Property Uninhabitable: Sewer or Flood

NOT-18722-15 (Re), 2015 CanLII 33112 (ON LTB)

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12. The CAS worker contacted the health inspector due to a sewer back up and lack of water supply. The Tenants were ordered to vacate the rental unit by the CAS worker and this was confirmed by the health inspector. On March 6th the rental unit there was an inspection by the local health unit in the presence of MB, the Landlord, and the CAS worker.

13. Because the Tenants were ordered to vacate they were given emergency accommodations at Village Inn from March 4, 2015 for two weeks through the Red Cross and Ontario Works. After two weeks MB moved to a woman’s shelter and her co-tenant, SB, was incarcerated at this time.

14. MB was told by the health inspector she could only return to the rental unit to remove her property but not to stay overnight and her children were not permitted to return at all.

15. MB stated the Landlord was instructed the rental unit could not be rented until repairs were made.

16. A sewer pipe froze in the basement causing a back-up. There was no evidence presented that the Landlord has repaired the sewer pipe. The Landlord indicated at the hearing she does not wish the Tenants to return and will not be doing repairs.

17. The Landlord believes the pipe froze because the Tenants unplugged a portable heater in the basement. MB denies unplugging the heater and testified it was not near the sewer pipe but by the hot water tank and was unplugged by the CAS worker as a hazard. No evidence was submitted by the Landlord to prove this belief.

18. Even if the Landlord is not responsible for the issues at the rental unit the Landlord is obliged to ensure the rental unit is fit for habitation and does not contravene any maintenance, safety or health standards.

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29. After the Tenants vacated the rental unit on the instruction of the health inspector SB continued to go to the unit to pick up personal items and feed her cats.

30. On April 1st SB attended at the rental unit and found the locks had been changed.

31. The Landlord confirmed she changed the locks and has not provided the Tenants with a key.

32. Section 26 of the Act provides that the Landlord shall not alter the locking system without providing the Tenants with a replacement key.

33. The Landlord stated that she was entitled to take possession of the rental unit and consider the tenancy terminated under the Frustrated Contracts Act. The Landlord provided no information or legal argument that the tenancy agreement has been frustrated.

34. The rental unit is currently uninhabitable due to the Landlord’s failure to take steps to make repairs to the wood stove, the sewer pipe and the water system. There is no evidence that these repairs cannot be made and upon completion the unit would be capable of occupancy. The legislation referred to by the Landlord would be more applicable when the rental unit has been destroyed and cannot be restored for occupancy. The maintenance issues in the rental unit are temporary.

35. The tenancy has not been terminated in accordance with the Act. The Tenants have not given notice that they wish the tenancy terminated, the parties have not agreed to a termination of the tenancy, and the Landlord has not served any termination notice or received an order of the Board regarding termination. Accordingly upon completion of the repairs the Tenants are entitled to return to the rental unit at the same monthly rent.

36. The Landlord is obligated to provide the Tenants with a key to the rental unit.

37. SB stated that she wishes to return to the rental unit upon completion of the repairs. In the event that SB wishes to terminate the tenancy for any reason she is required to provide the Landlord with appropriate notice or have an agreement with the Landlord for termination of the tenancy.

38. Until the Landlord provides the Tenants with a key the Landlord is responsible for the Tenants property remaining in the rental unit.

It is ordered that:

1. The Tenants application for illegal entry and harassment is dismissed.

2. Landlord shall pay to the Tenants the total sum of $1,131.27 for the following:

• $160.00 as compensation for purchased wood;

• $621.27 for rent paid in March after the rental unit ceased to be habitable; and

• $350.00 for rent abatement for failure to maintain

3. The Landlord shall pay the Tenants the full amount owing by May 2, 2015.

4. If the Landlord does not pay the Tenants the full amount owing by May 2, 2015 the Landlord will owe interest. This will be simple interest calculated from May 3, 2015 at 2.00% annually on the outstanding balance.

5. If the Landlord does not pay the Tenants the full amount owing by May 2, 2015, the Tenants may recover this amount by deducting $700.00 from the rent each month commencing on the date that the Tenants are given occupancy of the rental unit under this order until the full amount has been paid.

6. The Tenants have the right, at any time, to collect the full amount owing or any balance outstanding under this order.

7. On or before June 30, 2015 the Landlord shall do the following:

• Repair the wood stove

• Arrange for inspection of the stove and chimney by a WETT certified inspector

• Repair the sewer pipe in the basement

• Investigate and repair the water system and provide a certificate from the public health unit that the water supply is potable

8. Upon completion of the aforementioned repairs the Landlord shall immediately advise the Tenants, in writing, that the rental unit is available for occupancy. The Tenants shall pay rent commencing one week following the date of the Landlord’s written notice the rental unit is ready for occupancy.

9. The Tenants shall immediately provide the Landlord, in writing, their mailing address for the purposes of paragraph 4 of this order.

10. Immediately upon receipt of this order the Landlord shall provide the Tenants with a replacement key for the rental unit.

