1. Statutory Duty:
1)
If the area is shared / common, then it's the landlord's duty (though parties can enter into separate contracts for compensation, see more on this below).
"A landlord must keep a rental property in a good state of repair. [...]
A landlord must keep the rental property clean. This includes the lobby, halls, elevator, laundry room, pool, and parking lot or garage."
2)
But if the area is part of the rental unit / leased premises, rulings are actually somewhat divergent, and the outcome will depend on whether or not the adjudicator treats it as "maintenance" (landlord's statutory duty under RTA section 20) or as "ordinary cleanliness" (tenant's statutory duty under RTA section 33).
Most rulings that I've seen do seem to treat it as "maintenance", but I'll present examples of both below, including the Court of Appeal ruling in Miaskowski v. Persaud, 2015 ONCA 758 (CanLII), <https://canlii.ca/t/glzwd> and others.
2. If snow removal / yard care is the landlord's duty, can it be delegated to the tenant?
The landlord and the tenant can enter into a separate agreement whereby the tenant would act as a contractor doing maintenance duties. To be enforceable, this contract or clause has to form a severable obligation and needs to be for separate compensation (see the Court of Appeal for Ontario ruling in Montgomery v. Van, 2009 ONCA 808 (CanLII), <http://canlii.ca/t/26lqx>).
But if the tenant stops performing his contractor duties, the landlord can terminate the maintenance contract, but not the tenancy, since the *statutory* duty for maintenance remains on the landlord. See TSL-91857-18 (Re), 2018 CanLII 86137 (ON LTB), <http://canlii.ca/t/hv4l9>:
"34. Further, the severable contractual obligation cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met. The Tenant would simply be acting as the Landlord’s agent for that maintenance service, the failure of which may be a breach of contract but cannot be a ground for terminating the tenancy."
In a nutshell:
3. Important consideration on liability when entering into a contract with tenants:
Tenant liability insurance would not cover the same risks as commercial general liability insurance would.
Additionally, from Section 6 of the Occupiers' Liability Act:
"Liability where independent contractor6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.Idem(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.Idem(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor. R.S.O. 1990, c. O.2, s. 6."
4. What happens if the yard is part of the rental unit? Does the landlord have to provide 24 hours' notices to do snow shoveling / lawn mowing?
If the Board rules that snow removal / lawn maintenance is part of "ordinary cleanliness" under RTA section 33, it would be the tenant's duty anyway. But this doesn't seem very common, if we search rulings on CanLII.
If the Board rules that it is part of landlord's "maintenance" duties under RTA section 20, I haven't seen rulings answering this question very clearly, but my hunch is that the landlord would likely need 24 hours' notices of entry (see an example in TNL-24828-11 (Re), 2011 CanLII 93148 (ON LTB), <https://canlii.ca/t/fr3h3>), just like he would need notices of entry for other maintenance work (unless it's an emergency), unless perhaps the tenancy agreement allows entries for cleaning the rental unit (under RTA subsection 26(2)) and hopefully specifies that this means doing snow maintenance and lawn care. With that said, you can't just claim in an agreement that this is called "cleanliness" and rely on that clause being upheld (see RTA section 3 and RTA section 4). It may very well be seen as an attempt to circumvent RTA section 27 requirement of 24 hours' notices for maintenance work. I would hope to see more rulings on the subject.
You'll find a lot more information about notices of entry for yard area in this post:
Let's look at some rulings.
_____________________________
I. Tenant's duty (seemingly less common):
"[54] Third, the RTA imposes specific responsibilities on tenants of residential properties in some circumstances. Section 33 of the RTA, for example, provides that tenants are responsible for the ordinary cleanliness of their rental unit, except to the extent that the applicable tenancy agreement requires the landlord to clean it. It is arguable that, in this case, as in Estey v. Sannio Construction Co. (1998), 70 O.T.C. 293 (Ont. C.J. (Gen. Div.))[5], s. 33 of the RTA imposes an obligation on the tenant to remove snow. That said, I note that, in Estey, this finding rested in part on evidence that the tenant had removed snow and ice from the rented property in the past and believed that it was the tenant’s obligation to do so."
_____________________________
2) Estey v. Sannio Construction Co., 1998 CarswellOnt 3711, [1998] O.J. No. 2984, 70 O.T.C. 293, 81 A.C.W.S. (3d) 395
"4 The moving party Sannio has filed the affidavit of Paul Ciccone an officer and shareholder of Sannio. He deposed, and is not disputed, that Behen and Moscato became tenants pursuant an oral agreement making them month-to-month tenants at a monthly rental of $500 plus utilities charges. No other lease terms were discussed. The tenants were responsible for clearing snow and ice on their half of the property. Ms. Behen confirms this in her sworn testimony given on her examination for discovery. On one occasion only in the first year of their tenancy and "as a favour to the tenant", Sannio cleared the snow from their half of the property.
[...]
10. [...] The moving party has placed clear evidence before me from the examination for discovery of Shirley Behen which demonstrates that she, as the tenant, assumed responsibility for snow and ice removal on the property and did not look to the landlord Sannio to carry out this responsibility.
[...]
19. The responding parties submit that conditions of ice and snow are considered matters of "repair" under s. 94 (1) of the Landlord and Tenant Act. They rely upon the authority of Peck v. Victoria Harbour (Village) (1995), 27 M.P.L.R. (2d) 75 (Ont. Div. Ct.), a decision of the Divisional Court which reviewed the cases dealing with the duty of municipal corporations under s. 284 (1) of the Municipal Act to keep bridges and highways in repair. There it was noted that, in certain situations, the failure to sand a road after a heavy snowfall could constitute non-repair. Mr. Kelly was not able to point to any cases in which the proposition had been applied to oblige landlords in residential tenancy situations to clear snow and ice from residential premises or to apply sand and salt, in the absence of any agreement imposing that duty on the landlord.
20. I agree with Ms. Teal's observation that the courts have given an expansive interpretation to the word "repair" in s. 284(1) of the Municipal Act, in part at least, because of the exemption in s. 10(2) of the Occupiers' Liability Act:
10(2) This Act does not apply to the Crown or to any municipal corporation, where the Crown or the municipal corporation is an occupier of a public highway or a public road.
21. In two further cases relied upon by the responding parties courts held that there was liability on the part of the landlord.
The first is Brewer v. Kayes , [1973] 2 O.R. 284 (Ont. Dist. Ct.) a decision of the District Court. There, fuel oil seeped into a well on neighbouring property from property which was in the possession of a residential tenant. The landlord was held liable in nuisance on the theory that an owner-landlord upon whom rests the duty to repair under s. 96 (later s. 94) of the Landlord and Tenant Act may be deemed in sufficient control of the demised premises to be fixed with liability if he knowingly or with means of knowledge allows a nuisance to continue unabated. Such liability exists even though the landlord neither created the nuisance nor received any benefit from it. Gratton, D.C.J. stated in the penultimate paragraph of his reasons that the "defect having been observed from the outset of the tenancy, it seems reasonable to conclude that the defect was caused by the landlords when they altered the [heating] system prior to the tenant assuming possession.".
22. The second case is Blake v. Kensche a decision of the Supreme Court of British Columbia reported in (1990), 3 C.C.L.T. (2d) 189 (B.C. S.C.). There a landlord was held responsible for injuries received by the tenants' infant son who had fallen into an old abandoned well on the premises when the earth around the well opening suddenly collapsed. That was a case, however, in which the landlord exercised a certain degree of control over the activities on the premises in that the tenant required his permission to do repairs. Moreover, the landlord had been told on two occasions that something should be done about the old well. The landlord refused to deal with this potentially dangerous condition on the basis that he could not afford the expense of doing the necessary repairs. On those facts the court held that the landlord was liable as an "occupier" under the provisions of s. 6(1) of the B.C. Occupiers Liability Act which is similar in wording to s. 8(1) of the Ontario Act.
