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?

Incidents that cause serious damage such as a fire, a tornado, a flood, a major water leak, or another catastrophic circumstance, may occur and cause impossibility of occupancy of a residential unit.  Even a change in law may occur in such a way as to make compliance impossible. When a tenancy is made impossible due to unforeseeable outside forces, such is referred to as a force majeure event, and the legal result is that the statutory obligations as well as the contractual obligations of the landlord and the tenant come to an end as per section 19 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17. This ending of the tenancy relationship due to the frustrating event occurs regardless of whether the frustrating event happens within a lease period or happens afterwards when the lease is expired and the tenure is converted into a month-to-month arrangement. Specifically, the Residential Tenancies Act, 2006 says:

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 perhaps surprisingly, even when premises become condemned due to neglect, meaning a failure of maintenance, by the landlord, a frustration of the tenancy occurs resulting in a termination of the tenancy agreement, whether as a lease agreement or a statutory month-to-month agreement, when the rental unit is 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

When a serious force majeure event occurs, rendering the premises unoccupiable for an unforeseeable length of time, the tenancy agreement, whether within a lease period or month-to-month period, becomes frustrated and all obligations cease including the security of tenure usually enjoyed by the tenant.