Negligent Misrepresentation (LTB)

SOT-02401 (Re), 2009 CanLII 78034 (ON LTB)

Finding

I find that the Tenants decided to rent this unit based on an understanding given to them by the Landlord that they would have free and liberal access to the roof for recreational and leisure use. This was negligent misrepresentation. Misrepresentation is a contract law term. It means a false statement of fact made by one party to another party, which has the effect of inducing that party into the contract. In this case the person making the statements about the balcony was in a position vis a ve the Landlord that the Tenants might reasonably believe what he said to be true. I do not believe that the property manager purposely told the Tenants something that he knew to be untrue, rather he was careless about his promise that the Tenants could enjoy the roof space. He failed to point out, perhaps did not know, to what extent the roof space would be taken up with air conditioning machines and then further decreased by the installation of skylights. A person in the position of a property manager ought reasonably to know the use to be made of a roof by the Landlord. To hold out a potential use that is untenable given the needs of the building itself was negligent. In addition over the months between the signing of the lease and the Tenants taking possession of the unit the Landlord was not forthcoming about the plans for the roof area. This lack of information caused the Tenants to continue to rely on the promises made to them during the negotiation of the lease contract.

Remedy

The Tenants will have the right to rescind this contract if they give the Landlord written notice prior to December 31, 2009. The notice must end the contract no less then 60 days from the date of the notice and the termination date must be the last day of a month.

The Tenants shall receive a rent abatement of $200.00 per month retro-active to May 2009. The Tenants asked for a rent abatement of 1/5th of their rent. I have not granted this large abatement in recognition of the fact that the Tenants continue to have some use of the roof albeit much less than they bargained for.

In addition to the rent abatement I will order the Landlord to pay the Tenants $400.00 in compensation for the disruption to their tenancy during the installation of the air conditioners and skylights.

TST-31450-12 (Re), 2013 CanLII 50956 (ON LTB)

1. The Tenant suffers from asthma. It was important to her that the rental unit be smoke-free.

2. The undisputed evidence was that the Tenant asked the Landlord prior to entering into the tenancy whether or not the downstairs tenants were non-smokers. The Landlord assured the Tenant that the downstairs tenants were non-smokers. The Tenant was intended to rely upon this representation and did so rely in entering into the tenancy agreement.

7. I find that the Landlord fundamentally breached the tenancy agreement by assuring the Tenant that the residential complex was a non-smoking environment. In the alternative, this was a case of negligent misrepresentation.

8. Because of the Landlord’s breach, the Tenant was compelled to move out of the rental unit. I find that it was reasonable for her to do so in the face of the Landlord’s unwillingness or inability to address the problem. I find that the tenancy between the Landlord and Tenant was terminated effective September 30, 2012.

9. The Tenant is entitled to an abatement of rent for the period from July 27, 2012 when she first notified the Landlord of the problem until September 30, 2012 (65 days.)

10. The per diem rent for the rental unit was $26.30 per day ($800.00 per month times 12 months divided by 365 days equals $26.30.) The loss of amenity to the Tenant I would place in the range of substantial and I find that a thirty (30%) percent abatement of rent is justified on these specific facts.

11. The Tenant shall accordingly have an abatement of rent from the Landlord in the amount of $512.85 ($26.30 X 65 days @ 30% = $512.85.)