Risk of Injury (LTB)

Breach of Maintenance Obligations: Interpretation Guideline 5

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Fit for Habitation

A number of cases have also considered the meaning of "fit for habitation". Summers v. Salford Corp.5 is the leading case from Britain. The Court held that if the state of disrepair is such that by ordinary use, damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, the house is considered not reasonably fit for habitation.

This phrase "fit for habitation" is not the standard expected, and should not be used to limit or qualify "good state of repair". Generally, it is enough for any part of the premises to be unfit. Examples would include infestations of rodents or vermin, bathrooms with backedup sewage, rooms with broken windows, etc.

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CET-67599-17 (Re), 2017 CanLII 60362 (ON LTB)

48. The Tenant requests a 100% abatement of rent he has paid since the tenancy commenced in January 2017. He also requests that the Board order the Landlord to do the necessary repairs as well as the cost for preparation of the home inspection report.

49. In these circumstances, it is not appropriate to order an abatement of rent prior to June 6, 2017 when the Tenant’s Agents informed the Landlord about the issues. This is consistent with the Board’s Interpretation Guideline 5 as set out in paragraph 10. Moreover, the Tenant lived in the unit until May 10, 2017 when he left due to health issues, some of which he believes may have been caused by some of the issues claimed.

50. In my view, the roof repairs, flooring repairs and crawlspace repairs are such that render the unit not fit for habitation. As stated in Interpretation Guideline 5, in considering the meaning of fit for habitation, the Court in Summers v. Salford Corp. 1943 1 All E.R. 68 stated that if the state of disrepair is such that by ordinary use, damage may naturally be caused to the occupier in respect of personal injury to life or limb or injury or health, the house is considered not reasonably fit for habitation.

51. In these circumstances, the evidence demonstrates structural issues with the roof and crawlspace including the risk or radon gas permeating the rental unit. The floors are uneven and sagging. Furthermore, the Tenant is 78 years old. In my view these repair issues present the risk of personal injury to the Tenant and render the unit not reasonably fit for habitation. Therefore, a 100% rent abatement is warranted until these repairs are complete.

TST-62292-15 (Re), 2015 CanLII 94901 (ON LTB)

17. The Tenant also says that the yard is in a general state of disrepair; namely there are broken steps, garbage in the yard, and a fence that presents a risk of injury. The Tenant presented photographs that clearly establish these facts. In addition he reports that there is a sink hole between the residential complex (house) and the house next door. Lastly he says that there is a light that does not work and that has wires hanging from it on the exterior of the building. He reported these issues to the Landlord in March, 2015, and they remain unresolved. The Landlord promised to address the issues in the spring of 2015. The Landlord does not dispute that this issues are present but takes the position that the Tenants are not permitted access to the yard. In addition, he says that there are other steps that can be used by the Tenants and as such the steps in question do not present a problem. He also says that the fence is not his responsibility; rather it is the next door neighbour’s. The Landlord’s positions are problematic. The apart from the sinkhole and downspout issues, the photographic evidence clearly demonstrates that there are serious repair issues in the backyard. The Tenant’s evidence regarding the downspout and sink hole is plausible given his detailed oral evidence.

18. Notably, it is not an adequate Landlord defence to state that steps can remain in a state of disrepair just because tenants have alternate means of ingress and egress. A safety hazard should not be left unresolved based on that rationale. Even if the fence does belong to the next door neighbour, the evidence still suggests that the fence protrudes onto the Landlord’s property. Consequently, it is incumbent upon the Landlord to work out the fence issue with his neighbour. The Landlord is required to repair and/or maintain the above noted items. Further, the given the significance of the repair issues and the nature of the risks, a more substantial rent abatement is warranted in the circumstances. I award an 11% rent rebate for the period April to November, 2015, this sum equals $774.40.