Wednesday, 27 November 2013

Apartments for Rent: What Tenants should look for.

As a lawyer representing both tenants and landlords over the last 17 or so years there are certain comments made by both tenants and landlords that have become a "typical refrain".   "If I only knew" is something that I've heard both tenants and landlords say as they are dealing with a nightmare tenancy.  What is unfortunate is that the signs or hints of the nightmare tenancy were there and obvious even before the tenancy began.  "If only" the tenant had asked the right questions! So that being said, what things should a tenant be looking for when looking for Apartments for Rent?

In no particular order, I'll share with you a some of the things that I think every tenant should do when looking for a new apartment.  Not each of these suggestions will be possible in every circumstance but they should get you thinking.

1)  Reputation, Reputation, Reputation.  Landlords have reputations just like regular people do.  Doing a walkthrough in an available apartment doesn't tell you what dealing with this landlord is going to be like.  What happens if a pipe breaks, maintenance needs to be done or repairs effected?  Are you presuming that the landlord will be responsive to your calls---or just hoping that it will be a positive experience?    Better than hoping, it is worth your while to investigate your landlord's reputation.  Google searches (why not!?), google the landlords name and see what comes up, look up the landlord under news, google the street address, google the street.  If you get a lot of search results with criminal investigations, police attendances, or references to your landlord in a less than positive light you may wish to re-consider renting from this landlord.

How about, when attending to look at the rental unit, you take a moment to ask the rental agent some of the hard questions about how the landlord responds to tenant complaints, work orders, response time to requests, unit turnover (i.e. home many tenants move in and out of this building on a regular basis).  If the opportunity allows and you see people who live in the building take a look at them, speak to them, and see what kind of response you get.  Better yet, try to engage them in a longer conversation and ask them what they think about the landlord.  Ask those tenants what their experience has been like in renting their apartments from this landlord.  Ask them how long they've been in the building, are people happy living there, what is the turnover like.

Approaching existing tenants and speaking with them may feel like an odd thing to do.  Nevertheless, I encourage tenants to do it as these conversations will tell you an awful lot about your "new" building.  These people will be your new neighbours.  How they react, what they say, and how they are, should be rather insightful for you.  More than anything else, it is these people who will have the greatest effect on whether you have quiet enjoyment of your rental unit or whether you have endless sleepless nights.  So, talk to them before it is too late.

2)  Another odd kind of question, and information to seek, is to investigate how often the building has pest control issues and how often the building has bed-bug infestations.  In my utterly un-scientific method and relying solely on anecdotal stories and my gut, my experience is that the amount of pest control needed in a building tells you a lot about the landlord and about the tenants who reside in the building.  While not conclusive, a high rate of repeated infestations can be an indication that the building has a high number of transient tenants who are bringing bedbugs into the building through used and discarded household items.  This information tells you the "kind" of building that you are moving into and that you may expect to have odd and likely negative social experiences with other tenants in the building.

3)  Cash please!  Does your new landlord demand payment in a way that makes it hard to prove that you've paid your rent?  Are you being asked for a security deposit besides the last month's rent deposit?  Is the landlord demanding post-dated cheques and not making it optional?  Does the landlord impose late payment fees, interest on rent arrears, a missed rent penalty, a very high bounced cheque penalty?   Each of these things is illegal, in whole or in part.  If your landlord is prepared to set terms and conditions of the tenancy that are against the Residential Tenancies Act you should take this as a warning that this landlord may not be too concerned about your rights under the law and how comfortable you are in your new home.

4)  Check the condition of the building---not just your apartment!   Countless times I have heard tenants complain that the landlord fails to maintain the their apartment.  The story usually goes that the landlord had promised--at the time of signing the lease---to sand the floors, paint the walls, fix the cupboards, fix the mold/mildew/yucky shower surround, replace some screens, fix broken window latches, replace the door locks,  shampoo the rugs, fix the stove or fridge.  The excuse for why these things are not repaired at the time of viewing the apartment is that the former tenant just moved out, that the landlord's maintenance crew will be in the unit soon, and that there is nothing to worry about as all the work will be done by the time you move in.   That the work often isn't done is an understatement.

