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.