What is the scope of a tenant's responsibility for the cleanliness of their apartment? Often enough, it becomes clear that one person's sense of what it means to be neat and tidy is completely at odds with another person's sense. Conflict arises not just because tenants are messy but also because landlords can have an exaggerated sense of how "clean" a tenant has to keep their unit. I've seen many lease agreements where landlords have inserted clauses referencing "professional" cleaning, or using language like "spic and span", "like new", or requiring the unit to be returned in the "exact" condition it was received.
Sometimes, tenants are driven to their wits end by demanding landlords who serve 24 hour notices for entry and then provide "violation" notices based on the entry raising objections to things like dishes in the sink, clothing on the bedroom floor, kitty litter boxes being used, random furniture placing, etc.. Tenants are left wondering whether the landlord has the right to dictate the level of cleanliness and frankly tell the tenant how to live. When the landlord's demands are backed up by language in a tenancy agreement (lease) that says "spic and span" or "professionally cleaned" tenants often feel that they have no choice but to meet the landlord's demands.
From the reasonable landlord's perspective the old adage of "cleanliness is next to godliness" is an apt description of how they wish their properties kept. With cleanliness usually comes being tidy. Being tidy and maintaining cleanliness normally demonstrates that care is being taken of the property. Landlords care about this for several reasons. A clean and tidy apartment is much less likely to attract pests that will require expensive pest control treatment. Further, in clean apartments an infestation will be noticed sooner and treatment will be started sooner and therefore will be less difficult to eradicate. A tenant who is clean and tidy will also tend to be more careful meaning there will be less wear and tear. Carpets will last longer, and the over-all condition of appliances, walls, floors, tiles, etc., will be better over time. And lastly, a clean and tidy apartment requires less work--and less money-- to prepare for the next tenant on unit turn over.
Most landlords and most tenants have an innate sense of what is reasonable behavior on the part of the tenant and what is reasonable for a landlord to demand. There is no perfect definition of what is required but there is a range of what is acceptable and in that sense the best way to describe it is "you know it when you see it". While "you know it when you see it" is a great standard when the landlord and tenant agree--what are the rules when the landlord and the tenant have very different opinions of what is reasonable?
The first point I'll make is with respect to lease clauses like "spic and span", "like new", "exact condition", "professionally cleaned" and "no wear and tear". All of these phrases, and ones similar to them, seek to impose a standard of maintenance on a tenant. By using these phrases in a lease, a landlord is seeking to create a contractual obligation for a tenant to maintain the premises according to the standard imposed by these phrases. The argument that landlord's often make is that if the tenant does not wish to adhere to this standard then they shouldn't sign the lease. After-all, no one is forcing the tenant to rent this unit. Hence, if the landlord lives in a house where the plastic remains on the lampshades the landlord's argument is that the tenant should also live this way if the lease terms require that level of cleanliness.
There is something attractive about the argument as I do think people have a sense that in Ontario people still have a freedom to contract. As consenting adults we should be able to enter into whatever kind of contract we wish so long as the terms are not illegal (i.e. contract for murder) or contrary to public policy (i.e. contract that discriminates on prohibited grounds). Why shouldn't landlords be able to hold prospective tenants to a very high standard of cleanliness?
I think the answer to this question is answered in the Residential Tenancies Act (RTA). The RTA in many respects has taken away the right for consenting adults to make their own private contracts. The RTA and the predecessor legislation ( Tenant Protection Act and Landlord and Tenant Act), were passed by the Ontario Legislature with the implied understanding that in residential leasing, there is a significant power imbalance between landlords and tenants. The underlying premise is that landlords have all the power and can impose unreasonable and oppressive terms on tenants if there is no regulation of the leasing arrangement between landlords and tenants. The RTA today, seeks to take away the unbridled power of landlords in their dealings with tenants so that the ability to negotiate terms in a lease are constrained and kept within certain "reasonable" boundaries. Effectively, in the residential leasing context, landlords and tenants are intended to have almost equal power with respect to the tenancy. Of course, many people have wildly varying opinions on whether the RTA accomplishes this, but my point simply is that the RTA does take away the right to contract freely.
How does the RTA do this? The answer lies in section 4 of the RTA. It provides: PROVISIONS CONFLICTING WITH ACT VOID---Subject to section 194, a provision in a tenancy agreement that is inconsistent with the Act or the regulations is void.
It is section 4 of the RTA that I believe is the basis for making the clauses of "spic and span", "perfect condition", "like new" and "professionally cleaned", void and of no force and effect. What I am saying is that I believe these clauses are illegal and unenforceable under the RTA.
Of course, section 4 RTA, on its own does not make these clauses illegal. Section 4, is simply the basis for voiding a clause/lease term if it contradicts the RTA. So, how does the RTA provide a standard of cleanliness/tidiness that would set a standard that the lease clauses (spic and span etc.) would violate. The answer I believe is in section 33 of the RTA.
Section 33 RTA provides as follows: TENANT'S RESPONSIBILITY FOR CLEANLINESS---The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.
The key to section 33 of the RTA are the words "ordinary cleanliness". The responsibility of a tenant with respect to cleanliness of the rental unit is something that the RTA specifically regulates. The standard is legislated and a matter of law. This means that the landlord and tenant are not free to contract to a different higher standard as doing so, and using any kind of clause in a lease to impose a higher standard, would be deemed void pursuant to section 4 RTA as set out above.
