Unlawfully Using Fresh Lease Agreement
Involving Rent Increase Beyond Statutorily Allowable Guideline Percentage
Page last modified : December 06 2023
Even if a tenant does not have insurance coverage, can they still be held accountable for any harm or damage caused by the landlord?
If a tenant causes harm, injury, or losses to the landlord or others, liability insurance may shield them against claims made by the landlord against them.
Recognizing Tenant Liability Risks That Come From Landlord-Tenant Relationships and Go Much Further to Involve Others
This article’s content is only meant to serve as information about the legal matters that
may occur if a renter is involved in or accused of producing losses involving harm or damage that impact a landlord.Consult an insurance expert
for specific information and guidance regarding insurance, such as the kind and amount of coverage that should be carried, among other things.
Potential Incidents
Injuries
Tenants may occasionally cause incidents that result in responsibility, loss, or harm during their tenancy, which could have an impact on the landlord either directly or indirectly. It’s also possible that they could inadvertently leave a toy on the stairs, which could lead to a fall that injures the landlord. This could happen in a thousand different ways, including when a landlord forgets to pick up after a child and falls.
Losses By Damage
Among thousands of scenarios, one that may represent a loss to the landlord would be if a renter or the renter’s children unintentionally caused a water overflow that resulted in damage to the rental property and the landlord’s having to pay for repairs. This kind of circumstance happened in the 2019 CanLII 134460 case P.R.E.S.C. v. J.N., TSL-08531-19 (Re), where the tenant was held accountable for water damage that caused losses because the landlord had to pay for the repairs. The Landlord Tenant Board said specifically that: 0
23. The Residential Tenancies Act, 2006, SO 2006, c 17 (the “RTA”), subsection 89(1), states that the tenant shall reimburse the landlord for the reasonable expenses he has expended or will incur to fix any damage to the residential complex.
24. Although the apartment downstairs is a part of the residential complex, the landlord is still obligated to pay for maintenance. The landlord does not own the unit.
25. In response to each of the two floods, the building administration dispatched two contracting companies. Four invoices totaling $1,471.21, $1,966.78, $389.85, and $316.40 were generated as a result.
26. Despite the fact that the first two invoices appear to be fairly expensive, given the circumstances, I believe the sums are reasonable. I make those two points. First of all, the building management would not have had time to get estimates and choose the least expensive approach to complete the job because a flood is an emergency. Management had to engage the contractors they had on hand, despite the exorbitant rates, in order to respond fast. Second, it is well known that responding to an emergency by contractors frequently entails additional costs.
27. An additional fifth invoice for $1,853.20 is present. This was for the May 27, 2019, repair work that included plastering and painting to fix the ceiling drywall of the tenant’s apartment. The baseboards were changed as well. A contractor chosen by the building administration completed the job. The landlord authorized that contractor out of concern that the owner of the unit might not be happy with the caliber of the repairs if it selected its own contractor.
28. The tenant claims that $1,853.20 was not a fair price to complete this part of the repairs and that the landlord should have sought quotes in an effort to locate a contractor who could complete the work more cheaply.
29. Considering the situation, I am confident that the Landlord had a legitimate cause to employ the building management company’s contractor. The price for this kind of job was within what one would anticipate. In cases where the sum charged by the building management’s contractor was appropriate, the landlord did not need to think about choosing a different contractor and maybe triggering a disagreement with the owner of the other apartment.
30. As a consequence, I am certain that the $5,997.44 total claim represents the fair cost of repairs.
Liable in Injuries to Others
Again, out of thousands of scenarios, one example of a liability loss to the landlord involves a third party other than the landlord or tenant, in which case both the landlord and the tenant bear some liability; however, in cases where a tenant lacks insurance or has inadequate coverage, the landlord is responsible for paying a disproportionate share of the money owed to the third party victim. One such scenario might be if a tenant’s guest trips over something the tenant placed on the steps leading to the rental apartment, injuring them, and the guest files a lawsuit against both the renter and the landlord. If the tenant is found to be responsible for leaving the object on the steps and the landlord is found to be twenty-five (25%) percent liable for providing inadequate lighting, the landlord may be held disproportionately liable. However, under the joint and several liability and operation of the Negligence Act, R.S.O. 1990, c. N.1, if the tenant is uninsured and cannot pay the victim’s seventy-five (75%) percent portion, the landlord is legally required to compensate the victim in full. In the 2010 ONCA 596 case of Taylor v. Allen, there was a split liability situation when tenants were held largely accountable and a landlord was found partially liable.
[20] I concur with the petitioner.The following is stated in Sections 94(1) and 80(1) of the LTA:
94. (1) Despite the fact that any state of non-repair existed to the tenant’s knowledge prior to the tenancy agreement being entered into, the landlord is responsible for providing and maintaining the rented premises in a good state of repair and fit for habitation during the tenancy as well as for adhering to health and safety standards, including any housing standards required by law.
80.(1) Notwithstanding any other Act, Parts I, II, or III of this Act, as well as any agreement or waiver to the contrary, this Part applies to tenancies of residential premises and tenancy agreements, unless otherwise expressly stated in this Part.
[21] The landlord of residential property is required by law to maintain and repair the property, as stated in Section 94(1).This responsibility takes precedence over any agreement or waiver to the contrary, according to Section 80(1).According to Sharpe J. (as he then was), see Phillips v. Dis-Management (1995) 1995 CanLII 7079 (ON SC), 24 O.R. (3d) 435.
[22] Because this was a residential property, the respondent landlord was subject to this statutory responsibility, which his rental agreement with the tenants could not waive.In addition, if the renters had been harmed by the cinder block risk, the respondent could not use the rental agreement as a defense in court.
