Low Apartment Vacancy Rate in Ottawa, Ontario

A booming housing market normally gives rise to increased vacancies as renters become owners. Statistics compiled by Canada Mortgage and Housing Corp. suggest that vacancies in Ottawa have only risen to 1.5% from 1.4% last year. The average rent of a two bedroom apartment in Ottawa has risen almost 3% to $1030 per month. Depending on one's perspective--from that of a landlord or a tenant--this trend may be viewed both positively or negatively. One thing is for sure though, this time represents a good time for landlord's to increase rents for units as they become vacant. Vacant units, for the most part, have no rent control and landlord's may charge whatever the market will bear for that unit. Recent experience suggests that in this kind of market landlords are becoming less tolerant of certain behaviours and the foibles of some of their tenants and are indeed proceeding with eviction steps at the Ontario Landlord and Tenant Board. Tenants and Landlords are increasingly represented by lawyers at the Landlord and Tenant Board. While the Landlord and Tenant Board proclaims a model that is responsive to self represented parties, the reality is that the informal hearing process and the packed dockets (long lists of cases to be heard) favours the position of those parties that retain lawyers experienced in the process. In many ways, the Ontario Landlord and Tenant Board's informal procedure actually prejudices the self represented party as the fullness of the case is not actually ascertained until it is too late. For the unrepresented tenant this late revelation manifests itself in eviction and homelessness. For landlord's, the strict requirements of the law and the technical issues pertaining to the burden of proof often results in a tenant, who has an experienced lawyer, having the landlord's case dismissed. The cost to the landlord is the loss of the $170 application fee and sometimes a permanent inability to evict the tenant for the grounds alleged which can include illegal acts, impaired safety, non-payment of rent, and interference with reasonable enjoyment of the premises by other tenants or the landlord. Landlord's and Tenants should be represented by experienced counsel at hearing given the seriousness of what is at stake.

Michael K.E. Thiele, Lawyer practicing extensively in residential tenancies law before the Ontario Landlord and Tenant Board.

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