Evicting a tenant for damage: the law gives them options!
This article deals with the interpretation of section 62 of the Residential Tenancies Act and seeks to clarify what exactly a landlord must offer a tenant when dealing with damage caused by the tenant. Where the damage to a rental unit is not wilful, the usual way to approach the problem is to serve the tenant a Notice of Termination in Form N5 (as opposed to just suing for damage and not evicting). That Form (reproduced below--current as of June 2019), allows a landlord to terminate and evict a tenant if they have wilfully or negligently damaged the rental unit or the residential complex. Note that wilful damage may be pursued under a different Notice of Termination as well (Form N7) but that is not the focus of this article.
When deciding to serve an N5 for damage, a landlord is deciding to terminate the tenancy subject to giving the tenant a chance to void the eviction and remain in the apartment and continue the lease. The landlord's decision to give the tenants a chance to void the N5 for damage is not a real decision or choice. It is the law that mandates that a tenant who receives an N5 for damage be given a chance to void the notice by dealing with the damage.
I use the phrase "dealing with the damage" because the Residential Tenancies Act sets out a number of ways that the damage can be dealt with and the N5 be voided. The ways are reflected in section 62 and I will reproduce those sections here so that you can see the 5 distinct ways that damage can be dealt with that voids the eviction and allows a tenant to stay.
Section 62 provides as follows:
TERMINATION FOR CAUSE, DAMAGE---1) A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex. 2) NOTICE--A notice of termination under this section shall, a) provide a termination date not earlier than the 20th day after the notice is given; b) set out the grounds for termination; and c) require the tenant, within seven days, i) to repair the damaged property or pay to the landlord the reasonable costs of repairing the damaged property, or ii) to replace the damaged property or pay to the landlord the reasonable costs of replacing the damaged proper, if it is not reasonable to repair the damaged property. 3) NOTICE VOID IF TENANT COMPLIES---The notice of termination under this section is void if the tenant, within seven days after receiving the notice, complies with the requirement referred to in clause 2 c) or makes arrangements satisfactory to the landlord to comply with that requirement.
Highlighted above in yellow are the 5 options that the legislation sets out. Reproduced below is the Notice of Termination in Form N5. Highlighted in yellow, on the form, are the 5 options that set out how damage can be dealt with.
WHAT IS THE PROBLEM??? IS THERE AN ISSUE?
If you are the landlord and you have a tenant who has caused extensive damage to a rental unit do you want the tenant to have the right to fix the damage themselves? Or replace the damaged items themselves? What if the work requires electrical work, or patching, sanding and painting? What if it is quite clear that the tenant does not have the skills to perform the work in a workmanlike manner (i.e. professionally)?
As you read section 62 (above) you will see the word "OR" inserted between the various options. The form must require the tenant to "repair" or "pay". The form must require the tenant to "replace" or "pay" to the landlord the cost of replacement.
When reading the "or" is it the landlord's choice to limit the tenant's options to pay or repair. Or to pay or replace? Who controls the number of choices that the tenant has?
Is the correct reading of section 62 that the options provided to the tenant must include each of the 5 possibilities set out in section 62? Reading section 62 in this way would mean that the tenant has the legal right to: repair, replace, pay, or make a deal. And the landlord must offer the tenant each of these options in order for the Form N5 to be valid.
What if a landlord only gives a tenant a repair cost but not a replacement cost? Is the form invalid? What if the landlord enters the unit, repairs or replaces the damaged things and then serves the N5 on the tenant and only sets out the "pay" options. Is the N5 valid?
Take a look at the Form N5 reproduced above. What if the dollar amount to repair the damaged item is different than the dollar amount to replace the damaged item. Would the two different dollar amounts make the form confusing? The law generally directs that a Notice of Termination that is confusing is void--meaning it is unenforceable and an application based on that notice would be dismissed.
LANDLORD: WHAT DO I DO?
It does appear that section 62 is being interpreted as giving the tenant as many of the 5 options as possible. Where the circumstances of the damage permit, and it is reasonable to wait, the tenant should be given the option to repair, replace, pay for either repair or replace, or make a satisfactory arrangement.
With respect to different amounts to repair versus replace, inserting two different numbers in the form is also acceptable. However, the reason for the different numbers should be explained in an attachment or in the reasons and details. Satisfactory explanations include that a repair is not as perfect as a replacement (though acceptable) and cheaper than replacing. A tenant might choose replacing where the condition of the damaged item is important enough to warrant the extra expense. It is also possible that repairing is more expensive than replacing an item due to the work needed to do the repair. Nevertheless, a repair might be chosen if there is less disruption to the tenant's household by repairing than replacing. Whether this is the case depends on the circumstances.
CAN'T THE LANDLORD JUST say that "or" means landlord's choice?
Such an interpretation is not inconsistent with how many N5 cases for damage proceed. Often enough, once landlords become aware of the damage they enter a unit and do the work and then fill out the N5. Landlords often do the work because the work is necessary to protect the integrity of the building, the failure to do the work would impact other tenants, and the RTA imposes a duty on the landlord to repair and maintain the rental unit. On this basis, landlords argue that there are certain kinds of damage that can't be ignored pending the serving of an N5 and waiting to see which way the tenant wants to go with repairing, replacing or paying.
This too seems reasonable.
