Saturday, 15 June 2013

My Assigned Lease: What is my Liability?

This week I received an email inquiry about the implications of a lease assignment.  Looking back through my blog I note that this is one area that I haven't written much about.  I think this is because assignments in the Residential Tenancies context are fairly rare.  That being said, it is clear that some landlords do cause or allow residential leases to be assigned and what is equally clear is that some landlords are unaware of the Rules that apply to lease assignments under the Residential Tenancies Act.

The fact scenario that I received via email this week goes something like this.  The rental property, located in Ontario, Canada, is a rather sizeable apartment.  It was first rented out by the landlord, to a group of tenants in May of 2008.  Subsequently, the lease (term of the lease unknown but presumed to be lengthy) was assigned to a second group of tenants, and then again to a third group of tenants.  The property seems to be occupied by groups of three tenants at a time.  Each group of tenants accepts the lease as an assignment to them as a group.

The current group of tenants, having received a Notice of Rent Increase, decided that the rent was too high and they decided to terminate their lease (now on a month to month tenancy) on a valid 60 day Notice of Termination.  Prior to the current tenants vacating the premises the landlord came to do a move out inspection.  In that inspection the landlord determined that the carpet was ruined and needed replacing and that a wall had been painted without consent and needed to be repainted.  The landlord is seeking to charge these tenants (the last group of three) $1800 for the carpet and $450 to repaint the wall.

The last group of tenants object to the damages assessment as they say that they didn't damage or soil the carpet and they further say that they were not the ones who painted the wall.  Their position is that the carpet and wall are in the same condition that they received it in from the prior tenants who assigned the lease to them.  Unfortunately, there is no move in/move out inspection between the groups of tenants and neither the landlord or tenant have definitive proof of the condition of the rental unit when it changed hands.  This again, is a situation where a signed move in inspection would have been tremendously useful.

The question of who damaged the carpet (if indeed it is damaged and not just worn out--we know it is a minimum of 5 years old) is a question of fact that will need to be determined by the adjudicator.  As you see, "who" caused the damage is indeed very relevant and critical in determining who is liable for any damages.  The same is true for the painted wall---who painted it?  As an aside--and this blog won't get into how to defend a claim for damages (see other articles on this point) but suffice it to say that reasonable wear and tear and the "life span" of a paint job (see regulations for a Statutorily recognized lifespan of painted walls) suggest that the landlord's claim in this case is over-reaching.

So, why is it important to know "who" as between the three groups of tenants caused the damage?  The reason lies in responsibilities that the Residential Tenancies Act imposes on tenants who take an assignment of a lease from prior tenants.  The section of the Act is fairly complicated but nevertheless must be understood to understand liability. That section is Part VI of the Residential Tenancies Act starting at section 95.

Of these sections, the part relevant to the fact scenario described herein is section 95(8).  What that subsection describes and explains is that liability for damage and modifications (like carpet and paint) remain with the tenant(s) who caused the damage or modification.  So, in a situation like this fact scenario, where you have three groups of tenants who took an assignment of the same lease--the first group of tenants are liable for any damage or modifications they caused up to the date of the assignment.  The second group of tenants are only liable for the damages and modifications they cause from the date they took the assignment of the lease to the date they assigned the lease to the last group of tenants.  What needs to be understood is that in the Residential Tenancies context, the liabilities of one group of tenants (for damage, medication, etc.) does not follow the assignment and are NOT imposed on the subsequent assignee tenants.  A landlord who suffers losses must sue the group of tenants who caused the damage and not just the last group of tenants who are in possession when the lease ends.

So, in the fact scenario recounted above, the landlord will need to establish that the carpet damage occurred after the lease was assigned to the third group of tenants.  If the landlord is unable to establish that fact, and the tenants' evidence is that the carpet is in the same or better shape as when they received it; it is unlikely that the landlord will be able to impose any liability on the third group of tenants due to the operation of Section 95 of the Residential Tenancies Act.  Any evidence that the last group of tenants can find to support their contention that they received the unit in the condition the landlord is complaining about is to their benefit.  For example, it would be great to find pictures of the unit (Facebook maybe?) from the previous tenants that proves the condition of the unit prior to them taking possession.  While it may be difficult to find photos that show the carpet clearly enough--it is entirely reasonable to perhaps find a picture of the painted wall at a time pre-dating the assignment of the tenancy.

