Thursday, 10 March 2016

FIX MY APARTMENT PLEASE: THE LANDLORD'S OBLIGATION

I'm told by some people that my blog is missing a decent article dealing with the issue of repairing broken things in an apartment.   So this is my crack at addressing that shortcoming.

I've received many dozens of questions that focus on needed repairs and fixes in rental units.  The circumstances under which these questions arise are quite frankly fascinating as they reflect what I assume are the intentions of evil genius.   You see, the Residential Tenancies Act, which governs most residential rental relationships between landlords and tenants in Ontario, has a fairly straightforward and unequivocal requirement that landlords are responsible for repairs and maintenance to a rental unit.  This responsibility further comes with the responsibility to pay for the costs of this maintenance or repair and any attempt to negotiate a fancy lease clause shifting the costs to the tenant are simply illegal (hence the earlier evil genius remark).

Before getting into the specific wording of the maintenance obligation it is worthwhile to at least try to preemptively address the tricks that are tried to shift or limit financial responsibility.   To understand why the tricks don't work you need to understand the structure of the Residential Tenancies Act (RTA).  The RTA was drafted in such a way that it is virtually a complete code regulating the relationship between landlords and tenants.  The RTA covers the most important aspects of the relationship between landlords and tenants.  So much so that landlords and tenants, in the residential context, can enter into a landlord and tenant relationship without signing any kind of paperwork (lease) and the balance of power between them will be fairly even.  The reason for this lies in the fact that regardless of what parties (landlord and tenant) agree to, that agreement is void, unenforceable, not worth the paper it is written on, if any of the terms of that agreement/lease is contrary to anything provided in the RTA. 

The fact that illegal clauses are voided is reflected in section 4 of the Residential Tenancies Act.  It is written quite clearly and as far as statutory sections go, it is used regularly to do exactly what it says.  You can look at the section here.

Another thing profoundly significant thing that you need to know, in the context of maintenance and repair issues, is that the RTA not only voids illegal agreements, it makes pre-leasing agreements respecting maintenance void.  What this means is that it is absolutely and utterly impossible to rent an apartment, house, or any residential rental unit in Ontario on an "as is basis".   An example at this stage is appropriate.  Imagine a landlord inheriting a run down old shack of a place.  Instead of knocking it down right away, the landlord decides to rent it out for a few years until he can afford to knock it down and build a dream home.  Recognizing that the old shack has bad floors, broken handrails, rotting cupboards, poor electricity, etc. etc. etc., the landlord says to a desperate tenant that he'll rent him the place for an exceptionally reasonable price on the understanding that the place is rented on an "as is" basis.  The landlord and tenant can agree that any repairs will be done by the tenant and they can explicitly write and sign in their own blood that they understand and agree that the old shack is a dump that the landlord has no intention or obligation to fix up.

Such an agreement, entered into before occupancy, does not offend the conscience of many people.  Adult, competent, free people should be able to enter into contracts.  It is a "free country" after all.   While that is true in many respects, it does not hold true in the case of the RTA.  The RTA imposes a maintenance and repair obligation on the landlord even if the tenant was aware of the state of non-repair or a contravention of a standard before entering into the tenancy agreement.  To read that section take a look here.

At this stage it is worthwhile mentioning some of the philosophical or policy underpinnings of the Residential Tenancies Act.   It is worth thinking about these as it informs the reason for the various sections of the RTA and it informs how the sections have been interpreted by the Landlord and Tenant Board and the Superior Courts of Justice on appeal.

The Residential Tenancies Act is intended to level the playing field between landlords and tenants.  Until the early 1970's when the first residential landlord and tenant act law came into effect, residential tenants occupied rental units at the mercy of the landlords who held all of the power when negotiating leases.  Like commercial leases, residential landlords and tenants could agree to any terms that consenting legal adults could make.   Landlords had the upper hand and could enforce terms on tenants that were onerous.  While in theory tenants could simply move on and rent somewhere else in the face of an unscrupulous landlord the fact is that residential tenants often did not have the kind of mobility, choice, or financial bargaining power that commercial tenants had. 

The inequity inherent in this relationship led to the passage of the Landlord and Tenant Act and a specific sub-part dealing with residential tenancies.  The rules related to residential tenancies changed the playing field completely.  Over several decades various Ontario provincial governments (Liberal, Conservative, NDP) passed different versions of residential landlord and tenant laws and they experimented with rent controls and regulating the residential landlord and tenant relationship.  The ebb and flow of that regulation led to the current Residential Tenancies Act and its predecessor the Tenant Protection Act.

The thrust of the current RTA is to give tenant's security of tenure.  The RTA is structured so that it is impossible to evict a tenant from a rental property unless one of the grounds set out it the RTA applies.  Those grounds are limited--some say severely limited.  The reason that it is difficult to evict a tenant is that the stability of the family relationship, access to work, healthcare, social services, and all of the things that make up a persons life is better if a person has a stable housing situation.  If tenants could be forced to move on the whim of a landlord or for minor or trivial offences it is believed the society is worse off for the instability caused by the lack of security of tenure.