RECENT DIVISIONAL COURT GUIDANCE
In Bombaci v. Gatien the Divisional Court held that the provisions of section 62(c) RTA do not require the landlord to choose between the two options of repair or pay and replace or pay. The Court holds that the landlord can give the tenant more options and that the N5 Notice is not void as a result. Hence, different amounts for repair versus replace are acceptable and this does not void the N5 even though the amounts are different.
The Court goes on to say that it is in the tenants' interest to be given all the options: do repairs themselves, or pay for the repairs, or pay for replacement.
The Court's direction that it is in the tenants' interest to be given all the options is not, I think, a direction that the tenants must be given all the options every time. However, I do believe that it is clear indication from the Court that where it is reasonable and feasible that as many of the options as possible be granted to the tenant.
How might this direction become an issue? Imagine a tenant with reasonable skills as a general contractor. Imagine that a door is damaged by a tenant's pet dog who has scratched and gnawed on the door to the point where the only fix is to replace the door. What if the landlord retains its usual "windows and doors company" and on 24 hours notice the company comes and replaces the door with a similar and standard typical door available at most building centres. Let us assume that the invoice for replacing the door is in fact reasonable but that the majority of the cost of the invoice is for "labour".
Now the tenant whose door is replaced might be on a limited income or might otherwise have difficulty paying the amount of the invoice. Or, the tenant might simply be frugal. Regardless, the tenant is upset with having to pay the "labour" on the invoice because had he been given the option, he would have gone to a building centre, bought the same door, and replaced the door himself with his own labour (and hence pay nothing for it). The cost difference to the tenant is meaningful.
Has the tenant been lawfully denied a "right" to replace the door? Does the tenant have to pay the contractor's invoice even though he could have (and would have) done the work himself for much less?
At present, I do not think that there is an absolute answer to this question. My inclination on the above example about the dog damaged door is that the tenant would indeed have a case to argue. Especially with the Divisional Court's suggestion that it is in the tenants' interest to be given all the options (see paragraph 10 of the decision in Bombaci above). Where a repair is not pressing, where a delay in the repair would not jeopardize the integrity of the building, and a delay would not impact other tenants, then perhaps the correct approach when serving an N5 for damage is to give the tenant as many options as possible.
CONCLUSION
In my view, the options set out in section 62(2)(c), exist for the benefit of the tenants. The choices are not disjunctive in that the landlord can choose which of the options to grant the tenant. As many of the choices as possible must be offered to the tenant in order for the N5 to be valid. The number of available choices will be dependent on the circumstance of each case and the nature of the damage. Sometimes it will be imperative for the landlord to act quickly and undertake the work immediately for the protection of the building and tenants. In that case, the only reasonable option to give the tenant is the invoice to pay to void the N5.
To be clear, I do not think that the Court in Bombaci is saying that every option must be provided to tenants in every instance. What I think the Court is saying is that tenants have an interest in being given all of the options. And while giving all of the options is not mandatory, an N5 that does not provide as many options as reasonably possible risks being found void and incapable of sustaining an application to terminate a tenant for damage.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThis is off-topic however I do not see a more relevant blog entry.
We have a tenant who is denying any access to their unit at all by the landlord or any of the landlord's agents, and claiming it is an accommodation for a disability under the HRC.
Firstly, it would appear to me that an accommodation is to help reach the goal (i.e. the inspection) not to prevent it altogether.
Secondly, the tenant is threatening self-harm if anyone enters the unit even with proper notice.
I am at a loss of how to move forward. There is a hearing in the future that we want to address this with but prior to that hearing we do have a need for access to the unit for a governmental-based inspection.
Any and all guidance would be very much appreciated.
Thank you
Hi: It would appear that the tenant is suffering serious mental health problems. That is clearly given away by her threats of self harm. I hope that you have reported this to your local police department and further asked them about any particular community response teams that may assist her in getting help, treatment, or medical assessment. She may not be capable of living independently. Her refusal to allow access suggests that there will be serious issues with the rental unit.
DeleteYou mention that you have an upcoming hearing at the LTB. This is good. Hopefully the reason involves refusal to allow entry. You can assert your legal rights to entry and if entry is refused you can serve a Notice of Termination (usually an N5). If you do manage to get into the unit you will undoubtedly find serious problems (I'd guess hoarding or cleanliness problems). These problems can be addressed with an N5, or N6 and N7, depending on what you find.
The tenant is not permitted to prevent you from entering the rental unit. Upon giving notice you have the lawful right to enter. The problem is, do you have a literal physical confrontation with the tenant? The obvious answer is "no". In the face of a refusal you serve a Notice of Termination, apply to the Board, and then evict.
The Residential Tenancies Act does not provide any other shortcut. This is quite unfortunate and the predicament you are in is obvious.
What you could try is to seek the assistance of the police. Go see the police, advise them that you plan to enter the rental unit and that notice will be given. Advise that you plan to enter as this is your lawful right even over the objection of the tenant. Advice the police that the tenant has threatened self harm should you enter. Then, ask, if they will attend the unit with you to facilitate the entry by making sure the tenant does not harm herself. Express your concern about her mental health (given her position of self harm).
The police have more tools in their tool-kit than you do. If the tenant is in distress they can compel hospitalization against the tenant's will. They will also have knowledge of or access to other community resources that could help the tenant.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much.
