At the beginning of every tenancy a landlord should be going through the empty rental unit with the new tenant with a checklist. This checklist, that the tenant will be required to sign, is part of the move in inspection. Along with the checklist, a few digital photos stored on a cheap memory stick showing the condition of the floors, walls, bathroom, kitchen, etc., are also good to have. The checklist, along with the photos, establish a baseline of the condition of the premises that the tenant received when they moved in.
Why is this important? It is absolutely necessary for a landlord to be able to establish the condition of an apartment when a tenant moved in because the tenant is only responsible, in law, for any damage or excess wear and tear of the rental unit caused by them. If a landlord is unable to establish what condition the tenant received the unit in--then it becomes very difficult for the landlord to establish that the tenant caused any damage at all. It is not uncommon for tenants to defend a landlord's claim for damage or excess wear and tear by stating that the unit was run down and that things in the unit were already damaged. The move in inspection, the checklist, and the photographs takes this argument away from a tenant.
So, presuming that there is good and clear evidence of the condition of an apartment at the time the tenant moved in--what is the tenant's obligation as to maintaining the condition of the apartment and the things in it? The Residential Tenancies Act requires that the tenant maintain the premises to a standard of ordinary cleanliness (as per section 33 RTA).
Is there a duty on the tenant to maintain and perform minor repairs in the apartment? In short, the answer is not really. The duty to maintain the apartment (repairs etc.) is imposed on the landlord in section 20 of the RTA. It is fair to say that there is no ambiguity in the law about who is responsible for maintaining a residential rental property in Ontario---it is entirely the Landlord! A landlord can not avoid the obligations imposed by these sections of the RTA by including contractual language in the Lease that shifts the maintenance obligation to the tenant. I have seen a number of leases where clauses are inserted saying the tenant is responsible for minor repairs under a certain dollar amount, is responsible to change lightbulbs, leaking taps, plumbing back up (i.e. they must call and pay for a plumber). If there ever was any question if these types of responsibility shifting clauses are legally effective the question, I think, was settled in Montgomery v. Van where the Court of Appeal makes it clear that shifting the responsibility for maintenance to the tenant--in the lease itself---is illegal and void.
What then does the law say the tenant is responsible for? That answer is found in section 34 of the Residential Tenancies Act which provides that a tenant is responsible for the repair of undue damage to the rental unit and the complex whether caused wilfully or negligently by the tenant, occupant, or other person permitted by the tenant to be in the residential complex.
The phrase "undue damage" appears repeatedly in the Residential Tenancies Act in various sections. Unfortunately, no where in the RTA is the phrase defined. As there is no definition in the Residential Tenancies Act we can take a look at Board case law, Court case law, as well as dictionary definition of the common meaning of the words that make up the phrase. If you go through the process of trying to find a clear and static definition of the phrase you will be disappointed. In my experience, the meaning of "undue damage" is determined by looking at the facts of the particular situation in context.
Clearly, the phrase undue damage incorporates the notion of what we understand to be "wear and tear". Undue damage, by definition, allows for the tenant to cause some damage to the rental unit for which s/he would not be responsible. Where along the spectrum/range of zero damage to complete destruction does the liability for damage arise?
In my experience, a specific answer can not be provided without looking at a specific question. The best answer you can get, on a general basis is that reasonable wear and tear does not impose liability on a tenant for the repair of the item. On a specific basis, you need to ask the question with regard to a specific damaged item. For example, a hardwood floor, newly installed at the time that the tenant moved in, that was onsite finished by the flooring company, has been scratched by the claws of two medium sized dogs. The floor needs to be completely refinished notwithstanding that it was only installed one year ago. Is the tenant liable for the cost of refinishing?
The argument for the tenant is that the dogs are permitted to be in the premises by law. There is nothing unusual about the dogs, they didn't disturb anyone, they were groomed regularly and claws clipped as needed by a professional dog groomer. Other than getting rid of the dogs, what else was the tenant to do?
The argument for the landlord is that the floor was brand new. The Regulations to the Residential Tenancies Act recognize that the finish on a hardwood floor is supposed to last 20 years (see schedule to regulations setting out useful life of things here). The flooring is so scratched that the finish has gone hazy white. The tenant, while lawfully entitled to have pets, bears the responsibility for the damage caused by the pets. The right to have pets does not mean that there is the right to have the pets cause damage for which the tenant is not liable.
In contrasting the two positions I hope that you can see that the issue is one of reasonableness using certain known parameters such as useful life and normal and intended use. That same floor, if severely scratched over 15 years, would likely transfer no liability for refinishing on the tenant in the same way that a few small scratches on the floor, even after only a year, would also not attract liability. A landlord has to expect that a rental unit and the things inside it will be used and "used up" over time.
Once you decide that there is liability for a repair (i.e. there is "undue damage") the next question is what should the tenant pay. Should the tenant pay for 100% of the costs to refinish the hardwood floor? A reason the tenant should not pay for 100% of the floor may be that the landlord already got a number of years of the useful life out of the floor. If the landlord already got a number of useful years out of the floor why should the tenant be expected to pay for a new floor that gives the landlord 20 years of useful life? Put another way, what was the value of the floor that the tenant damaged. Doesn't fairness dictate that the tenant only needs to pay to give the landlord a floor with the same number of useful years left on it that was damaged and not a 20 year floor?
A landlord should not expect that the Landlord and Tenant Board will order a tenant to pay for 100% of a brand new anything if the landlord ends up with something better than what they started out with. With respect to repairs to items one can expect closer to getting 100% of the cost if the work essentially puts the landlord back into the position they were in. For example--the costs of patching, sanding, and painting over holes that have been punched in the wall are likely to be reimbursed at 100% of the expense.
In my experience, contested litigation over damage caused by a tenant is rarely cut and dried. Items in a unit were rarely in perfect condition at the commencement of a tenancy and there is always the fact that a degree of damage is expected (and exempted under the legislation) as the items in an apartment get used up over time. When deciding whether to pursue a claim at the Landlord and Tenant Board, Small Claims Court or for claims over $25K in the Superior Court of Justice, a landlord should look very carefully at the nature of the damages and think about current values, useful life, replacement costs, and reasonable wear and tear. Just because it costs a bundle to fix or repair something does not mean that the Board or the Court is going to make the tenant pay.
Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada
www.pqtlaw.com
Landlord and Tenant Law questions answered for tenants and landlords by Ottawa lawyer Michael Thiele.
Sunday, 17 March 2013
316 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.
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Is there any recourse that a landlord can take, other than going through the trouble of suing the tenant? What if the damage is $500 - hard to justify the time to file a lawsuit, for example.
ReplyDeleteHow would a landlord even find out where a tenant moved to, in order to file the paperwork?
Hi: It's likely a write off. Some landlords report a debt to a collection agency and then the collection agency tries to locate the tenant and make demands. The problem is that without a judgment/order this can become a bigger headache than it is worth as the tenant will deny the legitimacy of the claim and then threaten litigation of their own. With respect to locating the tenant--that is difficult. Using the details in the tenant file one can retain a private investigator to skip trace the tenant. The cost is prohibitive given the claim amount of $500.
DeleteMichael K. E. Thiele
Can a landlord sue you 2 years after you've moved out, claiming you owe for lost rent and damaged carpet? The carpet was damaged when I originally moved in but they didn't fix it until after I moved out. They don't have any pictures just a bill for the flooring. I gave 60 days notice but was able to move out a month early, the landlord at the time knew and said it would be fine but now they want me to pay for the rent lost that month.
ReplyDeleteHi: The Limitations Act, 2002, does apply to claims arising from a landlord and tenant relationship. To answer your question you may wish to review the statute as there is some nuance in the law depending on the circumstances. That being said, there is a general limitation period of two years which can be found at section 4 of the Act. It provides as follows:
Delete4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4
If you have been sued you should assert this limitation defence in the Statement of Defence and then defend the merits of the claim in the alternative.
Best of luck.
Michael K. E. Thiele
Hello - we've lived in a building for the past 4 years. Up until now its been a good relationship with the building management but now that we have given our notice they are suggesting that we are on the hook for several, small charges - $75 to patch where our pictures were hung and $125 to paint (we did no painting since moving in under threat of having to pay $225 to repaint once we left). Do they have a right to request this?
ReplyDeleteMy understanding, which seems to be reinforced by the info on your web site, is that normal where and tear is to be expected.
Am I correct in my understanding?
Hi: You are correct in your understanding. Nail holes from pictures are "normal wear and tear" and are to be expected in the proper use of a rental unit. "Painting" just because the unit needs a paint job after being lived in is also not a permissible charge back to a tenant. There are, of course, exceptions but I presume you have a "normal" amount of nail holes on the walls and that the paint job is not required because of some excessive neglect on your part. If you have maintained the unit to a standard of ordinary cleanliness then your landlord is not entitled to demand these payments from you.
DeleteMichael K. E. Thiele
Hi Michael,
ReplyDeleteThank you for this blog. It is very informative and helpful. I have been served papers by a landlord who is pursuing action against me. They are claiming items such as generally cleaning of the stove and behind the fridge and professional carpet cleaning(the carpets were thoroughly cleaned before moving out) for $700, is it my responsibility to take apart the elements and clean under them and clean inside the oven?
They are also charging $200 for a set of flimsy chairs they bought 14 years ago that broke during my tenancy. Additionally, they are charging for time that they spent inside the house readying it for the next tenants for $400.
I lost a set of keys during my tenancy so i was not able to return that set. they are charging for rekeying all the locks, is this normal practice?
Finally, the house has been vacant since I left but they are charging for 1 month lost rent for time required to return the premises to standard condition.
I must add that the house was cleaned spotlessly before moving out.
Thanks for your insight, i apologize for the long post but i feel as though im being taken advantage of. Can i aquire counsel and if the judgement is in my favor be reimbursed?
Hi:
DeleteThese types of claims are fairly common. I presume it is a small claims court action. How clean do you have to leave the unit? The standard to which you are required to keep the unit is to a standard of "ordinary cleanliness". That is set out in section 33 of the Residential Tenancies Act. What constitutes "ordinary cleanliness" is not defined--so it really is a you know it when you see it kind of thing. If you consider how the unit looked when you moved out---did it meet the standard of ordinary cleanliness--was it reasonably clean---objectively speaking? If so, then the landlord's claim is unfounded. Cleaning behind the fridge and stove is not something that tenant's typically do, in fact it is not something that landlord's normally do. That it was dirty is fine and normal and my personal view is that so long as the dirt was "normal" this is something that falls to the landlord to do in a normal unit turnover without charging back to a tenant. Cleaning under the elements and cleaning inside the stove--do you have to do this? Yes and no. Ordinary cleanliness is the issue. If the inside of the stove was pristine when you got it and you returned it with 2 inches of bacon grease in the bottom then you have a problem. However, if the inside is a bit dirty in the "staining" sense--then that is acceptable as part of reasonable wear and tear. It is not reasonable to expect you to return the stove in pristine condition. The same will hold true for the burners. That you paid $700 to have the rugs professionally cleaned before moving out speaks well of you--- I think this exceeds your obligation--even if contracted to in the lease. Absent photographs showing that you left the place in a filthy condition--providing a copy of the receipt for the carpet cleaning would in my view bolster your credibility.
The flimsy chairs broke. That is normal wear and tear and you are not responsible to replace them--so long as the Court accepts your evidence that you used them properly and normally and that you didn't do anything willful or negligent to break them. If they wore out because they are garbage chairs--or they just have a very limited lifespan because they are so flimsy this will not be your liability. How the Court goes depends on what the landlord can prove about how you used the chairs.
Charging you to rekey the locks is over-reaching and excessive. I do not think this is a legitimate charge. The landlord should re-key the locks in any event between tenants. This is not chargeable to a leaving tenant..
Charging for a lost month of rent to get the unit in proper condition is commonly done but in my experience the landlord will be unsuccessful if you resist it. If you terminated the tenancy in accordance with the RTA then your obligation to pay rent ended at the end of your term. A unit turn over will always take a little time. Can the landlord prove that they had a tenant at the ready, wanting the unit, but they had to turn the tenant away because the unit was uninhabitable? Did they put up the new tenant in a hotel pending the cleaning etc.. What evidence does the landlord have of actively seeking a new tenant to replace you---i.e. when did the advertising start, when did they start showing the unit (they had the right to advertise and show the unit during your 60 day notice period). The one month charge is likely over-reaching. So you know, if a unit is seriously trashed and it is impossible to re-rent the unit because of the condition of the unit and extensive work is required then a landlord may succeed in a claim for lost rent. However, that does not sound like your rental unit--especially if you cleaned it to a standard of "spotless". Hopefully you have photographs or witnesses (consider the carpet cleaners as witnesses).
DeleteWith respect to being represented. Presuming of course that this is all in Ontario and in the Small Claims Court, you may indeed retain a lawyer or a paralegal. If you win you are entitled to "costs" though in the small claims Court it is limited to a maximum of 15% of the claim. Offers to settle may also be critical in getting double costs. If you are very well prepared, have the documents handy and the evidence will be easy to solicit so that there is likely to be a short trial you may be able to get a lawyer, articling student or paralegal to represent you for a sum of money that is close to the costs you could win at trial. Chances are that you would not be completely reimbursed by a costs award (presuming you win) but it might be close.
Good luck with this claim.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteOur daughter just concluded 1 year lease in a rental unit, moved out at the end of June.She shared this unit with 3 other friends, the lease was just for 1 year. At the beginning of the lease we gave the landlord first and last months rent (a cheque for each) , 10 postdated cheques for the remainder of the lease and a damage deposit of $125. The other 3 tenants gave the exact same thing and the damage deposit collected and cashed by the landlord is $500. The last day of our tenancy the landlord was there and after we were done moving all the furniture out we asked him to do a walk through the house to see/check the status of the premises. He refused saying there is not enough time. I did not think anything of it as we haven't had any problems during the 1 year . Two weeks later I sent an email asking for the damage deposit back and he said that he had to do some repairs and the amount to be returned is $235 (but this only when he will get the final bills). The repairs he is claiming are broken thermostat $40 and broken back door blind $225. The a/c stopped working 2 days before our lease ended and the pull cord for the back door blind broke.The same day I sent the email he said that the blind was being repaired. Is he entitled to any of his claims? the rental unit is in Toronto
Hi: This is an unfortunate scam founded on an illegal damage deposit. The question is whether you are prepared to do anything about it---i.e. do you have the time to chase $265? You could file an application to the Landlord and Tenant Board for a return of the illegal security deposit. The Board would indeed order a return of the entire sum of money. The landlord would not be permitted to "sue" you at the Board and he would not be able to get a set off of any claim for the alleged damage. You could also ask for the landlord to be fined for charging an illegal security deposit.
DeleteSo, you would indeed get the money back. What can the landlord do about it? He could sue you in small claims court and end up spending almost as much as his claim in filing fees to pursue the claim--so the question is will he actually file a claim. Let's say he does file the claim--what are his chances. With respect to the thermostat it depends on what you mean by broken---broken as in smashed because it was accidentally hit? If so, the damage arose out of wilful or negligent conduct and hence is chargeable to you. If it broke internally--or just started to malfunction, or a piece of plastic busted on the knobs as you used it normally then it is a wear and tear issue and you are not liable for the cost of replacement. The same sort of logic goes with the blinds. If the pull cord broke because it rubbed through, became brittle, or some part of the blind failed through normal use you are not liable. If the pull cord broke due to wilful or negligent conduct then you are liable.
If you are inclined to pursue this, I'd wait for the landlord to return the balance of your security deposit--as that will be conclusive proof that he has no additional claims (i.e. he'd have a hard time inflating a claim in small claims court for things other than these two items). Then warn him that you are going to file an application to the Landlord and Tenant Board for a return of the balance of the security deposit and also seek a fine for collecting an illegal security deposit. Give this warning in writing and invite him to contact the Board to clarify his right to have charged a damage deposit (in addition to the Last Month's Rent Deposit). If he still refuses to return the money without an application that will be further justification for the Board to Order the return of the money and a fine and possibly some "damages" for your time and trouble.
Good luck, please let me know how it turns out.
Michael K. E. Thiele
Hi Michael,
DeleteDoes a tenant new to pay to replace a door screen that has been ripped bc it wasn't like that wen they moved in...isn't things.like that bound to happen?
Hi Michael,
ReplyDeleteThank you very much for your fast reply. Yesterday I sent an email to the landlord saying it is illegal for him to ask and collect the $500. He sent an email back saying it is the 1st time he heard of it but he will check into the matter. In a 2nd email from him, he says he has no problem returning the damage deposit just inform him how to do it.Also, he goes on to say that there is the matter of damages done to the rental unit by our daughters and now the amount climbed to $297.13. It is sickening and frightening how the amount keeps climbing, especially that this individual works for Canada Revenue Agency (so I expect a few headaches next tax year). It comes down to $75 per family and is hardly worth the hassle but I have a hard time with his money grabbing tactic. I did not know this , but 11 days after we moved out one of the girls phoned and asked about the damage deposit and at that time he claimed $175 for the blind and $30 for the thermostat. Then in the email he claimed $225 for the blind and $40 for the thermostat, then this climbed to $297.13 for both.He said he can provide invoices. At this rate he can increase the damage amount as he pleases (nothing can stop him right?) and it seems that our refusal to pay will result in him taking us to court, so again hardly worth it.
The thermostat was not smashed, the A/C stopped working and my daughter fiddled (pushing buttons there is no knob) with it to get it working again. If this is considered willful and negligent conduct I have no problem paying for it. Can a blind cord cost $250? How can we prove that when the person pulled the cord to open or close the blind the cord just plain ans simple broke?
What shall I do?
Thanks
Hi: I think, in reading your email, that you need to appreciate that the law in these circumstances is on your side. The question turns on how important is this sum of money and are you prepared to fight to get it back. If you file the Landlord and Tenant Board application you will get the entire security deposit back. See my first reply to you above on that point.
DeleteWith respect to the Landlord suing you in small claims court. Certainly, if he chooses to do that there is nothing you can do to stop it. However, just because he sues does not mean that he will win. Frankly, will the landlord actually sue you for an amount that is less than $300? Is he that type of person? If the sad answer is that yes he is, then the next thing to consider is the merits of the case. The landlord, in making the claim, has the burden of proof. He needs to prove that you or your guests willfully or negligently damaged and broke these two items. What you describe in relation to the thermostat is not willful nor negligent and hence no liability. The blind cord breaking is something that blind cords sometimes do. You prove it by saying that is what happened. What proof does the landlord have to the contrary? The burden of proof is not yours--it is the landlord's burden to prove that you willfully or negligently damages the blind. Your answer of what happened is not usual or strange. These cords do break (it's happened to me more than once). I'm sure any blinds company would confirm for you that the cords on blinds sometimes break. This is the very essence of "wear and tear" and you are not responsible for it.
I'm sorry I can't tell you what to do as that is your decision alone. Best of luck
Michael K. E. Thiele
Hi Michael, I have been a tenant for 3 years on a tenancy agreement just ended beginning of this month. The landlord did inspection 2 weeks before I leave and advised me that I have to replace the counter top because it has 2 small burns, he wants to charge me for a new countertop with installation which he estimated to $ 1500. In addition he came at the last day and claimed that the wood floor in the den and living has some scratches and small holes (3-4 tiny holes less than .2 cm each) and he wants me to rectify this by re sanding remodeling both rooms. Taking in consideration that the house was built in 2002 and I believe the counter top and floor were not renewed since then. I read some where that life expectancy for counter top is any way 15 years and the depreciation of the damaged thing even if we agree that it's my fault has to be taken in consideration.
ReplyDelete1- what's my responsibility here?
2- I want to stop him from keep nagging me, he keeps sending me emails and text messages on how and when I'll rectify this and pay for the damages. what's the best way to handle this? shall I keep communication verbally, sending a formal letter or just ignore him?
Thanks
Hi Michael,
ReplyDeleteVery quick question. My landlord is trying to make my roommates and I pay for an exterminator for a mouse problem in our apartment. She claims there were never mice before and that it is our fault and thus we must pay. However, the only evidence she has against us is that we had a few clothes on the floor in the bedroom, a few plates were left out, and one closet was tightly packed. She might have taken pictures during an inspection of the apartment for mice, but we are unsure: we are assuming she has just to be careful. Regardless, the state of the apartment was quite clean with the exception of these minor things. Clearly, it is her duty under s. 20 to pay for pest control. However, is there anyway we could be liable for damage under s. 34? First, there is no damage as of yet and we have reported the problem to her, but she refuses to fix it. Thus, we cannnot be liable for damage, as we fulfilled our duty of reporting the mouse problem to her while there was no damage, and if damage occurs it will be after she was alerted of the need to bring in an exterminator. My main question, however, is whether the mere fact that mice got into the apartment could be considered "undue damage"? We are confident that our level of cleanliness could not be considered negligent conduct. However, I am wondering whether the mere fact that there are mice in the apartment could be considered a type of damage under s. 34 such that we potentially could be liable for repair, even if no damage has occurred to the actual unit and we have reported the problem to our landlord?
Thanks!
Hi: Generally speaking, in law we never say never about anything as there tend to be exceptions to every rule and circumstances that, if present, lead to an unexpected outcome. That being said, what you are describing is clearly the responsibility of the landlord. A mouse getting into your apartment is the landlord's responsibility to remove and pest control should be called and paid for by the landlord. Perhaps you would set a mousetrap--humane trap or otherwise--and try to catch the mouse. On the off chance that you have just one mouse this may solve the problem--which problem is a fairly routine problem that most people face at some point in their home-owning or tenant lives.
DeleteI do not see a basis for you being liable for any damage caused by this mouse (likely "mice"). You have informed the landlord of the infestation when you first became aware of it and it is the landlord's responsibility to deal with it. Of course, if it can be proven that you are actively luring the mice into the unit then you may have some exposure. A few dirty plates and some clothes on the floor will never be enough to attract liability.
Interestingly, you are thinking about your potential liability for damage when in fact it is the landlord who should be concerned about liability to you if the landlord does not promptly treat the infestation. I'd guess that it is more likely that the mouse will cause damage to your property as opposed to the landlords. If the landlord does nothing, promptly, you may have a claim for that property damage. Also, left untreated, you may have a claim for an abatement of rent depending on the impact of the presence of this mouse in the rental unit. Some people are quite unnerved by the presence of mice.
Good luck with the mouse problem.
MIchael K. E. Thiele
Thanks so much for posting a lot of this awesome content! Looking forward to checking out more.
ReplyDeletewooden blinds & window blinds
Hi Michael.
ReplyDeleteFirst off I'd like to say thank you for spending your time to respond to everyone's questions. Your help is very much appreciated.
I just have a question of my mind if you don't mind helping with. I've been living in an old, early 1990s, 400 sq ft. apartment for approximately 2 years and I have damaged a portion of the vinyl film of the flooring; it's not even hardwood laminate. I use my office chair on a daily basis and I tend to roll back-and-forth in a small concentrated area. About 1 year into my rental, my chair chipped a couple pieces off the vinyl surface (not the wood/board)and I simply let it be. Overtime, the damage became larger and larger and I did not take appropriate action to prevent the damage from worsening (e.g. placing tape).
While I understand that this is my fault, I would like to ask how do you think the LL will assess the damage amount? This is by far one of the cheapest vinyl flooring I've ever seen as I don't see it costing more than 10 cents a sq ft. The unit is very old and the vinyl plank is very cheap so I don't see him being able to find replacements.
Therefore, I'd like to ask, can the LL charge me for an entire floor renovation with more expensive flooring planks or does he have to assess the current value of the flooring and charge me accordingly?
Thank you for reading!
Hi:
DeleteThis is an interesting question. Wear and tear is not chargeable to the tenant while wilful or negligent damage is chargeable. Does rolling one's chair on a floor, in a the same spot for several years constitute causing wilful or negligent damage? Wouldn't any kind of flooring show wear in a concentrated area of use like this? Perhaps sitting at one's desk and normally rolling an office chair back and forth is normal use of a property and if the floor wears out then that is within the scope of normal wear and tear.
You can make the arguments for and against on this one. I do think you are correct to consider the quality of the flooring and its natural useful life as that would give an indication of what can reasonably be expected from this kind of flooring. To that end, linoleum flooring has a 10 year useful life as per the RTA. You can find this set out here: http://www.canlii.org/en/on/laws/regu/o-reg-516-06/latest/o-reg-516-06.html Scroll down to the end of this regulation and you will see a chart of every conceivable thing in a house and to the right there is a "useful life".
I think the argument favours you and it is time for the landlord to simply replace the cheap floor at his/her own expense. However, (there is always a However), two points that go against you is failing to inform the landlord of the damage as it started (you have this obligation under the Act) and secondly, failing to take a reasonable precaution to protect the floor by putting down a rolling mat (plastic thing from Staples). I think these two points, if argued properly, could see you contributing to the cost of the replacement flooring though your share in the cost would be nominal. You would of course argue that the landlord has a brand new floor that he will have at least 10 years of use out of going into the future and that the floor you damaged was living on borrowed time in any event.
good luck.
Michael K. E. Thiele
We gave 6 weeks notice which they accepted. 2 weeks prior to our move, they cashed a rent cheque which was not owed and agent emailed it would be returned upon landlord return from vac. He 'reminded' us that place to be professionally cleaned; we replied as per lease clean & broom swept. Agent replied w/ landlords accountant thinks we owe another month rent cheque - we provided proof from our bank of all cashed cheques; 3 days later they agreed we would get rent money back. The day of our move (we told agent we were going on vacation the day after we move) agent emailed saying he was en route to us with the cheque. Next day we left without cheque asking where it was.
ReplyDelete1 week later agent emailed us: "The landlord has issued 2 cheques to give to you, however after his inspection, he has found damages therefore he has decided to give you one cheque but to withhold the second cheque until the damages have been assessed. As per landlord, the damages were beyond normal wear and tear causing the loss of one month's rent during the repair of damages and cleaning. However, the landlord is not charging you the one month rent lost. The Landlord may provide the remaining amount via a cheque after the work has been completed.". To clarify, the pictures they took consisted of this: fridge - ketchup stain, fingerprints on fridge;crumbsinside stove; stars on ceiling put on with putty and 1 sticker. Our email replies pertaining to how he owed us a cheque. We did not acknowledge claims as we still didnt have rent cheque back. Time between date they cashed the cheque & their email re "damages" and beyond normal wear & tear, was 3 weeks total.
We keep insisting that our rent cheque still has not been returned to us. We filed a complaint with Tenant Board. 2 days later they sent this: "In exchange the tenant to realize the damages that were caused by the tenant, the landlord has provided 3 options: 1)Tenant will pay for the damages ( not wear and tear) caused by the tenant during your stay---pls find the attached invoice
2)Tenant refuse to pay for damages ---landlord will proceed with the small claim court with additional claim of 1 month rent lost and other related costs plus registering the claim with the credit bureau
3)tenant agrees to the repair cost to be subtracted from the existing available fund and you will receive remaining money. It Landlord does not hear from you by 1 week-option 2 will be assumed."
The Receipt had a #, I googled =this "company" is in name of Agents' son. Is this ethical? We were not given a chance to respond to this as they have been holding our rent cheque. We see this as a separate issue and still have not responded re: "damages" which we feel are not damages. Can they damage our credit rating as per email?
Are we in the wrong somehow thinking they cant use the cheque for $1600 for painting and cleaning? Were waiting for a hearing with Tenant board re: cheque. We need our money and they've already seemingly repaired it all (plus, they want to take us to court for another month of rent but its only been 5 days from the time we received the last email as per the date on receipt). We are confused as to whether they have something here or do we?
Any advice would be great!
Hello: This is a long story but I think you've done a good job in explaining. If I met you in person I'd be interested at looking at the correspondence and letters to see if there is anything in there that means something and is something that you may have missed. All that being said, the simple analysis is this---was the place in good shape when you left and was there anything that amounts to damage in the unit. If the answer is that the unit was in good shape and if there is anything it is reasonable wear and tear then let the landlord file his claim in the small claims court. He will lose and you will get your costs of having to deal with it (of course this depends on you proving that there was no damage).
DeleteI'd proceed with the Landlord and Tenant hearing as I expect that you would indeed win and get an order for the money. The application needs to be premised in an agreement to terminate (as the Notice is short). Use the emails for this. With the agreement to terminate the only issue becomes one of damage. The landlord has to proceed to the Small Claims Court as the Landlord and Tenant Board has no jurisdiction to determine his claim against you. The numerous emails and promises about the cheque, I think, is evidence of a landlord who is trying to figure out how to keep the money he owes you.
Just because the landlord files a claim in small claims does not mean that he will win. He will have the burden of proof and frankly, if the evidence is what you show it to be, then a Judge will very likely dismiss his case. If the landlord inflates the damages now---ask the obvious question about why the original damage claim pictures and notification were limited to only a ketchup stain, fingerprints, crumbs and a star on the ceiling---reasonably, one would expect a landlord to send you the worst damage pictures and make the strongest demand first.
Good luck with this.
Michael K. E. Thiele
Great Blog! It's been very helpful but the one issue I haven't seen address is the one which concerns my current situation which is; contractual obligations.
ReplyDeleteI've lived in the same small unit in Toronto for 11 years! (It's a record for me).
1. A month ago I gave 30 days notice as to my termination (obviously I've been on a month to month for some time). My lease agreement indicates I'm responsible for 60 days notice so I made every effort and succeeded in finding a replacement for the last month.
2. Subsequently I didn't pay for the last month believing the -last month's cheque-I supplied them (and updated when the rent increased over the years) would be used. I was told they couldn't use it and have been insisting on my paying for this final month where upon they would return to me the un-cashed cheque.
3. I believe that they want to keep the last month's cheque as a damage deposit to put toward re-painting my apartment.
4. In my lease there is a clause where I'm responsible for returning the apartment in the same state I received it - regardless of reasonable wear and tear (which they confirmed with me in person).