Security of tenure is an exceptionally important concept in Residential tenancies law.   I mention it here because it also informs the duty to maintain and repair a rental unit.  Security of tenure and the ability to live properly in a rental unit means very little if the landlord is permitted to allow a rental unit to fall into disrepair as a inducement to get tenants to leave.  Security of tenure requires that repair and maintenance be an integral part of it so that having the right occupy and remain in a rental unit has real meaning.

So the above is the context in which I approach the legal requirements of maintenance and repair in residential tenancies.  The legal duty is actually captured in short sections of the RTA.   Section 20 of the RTA provides as follows:  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.

The section 20 obligation is a rather serious and all encompassing requirement.   Landlords can not shift the burden of repairs, or minor repairs, or repairs costing less than $10 or any other amount onto tenants.  Landlords must shovel snow, they must repair the outside of the residential complex and they must repair the inside of rental units.  Landlord must even make the repairs if the damage or issue with the property was caused by a tenant.  In many respects the duty to repair and maintain is an absolute obligation.

Now, before we get too carried away with this duty, it is to be noted that while a landlord may be required to fix damage caused by a tenant, a landlord can evict a tenant and get a judgment against the tenant for the cost of a repair where the repair was required because of the negligent or willful conduct of the tenant or the tenant's guests (see section 62 and 63 RTA).

The RTA provides tenants with a simplified application process in which tenants can ask the Landlord and Tenant Board to order a landlord to fix or repair the rental premises.  The RTA provides the tenant with a broad range of remedies, including rent abatement, authority to fix the things and deduct the cost from the rent, reimbursement of expenses flowing from the non-repair, and a broad catch all authority that lets the Board do justice between the parties for any problems that should have been taken care of by the landlord.  It is also worth mentioning that landlords can be held liable for the injuries caused to tenants, occupants or guests of tenants on the property if the injury arose from a lack of repair or maintenance.

WHAT DOES REPAIR OR MAINTENANCE MEAN

Repair means what it sounds like it would mean.  A landlord is required to repair things in a rental unit that are broken.  From door knobs, to shelving, to windows and screens to appliances, fixtures, and everything in between.  Things that are in a rental unit must function as designed.  This does not mean that a tenant may require a landlord to improve something that is in a rental unit.  A tenant might like a modern stove, or fancy windows, or other modern improvement.  However, so long as the old thing functions and is in good repair the landlord is not obliged to upgrade the thing. 

Maintenance is a more subtle issue and one that is not so clearly defined.  A maintenance schedule can vary and until something is broken it is difficult to say that maintenance must be done.  An interesting example and question that I often get relates to duct cleaning.  Must a landlord clean the ducts in a rental unit just because a tenant wants them cleaned?  Some regard duct cleaning as an important maintenance item to be done on a somewhat regular schedule.  Others see no value in it unless there is major construction.  What can a tenant require from a landlord by way of maintenance?

In my view maintenance demands are contextual and there needs to be, in my view, an urgent nature to the maintenance requirement.  For the most part, my view is that regular maintenance allows a great deal of leeway to a landlord and it is difficult to require work to be done on a tenants schedule.  If a tenant wants furnace filters changed every couple of weeks--as a maintenance item, this is unlikely to fly with a landlord.  The maintenance demand needs to be linked to a objectively recognized standard as something that should ordinarily be done.  If the request meets such a standard it can likely be imposed.

HOW TO GET REPAIRS AND MAINTENANCE

For an obligation that appears to be very clear cut, getting a landlord to do work can be very difficult.  Excuses abound--no money, on a schedule, can't get parts, not now--but none of these are valid excuses.  So why can it be so difficult?  The fact is that repairs and maintenance are unending obligations and they can be very expensive and time consuming.  Hence, some landlords hedge and put off things to another day to save money.  Tenants too don't actively follow up because having a repair person or contractor in the apartment  or rental unit can be a pain and nuisance.  Sometimes it is just easier to tolerate non-repair than it is to go the trouble of getting a reluctant landlord to do the work.

A point that I must make in this regard is that tenants must be aware of their obligation to report repair requirements and damage to rental units.  Failure to inform a landlord of a leak, or other damage, may result in damage getting more severe and hence make the tenant liable for not reporting the problem.

There are other articles in this blog that set out strategies for getting repairs done.  From contacting property standards to taking photographs, hiring home inspectors, and getting third party witnesses to inspect the problems, there are many things that must be done to get the reluctant landlord to comply with his obligations under the RTA.  A tenant has the burden of proof in filing against a landlord and proving that there is a problem to the satisfaction of the Landlord and Tenant Board can be a challenge.

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.