DeleteThe tenant does live with someone else and this other person appears to be taking care of her (not as a caregiver or in any official capacity but rather a co-tenant who seems to be a good friend of hers).
The hearing should address this issue and provide clarity to the tenant that we have our rights as well.
If there is a need to enter prior to the hearing, we plan on providing extra notice so there is time to prepare for it, as well we will definitely contact the police to ask them to attend at that time.
Thank you again for your help.
This is off topic, but can a landlord charge a $150 late fee for the rent being late, even if they added it to the lease agreement? Would this fall under section 134 of the act? I was unable to pay rent on time this month and made a partial payment and the remainder by the 14th. I wasn't served with a N4 or a N8 and my landlord wants me to pay a late fee before the end of the month. If the landlord was charged by their bank for having to make arrangements to delay their mortgage payment because my rent was late, can the landlord charge me that fee? Your guidance would be appreciated thank you.
ReplyDeleteHi:
DeleteThe late fee is completely and utterly illegal. The reasons for it don't matter. Landlord late with his own mortgage doesn't matter. The fact there is a clause in the lease doesn't matter (the RTA deems that clause void). There is simply no basis to charge a late fee. There are no facts that you can tell me that would make a late fee legal. In the same way, charging interest for the late payment is also illegal. Acceleration clauses (common in commercial leases) are also void--these make future rent due now due to a breach of the lease.
Let your landlord make written demands for the late fee. Get him committed to the demand in writing so you can prove it. Save that evidence. If, when you don't pay it, he gets nasty and tries to take other illegal action you will be able to prove his motivation.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I have had a guest in my house for 7 yrs. There was never a lease and I told him he was a guest on day one. The basement apt. he is in, does have a separate entrance and he is permitted to use my laundry space once a week. The space is in disrepair and neglect I have fixed one bad issue he never told me about when I went down recently to inspect.( A soggy wall and peeling paint.) Here is my dilemma. I've asked him to find another place to live and move on so I can fix the place up. He says he's entitle to 120 days. After the repairs I plan on selling the house. The house is not listed. At this point in time I'm no longer comfortable around him as he has become defiant and uncooperative. He got himself a dog when I explicitly said no, I didn't want to deal with the problems of pets destroying my property.
ReplyDeleteHi: The all important question is whether you are in a landlord and tenant relationship with him. If he is only a guest, and not in a tenancy subject to the Residential Tenancies Act (RTA) then you owe him very little (basically nothing).
DeleteWhen he says 120 days this would seem to refer to a Notice of Termination served under the RTA. This would be an N13 for conversion, demolition, repair. It comes with complicated rights including the right to re-occupy if the purpose is for repair. If this is what your guest is referring to then he is taking the position that he is a "tenant" and not a guest.
The absence of a written lease means nothing. A lease can be written, oral, or implied. All three are equally binding and come with the full slate of rights. Whether there is such a lease is normally answered depending on whether you say yes to this question: does he pay rent?
Now you might say that he pays money, but it isn't rent. It might be sharing expenses money, joint grocery money, splitting the hydro bill, things like that. You can make a good argument that it isn't a tenancy if the payments he is making don't look like rent or are low enough that it is clear that he is just contributing to your overhead.
However, if his payments are in the amount of a typical rent and it is paid like rent, then you have the indicia of him being a tenant. At this stage, to see if the RTA applies you would look to the exemptions (see section 5 RTA), and see if any of those facts apply to you. If not, then you might actually be in a landlord and tenant relationship.
Consider a consult with a lawyer or paralegal to go over the facts. If he is a tenant but you treat him like a guest the penalty can be rather severe. Ultimately, if the facts are so-so you can apply to the Landlord and Tenant Board for a determination about whether the RTA applies (see A1 application on LTB website).
Good luck
Michael K. E. Thiele
Hello Michael, I have a question for you that I've asked several law students and paralegals with different answers. Perhaps you can give a more definitive answer.
ReplyDeleteDoes my lease actually prevent me from listing a room on AirBnB?
Here's the full text of the clause in the lease
"As per the Residential Tenancies Act and the lease agreement, tenants may not sublet the above noted suite, without the written permission of the landlord.
This includes but is not limited to advertising any portion of the suite on rental sites such as AirBnb, craigslists, etc and receiving payment for accommodation of the sublet, in whole or in part."
"The Residential Tenancies Act, defines subletting as
Interpretation, sublet
(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,
(a) the tenant vacates the rental unit;
(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and
(c) the tenant has the right to resume occupancy of the rental unit after that specified date. 2006, c. 17, s. 2 (2)."
https://www.ontario.ca/laws/statute/06r17
So here's my understanding. If I have a two bedroom and list one bedroom on Airbnb, I have never vacated the unit at any point in time. I still live here. Therefore, listing one bedroom on Airbnb is not considered subletting. Is this correct?
Therefore any clause in my lease that prevents my from subletting on AirBnb (despite the language about in whole or in part) has no teeth because as long as I stay here and this is my primary residence, this is not a sublet. Is this correct?
Thanks for your answers.
Hi Penelope:
DeleteTo the extent that you are looking to the lease for your rights and obligations, I agree that you remaining in your unit (in one bedroom) and Airbnb'ing the other bedroom is not, by definition, subletting. What you are doing is bringing in a roommate to share expenses (or a series of roommates). These roommates (AirBnB guests), are like visitors to your home. You are responsible for them etc. etc..
