHere are the short answers based on the Ontario Residential Tenancies Act:
1) No, she is not permitted to make you remove personal items from your apartment.
2) Presuming that landlord cleaning the unit is not in the lease, you may refuse entry to the cleaners. Certainly she can't make you pay for them. It is perfectly reasonable to not want unfamiliar cleaning products being used in your home.
3) No, she can't make you disassemble it.
To protect yourself against nonsense allegations I recommend that you video and take pictures of the condition of your apartment on a regular basis for the next while. Just camera phone, snap a bunch, just so you can prove that the place is clean and meets the standard of ordinary cleanliness (section 33 RTA). Beyond that you may comfortably tell your landlord to get lost with her other demands.
Your experience is again reflective of a very short-sighted landlord. I don't know what makes landlord's behave so stupidly. Why not come to you and acknowledge that real estate agents will be tramping through and disrupting your life. Offer a month's free rent, a discount, or something for your trouble. Why not ask you to help with staging the unit for sale, advise that a less cluttered place would make the property more attractive for sale and ask for your help. Perhaps you would do so for free. Perhaps, if she wants the gym equipment packed up she can pay for storage and perhaps a gym membership during the listing and sale process. Whether it is exactly these things--more or less, the point is that many tenants, like yourself, are quite reasonable and willing to cooperate. There is no need to behave so harshly--and in your case illegally.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
ReplyDeleteHi Michael!
We have lived in this apartment building for 25 years, and never had a problem with management until now.
It was in May when they entered our suite for basic maintenance, and that same day we got a letter stating that the upkeep of our apartment was not up to par. We were shocked and upset by this, as we never had problem with this with previous management. We have also always paid the rent on time (and at that point in person). When the inspection came, we thought all was satisfied. They made suggestions, and we had some other maintenance done, things that should have been fixed years ago.
We got another letter last week (October), after some basic maintenance was done, stating again that our apartment was not up to par, with another deadline, with the threat of eviction. As a note, nothing had changed from the last time we cleaned up, it was still up to par from the last time they entered.
According to the Laws:
Obligation to keep unit clean
70 A tenant shall maintain ordinary health, cleanliness and sanitation standards in the rental unit and the residential complex.
By whose definition is health and cleanliness and sanitation standards? Because there is no pleasing them.
We feel that we are being harassed and bullied plus we don't appreciate the threats. We have cleaned up more, and there is nothing in this apartment that could be a fire hazard.
We also emailed the head office and they never got back to us. They inspect next week, and this had been stressful for the both of us.
Any help on how they can leave us alone would be appreciated.
Thank you in advance.
HI:
DeleteFirstly, I want to make sure that you are in Ontario, Canada? This blog relates to the laws of this Province only. In Ontario, the cleanliness standard is set out in section 33 of the Residential Tenancies Act. It states as follows:
33 The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.
The question is what does "ordinary cleanliness" mean? There is no definition in the Residential Tenancies Act of "ordinary cleanliness". The interpretation of the meaning is left up to adjudicators who presumably will apply common sense when looking at photographs and perhaps even on a site visit. In my experience, "ordinary cleanliness" is a fairly low standard and it takes quite a bit to breach this standard. Again, my experience reveals the section being breached when the unit has biological contaminants where there shouldn't be any (feces, urine) whether human or animal. If food debris is strewn about the apartment attracting pests. Hoarding also will breach this section. IF the condition of the unit causes risks to others in the building or to other people who might have to enter the unit then this too can be a breach of "ordinary cleanliness". Extreme odour problems can also be a breach.
Being messy, having clutter, having unique decorating choices, being a poor housekeeper or having junky things laying about (a matter of perspective I know) are not breaches of "ordinary cleanliness". The point of this standard is not to impose a military style uniformity on unit organization. The range of how people live in their space is significantly wide (again--as I've seen from my experience). There is a lot of room, within the abstract nature of this standard for many different ways of living. It is entirely true that there are units that meet the "ordinary cleanliness" standard that a great many people would find utterly disgusting and unacceptable. The point, again, is not to impose a uniform standard of living---the range of "acceptable" is wide.
My advice on this issue follows the same theme when speaking with tenants. Get objective third party opinion from someone you trust. Your own view is biased and living within the space you may be blind to the objective view of the condition of your place. Then, check out hoarding websites to see what qualifies as hoarding if this is the concern. Then take a look at fire Marshall considerations of what constitutes a fire hazard in the unit (again a big issue when it comes to hoarding). If the issue is cleanliness then I think you can gauge whether you meet the standard if a "stranger" of ordinary disposition would be comfortable being in your kitchen and making food for themselves with your pots, pans, plates, etc.. If that stranger would feel the need to clean for a couple of hours before cooking---you have a problem. The same can be said for the bathroom---would a stranger be comfortable using the facilities in the condition that they are in. If the answer is "no"--you have a problem. Again, would a stranger be comfortable sitting on any surface in your unit--if the answer is "I'd rather stand" even if they haven't sat down all day then you have a problem.
