Do Minor Things Really Require Repair?

The Residential Tenancies Act, 2006 Is Without Specifics For How Serious a Concerns Must Be Before Repairs Are Required. Accordingly, the Landlord Tenant Board May Order Repair of Relatively Trivial Concerns. However, Abatement of Rent For Minor Issues, If Any at All, Will Be Nominal.

A Helpful Guide For How to Determine Whether Relatively Minor Repairs Legally Require Maintenance Attention

Residential Lease Document A running toilet, a squeeky door hinge, a dripping faucet, a loose knob, a difficult window, among other things, are significantly minor concerns in the grand scheme of life; and accordingly, for most people, such issues are of little, if any, priority for concern; however, whereas section 20(1) of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, statutorily requires a landlord to provide maintenance of a rental unit and rental complex, the question may, and sometimes does, arise as to when something becomes such a minor issue that the issue is unworthy and undeserving of any attention whatsoever.  Specifically, section 20(1) of the Residential Tenancies Act, 2006 says:

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.

As a landlord is required to provide and maintain rental units and the rental complex, "... in a good state of repair and fit ...", the question arises as to what is, "... a good state of repair and fit ...".  For most issues, whether a concern is worthy of attention will be plain and obvious. For other issues, such as a running toilet or dripping faucet that annoys the tenant and where the landlord pays the water bill, both the tenant and landlord will have an interest in seeing the wasted water concern taken care of; however, the question still remains as to whether there are some issues that can be ignored for being unworthy of attention.

Prescribed Maintenance Standards

As above, for mosst concerns the need of maintenance will be plain and obvious.  For others, reference and reliance may be placed upon the prescribed Maintenance Standards, O. Reg. 517/06 as a regulation to the Residential Tenancies Act, 2006.  For example, it is plain and obvious that a roof must be kept waterproof despite such being mandated within section 7(1) of the Maintenance Standards regulation; however, whereas section 7(2)(b) of the Maintenance Standards regulation requires that the roof be kept clear of "hazards", and the word "hazards" is undefined, such could be a source of confusion.  For example, whereas a roof is required be kept clear of "hazards", should a child lose a ball on a roof, is a landlord required to attend and remove the ball so to keep the roof clear of the attractive nuisance hazard that the ball poses, being that a child may try to find a way to climb onto the roof and thus the presence of the ball upon the roof creates a potentially dangerous situation.

As another seemingly minor concern, whereas section 8 of the Maintenance Standards requires that fences be, "... free from hazards ...", does this require that every nail in every board be kept absolutely flush so to avoid the remote possibility that a person may brush up against the fence and suffer a scratch?  At what point does maintenance become reduced to the ridiculous?  Of course, some could argue that a protruding fence nail that causes a scratch could lead to tetanus as a serious illness.

For reference, section 7 and section 8 of the Maintenance Standards regulation specifically state:

Roofs

7. (1)  Every roof shall be watertight.

7. (2)  The roof and any cornice flashing, fascia, soffit, coping, gutter, rainwater leader, vent or other roof structure,

(a) shall be maintained to properly perform their intended function; and

(b) shall be kept clear of obstructions, hazards and dangerous accumulations of snow and ice.

Retaining Walls, Guards and Fences

8.  Retaining walls, guards and fences in exterior common areas shall be maintained in a structurally sound condition and free from hazards.

Common Law Doctrine

There are principles within the common law, meaning the reasons given within centuries of judicial decisions, that are known as reductio ad absurdum, which is Latin meaning "reduction to the ridiculous" as well as de minimus non curat lex, which is Latin meaning "the law is without concern for insignificant or minor matters".  The reductio principle addresses the factual issue by qualifying a fact by reduced to the logically obvious and the de minimus principle is based on the concept that an some point an issue is so trivial or minor that such becomes a waste of resources and is unworthy of attention by a court.  Interestingly, the Landlord Tenant Board stated in the case of J.W. v. A.E.TST-14808-11 (Re), 2010 CanLII 95958 that the common law doctrine of de minimus fails to apply to matters adjudicated by the Landlord Tenant Board whereas the Landlord Tenant Board is a "creature of statute" that is mandated to interpret and apply the law as prescribed within the Residential Tenancies Act, 2006 and is therefore restricted from applying common law doctrine, such as the de minimus principle, when reviewing issues, such as minor maintenance concerns.  Specifically, the Landlord Tenant Board said:

1.  This application concerns a number of relatively minor disrepair complaints that the Landlord seeks to dismiss in their entirety on the basis of de minimis non curat lex which is a Latin phrase describing a principle of the common law that says the law does not notice or care for trifling matters. Unfortunately for the Landlord, the Board is not a judicial body making decisions based on the common law. Rather, it is a creature of statute charged with interpreting and applying the Residential Tenancies Act, 2006 (the ‘Act’).