[...]
24. In the first place, removal of snow and ice from residential premises does not come within the meaning of the term "repair" in s. 94. Such activity falls logically within the meaning and intent of s. 94(2) which makes the tenant responsible for the "ordinary cleanliness of the rented premises, except to the extent that the tenancy agreement requires the landlord to clean them".
[...]
26. A landlord's duty to repair under s.94 of the Landlord and Tenant Act has made him an "occupier" under the Occupiers' Liability Act only in cases of nuisance such as the Brewer case where he knew of a dangerous condition and did nothing, or the Blake case where the landlord exercised a certain degree of control over the activities on the premises, would permit repairs by the tenant only with the landlord's permission, and the landlord knew of a dangerous condition and refused to take steps to correct it.
27. In my view, the law does not make a landlord an "occupier" of the premises by virtue of the combined operation of s. 94 of the Landlord and Tenant Act and s. 8 of the Occupiers' Liability Act in the circumstances here. It is not the landlord's responsibility to clear snow and ice on rented residential premises where there is no agreement which requires the landlord to do so. This is particularly the case where the uncontradicted evidence of the tenant is that she always cleared the snow and ice, and never regarded this to be a responsibility of the landlord."
_____________________________
"7. The Tenants rely on the Ontario Court of Appeal decision in Montgomery v. Van 2009 ONCA 808 (CanLII) [hereinafter Montgomery] claiming that the Landlords illegally contracted with them to remove snow and garbage. I distinguish this case from that set out in Montgomery. In Montgomery, the Ontario Court of Appeal identified that the tenant lived in one of several basement apartments of a multi-unit residential complex. The provision in the tenancy agreement vaguely placed the task of snow removal “from their walkway and stairway” on tenants jointly despite the fact that these tenants were not joint tenants but individual lease holders. The lease did not set out specifically what part of the complex’s common walkways the tenant agreed to keep clean and did not stipulate on what schedule she should perform the joint obligation. The provision failed to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.
8. Unlike Montgomery, these Tenants were jointly and severally liable under one lease. There was no vagueness as to which leaseholders were responsible for keeping the snow clear. These students rented a house and all of its parts. I am satisfied the Tenants had an obligation under section 33 of the Residential Tenancies Act, 2006 to maintain the yard, keep the sidewalk clear of snow and debris and to clean up their own garbage which was not properly left at the curb. The Tenants also contractually agreed to shovel the snow. This contractual agreement was not contrary to the decision set out by the court of appeal in Montgomery because as stated above this tenancy was not made up of many different lease holders in a complex but a household of students who had signed a lease for the use of the whole house and yard."
_____________________________
"iv. Snow Removal and Lawn care
13. In their written lease the Tenants agreed to assume responsibility for snow removal and lawn care. The Tenants submitted that the basement tenants should be responsible for 50% of the snow removal and lawn care because the yard is shared. The Tenants assert that the downstairs tenants have not done 50% of the work and therefore the Landlord should have to compensate them for all of the snow removal and lawn care they have performed and the cost of maintaining the lawn mower and other necessary tools.
14. I find that as the written lease provides that the Tenants are responsible for the snow removal and lawn care, the Landlord is not obliged to compensate the Tenants for such work. The lease does not state the Tenants are only 50% responsible for the snow removal and lawn care. Such a lease term is not inconsistent with the Residential Tenancies Act, 2006 (‘Act’) as it relates to the ordinary cleanliness and upkeep of the unit as per section 33 of the Act."
_____________________________
5) Perreault v C/o Sentinel Management Inc., 2021 CanLII 148914 (ON LTB), <https://canlii.ca/t/jp43v>
"17. The removal of snow and general lawn maintenance of an exclusive-use area are in my view ordinary cleanliness obligations, which are the Tenant’s responsibility under section 33 of the Act. Therefore, while Montgomery is separately rejected as an authority in this application, my core finding is that the lawn maintenance and snow removal on exclusive- use areas fall under the Tenant’s obligations under section 33 of the Act, not the Landlord’s obligations under section 20. The delegation of these responsibilities to the Tenant in the lease is not improper."
_____________________________
_____________________________
II. Landlord's duty (seemingly more common):
"[13] In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement. The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations. The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.
[14] This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.
[15] In this case, the provision is inextricable from the tenancy agreement. It does not indicate a definite consideration for the snow removal task separate from the provision of the premises. As well, a consideration of the context leads me to conclude, it is too indefinite to create an autonomous contract for services. The tenant lives in one of several basement apartments of a multi-unit residential complex. The provision vaguely places the task of snow removal “from their walkway and stairway” on tenants jointly. It does not set out specifically what part of the complex’s common walkways this tenant agrees to keep clean and does not stipulate on what schedule she should perform the joint obligation. The provision fails to define this individual tenant’s task clearly enough to create an enforceable contractual obligation.
[16] Landlords cannot fulfill their statutory duty to ensure the prescribed maintenance standards are met by provisions as ill-defined as this one. As I see it, this vague provision, even reading it as did the motion judge is nothing more than an impermissible attempt by the landlord to avoid his statutory obligations. I would conclude the provision is not consistent with the Act and is void."
_____________________________
"18. The Tenant said that Landlord failed to properly shovel snow as of December 19, 2017 to the present. She said he only clears his side of the driveway and it is unsafe for her and her newborn child. The Landlord breached section 20 by failing to properly clear snow from the Tenant’s side of the driveway. "
________________________
"The Landlord’s Refusal to Maintain
16. With respect to the lawn maintenance when the Tenant contacted the landlord through her assistant to notify him that the lawn and landscaping maintenance was not being done in accordance with the lease, the Tenant received an outright refusal from the Landlord. On October 21, 2015, the Landlord wrote saying:
"I am spending my time that I do not have with this nonsense, we are not responsible for these things. If you want to do these things do it on your own time. I always did a lot of extra things like that water issue. Also weeds are not growing now. We will do our best but if you want more stuff do it with your own money……"
17. The Tenant also testified that she felt threatened and bullied by the Landlord’s following emails ent approximately November 2, 2015, in which the Landlord stated: "if you are not happy there you are free to go look for another home to live in, I would rather sell this house than keep dealing with these things that have no end with you, it's very simple you pay the monthly rent and live in the home and enjoy." It appears as though this email was sent in response to the Tenant deducting costs she was claiming from the monthly rent.
18. The Tenant testified that the reason she feels threatened and bullied by the Landlord as he has frequently said to her "if you don't like it, leave!" and “you can stay if you do all the maintenance”. The Tenant testified this feels like a constant threat and leaves the impression that the lease is meaningless to the Landlord.
19. In fact, the Landlord confirmed at the hearing that he doesn't have time to deal with this tenancy and that he would like to reduce the rent to $3,400.00 or $3,500.00 in exchange for the Tenant taking care of everything.
20. It was submitted by the Landlord’s Legal Representative that the Landlord seems sincere and he's trying his best. He does seem sincere. The Landlord may believe that he has done enough in consideration of what he described as things done in addition to the Agreement to Lease. However, I am unable to consider the Landlord’s obligations in that context. A Landlord is obliged to maintain and repair the rental unit throughout the duration of the tenancy.
21. I find that the Landlord failed to meet the Landlord’s maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards.
22. The Tenant has 3 issues with respect to the yard work: the lawn is not mowed regularly, the yard is not maintained and the flowerbeds are not maintained.
23. With respect to the lawn, the Landlord hired a neighbour to mow the lawn. JH lives next-door to the rental unit and his son was hired by the Landlord to cut the grass. JH’s equipment was used. JH cut the grass when his son was not available in the summer and when his son went away to school. JH cut the grass approximately 8 to 10 times himself and believes his son did about the same amount. JH testified that it was only the grass that was cut and no other landscaping done by him or his son. He described the cutting job as not professional but adequate. JH did not keep a record of when the grass was cut but testified that it was usually done on the weekends.
