Worth knowing for the next snow day
So far, the University of Guelph has closed due to snow days three times this winter. With snow days comes a lot of (you guessed it) snow. When it comes to university cities teeming with rental properties it’s important to know what your role and responsibilities are as a tenant or landlord when it comes to shoveling driveways in Guelph.
Section 20(1) of the Residential Tenancies Act 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.”
So what does that mean in terms of responsibilities? Court rulings have determined that snow removal falls under these maintenance obligations.
You may then be wondering: what if your lease agreement states that snow removal is the responsibility of the tenant? Other than in very rare fact-specific scenarios, any clause in a lease agreement that puts the responsibility of snow removal onto the tenant will be considered unenforceable.
Irrespective of any clauses in a tenancy agreement, landlords are statutorily required to perform the maintenance obligations set out under 20(1), and that includes snow removal. This is outlined by the Ontario Court of Appeal in Montgomery v. Van, 2009 ONCA 808. In that case a tenant slipped and fell on the stairs to her basement apartment and sued the landlord for not clearing the snow. Even though there was a clause in that particular tenancy agreement stating that snow removal was the responsibility of the tenant, the court found that liability rested with the landlord under their 20(1) maintenance obligations.
The ruling in Montgomery v. Van stated that it is possible to pass the responsibility for snow removal onto a tenant, but only through a separate contract, or a severable clause in the tenancy (which would effectively make it a separate contract). Furthermore, there must be consideration given to the tenant for undertaking these services (that is, payment or reduction in rent).
If a landlord wants to make snow removal the responsibility of the tenant then it should be treated as if they were hiring a third-party, with proper contractual terms in place.
Do you have a question for Cailen? Email him at info@swainparalegal.com and remember to put The Ontarion in the subject line.
Photos obtained via Unsplash