Rat Infestation (LTB-Maintenance)
TST-02871-19 (Re), 2019 CanLII 87037 (ON LTB)
27. In Onyskiw v. CJM Property Management Ltd. (2016 ONCA 477) the Ontario Court of Appeal determined that a landlord is not automatically in breach of their maintenance obligations under section 20 of the Act as soon as a problem arises: rather, a contextual approach is necessary in determining whether or not a landlord has breached their maintenance obligations. That approach involves a consideration of the “entirety of the factual situation”, including whether the Landlord’s attempts to perform the needed repairs were reasonable in the circumstances.
28. I have taken into account the entirety of the factual situation including the scope of the problem and the efforts involved in resolving it. In this context, I find that the Landlord is in breach of his maintenance obligations under section 20 of the Act.
29. At the heart of the problem is the undisputed continuing existence of rat mites in the rental unit since January 2018. Aside from the fact that there was significant delay on the part of the Landlord in providing chemicals for the Tenant to spray the unit due to the Landlord’s insistence on a release for liability for harm to the Tenant’s pets when they had long departed the unit, it is also undeniable that the Landlord has thrown up his hands and decided not to address this problem believing it is impossible to rid the unit of them without first attempting to exterminate rats and mice that may be in the residential complex.
30. The Landlord dallied over obtaining a release from the Tenant; he delayed retaining a pest control service provider with expertise in ridding the unit of rat mites and has not provided any independent evidence from Aetna that it has that expertise. There are also no documents from Aetna regarding the work it has performed. But, more importantly, early on the Landlord recognized the unit would not be fit for habitation for an indefinite period, if ever, because of the difficulty in locating and eliminating rodent nests and rodents and rat mites in the residential complex.
31. I am satisfied there likely are rodents nesting in between the Tenant’s floor and the ceiling of the unit underneath. However, I heard no evidence that the Landlord has attempted even obvious measures such as sealing the residential complex against entry by rodents, including all vents and electric service entry points with rodent-proof material; checking for entry points around chimney and between loose shingles; and sealing doors and windows tightly. Instead, what I saw were photographs of large gaps in the siding near the ground. The Landlord insisted that these could not be entry points for rodents because there is a foundation behind those gaps but did not support this claim with expert testimony.
32. It may be so that there is no lawful way to exterminate rat mites by chemicals in which case I find the rental unit is unfit for habitation. Since it is the Landlord’s responsibility under subsection 20(1) of the Act to provide and maintain 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, I find the Landlord is in breach of this responsibility. Clearly, the rental unit should not be offered for rent to a tenant if it cannot be made fit for habitation. Accordingly, the Tenant is entitled to a rent abatement for the inconvenience and disruption that he has suffered through as a result of the significant continuing existence of rat mites.
Remedy
33. The Tenant is seeking a rent abatement of $11,388.00 based upon a full refund of rent from February 2018 to January 2019, together with $249.48 for treatment of the Tenants’ three cats and one dog to rid them of rat mites and requiring the Landlord to clean out rat/mouse nests inside and outside the rental complex and fill entry holes.
34. I do not fault the Tenant for not accepting the Landlord’s offer to terminate the tenancy early despite the likely existence of rat mites in the rental unit and rodents in the residential complex. That is because it was conditional on the Tenant not obtaining a rebate for some of rent that had been paid and return of only a portion of the last month’s rent deposit.
35. Since the Landlord was unable or unwilling to fulfill his maintenance obligation he is obliged to return the rent paid by the Tenant for the period the Tenant has not been able to occupy the rental unit free and clear of rat mites which began on January 25, 2018 when the Landlord was first notified of the problem to the present. The Landlord is not required to reimburse the Tenant for the treatment of his pets as the Landlord was unaware of the problem prior to their having become infested. The Landlord is obliged to return the last month’s rent deposit to the Tenant.
36. Because of the lack of any predictable date for eradication of the problem of rat mites and rodents, the tenancy is terminated.
It is ordered that:
1. The tenancy is terminated effective January 31, 2019.
2. The Landlord shall pay to the Tenant a rent abatement of $11,388.00 and return the last month’s rent deposit of $949.00.
3. The Landlord shall pay to the Tenant the application filing fee in the amount of $45.00.
4. The total amount the Landlord owes the Tenant is $12,382.00.
TNT-82109-16 (Re), 2016 CanLII 72021 (ON LTB)
1. The rental unit is a house. The monthly rent is $900.00. The Tenants are responsible to pay all utility costs except the hot water heater rental.
2. The parties entered into a written agreement to lease on April 12, 2015. The tenancy is for a one year term commencing on April 15, 2015.
3. At the outset of the tenancy the Tenants paid a last month rent deposit in the amount of $900.00 and paid rent for the period April 15 to April 30 in the amount of $450.00. The intention of the parties was to adjust the rent period so that instead of the rent coming due on the 15th of each month it would come due on the first of each month.
4. The Landlord JR is a real estate broker. The lease documents were drafted by him or by someone on his behalf.
5. As part of the rental agreement, the parties signed an “agreement” dated April 12, 2015, in which the Tenants agreed that they were aware of the condition of the house; that they accepted responsibility for maintenance of the septic tank; that they agreed to maintain the property including the outside grounds in a “respectable manner”; that they agreed that any minor work to be done on the house is the Tenant’s responsibility; and that they agreed to allow the Landlords access to the cold water hose outside of the house for the Landlord’s personal use.