2.  The section of the Act that the Tenant relies on in this application is subsection 20(1) which says: “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.” Therefore, it is the task of the Board to examine each of the disrepair complaints of the Tenant, determine whether or not the evidence establishes that the item is not in a good state of repair or whether or not the problem makes the unit uninhabitable, or whether or not the local municipal standards by-law has been breached. In that context the minor nature of the complaints is totally irrelevant. If the Board determines that section 20 has been breached, then the issue becomes what remedy if any is the Tenant entitled to. It is only in the context of deciding on a remedy that the minor nature of any of the Tenant’s complaints becomes relevant as the quantum of any abatement to be awarded depends largely on the impact of the disrepair on the Tenant.

Accordingly, it appears that the Landlord Tenant Board will review and consider all matters of maintenance regarding of how minor or slight the maintenance concerns appears.

Available Remedies

Although it seems that the Landlord Tenant Board will review and consider all matters of maintenance regardless of how minor or trivial the issue appears, what the Landlord Tenant Board will actually Order does appear to reflect the severity of the issue.

Requiring Correction

Generally, where the Landlord Tenant Board determines that an object is in a state of disrepair, the Landlord Tenant Board will issue an Order that the object be repaired within a specified time.  Where the disrepair is minor, more time may be allowed.  Where the disrepair is serious, the Order may impose expeditious attention.

Requiring Abatement

Additionally, where inconvenience, distress, loss of amenity or use, among other things, occurred, or is occuring, the Landlord Tenant Board may Order that the tenant receive an abatement of rent as compensation and which also acts as a financial incentive for the landlord to attend to the disrepair.

Authority

The power of the Landlord Tenant Board to issue an Order that may mandate a landlord to perform repair and grant an abatement of rent, among other things,is prescribed within section 30(1) of the Residential Tenancies Act, 2006, which says:

30 (1) If the Board determines in an application under paragraph 1 of subsection 29 (1) that a landlord has breached an obligation under subsection 20 (1) or section 161, the Board may do one or more of the following:

1. Terminate the tenancy.

2. Order an abatement of rent.

3. Authorize a repair or replacement that has been or is to be made, or work that has been or is to be done, and order its cost to be paid by the landlord to the tenant.

4. Order the landlord to do specified repairs or replacements or other work within a specified time.

5. Order the landlord to pay a specified sum to the tenant for,

i. the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach, and

ii. other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach.

6. Prohibit the landlord from charging a new tenant under a new tenancy agreement an amount of rent in excess of the last lawful rent charged to the former tenant of the rental unit, until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

7. Prohibit the landlord from giving a notice of a rent increase for the rental unit until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

8. Prohibit the landlord from taking any rent increase for which notice has been given if the increase has not been taken before the date an order under this section is issued until the landlord has,

i. completed the items in work orders for which the compliance period has expired and which were found by the Board to be related to a serious breach of a health, safety, housing or maintenance standard, and

ii. completed the specified repairs or replacements or other work ordered under paragraph 4 found by the Board to be related to a serious breach of the landlord’s obligations under subsection 20 (1) or section 161.

9. Make any other order that it considers appropriate.

As for actual examples, among other things, the J.W. case referenced above describes orders to clean a carpet as well as to straighten, or otherwise repair, a leaning fence with a few loose boards.  In addition to the orders to clean the carpet and repair the fence, the Landlord Tenant Board also granted an abatement of rent in the amount of ten ($10.00) dollars per month for each issue.  Specifically, the Landlord Tenant Board said:

19.  The Tenant entered into evidence photographs showing that the carpet in the rental unit is stained in a handful of places and slightly frayed at two places. There is also a cable running underneath it in the living room which the Tenant says presents a tripping hazard. According to the Landlord the Tenant first complained about the carpet in early 2011 and she offered to have it cleaned. The tenant declined the offer on the basis that he wanted it replaced.

20.  It seems to me that although the carpet shows signs of wear and tear due to normal usage, it is not actually in a state of disrepair. However, the Tenant provided me with the property standards by-law which says that floor coverings shall be maintained free of tripping hazards and kept in a clean and sanitary condition free from stains. As the carpet is clearly stained and there is no dispute that is the case, I am satisfied that the Landlord is in breach of section 20 of the Act because the carpet does not comply with a municipal housing and maintenance standards.