NOT-17275-14 (Re), 2014 CanLII 61812 (ON LTB)

Determinations:

1. HW’s bachelor rental unit and ES’s single room apartment were both located in the lower level of the residential complex.

2. The older residential complex has a weeping tile structure that connects into the municipal sewage system. On August 30, 2014, the City of Greater Sudbury experienced 7 hours of abnormally high rainfall (Landlord exhibit #1). The high volume of rain water resulted in a back up of the residential complex sewer drain. Rain water and sewage caused contamination damage to ES’s apartment.

3. HW offered no evidence that the contaminated water entered her rental unit.

4. ES and MD acknowledged previous sewage system overload and water infiltration into the basement (for the same reason) prior to HW moving into her rental unit in March 2011. This was the first flood event during HW’s tenancy.

5. Sub-section 20(1) of the Residential Tenancies Act 2006 states: “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”. The infiltration of sewer water in to the lower level caused by an unusual catastrophic event. It was not due to the Landlord’s failure to maintain the residential complex.

6. The presence of sewage in the lower level of the residential complex along with a strong foul smelling sewage odour temporarily rendered both rental units uninhabitable as of August 30, 2014. The Landlord was then obligated to undertake remediation and repair the damaged lower level of the residential complex in a timely manner.

7. MD’s identified that the basement area HW’s apartment was fit for habitation / occupancy as of September 8, 2014. This statement was not challenged or disputed by HW.

8. ES and HW both no longer reside in their respective rental units.

9. MD denied HW’s claim that the shower stall and cement laundry tub both contain mold. MD offered no evidence (photographic or other) to support her claim of the presence or the nature of mold (mildew?).

10. In all application before the Board, the onus is on the applicant to prove his or her case on a balance of probabilities. HW has not met the burden of proof required to support a determination that the Landlord was in serious breach of his maintenance responsibilities under s.20(1) of the Residential Tenancies Act. The Landlord is not obligated to pay the $45.00 application cost.

11. HW claimed that she was left with no alternative but to permanently move out of her rental unit on August 30, 2014 due to a lack of maintenance. This claim is without merit.

12. HW’s rental unit was once fit for habitation again on September 8, 3014. HW was not obligated to pay compensation to the Landlord during the restoration period. HW was, however, obligated to resume her tenancy effective September 8, 2014.

13. Subsection 37(1) of the Residential Tenancies Act 2006 states: “A tenancy may be terminated only in accordance with this Act”. HW did not terminate her tenancy in accordance with the provisions of the Residential Tenancies Act 2006.

14. Section 16 of the Residential Tenancies Act 2006 which states: “When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses.” Upon becoming aware that HW had permanently moved out of her apartment without proper notice, MD was then obligated to advertise for a replacement tenant in an effort to minimized HW’s requirement to pay rent for September 2014 and October 2014 (s.16 loss). MD chose not to seek a replacement tenant. MD decided to convert ES’s single room rental unit and HW’s bachelor apartment into one single rental unit.

15. HW’s former rental unit ceased to exist once the apartment amalgamation work commenced in September 2014.

16. Subsection 106(10) of the Residential Tenancies Act 2006 states: “A landlord shall apply a rent deposit that a tenant has paid to the landlord or to a former landlord in payment of the rent for the last rent period before the tenancy terminates”. The last month of tenancy for HW’s former rental unit was August 2014. HW paid rent for August 2014 and MD is now obligated to return HW’s $400.00 last month rent deposit. This is the only remedy granted under the Tenant Application about Maintenance (T6).

NOT-08732-12-RV (Re), 2012 CanLII 86892 (ON LTB)

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Determinations:

1. The order issued on July 24, 2012 resolved both Landlord application NOL-08747-12 and Tenant application NOT-08732-12. The Landlord acknowledged that her Request to Review an Order applies only to the portion of the order relating to NOT-08732-12.

2. The Landlord, through her Request to Review an Order, claims a serious error with respect to the determination that the Landlord must refund June 2012 rent paid by the Tenant.

3. The Tenant was unable to reside in his basement unit after May 28, 2012 when a flood related sewer back up rendered the apartment uninhabitable. The Tenant’s obligation to pay rent was suspended and the Landlord was not entitled to retain funds forwarded by the Tenant for occupancy of the rental unit in June 2012. I find no serious error in the order or in the proceeding with respect to the member’s determination that June 2012 rent must be returned to the Tenant.

4. The Landlord, through her Request to Review an Order, claimed that the Presiding Member erred in determining the items included on the list of salvageable but missing possessions as set out under paragraph 34 on page 5 of the order.

5. The Tenant’s salvageable possessions were removed from the flood damaged apartment by a third party contractor retained by the Landlord. The Landlord was not present during the removal. The Landlord did not call the contractor to testify about salvageable items removed from the Tenant’s rental unit nor did the Landlord (or her contactor) inventory the items removed from the Tenant’s rental unit. The Presiding Member based her determination of missing salvageable possessions on the un-contradicted testimony of the Tenant. I find no serious error in the order or in the proceeding with respect to this determination.