As for proving that your unit meets standard--if you are taken to a hearing there is nothing more compelling than photographs and video. Beyond that, be ready for a surprise inspection from the adjudicator--and that adjudicator can be considered this "stranger of ordinary disposition" and if he or she would be comfortable in your unit then there is no problem.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy son moved into an apartment 5 months ago with his girlfriend. Their landlord received a noise complaint about them from the apartment below for a problem at 4am when they were sound asleep. It is apparently the second complaint the landlord received but the first my son has been notified.
The landlord is threatening that they MUST take my son "to court" if they receive one more complaint. They have made no attempt to validate the complaint and the complaint itself is "their evidence" of noise issues.
This is his first apartment. The complaining tenant appears to be going through some personal problems. I am reasonably confident my son and his girlfriend are not creating "excessive noise" (term used in the Kitchener Ontario bylaw guide). His other neighbouring apartment has indicated they have no complaints about excessive noise from them.
Right now it seems the complainant has all the power to get him evicted unfairly.
I appreciate any advise you have on where to go and what to do.
Thanks in advance.
Hello, my neighbors in the downstairs unit are not very clean. Clothes all over. Garbage left in the unit for a month or two at a time. Can not see the floors. A very bad smell coming from there as if it smells like someone died down there(no, they are ok as we see them everyday). This has been going on for a year. The landlord is aware of everything and emails have been sent many times over the year. CAS has been called as the children themselves are always dirty and smell as if they never bath. What should we do? and can I withhold my rent(not that I have, but I want too). I even explained to my landlord that i am well aware of the section 33 of the RTA and N5
ReplyDeleteHi, This is a difficult problem to solve in the current circumstances as the Landlord and Tenant Board is not scheduling cases very quickly (i.e. there is an extraordinary delay with no end in sight). This reality (i.e. the delay), is why withholding rent is becoming an option that many people are considering. Technically, and properly, the Residential Tenancies Act and the Ontario Landlord and Tenant Board frown on self help strategies of withholding rent. The RTA and the LTB expect you to continue to pay your rent and instead file a tenant application against the Landlord and have the LTB give you a remedy.
DeleteOf course, how reasonable is it to keep paying, keep suffering, and wait indefinitely for the LTB to schedule a hearing? I think that is a fair question these days (and which has been a fair question for the last 3 years).
I will not recommend withholding rent to get action from your landlord. However, I can explain what the legal processes are if you do. From there you can decide what you might be willing to take on.
If you withhold rent to complain about the smell and lack of sanitation in the building you will presumably inform the landlord that you are not paying rent because he is not taking action to deal with the problem. The landlord, in not getting rent, may then be motivated to act. The landlord may disclose to you that he has in fact served an N5 on the tenants and that he is waiting for a hearing. Or perhaps he will tell you nothing. Or perhaps he has done nothing. In any event, the non-payment of rent will get his attention and then he has a choice to make.
The landlord could decide to serve you with an N4 (Notice of Termination for Non-Payment of Rent). You would have 14 days to pay, and then if you don't, he can apply to the LTB for a hearing. Prior to that hearing date you could indicate that you intend to raise as a defence the failure of the landlord to deal with the sanitation issue. You are permitted to raise this as a defence pursuant to section 82 of the RTA. More importantly, the defence under section 82 also permits you to claim a rent abatement and any other Order that you could have sought had you filed an application with the LTB.
The result is likely that the landlord gets an Order for the rent arrears but also that you get a set-off against that order for the rent arrears for what you would otherwise have been entitled to. In some circumstances, the landlord's application could result in an Order requiring him to pay you more than what you have to pay him. The Order could also require the landlord to make specific changes etc.. Of course, it can go badly the other way too and perhaps the adjudicator doesn't accept your story or the landlord has a "good" defence against your claim. If that is the case you will face an Order terminating your tenancy for non-payment of rent for the amount of the rent arrears plus the filing fee that the landlord paid (usually $186).
You can see that the penalty for withholding rent is an Order requiring you to pay it plus the filing fee. Under every circumstance you are entitled to pay the Ordered amount and your tenancy will continue. The Order, in that sense, is mandatorily voidable. In this sense, the risk would seem to be low, unless of course you spend all the withheld rent money and are unable to pay the arrears when ordered.