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.