Section 33 of the RTA also provides the answer to landlords who have serious concerns about the condition of an apartment that they have rented to a tenant. What if the lease that is signed is silent on the issue of cleanliness. Does this mean that the tenant can live how they wish? What if there is no lease at all? The answer is section 33 of the RTA and regardless of what the lease provides or even if there is no lease at all, a tenant is required to maintain a rental unit to a standard of ordinary cleanliness. If the tenant fails to maintain the unit to this standard then a landlord may serve a Notice of Termination on the Tenant (usually a Form N5), and if the situation is not corrected proceed to evict the tenant.
A question you may have is what does "ordinary cleanliness" as used in section 33 of the RTA mean? Unfortunately, there is no definition of this phrase in the RTA itself. The words simply mean what they mean---which means that they need to be interpreted by the adjudicator. Hence, "ordinary cleanliness" will be measured against an "objective" standard of what is commonly understood to be "ordinary cleanliness". The standard is not fixed or measurable on a precise scale. There is likely some flexibility in the standard depending on the context of the tenancy. What is required as a part of ordinary cleanliness may be different depending on the nature of the rental unit, the location of the rental unit and the status of the rental unit. The context/circumstances of the tenancy will be relevant in informing what constitutes "ordinary cleanliness".
Michael K. E. Thiele
www.ottawalawyers.com
Landlord and Tenant Law questions answered for tenants and landlords by Ottawa lawyer Michael Thiele.
Wednesday, 29 October 2014
38 comments:
IMPORTANT NOTICE
Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Dear Mr Thiele,
ReplyDeleteI'm having troubles with an excessively dirty roommate, and hoping you can offer me some advice.
I rent a room in a basement apartment, as does an older man. The kitchen and bathroom is shared with him. I've been here for over 2 years, and he has been here for less than 2 months. We each have our own leases with the landlords who operate a business on the ground floor of the building, and who rent out 2 other units in the building. They brought him here from out of town to do work for them.
He has zero respect for me as a roommate, and does not keep the apartment reasonably clean. He smokes in his room as well, against agreements with both myself and the landlords. His behaviour to me borders on sexual harassment. I've been brushing it off as cultural/age differences, but it's getting to the point where I am considering filing a police report.
Over the past month and a half, I've been having back and forth conversations with the landlords about him, and they have made repeated assurances that they would deal with the situation. I emailed them an official complaint on Dec 3rd, after a discussion with them in late Nov. Around Dec 6th, I was told that my roommate would be given notice, but that they had to find him another place to live because they wanted to continue their working arrangement with him.
It is now Jan 2, and I've had another talk with the landlords. They said he pays rent on the 11th of the month, so they will give him 30 days notice then. It's beyond me why they wouldn't give him 60 days notice from their first decision to evict him, but I can speculate that it has something to do with them wanting to prolong their working arrangement with him. I believe they have a conflict of interest, as they do want him to leave, but they don't want to disrupt the business that he helps them with, so they keep pushing things back, trying to appease my complaints.
My question is: do I have any remedies, as a fellow roommate? Can I force the landlords to get rid of him? Can they even give him just 30 days notice? I know it's out of your realm of interest, but would filing a police report about the harassment help my situation? I know I have the option to move out, but I do enjoy my current accommodations otherwise, and am not well positioned financially to move.
Thank you in advance!
Hi Curtis:
DeleteYour living arrangements sound like a "rooming" house to me and from what you indicate the Residential Tenancies Act would apply to your situation. Hence, the landlords are required to take steps to ensure that you have the reasonable/quiet enjoyment of your rental unit. If other tenants are behaving in a way that is contrary to the RTA the landlord must take steps to have the behaviour corrected or alternatively to terminate the tenancy and evict. The Landlord would use Notices of Termination under the RTA. Your statement about the landlord's comment about rent being paid on the 11th seems to indicate that your landlords are either inexperienced in landlord and tenant law procedures or alternatively they are just stringing you along. The date of the tenant paying rent is irrelevant to the complaints that you have. They could (and should) serve a Notice of Termination immediately.
As for your remedies. If you document your complaints, have proof of them, and still don't get satisfaction you could file an application against the landlord at the LTB (form T2). Before that, it may be worthwhile to get a lawyer, paralegal, or clinic worker (Community Legal Clinic) to write a letter to the landlord about what they are obliged to do and what you will do if they don't fulfill their obligations under the RTA. Perhaps that will get action without the need for going to a hearing.
Police reports are fine. If there is a crime, harassment, etc., then by all means go ahead and get the help of the police. However, going to the police in order to gain an advantage in Landlord and Tenant proceedings is improper and arguably illegal in the extreme.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Much appreciated!
