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.