In the best case, your landlord will attend to the repairs, maintenance requests in the weeks following your move into the unit.  It will likely be a nuisance as you will be getting 24 hour notices of entry and have contractors in your unit (or worse "Mr. Fix It" landlord himself) while you are trying to settle in and live.  In the worst case, you will find yourself "living with" the non-repair and simply dealing with the situation because your maintenance/repair requests don't get answered.

Certainly, the Residential Tenancies Act gives you options on how to get your landlord to make repairs.  How you do this is detailed in other articles in this blog.  Also, you can always use the property standards department of your City or town to order the landlord to make repairs.  However, the point here is not whether you can get the work done by forcing the landlord but whether you want the hassle of a "slummy" landlord to begin with.

Is it reasonable that the vacant apartment you are looking at hasn't been prepared for a new tenant?  How long has it been vacant?  Does the landlord not have the money to do the work in a timely manner?  The answers to these questions can be a warning sign.  Then, take a look around the whole building.  How are the common areas of the complex maintained.  Are the floors clean? Are lightbulbs burnt out? Is there garbage in the hallways? Are the nooks and crannys crammed with junk?  What does the building entrance look like?  Are the walls washed, painted, and clean?  Is there garbage outside on the property?  Is the lawn cut, the walk shovelled, the parking lot clean and parking spots marked?  What does the garbage room look like (like a tornado hit it?).  Is it apparent that the landlord has rules for garbage, guest parking, and storage?  Do you get a sense that it is a bit of a free for all in the building--for example are people padlocking bikes to fire-escapes?

Hopefully you understand my point that the condition of the whole building--of the things that you can see--is a reflection of the landlord's commitment to cleanliness, maintenance, and order.  In my view, when renting an apartment you need to find a landlord whose standards for the building match your expectations.  If your prospective landlord is indifferent to maintenance standards that you consider a bare minimum----and you can literally see evidence of that indifference in how the whole building is operated, you can not reasonably expect that the landlord will do anything to maintain the inside your unit to an acceptable standard.

5)  THE LEASE  The lease document itself is often evidence of the kind of landlord you are renting from.  Though it is usually not possible until after you sign it, if you can get a copy of the lease at the beginning of the rental process and see what terms the landlord is inserting you can get a very good sense about your landlord and what it is going to be like living in the building.  In Ontario, there are strict limitations on what a landlord may demand in a lease.  To that end, there are fairly standard form leases and standard clauses that are acceptable under the law.  Has your landlord drafted his/her own lease?  Do the clauses strike you as draconian?  Are there strange clauses or things that just don't seem quite right (i.e. you have to get permission to have guests?)  If circumstances permit, review the landlord's lease or get a copy of it to think about before you sign it.  If in reviewing it you have questions consider calling a lawyer or licences paralegal to review the lease terms.  Again, the point here is that a landlord who is prepared to offer a lease that contains illegal terms is likely to not be concerned about your legal rights, your comforts and your happiness in renting the apartment.

CONCLUSION

Finding a decent apartment is a serious job in an of itself.  Not all landlords are the same and in fact they range from the meticulous serving the luxury tenant to the slumlord who only cares about a rent cheque even as the building is collapsing around the tenants.   You need to think about where on this spectrum you want to be and of course where on this spectrum you can afford to be.  The Residential Tenancies Act imposes the same legal requirements on all landlords but it is simply not realistic to expect the same level of service from all landlords.   The amount of rent that you are paying, or are being asked to pay, is not necessarily a reflection of the service that you can expect.  Even the slumlord will charge luxury prices if he finds a willing tenant.

In this article I haven't mentioned searches of on-line registries, case-law reviews, going to local organizations that deal with tenant issues, as there is a level of investigation that become impractical. However, if you've read this far and you have suggestions of other things that you have done to vet a new landlord I'd be happy to get an email from you so I can update this article (I'll even give you credit!).