24. The Landlord testified that he and his nephew trimmed the bushes at the commencement of the tenancy, and that this was delayed because of the fence.
25. The Landlord also testified that he cleared the leaves in the fall with the assistance of his nephew.
26. The Tenant submitted some photographs at Tab 20 which show the condition of the yard after the cleanup.
27. With respect to landscaping, the amendment requires more than just mowing the lawn.
28. Landlord submitted that we did not hear enough about the state of the yard to come to a conclusion that the Landlord had failed to meet his obligations under the Act or Lease; that there is not a sufficient evidentiary record before the Board for the Board to make such a decision.
29. Although the Landlord submitted that there was not compelling evidence with respect to the yard maintenance, I do not concur. The evidence of the Tenant that the Landlord only mowed the lawn and did not otherwise maintain it was corroborated by JH. The Landlord’s own evidence was limited to describing the trimming of bushes and one clearing of leaves. The flowerbeds were not maintained. This direct evidence with respect to what was done, together with the Landlord’s own testimony that he has no time for maintenance requests, is enough to come to the conclusion that the Landlord failed to meet his obligations under the Act and Agreement to Lease.
30. The Landlord submitted the Tenant has unrealistic expectations for a professional company to do a spring and fall cleanup and snow removal.
31. The Tenant clarified she’s not requesting a professional company but simply for the Landlord to care for the landscaping as set out in the lease. However, if the Landlord does not have the time to take care of the lawn, flowerbeds, and shrubbery, then it is reasonable to permit the Tenant to hire a lawn care company and to abate the Tenant’s rent by the cost of $432.23.
[...]
Snow Removal
48. The Tenant claims for snow removal. The Tenant testified that she hired a snow removal company to remove the snow for the winter after the Landlord made it clear to her that it was not his responsibility. It is the Landlord’s responsibility to remove snow according to provincial and municipal standards. Given the Landlord’s refusals with respect to maintenance, it is just to abate the Tenant’s rent to cover the cost of the snow removal service at $768.00."
______________________________
"Snow removal
38. The Tenants said the Landlord was responsible for snow removal according to the tenancy agreement. They said they had to pay their neighbour $100 per visit to remove snow and paid for 12 visits during the winter. The Tenants submitted a photo of the snow at the unit in December 2016.
39. In Montgomery v. Van 2009 ONCA 808, the Court of Appeal found that “in order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement” [para. 13]. The Court stated that a landlord is not precluded from contracting with a tenant regarding snow removal tasks however, the agreement must create a severable contractual obligation.
40. The Landlord said that the tenancy agreement requires the Tenants to assume responsibility for snow removal and he also said he did not receive any complaints from the Tenants.
41. The Landlord breached his obligation under section 20 of the Act by failing to arrange for snow removal in compliance with the Act. The Tenants provided a photo in December 2016 which indicates a significant amount of snow at the property. The Tenants did not provide any details about the dates when they had to pay for snow removal and did not provide any receipts for the payments they said they made. The person who removed the snow did not attend the hearing to provide evidence. I am satisfied that the Tenants had to deal with a significant amount of snow based on the photo taken in December 2016 and I am awarding the Tenants $100.00 for December 2016."
______________________________
"Lawn maintenance
3. The Tenants testified that on August 17, 2019, the Landlords notified them by email that the Landlords were no longer going to continue providing their “good will” maintenance of the lawn and that the Tenants, being first floor tenants, would have to assume responsibility for that (exhibit TT#1).
4. The Tenants submitted a copy of the Agreement to Lease (exhibit TT#2) to evidence that no agreement between the parties had been reached about the matter of lawn maintenance.
5. The Tenants testified they did not believe the Landlord can simply transfer the responsibility of lawn maintenance on them. The hired a paralegal and that paralegal sent a letter of notice to the Landlords dated September 5, 2019 to set out the Tenants’ position (exhibit TT#3).
6. Since the Landlords’ August 17th notice, the Tenants affirmed the Landlords have not taken care of the lawn around the rental unit building. They submitted five photos to evidence that the yard has grass over 12 inches high in places, etc. (exhibit TT#4)
7. Submitting their own copy of the Agreement to Lease (exhibit LL#1), the Landlords testified that for the first three years of the tenancy, they took responsibility for the lawncare, but now that they are getting on in the years, they no longer can do so.
8. The Landlords also submitted a recent photograph of the front lawn to show the overgrown state it is in (exhibit LL#2).
9. The Landlords confirmed that they received the position on the grass issue put forward by the Tenants’ paralegal (exhibit LL#3). However, the Landlords testified that the Tenants also have a responsibility for taking care of the rental unit.
10. It is true that according to section 33 of the Act, a tenant is responsible for ordinary cleanliness of the rental unit.
11. However, I am not of the view that maintaining the lawn falls within the Tenants’ responsibility for ordinary cleanliness.
12. I also note that the Agreement to Lease is silent on the issue of lawn care/maintenance under the tenancy.
13. Consequently, by requiring the Tenants to maintain the lawn, the Landlords are transferring their responsibility to maintain a unit in a good state of repair including compliance with housing and maintenance standards to the Tenants. This contravenes section 3 of the Act.
14. Subsection 3(1) of the Act states:
“This Act, … , applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.”
15. This provision means that landlords and tenants cannot simply contract out of their responsibilities.
16. Further, in Montgomery v. Van 2009 ONCA 808, the Court of Appeal found that a landlord cannot fulfill its statutory duty by requiring tenants to perform prescribed maintenance unless there is a severable contractual obligation. This means that if there is an agreement that the Tenants maintain the lawn, there has to be consideration given to the Tenants for this responsibility. In this case, there was no evidence of any contract or any consideration provided to the Tenants for maintaining the lawn.
17. Under this tenancy to date, the lawn maintenance work, including the watering and cutting of the grass, trimming of the hedges, and even the matter of weed control, is therefore the Landlords’ responsibility pursuant to section 20 of the Act.
18. I find that the Landlords failed to meet the Landlords' obligations under subsection 20(1) of the Act to maintain the rental unit. The Landlords will be ordered to resume their responsibility for all lawn maintenance requirements.
19. Whether or not the Landlords end up contracting someone to take on the lawn maintenance work on their behalf will be up to them to decide."
______________________________
"Compensation for Tenants’ Failure to Clear Snow and Maintain the Lawn
15. The Landlord failed to prove, on a balance of probabilities, that the Tenants were required to clear snow from the driveway and mow the lawn, as the written tenancy agreement purports.
16. Although the written tenancy agreement states that the Tenants are responsible for clearing snow and mowing the residential complex’s lawn, the Court of Appeal for Ontario in Montgomery v. Van, [2009] O.J. No. 5933 (C.A.), considered the validity of a provision in a tenancy agreement that required the tenant to clear snow at the residential complex. The property in question was subject to a local property standard that requires properties to be kept free of unsafe accumulations of snow and ice. At paragraph 13 of its decision, the Court of Appeal ruled: “The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.”
17. In this case, the C of T property standards bylaw requires properties to be cleared of snow within 24 hours of a snowfall, and further requires yards to be maintained free of heavy undergrowth and weeds. Because subsection 20(1) of the Act makes the Landlord responsible for maintaining the residential complex, including its appurtenant grounds, and because section 4 of the Act prohibits parties from contracting out of the Act’s provisions in a tenancy agreement, the provision in the parties’ tenancy agreement that requires the Tenants to clear snow and maintain the lawn is void.
18. The Court of Appeal ruled in Montgomery v. Van that parties have the right to enter into a contract, separate from the tenancy agreement,to transfer the landlord’s duty to clear snow, and other landlord responsibilities, to the tenant. No such agreement, however, exists between the Landlord and the Tenants. The Tenants, therefore, were not required to clear snow and maintain the residential complex’s lawn."