5. Can they contract themselves out of the Tenant Act (or at least that clause)?
5. Should I be fearful of my credit history if I don't pay?
I've been on vacation for the last two weeks and am "looking forward" to seeing how many notices have been stuck into my door (and whether the locks work but I'm pretty confident they wouldn't go to that length).
Thoughts?
(Also I did put a hole in the back of the closet door a few years ago when I closed it too harshly - seems likely I'll have to pay for that, no?)
Hi: Thanks for the question and I'll reply with some general commentary taking into account the facts you've provided and some assumptions that I'll make to fill in the holes. With respect to your notice of termination, and being on a month to month, you have an obligation to provide a minimum of 60 days notice to the end of a term. The end of term will normally be the last day of the month presuming that the rent is due and paid for the subsequent period on the first of the month. I'm not sure if you "fixed" the notice by finding a "replacement" as I don't know what you mean by this. However, let us assume that you gave a Notice of Termination--30 days, and it was short notice (because you need to give 60 days). Many landlords will assert that your notice is void because it does not contain the required number of days notice. Accordingly, they take the position that the lease continues and hence the last month's rent deposit will not be used to pay for what you believe is the last month of the tenancy. If this is what your landlord is doing, you should take a look at section 88(1)(1). That section provides that if you gave a notice (that was not in accordance with the Act), and you move out in accordance with that Notice, then the rent to which the landlord is entitled is the amount to which the landlord would have been entitled had the Notice been given with the first and earliest legal termination date. In a sense, this section fixes your short notice.
DeleteI agree that you should let the Last Month's Deposit be used to pay for the last month that you are there, whether or not the landlord agrees. Damage deposits are not legal and even if the landlord wants one they are not entitled to it.
DeleteRegardless of reasonable wear and tear. Any clause like this is illegal and no, the landlord can not contract out of the provisions of the RTA. The statutory basis for this statement is section 4 of the RTA which provides: Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. Your liability for damage is for willful and negligent UNDUE damage (section 34 RTA). Reasonable wear and tear is excluded from this definition of damage. Frankly, I'd feel pretty comfortable arguing that a hole in the back of closet door caused by closing it too strongly falls within reasonable wear and tear especially after an 11 year tenancy. With respect to damages to a rent unit, before you vacate the unit it would be in your interest to get the landlord to do a walkthrough (move out inspection) and get the unit signed off with the landlord. If they refuse to do a walkthrough with you or refuse to sign off that the unit is acceptable (or identify the things they find unacceptable), then it is in your interests to collect evidence of the condition of the unit before you return possession to the landlord. Lots and lots of pictures and video from varying angles and distances of everything in the apartment---walls to floor to ceiling to cupboards to appliances---get it all so you can prove condition when you left. If you can get a third party who you know will come to court if needed to inspect the place when you leave that would also be very useful. Make sure to keep emails asking the landlord to conduct a move out inspection and send emails complaining if they refuse to do one. ( I'm suggesting this, which may seem like overkill, because you're suggesting they're fishing for a damage deposit and their clause excluding reasonable wear and tear is illegal).
With respect to fearing a negative impact on credit I suppose that is up to you. Failing to pay a monetary demand does not automatically impact your credit. They would have to be a member of a credit bureau and they would have to report it. If they sue you, you can defend, and if you win there should be no impact on your credit and if you lose but pay there should be little impact on your credit. It seems to me that the main issue will be what is the total amount owed--which depends on how your notice was given and what the ultimate legal termination date is. I'd be inclined to focus on that, be satisfied that your rent is paid (using the LMR), and then let them do their worst and protect yourself as described above. If they do anything foolish, like changing the locks, they will have done something illegal for which you can seek a remedy at the Board and make a complaint to the Investigations branch.
Best of luck.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteThis is a fantastic blog! I'm hoping that you can give me a quick opinion on a small claims issue that my former Landlord has served me.
Background:
I brought an application before the Ontario Landlord and Tenant Board recently to request that my former Landlord pay me back for my key deposit, interest owed on my rent deposit and an illegal charge for the minor repair of an appliance. She had been keeping these payments from me because she said that I damaged the unit and that she was going to use the money to pay for cleaning and painting. When the hearing began she actually did not contest any of my arguments and agreed to pay me back in full (which she did at the end of the hearing).
However, before the hearing even began, she served me with small claims papers alleging that I damaged the unit and that I should be forced to pay for repainting the entire unit as well as cleaning costs. She included some pictures of the unit (small scuffs on the walls, a nail hole from a hook used to hang a mirror, some burnt food at the bottom of the (self-cleaning) oven and a bit of balsamic vinegar that was at the bottom of a cabinet. Personally, I view the majority of these items as normal wear and tear over the course of 2 years of living in the unit, but she is claiming that these were caused by my ‘negligence, if not wilful misconduct’).
Other issues / considerations:
- She hasn’t included any pictures in the claim of what the unit looked like 2 years ago (before I moved in) nor did I ever sign anything that said the unit was in ‘good condition’ (the lease agreement stated that I have ‘inspected and knows the condition of the rented premises’)
- She states in her claim that she has paid for cleaning and painting but she has only included quotes, not actual receipts (which makes me think she never actually got these people to do the tasks)
- She, and her parents, replaced the curtains while we were living there because the rods were ripping out of the walls. This involved about a day’s work and moving furniture around – Can she prove some of the scuffs weren’t made by them?
- She has included statements in the claim for which she has not included any evidence. For example, she states there are dents on the fridge, but she never included any pictures (before or after). As well, included in the damages section is the fact that that I used the storage locker for an extra day. This is true, but I talked to her about it and obtained permission to do so (the locker I was going to move my stuff into was full of garbage when I opened it, so I need to get my new landlord to clean it up).
To be frank, I view this lawsuit as completely frivolous and a waste of time and would love to get your thoughts on it.
Thanks very much.
Hi: From how you describe it the claim sounds like a waste of time and she likely issued it when she was upset that you were taking her to the Board. As you have been sued you have to defend yourself and file a defence. You defend on the basis that the unit was not in perfect condition when you got it, that you returned the unit in the same condition less ordinary wear and tear. At the pre-trial ask for orders requiring the landlord to provide evidence of the general allegations so you know what to defend against. If the landlord has no good evidence and this it indeed as frivolous as it sounds the Judge will make it very clear to the landlord that she risks a costs award against her when the case is dismissed.
DeleteMichael K. E. Thiele
Great Blog! Very helpful. My situation is as follows. I leased a home to a couple. The lease was a 1 year year after which we continued our relationship for an additional 9 months. We completed no aditional paperwork after the 1 year mark. Recently things have changed and the tenant needs to move and has given proper notice (verbal). He has always paid on time or early.
ReplyDeleteThe issue is the general state of the house. There is no specific damage in teh structural sense but it's just filthy for lack of a better work. The grout lines in the kitchen that were gray are now dark brown. The build up in all toilets and sinks are such that I am concerned they will even return to white. Then painted, or started to pain many rooms. Most have one coat where you can see the previous colour, and some still have the cutting to be done (which any painter will tell you requires the full wall to be painted). There is some baseboard removed and many window casings are scrateched due to dogs. The downstairs carpet is discoloured and looks poor. This was an 'executive' rental in that it was in pristine condition prior to renting it out (it was my previous residence).
I have had painting done, a bathrub refinished and lawn maintenance to combat everything that was overgrown. The total cost is $3200 to date. The contractors have provide very detailed descrpition for the work that was completed. I have paid the contractors and sent a summary email with the attached invoices to the tenant requesting payment. My concern is, he won't pay. He is movng out this month. What steps can/should I take to collect the sums owning. There is additional work still to be done as the carpet has yet to be dealt with, as well as a neglected pellet stove now covered in rust.
Any help you can offer would be great. As you can probably tell this is my first (and possible last) situation where I am a landlord. Once more piece of information. I have collected last months rent ($2000) for the month of September 2014. I have offered to give the client a prorated reimbursement of that amount if he moves out early (I'd like to get the property on the market). To date, he has not yet moved out.
Thanks! Graeme
Hi Graeme: Unfortunately what your describe is not entirely uncommon. Aside from undue damage it sounds like your tenant has not maintained the property to a standard of ordinary cleanliness (section 33 RTA) as required and as such a lot of the work you will need to do is not actual repair but just an intensive cleaning (which of course costs a fair amount of money).
DeleteI recommend that you collect evidence of the condition of the premises through pictures, video, third party witnesses--i.e. be in a position to prove the condition of the premises upon getting possession back. Presumably you can prove the condition upon leasing. Perhaps see if the tenant will meet with you for a move out inspection and see if you can get the tenant to agree about the condition of the premises and have a sheet for the tenant to sign.
Presuming you have the "evidence" issues in hand, the question is how to compel a payment if the tenant does not pay voluntarily. If the tenant does not pay and moves out then you may have a difficult time locating the tenant to serve him with legal papers. In circumstances where the tenant is moving I would want to issue legal proceedings and get the tenant served while I still knew where he was. If you are confident that you don't need a termination of his tenancy (because you are sure he is moving) you could fill out and issue an L2 Form with the Board and serve it now (which presumes damage/cleaning/repairs that is less than $25,000 as this is the maximum jurisdiction of the Board). The L2 may be used without a Notice of Termination meaning you will not get an eviction Order but you can get a judgment for money for damage (see part 2 (c)) of the form.
The problem I foresee with using an L2 form is that you are likely to get a hearing that comes on very quickly--possibly even before he moves out. You may not be in a position to prove your damages and the costs of repairs by the time the hearing happens. At the hearing you need to be in a position to provide conclusive proof that is good enough to convince the adjudicator to grant you judgment---can you do that in short order? The alternative is to sue the tenant in the small claims court if you are confident that the amount of the claim will not exceed $25,000. You would serve the tenant with the claim now and wait for the process to unfold. A small Claims Court action will take longer than the Board proceeding which should give you a chance (presuming the tenant moves out) to get into the unit, get the work done and pay the contractors. That way you will have precise numbers and not just estimates.
If you think that it is possible (fairly certain) that your claim will exceed $25,000 you will have to sue in the Ontario Superior Court. You can't break claims into pieces so, if the damage is more that $25,000 and you do not wish to waive the excess above $25K the Ontario Superior Court is your only option. Superior Court litigation is not user friendly for self represented parties (unlike the LTB or the Small Claims Court).
All of that being said, if you have personal contact details of the tenant, know where he works, have his drivers licence, licence plate, birth date--most of which should be on the rental application--you likely have enough for a process server to track him down. If so, perhaps the best thing to do is to wait until you get possession of the unit, do the repairs, and then sue him in the appropriate level of Court [Landlord Tenant Board is not an option once he vacates your unit].
Good Luck
Michael K. E. Thiele
Thank you Michael. This have gone down hill since I wrote you last. We have had work comleted and he has yet to pay for the invoices. He he now claiming items have been stolen from his house. That is another issue altogether, but I am certain collecting will now be an issue. He has not paid for September, which is to be his last month. What are my rights as soon as October 1st comes. Am I able to 'sieze' any property still in the house? Can I change the locks as of Oct 1st?
DeleteIn terms of a small claims court claim, I believe I have sufficient evidence. I have photos of the house prior to renting the property, photos of the damage and details invoices to correct those damages. Does he have to show up to a small claims proceedings? I have heard it's often not worth while. I would estimate total costs around $10,000 that would attributed to the tenants. Thank you again for your help.
Hi Graeme: If the tenant returns possession of the rental unit to you at the end of September then the applicable section of the RTA will be section 41--this section is entitled "Disposal of Abandoned Property if Unit Vacated". It is not really a matter of seizing property as the RTA gives you the right to do what you will with the property. That being said, and notwithstanding the rather clear words of the RTA, I don't think the law is quite as straightforward as section 41 makes it out to be. Generally speaking, seizing, distraining against, taking control of, or frankly doing anything to a tenant's personal property against their wishes is frowned upon. There certainly are arguments, based in statute even, that suggest that you would have the right o help yourself to the tenant's property after he vacates but there are cases where landlords have been held liable for the loss of property notwithstanding section 41. If you wish to play it safe, don't seize the tenant's property or you may find yourself in litigation that may not turn out as you expect.
DeleteWith respect to small claims court. The tenant would not have to show up nor participate in the proceeding. The result would be, presuming you served the tenant, a default judgment. Of course, if the tenant shows up and "fights" there is a risk that you would lose and/or that you would have to pay his costs. All litigation comes with some risk. Whether it is worthwhile or not is not something that I can really answer for you. As you mention your loss at $10K that certainly is not insignificant. I imagine it will take you many years to recover $10K in rental profit. If the tenant has assets against which you would recover then I do think pursuing the claim would be worthwhile. If the tenant is judgment proof (i.e. no assets) then it probably isn't worth your while. In deciding whether to sue or not a factor often is whether it is cost effective to hire a lawyer or paralegal. If your claim is solidly worth $10K then hiring a paralegal or lawyer would make sense just as long as you negotiate a flat fee agreement that keeps the legal costs reasonably proportional to what you expect to win.
Michael K. E. Thiele
Thank you again Michael. The tenant is now disagreeing with invoice amount. Stating hard wood flooring damage was caused by my own contractors and not him. He is there until the end of the month. Is it best at this point to go through the Ontario Tenant and Landlord board and file an L2? He is now bringing up things he feels I didn't do as a landlord. But over a year and a half I received no complaints or issues from the tenant regarding anything to do with the property. I suspect it's sour grapes but I want to be protected. Are payment for damages a separate issue to something he may now claim I did or didn't do as part of my duty as a landlord? Meaning, say I legitimately did something wrong, unknowingly, can that limit my ability to recover the damages?
DeleteGraeme: Whether or not you start a claim now or wait to do so in the small claims court (presuming under $25K) is really up to you and the factors I described before are considerations. The LTB gets you in and out quickly. The Small Claims Court much more slowly. Each has an advantage/disadvantage. I leave that to you to decide. The interplay between your claim and the tenant's claim may seem a bit unfair. The tenant may file a claim against you, at the Board, for up to a year after he is out of possession. Your right to file at the Board ends when he is out of possession. It is preferable for claims to be in the same venue and to be heard at the same time. It is a more efficient use of resources. But, if you don't file at the Board then the law prevents you from doing so after he has moved out.
DeleteHow his claims impact your claims is hard to say. It all comes down to proof and of course credibility. What you describe sounds like the tenant is just making excuses. However, you should take from his comments the lesson that you will need clear evidence of what you are alleging. The tenant is recounting an entirely version of "facts" so the burden will be on you to prove everything that you are alleging (make no assumption that there is any common ground).
Until you know the details of the tenant's allegations it is very difficult to say whether there is anything to worry about. However, in my experience, if the tenant has said nothing about it for the duration of the tenancy, and the first time anything is brought up is after the landlord makes a claim--it is more likely than not that the Court or the Board will not give the tenant's complaints any weight (i.e. the claim(s) will go no where.).
Best of luck
Michael K. E. Thiele
Hi Michael Thiele
ReplyDeleteYour blog is absolutely helpful. I have a problem with my previous landlord. I move out of my old place and got a new place already. I moved out 3 days 3 mo the earliBefore I left, I ordered a cleaning service and payed $200 for them to clean my whole unit. I was satisfy with the results and so is my friend. After a few days, the landlord texted me back and argued with me that the place is very 'not THAT clean'. They believe that it should be cleaner and going to charge me an additional $200 for the cleaning service. Moreover, before i left i told the landlord that they were damages on the floor. I inform them that the damages comes from the water leakage from the floor on top. ( 2-3 months ago, the water tank on top of the building leaked and causes water leakage throughout every floor including the elevator) However, I felt like it is my responsibility to maintain the unit so I told the landlord that I am willing to pay for the damaged part because it is not very big. I researched about how much money needed to fix the floor and everyone said that it will cost around $350-$500 max to fix that small area. I simply agree and willing to pay the price. However, landlord was very unhappy about the floor and without notice, she changed the whole floor of my unit including the rug, at my bedroom, too. In total she texted me and said that the whole payment is around $1,500.
The landlord has a very bad attitude. When i texted her, she simply ignores the message or reply in a very bad manner.
What should i do in this situation? Do i need a lawyer?
Your reply will be greatly appreciated. Thank You, Jack
Hi Jack: I've replied to this elsewhere. Let me know if you didn't get the reply. Michael K. E. Thiele
DeleteOur Landlord is trying to charge us for damages from hanging pictures and a TV... We have actually patched all the damage ourselves. There was also no inspection before we moved in. We actually had to remove some of the previous tenants furniture. Does he have grounds?
ReplyDeleteHi: "Normal" picture hook holes are considered normal wear and tear and can not be charged back to the tenants. Hanging a television may or may not be normal wear and tear--frankly, it depends on what it looks like. If they're small holes etc., then it isn't chargeable. Further, if you have already patched them then there is nothing for the landlord to charge you back.
DeleteIn circumstances where a landlord is trying to charge back picture holes I'd make sure to take highly detailed photographs of every aspect of the apartment (close and far shots). Ideally, get the landlord to do a walkthrough of the apartment with you before you leave and get the landlord to sign off that there are no issues. If he refuses to do that, get the photos and video if you can as well as having a witness present would also be helpful.
Good luck
Michael K. E. Thiele
Hello,
ReplyDeleteI moved out of my old place on August 31st. I asked if I could be allowed in to clean for an extra week because his basement flooded 3 weeks before we moved out and we lost a significant # of belongings and all of our basement furniture, which put is 2 weeks behind schedule. I left my keys on September 9th after he went through the unit and dictated a list of items he wanted corrected. I also made arrangements for furniture pickup with a local charity for the following weekend and provided him the appointment date and time as I no longer had keys. He also agreed that we could leave some flood damaged items for him to dispose of so long as we swept the floor.
We took the home over from another tenant without any time in between possession. The walls had roughly patched holes (no paint/sanding), damaged paint from furniture, nails in every wall, they left some belongings in the unit, the toilet seat was broken, the thermostat was taped on the wall and the thermometer doesn't work, the vapor barrier in the basement was clawed, there were some marks on the cabinet doors, some of the covers for the central vac had to be replaced, and there was some bubbling on the countertop laminate. We were told we had to take it as is since it was an assignment so we thought nothing of it. We signed a new lease for 12 months when we moved in since we knew we needed at least a year regardless.
Oct 13th I get an email. My old landlord is now threatening to sue us for new cabinet doors, damages to the walls and entry ways, painting, and claiming that we never cleaned, and furniture items we left in the unit. I lived there for about 18 months. I spent more than 20 hours cleaning that place (I like to do everything twice when I leave), excluding the basement that needs to be sanitized and reframed/drywalled due to water damage and mold as he didn't clean it right away. The house is 8 years old, and the cabinets are extremely basic/cheap. We had to be careful cleaning them to only use damp clothes and water. I reviewed move out photos I took and on the cabinet doors are slight marks on the bottom front edge of the vaneer where you would stand to to wash dishes, etc...
I feel this is wear and tear...
He wants me to meet him at his place on Monday to "discuss what I am going to do about it, " but my family and friends are concerned he'll try to make me liable for everything...
The question is, what do I do now?
I don't feel I did any of the damage he claims, and I left the place as agreed and re cleaned anything he said he wasn't satisfied with. We did not do a move in inspection, nor did we even meet at the unit during the handover process. The tenant trying to assign the unit showed it to us. We talked over the phone with the landlord and met at a Tim Horton's to sign paperwork. He and I were never present at the unit together until after I moved in and the refridgerator broke.
Thanks,
VC
Hi VC: From what you describe, you have already done more than what your landlord may reasonably demand of you under the Ontario Residential Landlord and Tenant Act. I presume that the flood was not your fault. Under the circumstances I don't see any point in attending a meeting with him--however, that is up to you. You may wish to consider simply sending him an email advising that you have met your obligations under the Residential Tenancies Act and you consider your relationship to be at an end. If you are able to afford it and find the time for it, you may wish to consider consulting a lawyer or paralegal, setting out all of the facts, and then having the lawyer and paralegal write to the landlord for you. You could always tell the landlord that you will delay meeting with him as you've decided to get legal advice and that you or your lawyer will get back to him after the meeting.
DeleteBest of luck.
MIchael K. E. Thiele
Hi!
ReplyDeleteWe moved into a rental condo early this year and soon we're about to finish one year stay at the condo. We have a large dog and our landlord was aware about the dog before we moved it. We groom our dog, clip his nails oftenly. We have put our own carpets on the hardwood flooring to protect the floor. But no matter how careful we are there are a couple of spots on the floor where we can see scratches on the floor because of the dog. We are not sure how much we will end up paying for this, do we bear responsibility for replacing the whole flooring of the house in case the landlord decides to change the flooring for the entire house? Please advice.
Thanks, Neha
Hi Neha:
DeleteYou are responsible for any damage to the unit that exceeds normal wear and tear. What constitutes "normal" or "reasonable" wear and tear is a bit of a judgment call. Looking at it "objectively" do the scratches you are looking at seem excessive. No one would expect that the floor be returned in the exact same condition that you received it in. That is simply unrealistic.
To your question, if you are responsible for damage that exceeds normal wear and tear you would not be expected to give him a brand new floor. At most you would be liable for the value of the floor that is there now. More realistically, you would be responsible for a repair job--sanding and refinishing--though perhaps just waxing would take care of it? To get a sense of what kind of cost you are looking at you may wish to call in a contractor to give you a quote for the repair. It might be interesting to see what kind of hardwood flooring it is, whether it can be refinished at all, whether it is at the end of its life, etc..
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI was hoping you could weigh in on a matter here.
My wife and I vacated our apartment in Kitchener, Ontario on Sept. 20th of this year. We had been tenants for 2 years and 1 month at the time. On the outgoing inspection, the building manager noted that there were "Traffic Stains" on the carpet. The manager also said we might get charged for steam cleaning, which seemed fraudulent to me at the time so I read up on the subject and yes, it does look fraudulent.
The company in question also sent us a letter when I gave our 60 days notice also stating that we were responsible for carpet cleaning, etc. which also strikes me as the company trying to pass unit turnover costs onto the tenant.
To get to the point, today I received a bill in the mail for $57 and change, with a long letter with quotes from the LTA saying that we were responsible for steam cleaning the carpet. The amount would have been over $100, but they took the $50 garage opener deposit and applied it to the amount owing.
The letter also threatened legal action if we do not pay the invoice.
I called the management company and asked what grounds they had for charging me, and they kept repeating, "It's in your lease. You agreed to it. We sent you a letter stating your responsibilities." It went back and forth like that, with me saying that "Traffic stains" seems like reasonable wear and tear on a carpet for a 2 year occupancy, but they wouldn't budge.
Do they have any legal legs to stand on here? If in a few months I get calls/letters from a collection agency, is this something I could get overthrown if they tried to sue?
Please let me know what you think.
Thank you,
Steve
Hi Steve: The first issue I have to address is what do these "traffic stains" look like. How exactly they look is relevant to the reasonable "wear and tear" position and further speaks to the question of whether you maintained the property to a standard of "ordinary cleanliness" (see section 33 Residential Tenancies Act that sets this as the standard for a tenant). Presuming that the carpeting looks to be within the range of what one would reasonably expect after 25 months--then I agree with the position you are putting forward. The landlord is trying to get you to pay the turnover costs which in my view is improper.
DeleteBy the way, it should be noted that the landlord taking your garage door opener deposit and applying it to the charge is not legal. I appreciate the money is quite small, but you could file an application to the Board against the landlord for the return of this sum (make the demand in writing to the landlord before filing the application). The landlord is not in a position, at the Board, to commence legal proceedings against you as the Board only has jurisdiction to entertain a tenant application after the tenant goes out of possession of the unit. The landlord, if they really want to pursue this, will have to sue you in small claims court--where the cost of suing will likely exceed the amount being sued for.
If you receive collection agency calls you may of course deny the debt and require them to sue you. You can make it clear that you are not paying as a matter of principle and will fight it. Then it comes down to who blinks first and who decides that this amount of money isn't worth the effort. That of course is something for you to think about as well as this process will take up a fair amount of time and may indeed be aggravating for you--especially if you have to miss work to attend hearings. The counter of course is that some things are a matter of principle and if someone or some corporation is treating you badly sometimes it is worth the disproportionate effort to make the point. Only you can know that.
With respect to what may be in your lease (to which they refer you), google the case Montgomery v. Van which is a snow shoveling case where the landlord tried to impose maintenance obligations on a tenant.
Good luck.
Michael K. E. Thiele
Thank you Mr. Thiele very much for your blog. I've found it quite informative. My mother (a senior) rents out her basement apartment to augment her pension. The tenants who recently moved out left the apartment in a terrible state. We don't have any record of how it looked before they moved in so we have no recourse...... this time. But next time? I'm definitely creating a checklist and taking pictures for any subsequent tenants. Thank you. Lesson learned. Ouch.
ReplyDeleteHi OshawaMary: Thank you for the compliment on the blog. Just because you do not have a record of pre-move in condition does not mean that there is no recourse at all. Your mother could in fact still sue the tenants and she could make a claim for the condition that the unit was left in. What is more difficult is proving her damages. This is especially the case if the damage is to things that could conceivably been in poor shape at the commencement of the tenancy. As the person bringing a claim you have the burden of proof in establishing the condition of the unit. Your mother's word could indeed be good enough or perhaps the tenants will not deny doing the damage. My point for you is that there may indeed be recourse against the tenants and the failure to have a clear record of the condition of the unit prior to the commencement of the tenancy does not mean that there is no case at all. It is just a much more difficult case and the risks associated with litigating (i.e. costs) increases when you don't have the necessary evidence.
DeleteGood luck in the future and I hope that your mother never needs to refer to the move in inspection reports for her future tenants.
Michael K. E. Thiele
www.ottawalawyers.com
Michael, your blog is an incredible resource. Kudos!
ReplyDeleteI'm facing an issue with my landlord currently, and haven't found any direction in the LTA or its regulations. My lease states that I will pay a $50 deductible towards any appliance repairs. In chatting with friends, I realize this is a clause that none of them have.
In making arrangements to have my stove repaired (for an issue that is not the result of my negligence), it's become clear that I'm the one that needs to call the contractor, pay the whole fee, take a day off of work so the appliance can be fixed, and then if it is determined (by who?!) that the repair was not due to my negligence, the landlord will pay me the repair cost minus the deductible (paid by me).
Is this kosher? On principle, I'm struggling to reconcile being a renter, and having to take on the maintenance of appliance repairs in my apartment unit like an owner would. I can't take a day off of work, and don't want to pay towards the appliance repair for an issue that may be caused by the previous tenant. Have you encountered this type of situation before? Any guidance on where to look so I can back up my response to my absentee landlord?
Thanks,
Jennifer Kidman
Hi Jennifer: This is definitely not kosher in Ontario! The landlord has a statutory duty to maintain and repair the rental unit--which includes the appliances inside the rental unit--like the stove. The applicable section is section 20 of the Ontario Residential Tenancies Act. The clause in your lease where you agreed to pay a deductible is void as that clause is inconsistent with the statutory obligations of a landlord. The section of the RTA that makes this clause illegal is section 4. Where you potentially have liability for an appliance repair---or any kind of repair to anything in the unit--is under section 34 of the RTA which imposes on tenants liability for damage caused by them either wilfully or negligently. The burden to prove wilful or negligent conduct rests on the landlord.
DeleteYou don't have to pay a deductible, you don't have to be home when the repair guy comes. This is the landlord's job. All of that being said, you have a broken oven and a landlord who isn't playing by the rules. How do you win this--i.e. get a working stove and not be out of pocket? You could deal with it head on and confront the landlord and demand that he comply with his obligations under the RTA--and while you're fighting that fight, live without a stove for a while. Alternatively, you could be a little passive aggressive and seek confirmation from the landlord that he requires you to contact the repair guy, have him show up, pay the repair and then submit the bill to the landlord. Get this confirmation in writing--email, text, however. Then, schedule a repair at your convenience (take a Saturday morning appointment if you have to or pay a premium for a time that works for you). Have the stove repaired and send the landlord the bill and ask to be reimbursed immediately. Then confirm that failing reimbursement you will seek an Order from the landlord and tenant board authorizing you to deduct the entire amount from the rent (which is the way the LTB wants you to do it). Alternatively, though it's frowned upon, you would simply write to the landlord after his failure to reimburse and advise that you are deducting the entire payment from the rent (self help remedy) and you can then cite him the sections of the Act and perhaps point out that the repair guy you hired noted on the invoice that the thing that was broken was not the fault of the tenant. The landlord could try to serve you with a termination for non-payment of rent (Form N4) and he could even file the N4/L1 with the Board and spend $170 doing it. Fortunately, you have an automatic right to raise in defence to any Landlord application for termination for non-payment of rent (without filing any application) anything that you could have claimed by application. Hence, you would claim the cost of repairs of the stove and show the Board the letter explaining your reasons for deducting the amount from the rent in the first place. If it actually got this far, you would win that application as the landlord would get his rent and you would get your repair cost--net total zero dollars changes hands except the landlord is out $170 for filing the application.
Anyway, hope that helps.
Cheers
Michael K. E. Thiele
www.ottawalawyers.com
Michael, thank you for your thorough response. People in the Ottawa-area are lucky to have you as a potential advocate. I feel more confident dealing with my landlord now. I will draft a letter citing the relevant sections of the RTA, and barring that, will consider going the LTB route.
ReplyDeleteHi Michael,
ReplyDeleteThanks for doing this blog, the information has been very helpful!
I'm in a similar situation to some others here with a few complications. Hopefully you can shed some light on my responsibilities.
The landlord was adversarial from the start. My solution was to deal with them as little as possible. I was generally a model tenant, paid my rent on time, did most routine maintenance, and fixed as many issues myself as i could.
I gave my written 60 days notice, but ended up moving out early. I'm now several hours away and unsure if i can return.
