Parking Spots (LTB)

CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB)

11. The issue for me to consider here is whether the Landlords have substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household by the male Landlord demanding the Tenant and her guests obtain his permission for them to park in the two unassigned spaces she has had the use of for about 4 years before September 2016 and arranging to have the Tenant’s daughter’s car and the Tenant’s guest’s car ticketed.

14. The lease is silent on the issue of parking by the Tenant’s guests or occupants. However, examination of the parties’ conduct suggests that there was a long-standing and until fairly recently uncontested practice of the Tenant’s guests parking on the property.

15. In Feather v. Bradford (Town), the Ontario Court of Appeal succinctly set out the general principles of estoppel by conduct as follows:

[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. ::(London: Sweet & Maxwell, 2001), at p. 891:

[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]

16. Through their conduct the Landlords permitted the Tenant the right to unassigned parking spaces for her car and that of her guests. Having relied upon that representation, the male Landlord is estopped from claiming authority to revoke this right four years later.

17. Consequently, I also find for at least the past year the Landlords have substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenant and the Tenant’s son while he was an occupant of the rental unit by demanding adherence to arbitrary rules with respect to parking for the Tenant and her guests, including her family members, contrary to a long established practice whereby the Tenant’ has two parking spots to use for herself and her guests and guests were able to park behind her car.

18. I also find the Tenant and her son suffered upset caused by, and fear of, the male Landlord to the point where they had to engage in soothing communications to mollify his dictatorial behaviour regarding parking.

Remedy

19. The Tenant asks pursuant to paragraph 31(1)(c) of the Residential Tenancies Act, 2006 (“RTA”) for a rebate equal to $2,000 and under subsection 41(6) of the RTA for an order the Landlords refrain from being in breach of this obligation.

20. This was an ongoing breach of an obligation with respect to the tenancy the remedy for which cannot go back more than one year from the date the application was filed, which was on March 28, 2018: see Toronto Community Housing Corporation v Allan Vlahovich.[2] Consequently, I will award a rent abatement of 10% for the period from April 27, 2017 to May 29, 2018 ($1,343 X0.10 X 13) = $1,745.90 and $80.00 for the cost of the two parking tickets, totalling $1,825.90. I find a 10% rebate on rent is appropriate because even though this was an irritating and upsetting pattern of misuse of authority it is mitigated somewhat by the fact that the Tenant was able to park her car on the premises and there were occasions when a guest could manage to park there.

TNT-58385-14 (Re), 2015 CanLII 2919 (ON LTB)

18. The tenancy terms were well established at the commencement of this tenancy. One of the agreed upon tenancy terms was the inclusion of parking.

19. The Landlord argued that it was understood between the parties that parking was provided to the Tenant as available, but no witnesses were called by the Landlord to give first hand evidence of the discussions between the Landlord and the Tenant in this regard. It was the Tenant’s evidence that that Landlord’s staff informed him that parking was provided free and without any restrictions or conditions. The Tenant has enjoyed continuous and unrestricted access to parking since the commencement of this tenancy. In other words, parking has been consistently made available to the Tenant for his entire tenancy. I accept the Tenant’s uncontested testimony in this regard. Furthermore, In accordance with section 202 of the Act, I find that having regard to the pattern of activities related to the residential complex, the parking facility is included for this tenancy, despite the notation specified in the tenancy agreement.

22. Furthermore, subsection 134(1) of the Act prohibits a landlord from imposing additional charges. Subsection 134(1) of the Act states:

134. (1) Unless otherwise prescribed, no landlord shall, directly or indirectly, with respect to any rental unit,

(a) collect or require or attempt to collect or require from a tenant or prospective tenant of the rental unit a fee, premium, commission, bonus, penalty, key deposit or other like amount of money whether or not the money is refundable;

(b) require or attempt to require a tenant or prospective tenant to pay any consideration for goods or services as a condition for granting the tenancy or continuing to permit occupancy of a rental unit if the consideration is in addition to the rent the tenant is lawfully required to pay to the landlord; or…

23. Clearly, the Landlord’s request for payment of an additional fee for parking, where the original lease provided that parking was included in the rent, is not permitted by the Act.It is also important to note that while this unit is an RGI unit as set out in section 7 of the Act that is exempt from several provisions of the Act relating to the rent charged, sections 125 and 134 of the Act are not one of the exempted provisions. Therefore, sections 125 and 134 of the Act apply to RGI units.

24. I find that the Landlord is attempting to unilaterally change the original agreed upon terms of the tenancy agreement. A tenancy agreement is a valid contract. The general principles of contract law prohibit the Landlord from unilaterally changing the terms and conditions of a tenancy agreement. The parties agreed that parking was a facility included in the rent. One would reasonably conclude that the cost for parking would have been included in the original tenancy agreement as part of the agreed upon rent.