DeleteUsually i remain here in one room but for four months I completely rented my three bedroom condo, though did not change my permanent address as I was away only for a short time. One tenant decided to leave, giving me less than a months notice, but it worked out as I took the room over as of May1st. I had given notice to all tenants that I would visit in april for mail and to check on the place after some plumbing work was done. I gave them a week notice and then 24 hours notice as well. I came to the door, found it unlocked (I should mention i rent the place furnished so all of my valuables like tv and couch appliances etc are here) I came in to find it empty and very dirty, there was a great deal of build up of gravel on the floor, what looked like ashes as well. My wooden floor is covered in scatches and the smell was very bad, there were three full bags of garbage sitting open in the kitchen. I was not able to find my mail despite telling them to leave it for me. I then went to the bathroom to look at the plumbing and found multiple wet towels on the floor. I should mention as well that I have electric heat in ottawa and it was turned up to 30 with the patio door ajar. there was also just general dirt throughout the apartment and a broken laundry room door. I texted one of the tenants that planned to stay when i moved back saying i was shocked by the appearance of the place and the damage that resulted. he responded by calling and verbally attacking me telling me it was the same as i left it and that it was filthy. I asked why he had not brought these concerns forward earlier and he had no response but continued in a raised voice to tell me off for not addressing issues i was never made aware of, claiming leaks in the kitchen etc but there were none when i was there nor when i moved and he never messaged me about them.
ReplyDeleteI hung up and was beside myself. when the first came around the place was in the same condition, including the three bags of open garbage, it took three people hours to clean it and we have not be able to repair the damage. He refused to help and freely admitted that he never mopped or cleaned because the mop i provided was quote "questionable"... i used it to mop, it was just crusty for non use, its less than 6 months old. the drains are badly backed up and there was damage to the toilet. I decided to issue him a notice to vacate partly due to his demeanor on the phone, and the damage as a result of neglect in the apartment. Since I am living here, and he knew I would be back, and we had not decided on renewing a contract nor on terms for continuing to rent and his initial agreement was only for 4 months though there are text messages between us saying that it should be possible for him to continue renting after, if there were no issues or concerns from either party, these messages were sent before these events and before i was able to see the apartment. and I am now very uncomfortable dealing with him due to his confrontational attitude i issued the notice for 30 days, longer than the 20 for damage but also shorter than 60 however, I did not offer the opportunity to fix the problems as i have cleaned to make the place livable for myself and would not allow the place to return to that state while i am living here, i also offered to repay this months rent if he finds another place sooner. My main concern is that a court would some how decide that he should continue to be guaranteed residence like a tenant while I am living in my home. As the entire place including his room is furnished with my things i worry about damage and more than that I am extremely distressed by the prospect of continuing to live with a person who is so aggressive and confrontational. Is that a likely out come? Not sure how things will progress for now he wants to speak in person more. I am very concerned about the law supporting him and putting me in a potentially dangerous and certainly uncomfortable position in my home where I am forced to remain living with him and my possession will continue to be damaged.
ReplyDeleteHi: This is an unfortunate situation. The first question that needs to be determined is whether or not you are covered by the Residential Tenancies Act (RTA). The RTA provides that where a landlord shares a kitchen and/or bath with a tenant then the RTA does not apply to that relationship. However, this exemption from the legislation is not one that can be created by the landlord by moving in after the establishment of a valid RTA covered tenancy. You describe having rented out all of the rooms and being out of the unit. Then one of the roomers left and you moved back in. If the person you are having the trouble with moved in while you were not living there it is possible that the RTA does apply to his circumstances. This means that he has the protections of the RTA and the security of tenure (right to live there) that you are concerned about. If the RTA does not apply then you have far greater flexibility in making him move out.
DeleteGiven the condition of the premises and how your property was treated you could indeed look to terminate his tenancy and make him move out. The damage you describe sounds significant and presuming you have the evidence and can link the damage to this particular tenant you could serve him with a Notice of Termination---take a look at the N5 for or even the N7 Form.
If this roomer is indeed covered by the RTA you simply have to go through the forms and application process under the RTA to evict him. His aggression, abuse of your property, etc., are all grounds to terminate his tenancy and evict.
Your living arrangements are a little unorthodox and the situation you have gotten yourself into is a bit more complex than an ordinary case. You would be wise to not do any of the legal work yourself on this one. Instead, retain a lawyer or paralegal who is very experienced in Landlord and Tenant Law. They should be able to give you some strategic advice that would get you into the legal position you want to be in.
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
My boyfriend and his roommate lived in an apartment for a year in Toronto. The apartment is now in good condition (nothing damaged, just a little dusty/dirty). The rental company is requesting that he and his roommate have the walls repainted, carpet cleaned, oven drip pans changed, clean behind the oven, and clean the place top to bottom, including the outsides of the windows. They have stated that if it is not 100% to the company's satisfaction, then the rental company will charge my boyfriend and his roommate for the remaining cleaning that needs to be done. Is this legal?
ReplyDeleteI really wish there were an answer to this. My landlord (property management corp) had a list of things for me to clean before I left including professionally clean the carpets (or at least shampoo them). I felt that was beyond my responsibility to keep the unit ordinarily clean. I vacuumed twice. Once for bulk stuff, and again after using an arm and hammer deodorizer, not that it stank but just to make the place smell better. The superintendent came in and started saying I had to have it shampooed, then started taking pictures of the cabinets and washroom after me and mum spent 2 hours cleaning saying it was dirty, asked mum "would you want to live here?!" like I had left the place in complete disarray. Hoping for a simple solution to my end. They may try to nail me for allowing smoking in the unit but there is no damage (had a poster on the wall for the entirety of my 1 year stay and there was no residue from any smoke). Also did not allow smoking in the bedrooms.
DeleteI hope your boyfriends situation was resolved in his favour.
Hi Michael - great articles.
ReplyDeleteI have a rooming house and one of the tenants rooms is really filthy/dirty, his garbage is spreading outside, the smell outside his room is very noticeable, what evidence do I need to bring to the LTB- am I allowed to take photographs of his room? how does one prove a smell?