______________________________
"f. Snow removal – claims the other resident in residential complex not doing his part regarding snow removal. The Tenant asserts he had to hire people to do the snow removal for $650.00.
[...]
o. Snow removal –Schedule A of the lease provides that the Tenant agrees that he shall keep the driveway and sidewalks at the sides of the premises free of snow and ice.
[...]
17. With respect to the snow removal, I find the provisions of the lease to be contrary to the provisions of the Residential Tenancies Act, 2006, (“the Act”). Normal maintenance of the property is the responsibility of the Landlord per section 20 of the Act. Further, In Montgomery v. Van, 2009 ONCA 808, the Court of Appeal stated as follows at paragraph 13:
. . In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement. The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations. The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.
18. Therefore, the Landlord will be ordered to provide the snow removal in the future. With respect to a remedy for this past winter, although the Tenant claimed $650.00 for to hire people to shovel the snow for the season, he did not submit any evidence to support his cost."
______________________________
"Compensation for damages
There was no dispute that the written tenancy agreement between the parties stated that the Tenant is responsible for lawn care. MS stated that he went over every aspect of the tenancy agreement with the Tenant. MS also stated that this is a standard practice to have a tenant maintain the exterior of a rental unit because the Landlords do not live on site.
AM stated that at the beginning of the tenancy he advised MS that he does not have any equipment to maintain the lawns. According to AM, in the beginning MS attended the rental unit every couple of months with his equipment and together they tended to the lawns.
Section 33 of the Act states the following:
The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.
Although the tenancy agreement stated that the Tenant is responsible to maintain the lawn, section 3 of the Act specifies that the Act applies despite any agreement or waiver to the contrary.
I am not satisfied that maintaining the lawn falls within the Tenant’s responsibility for ordinary cleanliness. Consequently by requiring a tenant to maintain the lawn a landlord is essentially transferring its responsibility to maintain a unit in a good state of repair including compliance with housing and maintenance standards to a tenant. This contravenes section 3 of the Act.
In Montgomery v. Van 2009 ONCA 808 (CanLII) the Court of Appeal found that a landlord cannot fulfill its statutory duty by requiring tenants to perform prescribed maintenance unless there is a severable contractual obligation. This means that if there is an agreement that the tenant maintains the lawn, there has to be consideration given to the tenant for this responsibility. In this case, there was no evidence of any consideration provided to the Tenant for maintaining the lawn. There is a section in their written tenancy agreement regarding rental incentives, however there is a “N/A” listed.
50. Therefore, the Landlords’ claim for compensation for the repair/restoration costs for the neglected backyard is denied."
______________________________
"Snow Removal
41. The Tenant testified that the Landlord has not provided proper snow removal services that are included in the rent that she pays. A copy of the rental agreement that was subsequently submitted post hearing records that the Landlord is responsible for keeping all walkways clear of ice and snow. An email dated November 22, 2019 from Bashar confirmed that a Landlord is responsible for snow removal when snow accumulates 5cm or more.
42. The Tenant in her application alleges that on November 11/2019, November 14/2019, January 18/2020 January 20/2020, February 2/2020, February 6/2020 and on February 24/2020 that there was snow falls and the landlord had not adequately removed snow.
43. The Landlord’s Legal Representative stated that the Landlord has a general agreement with someone to come and shovel the walkway when snow accumulated and had no received any other complaints from the other Tenant over snow removal.
44. The Tenant is seeking a 15% rent abatement of rent for the alleged inadequate snow removal services.
45. The Tenant had not provided documentary evidence that there was snow accumulation of 5cm or more on the dates specified and/or that at no time on those dates had the Landlord had not kept all walkways clear of ice and snow. No abatement is awarded."
______________________________
"T 6
24. The Tenants alleged that the Landlord refused to remove snow from the walkway in front of the unit. There is also a dispute between the parties as to who should be responsible for lawn mowing.
25. I note that paragraph 10(k) of the tenancy agreement states that it is the Tenants’ responsibility to “Maintain the exterior vestibule, stairwell and landing clear and free of any and all debris including snow and ice during the winter season; along with driveway where you park.”
26. Section 20 of the Act states that Landlords are responsible for the maintenance of the property. Section 33 of the Act states that the Tenants are responsible for the ordinary cleanliness of the rental unit. That ordinary cleanliness obligation does not extend to maintenance of the yard or snow removal.
27. In Montgomery v. Van 2009 ONCA 808 (CanLII), the Ontario Court of Appeal stated that a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, but a landlord can contract with a tenant to perform maintenance services, so long as that contract is severable from the lease.
28. For it to be a contract, there must be consideration separate from the tenancy. In order for the contract to be severable, it must be entirely unrelated to the tenancy. In this case, there is insufficient evidence of a severable contract between the parties which is unrelated to the tenancy or that there is consideration separate from the tenancy.
29. I am therefore satisfied that the Landlord is responsible for the maintenance of the yard and the snow removal.
30. Based on the exchange of letters between the parties, I am satisfied that the Tenants have been doing yard maintenance and snow removal and were expecting some compensation from the Landlord.
31. However, absent evidence of a separate contract, I would consider the Tenants’ efforts as voluntary. There is no agreement between the parties that the Tenants would be compensated and so a request for compensation after the fact is not reasonable in this case.
32. As there is now a new landlord who is not named as a party in this application, the Tenants will need to file a new application naming the new landlord if the new landlord fails to maintain the property in accordance with the Act."
_____________________________
"46. With regard to lack of snow removal, section 26(1)(5) of Ontario Regulation 517/06 of the Act requires the removal of unsafe accumulations of ice and snow. In the Court of Appeal decision Montgomery v. Van 2009 ONCA 808, the Court recognized that landlords and tenants may enter into a contract, severable from the tenancy agreement and with consideration, for snow removal.
47. There is no evidence before me of any contract regarding snow removal. I accept the evidence of the Tenant regarding lack of snow removal. The evidence was detailed and the Tenant contacted the Landlord by text message to request snow removal. The Tenant is awarded $50.00 each for the three dates identified in paragraph 42 where snow was not removed ($150.00)."
_____________________________
"7. The Landlord testified at the hearing that he is not responsible for maintaining the residential complex’s common areas. The Landlord asserted that the tenants are responsible for maintaining the residential complex in a state of ordinary cleanliness.
8. I disagree with the Landlord’s assertion.
9. The Tenant is one of approximately 12 residents at the residential complex. Each resident rents and occupies a bedroom. The residential complex’s kitchen, living room and bathroom are common elements, shared by all residents.
10. Although section 33 of the Act requires tenants to maintain their rental units in a state of ordinary cleanliness, the duty to maintain the residential complex, including the common elements, rests with the Landlord. Subsection 20(1) of the Act requires the Landlord to provide and maintain a residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.”
11. The Landlord is not permitted to transfer his duty to maintain a residential complex to the tenants. Section 3 of the Act states that the Act applies to rental units in residential complexes “despite any agreement or waiver to the contrary.” In Montgomery v. Van, [2009] O.J. No. 5933 (C.A.), the Ontario Court of Appeal determined that a landlord may not transfer his duty to maintain a residential complex to a tenant, as part of the tenancy agreement. I therefore find that, in this case, the Landlord is required to maintain the residential complex’s common elements, but has failed to do so for the period June 2015 to September 2015."
______________________________
"2. The rental unit is a house. There is an in-ground swimming pool in the back yard.
[...]
Front lawn damage
12. The Landlord’s claim that the Tenants negligently caused undue damage to the front lawn of the rental unit is dismissed.
13. According to section 33 of the Act, a Tenant is responsible for ordinary cleanliness of the rental unit.
14. Although the tenancy agreement states that the tenants agree to maintain the lawn reasonably, section 3 of the Act specifies that the Act applies despite any agreement or waiver to the contrary.
