Can a Landlord Suddenly Start to Impose Restrictions Upon the Use of Utilities?

When a Lease or Established Conduct Provides For the Inclusion of Utilities or Amenities a Landlord Is Forbidden From Unilaterally Altering the Lease Terms At a Later Date. Improperly Altering the Lease Terms May Occur By Imposing Limits Upon Usage of Utilities or Amenities and Constitute As Unreasonable Interference.

Understanding When Restricting or Limiting Utility or Amenity Usage Constitutes As Unreasonable Interference

Lawsuit Document Basic principles of contract law forbid one party to the contract from imposing changes to the agreement upon the other party without consent; and accordingly, a landlord is forbidden from imposing changes, such as changes to the use or access of utilities or amenities, without consent from the tenant.

The Law

Principles within contract law as well as prescribed statutory law conditions within the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 and various case law decisions of the Landlord Tenant Board forbid a landlord from interfering with the usage of utilities such as heat, hydro, and water, as well as interfering with the access to amenities such as parking, laundry, air-conditioning, among other things, once lease terms are agreed to or the tenancy arrangement is otherwise made. Per the Residential Tenancies Act, 2006, where unreasonable interference is addressed, it is said:

Landlord’s responsibility re services

21 (1) A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed, withhold the reasonable supply of any vital service, care service or food that it is the landlord’s obligation to supply under the tenancy agreement or deliberately interfere with the reasonable supply of any vital service, care service or food.

Non-payment

(2) For the purposes of subsection (1), a landlord shall be deemed to have withheld the reasonable supply of a vital service, care service or food if the landlord is obligated to pay another person for the vital service, care service or food, the landlord fails to pay the required amount and, as a result of the non-payment, the other person withholds the reasonable supply of the vital service, care service or food.

Landlord not to interfere with reasonable enjoyment

22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

As shown above, the Residential Tenancies Act, 2006, forbids a landlord from substantially interfering in the reasonable enjoyment of the rental unit, or the rental complex, by a tenant.  Interestingly, the prohibition forbidding a substantial interference is stated vaguely and therefore may be applied very broadly by the Landlord Tenant Board; and accordingly the specific circumstances within which a landlord may be found in violation of the Residential Tenancies Act, 2006, are many and varied.

Lease Lacking Specific Terms

Furthermore, even where the written lease was silent, meaning without stating any terms, about the use of an amenity or utility, it is the previous conduct of the landlord and tenant that establishes whether the use of an amenity or utility is, or becomes, an implied term of the lease and tenancy arrangement.  This is known as the estopple by conduct principle whereas parties to a contract, such as a landlord and a tenant, are forbidden in law from arbitrarily and unilaterally changing the rules regarding conduct that was previously permitted.

The principle of estoppel by conduct applying to the use of utilities or amenities where a lease is silent about the utility or amenity was well explained by the Landlord Tenant Board within the case of P.T. v. V.R., et alCET-74735-18 (Re), 2018 CanLII 88578 (ON LTB) where it was stated:

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.

12.  The lot survey submitted by the Landlord indicates that there is plenty of space to park along the eastern side of the Landlords’ house without encroaching on the right-of-way that is a dead end.

13.  Indeed, the photograph of a car parked beside the Landlords’ house shows it is not on the right-of-way and yet that was where the Tenant’s daughter apparently was parked when she was boxed in for 3 hours by the male Landlord in late January 2018. The male Landlord called the City parking enforcement division to have the Tenant’s daughter’s car ticketed but because she was present the enforcement officer refused to do so.

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.

Legally Making Changes

When a landlord wishes to legally make changes to the tenancy arrangement, and do so in a way that reduces services, utilities, or amenitites, previously provided to the tenant, the landlord may make an offer to reduce the rent in exchange for the reduced services, utilities, or amenities.  If the tenant accepts the proposed arrangement without undue influence or improper coercion, and the proposed arrangement complies with the law, then the change becomes legal; however, as explained above, the landlord is forbidden from unilaterally imposing changes.  With respect to the requirement to reduce the rent in compensation for reduced services, utilities, or amenities, and only upon agreement with the tenant, the Residential Tenancies Act, 2006, and O. Reg. 516/06 as the general regulation to the Act, state:

Decrease in services, etc.

125 A landlord shall decrease the rent charged to a tenant for a rental unit as prescribed if the landlord and the tenant agree that the landlord will cease to provide anything referred to in subsection 123 (1) with respect to the tenant’s occupancy of the rental unit.

Prescribed services, facilities, etc.

16. (1) The following services, facilities, privileges, accommodations or things are prescribed for the purposes of subsection 123 (1) and section 125 of the Act:

1. Cable television.

2. Satellite television.

3. An air conditioner.

4. Extra electricity for an air conditioner.

5. Extra electricity for a washer or dryer in the rental unit.

6. Blockheater plug-ins.

7. Lockers or other storage space.

8. Heat.

9. Electricity.

10. Water or sewage services, excluding capital work.

11. Floor space.

12. Property taxes with respect to a site for a mobile home or a land lease home.

(1.1) In a circumstance in which clause 137 (3) (c) or 138 (1) (b) of the Act requires a landlord to reduce the rent for a rental unit, the rent reduction rules that are prescribed for the purposes of clause 137 (3) (c) or 138 (1) (b) of the Act apply instead of the requirements set out in subsections (2) to (5).

(2) If there is an agreement under subsection 123 (1) or section 125 of the Act, the maximum increase in rent or minimum decrease in rent shall be the actual cost to the landlord of the service, facility, privilege, accommodation or thing, other than floor space, that is the subject of the agreement or, where the actual cost to the landlord cannot be established or where there is no cost to the landlord, a reasonable amount based on the value of the service, facility, privilege, accommodation or thing.

(3) If the agreement under subsection 123 (1) or section 125 of the Act is to provide or cease to provide floor space, the maximum increase in rent or minimum decrease in rent shall be proportionate to the change in floor space.

(4) If an amount determined in accordance with subsection (3) would be unreasonable given the nature and quality of the floor space added or taken away, the maximum increase in rent or minimum decrease in rent shall be a reasonable amount based on the nature and quality of the floor space and the amount of the change in the floor space.

(5) Despite subsections (2), (3) and (4), where a service, facility, privilege, accommodation or thing was provided in accordance with a previous agreement under section 123 of the Act, section 132 of the Tenant Protection Act, 1997, section 46 of the Rent Control Act, 1992 or subsection 96 (4) of the Residential Rent Regulation Act, the minimum decrease in rent on ceasing to provide the service, facility, privilege, accommodation or thing shall be equal to,

(a) the most recent amount of the separate charge for the service, facility, privilege, accommodation or thing; or

(b) where there is no separate charge, the increase in rent which the landlord took when the service, facility, privilege, accommodation or thing was first provided, adjusted by the percentage increase in the rent being charged for the rental unit from the date the service, facility, privilege, accommodation or thing was first provided to the date the landlord ceased to provide it.

Summary Comment

A landlord that attempts to remove, disrupt, limit, or restrict, the access to, or usage of, services, utilities, or amenities, that were specifically provided for within a lease agreement, or that were absent from the lease agreement and yet were historically provided, does so unlawfully and with the risk of being found in violation of section 21 or section 22 of the Residential Tenancies Act, 2006.

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Withdrawal of Amenities

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