What Happens If a Landlord Fails to Maintain a Rental Unit?

A Landlord Is Legally Required to Maintain the Rental Unit and Rental Complex and Do So In a Timely Manner By Providing Reasonably Prompt Attention to Repair Work When Things Break Down. A Tenant May Be Entitled to Compensation If the Landlord Is Slow Performing Maintenance or Repairs.

A Helpful Guide For How to Determine What Are Reasonable Expectations Involving Landlord Maintenance Duties

Residential Lease Document Disputes between a landlord and a tenant commonly arise about repair or maintenance concerns.  There are times when a tenant perceives, perhaps accurately, that a landlord is slow in performing repairs.  Alternatively, there are times when a landlord perceives, perhaps also accurately, that a tenant is unreasonable with expectations for how long some repairs take and for innocent delays that occur while waiting for parts suppliers or contractors.

The Law
Statutory

As per the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 at section 20, a landlord is required to maintain the rental unit and rental complex.  Where a landlord fails to properly maintain the rental unit and rental complex, a tenant may, per section 29 of the Residential Tenancies Act, 2006, initiate the Landlord Tenant Board hearing process whereat the tenant may seek to obtain an Order instructing the landlord to fulfill the maintenance obligation.  Additionally, the tenant may also seek remedies for losses arising from a failure to maintain including the loss of enjoyment; and, in some circumstances, seek compensation for property losses as suffered by the tenant and arising from the failure of maintenance by the landlord.  The various remedies that may be ordered by the Landlord Tenant Board are described in section 30 of the Residential Tenancies Act, 2006.  Specifically, section 20, section 29, and section 30, of the Residential Tenancies Act, 2006 state:

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. 

29 (1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20 (1) or section 161.

2. An order determining that the landlord, superintendent or agent of the landlord has withheld the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfered with the reasonable supply of any vital service, care service or food.

3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.

4. An order determining that the landlord, superintendent or agent of the landlord has harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the rental unit.

5. An order determining that the landlord, superintendent or agent of the landlord has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.

6. An order determining that the landlord, superintendent or agent of the landlord has illegally entered the rental unit.

(2) No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred.

30 (1) If the Board determines in an application under paragraph 1 of subsection 29 (1) that a landlord has breached an obligation under subsection 20 (1) or section 161, the Board may do one or more of the following:

1. Terminate the tenancy.

2. Order an abatement of rent.

3. Authorize a repair or replacement that has been or is to be made, or work that has been or is to be done, and order its cost to be paid by the landlord to the tenant.

4. Order the landlord to do specified repairs or replacements or other work within a specified time.

5. Order the landlord to pay a specified sum to the tenant for,

i. the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach, and

ii. other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach.

6. Prohibit the landlord from charging a new tenant under a new tenancy agreement an amount of rent in excess of the last lawful rent charged to the former tenant of the rental unit, until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

7. Prohibit the landlord from giving a notice of a rent increase for the rental unit until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

8. Prohibit the landlord from taking any rent increase for which notice has been given if the increase has not been taken before the date an order under this section is issued until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

9. Make any other order that it considers appropriate.

(2) In determining the remedy under this section, the Board shall consider whether the tenant or former tenant advised the landlord of the alleged breaches before applying to the Board.

As indicated, section 20, section 29, and section 30, of the Residential Tenancies Act, 2006, combine to provide a duty of maintenance upon the landlord and a means of pursuing remedy in favour of the tenant if the landlord fails to fulfill the duty of maintenance.

Jurisprudence

To understand whether a landlord failed to properly fulfill the duty of maintenance, the tenant must first consider whether the issue of concern is genuinely within the maintenance duty of a landlord. 

Additionally, the tenant must consider whether the conduct of the landlord, such as where the maintenance concern was fulfilled, albeit delayed, so as to determine whether the landlord acted in a reasonable or unreasonable manner.  In this respect, it is imperative that a tenant recognize and appreciate that a landlord is without immediate liability upon the failure of a structural amenity such as a leaking roof or squeeky door, or a utility amenity such as an electrical circuit or plumbing blockage, or a service amenity such as a furnace or air-conditioner, or an object amenity such as a refridgerator or dishwasher.  Instead, a tenant is required to show patience for a reasonable period during which the landlord is making effort to address the maintenance issue.  Said another way, the tenant must allow a reasonable opportunity for the landlord to resolve the problem.  Failure to maintain allegations made prematurely will fail at the Landlord Tenant Board.  This issue was specifically addressed by the Court of Appeal in the case of Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477 (leave for Appeal to the Supreme Court of Canada denied) wherein it was said:

[58]  If the legislature intended an automatic breach of the landlord’s duty to maintain and repair as soon as a service was interrupted, there would be no need for the Board to make a determination as to whether the landlord had breached its obligation. The legislation would instead simply provide that where a service has been interrupted the landlord is in breach of its duty to maintain and repair and provide that the Board “may” award a remedy under s. 30(1) which authorizes a range of remedies including an abatement of rent.