Prior to leaving the apartment was well cleaned (certainly beyond the standard of ordinary cleanliness). I patched holes in the walls (some ~2cm ones from drywall anchors) including a number that were there when we moved in. I did not paint over them as i was not sure the paint would match. There were some old paint cans available.
The landlord has indicated that the cleaning was not sufficient, the patches were improperly done and need to be painted over. They have indicated that they will hire cleaners and painters and will change the locks once finished.
I don't have pictures of when we moved in and didn't take any after leaving. The landlord's inspection happened after i left, but I'm paid up until the end of the month.
Are the wall patches/painting considered undue damage and my responsibility? I've done patching before several times with no complaints and did a better job than previous tenants.
Can they change the locks after finishing the work and before the end of the month if i 'm still technically the tenant?
If i decide to do nothing, what happens then? I've tried to act in good faith, but i feel I’m being taken advantage of.
Hi:
DeleteThe concerning part of this story is that you don't have any evidence of the condition of the premises when you moved in and when you moved out. Some pictures and video would have been wonderful to have. While your rent is paid up you are still a tenant and you have a right to access the premises. If you returned your keys and expressed the intention to return vacant possession to the landlord then whether you have a right to re-enter even during the paid up remainder of the term is less clear. That being said if you can get back into the unit or can have a friend access it for you, it would be worthwhile to ask (document the asking with the landlord) and if you get in take lots of photos to prove the condition.
Having photographs is important if you expect that the landlord will be less than truthful about the condition of the premises.
Other than that, there is very little that you can do. Simply wait and see if the landlord pursues you for damages. It would likely be a Small Claims Court case and the landlord would have the burden of proof. The landlord's burden is not easily discharged so don't be too discouraged by this process. The Court would hear your evidence and it would weigh the credibility of the landlord and yourself before deciding anything. Further, if the amount being claimed is rather small then it is unlikely that the landlord will bother to sue you as the time and expense of the proceeding doesn't make it worthwhile.
Best of luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteJust wanted to say thanks for your blog and all this advice!
I was wondering if it is possible to evict a tenant for past willful damage? Upon getting locked out of their apartment (forgot their keys), our tenants asked another tenant to break their door handle off, which caused irreparable damage to the door. At the time the tenants indicated that there had been an "incident" and implied the lock mechanism has stopped working. Upon inspection and talking to the other tenant it became clear they had misrepresented the situation. The tenants eventually agreed to pay for a new lock and a small amount to cover the damages. We were trying to be accommodating to these tenants, but are now wondering if we have grounds to evict? Or does accepting their repair money nullify their willful damage? The amount they paid would not be enough to replace the door and professional lock installation would have been considerably more than we charged them. Thanks for any advice you can give!
Hi:
DeleteI don't think that there is necessarily an absolutely correct answer to your question. Yes, you could serve a Notice of Termination for the damage--N5 or N7. The N5 is voidable, the N7 not on the basis of willful damage. You could ask for the actual cost of repair in the N5--or straight damages in an L2 based on the N7 (i.e. termination and compensation for damage). Whether either of these Notices is successful depends on how the evidence comes out, whether the tenant pays, etc.--whether there is a level of deception here that the Board would be inclined to disregard your initial willingness to negotiate a continued tenancy with the tenants.
All of that being said. I think there is very little chance of success with an N5 or N7. Your willingness to negotiate initially---and it looks like the agreement to pay came after the revelation of misrepresentation--pretty much precludes success. Even though the basis to serve was present--an N5 is voidable for damage upon payment or making such other arrangement with the landlord. You did that, though without a served N5. I think an adjudicator would say you've lost the right to serve the N5 but if he didn't say that he would most certainly exercise his discretion not to terminate under section 83 based on the deal you already made.
I think that if you follow through with the Notice of Termination, and the matter goes to a full hearing, you are likely to lose and not get the eviction you are seeking. However, nothing is ever black or white and maybe serving the Notice of Termination would put your tenants in a bargaining mood to agree to terminate at mediation.
Anyway, best of luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteGreat Blog. I signed a lease stating that I not make any cosmetic changes to my apartment - which actually specify painting walls - without my landlord's express, written consent. However, I painted the walls without her permission. I gave my 60 days notice and will be leaving at the end of the month. My landlord wants the walls restored to their previous, professionally painted colors, and have the work approved by either her or her representatives, or, pay her to arrange for the work to be done. She received quotes for the work, with the estimate of it costing $300. If I don't comply, she threaten to sue me in small claims court. Does this situation count as reasonable wear and tear? Does she have any ground to stand on? Please note that the walls were not newly painted when we moved in.
Thanks for your help. It's appreciated.
Dave
Hi Dave: Restricting the painting of walls or changing the colours is fairly common. It does not count as "normal" wear and tear. If the walls were in terrible condition at the time that you painted them you could argue that the landlord was obliged to paint the walls in any event and that by painting them yourself you simply delayed the paint job that the landlord would have had to do in any event. If there was nothing wrong with the paint at the commencement of your tenancy and the length of your tenancy would not call for a re-painting prior to a new tenant taking possession then it is likely that the landlord is entitled to be compensated for the cost of painting. Some Judges will take into account that the landlord gets the benefit of a newly painted wall and that you should not be on the hook for the entire cost of repainting--i.e. presume a paint job is good for 5 years. You painted it at year 2, lived there for 2 years and then moved out. The landlord loses one year of use of the paint job hence you should be responsible for 20% of the new paint job which effectively gives the landlord the one year she lost by you painting.
DeleteHow big a deal the painting is often turns on the colour you painted the wall as well. Dark colours are more difficult to paint over and by their nature are not neutral which means they need to be changed. Lighter colours that are near neutral are less significant and it is arguable that these colours don't really need to be changed for the next tenant. Context is everything of course depending on the nature of the rental unit.
Hope that helps
Michael K E. Thiele
In all fairness, it seems rather odd that this tenant went ahead and painted the walls knowing fully well that he had given an undertaking not to do so without the consent of the landlord.
DeleteThis is the kind of thing that annoys me to no end when tenants think landlords can absorb abuse against their will.
A tenant did the same thing to my beautiful home because he felt the milky white walls felt cold to him. As a consequence, I am stuck with the most horrible browns and greens in a home that was designed with utmost reflection of its character.
Most times, the landlord gets shafted and this LTA makes life even more miserable for folks who have acquired an asset with hard work and on which they depend on their sustenance.
Being a landlord myself, I completely agree with you. IMO, the LTA is tilted in favour of tenants.
DeleteHi Michael,
ReplyDeleteCould you please explain how useful life would usually be applied to something the tenant is asked to replace?
For example:
The landlord is claiming damages to kitchen cabinet doors in a 10+ year old home, labour and costs for painting he did himself, broken tiles (3), and some very minor drywall patching.
1) Assuming that somehow the judge found in favor of the landlord (small claims), would the landlord be entitled to full replacement at 100%, or would useful life factor into this somehow?
2) When the landlord requests to be compensated for damages, is he required to provide invoices of actual costs, or just an estimates? Should these be provided prior to going to court, or only when serving a claim?
3) How would a landlord be expected to charge for painting he did himself? I help repaint a friend's rental units every time he takes on a new tenant. From experience, I know the costs are approximately 300 for the sq footage of the unit using high quality paint, and would take about 15-20 hours to repaint entirely depending on your experience level. How would labour be calculated for this? (For my case, we are being charged 2300.00 to repaint, so he is valuing his time at almost 2000.00)
My situation is similar to the above. I'm just wondering how the court evaluates these types of claims...
Thanks,
LVJ
Hi LVJ:
DeleteThanks for the question. I will answer generally as there are a great number of ways that a Court could deal with the situation you are describing. There are no hard and fast rules for calculation of damages. So, using your numbering, I comment as follows:
1) Generally speaking a Court would look to compensate a landlord for the value of what was lost. Hence, a carpet that is 1 year old will be compensated for differently than a carpet that is 15 years old. You can look at this a number of ways. You could ask, what is the fair market value of a 1 year old carpet. Given how new it is one would expect it to have a value that is closer to "new" than a carpet that is 5 years old. If you compare this approach to cars--just imagine the value of a 2013 car versus the same model car in the 2005 model year. The market value of the later model will be higher than older model. The problem with this kind of analysis is that establishing a fair market value for used carpet (or cabinet doors) is quite difficult. It is quite likely that used carpet or cabinet doors have very little value to no commercial value regardless of age as there isn't a realistic market for used items like these. In this circumstances a Judge may be persuaded to look at the loss from the perspective of useful life and assess the cost based on useful life. That sometimes looks as follows: imagine that cabinet doors have a useful life of 20 years. The cabinet doors have been in place for 10 years. In year 11 the tenant destroys the doors beyond repair. When installed, the cabinet doors cost $1000. Now, those same cabinet doors cost $2000. With respect to the original cost the value of the doors on an annual basis is $1000/20=$50. The landlord got 11 years of value out of them and has lost 9years at $50 hence $450. However, new doors cost more in fact double--so perhaps the fair thing is to have the tenant pay for new doors for the 9 years the landlord lost 9 times $100 ($2000/20years=$100 per year). The landlord absorbs the cost for the new doors 11 years worth at $1100 as he continues to have the benefit. Looking at it this way, you have a range of $450 to $1100. There being no science in assessing these damages a Judge may then simply decide that splitting the difference is "fair" and award $775. How the Judge looks at it will be informed by the circumstances---i.e. what kind of damage was done, how was it done, etc.. Intentional vandalism/destruction will get a harsher treatment than damage caused by accident/negligence. The landlord will be looked at as well and just because something has a useful life of 20 years the Court will look at what was realistic---how beat up were the cabinets, what kinds of tenants rent here, what could reasonably be expected.
2) The Court likes to award damages based on actual expenses and invoices. Given the amount of time it takes to get through a small claims court case it would be unusual for work not to have been completed by the trial--in which case you wonder if the work will ever be done and the expenses ever incurred. Certainly, a Judge could accept an estimate, but again it is context that determines how that turns out.
Delete3) The landlord could not expect to get paid more than what a professional would charge. He also could not expect to use the highest end painters to paint a lower end unit. Would he really spend $2300 of his own money to paint the unit? Your best way to answer a demand for $2300 is to either get an Order to have "your" painter go look at the place to give a quote or get pictures of the unit to show a painter and get a quote or get an agreement as to the square footage of the walls, calculate the amount of paint to be used and get an hourly rate for painting. You could extrapolate an estimate from statistics on average hourly wages for house painters (perhaps even Statistics Canada--stats). That kind of evidence, I think, would be fairly compelling and demonstrate that the landlord's claim is just an attempt at a cash grab. Note as well that "paint jobs" also have a useful life and you can calculate value on this as well--i.e. the landlord gets a "betterment" for the repainting that you should not have to pay for.
Cheers
Michael K. E. Thiele
I read your answers regarding landlord and tenants issues and they were really useful. I was living in a 2 bedroom apartment for 16 months and when I moved out there was minor stains in the carpet of living room and another spot of stain in the small bedroom. I was initially told that they will just replace the living room carpet and I will be charged for that. Superintendent was telling me that it might be around 350-400. I was kind of okay with that. Now they have sent me a bill for $1170 saying they replaced the carpet for the whole apartment and they had spent $1760 for the whole unit and I have to pay $1170 of $1760. I did not pay that amount as I felt it is unreasonable paying this high. Now they have handed this matter to the collection agency and he started calling me and asking to pay the full amount. I negotiated to pay 50% but they did not come down. I am not sure if I could challenge them to dispute the amount as I never end up such situation. I appreciate your opinion and guide on this matter. Thank you for your time.
ReplyDeleteExcellent blog. Our former landlord wants to be compensated for a broken screen, which we had indeed damaged and forgot to replace before moving out. All we asked was to be notified of the cost. The landlord went ahead and hired a contractor to do the work, which comes up to almost $250 for a $12 screen. Is there any obligation on the landlord's part to get a former tenant's consent for work before it's done? I would have gladly put the screen in for free.
ReplyDeleteHi: The landlord does not need to get your consent, especially if you are out of possession. That being said, the landlord is obliged to get the work done for a reasonable cost. $250 for a typical screen is crazy as you can DIY for quite cheap. You should inquire about the invoice. There is clearly more on it than just a typical screen.
DeleteMichael K. E. Thiele
Hi I am in a odd situation we have been having issues with our lock in our appartment for over 2 years last winter it froze i informed my landlord and it took about 3 months for them to fix it, during this time we only had the door knob lock no deadbolt. summer came and the deadbolt started break down again and again 3 months with no dead bolt before having it fixed, this winter it started freezing they said they where going to put in a fan, they did not and evently the key broke off inside the lock. they replaced the lock and again it froze only this time shut, my wife could not get in contact with my landlord and i could not get inside all windows where frozen shut as well so i broke the door in. damaged the door frame and the trim. what can they charge me for this if they do the repairs themselves?
ReplyDeleteHi: As a tenant you are liable for wilful or negligent damage to the rental unit. What is interesting in this case is whether what you did constitutes "damage". Being locked out of the rental unit, presumably on a cold day, no way to get in, with an unreachable landlord--you didn't have many options. It seems to me that breaking in the door--trying to make as little damage as possible--was necessary and not something that would be considered "damage". Certainly the long history of problems with the lock on that door speaks in your favour. My inclination would be to argue that you owe nothing.
DeleteThat being said, if the landlord takes a contrary view, and the landlord did the work themselves, you could only be asked to pay for the cost of repair. That would include material that had to be replaced because of your actions (though likely not the lock as it was already damaged) and perhaps some labour if an employee is being paid. If it is the owner themselves that is doing the work then I'd give an average hourly wage of around $25 to $50 and allow a reasonable time for the work.
If the landlord does actually pursue you for payment I think it would be fair to suggest that you need at least an equal amount for a rent abatement for the constant problems that this lock gave you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I have a 5 year lease. Landlord has been a "treat" to deal with the past 2 years in. There is a laundry list of of complaints, but most recently we discovered the house being rented has mice, squirrels AND bats. Landlord contacted pest control, patched up some areas on the outside of the house and since, the mice have been IN the house. Found under couches, droppings on the kitchen counters, some live, some dead. Pest control also indicated bats are BAD! and riding the house of them would be upwards of 10,000. The landlord has flat out refused.
ReplyDeleteQuestions: if we gave notice to end the tenancy early, could they try to come after us for the remaining term? ( 3 years)
I assume they are breaking the law by renting out a house infested with bats, squirrels and rodents, is this municipal, would we contact the city?
Clearly we want out immediately, i've read the terms abatement, is this a scenario where we could go after expenses for moving, first/last, no rent to the current landlord until we secure housing (ASAP).
Any advice would be appreciated.
Hi:
DeleteI think your situation calls for a frank conversation with the landlord. Confirm in writing with the landlord that you have been told it will cost $10K to deal with the bats and that you understand that he is refusing to spend the money. Hopefully the landlord will then agree to meeting and having a reasonable discussion. Just as you have said in your comments above. Tell the landlord that living in a house with so many pests is simply unacceptable. The issue is getting rid of the pests and then having the house professionally cleaned to get rid of what the pests left behind. From the sounds of it, your pest infestation is severe. This suggests to me that they have been in the home for long time and are well established. There will be a fair amount of cleaning that needs to be done. I am certainly no expert, but I understand that exposure to large amounts of fecal matter--especially from bats--can be quite harmful to human health.
Anyway, have this discussion with your landlord with a FORM N11 in hand. This is an Agreement to Terminate Form. You can pick any date and both of you need to sign it (so bring two copies--one for you and one for him). The form is available on the Landlord and Tenant Board website. A signed form N11 terminates a tenancy and all of your obligations to the landlord.
If the landlord does not agree to sign the N11 on the strength of your assertion that living in a pest infested house is unacceptable, then you should inform him of your only remaining option. That option is to collect evidence of the infestation. Talk to the Pest Control people about the $10K quote to rid the house of bats. With proper breathing protection, perhaps pop the attic hatch (which is where I presume the bats are) and take pictures of the mess. Better yet, and perhaps preferable, get someone with expertise in bats to take a look, take a picture, and give you a quote on cleaning and ridding the house of bats. If the pest control people who were already there are willing to give this information to you then use that. They will likely have brochures setting out the health risks of bat droppings which is also useful evidence. Call property standards in your city, town, township. There will likely be a by-law dealing with this issue. You may be referred to the health department of the city/town/township. Whoever they have, get them out to do an inspection. Your point will not be to get an Order for the landlord to fix the problem---though they may make the order regardless of what you want. Your goal is to get a report that verifies the condition of the premises with all of the pests.
Once you collect evidence of the infestation you will hopefully have enough to establish that the house is not fit for habitation. In fact, you may get that kind of "expert" opinion from the pest guys--and perhaps you will have pictures of mounds of bat droppings in the attic. The point is to establish through evidence, that the house is not fit for habitation. "Fit for habitation" is one of the obligations of the landlord under the RTA---the landlord must provide you with premises that are fit for habitation failing which he is in breach of his obligations under the RTA which entitles you to remedies (rent abatement, order for repairs, termination, damages, etc.).
DeleteThen you file with the Landlord and Tenant Board a T2 application. This is a tenant's rights application. One of the remedies you can ask for in this application is for a termination of the tenancy. There is a competing argument against termination and that is for the Board to order the landlord to repair the premises. You will want to focus on termination of the tenancy because you do not want to live through the process of removing the pests and their droppings from the house. The Board's first inclination is not to terminate the tenancy but instead to order compliance with obligations under the RTA. To overcome this inclination you should highlight the impact of exposure to the animal droppings on your immediate health. The point is to argue that you should not be exposed to these health risks while a reluctant landlord takes steps to deal with the health hazards.
You may also ask for additional remedies in the application. If you establish that the premises are not fit for habitation then it may be quite reasonable to ask for a 100% rent abatement. So, go back one year, multiply the rent by 12 and ask for that as well. The limit is $25K at the Landlord and Tenant Board. How much you get will be dependent on how compelling your evidence is. If, for example, you were able to establish a directly caused health condition as a result of exposure to the droppings and pests then I'd say your chances of a high abatement is greatly increased.
You may not actually be motivated by winning a rent abatement. Some clients tell me that they just want out and don't care about the past--they just want to get on with the future. That may be true, but I strongly encourage you to ask for the rent abatement because even if you are not motivated by the money it is likely that your landlord is. Your landlord may be inclined to negotiate an end to your tenancy on satisfactory terms to you if he fears being ordered to pay an entire year's worth of rent back to you.
Good luck with this matter. Please let me know how it goes.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you SO much for your response! truly appreciated. I will update you for sure.
DeleteIt's getting worse. She accused of causing it with decorative bales of hay, saying we keep garbage in the yard, which we do in garbage cans like the rest of the city until collection. We clean out recyclables as well. She has started harassing me by saying I should close my daycare which is my source of income . We are actively looking for a new home, but it takes time. Now what? The mice are worse and her attacks are quite frankly not relevant and insulting. Do we just call the public health board? We do not want to file the notice of termination without a home, we have a business and two small children one of which has severe health issues.
DeleteExtremely generous blog on your part. Thank you, Mr. Thiele!
ReplyDeleteFacts: 50 year old man with no family and very limited means has been living alone in same Ontario appartment for 15 years. Very articulate person and VERY private (off and on under psychiatric care) to the point of refusing to go out and that any person ever enter his appartment. Recently, a distant friend of his was worried of his silence and called police who had superintendent open the door. Man was lying down on the kitchen floor and is now in the hospital for extreme weakness, perhaps for a few more weeks; also seen by psychiatrist and diagnosed with OCD (obsessive compulsive disorder) but legally competent. That friend and I were reluctantly allowed to enter the appartment to bring him a few things in the hospital. We were horrified with: the extreme dirt of kitchen and bathroom floors; upstair toilet must have leaked for years has shown by old plastic and duct tape around toilet, causing a one foot-square dirty brown hole in the kitchen ceiling immediately below the bathroom; 10 by 3 foot section of floor lifted under a (leaking?) window; accumulated dust and neglect but no visible damage to all other rooms; neat piles of hundreds of empty containers in kitchen and hallways; rented fridge overstocked with smelly bags, etc. etc. There was one similar incident some 4 or 5 years ago when police and superintendent also forced the entry and brought him to the hospital; we suspect the conditions were already quite bad. These are the only known instances when outsiders (superintendent, police, ambulance) did see these extreme conditions. Nothing more happenned 5 years ago and no reaction yet from landlord. We think that the appartment is presently completely uninhabitable; the man has agreed to give his friend a power of attorney to terminate the lease and find other accomodation but he is extremely ashamed that his living conditions will be exposed; he is clearly bright and articulate and wants to direct what his friend can and cannot do if given the PoA. The 60 year old friend has no obligation but doesn't want to abandon the tenant who clearly needs a lot of help.
Questions: where to begin!! who, legally, must do the initial cleanup; should friend approach landlord and try to negociate something and evaluate the damages and costs of repairs; is the tenant liable for damages for likely thousands of dollars; what if he has no savings and little income; is the illness a mitigating factor; is the past knowledge without intervention a factor (we don't know if the supertintendent reported his findings to the landlord then or now); can doctor's written diagnostic be of help; if 60 day notice is given now while appartment is unoccupied/ tenant in hospital, can landlord go in under emergency reasons and start repairs; should city health authorities be advised; under the general PoA, can the friend take what would be reasonable actions and tell the tenant only afterwards if he knows or suspects the tenant will be mad at him...
Thank you ever so much for any help you can provide.
Friend of a friend!
Hi:
DeleteThank you for telling this story and writing to me. I started practicing Landlord and Tenant law about 20 years ago. For a great number of years I represented mainly tenants and usually it was tenants with serious mental health problems. What you describe in this "friend of a friend" is quite unfortunately not uncommon. I have had clients with depression so severe that they have become utterly incapable of living independently and in fact have become incapable of attending to the most basic standards of hygiene and healthful living. Other than the kindness of friends who become worried, there are a great number of these tenants who die in their units as they are forgotten and suffer un-helped.
I can't begin to give you a complete answer on how to deal with all of the issues that you raise. I will suggest however, that you (or the friend who is helping this fellow) focus on the most important issues first. It is only by accident that this tenant is still alive. He was living in circumstances that are alarming and his rental unit is not fit for habitation. That he feels shame about the condition of the unit demonstrates that he knows that he shouldn't be living in such circumstances while at the same time it reveals that he is unable to help himself. The greatest favour that your friend can do for this tenant is to get him into a position where the help he needs is provided. The focus now, I think, should be in setting the tenant up with social services. Hospitals normally have social workers who are able to provide information about services and can arrange for placements etc.. It would be worthwhile to speak with the social worker and advise the social worker that the tenant can not return home as the place is not fit for habitation and there is a serious concern that he is not capable of living independently. The social worker will have suggestions on how to address these issues and should be able to start a process for a placement or some kind of supported living that will provide support to the tenant. This is not a "scary" thing for the tenant though it may need to be explained. The extent of "support" varies greatly and the answer for him may in fact be quite minimal (if he is worried about privacy and interaction with lots of people). Many of my clients were well taken care of by simply having a weekly visit with a worker from the Canadian Mental Health Association who was able to keep an eye on the tenant, maintain appointments, and ensure that cleanliness standards continued to be met in a stand alone apartment. The point is that supports and services are put in place as appropriately needed.
The key to all of this is getting the tenant to a spot where his quality of life is as good as it is reasonably possible to get. He should not be put back into a situation where his inability to look after himself will result in similar problems in the future. His word can not be accepted and his assurances that he is "okay" is not acceptable. He is getting older and it is my experience that a demonstrated inability to look after oneself (as this tenant has by living in the circumstances that he has) is not solved or fixed after one hospital stay.
DeleteMy goal for this tenant would be to find a new apartment and arrange the needed supports and services. Note that the social worker will know the types of supports and services needed and there are tests to determine what people need to live based on their personal circumstances---i.e. it is not a mysterious guessing game!
Terminating the tenancy is of course the right thing to do. The superintendent should have reported the condition of the premises to the landlord and of course the landlord has an obligation to enter the unit to fix up the place. There is no point trying to hide the damage to the unit. I do think it would be worthwhile to take photographs of the apartment to create a record of what is being dealt with. The friend of the tenant (acting under the POA), must also think about protecting himself in dealing with the tenant's property. Keeping good records and proof of what is being dealt with is definitely in his interests as the tenant's POA.
I can imagine what the apartment looks like as I have seen many as you describe. It will seem like the entire place is essentially garbage. Suggesting this to the tenant will cause offence and in fact there will be items of personal and sentimental value in the apartment. While the place looks like a disaster, there will be photographs, letters, videos/films, awards, keepsakes, mementos that are very personal to the tenant. These items will have no or little objective value but they will reflect extremely important things in his life. It is critical that these things are saved for him. I had a client who was not so lucky and the landlord retained a company to "clean" his apartment as they considered it a health hazard (hence workers in hazmat suits). That company put the entire apartment in the garbage while my client was out of the unit in hospital (he suffered from profound depression). He got home from hospital feeling "better". After entering his apartment and finding that he didn't own anything any more and that all of the personal items of his life were gone; he, in the weeks that followed committed suicide. I am haunted to this day with the thought that perhaps I could have done something more to help him.
Anyway, my point is that the focus about the apartment needs to be about rescuing the important things that are meaningful for the tenant. This will be an awful lot of work as cleaning out an apartment like this is exceptionally hard work. Don't presume that it can be done in a weekend or even over a few weeks unless there are a good number of people willing and able to help. It seems that it may very well be impractical for the tenant to return to the unit and perhaps the best thing would be to ask him what the family heirlooms are and what things need to be found and brought to him. Then also bring the things of obvious value and things that you would guess are sentimental objects.
DeleteWill the tenant potentially be liable for the damages in the unit. Probably yes. Will the landlord pursue such a claim? That is more difficult to know. If it is explained to the landlord that the tenant has serious problems perhaps not. Obviously, the significance of being responsible for damage to the unit may only matter depending on the financial circumstances of the tenant. If he has lots of money---well, then, so what if he has to pay to repair? If he has no money at all, well then he is judgment proof and there is no point in suing him. In any event, there will be set offs for the repairs and there may be ways to defend any claim in such a way as to minimize the costs. Ultimately though, this part of the circumstances is utterly irrelevant to the future of the tenant. I would be inclined to be straight forward with the landlord and explain the circumstances. If the landlord behaves obnoxiously there is always the landlord and tenant board that can make orders allowing for an orderly termination of the relationship.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
From a retired social worker/lawyer
Deleteto a practicing social worker/lawyer
(whatever your background was),
THANK YOU !
I am the 'friend' in this ' friend of a friend ' story. One point that has been missed is that the tenant in question is blaming the landlord for his OCD to flare up and cause all the ensuing problems. He would like to sue the landlord and get compensation. There were problems with the unit that the landlord refused to fix at first and later, when they wanted to, the tenant was not able to let them do it anymore because of his OCD.(it is a big outfit and the administration changed through the years)
DeleteHe has very good memory of the facts but I doubt he would have all the sufficient proofs for a court case. Is there any chances at all that it could succeed. If not can it be used in negociation with the landlord to agree to not sue each other?
The man still has some money but if he pays all the damages on top of his moving, he would be totally broke with no revenue left other than Canada Pension Plan.
Hi:
DeleteIs there a chance that a lawsuit would be successful? It is impossible to say in this context. An immediate problem may be a limitation period as the RTA has a one year limitation period (claims must be brought within one year of the issue arising). Recent caselaw suggests that the 1 year limitation period applies in the Superior Court as well. However, there are arguments that can be made and perhaps you can ground a claim on something not RTA covered. Causation, I think, will be a serious challenge. Alleging that the landlord's behaviour exacerbated OCD will require a fair amount of medical evidence and expert opinion I would presume. Does that exist? Then the question arises, what could one reasonably expect to win even if one could prove all of the allegations. In a landlord and tenant context damages are generally measured in terms of rent abatements--meaning a percentage reduction in the monthly amount of rent paid for a maximum of one year. General damages--while determined to be within the jurisdiction of the LTB to grant are rarely awarded as that isn't really the lingo of the Board. To the extent that damages are awarded, my experience is that they are really low compared to proceedings in the Superior Court.
So, should this fellow file a claim in the Superior Court? Perhaps--but the odds are not likely in his favour. The landlord may turn such a claim over to their insurer. Based only on the bald allegations you state above (perhaps the claim is better?) I can't imagine that any offer would be made. Proceeding through to a trial is unlikely as I can't imagine any law firm taking a claim like this on a contingency basis. He would have to pay for everything and I expect that the cost would exceed his assets.
Your idea that the condition of the premises could be used in defence of a landlord's claim has merit. A landlord is required to keep a rental unit in a good state of repair. The landlord appears to have been fixed with knowledge of the deficiencies and still did nothing. The increasing damage, caused by maintenance failures, may indeed be the fault of the landlord. It is an argument that can be developed and I think is one that is fairly strong.
As for paying damages. Unless it is very reasonable, I don't see why you would pay this money to the landlord just because they ask for it. Proceed to move, proceed to return possession of the rental unit. If the landlord thinks it worthwhile, they can start legal proceedings and your friend can then defend the claim. Take lots of photos of the inside of the unit to have evidence of what went wrong etc.. If a claim is initiated against your friend after he vacates the rental unit it will have to happen in Court (as opposed to the LTB). If he is in a larger City, that litigation will take a fairly long time to go through the process thereby giving him lots of time to defend and put forward his position. If he determines that he does want to take action he always has the option to file a counter-claim (taking into account limitation periods).
Note please that the scope of the questions in relation to this person are quite wide. I appreciate money is tight, but perhaps you could get him into a legal clinic for a thorough interview and hopefully get a legal opinion that fully considers all of the issues.