Richard
Hi Richard: Your own observations may constitute evidence and you present that evidence by testifying at the Board. Have other tenants there to testify, have a few write letters describing the problem. With proper notice you may enter the unit to inspect. Photographs can be extremely useful in proving the extent of the problem. Landlord's regularly take photographs of units to prove the nature of the concerns. However, you should be aware that taking photographs is not entirely without controversy. Larger landlords have addressed the controversy by including clauses in their leases reserving the right to take photographs inside rental units to prove an breaches of the RTA. Without such a clause in the lease there is an argument that taking photographs is a breach of the tenant's privacy and a violation of the RTA. It is not a commonly raised defence and query whether such a violation should result in the evidence not being admitted in any event. Given the value of photographs my experience is that landlord's tend to take the photographs. If you do intend to take photographs you should take care to minimize showing anything very personal in the photographs.
DeleteTestifying as to "smell" is the most that you can do. In these cases, unfortunately, the tenant tends to prove the "smell" evidence as they show up at the board and they "smell" bad even there. If the tenant does try to refute that the unit smells bad and the adjudicator is having a very difficult time making a finding, you can always ask the adjudicator to visit the rental unit. This is not done very often--very rarely in fact, but I have had several adjudicators agree to attend a rental unit to get to the bottom of the issue when the two sides were polar opposites.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteWhat is the obligation of a tenant at the end of the tenancy? Am I obligated to be present for an inspection with my landlord? Nowhere does it state this in my lease, but he has requested it.
I plan to do a top to bottom clean of the whole place on Saturday (Lease is up Sunday), but he did not give me any specifics to clean and there were no specific clauses for how the place has to be returned.
Would love your thoughts. Thanks in advance!
Bart
Hi Bart: It is a good idea to be present for a move out inspection. However it is not required. In fact, not even a move out inspection is required under the Residential Tenancies Act. Yet, it is a good idea. The reason to participate is that you get to see what the landlord considers problematic and in theory you have time to fix whatever the landlord says is your responsibility if you agree. You can get piece of paper that signs off on the condition the place which will be useful should the landlord try to come after you when you have vacated. Even if you do participate in the move out inspection, I still recommend taking photos and videos as you leave the place and ideally get a signed "okay" from the landlord when you return the keys.
DeleteAs for cleaning. Some landlords include clauses in the lease that require "professional" cleaning and they use other words to suggest a very high level of cleaning some even purporting to require that carpets be shampooed etc.. In my view, all of these lease clauses trying to force tenants to essentially prepare the unit for the next tenants at their expense is illegal. I take my guidance from the Residential Tenancies Act. It provides that tenants have an obligation to maintain the rental unit to a standard of ordinary cleanliness. This does not mean shampooed rugs and a day of Molly Maid. What is "ordinary cleanliness" is determined on an objective standard--what would a regular person consider to be clean. The law doesn't give much more guidance.
Note that some landlords will try to force tenants to repair every dent, every picture hook hole, and every little thing. While the words are not used in the Residential Tenancies Act, the caselaw makes it clear that a rental unit can be subject to ordinary wear and tear and that a tenant will not be responsible for those things. With respect to damage generally, a tenant is responsible for damage that is wilfully or negligently caused.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am international student and living in the house have 6 rooms and landlord made one more room from the living room. We are 10 students living in the house. 5 student don't have their agreement and other 5 have agreement. The problem in the house is of landlord he is giving us tough times..he says you have to give me 200 $ deposit and threat us and message us if you don't turn off light he will cut off internet or he will change the laundry machines to coin laundry. He always threat us to do cleaning duties. He told everybody in the house that you all have to clean the house before 1am on every Sunday fail to do so have to pay 200$. Every Sunday even we all clean properly then also he wants all the cleaning things in his way. Please guide us thank you
Hi: I'm very sorry to read your question as it reveals that you are in the clutches of a nasty person. The house that you live in, as your describe it, is what would likely be considered an illegal rooming house. I doubt very much that the property is licensed to operate in the way you describe. That being said, the illegality of the set up does not mean that the Residential Tenancies Act (RTA) does not apply. In fact, the RTA does apply and each of your co-tenants is covered and protected by the RTA. This means that the landlord's threats have no legal force and his "fines" have no legal force. Threatening to cut off the internet, change the laundry to coin operated, these threats are all illegal. Your landlord is taking advantage of all of you and is relying on your lack of knowledge of the law and unwillingness to proceed with a "legal case" against him. All or any of the tenants could file an application at the Landlord and Tenant Board for rent abatement and various orders.
DeleteThe unfortunate problem is that most of the tenants likely want nothing to do with a legal case and simply want to go to school, get an education, and move on. The landlord is likely counting on this as well. The landlord is acting like a tyrant and of course he clearly does not care about acting in accordance with the law. While it is nice to know, in theory, what your rights are the tenants still have to deal with the reality of what the landlord will do because he does not care about the law. You may wish to consider calling the Investigations Branch of the landlord and tenant board and see if they will investigate. They can charge the landlord and deal with him. A complaint to the City might see the landlord charged--though possible the house shut down too. Oddly, you want the landlord to behave but otherwise you also want the service of the housing to continue. Challenging the landlord can lead to the end of this house as a rental. I wonder if you could contact your college or university and see if they have support for students facing this kind of problem. They could perhaps put you in touch with a new landlord who follows the law. I encourage you to keep evidence of the landlord's threats--notes, emails, texts, messages, photos, etc., so that you can prove the things he is doing. Beyond that, the best thing to do I imagine is to get out of there as soon as you can.