15. I am not of the view that maintaining the lawn falls within the Tenants’ responsibility for ordinary cleanliness. Consequently by requiring the Tenants to maintain the lawn the Landlord is transferring its responsibility to maintain a unit in a good state of repair including compliance with housing and maintenance standards to the Tenants. This contravenes section 3 of the Act.
16. In Montgomery v. Van 2009 ONCA 808 the Court of Appeal found that a landlord cannot fulfill its statutory duty by requiring tenants to perform prescribed maintenance unless there is a severable contractual obligation. This means that if there is an agreement that the Tenants maintain the lawn, there has to be consideration given to the Tenants for this responsibility. In this case, there was no evidence of any consideration provided to the Tenants for maintaining the lawn.
17. This claim is dismissed."
_____________________________
"29. Section 20 of the Act states that Landlords are responsible for the maintenance of the property. Section 33 of the Act states that the Tenants are responsible for the ordinary cleanliness of the rental unit. That ordinary cleanliness obligation does not extend to maintenance of the yard such as weeding or fertilizing.
30. There is no question that section 20 of the Act makes it the Landlord’s responsibility to repair and maintain the rental property. The Landlord relies on the lease signed by the parties on July 18, 2016, in which the Tenants, as lessees, covenanted to maintain the property under articles 8 and 11.
31. The evidence is that the Tenants refused to sign the renewal lease for 2017-2018 because they disagreed with those terms and the tenancy continued on a month to month basis without a new or renewal lease.
32. In Montgomery v. Van 2009 ONCA 808 (CanLII)[2], the Ontario Court of Appeal stated that a landlord cannot assign responsibility for maintenance to a tenant by way of a lease agreement, but a landlord can contract with a tenant to perform maintenance services, so long as that contract is severable from the lease.
33. For it to be a contract, there must be consideration separate from the tenancy. In order for the contract to be severable, it must be entirely unrelated to the tenancy. In this case, there is insufficient evidence of a severable contract between the parties which is unrelated to the tenancy or that there is consideration separate from the tenancy.
34. Further, the severable contractual obligation cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met. The Tenant would simply be acting as the Landlord’s agent for that maintenance service, the failure of which may be a breach of contract but cannot be a ground for terminating the tenancy."
______________________________
"31. In the context of clauses 19 and 39 of the lease set out above, clause 19 created a genuine and severable contract between the Landlord and the Tenants requiring the Tenants to properly maintain the lawn, garden, driveway, sidewalks, and common areas. There was specific consideration payable to the Tenants for the tasks. As with any such separate employment contract the Landlord was entitled to end it when she did. That means that as of August 31, 2013, the Landlord became responsible for those tasks; the Tenants did not have to do anything.
32. In contrast, clause 39 of the lease does not create a similar severable contract between the Landlord and the Tenants. It is a general clause only and similar to the one the Court of Appeal was dealing with in Montgomery v. Van.[2] This means that the Landlord was responsible for ice and snow clearance throughout the tenancy and lawn maintenance after August 31, 2013."
______________________________
"13. Given that this letter was issued to the Landlord on February 26, 2019, I am satisfied that this supported the Tenants position regarding poor snow removal and ice build-up continued up to February 28, 2019. Although, the Landlord submitted that there was a particular area within the community that had ice build-up due to an artisan well, in accordance with section 24.1 of the Town’s By-Law, the Landlord must clear snow and ice from the roadways. Failing to do so for any reason amounted to a breach of the By-Law, sections 20 and 161 of the Act."
______________________________
19. Given that the shed is part of the rental unit and can only be entered through the Tenants’ part of the rental property, the Landlord has to give a 24 hour Notice in writing when she wants to access the shed, and once this notice is provided, the Tenants must provide access during the time frame mentioned the Notice, I will comment on the reasonableness of the time of entry later on in these determinations/reasons.
20. With regards to the usage of the garden, the Landlord is stating in her application that in addition to the Tenants’ dogs are soiling and digging up the grass and the Tenants are ruining the landscaped garden by adding their own plants.
21. The rental agreement requires the Tenants to cut the grass and remove the snow. I find that the garden and also the driveway/path are part of the residential complex and part of the services and facilities provided in the tenancy agreement, such as a laundry facility, as shown in Interpretation of the Act, section 2 “services and facilities”, which has to be maintained by the Landlord.
22. I find that this duty to maintain pursuant to section 20 to the Act can only be contracted out to a tenant by a special contract/agreement. Here the Landlord is sending a mixed message, as she seems to want to maintain the garden given that she is watering the lawn and plants in the summer and requesting access to winterize, but then is contracting out the mowing part, which, without a special agreement, does not comply with section 20 of the Act. JV seems to want to mow the lawn, and even has his own lawn mover; however his gardening efforts do not seem to live up to the Landlord’s standards.
23. Therefore I find it reasonable under the circumstances that the Landlord should fulfill her obligation under section 20 of the Act, and mow the lawn, if that is what they wish to do, and also winterize the garden, which is too late for this season, after giving the required 24 hour written notice."
______________________________
"1. The issue in this application is whether or not the Landlord is responsible for removing the snow that accumulates between the resident’s/tenant’s cars in the apartment building parking lot.
2. The facts of this case are not in dispute. The Landlord has a contract with a snow removal/snow plow company. That company plows the accessible areas of the parking lot after any significant snow fall. However, the area between the resident’s cars is not plowed or cleared of snow.
3. The Landlord argues that they are not responsible for removing the snow between the resident’s parked cars. The Landlord is concerned about potential liability for damage to cars if they clear snow from the tight, limited area between the parked cars.
4. The Tenants argue that snow removal between the parked cars is part of the Landlord’s responsibility under their general snow removal obligations.
5. The Tenants, as the applicants, have the burden of proving the claim in the application. Other than a general statement that snow removal is the Landlord’s responsibility, the Tenants provided no evidence to support their position. The Tenants did not provide any maintenance standard or by-law which supports their position that the Landlord is responsible for removing the snow between parked cars.
6. The Residential Tenancies Act, 2006 (the 'Act') does not specifically mention snow removal responsibilities or obligations.
7. The Landlord’s general maintenance obligations are set out in section 20 of the Act which states:
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.
(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.
8. Although the Tenants did not provide any by-laws at the hearing, I am aware that the Barrie property standards by law 2011-138 mentions snow removal.
9. Section 9.1 of the by law states: “Steps, walks, ramps, driveways, parking spaces and similar areas of a yard shall be maintained so as to afford safe passage under normal use and weather conditions”.
10. Section 9.2 of the by law states: “Accumulations of ice and snow shall be promptly removed from all main entrances and exits of occupied buildings”.
11. Section 9.1 could be interpreted broadly so that maintenance of the areas set out would include snow removal. However, the addition of section 9.2 to the by-law suggests that the removal of accumulations of ice and snow does not extend to all of the areas set out in section 9.1. If that was the intention, then it would have been specified in section 9.2.
12. In my view, section 9.1 deals with more general maintenance or repair of the areas listed so they are free of pot holes, large cracks, uneven paving or other defects. It does not deal with the specifics of snow removal from those areas. The more specific snow removal obligation is set out in section 9.2.
13. Therefore, the Barrie property standards by law 2011-138 does not clarify whether or not the Landlord is responsible for snow removal between the parked cars.
14. The Landlord stated that the entire lot could be cleared of snow as long as there are no cars in the lot. The plow can access the entire lot if no cars are present. However, when cars are parked in the lot, the plow must go around the cars to avoid damaging them.
15. There have been a few occasions in the past when the entire lot has been cleared of snow. When too much snow piles up on the sides of the lot, the snow removal company must bring in trucks that take the snow away. This is arranged in advance with the Landlord. Residents have co-operated and moved their cars out of the parking lot when they were informed of the exact date and time the snow removal company was coming to take away the piled up snow.
