A former tenant damaged the rental unit. How do you get them to pay for the damages that they caused?
I get this question often enough and the answer today is different than it was a short while ago. The core of the question is whether you have to sue in the Small Claims Court or if you can file a claim at the Ontario Landlord and Tenant Board.
The old (and not current) rule was that if the tenant was out of possession then you could only pursue a claim in the Courts. Typically that meant the Small Claims Court if the claim was under $35,000.00 (the jurisdictional limit of the Small Claims Court). If the cost of repairs exceeded the sum of $35,000 and you intended to pursue that higher claim (and thought it worthwhile) then you could file a claim in the regular Superior Court of Justice either under the simplified rules or regular rules. Claims for amounts in the Superior Court but not Small Claims Court are best pursued by hiring a lawyer (you can not retain a paralegal for such claims).
THE CURRENT LAW
Today, the current rule is that you must file a claim for damage to the rental unit against a former tenant at the Ontario Landlord and Tenant Board if the damages were caused by the tenant during the course of their tenancy. Note that “tenant” includes another occupant or other person permitted in the residential complex by the tenant. The damage caused by the tenant also, to be recoverable, must have arisen from willful or negligent conduct and the damage must be “undue”.
How did this happen? The Ontario legislature amended section 89 of the Residential Tenancies Act to include former tenants and now the Landlord and Tenant Board has jurisdiction over these former tenants for actions taken during the tenancy. The fact that the LTB has jurisdiction over these former tenants for these kinds of claims has also now clarified that the Small Claims Court no longer has that jurisdiction (except for transitional cases that were ongoing at the time of the legislative amendments).
It is important to recognize that the ability to file a claim against former tenants at the LTB comes with a shorter than expected limitation period of one year (see RTA section 89 (1.1)). The usual 2 year limitation period that typically applied for claims in the Superior Court seems to have been shortened. Though, arguably the one year period is clearer in that the period runs from the date that the tenant gave up possession and not from when the damage was done.
The Form that you will be using to file with the Ontario Landlord and Tenant Board against the former tenant is the Form L10. For those wondering if there are other claims that can now be made against former tenants at the LTB take a quick look through the forms because indeed there are–including rent arrears.
And lastly, if you are in the unfortunate position that your former tenant caused more than $35K worth of damage and it is indeed worthwhile to sue (because recovery seem possible) then you may still file a claim in the Superior Court of Justice. Whether such a claim is time limited to one year from the date of the tenant vacating the unit is not entirely clear.
Welcome back! Your blog posts have been sorely missed.
ReplyDeleteThank you, I took a little sojourn over to Quora and answered questions on that platform--but it wasn't nearly as good or interesting.
DeleteI ended my tenancy Dec 31,2020. The landlord claimed excess damage. I refused to pay her anything because I did not believe the damage was mine ( previous tenants did it and she never did anything about it). Unfortunately I had unknowingly given her a damage deposit not knowing it was illegal and she has retained this deposit. I filed a T1 form to get that back and the hearing is next week. She just put up her evidence for the T1 filing hearing and it is all pictures of the so called damage. I am guessing/hoping the adjudicator will not allow this claim of damage into the T1 hearing - hopefully. Would this be in the time window where she needed to file a claim is small claims court - Jan 2021? Is there a statute of limitations on her filing a claim in small claims court? It is now over 2 years since, can she still file a claim ?
ReplyDeleteA damage deposit is an illegal deposit and the LTB will order it returned. The landlord's claim for costs related to damage alleged to be caused by you is out of time. Currently, the time for asserting a claim against a tenant for damage is 1 year from the time the tenant vacated. The time for the claim against you as expired. Even if the basic 2 year limitation applied (it likely does not), even it would be out of time.
DeleteIs there a statute of limitation for a landlord to apply to Small Claims Court for damages? ie tenants vacated unit Dec 31,2020. Can landlord now in 2023 file a small claim?
ReplyDeleteOntario's "basic" limitation period is set out in section 4 of the Limitations Act. It provides for a 2 year limitation period. On the face of it, any claim against you would most certainly have to be initiated by the end of 2022. It is possible that the time period begins to run sooner than the end of the tenancy (i.e., instead from the date of the damage if the date of causing the damage is known to the landlord).