Michael K. E .Thiele
www.ottawalawyers.com
Hello … my friend has just moved into the house that he is renting. He's renting from a 'first-time' landlord. If I understand correctly, the home has been lived in by family members until now. The problem: grime. Literally. Grease that has to be scraped off kitchen surfaces, bathrooms that have dirty walls .. etc. I've suggested that my friend discuss this with the landlord and that any cleaning costs incurred be covered by the landlord .. What is the landlord's responsibility with regard to cleanliness when it comes to renting out a property? And, what are my friend's rights? I understand that everyone has their own definition of 'clean' but there must be some standard to which he landlord should adhere. .. Thank you for your time!
ReplyDeleteHi: The Residential Tenancies Act speaks specifically to cleanliness in relation to the tenant (s. 33). It does not speak to a landlord's cleanliness per se. For the condition of the rental unit and what kind of rental unit the unit needs to be you can look generally to a landlord's obligation in section 20 of the RTA. That section provides; 20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
DeleteThe condition of the rental unit that your friend took over does not sound to meet the section 20 requirements. Hence, with proper documentation and proof of the condition your friend could demand payment for cleaning, a rent abatement, etc. (see the T2 Form).
Michael Thiele
Hi Michael.
ReplyDeleteHow are you?
I would do my question as short as possible. I rented my small condo to a person and the kitchen was really dirty, all full of oil and for example, the dishwasher's inside was brown, really weird. What can I do? Could I make the tenant pay for a cleaning service? Thank u
Hi: I presume that the tenancy is over and you were left with a very dirty condo? If so, you can in theory charge the tenant the cost of any cleaning for anything that is beyond a standard of ordinary cleanliness. The problem of course, once the tenant is gone, is getting them to pay. Given the amount of money it might not be worth it to go to small claims court.
DeleteIf the tenant has not yet moved and you are just seeing a very dirty place you can serve an N5 on the basis that the tenant is not maintaining the premises to a standard of ordinary cleanliness (section 33 RTA). Hopefully the tenant will clean up and nothing further will be needed. Otherwise you can apply to the Board to evict and for payment of the cleaning costs.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, my former landlord is not giving back a cleaning deposit of 650, even though it is illegal to ask for in Ontario. I have left the premises in a good clean condition, but I did not a professional cleaning company. The landlord said there was a lose faucet in the kitchen, discoloring of the shower, toilet seat, and sink, 2 light boxes left in the pantry, few staples on the carpet and other "things". He also used that deposit to get the carpet professionally disinfected. I did not spill anything nor did I damage it and the carpet looked fine with the naked eye. I have filed with the board and have a hearing scheduled because he did not even bother to inspect the premises when I was leaving and also did not bother to tell me about my so called filthiness in the apartment until I repeatedly asked him to give me back my deposit. In response, he is also filing a complaint against me for leaving the premises filthy. The lease had a written clause that said the deposit will be used to put the apartment as it was when rented. Orally, he elaborated that normal wear and tear will not be reasons for withholding the deposit. He does not have any pictures of the "filthiness" he accuses me of causing and I also don't have pics of how I left the apartment. Should I just back off? Will the judge support him? Will the judge consider the natural discoloring in the bathroom or the lose faucet as normal wear and tear? Will I end up losing more money?
ReplyDeleteHi: As you are proceeding to the Landlord and Tenant Board the only issue that will be heard is the Landlord's withholding of an illegal security deposit. The landlord is NOT permitted to raise in defence the issues you have identified. Further, he is not entitled to to bring an application against you for a filthy apartment or otherwise at the Landlord and Tenant Board because you are out of possession. Hence, the LTB case is very likely to be a slam dunk for you. The landlord can, however, bring a claim against you in the Small Claims Court. That process will take a whole lot longer than the LTB process and it will put him out of pocket for filing expenses. The things you describe are in my view ordinary wear and tear and are not chargeable to you. He will have the burden of proof in establishing that the place was filthy. Will he have photos? Will he have professional cleaners? Will he have independent witnesses? Probably---not. If he doesn't, then it will be very difficult for him to meet the burden of proof that he has in proving the claim against you.
DeleteAt the LTB you have very little financial risk as the Board does not award costs (of any significance) and the Landlord doesn't have a claim against you. There is financial risk at the Small Claims Court--if the landlord actually goes ahead and sues you. You will have a lovely decision from the LTB demonstrating his willingness to do illegal things and I think his chances are low (presuming what you are saying is true). If you have the time and inclination I see no reason to give this up. The landlord is likely counting on it (so he can keep the money), but I would be surprised if he actually chases you given the facts you describe.
Good luck
Michael K.E. Thiele
Thank you for your quick and informative reply. One last question though. Landlord said he has affidavits from the superintendent who lived in the unit above mine and from a cleaner. Can I argue at the small claims that its possible that the cleaner testimony is biased and exaggerated as the fact is she gets paid more if there is more cleaning work? Thank you
DeleteUntil you are shown the evidence don't presume that it exists. It would be quite odd for the landlord to have an affidavit. Even if he does, most affidavits prepared by non-lawyers are not worth much as the documents fail to say what needs to be said. Beyond that, an affidavit in Small Claims Court will likely not be admissible at trial if you object. You can not cross-examine an affidavit and therefore it is no better than hearsay (be sure to object). If the cleaner and superintendent are to provide evidence they will have to attend for the trial and be subject to cross-examination.