Subletting is the key to prohibiting AirBnB. While people may not get too excited about what seems a technical prohibition on "sub-letting" the implication of subletting as an offence, chargeable under the Provincial Offences Act, and further being subject to an Order to return the money, arises out of section 134 RTA. If you sublet (even with permission from the landlord) it is still illegal to charge more for the unit than what the landlord is charging you in rent.
All that being said, if you are remaining in actual possession with the Airbnb guest then this is not subletting. Note there is a risk in being "cute" and just sleeping over at a friend's on nights of Airbnb rental as this will undoubtedly come out and the LTB is entitled to look through the outward form of any transaction (i.e. disregard it) and determine what is actually going on. You might want to make a scrapbook of pictures with all of your guests and yourself in the unit to prove what it is you are doing.
Hope that answers the question satisfactorily for you. Lastly, keep in mind that lots of cities and municipalities are considering new rules of Airbnb operations. The lack of a restriction under the RTA does not mean that there isn't other legislation that may affect you.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your prompt and helpful response Michael.
DeleteI have two follow-up questions
1) I don't doubt that the spirit and intent of the lease clause I signed was to prohibit AirBnB period. If I were to go ahead with my plan of listing one bedroom and my landlord raises an objection and took me to the Landlord and Tenant board, would they read the spirit or the letter of the law?
2) The second part of the lease I signed seems like an attempt to expand the definition of sublet. "This includes but is not limited to advertising any portion of the suite on rental sites such as AirBnb, craigslists, etc and receiving payment for accommodation of the sublet, in whole or in part."
There was some disagreement between the people I asked whether this was an expansion of the definition of sublet or an outright contradiction. What's your take on this?
If theoretically, the board ruled that this was an expansion, then they would rule against me, correct?
Thanks again for any insight you might give.
Hi Again:
DeleteWith respect to the first question I'd be careful not to conflate the lease clauses with the statutory provisions and think of both as "law". The spirit and intent of the lease clauses is, I think, irrelevant. The lease clauses will be considered as what they actually say and won't be nuanced to make them legal if the plain reading of the clauses is illegal. There is more room for "spirit of the law" when interpreting the RTA provisions but I'd suggest that the "spirit" informing interpretation is not derived from this narrow issue. The purpose of the RTA is set out in section 1. Picking sides on a policy basis for AirBnB (i.e. interpreting to permit or reject) based on lease clauses is not something I see happening.
The second question you have is rather a fun intellectual exercise. I'd say, there is no possibility that the words of a private contract can expand the definitions set out in a statute. In fact, trying to fiddle the words of the statute (through lease clauses) to make them say something more broadly or attribute a different meaning is expressly void where the clause contradicts the statute (section 4).
I see the lease clause you are referring to as patently illegal. The law is quite clear that you are entitled to have a roommate. You can take people in for a variety of reasons--1) partner, 2) friend, 3) for company, 4) to help make ends meet, 5) compassion, 6) favour, 7) obligation and I suppose many other reasons. None of these are the landlord's business as taking in a person(s) for whatever reason is not the landlord's business and any attempt to control how people associate with others in their homes treads on some established Human Rights cases on this topic respecting tenant relationships and attempts to restrict partners, over night guests etc..
So that being said, a clause trying to tell a tenant that they can't find their partner, guest, or whatever on a particular platform is, I think, blatantly illegal. Why should the landlord be permitted to say where you can find a person to share your space with (i.e. sharing the space can't be restricted--so, restrict the ability of the tenant to find a person to share the space with?).
As for receiving payment, it is not illegal to receive payment when the tenant remains in the unit and therefore there is no sublet. Payment can be for meals, for the use of the stuff in the home, for over-head, etc. etc.. The payment prohibition only kicks in on a sub-let and that definition is clear.
It is a bit of fun to think about what other activities this clause might inadvertently capture. Think about that and you'll realize that this clause would purport to prohibit other legal activities.
Lastly, the clause fails for the obvious reason that it interferes with a tenant's assignment and sub-letting rights. The advertising prohibition prevents the exercise of assignment and subletting rights in that the venues identified are the very places that a tenant would look for an assignee or subletter. Forget for a moment the making money from the unit aspect of this, but imagine that your goal is to assign the lease to a potential assignee because you are moving to another city. This clause prevents you from doing this efficiently. Imagine, you love the place but have a temporary work assignment in another city (say, for 3 months). You are on a month to month tenancy. You'd like to retain your unit because you are only gone for 3 months and then back. Does this clause prevent you from finding a sub-letter in the most efficient way possible? The answer I think is "yes", and that, without a doubt makes the clause illegal.
Best of luck with this. Updates are appreciated!
Happy Canada Day Weekend
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteThank-you for your help in this forum.
Regarding key deposits, my landlord has now stated that my key deposit will not be released at the end of the tenancy when the keys are returned but within 3 business weeks of the end of the tenancy, only after the unit is inspected and no damage is found. The assumption here is that they are leveraging/converting the key deposit into a security deposit (illegal!) against any potential damage found. (There is no damage, BTW.)
The SBT website indicates that the key deposit is returned when the keys are returned.
What are the landlord’s obligations here? What are my obligations? (i.e. Can I hold onto the keys until my refund is returned? Must the landlord return the key deposit immediately upon return of the keys?)