Good luck
Michael K. E. Thiele
November 1st: My son waits all day to pay his rent; won't walk his dog in case he misses them. Finally sees them leaving the parking lot- and chases them down to give his rent money. They say they forgot to pick his rent up and advise him he is responsible to pick up ALL dog feces on property and vacuum foyer of dog fur. When my son refuses as there are other dog owners in the building- they respond that they will call the By-Law officer and have him charged. My son asks where he is supposed to put all the dog feces he is to pick up; they tell him in his apartment garbage can. So he does... When his worker finds out, he tells my son not to vacuum the foyer, nor to pick up other dogs' feces. Better to walk the dog off property- which is hard for him due to anxiety issues- but he does. He still brings his dog's feces home to his kitchen garbage though...We collectively(workers, my son and myself) start looking for another apartment.
ReplyDeleteDecember 1st: At 4pm I receive a phone call from my son. His rent has not been picked up, but the other tenants' have been. I text both the landlord and his worker advising that my son is still waiting to pay his rent. The landlord arrives about 1/2 an hour later.
December 4th: My son phones me the landlord has been at his apartment, tried to enter it to do a "welfare" check. He would not let them in. They shout at him in the foyer about smell and dog hair on the carpet and stairs (my son's apartment is ground level.) I call the landlord and get voice mail. I remind them they need to give 24 hours written notice to enter the apartment and that my son is not responsible for common areas and that perhaps they should not have told someone with Autism to keep dog feces in his apartment since he was doing as he was told. I also tell them that if they have issues that they are to contact his worker and meet with him and my son since services and help cannot be had if they are not aware of the issues. I leave the contact info for the APSW and Community Living again.
January 1st: Rent is picked up and my son is told he no longer has a parking spot. Any vehicles parked in the spot will be towed. He is now alienated from is friends as they won't visit as other parking in the area is metered parking. It makes it difficult for family and workers too.
ReplyDeleteFebruary 1st: Rent not picked up.
9th: Eviction notice N4 is found in door. I receive call from landlord telling me he hasn't paid rent, I reply they didn't pick it up; he wants me to pay it, I reply, not my responsibility. I suggest again he contact worker. He does asking for rent.
18th: Notice of Tribunal Hearing for March 18th.
March 9th: My son moves to another city to live with his older brother. As he was moving the landlord showed up and entered the apartment. My son had his friend, his dad and his dad's friend helping him. Police were called and landlord was advised to leave the property. He did.
We did not go to the Tribunal Hearing as he had left as per eviction notice.
March 20th: My son receives a text message from one of the tenants (who is friends with the landlord) at the building informing him that Police are looking for him with a warrant for arrest for damages of $10,000! My son is now frantic- he will not leave the house, has panic attacks. I have told him that this can't be true and even if it were; he is on ODSP and doesn't have that type of money.
Can any of this be true? Should I do anything? I am sorry this is so long- but I felt you needed to know the background history...Thank you again so very much…From: A worried Mum
Hi worried Mum:
DeleteI'd tell you what I think about this landlord but I am quite sure that you and I already share the same opinion about them.
The N4 (Notice of Termination for Non-Payment of Rent) which led to the Notice of Hearing you received on February 18th for a Hearing on March 18th, will only have led to an Order terminating the tenancy for non-payment of rent. If the rent amount ordered in the Order was paid then the eviction order would be voided and the tenancy continued. If not, the tenancy would be terminated. Given that the landlord was in the unit when your son was moving out and police had to be called, I take it that it was made clear to the landlord (at least by your son's friend, father or friend of father) that the landlord could have possession of the unit that day or the next day or some specific day. This information should have been conveyed to the adjudicator at the hearing and if it was made clear that vacant possession was returned then the adjudicator may have simply terminated the tenancy immediately and granted the landlord possession. What the landlord told the adjudicator should be reflected in the Board order and possibly in the L1/L9 update sheet that had to be handed in at the hearing.
To be clear. NO ORDER under the Residential Tenancies Act---issued by the Ontario Landlord and Tenant Board will lead to a warrant for arrest. The LTB does not have the power to make such an Order.
That being said, who knows what might have happened otherwise. This landlord certainly seemed quite willing to assert positions that had no basis in law. Who knows what they did. So, to get to the bottom of it I would do two things. First, contact the landlord and tenant board and obtain a copy of the Order that was issued as a result of the hearing. They may give you a hard time about getting a copy of the Order because of "privacy" but see what you can accomplish. If you have no luck you may wish to have your son write a letter to the Board (fax it in) requesting that his mailing address be changed to perhaps your address and that a copy of the Order be mailed to you. Your son could also authorize you, as his parent, to be entitled to get information on his behalf. You may find that you will get more cooperation if you advise the Board that your son has autism and requires help and accommodation in dealing with the Board.
Secondly, take trip to your local police department. Advise them that you were told that there is a warrant for the arrest of your son. If you can get a copy of the text message even better (and bring it with you to show the police). Advise the circumstances under which you were told of that. You can tell them that you doubt it is true but you wish to be sure. Again, you can tell them that he has autism and he needs help to deal with legal matters. I presume that the police will be helpful and kind. My personal view is that the person who texted this information---for the sole purpose of frightening your son--should himself receive a visit from the police with an eye to dealing with the mischief of sending something like this.
If the response from the police is less than kind then you may wish to consult with a criminal lawyer. If there is a warrant (which most certainly did not arise from the LTB order) then you need to make arrangements to deal with it directly and the first step is to get your son a lawyer (again I emphasize that there being an arrest warrant arising out of the LTB matter is extremely unlikely and certainly it could not have been issued by the Board).
DeleteOnce you have a copy of the Order and know about the situation from the police you can look at it and see what is actually going on. A $10,000 damage judgment is possible--but unlikely on the basis of the forms you describe being served. That being said, there may exist such a judgment if the landlord is a scoundrel and took steps to issue a claim after your son gave up possession and then "pretended" to serve the application or perhaps by serving in what normally would have been proper service but then omitting to tell the Board that your son moved out. All of this can be figured out from the Orders issued by the Board. If there were improper proceedings or unfair proceedings your son will have the right to file a Request to Review and these improper Orders can be fixed. If you find problems like this you will likely want to get your son to attend a legal clinic to get a lawyer or paralegal to assist him.
Hope this works out for you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Mr. Thiele, thank you so very much. I'm only reading your response now, as I had no idea you had responded! I ended up calling the LTB and they didn't want to give me too much information until I explained briefly what happened- focussing more on the allegations. The woman then told me an order to pay $750,-one month's rent for the time he spent there into March. I filed an appeal- to have the order reviewed and stayed and sent along with the form and cheque- all my monthly documentation, doctors' diagnoses, character references- etc. I put it together in a binder, organized with a written cover letter in the front, and sections clearly labeled. I haven't heard anything yet...but I feel good about it. As for the $10,000- I was told that since I am listed with the Police as a contact person should my son be in trouble, I would have had a visit from them if they were trying to find him. Again, thank you so much! A not - so worried Mum
DeleteHi Michael,
ReplyDeleteGreat blog! I appreciate your insight into the wealth of tenancy issues that exist. Im heading to trial as the defendent of a predatory damages suit in the next couple of days. I have my evidence organized and feel that im well prepared to defend myself but am unclear on a few procedural items.
From the plaintiff's suit, plaintiff witness statement, and the settlement conference ive gleaned that the Plaintiff will be putting forward a lot of non-probative evidence. For example, a noise complaint in september is irrelevant to not returning the keys in May. Will the judge be challenging this evidence or am i supposed to challenge irrelevant evidence.
Second, i know that the first part of the trial is for presenting evidence. Then the second part of the trial is meant to assign liability to the facts that were presented. So if say a chair was broken during the tenancy, and i dont disagree with the fact that the chair was broken but instead disagree that the chair had any value and disagree that it was used negligently, when do i address that. When they submit to evidence that a chair was broken to i cross examine and ask if they have proof that it was used negligently? In the same vein, if they say the inside of the oven was dirty and i agree that the oven was dirty but it was like that when we move in. Do i make the argument that it was like that when we moved in, or do i cross-examine if they have proof that it was clean the day we moved in?
I have my arguments for what i am not liable for the multitude of charges they charged back but im just not exactly sure how or when to present them, Any clarification would be extremely helpful.
Thank you!!
Hi Michael,
ReplyDeleteI wanted to give you an update on the comment i made to this board on July 17th 2014 and maybe my experience will provide some value to your readers, whether they are tenants or Landlords.
The settlement conference failed as the plaintiff would not consider reducing her claim by the amount she was seeking for lost rent revenue. The judge advised that it was unlikely she would be awarded for it but she did not compromise so a trial was scheduled.
For those readers that dont know the process of a trial, essentially the first step is the plaintiff goes first to present evidence, then the defendent cross examines, then defendent presents evidence, and the plaintiff cross examines. theres a bit more to it but thats the bare bones. The purpose of this step is simply to present evidence to the court, you are not to make arguments at this time.
The second step is that the plaintiff makes arguments using the evidence presented in the first step as to why the defendent should be held liable. The defendent is then allowed to address specific arguments made by the plaintiff. The defendent then makes his arguments to why he should not be liable.
The judge then looks over the evidence and arguments and makes a judgement.
Generally, the presenting evidence step went as you would expect other than two statements made by the judge that really threw me off.
1) During my line of questioning to the plaintiff regarding the claim against changing the locks the judge stopped me before i finished my first question. i was asking if it was normal for them to change the locks between tenants. The judge stopped me, didnt let the plaintiff respond and indicated that he knew where i was going with this, that he's ruled that if keys arent returned he always awards the plaintiff and he would be doing the same at judgement so i should just move on. I wasnt even able to make an argument and i thought this to be extremely unfair.
2) At the end of my line questioning i was trying to establish the level of cleanliness the landlord would have been satisfied with. The plaintiff responded that it was her view that the house should be in the same condition it was when the house was released to us. The judge stopped me and said " look I have the tenancy agreement you signed right here, there are specific things in the agreement that you agreed upon exiting the unit which you didnt do, so lets move on here." . I wasnt going to argue with the judge but i was relying heavily on the fact that the house was at an ordinary level of cleanliness when i moved out but that fell short of the extremely high and specific conditions required by the tenancy agreement. Before i even defended myself or presented my own evidence the judge seemed to be heavily siding with the plaintiff.
Next i presented my evidence and we moved onto the arguments stage and this is where i think there is some valuable information for your readers. When making my arguments the first thing i brought up was Section 4 of the residential tenancies act.
4. (1) Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4.
I had copies and provided it to the judge who, either was unaware of the clause, or was not going to apply it unless i brought it up. Immediately his tone and attitude changed and it appeared that he was now listening to me. So the lesson here is dont assume the judge knows every clause in the tenancy act and bring copies of the sections that you will be relying on in court.
I then provided copies of section 33 where it outlines the standard of cleanliness required by me is "ordinary". I then made the argument that the tenancy agreement i signed was in direct conflict of section 33 and was then void.
When the judge came back he delivered his judgement. A majority of the plaintiffs $3600 claim centered around the cleanliness of the apartment. Since the plaintiff failed to show that the unit did not meet the standard of ordinary cleanliness the judge ruled that i was not responsible for the professional carpet cleaning, molly maid, and other cleaning charges. Further the plaintiffs argument was that they lost a month of rental revenue because the apartment needed to be cleaned for a month so they were not awarded that either.
ReplyDeleteHowever, the judge DID award $50 (instead of $225) for the chairs. Im not sure why since they were 15 years old and flimsy. The plaintiff couldnt prove that they were wilfully damaged or were damaged through negligence. I think he may have awarded them the $50 because we didnt report the damage to the landlord and instead just threw the chairs out. There was a clause in the agreement that stated we would report damage.
He also awarded the full $160 for the changing of the locks. i wasnt able to make any arguments related to the keys so im not surprised. Its very unfortunate because there was nothing special about the keys, i couldve walked across the street and made a copy for $2 and returned that to the landlord. Lesson learned.
Finally he awarded $100 for removing items at the property that we left behind. It looked like a few lamps and maybe a pan or something. So lesson here is remove EVERYTHING.
The total was $310 of the $3600 they were seeking. A win to me even though i dontthink i should have been liable for the keys or chairs. BUT the judge went on to award the plaintiff $400 ($190 for court costs and the rest was a bonus for them) for costs which seemed completely unfair to me. The judge said he felt that the plaintiffs went through the trouble of filing the suit and making their case and they should be compensated. I had earlier submitted evidence to the court that showed the plaintiff never even told me they were seeking compensation before i was served court documents. the judge didnt seem to care. Further, he made no reference to the fact that i had also gone through the trouble of defending against the $3,200 of frivolous claims not awarded, Very unfair in my opinion. The lesson here for your readers is that you should always make a written offer to settle at least 7 days prior to the trial. Even if you want to go to trial. The trick is to make an offer you know they wont accept but will likely be higher than the judgement. The judge will ask if any offers were made and by whom, and will use this information in his decision for costs. I feel like if i had done that then the costs awarded would have been much lower.
Thanks again. I hope my experience can be helpful to your readers
Hi: Thank you for taking the time to write about your experience I read it with great interest. Mike
DeleteQuick question. My family has been living in a unit for about 5 years and have given my landlord notice to move out - there are about 2 weeks left in the tenancy and there hasn't been an inspection yet. There was a brand new appliance which got some scratches (accidentally caused by my young daughter) that could be considered beyond normal wear and tear. This appliance works perfectly well and there are no other problems. To be fair to my landlord, what is a reasonable amount to offer him?
ReplyDeleteI've been researching about amortization of appliances and trying to understand useful life. I figure, let's say if the appliance is worth $500 and useful life is 10 years, then $250 would be a reasonable offer, however his appliance still works so you'd still have to subtract the value of the appliance with the external damage wouldn't you? So, let's say you could sell the appliance of kijiji for $150, then you are looking at a $50 re-emburesment. However, I'd be willing to give him 200 or 250 today in this case for the trouble. What about installation costs, etc?
Is my way of assessing this fair? The girl (landlord) is very nit picky, and feel they will try to take advantage of the situation based on past events which are documented, but I won't go into here.
I found an amortization calculator online which showed amortization of an appliance over 5 years. After 5 years of a $500 appliance, there was $35 left for amortization. This was based on IRS rules for tax write off's however.
What would be a decent offer to make my landlord here. Also, how can I document this legally (have her sign something), so that they can't take the money and decide later that they want more?
Hi: I would be inclined to find out what it would cost to repair the scratch/dent. Most of these things can be fixed. If fixing it is impractical the question would have to be whether the appliance can continue to be in the rental unit--is the scratch so bad that it needs to be replaced? If so, what is the market value of the appliance. Deduct that market value from a new one and pay for the new one. Maybe you take the old one and pay the landlord for the cost of a new replacement.
DeleteIf the scratch doesn't affect the operation of the appliance the idea of depreciation doesn't work very well---in my opinion. If the payment isn't to fix the appliance then what exactly is it for? Especially if the scratch doesn't actually do anything to the useful life of the appliance.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael
ReplyDeleteWe've been renting the top portion of a home with another seperate tenant in the basement for a little over a year. There has been ongoing issues with the plumbing ever since we moved in. The sinks and bathtubs clog regularly, there has been several leaks in the house in an array of areas. A couple months ago a major leak caused damage to a portion of the basement tenant's unit resulting in repair. We've had no negative effect on the plumbing and hold it in the best condition that we can. The toilets in particular have been known not to work, or struggle to work when they do. The landlord has been made aware of the problem. Just recently the toilet over flowed for no apparent reason after flushing(it was a #1). No major damage was caused and the water did not make it out of the bathroom, but there was small peeling of the drywall for the tenant downstairs. The landlord is claiming that we are responsible for the damage after he has been made aware of the deteriorating state of the toilets and entire plumbing of the house in general. Are we responsible for any damages found? The damages, if any, are minor but the landlord is claiming it may costs thousands of dollars.
Thanks!
Hi: For what you describe you are not responsible. The landlord is responsible for repair and maintenance of the premises and he can't shift that responsibility to you. You are responsible for negligent or willful damage to the rental unit/complex. Your described use of the toilet is entirely normal and usual and I don't see anything negligent or willful in the conduct you describe. If the reason for the over-flowing toilet was flushing a hard toy, cat-litter or something like that you could see how such conduct would be considered as something that caused damage through negligence.
DeleteIf your landlord is not listening to you about the frequent plumbing complaints and issues but instead is now trying to place financial blame on you, you need to be quite concerned. It's one thing for your landlord to breach his obligations and quite another to breach his obligations and then try to get you to pay for it. I would be inclined to write to the landlord to: 1) deny responsibility for any damage, 2) recount the frequent plumbing issues and problems in the premises (with dates and details as best remembered), 3) ask the landlord to have the plumbing in the house professional inspected. Perhaps with a camera down the lines to the sewer to see the condition of the pipes. This to be done by professional plumber. 4) If landlord refuses, consider calling City to see if they will order an inspection on complaint of problems (try Property Standards), 5) File an application to the Landlord and Tenant Board (T6--Maintenance Application), confirm the incidents and problems, landlord's demands for payment, and seek as a remedy that the pipes be professionally inspected (camera--or such other inspection protocol as recommended by expert).
I wouldn't normally suggest going to these lengths but it seems that your landlord has it in his head that he is going to try and make you pay for his lack of maintenance. Better that you kill that notion now, while in possession of the premises, than getting a surprise Statement of Claim after you move out that has outrageous allegations with you having no way of accessing the property to prove otherwise.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteGreat site! We have a landlord who is already insinuating that we will need to pay for "damage" to the hardwood flooring from our dog. Our lease is up in two months. The trouble here is, that you cannot see any visible damage to the flooring unless you catch it in the right light and essentially get down on your hands and knees and repeatedly look for it. In short there is no obvious damage to the flooring.This landlord has just about put us in the looney bin with her unreasonable expectations and frequent requests to enter the home for no discernible reason. We have not only maintained the property to an exceptional standard, but we did an enormous amount of work to the yard to bring the property to a standard consistent with the remainder of neighbourhood ($600,000 to 900,000 purchase range). Some of which was at our own personal expense which we have yet to reimbursed by her for.
We don't feel that whatever indentations in the floor that may be there are outside of what one would expect for a property being turned over year after year. The landlord has already stated that the flooring needs to be replaced in its entirety or totally refinished, this seems outrageous to us. We have no intent in paying for damage that must be identified by either tactile inspection or repeated visualization in the proper lighting conditions.
Additionally, when we moved into the property, she had at least half of the storage room full of her things. Our understanding is that we were renting the entire property and not just 3/4 of it. When we asked her to have it all removed, she said she had no way to do that and it had to remain. We ended up rearranging all of her things (to include heavy furniture) so we could accommodate the space we needed to store our own.
She is also listing the house with a realtor to rent it when we move from the property. She is requesting that our dog be "locked up" during the day for showings. We refused that and asked for a minimum of 24 hours notice before showings as we are preparing for in international move. (Not to mention the fact that we have three children and two full time jobs). What rights do we have with regard to lock boxes and showings?
I would appreciate your guidance with regard to the "pet damage" and our rights with regard to showings for listing the home for lease again.
1)Good afternoon, Michael (from a fellow Michael!)
ReplyDeleteDiscovering this blog has been a (secular) blessing and has helped ease my concern about a pending move.
We currently rent a townhouse, and have done so for nearly 2 full years. Shortly after moving into the unit our landlord revealed his true colours, and to keep it short, we do not get along.
My family and I are now looking to purchase a home of our own, and once we find the right property we will email him a complete N9 on the last day of the month in question and reside for the remaining 2 months.
Our lease is expired and we are month to month.
Previously the landlord 'required' that we hand over a years worth of post dated cheques on the anniversary of the day we moved in. I soon found out that he can not require this, but didn't press the issue, as we do not get along and I did not wish for an unnecessary confrontation.
He has emailed me about getting the next year's cheques, for an increased amount. I will tell him at the end of this month that I will not be providing him a full year's cheques as we intend to moveout in the near future, and instead he will just get a cheque each month. I anticipate a negative reaction from him.
I am worried, based on his nature and our very strained relationship, that he will try to claim damages against me. Thankfully he won't have any extra cheques from me to hold over my head as leverage, but I still have concerns:
We painted the downstairs and our daughter's rooms different colours: Yellow, pastel green, light blue. When we asked permission to paint he said it was fine so long as the colours were not dark, and they are not. I expect he will demand we paint them back. My first question is, do we have to paint them back? If so, my follow up question is do we have to paint the exact colour and brand he used before? (We got in an argument about an unrelated issue after the painting had been done and he said at the time that we will have to eventually paint the walls back to the exact same colour using the same expensive brand of paint he claims he used two years ago). If we are required to paint would it be sufficient to paint the rooms in question to white, and let him paint to the exact shade he wants? Furthermore, the kitchen walls are covered by a cheap, laminate veneer nailed to the walls. When he saw we painted this he was furious, though when we asked if we could paint he made no mention of not painting over this (cheap and hideous) covering.
2) Additionally, the carpet in the upstairs is of a woven variety. Sometime ago (a year or more) while vacuuming, the threads got caught in the vacuum and tore up a significant portion of it (it is in a door way and extends nearly the length of the full doorway). He did an impromptu inspection of the house sometime later, and my girlfriend showed it to him and explained how it happened. He wasn't surprised or angry at the time and just let it slide, and didnt do anything to get it fixed (which is why it is currently as long as it is, the problem was about half as big to start). Is this something he could make us pay for, since it occurred during the normal operation of a typical vacuum whilst performing the required day to day maintenance of the unit, and his failure to fix the problem at the time led to its current state? I am further worried about this because we have three cats, and while they are all de-clawed I could see him trying to claim that they caused this, somehow.
ReplyDeleteOur main floor is covered mainly by cheap imitation hardwood floor boards. Two of the boards have a minor chip in them (the biggest is no larger than a loonie). I have no idea how this occurred, but think it did happen during our tenancy (at the least, I did not see it before moving in). Would this be considered average wear and tear in a house occupied by a family of three for two years, in your opinion?
Finally, my most recent row with the gentleman occurred when the washer broke. When the repairman came a couple of days after contacting the landlord he told me that the chip in the back fried, and this it happens occasionally (the machine in question was over 5 years old). The land lord eventually had the machine replaced (2 weeks of hand-washing clothes later!) and when he came by to inspect the installation, he saw that we had been using powdered detergent and went ballistic. He claimed that the detergent caused the washer to break. I scoffed and told him there was no way that was possible, and that if he had had a concern about powdered detergent, he should have told us. He made an off hand comment about how we were responsible for the cost. I am correct in assuming this is in no way the case, correct?
Very sorry for the mouthful (or eyeful, since its written?) and would appreciate if you could anwser my concerns, even if only in part.
Thank you for the insightful blog, which has proven to be a tremendous resource for those who need help but don't know what to do!
Mike
Hi Mike:
DeleteThe good thing for you is that you already know what kind of person your landlord is and you can take steps to try to put yourself in the best position possible to address his eventual claims. I will make a few comments about the issues you raise---these are by no means exhaustive comments and certainly take such steps as the circumstances warrant.
1) Cheques: you are correct of course and the landlord may not demand post dated cheques. You do not have to give him a fixed date for termination until you are ready.
2) Paint Colours: What does the lease say about painting? There is often a clause in the lease that says no painting without landlord's consent or that walls that are painted must be returned to a neutral colour. Take guidance from your lease. Given that you know this is a live issue, I would be inclined to write to the landlord about the "paint" at the same time as serving the N9. In fact, I will recommend that you write to the landlord about all of the issues that you identify. With respect to the painting, confirm that you painted the walls, that he has seen the painted walls, and that he had given consent to paint. As you are moving out, ask him to confirm whether you should repaint the walls or how much he would charge to repaint the walls. His answer should be helpful to frame the scope of the dispute. Silence on his part can form part of your defence. Perhaps you attach photographs of the painted walls to your email to him so that it is very clear what you are going on about. The reason to do this, while still in possession, is that you have the opportunity to paint the walls yourself or hire someone to do it. Whether you absolutely must repaint the walls depends in part on your lease and part on the age of the paint job itself. You have only been in the unit for 2 years. How old is the paint job? At some point the landlord would be expected to repaint anyway and hence the need to re-paint shouldn't cost you anything. Light colours being easily painted over is good for you. A Small Claims Court Judge will understand this logic.
3) Laminate veneer. Sounds hideous. Take very good pictures of what you are talking about. Be clear in your letter to him that he gave permission to paint this laminate veneer (i.e. paneling?) and ask him what he would like done. Don't commit to doing it, but simply put the question to him so you know whether you need to deal with this further. Being in possession will allow you options. If you simply turn over possession to the landlord you may presume that he will select the most expensive method to you.
4) Carpet. Write to him, remind him of the problems with the carpet. Put in writing how the carpet became damaged. Confirm that he has never fixed it and that it got worse with the passage of time. Advise him that you don't consider this your responsibility and that you would like to advise you if he believes otherwise as you have the rights under the RTA that you would use if he takes a different position. Take lots of photos of the area. Try to get a date/age of the carpet. If you measure out the area consider getting a quote from a carpet store to replace the damaged carpet. You want this simply to frame and limit the landlord's claim---i.e. this is great evidence to have to defend yourself.
Delete5) Flooring. Advise him of the flooring chips. That you have no knowledge of how they happened and that you consider them normal wear and tear. Invite him to advise of his position. Again, attach photos and consider getting a repair quote.
6) When you proceed to give the Notice of Termination, ask him to please attend at the rental unit to do a move out inspection. Prepare a sheet with a section for every room. Then have sections for walls, flooring, ceiling, cabinets, doors, windows etc.. Create a rating system for each element--Good shape, Damaged, Normal Wear and Tear. Ask the landlord to use this form in going through the rental unit with you to identify any problems. Maybe even build photos into the form of each of the rooms and email it to him.
I appreciate that this is a fair amount of work. But it is premised on the idea that this landlord is going to try to ambush you with frivolous claims after you out and when you are not in a position to prove or disprove his allegations (i.e. no access to the premises). Don't worry too much if the landlord refuses to do a move out inspection (well in advance of moving out so you can do repairs if needed) or that he refuses to show up at all before you move out and that he refuses to answer your emails about the various issues identified. The point of all of this is to create a record and evidence of the condition of the premises. If the landlord does not respond reasonably to your emails or requests then that should count against him before a Judge who will see that you were trying to be responsible tenants. It will also confirm to the Judge that your suspicions and the need to write this documents are well founded. A reasonable landlord should have no problem responding to you in a forthright manner and be pleased to come over to do an inspection.
7) The washing machine issue strikes me as ridiculous. If there were an issue with powdered soap in that particular machine the manual would say so. Get the model number and serial number of your washing machine and take a picture of it. That should allow you to get the manuals needed to prove that the usage instructions don't restrict the use of powdered soap.
The key for tenants in your situation is to collect evidence while in possession of the property--photos, video, and to get people who will agree to be witnesses to go through the property. Some landlords ambush their tenants with legal proceedings after they have moved out and the tenants have no evidence to prove that what the landlord is saying is untrue. You have a sense that your landlord is going to come after you so take the time to collect the evidence you need to defend any anticipated action against you.
Hope that helps
Michael Thiele
www.ottawalawyers.com
Michael, thank you very much for your response which was both very detailed and prompt! This helps ease my mind a great deal and gives me my next steps.
DeleteAll the best to you.
Hello Michael
ReplyDeleteI have one which really need help
I text my landlord to have some one take over my lease the the answer is NO because I am not the home owner I can't sublet my unit. Can I consider that as a refuse? Can I have text as an evidence that I get refuse and move out with 30 days notice to my landlord ? Or do I need prove in writing as a form or letter ? And can landlord charge me a fee for one month rent if they find some one to rent my unit while they didn't let me find myself even it state on the lease that I have to pay ? Please help me out of this please?
Hi: The section that applies in relation to assignment is section 95 of the RTA. Please read it closely. If you did in fact make a general request to assign as discussed under section 95, and the landlord replied stating that he was refusing consent to assign then under section 95(4) you may give the landlord a notice of termination (form N9) under section 96 within 30 days after the date you made the request.
DeleteText messages, so long as you preserve them and can produce them when needed can certainly be evidence. You don't need a formal letter from the landlord. Just please make sure that your request to assign was clearly made and that the refusal to grant you permission to assign is also clear.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
During the walk thru we have noted a kitchen cabinet bottom that was rotted out due to leaky sink that was never brought to our attention as well as a crack in the porcelain kitchen sink. When we asked about the sink they said the plumber we had called to unclog there sink did it. Never notified us of that either. Is this considered negligence on their part and how can know how much to with hold from the deposit to get the items back to state it was rented to them.
ReplyDeleteAlso the carpet was covered in pet stains and the must have not removed their shoes ever. The tenant said to us during walk thru we cannot be charged for damaged carpet with no life expectancy left. They surely did not receive the property with urine stained carpeting. How do we go about resolving this in a fair manor? Thank you for all your insight.
Hi:
DeleteA tenant is responsible for the damage caused to the rental unit during the course of their tenancy. Reasonable wear and tear is something that you can not charge for.
Presuming that you have a move in inspection or can otherwise prove the condition of the premises when you rented to the tenants you can sue them in the small claims court or, if they are still in possession, you can start proceedings at the Landlord and Tenant Board. You will need to call witnesses to prove the extent of your costs/losses. With respect to the broken sink, you will need to call the plumber to get him to testify that he did not damage the sink and that if he had he would have reported it to you. If the plumber did, by chance, damage the sink then the tenants would not be responsible for the cost of a new sink. Otherwise, the tenant could be expected to pay the cost of a new sink presuming the old one was in good shape (i.e. not depreciated in value).