DeleteGood luck
Michael K. E. Thiele
Dear Michael,
ReplyDeleteWe have moved out the condo on Dec 22th, and I got a cleaning company to do a move-out cleaning on Dec 24th. I have to admit that the cleaning company may omit some details, for example, they left some dirt in the corner of the living room, and the cup board door was not cleaned thoroughly enough so it's still a little bit oily. Our landlord and us had a mutual agreement to terminate the lease earlier (they found a new tenant), because we need to be away to States for a couple days during Christmas, we asked if we can meet after Christmas to hand over the keys. However,he said need the key by Dec 30th and agreed to meet on 24th after the cleaning company finishes their job to do a inspection together with us. But when we call him on that day, he said he cannot come and ask us to leave the key to his assistant. We confirmed with him that he will return the key deposit and the remaining of last months rent to us. So we left him the keys for his convenience to handle the new tenants. While we were in States, while I could not receive phone call, our landlord called us and left a voice mail told us that they did an inspection in the condo and find it in a very bad condition (it's not! The condo was new when gave to us, but they are extremely picky and looking for brand new condition to give back to them), and they are getting a cleaning company to do a cleaning and will charge us 240 dollars per hour. I did not receive this voice message until I returned to Ontario. However, I did receive some message and pictures through whatsApp and I told him to wait until we come back and we can discuss how to fix these (Because we think these are easily fixable by calling our cleaning company back to redo the job or we can even do it ourselves easily). However, they never replied to my message. I called him right after we come back from States, and they said they have got the cleaning company in because they cannot wait for us to come back and they are charging us for 500+tax for these, and will deduct these from our last month's rent. We argue that they got the company in to do the work without our authorization, but they claimed that they have given us one chance and they don't believe we can fix these right.
My question is that, is their action illegal? Are we suppose to pay for the cleaning in such case? What shall we do since they are not responding to our messages since then. Aside from the last month's rent, they still owe us key deposits and a hydro bill that was read before we moved in and paid by us.
Sorry for the long passage, I really appreciate your response.
Best Regards,
Luke
Hi Luke:
DeleteTake a look at the T1 application on the Landlord and Tenant Board website. Reason #2 and #3 are what I would pursue based on the info you have provided. The Landlord is not entitled to deduct anything from your last month's rent deposit.
The level of cleanliness that you are required to meet is a standard of "ordinary cleanliness". Not some other standard of a picky landlord. I'm going to presume that because you had professional cleaners into the unit that the unit would meet the standard of "ordinary cleanliness". If the landlord wants to pursue you for "damages" or not meeting their standard the landlord must sue you in small claims court. That is unlikely to be successful if the unit meets the legal standard as set out in section 33 of the Residential Tenancies Act.
You may also wish to file a T2 application (along with the T1--arguing coercion, harassment) to pursue the cleaning bill you incurred (because of a "professional cleaning" clause in the lease--I'm guessing?).
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Thank you very much for the quick response Michael! I will proceed with your suggestion then.
ReplyDeleteHappy new year!
Luke
My landlord came to fix a leaking faucet. Well he told me i have to get rid of some of my stuff. He told me i didn't need them. I need to downsize is what he said. I have no lease
ReplyDeleteHi: Everyone has their own sense of tidy and clutter. Your obligation is to maintain your unit to a standard of ordinary cleanliness (s. 33), and further to keep it in such a way that it is safe from a fire code perspective and that the systems in the unit are accessible (i.e. water shut off, heat sources, windows). If your unit is a maze of stuff and it isn't possible to easily access walls, cupboards, under counters, then your landlord has a point. There are services available in most communities to help people deal with hoarding issues if that is the problem.
DeleteGood luck
Michael Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy landlord had some repairs he needed to do ( not my request but i believe the city's fire inspector)
The problem is, he is making a disaster of my place while doing this! He has used my furniture instead of ladders and as a result plaster was all over the place. It took the better part of 6 hours for me to clean up after him.
What can I do in this situation? I do not want to have any sort of conflict with him but its happened a few times now and its getting very frustrating.
Hi: You already know that your landlord's behaviour is disrespectful and boorish. What to do to prevent it from happening without stirring up a big hornets nest and making your relationship with your landlord suffer. One would think that your landlord knows better. If he does, and your bring it up to him, you would expect an abject apology and perhaps an apology gift (houseplant?) etc.. Unfortunately, my experience is that if a person is boorish enough to do this kind of thing they are usually to Donald Trump like to know to be ashamed of themselves.
DeleteThat leaves you with taking the risk of making an issue out of it. Write the landlord an email, set out what happened and what you had to do. Make it clear that if it happens again you will document (i.e. take pictures) and charge him for the time taken to clean up---and set out an hourly rate ($25 seems reasonable). Also, demand an apology.
You might end up with a fight--maybe an apology, but in the end you will at least be pleased with yourself that you stood up to him even if you have a headache in dealing with him. Note that asserting your right not to have your place abused is not grounds for termination of your tenancy.