What authority may I quote to the landlord to support the immediate return of the key deposit coincidental to the return of the keys?
Thank-you for your help!
Hi
DeleteThank you for this question. The Residential Tenancies Act (RTA) prohibits additional charges (any kind of charge no matter how imaginative) beyond the rent and the last month's rent deposit. This is set out in section 134 RTA. However, section 134 has some exceptions and the fact that there are "Exceptions" is revealed by the beginning of section 134 when it says "Unless otherwise prescribed". When reading law (statutes) and you see the word "prescribed" that means that there are Regulations which might modify, explain, expand, narrow, the section in the statute that you are reading. In this case, the word "prescribed" in section 134 ends up taking you to O Reg 516/06 specifically section 17. ["O" stands for Ontario, "Reg" stands for Regulation].
This is what section 17 of the regulation says:
17. The following payments are exempt from subsections 134 (1) and (3) of the Act:
1. Payment for additional keys, remote entry devices or cards requested by the tenant, not greater than the direct costs.
2. Payment for replacement keys, remote entry devices or cards, not greater than the direct replacement costs, unless the replacement keys, remote entry devices or cards are required because the landlord, on the landlord’s initiative, changed the locks.
3. Payment of a refundable key, remote entry device or card deposit, not greater than the expected direct replacement costs.
4. Payment of NSF charges charged by a financial institution to the landlord.
5. Payment of an administration charge, not greater than $20, for an NSF cheque.
6. Payment by a tenant, former tenant, subtenant or former subtenant in settlement of a court action or potential court action or an application or potential application to the Board.
7. Payment to a landlord or tenant of a mobile home park or land lease community at the commencement of a tenancy as consideration for the rental of a particular site.
8. Payment of a charge not exceeding $250 for transferring, at the request of the tenant,
i. between rental units to which subsection 6 (1) or (3) of this Regulation applies, if the rental units are located in the same residential complex, or
ii. between rental units in a residential complex that is described in paragraph 1, 2, 3 or 4 of subsection 7 (1) of the Act.
9. Payment of an amount to reimburse the landlord for property taxes paid by the landlord with respect to a mobile home or a land lease home owned by the tenant. O. Reg. 516/06, s. 17; O. Reg. 562/17, s. 1.
Take a look at section 17(3) above, and that is how you key deposit charge is legal. Now, you don't say what amount your key deposit is--is it higher than the direct replacement cost? If so, the charge may have been illegal from the day you paid it.
You can see from the RTA and the Regulation that there is no legal basis to use the key deposit for anything other than as a deposit for the key. Holding the deposit to set off against damage is simply illegal.
As for the timing of the return. I can't find anywhere in the legislation where it explicitly sets out a time for the return of the deposit. No where does it say immediately on return of the keys. However, I agree with what you say is on the website (LTB?) that key deposits are returned when the keys are returned as I think that is implied by the idea of a refundable deposit. Of course, if the landlord doesn't deal in cash, I think an immediate refund could reasonably be interpreted as within a few days of the keys being returned if the landlord has to get a cheque made up etc..
DeleteUnder no circumstance do I think that a reasonable refund period is weeks or after a unit is found to have no damage. That kind of time line suggests to me that the landlord is hoping you forget about it and they will just keep the money.
How to approach your landlord? I think your landlord likely knows that what they are doing is illegal. If you have their statement confirmed in writing that they are going to use your key deposit against damage then you have a few options. You could simply return the keys and obtain a receipt. Then immediately file an application with the LTB for money retained illegally (section 135) use Form T1 and also file a T2 application as I interpret the holding onto the money for "damage" as an intimidation tactic (i.e. shut up, move on, and be happy if we don't chase you).
You could also, if you have the time, make an appointment with the landlord to return the keys and ask them to have a cheque ready at that time. Then attend, if no cheque keep the keys. Confirm details via email, try it again, and failing the next attempt then file the above noted applications.
The withholding of the key deposit is illegal and contrary to the RTA. Charges, in theory can be laid. You could make a complaint to the Housing Enforcement Unit (Google it and a website comes up). This is sort of like the Housing Police--but unfortunately with far fewer teeth. In theory though, they could lay charges and make it clear to the landlord what its obligations are. This can be handy if you want to avoid going through the trouble of a hearing and simply have the landlord be motivated by a government agency (under the threat of charges).
Anyway, I hope that helps. Let me know if you have any further questions.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteThank-you so much for your immediate reply!
The amount collected for the key deposit was $275 for a fob and 2 metal keys; in my opinion, this is an excessive amount for replacement costs. I have heard another landlord describe it as more of an incentive charge to have the keys returned. This practice runs rampant here in Waterloo student housing, since a lot of students who sign these leases are vulnerable, as are their families -mostly coming from outside Canada - who are not familiar with Ontario law. As uncomfortable as I was with the excessive cost, I paid it, and I didn’t know until recently that its excess was recoverable afterwards as an illegal cost at the LTB. (Live and Learn!). I recently gave notice for the end of August, the end of the fixed term lease. I reminded them in the notice that I would be expecting my key deposit when I return my keys to them. Here is what they wrote:
“After our inspector has inspected your unit after you move out, and if the room is [sic] remained in our moving in condition, our accountant will release your key deposit within 3 business weeks.”
The SBT acronym should have been written SJTO for Social Justice Tribunal Ontario. (Sorry for the misprint.)