Michael K. E. Thiele
Ottawa Lawyer

Monday, 25 November 2013

Landlords: Proving that noise disturbs the tenants so you can evict

How do you know when loud is too loud?  In short, you know it when you hear it.  Does this help you, the landlord, when trying to explain to the Landlord and Tenant Board that the tenant you have served with an N5 (Notice of Termination for Substantial Interference with Reasonable Enjoyment) has indeed bothered other people?

Proving that certain noises are indeed bothering other tenants is the easy part of an application.  Call the complaining tenants as witnesses to testify that they hear "noise", be it music from the stereo, yelling, shouting, screaming, fighting, or even a very loud television, and have them state that they are bothered by the noise and you have established that these particular tenants are indeed bothered.

Unfortunately, that some tenants are bothered, disturbed, and even annoyed, is not actually enough to terminate a tenancy and evict a person.  Just because they hear a stereo, television, foot-steps, a crying baby, an occasional joyous yelp when the Senators score (or I guess that could be a joyous yelp when the Leaf's are scored against!) does not mean that there are grounds to evict the tenant making the noise from his apartment.

When thinking about noise complaints it is important to consider the legal test that the Landlord and Tenant Board is required to apply.  It is set out in section 64 of the Residential Tenancies Act and it provides as follows:

A landlord may give a tenant notice of termination of the tenancy if the conduct of th etenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposess by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.


So, what does this mean in simpler language?  What it does NOT mean is that not just any noise is grounds for eviction.  Music, talking on the phone, television sounds, banging pots, the patter of feet on the floor, a baby crying, and the occasional shouts that someone is home, may not meet the legal test for eviction. 

Note that the legal test states that the conduct must "substantially interfere with ...".  In my experience, this means that the law presumes and allows that tenants, may indeed make noise that disturbs others as well as hear noise that is disturbing to them.  The idea that tenants in a building are entitled to absolute silence is simply not a position that is supported by the law.

So what does "substantially interfere" mean?  Of course, the definition of the word "substantially" should help.  Looking up the word in Black's Law Dictionary (Abridged 6th Edition), gives us this definition:  Essentially; without material qualification; in the main; in substance; materially; in a substantial manner. About, acutally, competently, and essentially

Does this definition help?  Probably not all that much, except that we can understand the phrase "substantially interferes" to mean something significant, that isn't fleeting or minor in nature.  In a way, we are sort of left with "I know it when I hear it".

What factors should go into assessing the quality and substance of noise?  Certainly, it seems to me that "context and frequency" is important.  Are you going to argue that hearing celebration noises for a short while at New Years (midnight) or when Team Canada wins gold that these sounds of jubilation warrant a Notice of Termination?  However, if there is a celebration every night, and the noise is not so much celebration as it is drunken shouting then perhaps the noise is indeed "substantially interfering". 

Aside from context, I think the nature of the building also informs what will be considered substantial interference.  If a tenant chooses to live in an apartment building that is wood frame, no insulation between the floors with beautiful hardwood flooring; then that tenant shouldn't expect the same level of quiet as one would expect in concrete construction.  The nature of the building construction does inform what can reasonably be expected in that building.

The next factor to consider, in deciding whether the noise being complained of, is "substantially interfering" is to consider the character of the person who is making the complaint.   Certainly, there are many noises that "substantially interfere with" reasonable enjoyment of some tenants but which sound would not interfere with the reasonable enjoyment of most other tenants.   Do you, the landlord, measure the impact of the noise as it relates to the person complaining?  Or, do you measure the impact of the noise as against the "model" tenant as determined from an objective perspective?

This last question I think, often figures unconciously into the consideration of what is substantial interference.  Adjudicators will often ask themselves if "they" were subjected to this noise would it be a substantial interference.  When an adjudicator thinks of themselves, and thinks about whether it would bother them, they are thinking about themselves as being representative of a typical and ordinary tenant.   In short, my experience is that the noise being complained about has to "substantially interfere" with the reasonable enjoyment of the ordinary tenant or the "reasonable person".  If the complaining tenant is being hyper-sensitive or intolerant of noise then you can expect to see in an adjudicator's reasons (dismissing your application) references to the reality of apartment living and the natural sounds that one has to expect (and tolerate) when living in an apartment complex.