6. The Landlord, through her Request to Review an Order, claimed that the Presiding Member erred in determining the values assigned to missing salvageable items set out under paragraph 35 on page 5 of the order.

7. The Presiding Member correctly released the Landlord from the requirement to compensate the Tenant for the loss of non-salvageable items damaged by the sewer back up. The Landlord was provided with opportunity to challenge the values assigned to the salvageable items at the initial hearing on July 13, 2012. The Member’s dollar value determinations were based upon the un-contradicted testimony of the Tenant. I find no serious error in the order or in the proceeding with respect to the Member’s determinations about the value of the Tenant’s property loss.

8. On the basis of the submissions made at the review hearing, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

NOL-09228-12 (Re), 2012 CanLII 59926 (ON LTB)

BGNPHC (the 'Landlord') applied for an order to terminate the tenancy and evict MP (the 'Tenant') because he, another occupant of the rental unit or someone he permitted in the residential complex has wilfully caused undue damage to the premises and because he, another occupant of the rental unit or a person the Tenant permitted in the residential complex has seriously impaired the safety of any person. ... Determinations:

1. The Landlord’s application is based upon a notice of termination which makes two claims:

• You, your guest or another occupant of the rental unit has seriously impaired the safety of another person, and this event occurred in the residential complex.

• You, your guest or another occupant of the rental unit has wilfully damaged the rental unit or the residential complex.

2. On July 20, 2012, the Tenant’s toilet overflowed causing approximately $30,000.00 in water damage to the Tenants’ rental unit, to two other nearby rental units and to a portion of the residential complex common area.

3. The damage caused is significantly greater than what is required to give a notice of termination pursuant to clause 63(1)(a) of the Residential Tenancies Act, 2006 (the 'Act').

4. The photographic evidence supports the Landlord’s claim that when the Tenant’s blocked toilet was pulled away from the floor, a chicken bone carcass was found lodged where the base of the toilet connects to the sewer drain pipe. The chicken bones were placed into the toilet by a person in the Tenant’s rental unit. The Tenant’s assertion that the sizable chicken bone carcass eventually worked its way backwards (and against the flow of water) from another rental unit into the base of his toilet is illogical and without merit.

5. While the Tenant’s flushing of a chicken carcase down his toilet may have been demonstrated poor judgement or it may have been negligent misconduct, I find no evidence that the Tenant wilfully intended for his toilet to overflow on July 20, 2012.

6. The Tenant remained in his rental unit during the entire period of time of the July 20, 2012 toilet overflow. The toilet continued to overflow until such time that firemen attended the residential complex in response to an alarm that was triggered by water seeping into the smoke detector located in the rental unit below the Tenant’s apartment. Fire officials then entered the Tenant’s rental unit on an emergency basis to shut off the water valve at the Tenant’s toilet.

7. The Tenant made no effort to shut off the toilet’s water supply valve during the overflow. I note that the Tenant’s rental unit had been similarly water damaged 5 years earlier when his plugged toilet overflowed. It is illogical that the Tenant would be unaware of the water shut valve next to his toilet after the first serious toilet related flood. On the remote chance that the Tenant was totally unaware of the water shut off value, I further find that the Tenant made effort to contact any other person to seek assistance with the addressing water flow dilemma.

8. The Tenant, by intentionally allowing the water to flow unabated, wilfully caused undue damage to the rental unit

9. The Tenant knowingly permitted his 5 pet birds to freely fly inside his rental unit. The Landlord’s photographic evidence depicts the presence of bird feces throughout the rental unit. The Tenant wilfully caused damage to his rental unit by allowing his un-caged birds to deposit an extraordinary amount of bird feces throughout the rental unit.

10. The Landlord is now required to retain the services of a remediation specialist to eliminate the hazardous environment caused by the presence of bird feces. The respiratory health risk, posed by the excessive accumulation of bird feces, has impaired the safety of all persons who enter the rental unit.

11. The attending firemen found and removed a tangled web of live extension cords that traversed the wet floor of the rental unit. The myriad of cords powered numerous electrical devices plugged in by the Tenant. The presence of numerous cords lying on the flooded wet floor posed an electrical hazard. This electrical hazard impaired the safety of all who entered the rental unit on July 20, 2012. The improper use of multiple extension cords also posed a fire hazard which impaired the safety of the other occupants of the residential complex.

12. The tenancy is terminated because the Tenant’s wilful damage and because of the Tenant’s impairment of safety

13. The rental unit will remain uninhabitable until such time that bird feces remediation work and the water damage repair work is completed. As the Tenant is not able to reside in his apartment, I find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act and in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act').

It is ordered that:

1. The tenancy between the Landlord and the Tenant is terminated, as of September 10, 2012. The Tenant must move out of the rental unit on or before September 10, 2012.

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References