Here is a link to one of their pages:
http://www.sjto.gov.on.ca/ltb/faqs/
They address the timeliness of the return of key deposits:
“Can a landlord ask for a deposit for keys?
Yes, but only if:
the deposit is refundable, and
the amount of the deposit is not more than the expected cost of replacing the key(s) if they are not returned to the landlord.
The landlord must give the deposit back when the tenant turns in their key(s) at the end of their tenancy.”
To me, this implies immediate recovery of the key deposit upon return of the keys. Does it seem that way to you, too? Can I also refer the landlord to this FAQ - its presence on the SJTO website - in addition to the RTA/LTB authority to motivate them to act legally?
Regarding the landlord’s knowledge what they are doing is illegal: they might or they just haven’t bothered to know the law, relying solely on what is written (legal or not) in the leases. Front line management and owners are ESL, as are the majority of the tenants. Mid-lease, they replaced their professional property management company with their sister-in-law accountant. During the transition, they missed that month’s collection of rent payments, then they threw it back to the tenants as missed rent, and threatened the tenants with late payment penalties. I knew enough about illegal penalties to be able to call them out on this, and refer them to the RTA. It was an extremely tense conversation, and I refused to pay them any penalty. I’m not sure how successful they were with the other tenants but I suspect they did collect the penalties from tenants who aren’t familiar with the law.
Anyway, I do have the time, and I will personally shepherd this next phase for the legal return of my key deposit. I will keep you posted how it goes. You have been extremely helpful beyond words can say.
Thank-you,
Julie.
Hi Michael,
ReplyDeleteIf I sell a tenanted property to a buyer and have them sign an affidavit stating they intend on moving in, could I get sued by my former tenant if they don't happen to move in? It wouldn't be my fault but the former tenant doesn't know who the new buyer is, they could only come after me right?
Hi:
DeleteI love the question "could I get sued"? The answer is always yes, yes of course. Whether you would be successfully sued is another question altogether.
The short answer, I think, is that you would not be successfully sued if you acted in good faith, it (the sale) was an arms length transaction, and you followed the process set out in the RTA.
The termination of a tenancy on behalf of a purchaser happens under section 49 of the RTA. You are serving a form N12 in the context of that section. This section, to me, has you serving the N12 on behalf of the purchaser as an agent of the purchaser. If you gave the tenant notice, as contemplated under this section, it seems to me that you are not doing it in your personal capacity but in a representative capacity.
Depending on where you were sued (at the LTB or in Court), you would be naming the purchaser in a third party claim or in some way at the Board in a representative capacity (it doesn't have a direct process for this).
The key for you, I think, is to ensure that you have documented your instructions to serve the N12 and to make a reasonable inquiry to ensure that the purchaser has a good faith intention to occupy the premises for residential purposes for one year or more (see the basis for service in section 49). Of course, you are doing this after you have a firmed up transaction (APS).
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael.
ReplyDeletei'm vacating my current house in August 30th 2019. I noticed slight bulging on the kitchen countertop. will I be responsible for paying the damage if my landlord charges me.will I have to pay for the whole replacement of the countertop?
what are my available options ?
Thanks
Hi:
DeleteAh yes, the mysterious "slight bulge" a condition normally reserved only for middle-aged humans but now affecting counter-tops everywhere.
This question is virtually impossible to address without more information. If the bulge was negligently or intentionally caused by you then you might be liable. If the bulge is the result of reasonable wear and tear then you are not liable. If the bulge arises from a maintenance problem or something breaking then, (unless you ignored and failed to report the obvious problem) you are likely not liable.
A bulging countertop I am going to guess, is the result of water getting under the laminate or from too much heat being applied to the laminate. If the water got in around the sink then I'd say you're not liable as the landlord should be regularly maintaining caulking and if he chooses not to then it's his problem. The heat (let's say from a pot) can be characterized as negligence. However, they'd have to prove it too and without burn marks and just bulging who is to say it was a pot or heat to begin with.
These very slight problems are generally a reflection of reasonable wear and tear. If the "slight bulge" is barely noticeable then it is likely that the landlord won't even mention it on the move out inspection.
Michael K. E. Thiele
www.ottawalawyers.com
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ReplyDeleteHi: I think the first question to ask is whether you are able to contract with the tenant, via the lease, for the tenant to be responsible for lawn maintenance. Put another way, is your lease clause requiring the tenant to care for the lawn in the front and backyard legal? If the clause is not legal, nor enforceable, then you don't have much of a case or claim to make. If the clause is legal, then the failure to perform the contracted obligation is a breach of the contract/lease for which you may seek damages.
DeleteIn my opinion, based on the caselaw, it's my opinion that a lease clause requiring the tenant to take care of the lawn and gardens is unenforceable and contrary to the Residential Tenancies Act. The legal logic is the same as that in the case of Montgomery v. Van (search this blog for reference).
The landlord as a duty to maintain the property pursuant to section 20 RTA. Local property standards bylaws have a lawn maintenance requirement that require a lawn to be cut, kept clean, noxious weeds removed, or something similar to that. Once that by-law requirement is breached, the landlord is automatically in breach of section 20 RTA. That breach of section 20 entitles the tenant make a claim against the landlord.