[59]  The tenants’ position that the landlord is automatically in breach of its statutory obligation to maintain and repair even while something is being repaired also offends the legal maxim lex non cogit ad impossibilia: that the legislature does not intend compliance where, for all practical purposes, it is impossible: see Côté, The Interpretation of Legislation in Canada, at p. 479.

[60]  Applying general principles of statutory interpretation, I would reject the tenants’ submission that, when the RTA is properly interpreted, a landlord is automatically in breach of its obligation to repair and maintain under s. 20(1) as soon as an interruption in service occurs.

Abatement Remedies

If a landlord did fail to resolve a maintenance issue within a reasonable time, then the tenant may apply to the Landlord Tenant Board for remedy, including an abatement of rent for the item of concern during the period in which the landlord unreasonably failed to resolve the maintenance issue.  For example, if the landlord was notified of a broken dish washer, and a reasonable repair or replacement would take one week but the landlord took ten weeks to repair or replace the dishwasher, then the tenant should be credited with nine weeks worth of loss of use of the dishwasher.  The principle of abatement was stated in the case of D. S. v. A. N. P. H. I.TST-78547-16 (Re), 2017 CanLII 28680 wherein the Landlord Tenant Board explained:

18.  Abatement of rent is a contractual remedy based on the principle that if you are paying 100% of the rent then you should be getting 100% of what you are paying for and if you are not getting that, then a tenant should be entitled to abatement equal to the difference in value. Here, it was the evidence before me that the monthly rent for the unit was $199.00. Given all of the evidence before me I am of the view that a reasonable lump sum abatement of the rent would be $30.00 for the period in question.

The view that the landlord and tenant relationship involves an exchange of rent for housing and accompanied services and that an abatement of rent is deserved when the landlord fails to fully deliver the housing and accompanied services was also well explained by the Landlord Tenant Board in the case of J. W. v. A. E.TST-14808-11 (Re), 2010 CanLII 95958.  Furthermore, the J. W. case also explained that for an abatement to apply, a tenant must provide notice of a maintenance issue as a landlord is without blame for the failure to maintain that which the landlord was uninformed of; and additionally, that where the landlord is without blame, and without liability by means of an abatement, where the landlord responds to the maintenance issue in a timely manner.  Specifically, the J. W. case said:

10.  In general I would observe that abatement of the rent is the usual remedy awarded to tenants in landlord and tenant matters. It is based on the idea that if you are paying a certain amount of rent for a bundle of goods and services but are not receiving everything you are paying for, then you are entitled to abatement of the rent proportional to the difference between what you are getting and what you are paying for. For the period April 6 to July 18, 2010 there can be no question that the Tenant was paying for screens on his windows and not getting them. As a result, the general principle would support the Tenant being awarded some abatement of the rent.

11.  However, the case law in this area has developed two principles which limit abatement as a remedy. First, the case law supports the proposition that a landlord should not be held financially liable for disrepair he or she was not aware of. Here the Landlord acknowledged that she was informed the screens were missing and the Tenant was complaining in March or April of 2010 so the first limiting principle does not apply to this situation. Second, the principle has developed that where a landlord responds to a disrepair complaint in a timely and efficient manner, no abatement shall be awarded. Given the fact that screens can be replaced and installed normally within days I do not believe it can be said that the screens were installed in a timely manner. The only explanation offered for the delay in installing the screens was that the Landlord was erroneously told by the agent that she legally was not required to do it. In my view the Landlord’s mistake about her legal obligations does not operate as a reasonable justification for the delay and as a result, I believe the Tenant is entitled to abatement of the rent.

As for how much of a rent abatement is deserved, such depends on the nature of the maintenance issue as well as the length of time during which the landlord failed to address the issue.  A few days of undue loss of use of a dishwasher would be a relatively minor inconvenience that would result in little, if any, abatement; however, for loss of use of an entire room, especially a priority room such as a kitchen or bathroom, a substantial abatement may be deserved.

Summary Comment

A landlord holds the duty to maintain the rental premises including the structural amenities, utility amenities, service amenities, and object amenities, as provided within the landlord tenant relationship.  If the landlord fails to maintain the premises, then the tenant may apply to the Landlord Tenant Board for a remedy.  The remedy available to the tenant will be dependent on the harm that arose from the failure to maintain by the landlord; however, for most circumstances involving solely the loss of use of the premises or of an amenity, an abatement of rent will be the appropriate remedy.


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