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What Residential Landlords are Not Normally Aware Of

In 2002, the Conservative government provincial legislature offered some concessions to landlords by enacting a regulation allowing landlords to avoid liability for carrying out maintenance work as long as the maintenance work was carried out in a “reasonable manner”. Failing that, landlords could still avoid liability for rent reductions as long as they met a number of conditions established by the regulation. The regulation was meant to encourage the rehabilitation of existing rental housing units without fear of penalty, provided the landlord did the work with proper regard to the interests of the tenants, as determined by the regulation.

After the election of the Liberal government, all those rules changed. The basic principles remained, but the list of conditions were changed in such a way as to make it more difficult for landlords to avoid rent abatement liability. Under somewhat byzantine conditions, if a landlord slipped up on any of the conditions, the landlord was vulnerable to up to a 10% abatement of rent. A further twist was that the liability extended not just to tenants but also to “members of the household” of the tenant, so as to probably  include caregivers, nannies, and perhaps even dogs and cats, to a claim for compensation if a landlord fails to meet all of the “prescribed” conditions.

A rental unit is defined by the Residential Tenancies Act (RTA) as “any living accommodation used or intended for use as rented residential premises…”, adding that the legislation applies “with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary”. It is not possible to contract out of the RTA, but section 5 of the RTA has a long list of exceptions from the legislation, including a general exception for properties used for recreational purposes.

In the past, courts and tribunals of residential tenancies law and planning law recognized the distinction between residential uses and recreational uses. Presently, those distinctions  appear to have become blurred and generally ignored.

When, in Putnam v. Grand River Conservation Authority the Divisional Court declared that the RTA is applicable to recreational cottages on leased land, it was a financial windfall for cottagers and a financial loss for the Conservation Authority. The application of the RTA meant that the landlord must meet statutory obligations including road maintenance, snow plowing, and of course rent controls on land lease tenancies which, because people go there only in good weather, were subject to low rents. But the Divisional Court in Wheeler et al. v. Ontario (Minister of Natural Resources) deliberating on the recreational use of the land lease cottages in question concluded that it would be a “torture” of the words of the legislation to conclude that the cottages were rental units coming under the RTA.

Algoma and the nudists

All those conflicting Divisional Court decisions were recently considered in Algoma Timberlakes Corporation v. Matthews et al. There, the Rental Housing Tribunal, and subsequently the Divisional Court deliberated on the question of use, distinguished between residential and recreational uses, and concluded that the RTA did not apply to the premises in question (recreational uses). The Court of Appeal granted leave from the decision of the Divisional Court and the case was heard last October. The industry is yet to get a decision from the Ontario Court of Appeal which will hopefully give some certainty to the conflicting Divisional Court decisions. Until the Court of Appeal makes its decision public, conveyances of recreational properties with rental occupancies are subject to substantial risk, as are the ongoing operations of such properties.

Also seeking a declaration from the Landlord and Tenant Board (LTB) are a small group of nudists occupying  “conservation” lands in the Oak Ridges Moraine that the RTA applies to their trailers and cabins on “land leases” (“camp sites”). They argue that they are entitled to permanent tenure, rent abatements, year round residency, year round services and service upgrades for paying $600.00 per annumas land rent! They have no residential infrastructure, such as water or sewage facilities in the camp. They contested a sale of the campground, and the matter has dragged on for the past six months. It appears the case will remain unresolved for several more months, while all parties, including vendor and purchaser, remain exposed (literally and financially) pending ponderous proceedings at the LTB to determine the obvious.

Impact of Ontario Human Rights Housing Policies

Policies relating to housing and the duties of those providing housing are to comply with the Ontario Human Rights Code (Code), and have been recently enumerated and distributed by the Ontario Human Rights Commission. Before this, there were no policies to guide landlords or tenants in identifying or implementing their respective obligations under the Code, and therefore are  helpful.

But, its uncertainty and subjectivity has left landlords vulnerable to a wide variety of claims, the basis for which are not known until the claims are adjudicated on. The claimants apparently know everything beforehand, while due to the absence of clear policy direction, landlords are faced with unknown risks and liability. Discrimination in “accommodation” is an offence for landlords or any housing provider under the Code. In fact, section 2 of the Code states “Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance”. Absent from the list are the terms or expressions: “record of offences”; “pets”; and “smoking”. With regard to pets, a landlord is allowed to refuse to rent to a tenant who has pets unless the reason the tenant has a pet is to accommodate a particular disability, like a blind person with a seeing eye dog. There, the landlord could not refuse to rent to the individual because to do so would amount to “constructive” discrimination on the basis of disability.

In regards to smoking, a landlord could refuse to rent to smokers; but, if the intention is to  prohibit smoking in existing buildings with application to existing tenants, the landlord is denying the tenants’ rights under the RTA. If the landlord fails in his mission, and  existing tenants go on smoking, the landlord then becomes vulnerable to claims by tenants who are particularly sensitive to second hand smoke and that the landlord has to do something for that sensitivity. That is not the end, there is “nicotine addiction”, “chemical sensitivity” etc…all to be taken care of by the landlord.  The Landlord not only has to consider how to remedy a situation but how the Tenants will interpret and imply rights owed to them under the RTA yet to be obtained or, in lieu thereof, a rent abatement.  To make sure you are not creating loopholes for your Tenants to use against you, call the lawyers at Levy Zavet PC.

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