6. To the extent that any of the terms of the foregoing agreement purport to relieve the Landlords of the obligation to maintain and repair the rental unit, they are void and unenforceable by reason of S. 4 of the Act.
7. The Act requires the Landlords to provide and maintain the rental unit and the residential complex in a good state of repair and fit for habitation, and requires the Landlords to comply with health, safety, housing and maintenance standards. Any provision in a rental agreement that is inconsistent with this requirement is void.
8. Although the tenancy was to begin on April 15, 2015, the Tenants did not receive the keys for the unit until April 27, 2015 as it was not ready for occupancy until that day.
9. The Landlords have a garden centre at the rear of the property. In order to have an adequate water supply for the garden centre the Landlords created a hole in the outside of the rental unit so that they could attach a hose to the Tenants’ kitchen sink, which serves the Landlords’ garden centre. The hole in the house allowed rats to enter the rental unit.
10. The Tenants advised the Landlords of a rat infestation in the house. The Landlords refused to address the problem and told the Tenants to deal with it themselves.
11. The Tenants called two extermination companies in May and June 2015, both of which advised the Tenants that they could not effectively rid the house of rats because the hole created by the Landlords was not properly closed and sealed.
12. The Tenants purchased poisons and traps at a cost of $300.00 and ultimately were able to rid the house of rats by September 2015. The infestation was significant and caused distress and discomfort for the Tenants. The rats were the size of a woman’s size 10 shoe, as demonstrated by the photos submitted by the Tenants. They chewed a hole in the bottom of a door inside the house, left dirt and feces in the house and caused the Tenants to be concerned for their health and well being.
13. The Landlords refused to acknowledge that the pests were rats despite having been shown evidence of their size by the Tenants. The Landlords’ attitude was that the Tenants lived in the country and should get used to “field mice”.
14. The Tenants brought their own stove and refrigerator to the rental unit, as the ones supplied by the Landlords did not function properly. The Landlords advised the Tenants to discard the appliances that belonged to the Landlord at the time the tenancy began.
15. The rats chewed and damaged the wiring and other parts of the Tenants’ stove and refrigerator, rendering them unusable, and beyond repair.
16. The Landlords supplied the Tenants with a stove and refrigerator for their use after the Tenants’ appliances were destroyed by the rats.
17. On September 30, 2015, the tile and faucet in the bathroom shower collapsed, causing water to spew out of the broken faucet connection. The Tenants called the Landlords immediately to advise of the problem. The Landlords refused to repair the problem, advising the Tenants that the house was “as-is” and any repairs were the responsibility of the Tenants.
18. The only way to stop the water from gushing out of the broken faucet connection was to turn off the main water supply for the house. This was impractical as the Tenants required use of the water for day to day needs.
19. Ultimately on October 21, 2015, the son of one of the Tenants repaired and renewed the shower and the faucet system, and repaired the consequent damage to the tiles and plaster. The cost of the parts alone was almost $300.00. The Tenants’ son is a supervisor for a construction company. He charged a total of $717.60 for the parts and labour to complete the required work, which I find to be reasonable.
20. In the month of April 2016, the Tenants did not pay the full rent. For 16 days in April the Landlords called the Tenants numerous times each day and as late as midnight, demanding the rent and threatening to evict the Tenants without due process. The Landlords physically threatened the Tenants, resulting in the involvement of the police.
21. I find that the Landlords have failed to meet their obligation to repair and maintain the rental unit as required by the Act.
22. The Tenants are entitled to a refund of $300.00 for the poisons and traps required to kill the rats in the rental unit. They are also entitled to compensation in the amount of $350.00 for the loss of their stove and refrigerator which were destroyed by rats. The Tenants are also entitled to an abatement of rent of $150.00 per month for 5 months during which rats were present in the rental unit.
23. The Tenants are entitled to reimbursement in the amount of $717.50 for the repairs to the bathroom plumbing. They are also entitled to an abatement of rent in the amount of $150.00 for the interference with their use of the plumbing systems and bathroom for a 3 week period.
24. I find that the Landlords harassed and interfered with the Tenants in the month of April 2016 by their persistent and haranguing demands for money and threats of illegal eviction. While the Landlords are entitled to be paid rent and are entitled to request payment of rent they are not entitled to call insistently and persistently on a daily basis. Their proper remedy is to bring an application to the Board for non-payment of rent. The Tenants are entitled to an abatement of rent in the amount of $200.00 for the harassment and interference with enjoyment for this conduct.
25. The Tenants requested a refund for the rent paid for the period April 15, 2015 until April 27, 2015, as they did not obtain possession of the rental unit until April 27, 2015. This claim is outside the one year limitation period imposed by the Act, as the Tenants claim was filed with the Board on May 25, 2016, more than one year after the retention of these funds by the Landlords.
26. The total amount of rebates, compensation and abatement of rent to which the Tenants are entitled is $2,467.50. (5 x $150.00 + $300.00 + $350.00 + $717.50 + $150.00 +$200.00).
It is ordered that:
1. The Landlords shall pay to the Tenants $2,467.50 as detailed above.