Good luck
Michael K. E. THiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI've lived in my rental unit for over 5 years. My superintendent is insisting I hire a restoration company for a minimum of 5 days at my expense in order to bring my unit back to his standard of cleanliness and to ward off eviction. The cold water in my kitchen sink isn't working and my superintendent refuses to fix it until the apartment is 'sanitized'. The baseboards are infested with bedbugs in them but my superintendent claims its my responsibility to remove the baseboards at my expense and won't spray my unit until they're removed. I am not moving but my superintendent says he wants my apartment back to where it was when I moved in. I agree that the apartment requires a deep-clean but I disagree it requires professionals to come in. I also believe my superintendent needs to take into account I've lived in the unit for over 5 years. I am willing to work hard on my unit, but I disagree the unit is as bad as my superintendent says it is. I don't believe anything I do myself will appease my superintendent. Nonetheless, I am going to take before/after pictures.
What do you suggest I do?
Hi: Your question reflects a difficult problem from an advice giving perspective. On the one hand, your superintendent seems to have a complete disregard for the law in his demands. On the other, your superintendent may indeed be helping you maintain your tenancy by making the demands that he is and not, instead, bringing eviction proceedings against you.
DeleteIt sounds like you have a cleanliness problem in your apartment. Your obligation to meet a standard of "ordinary cleanliness", I think, from your own admission has been breached. The question of whether you can do the necessary work or if a professional company is needed is a question that you may not be in the best position to judge. Certainly, the landlord's expectations (via the superintendent) may not be reasonable and hence you would benefit greatly from an objective third party.
Regardless, whether you ultimately get a professional to clean or not, you should waste no time in doing what you can to bring the apartment to a standard of "ordinary cleanliness". Unfortunately, this phrase while representing the lawful requirement imposed on a tenant is not actually defined in the legislation. It is interpreted therefore more on a "you know it when you see it" basis. So, do the work that you think gets the unit up to snuff asap. Whether it does, or not, is a question to put to an objective 3rd party. That 3rd party, at least initially, should be a colleague or friend who will speak honestly with you. Once you get the thumbs up from them you can consider calling in governmental authorities such as the fire department, property standards department, and the health department.
I would resist the urge, at this moment, to call in governmental authorities. I say this because it is possible that they identify the condition of your apartment as a fundamental problem. If they do that, the report they generate (as a result of you inviting them into your home), could indeed be the basis of your eviction. What happens with governmental reports and orders is that they are directed to the landlord for compliance. That Order, once issued, may force the landlord to take legal action against you which could include an eviction application.
As for the superintendent's demands that he wants the apartment back to where it was when you moved in. Well, that isn't the law. Your unit may have reasonable wear and tear that is not your responsibility to restore. Requiring you to remove baseboards is an odd requirement. Firstly, why? Bedbug treatments can usually be done without removing the baseboards. Beyond that, removing baseboards is an invitation to make a construction mess that I don't think can reasonably be put on a tenant. The removal process will likely result in damage to the walls and you'll likely break a few. The trim piece (quarter round usually) at the bottom of the baseboard and the floor is virtually guaranteed destroyed on removal. Reinstalling takes some skill and money. I don't think that this is reasonably a tenant's responsibility. I would be curious if the requirement to remove the baseboard is at the direction of the pest control company or if this is just the superintendent's whim.
Ultimately, your solution for pest control treatment, if the landlord won't do it, is to call property standards from your city and have them inspect and have them order your landlord to do it. Beyond that, you can also file a T6 application to force treatment. However, as indicated, before going down that road make sure that you are in compliance with your own obligations. Otherwise, you might find that your strategy to force the landlord to treat for bedbugs boomerangs and turns into an eviction application against you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Please help I live in oshawa and the people downstairs are dirty the smell comes up the stairs the landlord is wondering can the be evicted because of this also I filed a noise complaint against them last year between banging doors and barking dogs also extra people being the claiming they needed to be there because it was being used as a safe house. My sisters and I rent and no smoking or pets apartment that was broke in the first week .thank you Sandra
ReplyDeleteHi Sandra: It is your landlord who should be getting legal advice. It is not your obligation to figure out how to deal with he problem tenants. Your "job" is to inform the landlord about the problems and your landlord is supposed to take steps to address the issues.
DeleteYou describe the downstairs tenants as dirty and that a smell comes up the stairs from their unit. This bothers you. The tenants have a duty to maintain the premises to a standard of ordinary cleanliness. If they are dirty and their smell leaves their unit and goes up the stairs to yours it would seem that they are in breach of this obligation. The landlord should serve a 24 hour notice and go inspect. If he finds the place dirty and stinking he can serve a Notice of Termination in Form N5. The tenants will have 7 days to clean up and get rid of the smell. If they don't the landlord can apply to the Landlord and Tenant Board for eviction. He should gather evidence of the dirty unit and the smell and you should be prepared to go and testify if needed. Hopefully your landlord will retain a lawyer or paralegal to deal with this issue so it gets dealt with properly the first time.
If your landlord does nothing and the problem persists you can actually bring a claim against your landlord for failing to act. You would use a Form T2. Consider speaking with duty counsel or a local legal clinic before filing a claim.