With respect to the carpets you should try to have the carpets cleaned or get a quote to see if they can be cleaned. If they can be cleaned the tenants can be held responsible for the extra costs in getting them cleaned. If the carpets are destroyed then the tenants are liable for the cost of new carpet. However, the liability for the carpet won't be 100% The old carpet clearly had some value in it before they damaged it with their pets. But for the pets and the heavy soiling how many more years of use would you have gotten out of the carpet? Under the RTA carpets are generally considered to have a useful life of 10 years (schedule to O.Reg. 516/06). This seems to me to be a bit short but you can work with that notion that there is an anticipated useful life of things in a rental unit. Take the cost of a new carpet and spread it out over the useful life of the carpet. Hence, if the carpet costs $2000 and it has 10 years of use then each year of useful life is worth $200. If the tenant's have deprived you of useful life then one way to calculate what they owe is to use this method of calculation to charge them for the useful life of the carpet that they took from you. If you figured that your old carpet was good for another 2, 3, 4, or whatever number of years and you've lost that then attribute the value of those lost years to the carpet.
Note that in my experience, a judge in the small claims court will pick a number that seems fair. The Judge won't use an exact formula but the Judge will recognize that the tenant needs to pay for the lost value of the carpet that was destroyed but at the same time the tenant should not have to pay for a brand new carpet as there is a benefit in the new carpet to you.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael.
ReplyDeleteI own a condo, and my tenants moved out last Friday (mid month). They are paid up to the end of the month. They informed me they would be leaving some items behind, which I consented to. However, there are shelves and a flat screen tv still affixed to the walls, and I need them to be removed in order to patch the holes and paint. I asked them to remove these items because I want to start patching/painting this weekend and they said they would "try" to do it by the date requested. They are now telling me that one of them will be sleeping at the unit Friday night and will leave Sat. afternoon. All the furniture in the unit has been moved out and there are only small items left behind. I suspect they are doing this because they are not happy that I declined to prorate their last month's rent based on their planned mid-month move out date, and they want to make my life difficult and/or impede my ability to find tenants for May as retribution for the 1/2 month rent they are paying after their move out date. I base this suspicion on the fact that their initial move out date was Apr. 17th on the N9 form, but then changed it to April 30th when I declined to prorate, which I was fine with. However, they then declined access to/cancelled the majority of appointments by my realtor to show the unit to potential tenants, leaving me with possibly no tenant for the month of May. When I confronted them about not allowing a majority of the viewings, they minimized the number of cancellations ("there were only a couple") and claimed that they were busy working at home those days and could not be interrupted (even on the weekend) but once they move out, of course, they would be more than willing to let anyone come in to view the unit.
Some questions:
1. Considering they are all paid up for April, is it within their rights to leave belongings behind which will impinge on my ability to make repairs to holes caused they their belongings? If the items are not removed by the date requested, is it within my rights to remove their items from the walls? They left a fair number of scuff marks on the walls which cannot be washed off, so the unit is in need of a good paint job.
2. Am I now allowed entry to the unit without giving them 24 hours notice to repair, paint, clean etc, given that they have moved out all of their furniture (except some small items) and have vacated the property, even though they have paid up for the month?
3. Do I have any recourse re: possible loss of rent for one month, given that they did not allow a majority of the showings? By majority I mean 10 of 15 requests.
4. Generally speaking, for the next tenant, is it within my right to start repairing holes in the walls before the last day of their tenancy? If they move out on the very last day of the month, I see it as nearly impossible to do repair work for the next tenant moving in the following day. Is there a standard way landlords deal with this issue?
Thank you very much.
M.W.
Hi:
DeleteBecause the rent is paid up the tenants are entitled to possession of the rental unit to the end of the month. You don't actually have the right to enter the unit to do turnover work until the unit is in fact returned to you. You may of course enter to do maintenance and repairs on proper notice but this is different than prepping the unit for turnover (i.e.--the kind of work that requires vacant possession). Because the rent is paid up you have no right to remove the tenant's property or move it around for unit turnover purposes.
The claim for a loss of a month's rent (maybe more) is a "possible" claim. Pursuant to section 26(3) you have the right to enter the rental unit without written notice to show the unit to prospective tenants (with the caveat that you are to make a reasonable effort to inform the tenants of your intention to do so--s.26(3)(c)). The tenants were not really in a position to refuse your requests to show the unit as per section 26--though I would say that section is tempered by human decency and reasonableness. 10 out of 15 requests at reasonable times of the day at different hours does seem to be an excessive amount of refusals. If you can connect these refusals with not renting the unit sooner then you have a claim---though I wouldn't say it was a slam dunk by any means. The damages, in a sense are speculative. Further, to make the case better it would have been ideal had you, at the time of the refusal, notified the tenant that they didn't have the right to refuse the showing and that you would be seeking damages for their refusal. If they continued to refuse after the warning then I think a claim for damages would be stronger. Now they will simply say that they thought their refusal and explanation was acceptable to you.
Renting out a unit, back to back with a tenant moving out and a new tenant moving in has always been a problem. There is no perfect solution and often enough a landlord rushes into a unit between tenants to quickly clean and do some basics. The kinds of repairs that you are talking about simply can't be done unless you get early possession or delay the commencement of the next tenancy. In your situation, given that the tenants have left early and there is value to you in getting the unit early the situation calls for you making a deal with the tenants to give up what they are legally entitled to have--i.e. quiet possession until the end of term.
It may very well be that your tenants are being difficult because you did not agree to pro-rate the rent. In these circumstances, and given the steps they are taking to maintain possession, you should be very careful about entering early as one would expect the tenants to be looking for you to do that so they can file an application to the Board. It seems petty, but asserting possession in this way (Television and sleeping there without beds etc..) must be rather inconvenient to the tenants so they are clearly intending to make a point.
Michael K. E. Thiele
www.ottawalawyers.com
I moved into a basement room of a house last year that was being renovated at the time. I asked the landlords if i could pick out a paint colour for my room. I did. When I inspected the house on move in they had a sheet for me to sign off on, that hand written was "will pay for room to be repainted as stated in lease". I never agreed to this nor is it in my lease. I have moved out and have received a bill for 175.00. The estimate to repaint my bedroom. Can they do this?
ReplyDeleteHi Michael,
ReplyDeleteI must say that this is a wonderful blog. Thank you very much for your expert advice on many problems tenants are facing in Ontario.
My daughter took up a basement room in Ottawa as she is studying there. The Lease was executed between the Land lord and my wife. Recently, the water started leaking from under the seat in the toilet. This fact was not noticed by my daughter who was extremely busy with her exams and mostly stayed with her friend for combined study. It seems, the city called the landlord and told him about the leak. He came to the room and fixed it immediately. Now, he has got a bill for $900 and is blaming that since my daughter did not notice it and report to him, she is responsible. When I verified with my daughter, she says the water leaks from inside, no water comes out and it was not easy for her to notice. In fact, in the lease agreement, Land lord is responsible for the water and sewerage charges. He is threatening us to terminate the lease and withhold the last month's rent and report to LTB.
Our stand is, as a Land lord, he is responsible for the maintenance of the facility more so he has clearly agreed as responsible for water and sewerage charges whether reasonable or not.
Please let me know if we are correct as the month-end is approaching fast. What is important? His failure to maintain the facility as a Land lord or my daughter's failure to notice the issue as a tenant?
Desperately waiting for your view as he has given us today as the deadline to decide. Thanks.
Hi: Based on the facts you have provided to me here I see no basis for the landlord's claim against your daughter or wife. When you say that the toilet was leaking under the seat I do not understand what you mean by that. Presumably though, the leak was in a place where it could not be seen nor heard. Leaks like that can certainly happen and these are not the responsibility of a tenant. The landlord is liable for repair and maintenance in a residential rental unit regardless of what he may like to say.
DeleteThe landlord's threat about terminating the lease, withholding the LMR deposit and reporting to the LTB is a bluff that you should feel free to call. The landlord is only entitled to serve a Notice of Termination (presumably in a Form N5). Read that form and you will see that you may disagree with the Notice and simply do nothing. The landlord must then apply to the Landlord and Tenant Board for an order to terminate the tenancy and for the $900 water bill. Again, based on what I see here, the landlord will not be successful in such an application. Threatening a report to the LTB means nothing at all as the LTB does not receive "reports" from landlords.
Please note that a landlord is not entitled to simply terminate a lease because he wants to. Your landlord is making it sound like he believes he has that right. That is not the case in Ontario.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteI am extremely thankful for your timely reply. Can we move ahead with serving the Landlord with 'Tenant's notice to End the Tenancy' - N9? It will be for a period of 30 days. We are not thinking of paying him the rent for the last month. Is that correct? Can he still insist us to pay the rent for the last month? Once the notice period ends, we will move out. Can he still move ahead with his claim through LTB? What happens next? A million thanks again.
Hi: If you wish to terminate your lease and you are at the end of term or on a month to month tenancy then you may serve the N9 form. The minimum number of days notice in the N9 form (for a month to month tenancy or at the end of a fixed term) is 60 days. Hence, if you serve the N9 today (April 28), the earliest effective date for the termination of the tenancy is June 30, 2015 (60 days minimum to the end of term).
DeleteDuring the notice period you pay rent normally except of course for the prepaid month of rent that is covered by the last month's rent deposit. During this notice period the landlord may file and serve any notices and applications that he wishes and of course you may also file any applications you wish against the landlord. The Notice of Termination does not deprive either the landlord or tenant from pursuing their legal rights.
Michael K. E. Thiele
Hi Michael,
DeleteIn fact, he has served us N5 form on April 26, 2015 with a termination date of May 3, 2015. Shouldn't he set the termination date at least 20 days? Is it valid? He has sent N5 by e-mail. He has just typed his name where he should have signed. Will it be a valid service?
You said that N9 must have at least 60 days. What happens if we give 30 days as my daughter is likely to get another place on June 1st? Landlord also has collected $180 from my daughter towards water bill. My daughter paid to resolve this issue by herself. Initial estimate was $360 and he had agreed to pay half. When he got a bill for $900 he wanted to force everything on her. In case we must stay there for 60 days, can we adjust $180 against May rent and adjust the LMR for June? I am sorry for bothering you again and again. We are new in Canada and this would be a huge burden for us for no fault of my daughter other than faliing to notice the issue and report.
HI Again: The termination date in the Notice Form N5 must be 20 days if it is a first N5 or 14 days if it is a second N5. The 7 days that your landlord provides is perplexing---I think it is just plain wrong. If it is wrong then the Notice is void and has no force or effect. I would indeed calculate the rent correctly and take a credit for the water bill (hopefully your daughter has proof of payment). Make sure that you take the amounts required from anything you pay him as I am sure that you will never get a voluntary payment back from him.
DeleteBe aware that in most cities and towns in Ontario that there are community legal clinics that will provide free legal advice to tenants and sometimes representation as well. It is clear to me that your landlord does not understand the law nor his obligations under it. He may very well take advantage of you as he doesn't seem to know himself what the law is.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael! Thanks for your very informative post, but like anywhere else there are much more help to tenants and not to landlords. I am a small landlord renting my house to students. After first year being a new landlord I was called by most of my tenants as "an exceptional and most caring landlord in the world" and so most of them were happy to renew their leases for another academic year. But I have an issue with one student who occupied basement (legal accessory apartment). No damage deposit provided, and "No pets" lease clause was just ignored (they are both illegal and no right for landlord in Ontario only!! to collect pet damage deposit), and 5 days before the end of her tenancy when I came with independent contractor for repairs estimates as well as for quick inspection before she moves out, I find my backyard lawn completely destroyed by her dog with multiple deep holes, dog urine marks, multiple dog droppings, old and "fresh made", and she has a big dog, we saw it a couple of times. In addition I found multiple deep holes around the house and just next to the house foundation as well as heavily dripping water from garden hose pointed to the basement window. My contractor said I was just lucky not to have the basement flooded by this water of heavy rain which might be easily done through those deep holes. Also side door was all damaged by peeled paint and deep scratched from dog's claws. During the whole tenancy this student was notified about damage found at each my visit there (the house is in Guelph and I live in Toronto), and asked not to leave her dog unattended, she even had an inspector visiting her from Guelph Animal by-law department with all her responsibilities explanation, but she didn't do anything to fix or prevent all damage her dog kept causing. So I locked the backyard, probably against her rights of getting access there while she is still in the house, as she claims, but I explained her in my e-mail (in addition of notifying her that I am aware of all damage her dog cause) that reason of locking the gate was only my big concern about very severe damage she might cause during remaining days of her tenancy. She also claimed that locking gate doesn't give her a chance of fixing her dog's damage by over seeding grass, which is ridiculous because of cold spring we have this year this might be done only in a month or two.
ReplyDeleteI am going to make as many pictures as possible of all damage caused, and to have sodding company to provide me with estimate of lawn repair.
Please let me know what else might be done for the damage to be compensated. I was struggling for all my first year of being a landlord to find any legal advice for landlords, but found only one Self-Help centre in Toronto for what they provide a general advice only.
Thanks in advance!.
Hi:
DeleteYour claim against your tenant is likely going to be in the Small Claims Court. I understand from your question that your tenant is intending to move out at the end of her term--presumably she gave notice to do so. To be clear, she does not have to vacate just because her lease is ending. She is entitled, at law, to continue on a month to month basis.
If the tenant remains in the unit you may consider serving her with a Notice of Termination--likely a Form N5 for the damage. Estimate the cost the best you can for the form. If she does not repair it, pay for it, or make satisfactory arrangements within 7 days then you can apply to the Landlord and Tenant Board for eviction.
If, however, the tenant is out of possession you are not allowed to apply to the Board. You may only sue in Court--likely the Small Claims Court for claims under $25001.00. If the claim is bigger than that you can go to a higher level of the Superior Court of Justice.
Whether you claim at the Board or in the Court you will have the burden of proof in your case. It is on a balance of probabilities. It will be important to prove the condition of the premises when she moved in. Then the condition of the premises presently. That the condition of the premises right now was caused by this tenant, her guests, or other people residing in her unit. Prove her dog caused the lawn damage is fine. Your evidence of the damage needs to be convincing and clear and that the extent of the damage caused by the tenant must also be convincing and clear. Do not presume that simply because you "say so" that the Board will accept your version of events. You have to allow for the possibility or perhaps likelihood that your tenant will lie or have an entirely different perspective on the situation. Hence, collecting objective evidence from multiple sources and being able to prove the facts from multiple sources of evidence would be very useful (for example---could the neighbours testify about seeing the tenant's dog using the backyard and damaging it).
Once you have the evidence, it is important to establish the extent of your damages. Multiple estimates from unrelated contractors are very useful to establish repair costs.
Hope that helps
Michael K. E. Thiele
Hi Michael,
ReplyDeleteHoping you can assist me with a problem with my (soon to be ex) nightmare of a landlord.
My family has been looking to buy a house for some time, and we were fortunate enough to find our dream home. We closed the deal on April 24th, and on April 27th I emailed my landlord the proper for notifing him of our tenancy ending effective June 30th.
He went ballistic. He responded by calling me a variety of names in his replies (coward, dishonest, implied I was corrupting my family, ect) because in his opinion I should have told him months ago. I thought I was being courteous by giving him notice after closing, but several days in advance of the last da I could tell him (April 30th).
He did not see it this was and got increasingly hostile. I filed an N2 for with the board for what I consider to be harassment.
Later that day he served me with an N5, stating that he intends to evict us because we expressed concern over him bringing a 'witness' (which by the tone of the email I interpret as an attempted act of intimidation) when he comes over
A couple of things. Given the timelines, do you think we should be concerned about the threat to evict? I think an adjudicator would side with us, but even if they don't, do you think they are likely to evict given that we are leaving June 30th.
The other matter is painting. He put in his lease that their is to be no painting, or if painting occurs, we are to have it professionally pained back to the same shade, using a specified premium brand.
With a more reasonable man I would have been happy to comply (mostly, at least. Same general colour, whatever brand I choose), but given his behaviour I am in no mood to do what's best for him. If I refuse to paint on the grounds that he has to paint as a part of his unit turnover (we've been there two years) don't out think we have a legally definable argument?
Thank you for your time and expertise!
K
Hi:
DeleteYour T2 application will proceed on the scheduled date unless the landlord files an L2 (based on the N5) and gets a new and different hearing date. If that happens then you should be prepared to adjourn your application to a date that is convenient to hear both your application and the landlord's application. Based on what you have said here, the landlord's N5 is foolishness and it will never stand. Further, the first N5 can't be grounds for eviction if the alleged misbehaviour is "corrected" as the N5 will become void. So, I suppose if you ceased "expressing concern" there would be no basis to proceed on the first N5. In any event, it all sounds ridiculous and I don't expect that the Board will do very much with it.
Your application will not generate much of a remedy though it will likely embarrass him. If he "went ballistic " and called you names in writing you will win something. I don't expect it to be a sizeable sum of money but indeed he would be ordered to cease the behaviour and you should get something for the uncouth behaviour on his part.
Painting is an interesting issue. Certainly, I see these claims often enough in the Small Claims Court and Landlord's generally win some money for the repainting. If the lease is clear about returning the wall back to "normal" colours then this is something you should do or risk a lawsuit demanding payment. The whole bit about "professionally painted" is silliness and the brand of paint is a bit over the top as well. If it is contracted for though, beware the possibility that a small claims court judge will simply enforce a legal term of a contract. I think a fair interpretation of "professionally" painted is that the wall is painted properly in a professional manner. The work of a painter isn't magic and hence if you have the skill and the time to do it you can be a "professional" painter as well.
A paint job that is two years old does not typically need to be redone. That he would re-paint on unit turnover is not presumed with only a two year old paint job. The RTA Regulations presume that the useful life of interior painted walls is 10 years. While not a binding number for useful life I find it a handy guideline when in Court arguing about the value of the thing being replaced/repainted etc..
Good luck
Michael K. E. Thiele
I have very emergent question for you. I have lived in same rental place for almost 8 years (92 months) from September 2007 to April 2015. It is townhouse owned by landlord and I rented the place that was not renovated at all and was built in 1974. All bedrooms were not newly painted at all when I moved in and the white powder of ceiling dropped down on beds and blankets until the landlord found the powder of ceiling painting could influence on respiratory of residents badly. They painted the ceiling in August, 2012. But the wall paper or painting of bedrooms were torn on many part from first and never changed until I left. Besides, one of room had one closet door instead of two pair. I told them they ignored this part. Furthermore carpet was old over whole house. They changed the carpet of only stair and hardwood into only living room last summer, but old carpet of three bedrooms were never changed. I asked the landlord to change and they delayed the date to get their budget. I could understand their words, excuse and situation. They even joked they will change the bad condition when the landlord win the lottery
ReplyDeleteI had lived in Toronto before moving there (Ottawa). I couldn’t have many choices to rent the house. When I contracted, the realtor took a role of landlord and I didn’t meet the landlord. While I lived there, the refrigerator , stove , dryer and washer were replaced about five or four years ago because they was not working at all and most of previous appliances were pretty old, for instance , the washer was made in1970. I didn’t ask to fix or replace right away and want to bother them until they came to the place for extending the lease or picking up checks every year because they took 3 hours to come the rental. I bought my own refrigerator and washer instead of asking.
We had have many issues under those circumstance for old place from minor to serious problem. Shortly after moving in, the water hose of sink was broken and the water flowed whole kitchen floor on Sunday and they wanted me to hire mechanic for fixing sink, but my husband and I knew the charge would be especially more expensive. My husband bought some instrument and fixed. After that he often fixed from the biggest to smallest problem by himself. When the landlord couple came and see our management they was so glad as well.
This means is that other people money is very valuable to me. If I can, my real intention was that I didn’t want landlord to spend money while I had solution for fixing. Most of all, the landlord lived far from us. This is biggest reason not to ask or bother the landlord for fixing. They also appreciated me( for my intention.
Of course, when I asked the landlord to fix or replace they really tried hard to accept my request. We get along each other while I lived their rental house. I considered their circumstance as well they were aware of my intention that I didn’t make them spend expense for fixing or replacement. Whenever we extended lease and the landlord wanted me to buy their house.
if they didn’t like our family or were dissatisfied with my management for the rental place they would not offer extension of lease at stable rental fees. When I decided to move out and give notice to leave the rental place about 6 years ago( because the utilities was such a burden to me in winter season The gas tank was old and heat leaked out of the window) ,they offered reduced rate in order my family to stay their rental place. I took the offer and have lived from September, 2007 to April 2015.
You might understand how much they want our family to stay on their rental place on behalf of their no emptiness of rental house. On February 22, 2015, they called to inform me of the fact the landlord would live the rental place because their own house that they lived was sold. That is , the landlord wanted us to move out by the end day of May. Besides, I let the landlord know about the water leak from ceiling g( I was waiting for passing winter season and I was about calling her ).My husband and I always think it is not proper place for seniors specially. Maybe they didn’t know house condition exactly because they rented to me after shortly buying house. You have to know this point we improve house generally. They attracted my management for their house and finally decided to occupy the rental house with 3 month notices all of sudden after selling house.
ReplyDeleteunplanned , I had to accept their request because they sent documentation about the landlord ‘s priority. The documentation said that I have to go to board if I don’t agree with their request. They wanted voluntarily to be my reference for rent my new place
I could not make kids change school during school season. My second daughter have only one year to graduate the elementary. I respected and accepted their request without any hesitation on that day. I had to finish moving on April 29, 2015( even though the right of place belongs to me by the end day of April according to documentation of moving notice )because they wanted to visit the rental place on April 30. 2015.
I didn’t realize their true intention and they called my cell at 10:20 PM on April 30 and accused me of stove panel, refrigerator smell. She told me she has used same stove in her own place over 10 years and her stove is very clean, compared with stove that I have used in rental place and expressed insulted word to me. After that, she passed phone to her husband and he threatened me to hire agency to claim damage. I really asked what is the definition of damage. I have used their appliance for 4 or 5 years at least. The refrigerator was so cheap and was easily broken drawer. I didn’t do on purpose. I didn’t let the landlord know about this because the working of refrigerator didn’t have any problem. The drawer of refrigerator didn’t matter to me. When I cleaned the other upper drawer on the end day of moving the some part was torn naturally. I tried hard to remove the burning part of tap of oven. It was not removed completely but the working of oven has no problem.
I insist they deserve the torn and dirty of appliance when the landlord decides to rent four member of family with little kids . The landlord family is only husband and wife. They cannot compare their appliances condition with my case. If they are afraid of torn and dirty of appliances , they should not rent four family member with little kids
The smell of refrigerator is from back ground culture differences. The smell of my culture food can not be same as Canadian food. I wanted the refrigerator to be air fresh one more. This is bothering me truly. They came earlier than the date documentation of moving notice. The total amount of rental fee is 105,800 for 92 month and the house value is 180,000. If I ask any person who is a normal and has common sense about this, who can understand the landlord and husband ‘s threat and insulation on the late night when my family moved out?Finally they forced my husband and me to come to place at to show their dissatisfactions at 9 :30 pm on May 1st 2015. They called at 10:30 pm and asked us to previous place at 9 :30 pm.. They look down on my family and threatened me. Even though I broke a whole appliance they cannot treat me this way because my rental fees covers the half of house value for 8 years. They only make use of me to pay their mortgage through fake and tricky words for discontinued emptiness of renting. I really want to your answer… I really don’t want to see them face to face…
Hi: I will summarize what I understand your situation to be. You lived in a house that you rented from a landlord who lived a fair distance away. You lived in the house with your husband and four children for 8 years. During that time your landlord did very few repairs and almost no upgrades at all. For the most part, you completed your own repairs of anything that broke. The landlord was aware of this and was pleased that you were doing it. You don't say whether you were paid for this, but it sounds like you were not.
DeleteThe landlord asked you a few times to buy the house but you were not interested. One time, when you gave notice that you were leaving the landlord convinced you to stay by reducing your rent. You stayed because of that.
Recently, the Landlord served you with a Form N12---termination for Landlord's Own Use (served around the end of February 2015). The termination date in the Notice Form N12 was for April 30, 2015. You did not want to fight this notice and as such you moved out a day early on April 29, 2015.
It is not clear to me, but presumably the landlord did move into the rental unit as they indicated that they would?
As the landlord was moving into the rental unit they made various comments about the condition of the house, particularly the smells in the fridge and the cleanliness condition or the appliances. You are insulted by the landlord's complaints. Now you are concerned that the landlord will try to sue you for money for the condition of the house and the appliances.
You want to know where you stand in relation to the landlord's threats against you.
ANSWER
The landlord will have to prove the condition of the premises and the appliances at the time that you moved into the apartment. The age of the appliance, it's useful life, and condition at the time of renting is relevant to what the condition the appliance can be expected to be in after an 8 year tenancy. You mention that some appliances were replaced 4 or 5 years ago but also that you bought a fridge and washer yourself. Did you leave these appliances behind for the landlord? If so, the landlord can't really complain about the condition of them.
Your obligation as a tenant is to maintain the rental unit to a standard of "ordinary cleanliness". This phrase "ordinary cleanliness" is not defined in the Residential Tenancies Act so you really just go by what would be common sense. How clean "ordinary cleanliness" is would also be relative to the nature of the rental unit and the things in it. A very old rental unit that hasn't been painted or upgraded in years will not be as clean as a newly upgraded or built rental unit. What "ordinary cleanliness" means will therefore vary with the circumstances.
DeleteYour landlord could try to sue you in the small claims court. If they do, they will have to prove the case against you and will have to prove that you either damaged the property or that you did not maintain it to a standard of ordinary cleanliness. It is very difficult to win a case based on "cleanliness" unless we are talking about mountains of garbage that have to be trucked away. Anything that can be fixed by a routine cleaning will not generally attract an award of damages.
Be aware, that if you landlord sues you that you likely also have a claim against your landlord for all of the maintenance and repairs that you did to the property over the years. You could assert that claim in a defence to a small claims court claim by "set off". This means you could try to get compensation for all of the repairs and maintenance that you did---for example the water leak repair. You may find yourself fighting a limitation argument but I think defending a claim on the basis of an equitable set off should solve that problem.
In the end, from what you describe, I think your landlord will have a very difficult time winning anything as they failed in their responsibility to repair and maintain the unit over the 8 years that you were a tenant.
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
As a property manager, what means can be taken on a tenant that smokes in a signed leased non smoking property now that there is a provision for this restriction?
ReplyDeleteHi Lisa: The way that I have normally dealt with this is by issuing an N5 (Notice of Termination for Substantial Interference). This Notice would give the tenant an opportunity to correct the behavior failing which you could file for eviction. There is another option if the nature of the smoking contravenes the Smoke Free Ontario Act or a city by-law. For those breached you could serve a Notice of Termination based on an Illegal Act (Form N6). An illegal act does not need to be a criminal act and you don't need a conviction to serve this Notice.
DeleteThe biggest trick I have found, with these kinds of cases, is to prove that there is smoking going on. This is especially the case if the tenant denies smoking in the rental unit or in the residential complex. If you proceed with an application give some thought to how you are going to prove that the tenant is smoking in the unit. A common defence is that the "smell" of smoke is just from clothing and not from actually smoking.
Michael K. E. Thiele
www.ottawalawyers.com
My landlords representative served me with an N12 form, to evict so the owner can move in, a week ago, but could not enforce as I pointed out that I had a lease. He wanted us out for Aug but I hold a lease until the end of Sept. Being that he is a realtor, he was unhappy either that I knew the tenants right and read the form where he did not obviously, or that he knew and was trying to get it by me. After pointing it out to him, he argued that he in fact could, so I told him to call the LTB or just read the form. The next day he was all nice and dropped another N12 form to evict on the last day of the lease. Again, I believe he has not researched this document. We found a house to buy this weekend and will be moving out through the month of June, I will be serving him an N9 today to be out June 30th. I know this will leave the house vacant with no rent for a month before the owners need it. I am almost certain he will not be happy with this and fear once I give this form that we will have some sort of harassment from his part.
ReplyDeleteThere have never been any inspections upon move in or any time since we have been here. I am wondering if he does start popping over to inspect, even with notice, what I could do if I feel it is too much. I would consider one visit in the next week and one for a move out inspection tolerable. But what if he decides differently?
What about altering property? We put in an above ground pool, that we are removing and will sod the area in the next couple weeks, we also sealed the driveway, which is an improvement. And we stained the deck, that was bare board when we got here, but had huge grease stains from previous tenants. We put a stain that matched the house, also an improvement.
What about holes in wall to hang television, is this wear and tear or will I have to patch and paint, my husband is a painter and says we should just patch it for they will probably repaint as It has been 5 years. He says we cannot match the colour, so we'd have to paint at least the whole wall.
For the most part, any alterations we will reverse, but cannot do all without expense.
What can they ask of us in the long run?
Thank you so much.
Hi: You ask a difficult question. Certainly the caselaw on point (i.e. cases that went before the Court) establish that things like picture nail holes, scuffs on flooring constitute reasonable and normal wear and tear. When it comes to the holes to hang a television I would expect that to also constitute reasonable wear and tear given how common it is today that televisions are "hung" on walls.
DeleteThings like staining the deck, sealing the driveway, are things that you should only ever do with the landlord's consent. I completely see your point about them being an improvement but the risk is that the landlord does not want his deck stained (i.e. he prefers the weathered look and does not want to have to re-stain his pressure treated lumber deck every few years). The same can be said about the driveway being sealed. That it is an improvement is a matter of opinion though one that I would share. What can the landlord really do about it? Without the deck being damaged or the driveway being damaged it is difficult to see how he could sue to return them to their previous state. The expense of doing so is too high relative to the "alleged" damage. In cases where tenants have changed the colour of painted walls without permission the Court routinely orders the tenants to pay for the paint job less an amount for the value of the paint job that was there before (i.e. paint has an estimated life span of 10 years--you only pay for what was left of the useful lifespan).
