Recent deluge launches a flood of landlord-tenant issues

CITIZEN ADVERTISING FEATURES Source: DICKIE & LYMAN LLP, who practice landlord/tenant law and other areas of law.

QUESTION:

My daughter rents a basement apartment in Toronto. In the heavy rains this past Monday, she was flooded out and is staying with me in Ottawa until her apartment is habitable again. I presume she will not have to pay rent for the period her apartment is uninhabitable, but what about her travel expenses and the damage to her furniture? Can she get out of her lease to rent a new apartment which is not in a basement?

ANSWER:

A landlord is not responsible for everything that happens in a rented apartment. Given the extreme weather event that caused the flooding, it is unlikely that the landlord is to blame. That being the case, the landlord is not responsible to pay for any travel expenses your daughter incurs or for any alternate accommodation. The landlord is also not responsible to pay any compensation for damaged belongings.

Depending on the terms of her insurance policy, your daughter may have a claim under her tenant insurance for alternate accommodation or for compensation for her belongings. Your daughter’s landlord would likely have insurance on their building, but that insurance will not cover the belongings or expenses of a person other than the landlord.

As to getting out of the lease, there are several issues. If the landlord agrees, the lease can be brought to an end. The landlord might be willing to do that in order to avoid time pressure in doing the repairs, or to perform more extensive renovations than a mere restoration of the basement unit to its former condition.

If the landlord is not willing to end the lease, then whether your daughter can end it would depend on how long the restoration of the unit will take. There may be a term in the lease that addresses the parties’ rights if the unit will be uninhabitable for longer than 90 days.

Generally, the landlord’s obligation is to repair the unit within a reasonable period of time. Given the widespread nature of the flooding, there may be a severe shortage of restoration tradespeople in Toronto for the next few months. Such labour shortages will probably mean the landlord is allowed more time than would usually be allowed.

That potentially leaves tenants who have been flooded out in a bind. If your daughter can stay with you for an indefinite period of time, that may be the best solution. A tenant with no family to fall back on may be best to reassess their living situation to decide whether they want to plan to move back into the former unit, or to break their lease with lots of notice to the landlord. Under that scenario, the landlord would be obliged to seek to minimize his or her losses by renting the apartment as quickly as possible after the repairs are completed.

The starting point should probably be a frank discussion with the landlord about the realistic time line for the restoration of the unit. That can only be held once the landlord has assessed the damage and found out the realistic time line for the necessary repairs.

If the time line will be very long — for instance three months or more — so that the tenancy agreement is “frustrated,” then a tenant can walk away from the lease. If the time is shorter and the tenant walks away without the landlord’s agreement, then the Landlord and Tenant Board would have to determine whether the delay resulted in “frustration of the contract.” If not, then the tenant would likely be responsible for the lost rent for the period after the unit has been restored.