Ultimately, the burden of proof in an application or statement of claim seeking compensation for this damage rests on the Landlord.  It is a difficult burden to meet if the landlord failed to take a reasonable step of conducting a move out// move in inspection between the various groups of tenants.

Michael K. E. Thiele
Ottawa, Ontario

Monday, 10 June 2013

Medical Marijuana: Growing at Home

It's interesting to see today that the Federal Government is rolling out new regulations for medical marijuana.  Of interest to landlord's is the removal of the right to personally grow the plants to produce marijuana at home--i.e. in the residential complex.  While it has not been a huge problem for most of my clients; there are indeed some landlord clients who have had to deal with associated moisture, ventilation and security problems in relation to growing marijuana plants.

The regulations are to be published in the Canada Gazette on Wednesday and we should then have a clearer idea of what rights people will have in relation to producing marijuana.  At present, it appears that users will need to order the marijuana to be delivered by mail--suggesting of course that the security of mailboxes may indeed become a serious issue in the coming weeks/months.

Michael K. E. Thiele
Ottawa, Ontario

Sunday, 9 June 2013


Today I am a bit sad and melancholy having learned that one of my earliest Landlord and Tenant law clients was found in the river just outside of Ottawa.  Apparently he had been in the water for quite some time.  It was back in December that the Police had posted a missing person's report advising that he was missing and presumably it was in those several months between "missing"and being "found" that unbeknownst to us he had departed.

Denis Piffard was an exceedingly interesting character with many personal challenges.  He suffered from mental illness, specifically he suffered from paranoid schizophrenia combined with a litigious personality disorder.  He believed himself to be holy and in some ways would compare himself to the saviour.  He would often refer to himself as Saint D. and given the opportunity he would preach even to an unwilling and sometimes rather hostile audience.  He was always undeterred and my partners and I would muse when the inevitable legal action started how Denis thrived in that kind of conflict.

In one of my earliest cases with Denis his landlord was seeking to evict him from his apartment because he would go out onto his balcony and preach to his neighbours on their balconies.  The building was somewhat crescent shaped and this gave Denis a wonderfully captive audience.  In time, and I say this cheekily, his ungrateful neighbours would try to drown him out, yell at him, and they even threw vegetables at him.  On hearing of these antics, and having seen the gleam in Denis' eyes, my partners and I  would chuckle at how Denis felt enlivened by the actions of his neighbours.  These actions struck him as persecution---similar perhaps to that as felt by the saviour Himself.  Not to be outdone, or to allow his message to be suppressed, Denis responded to the vegetables and shouts with a bull-horn so that his amplified message could be clearly heard!

A fun thing about Denis was that for the most part he was clear minded and fully cognizant of the impact of his behaviour.  Of course there were some serious exceptions, but in the 15 or so years that I knew him he was most often "with it" enough to get into some mischief but also to do things that he loved.  Denis was a poet and a song-writer--though he also fashioned himself a bit of a singer.  His work often contained religious themes but not always.  I had the pleasure of often reading dozens of pages of unsolicited notes, letters, or random faxes that Denis would send my way calling for some kind of help in perhaps a sentence or two buried somewhere in the document with the rest being an exposition of what Denis was currently thinking about.

Notwithstanding the mental illness and some of the problems associated with it, I always saw Denis as a very kind soul.  His poetry and songs were about love and kindness and his demeanour in interacting with people was sweet.  He was a bit of a romeo and liked to think of himself as stylish, the "cat's meow" and he would wear an interesting hat or something to make himself stand out.  In every sense, he was to me, a very likeable character who lived cheerfully.  Denis knew of the impact of his mental health condition but I could see in him that he fought against letting it define him or limit him in any way.

Denis was a dreamer and would often corner me and tell me of his goal to be famous or more famous than he already was!  That was an interesting thing about Denis, though his mental health condition surely impacted and was the source of some of his grandiose behaviours it was rare for him to be deluded about them and in fact it seemed that he often had an insight about them that suggested a voluntariness imbued with a notion of a grand design (which grand design, unfortunately, was known only to Denis).

That Denis would die by drowning, after generating news stories as a "missing person", would undoubtedly have pleased him as he liked for there to be a stir or a fuss and if he could be in the middle of it, all the better.   I'm sad today that Denis is gone as he was a client, and I dare say a friend, who made my life a little bit richer and bit more interesting for being in it.  I will miss him.

Mike Thiele

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