DeleteYou mention being sued in Small Claims Court, and certainly that is was the correct venue at one time. The RTA was amended to allow landlord's to file claims against FORMER tenants for damage. The time limit for those claims is one year after the tenancy ends (to file at claim at the LTB). For the specific statutory reference take a look at section 89 RTA, and specifically section 89(1.1) for the one year time limit. Interestingly, the RTA may have effectively created a zero limitation period circumstance by the same wording (s. 89) as it permits a tenant to be pursued for damages so long as the tenancy is continuing.
Hi Michael, my situation is different, but somewhat related. I have been living in this rental unit since September 2019. I called and arranged for all utilities to be put in my name as per lease and was successful in all but the water bill as the landlord needed to take care of the balance of the previous tenant before the city of barrie could switch it into my name. Fast forward a few months and I still had not received a water bill but I do recieve a text from the landlord telling me that there is a large overdue balance on the water bill. I call the city of Barrie to inquire, maybe there was an issue with the billing address or something? The get through and the city of Barrie informs me that they can not give me any information regarding this address because my name is not on the account. I spoke with my landlord again and expressed that I am more than willing to pay my share of the water bill but that I am not responsible for his previous tenant and we both agreed that I would start paying the water bill once it is put into my name. There were several reminders to him month after month and the bill had still not been switch. Then covid started really getting crazy, and I'll be honest, I forgot to chase him about it. Fast forward to yesterday, May 30th 2023, I'm at work and the kids message me to tell me there is no water. I call the city of Barrie to see if maybe there is someone working on the water and we didn't get a notice or something. I give them my name and my address and they tell me sorry but because my name isn't on the account they can't tell me anything. I let them know I am the lease holder and have been since 2019 but they said sorry that I would have to have my landlord call. I asked if I had any rights regarding this and they just referred me to the landlord tenant board. I text my landlord (I've learned to keep a "paper trail" for everything with him) and his response was "I don't think the bill has been paid in a very long time" I reminded him that I do not have access to the bill or the account in general because he didn't switch it to my name and that he would need to call the city to rectify. Making an already long story short, he refuses to believe the city shut off the water due to non payment, because it would just come off his property taxes (his words, I'm not sure about this, but if its still in the previous tenants name I doubt it) and instead of calling the city of Barrie he is sending out a plumber to take a look, which guarantees me and my children another day of no water and borrowing water from a neighbour to flush our toilets. I know the landlord wants us out because we pay a low rent compared to the rest of the units in our subdivision, and he has tried to buy us out by trying to get us to sign a "keys for cash" agreement that we kindly refused. I feel like this is another tactic of his to get us to leave. What rights do I have as a tenant? I just want the water bill in my name so I can pay it and not have to worry about my kids not having water. Should I contact the previous tenant and let her know that the landlord has kept the utilities I her name all this time? Can he get in trouble for that?
ReplyDeleteAshleycashmore@gmail.com
I strongly urge you to contact the Housing Enforcement Unit of the Ministry of Housing. Having your water cut off is an interference with a vital service as defined under the Residential Tenancies Act. The landlord can be charged for this and the fine is substantial. Make sure to document the issue to the landlord and file the complaint asap.
DeleteNext step, call your City councillor and advise that your landlord is trying to illegally evict you by letting the City cut off the water service to the property. The councillor should intervene with City staff to restore water and indeed charge it back to the property owner.
Next step, perhaps while speaking with the councillor, but search the City's bylaws too, to see if there is a bylaw that deals with this kind of issue. Different cities have passed bylaws to deal with similar circumstances. If you can find a bylaw then the City may intervene. Call property standards too, and see if there is any department that will fine the landlord, lay charges etc.. Basically, make a LOT of noise and get attentions. What the landlord is doing is entirely illegal.
The Landlord and Tenant Board is at this time essentially useless. Yes, you could file an Application and Orders can certainly be made. And yes, you should do so. Unfortunately, the LTB is so inefficient your case will not be heard in any reasonable time frame. So, file anyway, ask for a 100% rent abatement, Fines, etc., (see the T2 Form), and in time you will get something--but it won't solve your problem immediately.
If there is some way that you can pay to reconnect the water--then I'd recommend doing so (presuming all the other pressure doesn't get you water back), and then immediately deducting the payment from ongoing rent. That will trigger the landlord to file an application for non-payment of rent, but you defend that application under section 82 and demonstrate that you were denied a vital service, did everything you could to get it restored, and that you had no reasonable alternative but to pay and deduct the charge. Based on the facts you give above there is no reason why you shouldn't win that hands down and also get additional compensation on top of it all.