It is very difficult to know how crazy a landlord is going to be about wear and tear and allegations of damage etc.. The only way to really protect yourself is to take a great many photos and video on your way out and document the time and date. Also, if possible and the landlord is willing, exit the premises with a move out inspection that records the condition of the premises in writing. If this is not possible, get an objective third party to inspect the house on your way out and get them to make notes about the condition of the premises and oddly enough, the smell of the house in all rooms. Make sure this person is willing to testify. In rental units that are big enough (like houses) a good witness can be a home inspector---i.e. pay for a report, get pictures taken and condition assessed. By clear with the inspector as to why you are hiring him---to rebut an allegations of damage that the landlord might make after you move out.
With respect to multiple inspections and harassing behaviour. The RTA spells out the circumstances under which a landlord may enter the unit. Given that he is "moving in" there should be no need to show the rental unit to prospective tenants. I think the number of visits you anticipate is reasonable and any more than that I would consider refusing access and filing a T2 (obviously be "reasonable").
Hope that guides you a bit. Congratulations on the new house!
Michael K. E. Thiele
www.ottawalawyers.com
What contravenes with the Smoke Free Act or city by-law. Is it a provincial by-law that landlords can enforce smoke free tenancies? And how?
ReplyDeleteHi Lisa: Here is a link to the Smoke Free Ontario Act: http://www.canlii.org/en/on/laws/stat/so-1994-c-10/latest/so-1994-c-10.html#sec1subsec1 You will need to cut and paste it into your browser. Now look at section 9(2)(3)---and you will see prohibitions about smoking in all sorts of areas of a apartment complex. Breaching the Smoke Free Ontario Act--in these ways, may be regarded as an "illegal" act and hence you can seek to terminate and evict on those grounds.
DeleteIf the tenant is only smoking in their rental unit then the legislation does not help you. However, you can, pursuant to contract have a clause prohibiting smoking in a rental unit. The "contract" is your lease.
On top of those two things---Smoke Free Ontario Act is provincial law, Lease conditions is private law, you have the possibility of municipal by-laws which is another set of laws that differ from city to city, town to town.
Hope that clarifies.
Michael K. E. Thiele
We have paid our rent and our lease ends June 1st. Our landlord has told us that he needs to replace the carpets and paint and has said that he will be doing this on may 29th and 30th. Is this allowed since we have paid rent up until June 1st?
ReplyDeleteHi Danielle: Is it "allowed"? The answer is likely yes. Should it be allowed is another question altogether. It appears from the timing that your landlord is trying to access your unit, right before the end of your term to prepare the unit for a new tenant who is likely moving in June 1. Under the guise of repair or maintenance the landlord is seeking to do some rather substantial work in your rental unit right at the time when your unit is likely to be upside down with moving boxes etc.. Could there be a more inconvenient time? In these circumstances I think it quite reasonable to inform the landlord that it is inconvenient and that you will not be granting access to the unit at that time for carpet change and painting. Advise the landlord that if he disagrees that you would be pleased to have the question determined at the Landlord and Tenant Board. I'm not sure where you are located but I think, in Ottawa, you could get this question before a member if you asked to have the hearing expedited.
DeleteThere is another possibility of course which your question does not reveal. Have you already moved out and your unit is vacant? Does your landlord want to take advantage of your unit being vacant to do his turnover and preparation work for the new tenant during the end point of your term? If so, the decent thing to do is for the landlord to buy May 29 & 30 from you by refunding the per diem (daily) rent for the unit and you would simply return possession of the unit to the landlord early. The landlord should be flexible with you as well and if you are out a few days earlier then it would be fair to ask the landlord to pay for those days as well. If the landlord chooses to be obstinate (or cheap) and insist on keeping all of the rent I could imagine a circumstance under which it would be impossible for the landlord to do this work until June 1. Denying him early access if the unit is vacant may seem petty but presuming he is unwilling to pay for those days is simply wrong on his part (which is just my opinion).
If the rental unit is indeed upside down with your boxes etc., I think it is entirely fair to refuse the work he is seeking to do and I can't imagine any adjudicator at the Board or any small claims court judge for that matter taking you to task for refusing access on these days.
Hope this works out for you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi there,
ReplyDeleteMy friend and I lived in a (now 2 year old) apartment from September 2014-April 2015. Our landlord was MIA for most of our time there, not responding to maintenance needs etc. and disappearing for weeks on end. He did over 6 showings in the last month or two of our lease and stated to me that he found a tenant (a couple) that would be moving in on the 1st after we moved out. So we moved out and a day later I got an email saying that the apartment was so "dirty" that the tenants refused to move in and that he had to give them their deposits/cheques back. He asked when we were gonna come back and clean the apartment and that he was waiting for estimates on cleaning and we told him that we have no problem sending someone to clean it as we did not do a thorough cleaning (but it was not left in a condition that wasn't liveable, but we recognized that we should get someone to clean it). After that, we did not hear from him for a week. A week later he sent us a big list of things he thought was wrong with the apartment. One of these things included a dishwasher dent. I rifled through the pictures he sent me before we moved in and found a picture with the dent, and sent it back to him, proving him to be incorrect about that damage. He did not respond for a long time and finally did a couple days ago. He listed a HUGE list of things such as the drain being clogged (which it was not) and the floor being scratched etc. He also put these things with high fix-prices...I've never met a company charging $400 for unclogging a drain, have you?
He also said that he is losing out now on two months rent. Originally he wanted us to clean it, we offered and he has now increased his demands into over $4000 worth of repairs.
We emailed him asking for him to send us pictures of the floor before we moved in, so that we could compare now and then and see what the difference was. He sent us pictures from 2012 - proven from the metadata of the picture, meaning the pictures were before us AND the past tenants that lived there between 2012-2014.
We let him know that we will not be paying these extreme costs (that really just seem like renovations that he wants us to pay for) and that if he wants us to clean it, we will, but otherwise this is the end of this. He emailed back saying "What is your personal mailing address" leading us to believe that he is going to perform some sort of legal action.
Something that is clear to us is that there was no tenant moving in. It wouldn't make sense for a tenant to come, and refuse to move in ALL TOGETHER for only a clean up, that he could have gotten a cleaning company to do, and then billed us for. We are under the impression that he had no tenant, and is trying to get money from us to cover whatever money he is losing by not having a tenant. He had many tenants come and see the apartment the way it was before we left, the apartment was expensive (unnecessarily) and right near a homeless shelter (there are other reasons why tenants could be hard to find for it). We didn't even see the apartment before signing the lease via the internet.
What do you suggest we do? I don't want to give our address and get into legal problems. We are both 20 years old and students and we don't have thousands of dollars to pay for this guys renovations. We both have moved out of the city all together and are abroad so these issues need to be resolved soon. Let me know what you think.
Hi Michael,
ReplyDeleteFantastic blog! What a great resource for those of us renting in Ontario. I have a question regarding vacating fees.
I am leaving a rental unit that was brand new when I moved in. The contract states that it's my responsibility to leave the unit in the same state that it was at the beginning of the tenancy, including "the carpets have been professionally cleaned at the start of the rental period and the tenant will pay for or arrange for professional cleaning at the end of the tenancy, in addition to paying for any cleaning, repair, damage or painting costs deemed to be the tenant's responsibility."
They have also left me a huge list of things that need to be cleaned that I have never experienced in all my years of renting, including: clean light fixtures and all bugs (how I'm supposed to reach this, I have no idea), cleaning windows inside and out and having carpets professional steam cleaned (and providing the receipt!). I'm also supposed to patch any picture hook walls and paint the entire wall that the small hole was on myself! They've attached a price list to this cleaning list and if any items aren't done, I'll allegedly be charged.
I have two questions: first, since the steam cleaning is in the contract I signed, do I have to do it? There are no stains on the carpets whatsoever.
Second, I thought that "general wear and tear" included picture hooks. Is what they have requested reasonable? What about the other items? I have always just left the place spotless but know that it's the landlord's responsibility to leave the place as it was at the beginning of the tenancy.
I'm pretty frustrated, as if I would have known they were going to charge me for this, I would have never put any holes in the walls. I also think that what they are requesting is unreasonable and want to know what could happen if I don't take care of everything on their list. Many thanks in advance for your advice.
Hi:
DeleteYou are not the first person to raise these issues with me. My opinion is that your landlord is demanding things that he/she/it is not lawfully entitled to demand. Your landlord is effectively asking you to return this rental unit to a "new" state or to erase the impact of your rental from the property by returning it to the condition in which you received it. In my opinion, this demand, whether in writing, in the lease, or howsoever communicated to you is contrary to the Residential Tenancies Act and the common law respecting the condition of residential rental units at the expiry of lease terms.
Your obligation as a tenant is set out in various parts of the Residential Tenancies Act. Where a provision in a tenancy agreement (i.e. lease) is inconsistent with the Residential Tenancies Act or the Regulations to the Residential Tenancies Act then that provision is void (section 4 Residential Tenancies Act).
With respect to cleanliness, the Residential Tenancies Act imposes an obligation on the tenant in section 33. That obligation is that a tenant is responsible for ordinary cleanliness of the rental unit except to the extent that the tenancy agreement requires the landlord to clean it.
With respect to damage or repairs the RTA imposes an obligation on tenants in section 34 which states: The tenant is responsible for the repair of undue damage to the rental unit or the residential complex caused by the willful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.
The concept of "ordinary wear and tear" is not a phrase that appears in the Residential Tenancies Act. However, it is generally understood that a tenant is not responsible for ordinary wear and tear--regardless of what a lease might say. That there is no responsibility for ordinary wear and tear is implied into all tenancy agreements. The authority for this proposition is a case by the name of Kamoo v. Brampton Caledon Housing Corp., [2005] O.J. No 3911 (Ont. Small Claims Ct.). It cites a case of Haskell v. Marlow. [1928] 2. K.B., 45.
In the caselaw cited above, the concept of reasonable wear and tear is defined as "unavoidable deterioration in the dwelling and its fixtures resulting from normal use". Where the condition of things has deteriorated in accordance with this definition the tenant has been found to have no responsibility to the landlord.
So--- to your questions. I think the requirement for professional steam cleaning is unenforceable and illegal. Your landlord can not require cleaning to a standard beyond "ordinary cleanliness". If the carpets meet that standard there is nothing more for you to do. What I interpret this requirement as is the landlord disguising his tenant turnover responsibilities as a cleaning responsibility for the prior tenant. This simply isn't legal---in my opinion.
Picture hooks and like things, in my view, are entirely within the scope of ordinary wear and tear. There is no requirement to fix those and certainly no requirement to paint the entire wall. I base this opinion on the cases cited and the section of the RTA. Note that on a plain reading of section 34 RTA you can see that the RTA assumes that a tenant will cause some incidental damage to a rental unit and NOT be responsible to repair it. I think this section, without using the phrase, incorporates the concept of ordinary wear and tear being excepted from the tenant's responsibility.
DeleteI do believe you stand on solid legal ground. The ultimate test is to see what the landlord will do after you move out. If the landlord proceeds with legal action you will likely end up in the small claims court. You have the option of filing an application with the landlord and tenant board to challenge the requirements of the lease and get the Board's determination of the landlord's lease requirements (i.e. seek an order declaring the requirements void). Some landlords will simply make a demand of you and instead of actually commencing legal proceedings simply file a claim with a credit bureau. If your landlord does this (basically slandering your credit) you will have to bring an action against your landlord to have this corrected.
If your landlord is going to take proceedings against you, you should put yourself in the best possible position from an evidentiary perspective. Imagine that your landlord will be making allegations of damage. You need to have evidence to disprove what your landlord is saying. If you have moved out and many months have gone by you will of course be denied the ability to say to someone---go take a look at the place. Hence it is very important to take a great many photos of the premises. Close up shots and far away shots. You want to see the fibres in the carpet to a whole room shot to have a sense of the entire rental unit. Take pictures of the ceiling, the floors, the doors, the inside of cupboard and the stove--literally everything. Take a video of the premises and run the video continuously starting with a shot of a phone showing the date and time of the video (perhaps go to a news webpage or stock market page to pinpoint the date and time). The video should compliment the photos. Also, get a credible human being who has no personal interest in the matter to walk through the unit right before turning the unit over to the landlord. Get that person to smell the unit--in all rooms and make notes about their observations. The smelling is for cigarette smoke, pet urine, etc.--you want this person to be able to make note of the absence of unusual smells. This person should be willing to go to Court to testify. If you can't find a person like this consider hiring a Home Inspector to produce a report--be very clear with the inspector of why you are getting him/her to do the inspection so they make appropriate notes.
The evidence collecting and how crazy you go in collecting the evidence often depends on the nature of the rental unit. An apartment in an apartment building will have less evidence to collect than in a house on a large lot in the City.
I hope that helps a bit. Your landlord seems unreasonable in his demands and unfortunately the end of your tenancy is unlikely to be simple. If possible, try to get your landlord to do a documented move out inspection where both you and he sign the document. Even if you disagree about responsibility for anything noted in the document at least the scope of what you are arguing about will be limited.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much for your thoughts, Michael. This is a big corporation with many apartment buildings across the country, and from what I hear from building staff, this is a condition that the current building manager has put in place. But the lease is actually a standard form that the corporation would probably use for every rental, so I'm shocked that they have this steamcleaning clause in it (although maybe no one has challenged them before, or less do than don't).
DeleteI hope that armed with these arguments, the manager will not see it as worth his while to pursue any action. I really think he, as you have guessed, put these conditions in place in order to pass his tenant turnover responsibilities onto the tenant.
Thanks again for your time and I'll try to post an update after the move-out inspection so that others can learn from my situation!
Hi: An update when it's all done would be much appreciated! Mike
DeleteI just wanted to provide an update to my situation so others can learn from it. I did the move-out inspection with the building manager after I completely cleaned the apartment from top to bottom--it was spotless. The manager asked if I had the receipt for the carpet cleaning and I said that I did not, as carpet cleaning is maintenance and the responsibility of the landlord. He then asked about the painting, and I replied that I also did not need to do that as well. The manager was essentially just going through his check-list and whether it was legal/right was not of concern to him.
DeleteAt the end of the inspection, he noted on the form that the apartment required carpet cleaning (despite the fact that there wasn't a single spot) and painting. I was given the option to check a box to say that I disagreed with the results of the report. I didn't do that; instead, I wrote on the form that the items listed were not the responsibility of the tenant. He still presented me with a $250 bill for painting and carpet cleaning, which I refused to pay.
Two weeks later I got a bill in the mail for the above and it stated that legal action may be taken against me. At that point, I wrote a letter to the company's CEO outlining my experience with the building, as well as all the points related to why I didn't feel that the bill was warranted. I'm happy to say that I just received a letter back stating that some steps in their processes had not been followed and my account has been wiped clean!
Thank you again, Michael, for your opinion on this situation! I really hope that others will learn from this and be confident enough to stand up for their rights!
Hi Michael.
ReplyDeleteI recently left an apartment and 24 hours after leaving and locking the key inside the unit (because the landlord could not come to meet me to do a walkthrough or collect the key) he sends me a text message saying there was damage. I didn't leave any damage. I did not reply to his text message. My tenancy has ended so I know he has to file in small claims court to recoup any money for damages he claims I did. My question is that I recently contacted the Fire Department and described the unit to them. They said I should contact the first command and the Fire Marshall will come out and take a look. If the apartment is deemed illegal and unsafe they will file a report which I can get a copy of through the Freedom of Information Act. If the property is indeed a fire hazard and illegal and should have never been rented in the first place, would I have to potentially pay for damages (if he could prove that I did it, which I didn't)?
Hi: I don't see the two things as related. If you damaged the rental unit and the landlord can prove it then you would likely be liable for the damage. To defend the landlord's claim on the basis that the unit isn't a "legal unit" or that there are deficiencies in the unit doesn't address the issue of the damages caused to the unit. Perhaps the unit is illegal but could be made legal, perhaps deficiencies found could be rectified, the costs of making the unit legal or fixing deficiencies belongs to the landlord. But in my view, damage to the landlord's property, whether the unit is legal or not or defective or not is not forgiven.
DeleteHopefully you took some photographs of the unit or have friends or people who helped move you who can testify as to the condition of the premises when you moved out.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael:
ReplyDeleteSorry for adding to the question pile. I have been living in my basement room for 5 years when new carpet was installed. At the beginning of the 5 year. He asked me to vacate the premises. I left one month early and he had last month rent. I damaged the carpet with a health related issue. I'm I responsible for the full cost of the replacement of the carpet.
Hi: The short answer is no. You used the carpet for almost 5 years. That use of the carpet depreciated the value of the carpet as it became "old" and "used up". If you did something to the carpet that makes you liable for the damage to the carpet then you would be expected to pay for a part of the cost of a new carpet that is similar in quality, type and style, less the depreciation of the old carpet.
DeleteThe Residential Tenancies Act provides, through O.Reg. 516/06 Schedule, that a carpet has a useful life of 10 years.
You used 5 years of carpet with an expected useful life of 10 years--hence 50%. The argument would then go that you pay 50% of the cost of the new carpet (assuming it is a similar carpet etc.).
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your answer regarding the damages 24 hours after I moved out.
ReplyDeleteI have a Fire Marshall going in shortly. If the unit is found to be "illegal", can I file a claim for any rent back?
Hi: If the rental unit is "illegal" as determined by the Fire Marshall then it is likely that the landlord will have been in breach of his section 20 RTA obligations. So, you have a breach--meaning you didn't get what you were supposed to get. The bigger question is what did you suffer as a result of the breach. What are your losses? If you can identify some losses flowing from the breach of the section 20 obligations then you may indeed have a claim. If there are no losses then I don't think you have a claim as the breach of the section 20 obligations will have had no consequence.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteThis is a question about normal wear and tear vs negligence. I am currently renting a studio condo with a white quartzite countertop and stainless steel appliances. A few months after I moved in I noticed that the countertops were discolouring around my dishrack possibly due to
water. I notified the landlord right away. She came over and tried two different cleansers on it. One was a glass etcher and it removed the stain. (The countertop has always been slightly rough to the touch so perhaps she had used this before??) Now trhe landlord wants me to pay the full cost of replacement for the counter. I suggested that we could split the cost and she said that is was "non-negotiable". She will be coming to the unit next week with a contractor to measure it.
I have not told her about a very small fingernail-sized dent that happened to the front door of the stainless steel fridge. I have looked into getting that repaired and the cost is quite high.
Am I responsible for the full replacement costs of both of these objects?
Thank you,
Jennifer
Hi Jennifer: The issue with the counter-top is troubling. When counters were melamine the issue was knife cuts and burning with a pot. For those things liability tended to fall to the tenant--though age and amount of cuts and burns spoke to the issue of whether it was deterioration through normal use or negligent damage. You quartzite countertop should not be reacting to water exposure in the way that it is--presuming that it is dishwater that is discolouring the countertop. Something is defective in the counter-top or the landlord has exposed the countertop to solvents or this glass etcher that has made the surface susceptible to staining. None of this, in my view, is your fault. You are using the counter-top normally and exposing the surface to water is something that this type of countertop is supposed to be impervious too. As you are using the countertop in a way that it was intended to be used it is difficult, if not impossible, to point to your negligent or willful damage of the counter-top. The mere fact of the countertop being damaged/stained does not make you responsible for it. The landlord needs to show how you were negligent or how you willfully damaged it. That being said, it would be very much in your interest to not rest on the defence of "prove landlord that I am responsible". When the installer comes, sales guy comes, ask the sales guy if you can ask him some questions about the current condition of the countertop and perhaps while standing there ask him if he minds you recording/videoing his answers as you record the countertop. If the landlord is present then perhaps you can get her to acknowledge that you are not responsible for the damage. It is possible of course that the sales guy will say the problem is that the surface was exposed to water or he may provide another explanation that you are not ready for. If you get an answer that doesn't mesh with your understanding of what happened you may want to get your own expert in to look at the countertop before it is changed and further advise that landlord that she better save the section of countertop that is stained as it will be needed as evidence in a trial if she expects you to pay for it (i.e. a judge will have to order it).
DeleteThere is of course the possibility that you discover, in speaking with the experts, that you did do something that caused the problem and that you were indeed negligent. Whether this is ordinary wear and tear (for which you are not liable) or negligent damage will be a bit of a judgment call and no one other than the Judge will have the answer as a certainty. That's the reason to make a deal as you have already offered.
Dings on stainless steel appliances are a curse. My own personal experience is that the dings are inevitable and unavoidable. The surfaces, while pretty, are exceedingly sensitive to being dinged and dented. My personal view is that these dings are ordinary wear and tear and that if you put in a stainless steel fridge you are accepting that there will be dings and dents with normal use. Be advised, of course, that my view is likely not the universally accepted view and again whether there is liability or not will depend on the analysis of ordinary wear and tear or negligent damage. At some point, as well, the nature of the damage relative to the cost of the repair makes it impractical and unrealistic to fix the damage. Should a Court really order you to pay $XXXX to fix a tiny dent on an otherwise perfectly working fridge when the cost of repair is a sizeable percentage of the cost of the appliance? I say no, and chalk it up to wear and tear--but others may very well have a different view.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Wow! Thanks for your response.
DeleteAn update; I just found out that I can buy a new replacement fridge door for $200. Yay!!!! (That I can do financially) The countertop? Well, that'll be trickier.
Hi, I just have some questions. I have lived in my apartment for thirteen years. When I moved in, the carpets were cleaned however due to the rush of needing a place, I moved in without the place being painted, etc, though there was not not much to do really. Anyways, in the 13 years since I have lived here, they have not done any maintenance on the apartment other than put linoleum down over the existing linoleum in the bathroom and it is already coming up again. Unfortunately, during this time, my brother had an ex girlfriend living with us and her dog. Her dog was very undisciplined and created holes in the wall and spotting to the carpet. Now, I know I am responsible for the damage to the walls and I am just trying to get enough money to patch and paint them. But now they are coming to do an inspection on Monday and I am worried that they will try to evict us due to the damage, since I am paying lower rate than any new tenants due to being here so long. Am I just being a worrier, or can they evict us, if I am willing to pay for and fix the damages once I get the money. Also, since life expectancy for the carpet is 10 years, so can I be forced to pay to replace it.
ReplyDeleteThanks for your time.
Hi Natasha: For damage you landlord would have to use a Form N5. That form allows for you to fix to repair the damage or to pay the landlord a sum for the item to be repaired. Whether you actually owe what the landlord demands is another question altogether. The carpet is beyond its estimated useful life even for just the length of your tenancy. It owes nobody anything so I would not expect you to have to pay for the carpet. The walls are a different story and many holes are not generally considered normal wear and tear. Given the length of your tenancy the landlord should not be too demanding. As long as you are willing to pay to repair, or you repair the walls yourself, the Landlord and Tenant Board should be lenient with you and give you a chance to maintain your tenancy if the landlord tries to evict you for the damage. The length of your tenancy really works in your favour.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks for your reply. It gives me a little peace of mind.
DeleteHi Michael,
ReplyDeleteThis blog has been a great resource for us! I'm hoping you can shed some light on our current situation.
My husband and I were renting a house in the GTA. We paid first months rent, and a deposit equal to am months rent and an additional $500 pet deposit. After plenty of research - I am now noticing that the deposits are illegal.
Does our landlord have any standing on keeping the deposits and not paying interest on the deposits ($2500) even though it is stated in our lease that they are to be used as deposits?
We have since moved out and have done a walk through with our landlord. We knew that one carpet did need to be replaced and have offered to pay for it. We went through the house together and noted small damages (wear and tear, picture hook holes, etc) the carpet to be replaced which we agreed to pay.
Our lease also stated that we needed to hire professional cleaners and carpet cleaners. We hired both. Our cleaners did not do a job up to our LL standards so he hired an additional set of cleaners and said to use that against our deposit. These cleaners charged $400 vs the $175 we had already paid. Carpet cleaning was also $400.
A week post walk through, LL calls and lets us know that the basement had a horrible smell to it (no smell when we did our walkthrough) and that the company he brought i said it was cat urine. We did have a cat for a period of 3 weeks, but it was trained and used its litter box. The carpet apparently needed to be fully pulled up, concrete resealled and new carpet put down. He is saying this will cost more then our deposit and how we want to go forward with paying anything above and beyond.
We are completely fine with paying for things that are our fault, such as the one carpet. But LL did own a cat before we moved in, and I'm not positive how a cat for 3 weeks would possibly create so much damage in such short time and how it would be possible to differentiate damage caused by the cat we had and damage caused by his cat. We would never willingly leave such a mess as that room was used frequently.
We don;t care about our deposit at this point, but we don't want our LL to pursue any further action against us. We know he has intentions too as he is all of sudden asking for our new mailing address.
Do we have any ground to stand on going forward with this?
Unfortunately, this all took place at a trying time for us (stillbirth of our twins, burial, funeral arrangements, etc) so we did not even think to take pictures or have the final walk through out in writing.
Hi Sir,
ReplyDeleteI'm vacating my apartment after 5.5 yrs and the landlord imposed me 600$ for small burnt marks on kitchen counter top and 500$ for small scratches on the parquet floor. When i checked with home depot people they say it will cost very if you can fix it by yourself. But landlords are not allowing us to do this. Any kind of input will be great help.
Thanks a lot.
Jo
Hi Jo: If you are in possession of the premises and the "repair" is within your ability or you can contract someone to fix it for much cheaper then just go ahead and have it fixed. Once repaired, get the landlord to inspect and acknowledge the condition of the premises. Take photographs and video and collect evidence of the condition of the premises in case the landlord sues you afterwards. Whether the landlord would get the entire sum they are claiming and whether you are even liable is open for debate. Burn marks tend to attract liability as they are not usually considered normal wear and tear. However, you would not have to pay for a brand new counter as you don't have a brand new counter. The usual way is to apportion the cost across the useful life of the damaged item. O. Reg. 516/06 to the RTA provides a Schedule setting out the useful life of things. A counter, in a kitchen, is determined to have a useful life of 25 years, according to this schedule. The counter is at least 5.5 years old--and how long was it there before you moved in? You can use this method of calculating responsibility for damage to get to a more reasonable number.
DeleteWith respect to flooring that is more difficult. Parquet flooring is very old, some scratching is normal and part of normal wear and tear. You can't expect the floor to remain perfect. When you say "small scratches" that falls into a category of normal wear and tear to me. It is all context though.
For your information the same Schedule referred to above says that Parquet flooring has a useful life of 20 years.
Good luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteMy husband and I just moved into a rental town-house. The walls are in horrible shape with holes and scuff makrs everwhere. There is even a section in the kitchen where a "newer" painted colour stops 3/4 of the way up the wall. My husband and I planned on asking permission to paint anyways, but we didn't expect that we would have to worry about patch work as well. The property manager knew that we were going to be seeking permission to paint as it had previously been discussed and we were asked to submit a formal request with paint chip samples for approval. My question to you is, was the property manager/owner responsible to fix the walls before we moved in? And if they allow us to paint & say that they knew we wanted to paint anyways so they left the patch work for us, do we have any right to seek a decrease in one month's rent upon completion?
I look forward to your response.
R. Taylor
Hi:
DeleteYour landlord has a maintenance obligation that includes patching the walls. That obligation is set out in section 20 of the RTA. The failure to repair and maintain is a breach of the landlord's obligations. You may require the landlord to fix the unit and if the landlord does not take reasonable steps to do so you could seek a rent abatement. Frankly, if the landlord has to fix the walls anyway that implies an obligation to paint the walls as well. Why doesn't your landlord simply paint the walls in the colour that you want--perhaps charge you for the special tint etc..
You should not presume anything in relation to you painting and patching. Asking for a one month rent abatement is fine if the landlord agrees. Document that agreement though as you might be called on to prove that the rent was paid through your labour. You will not automatically get a month of rent for work that you do and unless you demonstrate that you asked the landlord to do the work and the landlord refused it is unlikely that the Board will simply compensate you for your labour.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Recently I accidentally overflowed the sink, causing damage to my unit and the unit below. I don't have insurance, and if I did it would be contents I would guess. The landlord's insurance is suing me for the total damages. What is my obligation here?
ReplyDeleteHi Kathy: In Ontario a tenant may be liable for willful and negligent damage to their rental unit. That responsibility is set out in section 34 of the RTA. If you had insurance, any type of standard tenant's policy, you would very likely be covered for this loss. I have never seen a tenant's insurance policy that did not also cover negligence of the tenant (worldwide). As you do not have insurance you are left defending this claim on your own. The exact nature of a defence depends on the facts and some may come to light in an interview with a lawyer who has an understanding of buildings and building systems. Then there are legal principles that reduce the amount of a claim with concepts such as "betterment". It is likely that the insurer is suing you for the full amount of what they paid to repair the place or perhaps they capped the amount to a jurisdiction limit like the small claims court. Nevertheless, the insurer will be claiming a maximum. The trick is for you to know how to reduce the maximum. The notion of betterment is that through your negligence you damaged something that is worth less than what the replacement represents. The replacement is new and gives a value to the landlord in excess of what was damaged. The repair may increase the value of the building, be up to newer standards, etc.. You shouldn't have to pay for the portion of the repairs that represents a betterment to the landlord. Another way of looking at it is that a percentage of the usefulness of the things you damaged were already used up. You damaged a depreciated building (or the parts inside of it) that would need to be replaced in time anyway. There is a view that you should only pay for the value of what you damaged and not a brand new replacement of the damaged item.
DeleteAs you think about it you will likely conclude that any analysis of what is "fair" has its limitations. There is no perfect math to figure out what is precisely fair for you to pay (presuming you are indeed liable). In the end the lawyers, or the Court, kind of balance out what seems reasonable under the circumstances and that is the number.
On the issue of liability. Don't be too quick to admit liability. You don't say how the sink over-flowed but just because the sink over-flowed does not mean that you were negligent.
If the amount of the claim is significant it will be worthwhile for you to retain a lawyer to defend you. Counsel will generally have success in reducing the amount of the damages claimed so that it makes the fees worthwhile.
