Transferring Maintenance Responsibility to Tenants

On November 16, 2009, the Ontario Court of Appeal allowed an appeal from a decision of the Divisional Court in the case of Montgomery v. Van. The Tenant Protection Act and now Residential Tenancies Act maintains that any provision of a lease that is inconsistent with the legislation is void. The Divisional Court held that a landlord could, via the lease agreement transfer the landlord's outdoor maintenance responsibilities (clearing walkway of snow and ice) to the tenant. On appeal, the Court of Appeal held that the maintenance responsibility could not be transferred to the tenant through the lease agreement as this was inconsistent with the legislation and hence is void. However, the Court of Appeal did allow that a landlord could contract with a tenant for maintenance so long as the contract for maintenance was separate from the lease and that it remained a clearly severable contractual obligation. This appeal decision restores the balance between the landlord's superior bargaining position and the usual residential tenant's automatic acceptance of terms demanded by landlords. It is clear now, that a landlord can not shift the landlord's obligations onto a tenant as a condition of renting.

Michael K. E. Thiele, B.A., LL.B. Practicing extensively in residential landlord and tenant matters.

SHIFTING MAINTENANCE OBLIGATIONS TO TENANT

Residential Landlord and Tenant Law in Ontario, including under the current Residential Tenancies Act, has long held that a landlord is responsible for maintaining a property notwithstanding any lease terms to the contrary. The law provides that a term of a lease that is contrary to the provisions of the Residential Tenancies Act is void. In a legally significant development, the Ontario Superior of Court of Justice has held that a landlord may require a tenant, in a lease with that tenant, to maintain the property with respect to snow clearing and that such a clause is not void as against the provisions of the Tenant Protection Act (predecessor to Residential Tenancies Act) which places the maintenance burden on the landlord. The application of the principle of this case will be interesting to follow with respect to more general maintenance requirements within residential apartments. Is this the beginning of residential landlords being able to shift the burden of property maintenance to tenants as a condition of leasing to them? See Montgomery v. Van 2009 CarswellOnt 182. Michael K.E. Thiele, Ottawa Personal Injury Lawyers

TENANTS NOW HAVE THE RIGHT TO DEFEND THEIR HOMES FROM TRESPASSERS

On January 19, 2009, Mr. Thiele set a new precedent at the Ontario Landlord and Tenant Board. Mr. Thiele’s client was found to have the right to use significant physical force against a guest who had become a trespasser after being asked to leave. Notwithstanding criminal charges against his client, Mr. Thiele’s client won his case and was not evicted from his home. Ottawa Personal Injury Lawyers - Plant Quinn Thiele LLP – www.pqtlaw.com