Frustrated Tenancies:

Question:After a fire or major water leak makes my rental unit uninhabitable in Ontario, does the doctrine of frustration end my tenancy and what can I do next?

Answer:If a fire, flood, major water leak, condemnation, or other unforeseeable force majeure event makes a residential unit impossible to occupy, Ontario’s doctrine of frustration can end the tenancy by operation of law under section 19 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, which may also affect security of tenure (including any practical right of return where repairs take a lengthy, indefinite time) as discussed in AS v. CJM, 2010 CanLII 58985 and Y.Y. v. A.T. and L.W., 2013 CanLII 51226.   For tenant recourse, the next steps usually involve documenting the uninhabitability, asking for written timelines on repairs, checking whether the issue is temporary versus lengthy or indefinite, and considering applications or submissions to the Landlord and Tenant Board where appropriate, which a paralegal at KLP Paralegal Services can help you assess based on your situation, including what rights you may still have and how to protect yourself while the unit is unusable.   Call (416) 570-6378 in Ontario to get started.

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Understanding When the Doctrine of Frustration Applies to a Residential Tenancy and What Recourse Does a Tenant Have?

Certain events, such as a major fire, flood or serious water damage, tornado or windstorm, or some other unforeseen circumstances, including changes in law, may arise with the result being that occupancy of the residential premises becomes impossible.  When the tenancy becomes impossible due to an unforeseeable outside force, sometimes called a force majeure event, the contractual obligations of both the landlord and the tenant, whether during a lease period or after the tenure converts to a month-to-month, are deemed frustrated and the tenancy arrangements come to an end as per section 19 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 where it is said:

Note: Please contact KLP Paralegal Services by phone at: (416) 570-6378 to discuss any specific questions that you may have.

Condemnation

Sometimes a rental unit becomes unoccupiable due to an order issued by the local municipality that condemns the premises. This type of situation occurred and was the issue within the case of AS v. CJM, TSL-05808-10 (Re), 2010 CanLII 58985 where it was said:

Accordingly, and apparently, despite that premises may become condemned due to the neglect of the landlord, as a matter of law, frustration of the tenancy agreement, and thereby termination of the tenancy agreement with corresponding termination of the tenancy, results when the premises are officially condemned.

Ceasing of Security of Tenure

Where a tenancy agreement is deemed frustrated, such as in circumstances where a fire requires restorative work that will be extensive and take considerable time, the security of tenure, including first right of refusal to return following restorative work, is absent.  Only where the restorative work can be done in a reasonable amount of time will the tenancy agreement be without frustration and therefore with security of tenure protected as per the case of Y.Y. v. A.T. and L.W., TEL-32649-12 (Re), 2013 CanLII 51226 where it was said:

Summary Comment

An unforeseeable destructive event, often referred to as a force majeure, that renders a rental unit unoccupiable for an unknown length of time, generally, results in a frustration of the tenancy agreement, regardless of whether the event occurs during a lease period or during a month-to-month period. When such an event rises to the level of a frustration, the obligations of both landlord and tenant end and the tenancy arrangement, including the security of tenure, end.