I hope you have bought some tenant's insurance. It is relatively inexpensive and provides significant benefits if there is a claim--just like this one! If readers of this blog are on Ontario Works or ODSP you can get an additional payment on your benefit payment to cover the cost of the monthly insurance premium. A landlord is entitled to seek termination and eviction for damage. However, if there is an insurer who will pay for the repair and associated losses the landlord tends to leave the tenant alone as the Board is unlikely to evict a tenant who has insurance that results in the landlord being made whole (i.e. fully paid) in a reasonable amount of time. Neighbors who suffer losses are also paid out for the negligence of an insured meaning less turmoil in the building than if everyone is told to bear the expense of the flood themselves.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI rented out the upper portion of my townhouse to a couple. My preference was to rent out the entire unit because I have only one utility meter but they said they couldn't afford it. So we agreed they would rent the upstairs (three bedrooms, three bathrooms), while I rented out the one-bedroom basement unit with its own entrance separately (it has no laundry but just a stove and fridge).
I gave the couple upstairs a reduction on the rent because they did not have use of the entire unit and they also signed a lease to pay all utilities associated with the unit. The thermostat for the entire townhouse is located upstairs.
Everything was fine until earlier this year when the basement tenant installed a washing machine without permission and also started using space heaters. This drove up the hydro and water bills. As soon as I found out, I told the basement tenant they had to remove the washer or move out. They moved out with four months left of their tenancy so I am out of pocket for the basement rent.
Then the upstairs tenants say they want me to pay part of their utility bills to cover the basement tenant's overages.
They also gave me tried to give me 30 days notice before leaving. I insisted on 60 days. The outstanding items from their tenancy include, the final water bill of about $320.00 and $600.00 they deducted from their rent for the hydro bills they feel they overpaid. They also broke my microwave oven door handle and cracked the crisper drawer in my fridge. They are claiming this is normal wear and tear on 10-year-old appliances. The replacement costs for both the handle and the drawer is about $500.00. So in total, they owe me about $1420.00. Do you think it is worth pursuing these tenants in small claims court? What are my other options?
Thanks in advance for your advice!
Hi: I take it from your question that both tenants (upstairs and downstairs) have now vacated the rental unit. Because they are no longer in possession any claim that you bring against the tenants must be made in Court and not at the Landlord and Tenant Board (LTB). The LTB does not have jurisdiction to adjudicate a claim where the tenants are out of possession at the time that the claim is commenced.
DeleteThe hydro agreement is interesting to say the least. Is it as simple as your agreement makes it sound--i.e. upstairs agreed to pay the hydro for the entire building? I think it might in fact be just as simple as that. However some legal research is required. Consider section 138 of the Residential Tenancies Act as well as O.Reg. 394/10, specifically section 13 thereof. You can find these sections on www.canlii.org search for the Residential Tenancies Act in the legislation box after selecting Ontario. There is a tab at the top of the page for Regulations once you locate the RTA.
What these sections speak to is a circumstance when a landlord, in a rental complex with fewer than 7 units provides utilities to the units and shares the cost amongst the units. The example being a single hydro meter for multiple units. As you get into the regulation you see a formula of dividing the metered amount equally amongst the units. There are various notice requirements etc.. What I did not see described in these sections is what happens when there is no apportionment of costs amongst the tenants. Does the RTA speak to a situation where the tenant contracts to pay the hydro for the entire residential complex? Based on my quick look I did not see it--hence my preliminary conclusion that it might be as simple as your lease says in relation to the hydro. The statutory sections are set out above though for your reference to see if you can find your "facts" in the RTA and Regulations. If you do, then those would be the rules.
From a legal perspective, you are not suing for hydro arrears but instead unpaid rent. Figuring out whether the tenants have a legal point in relation to the hydro amount is to anticipate the defence to your claim and see if you can answer it.
With respect to water, I trust it too was a single meter with them agreeing to pay the entire cost? The deduction on water seems excessive. I'm not aware of any rules in relation to water meters in the RTA though a search on the canlii site would be worth your while--same process as described above. I suspect that your contract for payment of water--presuming it is clear (i.e. demonstrates agreement to pay for the entire complex--not just for their own unit) would govern.
With respect to the damage. You will need to prove (because as plaintiff you have the burden of proof) that the damage was caused by wilfully or negligently. Just because they are broken proves nothing. I don't know about the microwave handle but certainly I have experience with fridge drawers and the plastic inside. The stuff breaks rather randomly and the fact that it is broken certainly does not mean the tenant's are liable.
A Judge will not presume that the tenant's caused damage to these items. Other than the items being broken what can you prove of how it happened?
DeleteI don't see any practical alternatives to proceeding int he small claims court. Some will say you could try a collection agency but my view is that if you are serious you need a judgment. There are expenses associated with suing people (filing fees, time). Also, if you don't win you could be ordered to pay the costs of the opposing side (and vice versa). I expect that your upstairs tenant would get some sympathy with respect to paying for another tenant's hydro and water--hence you need to be absolutely sure on your legal position and that the contract to pay for these things is perfectly clear and enforceable. If there is a hole in the contract the Court may be inclined to find for the tenant (just my guess--you could get a Judge who thinks exactly the opposite).
Another consideration is whether your former tenants have any ability to pay. They mentioned very early on that they had limited funds. Even if you sued successfully would you be left chasing tenants who have nothing? Just because you get a Judgment does not mean that you would get paid (you could hand the Judgment over to a collection agency to enforce).
Hope that helps you sort this out a bit and helps you decide what you might want to do. I recommend that you look up paralegals in your area. You would likely find one that would charge you a block fee to pursue the tenants (hence limit your costs) and they could look more closely at your documents to assess how strong your case is. It will be a fine balance to determine whether the paralegal is affordable for the amount at issue but if you are successful the Court can award you some additional costs to cover your legal fees (the maximum is 15% of the amount at issue).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy mother in law has been renting her apartment for 12 years and during this course painted a few walls and added a wallpaper boarder in one room. She recently had her leg amputated and as such the apartment is not fit for a person with that sort of disability and she must regrettably move into a more accessible home.
She has always paid her rent and never had any issues until now as they are stating she is now required to paint the unit back to "original colours" which is more likely the colours they are now using and not those of over a decade ago or they will charge her for someone else to have them done. She is on CPP and now also disability and I can't fathom how she can be expected to cover this after so many years of renting. Would they not logically be required to repaint anyway after such a long period of time regardless if she had painted herself? How are they justified in asking this from a 70+ year old woman who is only moving because they are not able to accommodate her new disability?
At the end of the day, we will bend to the threats if Ontario's laws are not set to protect the tenant in this type of situation, however I can't help to feel as though this is simply a scare tactic against a little old lady and is completely unethical.
Please help as we are at a loss and the Landlord tenant act is not clear about such matters.
Thank you for your time.
Hi Rob:
DeleteIn answering this question I presume there is a painting prohibition in the lease that requires landlord's consent before painting and that no consent was obtained.
If you take a look at Ontario Regulation 516/06 to the Residential Tenancies Act (cut and past this link http://www.canlii.org/en/on/laws/regu/o-reg-516-06/latest/o-reg-516-06.html ) scroll to the end and you will see a table. That table sets out the useful life of all the things in a rental unit. Note it isn't absolutely the final word--but it is a useful guide. You will note that paint, for the interior, has a useful life of 10 years. After 10 years a landlord would be expected to paint again as the paint job is "used up".
As you mother in law has been in the unit for more than 10 years I don't think she owes the landlord a paint job. HOWEVER, (there is always a however), much will turn on the colours that your mother in law painted the unit and whether painting over those colours will cost the landlord more. If you mother in law painted dark or strong colours that bleed through the landlord's normal neutral colour then the expense of the extra coats or the work associated with it will likely be owed by your mother in law. Choosing difficult to cover colours comes with a cost.
More troubling is the wallpaper border. I presume there was no consent for this border being put up. I don't see any way around paying for the cost to remove the wall paper border.
Good luck
Michael K. E. Thiele
Thank you for the insight Michael!
ReplyDeleteWe will speak to the landlord and remove the wall paper. I'm ok with the logic that the wall paper would cost the landlord to remove and they would not otherwise have been required to pay. I believe a compromise is the right course of action and hope that they are willing to work with us and listen to reason.
Keep up the great work on this Blog!
Under the ontario landlord and tenants agreement every how often should a landlord change the ccarpet within a property. Thank you in advance.
ReplyDeleteHi: The law does not provide for a set schedule for carpet replacement. The landlord's obligation is to repair and maintain and rental unit. Hence, if the carpet needs changing the obligation exists to change the carpet regardless of how much time has gone by since the last carpet change. Whether a carpet needs to be changed or not depends on how badly it is worn, whether it is soiled, torn, or otherwise damaged. A carpet that is treated gently can be good for 20 years or more. A carpet that is treated poorly can be destroyed within weeks.
DeleteThe Residential Tenancies Act does provide a schedule that sets out the anticipated useful life of certain things. It is a guide and does not mandate changes after the time period set out in the schedule. For carpets, the regulations to the RTA indicate that the anticipated useful life is 10 years.
Hope that is what you were looking for.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks Michael for the information and your time. It is mostly appreciated.
DeleteHi Michael,
ReplyDeleteI have an issue with a tenant that is housing dogs and now the room mates of the rental unit are complaining about the foul smells, and noise of the dogs. How can I deal with this issue? Also, how can a landlord deal with cleaning charges associated when a tenant with pets moves out? Obviously there will have to be a deep cleaning and possible carpet removal.
Your assistance is greatly appreciated!
Hi Michael,
ReplyDeleteI have left a small burn (0.5 inch by 0.5 inch) on a laminate countertop of my rental unit and now my landlord is asking me to reimburse them about 40% of the cost of replacing the entire countertop.
Personally I don't think this is fair as the countertop where the burn occurred is sectioned off and about 1/5 of the surface area of the entire counter top. But my landlord claims that the countertop is now out of stock and she's not willing to get countertops that do not match.
Just as context, she claims that the countertops were replaced in 2009 (which makes for depreciation of 6 years out of a useful life of ~25 years) but I don't believe she has any way of proving it.
Wondering if you could potentially provide some advice to this situation? She's chasing after me for the payment and I'm not sure what my rights are and how I should handle it...
Thank you so much for your assistance.
Hi: This is one of those fact scenarios that requires the application of some common sense. Fortunately, the Residential Tenancies Act does incorporate the necessary language that allows for the application of common sense.
DeleteYou have highlighted that the size of the burn is small and that it is located on a piece of counter that is a small part of a much larger counter area. What is unclear to me is how apparent is the burn? Is the burn a dark patch on a white counter-top? Or is it a burn mark on a marble like coloured laminate you have to take a look to see it? Has the burn warped the laminate? burnt through the laminate? affected the countertop in such a way that the burn becomes a focal point? If you took a picture of the countertop, from above or side, at a distance, would the burn mark pop out? Will the burn mark affect the ability to rent the apartment to the next tenant?
How you answer these questions informs the necessity of actually replacing the countertop. Further, how you answer these question informs whether a reasonable person would change the countertop or just accept it as a part of the deterioration by the normal use of the household furnishings. There is a line--which can be defined as you know it when you see it--- that speaks to needing to replace an item or just accepting that these things happen. Another way to put it, if this is the house of an ordinary reasonable person, would they pay to fix this countertop or would they put up with the mark and try to cover it or repair it in the best way possible?
How do the answers to the above questions dove tail with the law? The answer is in section 34, which is set out in the article above. Is this burn mark "undue" damage? "Undue" connotes a level of damage that is unacceptable, beyond normal, unreasonable in the context. Hence my argument is that you owe nothing if the damage is not "undue" which you measure by answering the questions I put to you above.
Hope that helps you figure this out. You haven't said how the damage happened (hot pot?) but I wonder too what the quality of the countertop is. There are some landlords who install the cheapest of the cheapest of the cheap fixtures in their apartments without regard to the "normal living" that tenants are going to do in the unit. Those same landlords then expect these garbage fixtures to last like they were quality fixtures (mid-range to high end). Is this reasonable? Depending again on your specific facts and what your landlord is like (did she install the cheapest countertop available), you may have an argument that the landlord can not have a reasonable expectation that the countertops would remain unmarked and in great shape given the quality of what she installed. Take a look at the invoice of what she paid for the countertops (demand a copy--which addresses you other point), and gauge the quality. If the countertop burned from seemingly nothing contact with the pot or whatever it was perhaps that is another point to make.
Notwithstanding the points made here, your landlord seems driven to get you to pay. If it is a matter of principle and you are prepared to take the time to deal with it (and I presume you have moved out), then you risk of course a small claims court action by the landlord. If you're fine with that then let her bring it on. If that really isn't worth your time and trouble then you might have to try to negotiate the best sum you can--even if the amount isn't completely fair.
Good luck
Michal K. E. Thiele
www.ottawalawyers.com
Hi Michal, great site. I ended up spending all night reading these posts. My wife and I have been locked out of our balcony form October 2014 until July 2nd 2015 due to building renovations. The entire building has been going under a wide range of renovations since October 2014. We just couldn't take it anymore and decided to move. I have 2 questions. Question 1, are these renovations and loss of a balcony for 9 months grounds for rent abatement? Question 2, we painted a single wall brown and are now being asked to pay 200.00 to have it painted even though the whole unit is being gutted and renovated as all the other units were after a tenant moved. Is it reasonable to request this 200 dollars? They are threatening to take it out of my bank account as it stands right now. Any advice on these 2 things would be fantastic.
ReplyDeleteCheers!
Hi: With respect to the first question (rent abatement) the answer is both yes and no. From an approach of interference with reasonable enjoyment during repairs (section 29(3) Form T2) the RTA, in the regulations, has an entire section on whether an abatement is available depending on notice from the landlord and similar such factors. That regulation is O.Reg. 516/06 and it is section 8. You can find the regulation by searching for the RTA on www.canlii.org (free) and at the top you will see a tab that shows all of the particular regulations for the statute being searched. If the landlord has not complied with the requirements of section 8 you may qualify for an abatement. Take a look at section 8--it is rather lengthy. The key is to apply your specific facts to the situation as you read each sub-paragraph to know what applies to you.
DeleteAnother approach in your situation is to consider your position more from a repair perspective and that what you bargained for is not being provided and as such you have lost the use of a part of the premises due to non-repair or the balcony not being in good repair. A tenant can bring an application under section 29(1) or section 130. The considerations are different and the limiting impact of the regulation I mention above does not apply. To make sense of these positions you really need to have the RTA in front of you and the various sections and the regulations.
With respect to your second question. I presume that you gave your landlord authorization to access your account for a specific purpose--that is normally to charge rent. The authorization may of course be revoked by you--which you should likely do by writing to the landlord. If they do take the money I would want to look at the authorization that you originally gave. Did you authorize them to dip into your account for whatever they wanted? I doubt it of course.
Your position on the painting is reasonable and I would not pay the re-painting either given that the unit will be completely gutted and renovated after you move out. Let them tell that to a judge.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello, I have been renting in Ontario for 14 years and landlord always provided repairs to any damage caused by reasonable wear and tear, such as painting the unit. A few years ago, the bathroom in our unit was renovated by a contractor, but they did not do the paint job properly. Instead of removing the old paint first, they must have painted over a new coat of paint on the old one ( in different colour from the new), so eventually the paint began to peel off revealing the old paint. It looks terrible, so I asked my landlord to repair it and she said that it is NOT part of regular maintenance and not her responsibility. Is she right?
ReplyDeleteHello, I have been reading your blog site after trying to find some legal advise.
ReplyDeleteI have been living in a basement apartment for 10 months (Since November), and after I moved out my Landlady sent me some concerning texts. When I moved in, I had to do about hour and half of cleaning, such as fridge and floors. I also pointed out to the landlady of a small crack in the bathroom floor, which those cheap roll out tiled floor type floors, and she told me to ignore it. Less than a month later, there was a leak in the ceiling in the main room, which I reported to her immediately. She got someone in, made a big hole, and said it will be fixed soon. The hole is still there, and still leaks. More issues occurred such as her dogs using my area weekly as their washroom, which she would walk by, no internet for 2-3 weeks at time (was included in rent), and her never shoveling her part of the driveway, which i needed to be cleared to get out or she get stuck and block whole entrance. I was trying to move out earlier, but couldn't find a reasonable price place. I learned my Friends were making a basement apartment and was looking for a tenant. I jumped at it, but it would have to be start August. I told myself I would rough it out until then with the place I was at.
Anyways, to get to the point. I spent 6 hours cleaning the place, since I wanted it to look good and all, but was not able to vacuum. I did ask for one, but since the landlady was out and only her 7 and 11 year old daughter were home all day (by themselves which was VERY common), I did sweep and all. I took pictures of all the rooms, and made sure all was good. There was one thing I didn't clean was a rug which she said to me multiple times to not worry about since she will throw it out. After I was finally done, the next day, while I was working (which I travel for), she text me about cleaning the place. I told her I did clean up, but only needed a quick vacuum, she then told me to come back to do it. I told her I would be back earliest 5pm, if all goes well. Well I got back into town 6:50pm, and needed drop some items off at warehouse. I get text at 6:57pm saying I owe $165 for cleaning bill and get to her tomorrow or else. I decide go home and sleep since tired. 8 am next day she send me a threatening text saying if I don't give her the $165 today, she will take me to small claims for $1040. (250 for new mattress, 165 for cleaning, 300 for crack in floor in bathroom, 650 for lost rent and 75 for making a small court claim.) I thought this was bogus and decided to ignore her, since last time I defended myself, when was no internet for 3 weeks asking her, very politely, if could get back on (over text messaging) She felt threatened and didn’t feel safe to be alone in house with me, though same day when I got home her kids were alone... which doesn't make sense she feels unsafe but ok with her kids be around me alone.
I wondering what I should do. I talked to some people and told me to ignore her. Isn’t it that when she says if I don’t pay $165 by end day she sue me for $1040 a sort of harassment, if not blackmail? If she takes me to court, can I counter her for 9 months with hole in ceiling, leaking and maybe mold forming, the total of 5 weeks of no internet, the cleaning up of her dogs messy up every week and the manual work I done to shovel out her part of the drive way all winter? I just want this to be over with, but not sure she is in her right mind. I do have pictures of the hole, all my texts we had between each other, and images of the place as I left it.
Hi Michael!
ReplyDeleteThis is such a great site you have set up here. I was just seeking some advice based on my situation. I keep my apartment very clean, but my building management (Realstar) has sent all tenants who are leaving a letter which describes charges which we may incur. I'm moving out at the end of the month, and I'm concerned about getting charged for a few minor things:
First, after the first time I cleaned my bathub I noticed a strange circular scratch (minor, but noticeable) which appeared only in one place in the middle. It seems like they painted over some previous damage which has resurfaced after a good scrub. Do you think I'll be on the hook if I'm charged for some sort of repair?
Second, a similar thing with the floors. I gave the parquet style floor a good cleaning,and in a few places its lost its shine from the varnish. If they try to charge me to re-varnish the floor, will I likely be responsible to pay?
Finally, the main window has two sets of sliding windows and a screen. The window has some dirt buildup on the outward facing side between it and the screen which I cannot reach to clean. They mention in their letter they mention charging to clean inside windows. If there's no way for me to clean it without taking it apart, they probably can't charge me right?
Thank you for taking to the time to look over everyone's issues. I got a lot of other answers about other issues from reading your previous responses.
Hi Taylor:
DeleteI think the best thing to do would be to ask your landlord to come do a move out inspection. Ask for that inspection in writing--email if you can. I presume they will agree to come to do a move out inspection and they should give you a piece of paper indicating any areas of concern or a paper confirming all is fine. Sometimes it is a multi-step process with an interim form now and one when you hand back the unit on the day you move out. Take the time to point out issues of concern for you and get their position now. Just because you get their position does not mean that you have to agree with it.
If you point out the tub and they say they will charge you then you can pay close attention to the tub, take pictures and maybe even get a bathtub refinish person in to give you an opinion and an estimate as to cost. What would be most valuable to you is having evidence that the tub was refinished once before. The same goes with the hardwood flooring and the windows.
For the windows I would take a video to demonstrate the impossibility of cleaning between the windows without taking them apart.
The things you are describing are not something that I would ever expect a tenant to be charged for. The bath-tub was likely painted as you say and the hardwood floor (parquet) is likely due for refinishing in any event. Regular dirt on windows is not something the landlord can charge back for anyway. So you should be fine as this all sounds like ordinary wear and tear.
Protect yourself though and take very good pictures and video of the apartment as you leave it. Have detailed footage of all the walls, floors, ceiling, appliances and all of the rooms. Be able to prove how you left the place. If you have pets get an objective person to come into the apartment who would be willing to testify to smell for pet odours--particularly urine. The reason to do all of this is so that you have evidence of the condition of the premises on the day you left it in case the landlord makes unfounded allegations of damage. I don't think your landlord is the type of landlord that would do this but I have seen it happen with others so it is worth it to take a little extra precaution and document your exit. The move out inspection, signed off by the landlord, is fantastic if you can get them to agree to it.
Good luck
Michael K. E. Thiele
Thank you Michael! It's great to have your opinion.
DeleteI'm certain everything will work out. I just had one other question;
I just sold my futon and noticed it made marks on the wall behind it. They were nothing major, but deep enough that the wall needed to be patched before being painted.
After patching the wall I've inquired about getting some paint to cover up the patches. The management has told me that the painting contractor no longer has that paint.
What are my responsibilities as a tenant in this circumstance? It says in my lease that I have to return the apartment in the same condition that I found it. I'm willing to paint the wall, but without the right color of paint it seems like the whole room will need to be repainted to make it the same color.
Hi Mr.Thiele
ReplyDeleteI live in a co-op housing complex in Kitchener which is controlled by a board of 7 tenants and a coordinator. Approximately a month ago, our coordinator of the past 25 years retired and was replaced by a girl hired by the board. Anyways on August 28th at 3:30 in the morning I was woken by my drug induced 23 year old son who is not living here nor is he welcome here because of his habbits, smashed out the window in my front door,unlocked it and let himself in where he proceeded to kick things over and terrorizing me. I phoned the police and he ran before they got there. I charged him and had a no contact order put on him. Forensics came and took pictures a police report was made. The police told me to contact the landlord as soon as I could to get them to fix it and he gave me an occurrence number.
When morning came I went to the coordinator with the occurrence number and told her what had happened through the night.
10-15 minutes later the coordinator and one of the maintenance men came to look at the door and assess the damage. They said to us that there was no point in replacing the window. They are planing on redoing all the front doors anyways and that they all ready had 3 done and were working on the fourth... we just got bumped to the top of the list. That was the end of the chat. Maintenance came and boarded up the window.
On the 5th of August at 10:00 in the morning the maintenance man came and installed a new high efficiency inside door and a brand new screen door.he worked til about 4,and it looks real nice.
Here is the problem. The following morning on the 6th, my husband goes to the back to get our mail. It gets delivered to one of those community mailboxes where you need a key. Anyways there is a letter in there from the board saying that the had a meeting and a vote was cast and they deemed us responsible to pay for these new doors and the cost to install them.Can they do that without discussing that with us? There is no way in he'll that I would have done it that way. We would have just replaced the glass if given our choice.
We have scheduled a meeting with the board to discuss this for the 18th of August.
What are the laws on this and how do I deal with this board an coordinator with this?
Thank you for any help you can give me
Tracey Armstrong
Hi Micheal, I have rented a brand new condo and stayed little over 2 years. When i vacated, during a move there was a small dent in the wall caused by movers. I agreed to pay for the repair cost of the wall. Current tenant has take picture of the damages and he included few minor scratches on the floor. I have a son 3+. There might have been very few scratched on the wooden floor and not anything noticable. My landlord is repairing the floor (approx $600) and dent in the wall(approx $150). He mentioned he will deduct these repair costs from security deposit and refund the remaining amount. I feel that landlord is not reasonable in terms of floor repair. Please advise if i have to litigate ? Thank you for your help and advise.
ReplyDeleteHi: Because the landlord is holding your money you will be left with little choice but to commence legal proceedings if he does not return the money. What should not be the case is that the landlord is holding a security deposit. In Ontario a landlord is not allowed to hold any deposit other than a last month's rent deposit. Security deposits for damage are not legal.
DeleteI recommend that you ask your landlord to return the security deposit in the full amount on the basis that the deposit is illegal. Tell him that if he wants to charge you for damage that he should send you a bill and you will consider whether the bill is fair or not. You can be straight up and tell him that you disagree with the floor repair charge. I imagine that the landlord will not return your money voluntarily.
On the basis that he is holding a "security deposit" (in addition to a last month's rent deposit), you can simply bring an application to the Landlord and Tenant Board seeking an order for the return of the security deposit. You will win that application fairly easily as damage/security deposits are not legal. Because you no longer live in the unit the landlord can not file a claim against you at the Landlord and Tenant Board for the damaged floors. Hence, you will get an order without deduction for any of the alleged damage (even the damage you admit to the wall).
The landlord, to recover payment for damage will have to sue you in small claims court. Before he does that you should pay the amount you feel responsible for (wall damage), but not pay the floor damage. I presume you don't feel responsible for the floor damage as it represents normal wear and tear and is quite minor. If the landlord does sue you in small claims court you will have to defend the claim there.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Micheal, Thanks for your advice and it was really helpful.
DeleteHi Michael
ReplyDeleteMy husband and I owned a property that has been rented to a lady since July 1st 2015 who hasn't moved in yet (will be at the end of August 2015) but has been outrageous with her requests. At the same time we have been always respectful and have taken quick action to fix the major issues she has reported (like moisture in the garage door which we fixed right away, as it could translate into mould later on), but we have just received aggressiveness, disrespectful vocabulary to me, and to a certain extend I have felt harassed by her inquisitive behavior and commands. The house she has rented from us, is kept is excellent conditions, we completely finished the basement to the nines before renting the house, the house is all freshly painted, new broadloom in second floor and everything is in working order and nicely done. Regardless, she doesn't seems to be content and continues to complain and complain on minor repairs like the paint in the inner part of the frame in the cold cellar door is not properly patched and painted, a window screen and the patio door screen both had very little holes and she wanted them to be replaced as they where an "eye sore",so we replaced them! then the towel ring in the ensuite was placed to low and her towels didn't look nice, the pedestal sinks -which are new and of a great quality- are not good because any of her soap containers fit in them, and the list goes on and on.. She is now complaining that the glass of the patio door gets fooggy and that interferes with the view. We have asked home inspectors and other people they have said that the fogginess is purely cosmetic that there is nothing wrong or it causes any damage or proper functioning of insulation between the panels. We personally have the same situation in few windows of our home and no issues with that in any season. Based on the annoying situation we are experiencing with this lady, I would like to know what is our responsibility as landlords to fix/replace/change -if applicable- with "minor claims/reapirs" and which legal rights we have to stop her erratic behavior and make her aware that we are not legally responsible for such repairs, in the case we aren't-.
In the case that things get really over the top and not sustainable with her, under which circumstances we are able to terminate the leasing agreement as this one just started on July 1st 2015 for a year? how can we terminate the contract and have her move out? Are we able to do this? Is it too expensive and time consuming to do it? how is the process, how long does it take?
Could you please clarify.
Really appreciate your response.
M Hirsch
Hi M. Hirsch: With respect to the tenant's demands for repairs, maintenance, and changes to the things in the house I can comment that the law does not require that the rental premises be improved. Anything that is broken or not working must be repaired. The landlord's obligation is set out in section 20 of the RTA and you should make yourself familiar with this section. In fact, you should be quite familiar with Part III of the Residential Tenancies Act which is entitled Responsibilities of Landlords. Of course the rest of the RTA is important as well, but Part III is especially important as it is the breach of these sections that ground many of the most serious tenant applications.
DeleteFrom your description of the things that your tenant is demanding it seems that your tenant will keep pushing for more until you finally and clearly say stop. To say stop effectively, you need to know your obligations under section 20. It is important for you to know, as well, that any breach of an obligation in Part III does not automatically entitle the tenant to a rent abatement.
With respect to terminating the tenancy and having her move out you are quite limited in your options. You may terminate her tenancy for cause, which cause must be based on breaches recognized by the RTA. The typical ones are: non-payment of rent, interference with reasonable enjoyment, illegal act, impaired safety. Each of these grounds of termination is linked to a Form--being one of the N forms under the RTA---for example---N4, N5, N6, N7. Each of the forms has a guide and instructions explaining a bit of how the form is used, the timelines and procedures. You can find the forms on the Landlord and Tenant Board website. Simply being incompatible with the tenant or not liking her or finding her a massive headache is not grounds for termination. Right now, her endless demands while perhaps annoying do not constitute grounds for termination. Your reasons to terminate MUST find a basis in the RTA as there is no general right to terminate a tenancy on notice by a landlord.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteThank you very much for this helpful information. Great blog!!
Hi Michael,
ReplyDeleteWe lived in a two bedroom unit for 2 years and are currently moving out in September. The last few months before we move out, we had a pigeon lay eggs in our balcony. We noticed this after the eggs have hatched and admittedly fed the birds for a few weeks. The balcony soon became infested with bird droppings. We realize that this is partly our responsibility for feeding the birds and offered to pay for a balcony cleaning service, which charged us $100. The cleaning service however did not remove the wooden floor boards to remove any of the underlying seeds. My question is. would the landlord insist that the balcony hasnt been cleaned well enough, because of the underlying seeds, and bill us for another cleaning service or did we do our due part by cleaning it up. it looks reasonable now, with not sight of any bird droppings. Thanks
Hi Michael,
ReplyDeleteThanks for sharing this article! I have just two small questions for you if you have the time...
I moved into my condo with a roommate from online.She had lived there for 4 years said I could paint the room. So I did. Can the landlord come after me to paint it back to white as I never got his permission only my roommates?
The washing machine hose came off one day and there was water damage throughout the condo floors. I called the broker who sent over a repair man. When the repair man was there the washer flooded the floors for a second time. This made the water damage even more noticeable.