16. However, the problem is with co-ordinating this process every single time it snows. Although the Tenants in this application may be willing to remove their car from the parking lot every time it snows, other residents may not be as willing.
17. This order applies only to the parties in the application. I cannot issue an order directing the tenants from all the other units in the building to move their cars. They are not a party to the application.
18. To remove all the snow in the entire parking lot, the Landlord would have to rely on the willingness and co-operation from all the other tenants in the building to remove their vehicles from the lot at the time the snow plow arrives to clear the lot.
19. Yet, that exact time is usually not known since the snow removal company has multiple contracts and multiple properties to clear in any given day.
20. There are over 150 units in this building so the Landlord would have to co-ordinate with multiple tenants.
21. To further complicate the issue, the building is located on a main street where parking is prohibited during certain hours and there is only paid, metered parking during the permitted hours. The Landlord stated that many residents would not be willing to move their cars to the paid street parking every time it snows.
22. If I were to issue an order requiring the Landlord to remove snow from the entire parking lot, including between parked cars, I cannot see how the Landlord can ensure that they can comply with that order. What if some residents refuse to move their cars, are away on vacation or sick and cannot move their car? What if there is not enough space between the cars that are left behind on the lot to get a plow, a snow blower or even a person with a shovel around or between the cars?
23. The Ontario Court of Appeal in Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477) has determined that a contextual approach is necessary in determining whether or not a landlord has breached their maintenance obligations under section 20 of the Act. That approach involves a consideration of the “entirety of the factual situation” before determining that a landlord is in breach of their maintenance obligations.
24. The Onyskiw case also refers to “the legal maxim of lex non cogit ad impossibilia: that the legislature does not intend compliance where, for all practical purposes, it is impossible.”
25. The Landlord cannot remove snow from areas of the parking lot that are not accessible.
26. Given the context of this case and the factual situation set out above, the Landlord is not in breach of the maintenance obligations in section 20 of the Act. The obstacles in the parking lot (other resident’s cars) are not within the direct control of the Landlord. The Landlord has acted reasonably in removing snow from the areas of the parking lot that are accessible."
______________________________
"Snow Removal
35. With respect to the snow removal, I accept the Tenant’s evidence that there was inadequate snow removal services on the property, as corroborated by photographs #28 to #52 submitted by the Tenant. I accept the Tenant’s evidence that she had to shovel the snow and clear a path for her car throughout the winter. I accept the Tenant’s evidence that she got “stuck” on several occasions. I accept that the Tenant had severe arthritis and suffered excruciating pain due to her constant shovelling. The Tenant notified the Landlord by several text and email messages between December 2017 and April 2018.
36. The Landlord asserted that snow removal has been done by the tenant at apartment #3, referring to a handwritten letter by said tenant dated August 29, 2018 which stated: “I assisted with the snow removal in the last 3-4 years”. The Landlord also asserted that the Tenant was responsible for snow removal in front of her unit, referring to paragraph 1 (b) of the “Tenant Rules and Regulations”, which stated:
The Tenant shall:
To keep the sidewalk surrounding the premises, hallways, balconies, fire escapes or fire routes, free and clear of all obstructions, including snow within 24 hours of a snowfall.
37. The “Tenant Rules and Regulations”, which delegate snow removal to the Tenant, contravenes Section 20 of the Act. The Landlord’s maintenance obligation under Section 20 of the Act extends to the entire residential complex, including the rental units and the common areas. The Landlord is responsible for the general maintenance of the grounds of a complex, which includes shovelling the snow. The Tenant’s only obligation is that of “ordinary cleanliness”. Any provision contrary to the Act or regulations will be void. I therefore find that the provision in the “Tenant Rules and Regulations” delegating snow removal to the Tenant, is void. The Landlord cannot rely on it to justify the lack of snow removal.
38. The Landlord’s assertion that he has assigned another tenant the task of snow removal is not adequately supported by the August 29, 2018 handwritten letter which is hearsay and inherently unreliable. Even if I accept the contents of the handwritten letter, I cannot find the other tenant’s “assistance” with the snow removal, sufficiently discharged that Landlord’s obligations under Section 20 of the Act. There was no evidence that the other tenant’s assistance with snow removal constituted regular, efficient, reliable and adequate snow removal for the residential complex. The Tenant’s photographs certainly show that there was no regular or adequate snow removal service."
______________________________
"34. The parties Agreement stated that the Tenants were responsible for the exterior maintenance for the rental unit, namely lawn care and snow removal. There was no dispute that for the first year of the tenancy, the Tenants took care of this maintenance. The Tenants assert that the Landlords were not entitled to relieve themselves of this obligation.
35. In support of their assertion, the Tenants relied on Montgomery v. Van, 2009 ONCA 808 (CanLII). In this decision the Court of Appeal held that a landlord cannot assign responsibility for maintenance to a tenant simply by way of a lease agreement, although a landlord can contract with a tenant to perform maintenance services. The Court said in part at paragraphs 13 to 14:
In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement…. it cannot be a term of the tenancy that the tenant complete snow removal tasks.
This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the landlord’s claim over against the tenant in contract.
36. I am bound by this decision of the Court of Appeal. In this matter, the parties Agreement relating the Tenants providing exterior maintenance did not amount to a contractual obligation severable from the tenancy agreement. The Tenants received no consideration for providing this service. Consequently, the Landlords have unlawfully assigned this obligation to the Tenants. Therefore, I find that the Landlords breached their obligations pursuant to section 20 of the Act by failing to address exterior maintenance at the rental unit."
______________________________
______________________________
Other issues:
"7. The Tenants allege that the Board Member was required to apply the legal principle originating from the Ontario Divisional Court, Montgomery v. Van in paragraph 48 and 49 of the reasons.
8. It is the Tenants’ duty not only to provide the Board with the decision but with explanations on why the facts in the decision are similar to the case at bar and why the legal principle should be applied. In viewing the Tenants’ book of evidence, the Tenants did not submit the Montgomery v. van decision.
9. The Board Member referred to a Board’s decision SWT-31559-12 submitted by the Tenants and correctly and reasonably determined and I cite “the decision does not state if the tenants agreed to do this work in their agreement.” According to the Board member’s decision, the Tenants agreed to make simple repairs. The Tenants did not repair the toilet and were required to pay more for the excess water consumption Therefore, the Board Member found that the non-binding decision was not sufficiently similar to the case at bar. There is no serious error of law."
______________________________
"44. Whose responsibility was it to maintain an adequate salt level in the Water Softener?
45. The Landlord’s responsibilities are set out in Section 20 of the Residential Tenancies Act, 2006 (the “Act”):
LANDLORD’S RESPONSIBILITY TO REPAIR --- (1) A landlord is responsible for providing and maintaining a residential complex, including rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
46. The Tenant’s responsibilities under the Act are set out in Section 33 (for ordinary cleanliness) and Section 34 (for repair of undue damage).
47. The responsibility to maintain the water supply (including maintaining the salt level for the Water Softener), is neither “ordinary cleanliness” nor “undue damage” and falls squarely within the Landlord’s maintenance obligation under Section 20 of the Act.
48. In Burt Dozet Management Inc. v. Goharzad, [2001] O.J. No. 695, the Divisional Court stated that the responsibilities of mobile home parks with respect to maintenance standards (maintaining supply of potable water that is clean and bacteria-free) did not differ from those imposed on landlords of other residential premises. The court stated:
There is no material distinction between the responsibilities imposed on landlords under s. 24 of the Tenant Protection Act (TPA) and under s. 110 of the TPA relating to Mobile Home Parks, nor between the maintenance standards specified in ss. 10(5) and 31.31(1) of O. Reg. 198/98. Both require the supply by the landlord of potable water. Both apply equally to mobile homes which come within the definition of residential complexes under s. 1(b) of the TPA (see also s. 154 TPA)
49. Subsection 2(1) and section 16 of the Act provide:
2.(1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.