The landlord's duty, vis a vis the lawn arises under section 20. A landlord who tries to shift a duty imposed on the landlord to the tenant is breaching the RTA. The lease clause that seeks to do that is then void and unenforceable pursuant to section 4 RTA.
The only way to lawfully require the tenant to do the work of lawn maintenance, snow maintenance, etc., is to contract separately and outside of the lease with the tenant. Such a contract can not be a condition of the lease nor in any way impact a tenant's rights under the RTA. If the tenant refuses to enter into such a contract the landlord has no recourse against the tenant for that refusal.
I am unaware of any appellate authority directly on point dealing with grass cutting. Certainly snow removal in this context is explicitly dealt with. For me, it is difficult to see how you could have a valid grass cutting clause if it is legally impossible to have a valid snow clearing clause. I don't see an appellate court support a distinction between snow and grass. The preponderance of LTB cases that I have read support the above view, though there are some that see it differently. Also, I've come across at least one small claims court case that makes a distinction between grass and snow--relying on the notion that keeping the grass cut is a cleanliness requirement for the tenant under section 33 RTA. My view is that this is an outlier case that does not have support.
So, in summary, I think you're out of luck (my opinion) as it is your obligation and duty to maintain the lawn regardless of your lease clause shifting that obligation to the tenant. The law simply does not permit a landlord to shift landlord responsibilities to a tenant in a lease.
Michael K. E. Thiele
www.ottawalawyers.com
How long does my old landlord have to notify me of damage after a final walk through is done he is trying to claim there is cat odour 40 days after the final walk through was done with no mention of odour during the final walk through email that they sent to me. They are also claiming that a carpet patch is not acceptable because its in a high visibility area even though their was a patch already in the other bedroom. Right In front of the doorway in the middle of the floor and because we refused to pay for the carpet to be completly changed when we where only responsible for repairing it ( which we repared it but he was not happy with out job) hes trying to charge us for the cost of ripping out the old carpet and sub floor and resealing now and is taking us to small claims
ReplyDeleteHi: Your landlord, if he decides to pursue you for alleged damage, must commence a claim within two years of the date of the damage or discovery of the damage. Technically, the landlord is not required to give you notice of the claim prior to issuing a claim in the small claims court (or higher level court if the claim exceeds $35,000).
DeleteAs for the merits of the claim against you, you seem to have the arguments well in hand. Don't forget, as well, that even if the landlord's claim is legitimate he is not entitled to have you pay 100% for the new carpet. Carpets have a limited life and they do wear out. The Residential Tenancies Act (in a "Useful Life" schedule to the Regulations) sets out a useful life of 10 years for carpets. This is a guideline as opposed to a rule but it is instructive. If the carpet you are accused of damaging exceeds 10 years in age then arguably you owe nothing because the carpet was due to be changed anyway. While the Court won't take the "useful life" schedule as gospel--the point of the argument is that you should only be paying for the value of the thing damaged at the time it was damaged and not the cost of that thing brand new.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Micheal!
ReplyDeleteI recently had the water turned off in my apartment before i went to bed. I had attempted to brush my teeth, before realizing I had no water available. I unfortunately left the taps on and went to bed. This caused the sink to overflow, and flooded the floor of my bathroom. This leaked into the unit below, causing damage to their ceiling.
I am wondering If I will be entirely responsible for this? I am unsure if the fact that the drainage pipe for the sink did not work at all could cause me to not to liable, or only partially liable. The deductible my landlord has for their insurance is very high, and I won't be able to pay it immediately. Will I be help 100% responsible for these costs?
Thank you!
An unfortunate accident. If you have tenant insurance this is exactly the kind of claim that you should report to them. If you do not have tenant insurance directly, but you are still connected to your parent's home then you may have coverage under your parent's homeowner or tenant policy. If you have no luck for insurance there, I do recommend putting your mind to whether you might have other insurance through any kind of organization, employer, etc.. Finding an insurance policy that would cover the loss would be the ideal solution.
DeleteWill you be responsible or in other words "liable"? It is not possible to give a categorial answer. It's just as fair to say--"yes, no, and maybe". You can be held liable for damage that is caused wilfully or negligently. Were you negligent? Did you fail to meet a standard of care? Did you breach an obligation? Was your behaviour entirely outside the bounds of normal behaviour? Was the overflow and damage foreseeable?
Certainly one can see the argument for both sides of this issue. If I had to pick a "winning side"--based only on what I read in your comment (and to be fair there isn't enough information to make a truly educated guess), I'd say you are not likely to be liable or if you are the liability will be shared with you paying the lesser amount. I say this because I have the impression that your sink stopper was open, there was nothing in the sink from you that blocked the sink (washcloth etc.) and there is no reason why the sink should not have drained properly. I presume that you don't have a history of a blocked sink and draining problem but if you did that the landlord failed to maintain the sink and cause it to drain properly. I think it is a fair statement that a sink, functioning properly, should drain sufficiently quickly to prevent overflow if the tap is on and open.
Of course, the slightest variation in the facts and you could be liable.
Typically, in these kinds of cases, if you are insured (have tenant's insurance or access to a policy) the two sides will negotiate a settlement with a split of liability and reduction for the fact that the renovations will be an improvement on the existing. You would never be liable for the 100% renovation costs.
Good luck
Hi Michael, I have a question as a landlord. I bought a home and me or my immediate family member lives in one of the rooms almost at all times.