Now the broker/landlord wants to come over my roommate and me to replace the floor.
Can he make us pay if he takes us to a tenants board?
Hi Michael,
ReplyDeleteI gave short notice of termination to my LL to end the lease on Jul. 28th. I mentioned that I planned on moving out on the 25th. The LL and I agreed via email that I would pay him $100 for him to bring a person to clean the unit so that I wouldn't have to do it.
We also agreed that I would return the keys on the 25th (because it was more convenient for my schedule) and he would return me the pro-rated rent of the days I didn't stay (from 28th to end of the month + last month's rent). Since the LL would be on vacation that day, we agreed that I would do this transaction with the cleaning lady's sister (let's call her Janet).
I had to start my move late due to some issues with the rental truck company. When Janet called me, I was still at the rental company. When I arrived at the condo, Janet refused to give me the money because she said she had to do an inspection, and the unit still had my belongings in it.
I was surprised to hear that since the LL had never mentioned anything about an inspection, and we never did one when I moved in. I mentioned that to Janet and said that instead I would drop the keys at the rental office on the 28th and she could drop the envelope with the money there also. Janet refused to do this and left.
A few hours later she came with another person (whom only much later identified himself as the new tenant's real estate agent), saying that Janet had spent hours waiting for me, and how come the unit wasn't vacant yet, etc (I ended up having to disassemble a big piece of furniture because it didn't fit through an angle in the hallway - I had measured the elevator and the doorway, but not the turning angles in the hallway - which delayed greatly the move out).
The new tenant's agent (let's call him Mark) and Janet put pressure on me, saying that Janet had spent hours waiting for me to move out, and they coerced me into paying Janet an extra $100 for her wasted time.
Then, Mark mentioned that the new tenant was moving in on that same day, and that I simply had to move out ASAP. I then hired a moving company to help me move out faster (so far I had been doing the move with the help of a few friends).
After the unit was empty, Janet and Mark showed up again, and this time they refused to give me the money and get the keys from me because they said the unit needed painting (there were a few dents on a wall due to bumping objects on them by accident and also 5 of those 3M hooks hadn't come out clean and left a few marks - all this was already there when Mark and the (then prospective) tenant saw the unit during the showing).
Janet and Mark coerced me into paying $700 for painting the unit. I was so tired (hadn't eaten properly due to the delay of the move) and stressed out that I agreed to it.
I paid the painting money and gave them the keys and they gave me the LL's money.
A couple days later (after being well rested and talking to some friends), I realised how much they took advantage of me and (in my opinion extorted that $800 from me).
I emailed the LL asking for that money back, and also the money I had to spend for the moving company (~$300). I also mentioned that legally the unit was mine until the 28th, so I was owed another ~$200 for rent from the new tenant occupying my unit.
The LL responded saying that he owed me nothing and wouldn't pay back a dime.
A few questions:
ReplyDelete1) I beleive the paint and issues on the wall are wear and tear, and I should not have been charged for it. Am I correct?
2) Is it fair to ask for those other things ("waiting time" money + rent + last minute moving company)?
3) How realistic is it that I could get that money back?
As you might have guessed, Mark and Janet gave me no receipt for any of the money I gave them. The only proof I have is the $700 coming out of my bank account on that day, and my friends as witnesses to me paying the $100 for them.
4) What would be my next step? (this is a claim of approx $1300, not counting personal/emotional losses) The city where this happened is Toronto.
Thank you for your advice,
N.C.
Hi: You have been taken advantage of and I can only imagine that you must be kicking yourself for giving them this money. With respect to your questions. Paint chips, a few dings, can all be wear and tear. The extent of the wear and tear, whether it is reasonable is contextual. If the paint job is older and the walls haven't been touched up in years it is quite likely that you should not have been charged for it. However, you would need photos and proof of the condition of the walls before taking any legal action. The payment of the money seemingly implies that you agreed that the damage to the walls exceeded normal wear and tear.
DeleteThe waiting time money is not something I would ever suggest paying. It does not seem reasonable to me. The last minute moving company is also an extra expense that I don't think you needed to incur. From your description it sounds like you were more or less on time with your move and that certainly you were entirely within a period of time that you had paid for. The landlord did not inform you of any urgency in getting the move completed because of other tenants moving in. In this context I don't see a basis for the things you were charged.
As for getting the money back. I think you are likely out of luck. Of course, the landlord's agents may admit to everything but that is highly unlikely. Your willingness to pay also reflects poorly on your position as payment implies agreement that there was a problem in the unit.
You could fashion a technical argument under the RTA based on illegal charges but I imagine that would be countered by a claim against you for the money you paid. They would make allegations against you (perhaps for more than what you paid) and say that the payments you made were to settle the issues that became apparent to everyone. This would make those payments a contract. Unless you can show some very serious grounds for setting aside this contract I don't actually see a Court granting you judgment for the money you paid.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you for an informative post! Both the post itself and your responses to comments here have been immensely helpful.
I am in the process of moving out having already given my notice, however, the landlord is asking that I pay $650 to replace the carpet in entirety. The carpet had a small wine stain at the edge that I tried to clean, which resulted in a small (hand sized) bleach stain. In my opinion, it's not that noticeable, just a patch of slightly lighter coloured carpet, and also since it is right at the edge where the carpet meets the kitchen floor,
Based on what I've read here, I responded that I am willing to pay to replace the section and I also asked how old the carpet was. The landlord responded that the carpet is brand new and has a useful life of 10 years and that replacing just the section will be too noticeable and will then not be up to the company's standards.
Now I am wondering two things: 1) should I ask for proof that the carpet was brand new? The building is quite old and I’m having a hard time believing it. It does not look brand new, but I don’t know if it’s just due to the colour. And 2) am I responsible for replacing the carpet in entirety just to adhere to the company’s standards? It’s their preference/”standard” to not have a section that doesn’t match the rest of the carpet – am I on the hook for that or should I stand my ground to only pay for the section that’s stained?
Last thing to note is that I don't want to leave on bad terms as I have friends who still live in the same building. Your advice is greatly appreciated!
Hi: Surprisingly this is a difficult question to answer. Not because the law is unclear but because the notion of what constitutes normal wear and tear means different things to different people (most importantly to judges). In my view, a small wine stain is "normal" wear and tear. However, there are decisions to the contrary. In my view, I don't think there should be any liability. But let's presume the wine stain is considered damage (negligent) that makes you responsible in law for the cost of repair.
DeleteWhat is the extent of the repair obligation? You are right on point with the question about the age of the carpet. In the Regulations to the RTA the useful life of a carpet is set at 10 years. After 10 years it is reasonable to consider the carpet to be "used up". If the carpet was "used up" and at the end of its useful life by the time you moved out it is arguable that you owe nothing. It is interesting to think about how one looks at the damage. Are you responsible for the value of the item that you damaged? Or are you responsible for the cost of the replacement? A nearly 10 year old carpet likely has a very low market value. In fact it might be difficult to give it away. If you are responsible for destroying the value of the item in your unit then you have destroyed something (an exaggeration I know) which has no value. If the carpet in your unit had a year left in it's life then arguably you need to know how much was paid for that carpet. If it was a $1000 carpet and only had a year left in it's life and it became completely un-useable because of you then you would arguably owe $100. Often the argument is made that you cost the landlord a year of use and hence you are responsible for 10% of the cost of the replacement carpet. That can be a big deal if the new carpet costs much more than the old carpet.
What if the old carpet is way older than 10 years? Your argument is that it needed to be replaced anyway and hence no liability. The key will lie in the documents so you are right to demand copies of invoices and proof of payment for the carpet.
If the carpet had 5 years left on it would it be reasonable to replace the entire carpet for one small stain? The key to that question I think is an "ordinary person" question. What would the average reasonable ordinary person who is paying for the new replacement carpet do in this instance? You need to imagine that person and then ask yourself if the landlord's replacement policy reflects that ordinary person. If not, the Board or Small Claims Court should deny a claim.
Ultimately, this is one of those areas of Landlord and Tenant law that becomes more confusing the closer you look at it. There are arguments and counter-arguments to every position that either landlord or tenant could take. My experience is that a Judge in weighing these things decides firstly whether the tenant is responsible at all. If the answer is yes, then the Judge looks at the value of old and new, the extent of the damage and then picks a number between the ranges of zero and replacement cost that in the Court's view seems "fair".
Hope that helps you think about these issues.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteThank you for such an informative blog! I found answers to my many questions about housing laws. I actually have a specific question. From what I'm reading here, am I understanding correctly that landlords requesting tenants to pay for usual wear and tear repairs is illegal?
I signed a lease for a condo unit in Toronto sometime in March 2015. Around April, one of the pipes in the kitchen burst. It was obviously secondary to the corroded plumbing. The landlord's representative was contacted and he arranged for a plumber to replace the faulty plumbing. That was the end of that story. Sometime last month, the toilet started to leak. The tank would slowly empty out and the wet floor started to smell. The landlord's representative was contacted again, but the plumber was away on vacation. He asked if it would be ok to wait because other plumbers charge a lot more. I turned off the water to the toilet so it wasn't leaking anymore. It was just annoying because I had to turn it on whenever I needed to use the washroom. The plumber returned from vacation and came by to fix a loose washer on the external plumbing. I'm not a plumber so I thought that fixed the problem. It didn't, so the plumber had to be called in again. This time, he replaced the flushing valve saying that it was the wrong one for that system in the first place. Everything's fixed now for about a week. Then today, I receive a call from the landlord's representative requesting a $300 for the plumber's fees. He stated that the clause in the lease meant that I agreed to pay the $100 for every repair, "The tenant agrees to pay the first $100 per incident of the cost of repairs to the premises, save and except to structural damage by acts of God, and the tenant agrees to pay the full cost of repairs to damage caused willingly or through negligence." I thought that meant paying part of the cost for a new microwave that breaks down after repeated using over several months or something similar. Corroded metal and a faulty toilet system are hardly my responsibility. There's also a clause in the lease that says, "The landlord warrants that the heating, ventilation, and plumbing systems are in a state of good repair and will be so maintained."
I'm trying to figure out what to do. On the one hand, I don't want to be difficult, but on the other hand, I don't want to pay for things that should've been in good working order in the first place. I've lived here for less than half a year. What can I say to the landlords? What do I quote to defend my arguments? Am I even allowed to refuse?
Thank you for any advice that'll guide my next steps.
Hi: The maintenance and repair of the rental unit is the landlord's responsibility. You may find the authority for that statement in Part 3 of the Residential Tenancies Act starting at section 20 (google, canlii.org, residential tenancies act--for a free searchable legal database that is excellent and better than many of the paid services). The lease you have is a contract and you have cited provisions in the contract requiring you to make the payments as indicated. This provision is in conflict with the cited section 20 of the RTA. Your lease clause shifts maintenance responsibility to you while the RTA makes that maintenance obligation the responsibility of the landlord. Where such a conflict exists you make reference to section 4 of the RTA which provides that any conflict (of the kind set out here) results in the clause in the lease being void. The effect is that you can't contract out of the provisions of the RTA. Aside from the statutory sections you can find caselaw dealing with the same issue. It resolves in the way that that statutory language suggests it should. Landlord's are responsible for maintenance and repair of the rental unit and everything in it.
DeleteSo yes, you may refuse. The only thing the landlord could legally do is try to evict you for failing to pay the demanded amount or the landlord could sue you for the amount. You would defend on the strength of the law set out above. You should win. The only caveat that applies in everything related to the law is that nothing is ever entirely 100% crystal clear and nothing is ever guaranteed. If the facts are a bit different, the judge sees it differently, or maybe the judge/adjudicator just gets it wrong you can't presume success--ever. That being said, the statement that a residential landlord is responsible for maintenance and repair under the Residential Tenancies Act is about as guaranteed as you're going to get. Note these comments are with respect to maintenance and repair necessitated by breakdown of the items through ordinary use. Tenants may be responsible for damage caused by their own negligence or wilful damage.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteThank you very much for your reply! I'll look at the references you provided and leave an update for other blog readers.
Thank you very much again!
Hello Michael, I have tried to submit my questions to you so if this shows more than once I do apologize.
ReplyDeleteI am a Landlord of a condo in Toronto. I was recently given a bill of $700 for repairs to unit below that was apparently caused by a leaky/overflowed toilet in my unit. According to the report the leak was not able to be recreated and there was no actual leak in my unit. Toilet was never taken apart and walls were also not taken apart to see where actual leak was coming from. There were no pictures sent to me of the damage and I only have the reports to go by. Am I liable? is there proof that needs to be provided. If they can provide proof that I am liable would my tenant then be liable? Thank you for all of your help.
Lucio from Toronto
Edit: The repairs have been done by a professional, but the doors have not been painted yet so the repairs are very apparent at the moment, and when they did their follow up inspection, i did tell them it wasn't done and was to be painted.
DeleteThey also gave me 14 days to do these repairs right after it took them over a month to fix our plumbing issues.
Hi Michael thank you for taking the time to answer everybody. I think my problem is fairly simple. I have lived in my apartment for 2 years and over that time i have punched a few holes in my doors (bathroom, closet,...). Recently we had a maintenance inspection because we had a plumbing issue, while they were here for that they noticed the holes in the doors. Few days later we received a letter stating they wanted the doors replaced. I read it wrong and assumed they wanted it repaired so that is what i did. Today they showed up as a follow up to see if the work had been done and they were upset because they wanted them replaced. I have not received another letter yet but im expecting one stating the repairs were insufficient and to replace the doors.
ReplyDeleteMy question is do they have the right to want the doors replaced instead of repaired......i have looked in the Act as well as my lease and they both refer to repairing any damage willful or negligent, but nowhere does it say anything about replacing damages.
Second question is even if I am to replace the doors the useful life of work done or thing for a wood door is 20 years. As my doors are definitely not new shouldn't the cost be less then brand new doors.
If this is true how would i prove how old the doors are??
Thank you very much for your time!
Hi: I see your addition to this comment about the repairs being done by a professional. I'm not aware of any authority that allows a landlord to demand a replacement as opposed to a repair. If the repair is professionally done and looks good then there is no reason to replace the doors. Have the work completed and that should be it. If the landlord wants to take further steps he will have to commence proceedings at the Board. Be prepared to prove the condition of the doors and if it's good the Board should be satisfied with the professionally repaired doors.
DeleteWith respect to the age of the doors you can demand that information from the landlord. It is likely that the doors are the age of the house. Can you estimate the age of the house? Having available for the hearing evidence on the condition of the doors is useful. Highlight not just the repaired parts but the other parts of the door that might reflect wear and tear etc..
Good luck
Michael K. E. Thiele
Hi Michael, I have few concerns about my daughters landlord. She is a student in Toronto and is living in a basement apartment, the House has 3 rental units and the landlord does not live on site. On Sunday he knocked in her door and informed her that she is not allowed to burn candles in her apartment as the lease says she cannot increase the risk of fire. What really bothers me is that the only way he could know she had a candle is by getting on his hands and knees to look in her window.Now she terrified that when she moves out he will charge her for putting 6 picture hanging hooks in the walls. we tried using the removable hooks but they actually took small chips of paint off so we went to the small picture hooks. Do you think she really has anything to worry about. He also cashed the past 3 posted checques 10 days early. the last one we intentionally made sure the money was not in and when it bounced my daughter gave him another one minus the NSF charge stating that he should not cash them early or this will continue.I know she should not antagonize him but because she is a student he thinks he can do what ever he wants. Also the Toronto landlord committee says they must keep heat at 21 from mid Sept but her apartment has not been above 18 yet because the thermostat is in the middle unit and basements are always colder. She was going to get a space heater but is now afraid that this will be deemed as raising the risk of fire. Any suggestions would be appreciated
ReplyDeleteHi: Thank you for writing. Your daughter has very little to be concerned about with this landlord and his demands. Picture hooks and the tiny hole they make are ordinary wear and tear that is not chargeable to the tenant. The key for your daughter will be to document very clearly upon vacating the unit the condition of everything--via photo, video, and a witness who would be prepared to testify if necessary. In my experience some landlords get away with frivolous or simply made up claims because tenants don't have any evidence (i.e. photos, video, witnesses).
DeleteWith respect to candles that is a bit trickier. Do candles increase the risk of fire? The context of this restriction, I think, would be to look at section 66 of the RTA. That section deals with an act that impairs safety. It specifically says: "A landlord may give a tenant notice of termination of the tenancy if, (a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and (b) the act or omission occurs in the residential complex."
As you can see, burning candles may indeed come within the ambit of section 66. If a candle causes an actual fire then it is likely that section 66 is available to the landlord. If the landlord had evidence of careless use of candles then that too may be enough to make section 66 available to the landlord. Of course, a candle on a dining room table in a proper holder during dinner is unlikely to seriously impair safety. Certain candle holders are also inherently more safe than others and the location of burning also determines the risk associated with candle burning.
As so many things, context is everything, and I think that will inform the issue involving the burning of candles. As there is no explicit ban on candles (and without thinking about whether the landlord has the right to ban a candle) the analysis has to be a section 66 analysis---i.e. "seriously impairs").
You seem to be dealing fine with the rent and hopefully that has solved it. Ultimately, the landlord is not entitled to have post dated cheques so if he keeps cashing them perhaps you don't provide him with them. I recommend that you get a copy of the post dated cheque that bounced and that you get the proof now of when that cheque was cashed. This information tends to disappear in time from the banking records--even the electronic ones. Get that information now in the form of the cancelled cheque, NSF fees etc., so that you have it and that you can prove it is the landlord's fault. You might find that towards the end of the tenancy the landlord will try again to ding you for his NSF charge back and the short rent that you gave him to cover your NSF expense.
DeleteThe heat in your daughter's unit is insufficient. You need to send the landlord a written complaint and ask that the situation be rectified. A space heater is a temporary solution only. Your daughter is entitled to have a primary heat source that maintains the temperature at a minimum of 21 degrees. The landlord may have to call in an HVAC company to make the necessary adjustments (it might simply be a matter of balancing the house). If the landlord does nothing consider a call to the City and to Property Standards. You can ask to have the unit inspected and an order made. You may also apply to the Landlord and Tenant Board on the basis that the landlord is not providing a vital service as defined in the RTA. Again, collecting evidence is important to prove the allegation.
While trying to deal with the heat issue I would certainly use a space heater--preferably a ceramic heater--Canadian Tire has them. I have had many clients/tenants who have used them on an interim basis to raise the temperature to a reasonable level. This is not a long term solution but I think it is better than turning on the stove and the burners to try to heat the unit (which is what some tenants do). Does a space heater raise the risk of fire? As opposed to no heater at all I presume so. However, the landlord can only do something about it by taking action at the Landlord and Tenant Board. Given that use of the space heater is necessitated by the landlords failure to provide a vital service any attempt to evict your daughter on this ground is very likely to fail.
Please note that tenants in Ontario have a great deal of security of tenure. Tenants are not easily evicted and the whims of a landlord are largely meaningless in the legal context. Certainly, a crazy landlord can make living in the building uncomfortable and annoying, but the legal landscape does not support the whims of a crazy landlord.
Hope that helps you understand the law a bit better. If your daughter's school has a law school or her school has an arrangement with one there is often a student legal aid centre that will provide students with landlord and tenant law advice for free. She might want to check that out if this gets and worse.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
This comment has been removed by the author.
ReplyDeleteMy son is a student renting an older student house in Kingston for 3 years with 5 other students. His bedroom was newly painted and the old rough original wooden floors had been re-sanded and re-finished prior to his moving in but were still rough. During the last 4 months of the tenancy there was a sublet tenant during the summer months. Just prior to moving out, the sublet broke the inside pane of glass of the bedroom window but notified my son and the landlord. Upon move out of the sublet and the end of the tenancy agreement, the landlord submitted a bill for $326 + HST for the window repair and $393 + HST for cosmetic repairs to the wall (door knob hole in wall because there is no stopper and marks from posters on the wall). He also submitted an estimate for $460 + HST for floor repair since my son’s or sublets roller chair had left and bedframe had left marks on the floor. The quote for the floor repair was from and individual not a company. This seemed suspicious as it was obviously not a professional floor refinishing business as $200 of the quote was for rental of a drum sander. As it turns out the individual operates a residential/industrial cleaning company.
ReplyDeleteSince the repairs seemed excessive and some of the damage would be considered to be wear and tear, my son received lower quotes $152 and $200 for the window and wall. My son offered to pay the window and wall repairs based on his lower quotes. However, the landlord refused the offer insisting that his quote had to be used as he had put a $360 non-refundable deposit against the quote as it was an emergency situation to repair the window. In should be noted that he did not board up the window or remove the remaining broken glass for the new tenant. After numerous emails back and forth, over 3 weeks later the landlord emailed acceptance of son’s repair quotes and demanded payment for the window, wall and floor repair even though none of the work had been completed. When my son offered payment for the window only at this point and to drop off a cheque to the house, the landlord insisted that the payment had to be by certified cheque or etransfer for the full amount. My son dropped off a cheque to the house and emailed the landlord. My son also offered to pay for the wall repair when the work has been completed and a receipt provided. He believes the landlord will repair the wall and floor with the rest of the house next summer when all the tenants move out and perform the work himself while pocketing the money.
The landlord has refused acceptance of the partial payment citing my son is being unreasonable and demanding full payment. He is now threatening legal proceedings with the additional costs for court and seeking higher costs for the floor repair using professional refinishers of $800-$900. Is my son required to pay for the repair prior to the work being completed and a receipt for payment? What would you recommend my son’s next course of action be?
Hi: Your son's liability under the RTA is for damage caused negligently or wilfully. He is also responsible for the damage caused by his sublet. That's about as helpful that I can be. Asking what the next course of action should be is not actually or entirely a legal question. I think it is important to recognize why you are asking the question and identify, even if just for yourself, why you are not trying very hard to get along with the landlord. The reason of course is that you think you are getting ripped off by a landlord who is throwing out excessively high numbers for "repairs" that can actually be repaired for a fraction of the cost. No one likes getting ripped off---especially if it feels like gouging.
DeleteYou don't describe the kind of window it was that was broken but having recently replaced the panes of custom sized windows this window in your son's room must be a pretty nice window to cost $326 plus HST to repair. The $393 plus HST for the door knob hole and posters is just a plain rip off--unless of course there is something profoundly unique about these walls or the minimum wage in Kingston is significantly higher than anywhere else in the country. Query even whether the door knob hole is negligent or wilful damage. Certainly the poster marks are ordinary wear and tear if we're talking push pins or tacky stuff. The floor charge is troubling given that the floor was recently refinished and should hold up better than that. I've seen office chair damage on flooring that clearly demonstrated a disregard for the floor and sometimes the reasonable thing to do would be to put down a mat on the floor to protect it from the chair wheels. Is that this case? That the bed frame caused damage causes one to question the quality of the floor refinishing work. Normal bed frame use shouldn't necessitate refinishing of the floor. So what is going on here is the natural question to ask.
You and your son seem to be asking the same questions and have the same concerns hence holding the landlord's feet to the fire. Ultimately, I think, it comes down to how much time does your son have to deal with this guy. If the landlord actually sues it will likely be in the small claims court. That will likely happen in Kingston. Does your son have the time to deal with this in Kingston? If so, great. Threats about bumping up the damages to silly numbers, plus plus plus, is mostly just talk. Sure, the landlord may sue for bigger numbers but if your son is prepared to deal with the claim (i.e. the time involved), file a defence and appear in Court he has defences. Further, the Court isn't just going to give the landlord bigger numbers because he is in a snit. This is especially the case if your son has a good paper trail and can demonstrate good faith bargaining and reasonable positions in relation to the damage and being prepared to make good for them. In my experience, the landlord gets the benefit of the doubt initially with the Court. However that benefit is quickly squandered if the tenant demonstrates that they are not shirking responsibility and have made reasonable offers to settle the matter. If the Court gets the sense that the landlord is in it for a cash grab there will be no costs. In fact, with a reasonable offer to settle your son could get costs if his offer beats what the Court awards to the landlord (read the Small Claims Court rule on Offers to Settle for details).
So, what to do? That has to be your son's choice. His legal liability is simple. The rest is about feeling ripped off and being taken advantage of and putting the landlord to the effort of chasing the money (and perhaps he won't?). If the landlord sues there is the potential for increased costs in time and expense if the Court case doesn't go quite as hoped, but there is an equal potential for an outcome that your son finds "just".
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteThank you for your reply. My son has acted in good faith and agreed to pay for the repairs. He has received quotes for the repairs that were significantly less than the landlord was initially demanding payment for. The landlord is now subsequently using the window company my son received a quote for to do the repair at a significantly lower price. The landlord has also now agreed to accept payment for the wall repair based on the lower quote my son received. The cost of the floor repair is still in dispute but my son has offered to pursue getting a more reasonable quotes as the floor can't be repaired until the existing tenant is away for the summer.
My son has left a cheque for window repair at the house. But the landlord has refused to accept it as he is demanding payment via electronic fund transfer or certified cheque. My son has never provide an NSF cheque to the landlord in the 2 years that he rented. The landlord is demanding payment for ALL the repairs, window, wall and floor up front before they have been completed. My question is can he sue for payment before the repairs have been completed and a receipt provided? Seems unreasonable as he could choose to perform the repairs himself rather than hire the professional the payment was based on.
Hi,
ReplyDeletewe are being served with a Plaintiff's Claim (the landlord) today (October 14, 2015). The Small Court claim was filed on April 20, 2015. The claim is regarding damages to an apartment used by my son until April 30, 2013.
Question: the claim was SERVED to us on October 14, 2015. That is almost 2.5 years after my son left the apartment.
In the LImitations Act, "2 years" is mentioned. Are we, in our case, outside the 2 years?
Hi: The date of service of the statement of claim is not the date used for limitation period arguments. The date that the claim was issued is the key date relative to the limitation period. Hence, April 20, 2015, is the important date for you. Your son's landlord has sued within two years of him vacating the rental unit. The question is whether the limitation period is two years from the date of vacating the rental unit or is it some other date. Typically, the limitation period begins to run from the date that the cause of action arose. That normally would be from the date that the events (i.e. damage) which give rise to the right to sue occurred. If the damage to the rental unit, if any, occurred before April 21, 2013, then arguably the landlord has sued outside of the two year period and the argument of a limitation period defence is open to you. There is a principle known as "discoverability" which in very general terms means that the two year limitation period does not begin to run until the plaintiff knew of the right to make a claim. In your situation the landlord might argue that he never had knowledge of any damage until your son vacated the rental unit. He might state that he had not been inside the rental unit during the tenancy, or that the damage occurred after his last inspection of the rental unit during the tenancy on X date. The landlord will seek to avoid a limitation argument using "discoverability".
Delete"Discoverability" and Limitation Act defences generally are complicated. While limitation defences are certainly given effect by the Court my experience is that the Court tends not to like limitation defences as they defeat and prevent a hearing on the merits of a case. Hence, to win a limitation argument you need to be very solid on the law and facts.
Certainly, defence on the basis of a limitation argument but do not rest there. Continue with alternative defences in your Defence in the event that the Court does not accept the limitation defence.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Michael,
ReplyDeleteThank you very much for maintaining this blog. It is extremely helpful!
I am the landlord of an executive row house rental. My tenants moved in immediately after the renovations and there were a few minor things left to be completed at that time: two interior doorway thresholds and installation of two cabinet doors on the back side of the kitchen island. The rest of the interior of the house was brand new and pristine. I had also indicated that the backyard was to be re-sodded.
Over the course of the one-year lease, my husband had attended the property several times to do work in the yard. The only time the tenants ever contacted us for any repair was to state that the AC was not working and to request that the shed be secured. The A/C unit was repaired within a few days of the complaint and the door and window of the shed was secured the day after that complaint came in.
My husband also pulled weeds, cut the grass, and picked up dog doo in the yard each time he was there for other work. The yard was completely neglected by the tenants even though the lease required them to maintain the yard. We decided re-sodding the backyard would be a waste as the tenants were not even cutting the existing lawn. When I contacted the tenants near the end of the lease, I was informed they would not be renewing but then they contacted me in the final month of their lease and requested they be allowed to stay an additional month. This was granted.
During the final week of their tenancy, I conducted a pre-exit inspection. I noted that the front window blinds had been changed and most of the rooms painted. It was stated explicitly in the lease the tenants were not to paint or change any window coverings without prior written permission. I indicated at the time of the pre-exit inspection that the tenants would need to provide primer for the rooms that were painted dark. They did this. I also indicated at the pre-exit inspection that I expected the house would be cleaned and returned to its original state. The tenant verbally agreed. This was also included in the lease agreement.
After the move-out, it was clear that the whole house would need to be repainted. They had installed shelving and wall hangings everywhere and when they removed them, there was an excessive amount of holes (averaging 1/4" in diameter). Many of the holes still had large screws and anchors protruding from them. Also, there were spots near the bottom of the walls where they had not painted and the old colour showed through. Also, the house had not been cleaned at all. There was filth everywhere, including enough dog fur to fill a vacuum bag. The whole house smelled of dog and there was hair in the sinks, tub, and FRIDGE. The ornate wooden stair newel and railing had been damaged and there were gouges in the stairwell. The weeds in the backyard were 4 feet tall and there was dog doo everywhere. When I texted the tenant to politely ask if they were planning on returning to do the expected cleaning, I was told the cleaning was "sufficient" due to the fact that they had to live without thresholds and the two cabinet doors, and that the shed door had not been replaced (it had been secured) and the re-sodding not completed.
Am I within my rights now to send the tenants a bill for cleaning supplies (I cleaned it myself), drywall mud, and paint for the whole house? I would also like to charge them for the materials required to repair the stair railing and newel. As the lease stated specifically that they were not to paint or make any installations without written permission, I feel this is warranted. Also, as I expect them to ignore my request for payment, what would be my recourse?
Thanks very much!!!