16. Subject to section 181 [related to mediated settlements], a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void.
50. Section 11 (j) of the Tenancy Agreement purports to transfer to the Tenants, the Landlord’s statutory responsibility of maintaining the water supply, and in particular, of monitoring and keeping the salt level for the Water Softener at adequate level at all times.
51. By providing that the Tenants are responsible for maintaining the Water Softener, Section 11 (j) of the Tenancy Agreement conflicts with the Act, which places that responsibility squarely on the Landlord.
52. While a landlord may contract with a tenant to perform its maintenance obligations, any such contractual obligation must be severable from the tenancy agreement. Otherwise, such contractual obligation provided within a tenancy agreement is void under Section 16 of the Act, being inconsistent with the Act.
53. I have reviewed the Tenancy Agreement and conclude that Section 11 (j) is inextricable from the tenancy agreement itself. There is no consideration provided to the Tenants for the maintenance of the Water Softener, separate from the provision of the premises. There is no autonomous contract for the Tenants’ provision of services to maintain the Water Softener.
54. I find therefore that Section 11 (j) of the Tenancy Agreement, transferring the obligation of maintaining the Water Softener to the Tenants, is an impermissible attempt by the Landlord to contract out of its statutory obligation under Section 20 of the Act. I find that it is inconsistent with the Act and is void.
55. In reaching this conclusion, I am guided by the analysis provided by the Ontario Court of Appeal in Montgomery v. Van [2009] O.J. No. 5933 (Ont. C.A.), at paras. 13 – 14:
In order to be effective, a clause that provides that a tenant will provide snow removal services must constitute a contractual obligation severable from the tenancy agreement. The reason such a clause must be able to stand alone as an enforceable contract is because s. 16 of the Act voids provisions of tenancy agreements that are inconsistent with the Act or Regulations. The Act and Regulations make clear that in the landlord and tenant relationship, the landlord is responsible for keeping the common walkways free of snow and ice. Therefore, it cannot be a term of the tenancy that the tenant complete snow removal tasks.
This does not mean that the landlord cannot contract with the tenant as a service provider to perform snow removal tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation.
56. I find that the Landlord breached its statutory maintenance obligation under Section 20 of the Act, by failing to monitor and keep the salt level for the Water Softener at adequate level during the tenancy. This finding is pursuant to the Tenants’ T6 Application.
57. However, I find no basis for the Tenants’ T2 Application. I did not receive compelling evidence to persuade me that the landlord entered the unit without permission, or harassed or threatened the Tenants, or seriously interfered with their reasonable enjoyment. The Landlord did not withhold or interfere with the supply of water. I find that the water issue was simply a maintenance issue."
______________________________
"22. The Tenant also proved that the Landlord failed to meet his maintenance obligations by failing to maintain the property’s common elements in a state of ordinary cleanliness.
23. It is important to recall that the Tenant’s rental unit is a furnished bedroom, and that the living room, kitchen, bathroom and laundry facilities represent the residential complex’s common elements, which are to be shared with other residents at the property.
24. While section 33 of the Act requires the Tenant to maintain only the rental unit, and not the residential complex, in a state of ordinary cleanliness, Schedule “A” of the written tenancy agreement purports to require the Tenant to maintain the entire rental property in a “clean and in a sanitary condition.” This provision, however, cannot permit the Landlord to derogate from, or otherwise ignore, his duty to maintain the residential complex, in accordance with subsection 20(1) of the Act.
25. In Montgomery v. Van, [2009] O.J. No. 5933 (C.A.), the Court of Appeal for Ontario determined that a provision of a tenancy agreement, which purported to require the Tenant to clear snow in accordance with a local property standard, was void, because the provision attempted to contract out of the Landlord’s duty to maintain the property. The Court of Appeal noted in its decision that the Act prohibits any provision in a tenancy agreement that is inconsistent with the Act, including a provision that seeks to transfer a landlord’s obligation to maintain the property. The Court of Appeal held that, in order to transfer a responsibility under the Act, a landlord and tenant would have to enter a separate contract that was not a tenancy agreement. In this case, no such separate contract to clean the residential complex’s common elements exists between the Landlord and the Tenant.
26. Subsection 20(1) of the Act requires the Landlord to maintain the residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards”, including the City of Toronto’s property standards by-law, which requires the Landlord to maintain floors and floor coverings “in a clean and sanitary condition and free from holes, stains, rubbish and debris.”
27. In this case, the Tenant submitted photographs of the residential complex’s common areas, showing that the washroom and floors in the kitchen were not maintained in a clean and sanitary condition, or free from stains. I therefore find that the Tenant proved, on a balance of probabilities, that the Landlord failed to comply with a local housing standard by failing to maintain the residential complex’s washroom and kitchen floor in a state of cleanliness and free from stains."
______________________________
29) SWL-22892-11 (Re), 2011 CanLII 82073 (ON LTB), <https://canlii.ca/t/fpfl1>
"15. The first document is an agreement dated December 21, 2009, in which the former landlord agreed to plow the parking lot, provide salt for de-icing and provide shovels for the walkways, and be responsible for garbage removal from the garbage bin used by all three units, A, B and C.
16. The second document is an agreement dated January 1, 2010 that was made after the Landlord showed the first agreement to his lawyer. The agreement dated January 1, 2010 modifies some of the terms contained in the earlier agreement but is silent on the issues of snow and garbage removal and does not indicate that it replaces the earlier agreement. For the duration of his ownership of the residential complex, the former landlord performed the snow and garbage removal as was agreed on December 21, 2009, by plowing the parking lot, providing shovels and salt to the tenants, and by moving all the garbage from the common bin to the curb for municipal garbage collection every week.
17. Considering the content of the documents and the conduct of the former landlord, I find that both documents form the tenancy agreement and must be read together. The former landlord was responsible for snow removal in any event as part of his maintenance obligations under the Act, and he was also responsible for garbage removal as described in the agreement made on December 21, 2009.
18. The Landlord purchased the residential complex in August 2010. With that transaction, the Landlord assumed all of the responsibilities of the former landlord. The fact that the agreement dated December 21, 2009 may not have been disclosed during the sale transaction is a matter for dispute between the current and former landlords, but does not limit the services the Tenant is entitled to receive.
19. Since purchasing the residential complex in August 2010, the Landlord has refused to perform the garbage removal and snow removal that the former landlord performed as a matter of course, other than permitting tenants to take bags of salt from his variety store. The Landlord has purported to make the tenants responsible for emptying the common garbage bin and removing the snow from the parking area and walkways.
20. The Landlord’s maintenance obligations under the Act include snow removal for the residential complex, including the parking area and walkways, regardless of the limitation contained in the agreement dated December 21, 2009. The Landlord is not authorized to unilaterally delegate this maintenance obligation to the tenants. I am guided by the decision of the Ontario Court of Appeal in Montgomery v. Van, 2009 ONCA 808. The Tenant is entitled to an order requiring the Landlord to perform the work.
21. Under the terms of the tenancy agreement, the Landlord is also responsible for removing the garbage from the common garbage bin. As a result of the Landlord’s non-performance, garbage accumulated, smelled foul and attracted rodents to the residential complex, which represents a breach not only of the tenancy agreement but also of the Landlord’s maintenance obligations under the Act. The Landlord cannot discontinue the garbage removal service without reducing the rent in accordance with the Act, which he has not done. The Tenant is entitled to an order requiring the Landlord to perform the work."