For the other things you mention, it is a bit difficult to understand what you were getting at. Certainly noise, barking dogs, banging doors, can all be grounds for an N5 as well.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteWe just moved into a new home in Toronto, we had an agreement in the LTB appendix that the unit would be professionally cleaned and some items in the basement to be removed (ancient freezer & fridge). On move in none of these things were done and we found an additional large pile of garbage in the basement. The landlords are now refusing to do any of it, telling us to store the old unusable appliances and the garbage is 'reno material.' From your post, the cleaning is our responsibility but what about items left by the landlord? The pile of materials is a hazard covered in dirt and dust and looks like a good home for insects and vermin. The appliances we can unplug and store but we paid top dollar for the unit and don't want to pay for space we can't use. We are landlords ourselves (in Gatineau though!) And would never leave our house in this condition for our tenants. Love to hear your thoughts on this.
Thanks!
Maggie
Hi: An interesting situation and obviously unacceptable. I'd take some photos of the items and send them again to the landlord to make it clear these items have to go and that the lease addendum provided for it. Let the landlord confirm again that they will do nothing. Now you have a few options on how to proceed. How you go about it depends on your appetite for confrontation and willingness to engage legal processes.
DeleteI imagine that if you called the LTB the advise you would get is to file a T2/T6 application--which is a tenant's rights application and tenant maintenance application. They would tell you to clearly document the issue with the landlord, be able to prove your complaint and issue and then if the landlord does nothing you file these applications and wait for your Hearing. These days that is several months down the road and it will require you to take time off of work to deal with the issue. That is the advice I think the LTB would give you on how to deal with this issue. This is, I think the correct advice in the way that the RTA contemplates issues to be dealt with. However, at the time the RTA was written I don't think they contemplated issues like this taking months and months and months to deal with at an understaffed LTB. That this is unsatisfactory is self evident.
An alternative approach that I'd consider, especially if I had some money and could afford to exert my view point and absorb some expense if necessary, is to confirm the presence of the garbage in writing to the landlord. Advise if it is not removed by XX date that you would retain a company to come and pick up the garbage (a company like "Got Junk"). I wouldn't be terribly bothered about 3 quotes/estimates but I suppose you could do that if the charge seems crazy high. I'd confirm that if it is necessary to retain a company to pick up the garbage that I would then deduct the charge from future rent paid (this is the aggressive part that the RTA doesn't want you to do).
Perhaps in that email or subsequently, I'd tell the landlord that if they aren't happy with the reduced rent (supported by the Invoice from the Got Junk people) then I'd invite them to serve an N4 (Termination for Non-Payment of Rent) and to file an application to the Landlord and Tenant Board when you don't void the N4 by paying the shortfall. If the landlord follows through with an application--fine, then go to the hearing. At the hearing you would rely on Section 82 RTA which allows you to bring up any issue in defence of an application for non-payment of rent/eviction for non-payment of rent. You can raise your claim for the "garbage" in the unit, the expense for clearing it out (your Got Junk receipt), at the hearing. Hence, you admit the arrears owing, then reduce the arrears owing to zero due to the landlord's breach. You argue (and should win) that you don't have to pay the landlord's application fee of $190 because the landlord didn't win anything. This should in fact work (in fact I'd be surprised if it didn't--given you clear description of what the landlord agreed to do and failed to do).
Worst case scenario---the adjudicator hates you, finds that the landlord never agreed to remove the items, denies your claim for the Got Junk invoice, finds that the Junk had value and suggests that landlord has a claim for the value, and finds you in arrears of rent [basically everything goes wrong]--even in the face of that the LTB has to give you an opportunity to void the eviction Order (for non-payment of rent) by allowing you to pay the rent arrears and the application fee. Yes, that would sting and be quite aggravating but if you have the money and can flex your muscles this way it is a manageable risk [i.e. you can avoid eviction which is a rather serious headache].
The likely outcome in the self help context is that the landlord does nothing. The landlord likely will recognize that they can't win. If the landlord does apply to the LTB the likely outcome is that the landlords application is dismissed due to the set off. The good thing about self help is that you 1) get the garbage out of your house faster, and 2) you can take some satisfaction in returning the aggravation you've felt to the landlord for his breach of the lease.
DeleteSo, to recap--option 1 above is the path the Residential Tenancies Act contemplates. Option 2 is aggressive, not what the RTA contemplates, but traces the likely outcome of self help which increasingly is necessary with an understaffed LTB.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Can I stilll get back my key deposit after leaving the unit with my furnitures, not cleaned the unit and bottle of water in the refridegnartor.
ReplyDeleteI had to leave in hurry, so I left without unit inspection. I only gave 60 day of notice. I returned the keys of course.
Hi: The key deposit is for the keys. If you return the keys you are entitled to a return fo the deposit without regard to "other" issues. You mention a few other issues. You are not required to clean a unit when moving out. The unit should meet a standard of ordinary cleanliness--but if you are concerned about not having the unit "professionally cleaned" as some landlords require that is not a legitimate demand. Of course, if the unit was a dirty disaster the landlord could choose to pursue you for the cleaning that is above and beyond what would ordinarily be expected. A bottle of water in the refrigerator will have no impact. You are not required to have a unit inspection but it is always a good idea. However, leaving without one doesn't impose any kind of liability. If you gave 60 days notice and were on a month to month lease or the 60 days coincided with the end of a fixed term lease then your notice is legal. Ideally you used the N9 form and followed the directions on it. Note that even if your notice is technically invalid it can still be useful in terminating your tenancy as a short notice is automatically extended (by law) to the first valid notice date.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com