ReplyDeleteWe have a tenant who is not maintaining their space and the common areas. We recently had to get roach treatments done and after that too they are not keeping the kitchen clean. The roaches are active after the treatments and when I end up cleaning the unit since they are not cleaning at anytime, they complain about it. Unfortunately I have to clean it after work and that means it's late evening, the tenant is usually not there but when they are they are in their room (split level basement walkout unit) they complain about the noise and furniture being moved for cleaning. When I bring up their responsibility to maintain the spaces they are rude and dismissive.
I would like to end the tenancy because the roaches are primarily in their washroom and the attitude of negligence could bring further damage to the property. Any guidance for my situation would be appreciated.
The first thing that you need to figure out is whether the Residential Tenancies Act (RTA) applies to your relationship with the tenant you describe. If the RTA applies then you have a technical process to follow including the service of a Notice of Termination (likely a Form N5) and then, if they don't correct their behaviour the filing of a Form L2 to get a hearing at the Ontario Landlord & Tenant Board. That is how you would get an eviction order.
DeleteHowever, your question implies that you or an immediately family member is occupying the house with the tenant. It is possible, on these facts that section 5i RTA applies and the relationship with this tenant is RTA exempt. Section 5i talks about sharing a kitchen and/or bath with the landlord or family member. It is unclear if you bough the house and then rented to the tenant or if the tenant was in place when you bought the house and then moved in. It makes a very big difference to whether the RTA applies or not if the tenant was in possession before you purchased and moved in. For that reason, you will need to provide more details or contact a lawyer for a consultation (and interview) so that the necessary facts can be provided. If the RTA does NOT apply then you can simply ask the tenant to leave. The typical notice period is one rental period. If the tenant does not leave then you can proceed with self help or seek help from the police to remove the person as a trespasser. The key is to determine whether the RTA applies or not.
Hi Michael,
ReplyDeleteI've run into an issue with my landlord where I was given verbal permission to mount my television on the wall (The unit was let to me with a mount in place, where I mounted my television), and I found that the existing mount was unstable, and no studs were behind it, so I safely mounted a board to some studs on that spot in the wall, and then mounted my TV to a new mount, in the same place.
The existing mount used 6 holes in the wall to mount into place. My solution only had cause for four screws to be used to mount the board, then I mounted my mount to my board, saving the wall from further damage.
My landlord has taken issue with this, and has served me an N7 to evict me on the basis of wilful damage to the unit, even understanding that he had given me permission to mount this TV prior to me even signing the lease with him.
However, I believe my landlord is only doing this because he had been keeping the heat in the unit too low during the winter, and wasn't fixing it, so I had my town's bylaw department come check the heat, and they issued him a warning. I think this made him angry. And he is retaliating against me by trying to evict me in the middle of winter.
Is there anything I can do to make this situation go away? I'm even willing to take my TV down and repair the holes made from mounting it, I really don't want to have to move in the middle of the winter. As it is, the N7 is founded on a lie, he's just saying it's 'a wooden construction over 12 feet long on the wall' in violation of the lease. It's my TV mount. That's it.
A further note, I'm a general contractor by trade, and could easily patch and paint these holes myself if needed.
Thanks in advance.
Thanks for the question. Your sense that this N7 is ridiculous seems to be a fair conclusion to me. Of course, I am making an assumption in reading your comment that the Board you attached to the wall is "nice" and that any reasonable person looking at what you've done would NOT think--"wow--what a disaster". In my mind's eye I am picturing a relatively small piece of plywood--height a little bigger than the mounts mounting bracket (i.e. where the screws go through) and the width of the plywood to be wide enough to span over at least two joists (maybe 3 depending on exact placement). A nice touch would be for the plywood to be painted the same colour as the wall--but if not the same colour, at least painted some colour so it "looks nice" even if hidden or mostly hidden by the television. If that is a fair description of what you've done then the N7 is, frankly, ridiculous. Layer on top of the "normal" mounting of a television you got permission to mount it! That vitiates any aspect of the allegation of willful damage (which is what the N7 will be based on--I presume?). Surely he isn't alleging that you've impaired safety?
DeleteAnyway, the N7 is a form that you are entitled to dispute. If I understand the facts correctly then the landlord is most likely to be laughed out of the LTB on this allegation. Of course, you need to defend the case when it comes up and you need to take it seriously and present evidence. Lots of pictures, a description of what you're doing, your own evidence that what you've done is effectively the only way to safely mount a television on a wall so that it doesn't tear out an anchor that is only in the gyprock and hurt anyone nearby when that happens, and you explaining 4 holes versus 6 and that the repair if the landlord wants to remove it when you move (and presuming you don't) is to unscrew board from wall, patch and paint---in exactly the same way that you would do for wall hangers and picture hooks. I honestly don't see any chance of this leading to eviction or the landlord having any chance whatsoever. Also, so you know, the termination date in the N7 is a short notice. Take a look at the notes on the N7 and you'll see the advice that if you disagree you don't have to move. Stay put and wait for a hearing. In reality, these days, if the landlord spends the $186 dollars to file this application he will get a Hearing--probably in the early Fall of 2023. A very very long delay. When he finally gets the hearing, and you defend, I expect that he will lose his case and lose the $186 in the application fee. The key to winning this case is the reasonableness of what you've done--it is very fact specific and contextual.
Good luck