______________________________
30) SWL-99345-17 (Re), 2017 CanLII 28744 (ON LTB), <https://canlii.ca/t/h3r6k>
"12. As the Ontario Court of Appeal found in Montgomery v. Van, in order to be effective, a clause that requires a tenant to provide maintenance services must constitute a contractual obligation severable from the tenancy agreement itself.[1] Such a clause must be able to stand alone as an enforceable contract. Section 4 of the Act provides that provisions of tenancy agreements that are inconsistent with the Act or Regulations are void. The Act and Regulations make clear that in the residential landlord and tenant relationship, the landlord is responsible for maintenance of the residential complex. Therefore, it cannot be a term of the tenancy that the Tenant maintain the wood stove or any other part of the rental unit.
13. This does not mean that a landlord cannot contract with a tenant as a service provider to perform maintenance tasks. It does mean, however, that the clause under which the tenant agrees to provide such services, even if included in the same document as the tenancy agreement, must create a severable contractual obligation. The severable contractual obligation, while it cannot transfer the landlord’s statutory responsibility to ensure maintenance standards are met, may support the Landlord’s claim over against the Tenant in contract.
14. In this case, the provision relating to maintenance of the wood stove, as well maintenance of the rental unit generally, is inextricable from the tenancy agreement. The contract also does not indicate a definite consideration for these maintenance duties that is separate from the provision of the premises. I therefore find that the provisions of the tenancy agreement that purport to delegate maintenance of the rental unit to the Tenant are inconsistent with the Act and therefore void.
15. Throughout the tenancy, neither party properly maintained the woodstove. On February 11, 2017, a prolonged lack of necessary cleaning resulted in a fire that effectively rendered the rental unit uninhabitable. Much of the Tenant’s personal property was damaged by the fire and she has resided with her father ever since. At the hearing, she submitted numerous photographs of her property damaged or destroyed by the fire or the associated smoke fumes.
16. At the hearing, the Tenant submitted an Incident Report from the Huron East Fire Department that determined that the cause of the fire was a blocked chimney. The report concluded that the fire started in the chimney and caused smoke to build up in the residence. The author of the report noted the unsafe use of plastic containers used to hold ashes from previous cleanings and cautioned the Tenant against leaving these containers in the residence. The Fire Department also concluded that the Tenant and the other occupants could not remain in the house due to the toxic smoke fumes and the compromised stove. M.B., the Fire Chief, estimated the cost of the damage at roughly $5,000.00, with most of the damage to the Tenant’s property and some damage to the structure of the residence. The Landlord did not contest any of this evidence.
17. While the Landlord bore the responsibility to maintain the rental unit, including the woodstove, there was no indication that the Tenant ever notified her of any problem with the stove until the fire on February 11, 2017. Other than her apparent removal of ashes from the stove, there was no evidence that she took any steps to maintain the stove herself or to prevent the possibility of a fire. This is not say that she had a duty to maintain the stove under the Act, but that she did have a positive duty to prevent a foreseeable threat to her safety and her property.
18. Throughout the tenancy, the Tenant would have been aware that the chimney was not being cleaned or maintained at all. I find that she was reasonably aware that this would have represented a serious safety issue since her repeated applications for contents insurance were denied based purely upon the presence of the woodstove. As well, that the Landlord went out of her way to specifically deny responsibility for the stove’s maintenance in the tenancy agreement should have reasonably indicated to her that the Landlord intended to avoid any liability associated with this appliance.
19. Despite this reasonable knowledge that the woodstove could result in a safety risk, particularly if it was not being maintained, I find that the Tenant took no steps to mitigate her losses. Similarly, there was no indication that she took any steps to clarify her rights under the Act with respect to maintenance until after the fire had destroyed her belongings. As a result, she also never took issue with the inclusion of the unlawful term in the tenancy agreement.
20. I find that the Tenant’s response to the obvious mounting danger presented by the unmaintained woodstove was one of wilful blindness, if not outright recklessness. The eventual catastrophic failure of the woodstove was not an issue of latent defect, but the inevitable and foreseeable result of prolonged negligence to an item that multiple insurers had informed her precluded any coverage. I find that the Tenant’s silence on the lack of maintenance to the wood stove is analogous to watching a pipe in the basement slowly crack and deteriorate over months without ever notifying the Landlord of the issue until it bursts and floods the residence.
21. While I agree that the Landlord breached her duties under subsection 20(1) of the Act 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 Tenant also failed to mitigate her losses when she failed to maintain the stove herself or even bringing the issue to the Landlord’s attention. As a result, I do not find that she is entitled to compensation for the items damaged by the fire.
22. With respect to an abatement of rent, because the Tenant suffered no losses as a result of the Landlord’s breach up to the date of the fire, no abatement for this period is warranted. As I find that the tenancy terminated as of February 11, 2017, the Landlord is not entitled to rent after this date, effectively accomplishing the same result as full abatement."
______________________________
______________________________
On liability:
"[22] Since this was a residential premises, this statutory duty applied to the respondent landlord and could not be removed by his rental agreement with the tenants. Nor could the rental agreement serve as a defence to the respondent in a suit brought by the tenants if the danger created by the cinder blocks had caused them harm."
______________________________
"[9] Ms. Zhang filed an affidavit in which she discusses the lease and her beliefs regarding the responsibility for snow and ice removal. She attached to her affidavit excerpts from the transcript of the examination for discovery of the Plaintiff, and she filed the transcript of the cross-examination of Mr. Yassobi. Ms. Zhang’s position is that this is not a proper case for summary judgment. In the alternative, she argues that liability rests entirely with the tenants, Mr. Yassobi and Ms. Rahman, as they were responsible for the ordinary cleanliness on the front porch, including snow and ice removal, pursuant to section 33 of the RTA.
[...]
[15] I find that Mr. Yassobi and Ms. Rahman’s motion should be dismissed for two main reasons. First, considering the litigation as a whole, this is not an appropriate case for partial summary judgment. While the Defendants’ arguments on this motion were focused on who was responsible for snow and ice removal at the premises as between the tenants and the landlord, the Plaintiff’s allegations of negligence are not restricted to the presence of ice or snow on the porch. It is possible that factors other than ice could be found to have contributed to the fall of the Plaintiff. The apportionment of liability between the tenants and the landlord for such other factors was not argued before me and remains an open issue until the cause of the fall has been determined or formally admitted. Given this uncertainty, it is not possible at this stage to dismiss Ms. Zhang’s crossclaim for contribution and indemnity as against Mr. Yassobi and Ms. Rahman. Since the crossclaim must continue, it is not advisable to dismiss the Plaintiff’s claims as against Mr. Yassobi and Ms. Rahman because granting such partial summary judgment would, among other things, raise the risk of inconsistent findings and duplicative proceedings."
______________________________
______________________________
"Meet property standards
A landlord must make sure that the rental property meets health, safety, housing and maintenance standards. These standards are set out in municipal bylaws or provincial maintenance standards.
Municipal Bylaws: Many communities in Ontario have bylaws that set minimum standards for the upkeep and maintenance of a rental property. A landlord must maintain a rental property to the minimum standards. Your local municipal government is responsible for enforcing these bylaws.
Provincial Maintenance Standards: Some communities do not have municipal bylaws. In those areas, the landlord must follow the provincial maintenance standards set out in the Residential Tenancies Act regulations. The municipality is responsible for enforcing the provincial maintenance standards."
"Exterior common areas
26. (1) Exterior common areas shall be maintained in a condition suitable for their intended use and free of hazards and, for these purposes, the following shall be removed:
1. Noxious weeds as defined in the regulations to the Weed Control Act.
2. Dead, decayed or damaged trees or parts of such trees that create an unsafe condition.
3. Rubbish or debris, including abandoned motor vehicles.
4. Structures that create an unsafe condition.
5. Unsafe accumulations of ice and snow. O. Reg. 517/06, s. 26 (1)."
Disclaimer:
You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.
Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.
No comments:
Post a Comment