Property Uninhabitable By Fire (RTA)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-04-15
CLNP Page ID: 1904
Page Categories: [Landlord & Tenant (Residential)], [Interference of Reasonable Enjoyment (LTB)], [Section 19 (RTA)]
Citation: Property Uninhabitable By Fire (RTA), CLNP 1904, <https://rvt.link/49>, retrieved on 2024-04-15
Editor: Sharvey
Last Updated: 2023/02/15


NOT-09369-12 (Re), 2012 CanLII 98054 (ON LTB)[1]

1. On October 31, 2011, HA’s rental unit and other parts of the residential complex were severely damaged by a spreading stove top grease fire caused by a person permitted to be in apartment #3 by HA.

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4. After the fire, HA temporarily resided with SM in SM’s apartment which is located in the same residential complex. HA was a temporary guest of SM. The Landlord was not entitled to collect additional compensation from either SM or HA during HA’s brief guest stay.

5. The Landlord received $799.00 from Ontario Disability Support Program as payment towards HA’s November 2011 rent for unit #3. The Landlord was not entitled to retain this payment because HA was no longer entitled too occupy apartment #3. The Landlord collected rent in excess of the amount allowed by the Act and the Landlord must return $799.00 to Ontario Disability Support Program.

Haberman v Grinsaft, 2020 CanLII 118023 (ON LTB)[2]

4. The Tenant, TH testified that there was a fire on December 11, 2018 and the Tenants moved out the same day because of the fire. The Tenant said that the Insurance company removed her belongings over the next couple of weeks.

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6. On January 30, 2019 the Tenants received an email from the Landlord, wherein the Landlord advised that the “tenancy agreement is frustrated where, without the fault of the landlord the obligation under the tenancy agreement, as originally intended, became impossible to fulfill as a result of fire of December 11, 2018, leaving the house uninhabitable.”

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12. The Landlord said things were slow with the insurance company. Around March 2019 the insurance adjuster sent a report and they had to get another quote. The renovations started at the end of April 2019. There were some issues with the basement tenant and the renovations were completed around the third week of August 2019.

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16. Section 19 of the Residential Tenancies Act, 2006 (the ‘Act’) addresses Frustrated contracts and states that “The doctrine of frustration of contract and the Frustrated Contracts Act apply with respect to tenancy agreements.

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20. I find that the Tenants did not vacate or abandon the unit. It was clear from the evidence, that because of the fire, the Tenants left the unit to stay elsewhere until the unit was repaired. It is also clear that the Tenants communicated to the Landlord their intention of returning to the unit following the repairs. There was no dispute that the Landlord did not obtain any order from the Board evicting the Tenants and authorization that the Landlord take possession of the unit.

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23. If the Landlord wanted to terminate the tenancy because of the Tenants’ behaviour in causing the fire, the Landlord knows or ought to have known that she should have filed a L2 application with the Board. Instead, what the Landlord has done here, is self enforced and circumvented the Board’s process, to rid herself of Tenants she considered a liability.

TEL-73933-16 (Re), 2016 CanLII 100374 (ON LTB)[3]

22. The Tenant says that the fire was caused by the bathroom fan, which had been malfunctioning since they gained access to the unit on September 1, 2015.

23. The Tenant says that the fan, which was activated by the light switch, was not working properly and they called the Landlord to tell him about it on September 1, 2015, when they gained access to the unit. The Tenant told the Landlord about it again in September and October of 2015.

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27. The Tenant says that, on January 11, 2016, when she returned from taking her children to school, she found a large fire in the bathroom ceiling of the rental unit. The Tenant was able to extinguish some of the flames with a bucket of water but had to call the fire department for help.

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32. Based on the Tenant’s description of the fire and the supporting pictures, I am also satisfied that the broken bathroom fan caused the fire and the Landlords should compensate the Tenants for any damaged property, out of pocket expenses and rent abatement for the time the family was unable to live in the rental unit.

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50. As a result of the testimony and evidence before me, I am satisfied that the Landlord engaged in a course of conduct which he knew, or ought to have known, would be most unwelcome by any reasonable tenant. Threatening the Tenants with eviction, threatening to triple the rent and serving copious unfounded notices of termination, particularly after that Tenants had suffered a traumatic fire and were forced to leave their home, constitutes harassment and is a breach of the Landlords’ obligations under the Act.