21.  That being said the carpet is not in a state of disrepair so I do not believe replacing it is a remedy which the Tenant is entitled to. An order will issue requiring the Landlord to clean the carpet and move the cable underneath it so the cable runs along a wall and is not a tripping hazard.

22.  With respect to abatement of the rent, I not believe the Tenant is entitled to any as he refused to permit the Landlord to clean the carpet when the problem was brought to her attention. This premise is reflected in the Board’s Interpretation Guideline # entitled Breach of Maintenance Obligations which says in part: “The tenant may have unreasonably prevented the landlord from entering the unit to assess the problem or make the repairs. In such a case, the repair may still be ordered to be done by the landlord or the tenant, but the tenant’s conduct may result in no abatement or other remedy.” If however, the Landlord does not comply with the order to clean the carpets, the tenant will be entitled to a nominal abatement of $10.00 per month until the Landlord complies.

....

24.  There was again no dispute between the parties that there is disrepair to the wooden fence that encloses the backyard. It leans away from the yard towards the neighbouring property. From the photographs filed I would say the angle of the lean is less than twenty degrees. It appears to have been caused in part by foliage growing over the fence from the neighbour’s yard which appears to be pulling the fence slowly over. In addition, the tops of some of the boards in the fence have broken off.

25.  Based solely on the fact that some of the Boards are clearly broken, I am satisfied that the fence is not in a good state of repair and therefore the Landlord is in breach of section 20 of the Act. As a result, an order will issue requiring the Landlord to repair or replace the fence.

26.  The Landlord testified that she has attempted to repair the fence but the neighbour refuses to give permission for the foliage to be removed. There was also an e-mail from the Landlord’s agent sent to the Landlord indicating that the neighbour was not prepared to pay their half of the cost of replacing the fence so the work was deferred. The e-mails filed by the Landlord indicate the disrepair to the fence was known to her since at least April of 2010. Basically the Landlord testified that she feels like she is at a standstill and can take no further steps. In response to my questions the Landlord testified that she had no knowledge of fence sitting or the City’s role in settling disputes over boundary fences. As I explained to her at the hearing, under the Line Fences Act every municipality is required to have a dispute resolution system for neighbours who cannot resolve their differences over repairs needed to a mutual fence. The dispute resolution process is quite expensive and both neighbours are financially liable for the cost so when the process of dispute resolution is explained to most people, informal agreements can usually be arrived at. In any case, the Landlord’s ignorance of her options in dealing with the intransigent neighbour over the fence cannot operate as an excuse for failing to do necessary repair.

27.  That being said, despite the numerous e-mails filed into evidence the Tenant never appears to have complained in writing about the fence to the Landlord. His e-mails include complaints about yard maintenance including weeds but nothing about the fence itself. In his evidence, the only impact he testified to with respect to the fence was that it concerned him. As a result, it seems to me that the disrepair to the fence is not an issue that has seriously concerned or affected the Tenant to any degree all all. Under those circumstances I am of the view that only a nominal abatement is warranted which I fix at $50.00. If the fence is not repaired or replaced then the tenant will be entitled to a further nominal abatement of the rent of $10.00 per month.

Avoiding Vexatious Conduct

With all the above said, and despite that the Landlord Tenant Board appears as willing to consider all issues of maintenance regardless of how minor, a tenant should be wary of abusing the processes of the Landlord Tenant Board as a means to harass a landlord.  Where the Landlord Tenant Board finds that a tenant is acting vexatiously by bringing nuisance complaints to the Landlord Tenant Board, the tenant may be declared a vexatious litigant

Summary Comment

The law requires that a landlord maintain and repair a rental unit and rental complex and the law is without description of factors that would limit the significance of a maintenance or repair issue.  Accordingly, it appears that any object in disrepair and requiring maintenance must be attended to.  Where an object is unattended to and left in a state of disrepair by a landlord, the Landlord Tenant Board may issue an Order directing the landlord to repair the object.  The landlord may also issue an Order granting compensation for the disrepair in the form of an abatement in favour of the tenant.  How much time to address an object in a state of disrepair and how much of an abatement of rent will be ordered by the Landlord Tenant Board will be dependent upon the seriousness of the disrepair.  For minor or trivial concerns, less urgency and only nominal compensation will be appropriate.


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