The nature and quality of noise is so very hard to describe.  Unless you are there to hear it there is very little that one can say that communicates the impact of sound to a third party.  To that end, it is worthwhile, when trying to prove repeated noise problems to have a number of people try to "hear" the noise--especially noise by-law officers.  A broad consensus among a number of people about how loud something is, is much more likely to be accepted by an adjudicator as a basis for terminating a tenancy than the evidence of a single person that is contested by the accused tenant.

Michael K. E. Thiele
Ottawa Lawyer





Wednesday, 6 November 2013

Winter Risks for Tenants & Landlords



This article is intended to help the new landlord as well as the new tenant and provide a reminder to everyone about the risks associated with winter freezing in apartments, apartment buildings and all rental units.

The biggest winter related issues that my clients typically face are problems that arise from freezing pipes that burst and cause floods. The consequent losses can be substantial with many thousands of dollars being spent to repair the damage caused by water as well replacing the items in the rental unit that are destroyed by water.

The point today is to highlight to new landlords that tenants do not automatically assume that they are responsible to shut off outside water taps, drain water from any standing pipes (sprinklers & hoses). Even though storm windows may be "in the shed" or that a certain door should not be closed in winter, or that the clay pots need to be emptied, you must allow for the fact that many tenants will not have the experience to know what to do or alternatively they may not believe that it is their responsibility to do the winter prep or maintenance. Beyond that, it may be prudent to discuss winter maintenance with your tenant or provide a fact sheet about winter use of the property. It may very well be that your tenant is new to the local climate and that they have little experience with the potentially wide temperature swings during a 24 hour period. Tenants who are unfamiliar with the climate may not think twice about opening a window and "forgetting" about it because it feels warm out. These same tenants, in the interests of saving heating costs, may not appreciate that turning off the heat or turning it down really low may cause a part of the apartment to freeze and therefore cause a water pipe to burst.

So, landlords, for your own protection, ensure that the winter maintenance is done and don't presume that the tenant has done it even though it may seem reasonable. Further, make are that the tenants are warned about the local climate and of what constitutes reasonable behaviour in the local climate.

To the new tenant. Be aware that in Eastern Ontario you can not leave windows open for any length of time in the winter. Wildly fluctuating temperatures can freeze an apartment and the pipes, and burst the pipes, even if the window is open just a crack. Be aware that a window that is only open a little bit can spot freeze pipes in the walls around the window and cause an undue amount of damage.

Care should also be taken with the furnace to ensure that you don't turn it off or down too low. In some apartments closing a bedroom door or laundry room door or the back of the house can restrict air circulation enough to freeze a room and the pipes in that room. This can be a problem if you go away for a few days and the air doesn't get to move around the house.

For tenants, the biggest surprise can be that they are responsible not only for the loss of their own property but the landlord or its insurance company can also sue you for the cost of repairs and the losses sustained by other tenants in the building. This is a good reason to have tenant's insurance to cover you for any mistakes that you might make.

On the point of insurance, homeowners or a tenants package, take a close look at the wording and requirements of the policy for holidays and leaving the unit for extended periods of time.  Most insurance policies require the owner or tenant to have a  responsible person enter the unit on a daily basis if the tenant or owner is absent for more than a few days.  Check your own policies to see what the time-line is---it is often 48 hours or less and not the 7 days that many people assume.

Avoiding freezing damage when away from home or the apartment may also be accomplished by turning off the water in the premises at the main and draining the water from the pipes by opening a tap at the lowest position in the premises after turning off the water (once drained close the tap again).

Damage caused by freezing happens regularly and often in Ontario.  It's not always the result of fault--sometimes the furnace breaks or the thermostat gets stuck.  However the freezing happens though, the expense can be substantial.  Take a little time to make sure that your property/apartment has been properly winterized and that you are ready for the below zero temperatures that are just around the corner.

Michael K. E. Thiele
www.ottawalawyers.com

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.