CET-53895-15 (Re), 2016 CanLII 44625 (ON LTB)[4]

5. On November 5, 2015, the rental unit was rendered uninhabitable due to fire in the lower commercial unit. Significant damage was caused to the restaurant, neighbouring lower and the upper level units. The cause of the fire was not related to the Tenant.

6. The Tenant has not occupied the rental unit since November 5, 2015 and is currently renting another unit nearby.

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8. The locks were changed on November 6, 2015 without notice to the Tenant and she did not have key for the rental unit from November 6, 2015 to November 13, 2015. As a result, she could not retrieve her belongings. The Tenant wanted to retrieve her belongings immediately, but was unavailable for the proposed dates provided by the insurance agent due to her work schedule. An extension of time was provided to the Tenant to retrieve her belongings.

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18. This tenancy is currently impossible to perform given the condition of the building. Therefore, the tenancy agreement was frustrated as a result of the fire on November 5, 2015. As a result, the parties were discharged from any performance of the tenancy agreement after November 5, 2015. Therefore, the Tenant is entitled to the return of her November 2015 rent on a pro-rated basis

TST-99550-18-AM (Re), 2019 CanLII 87146 (ON LTB)[5]

4. For the reasons that follow I find the tenancy between the Landlord and Tenant was not terminated as a result of the application of the doctrine of frustration; the evidence is sufficient to establish that it is more likely than not that the Tenant, an occupant or guest negligently caused the fire; and although the Landlord has responded to the need for remediation to the rental unit in a timely or effective manner, he has deprived the Tenant of her lawful occupation of the unit.

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13. It is clear from the investigation reports there was damage to the kitchen and other parts of the unit which P GTA, the Landlord’s insurance company remediation contractor, estimated would cost $38,459.03 to remediate.

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16. The Landlord said the renovation took 3.5 months, starting on July 10, 2018, which was when the last of the Tenant’s belongings were removed, and finishing on September 28, 2018. He said he should not be penalized for having been so efficient.

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20. There was neither any suggestion the Tenant abandoned the unit nor was she in arrears of rent. Consequently, she cannot be said to have abandoned the rental unit. And, the Tenant’s repeated requests to the Landlord to recover access to the unit lead fairly to the conclusion that she had not vacated the unit or intended to do so.

21. As there was not an order issued by the Board evicting the Tenant or evidence that she either abandoned or vacated the rental unit, I find that, subject to the Landlord’s reliance on the doctrine of frustration, the Landlord unlawfully evicted the Tenant when he sent his email to her on July 11, 2018 terminating the tenancy and denying her the right to return to the unit; access to the parking spot and mailbox. Consequently, the Landlord or its agents are deemed to have unlawfully altered the locking system to the door giving entry to the unit without providing a replacement key to the Tenant.

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27. With respect to the first definition of frustration, it cannot be said that the rental unit was utterly destroyed. It was not. It was seriously damaged but there is no question that the unit was capable of being renovated and restored in a relatively short period of time.

References

[1] [2] [3] [4] [5]

  1. 1.0 1.1 NOT-09369-12 (Re), 2012 CanLII 98054 (ON LTB), <https://canlii.ca/t/fzzfr>, retrieved on 2022-04-18
  2. 2.0 2.1 Haberman v Grinsaft, 2020 CanLII 118023 (ON LTB), <https://canlii.ca/t/jgm85>, retrieved on 2022-04-18
  3. 3.0 3.1 TEL-73933-16 (Re), 2016 CanLII 100374 (ON LTB), <https://canlii.ca/t/gxq92>, retrieved on 2022-04-18
  4. 4.0 4.1 CET-53895-15 (Re), 2016 CanLII 44625 (ON LTB), <https://canlii.ca/t/gsjxh>, retrieved on 2022-04-18
  5. 5.0 5.1 TST-99550-18-AM (Re), 2019 CanLII 87146 (ON LTB), <https://canlii.ca/t/j2gsq>, retrieved on 2022-04-18