[23] For the purposes of s. 8(1) of the OLA, these premises were occupied under a tenancy in which the landlord is responsible for the upkeep and repair of the premises. This is the combined impact of ss. 94(1) and 80(1) of the LTA.In addition, the rental agreement could not stop the landlord’s default from becoming actionable at the tenants’ suit for the purposes of s. 8(2).Consequently, the respondent landlord was obligated by this Act to demonstrate a duty of care to any occupier of the premises with respect to any hazards resulting from the landlord’s inability to fulfill their responsibilities, as stated in OLA § 8(1).
[24] To put it another way, s. 8(1) requires the respondent to give the appellant the same level of care that an occupier would be required to provide under s. 3 of the OLA in the event that a hazard results from the respondent’s neglect of the premises.
[25] To sum up, in accordance with s. 3 of the OLA, the respondent owed the appellant not just a duty of care as occupier.According to OLA s. 8(1), he owed the appellant a duty of care.For this reason, the trial judge erred in concluding that the respondent owed the appellant no duty of care.
[26] According to me, the trial judge’s findings of fact inevitably lead to the conclusion that the respondent violated the s. 8(1) of the OLA’s duty of care owed to the appellant.The respondent landlord violated his legal duty to maintain the property by allowing the hazard to persist, especially considering that he was the one who initially installed the cinder blocks around the fire pit.This failure resulted in the hazard that hurt the appellant.According to s. 8(1) of the Act, the respondent thereby violated his duty of care to the appellant.
[27] Based on my analysis, it can be concluded that the respondent landlord violated his duty of care to the appellant, both under section 3 of the OLA as an occupier and section 8(1) of the OLA as a landlord who is accountable for maintaining and repairing the property.Given the trial judge’s 50% assessment of the appellant’s contributory negligence, the respondent bears joint and several liability with the tenants for 50% of the appellant’s damages.As the trial court did with the tenants, I would evenly divide the fault between the landlord and the two renters.It is appropriate to hold each of them accountable for one-third to half of the appellant’s damages.
Duties as Owed to Public
The Occupier’s Liability Act, R.S.O. 1990, c. O.2, and the common law outline the obligations owed to all parties, including visitors, agents of the landlord, strangers other than trespassers, and even as between the landlord and the tenant. Furthermore, the Negligence Act provides the possibility that the landlord—or, technically, the tenant—may be left with the financial burden of compensating a victim in full even though they are only partially at fault. This is a possibility, albeit an unlikely one. In particular, the Negligence Act and the Occupier’s Liability Act state:
Definitions
1 In this Act,
“occupier” comprises
(a) an individual who possesses real estate, or
(b) an individual who oversees and controls the state of the property, the activities conducted there, or the individuals permitted access,
even though the same premises are occupied by multiple people; (“occupant”)
“premises” refers to either lands or constructions, and comprises the following:
(a) water,
(b) watercraft and ships,
(c) trailers and other transportable buildings intended for use as a home, place of business, or shelter,
(d) automobiles, trains, railroad cars, and airplanes, excluding those that are in use.
Common Law Occupancy of Care Replaced
2 Subject to section 9, this Act takes the place of the common law regulations that specify the level of care that a premises occupier must demonstrate to establish their legal liability for any risks to people accessing the property or their belongings brought onto it.
The Occupier’s Responsibility
3 (1) A property owner has an obligation to use reasonable caution to ensure that anyone entering the property and any belongings they bring with them are safe while on the property, given all the relevant circumstances.
Likewise
(2) Whether the risk is brought about by an activity occurring on the property or by the state of the premises, the duty of care outlined in subsection (1) nonetheless applies.
Likewise
(3) The duty of care outlined in subsection (1) is applicable, with the exception of any circumstances in which the occupier of the premises is free to limit, alter, or waive their obligation.
…
Landlord’s Responsibilities as an Occupier
8 (1) When property is utilized or inhabited by virtue of a tenancy agreement, wherein the landlord is in charge of upkeep and repairs, the landlord has an obligation to treat any person or their property brought into the property with the same level of care of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
Idem
Idem
(2) A landlord must not be considered to have defaulted under this section in fulfilling any obligation to a person unless the default is of a nature that could give rise to legal action at the suit of the party entitled to possession of the premises.
Definitions
(3) Any enactment that imposes obligations by virtue of a tenancy shall be interpreted for the purposes of this section as being imposed by the tenancy; “tenancy” is defined to include statutory tenancies, implied tenancies, and contracts that grant the right of occupation; “landlord” shall be construed accordingly.
Utilization of Section
(4) Regardless of when the Act was enacted, all tenancies are covered by this section.
Idem
Liability’s extent and remedies over
1. If two or more people are found to be at fault or negligent, the court will determine how much each of them contributed to the damages. If more than one person is found to be at fault or negligent, they will be held jointly and severally liable for the person who suffered loss or damage as a result of their fault or negligence. However, if there is no express or implied contract between the parties, each will be responsible for contributing to and indemnifying the other to the extent that they are each found to be negligent or at fault.
Healing as It Relates to Tortfeasors
2. A wrongdoer can get compensation or indemnity from any other wrongdoer who is, or would if sued have been, liable in respect of the damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereafter commencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the court that the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it may fix the amount at which the claim should have been settled.
Subrogation
Idem
Sometimes a renter will argue that a landlord ought to be forced to file claims against the insurance the landlord has instead of suing the tenant for damages. This argument is pointless because the landlord’s insurance carrier may subrogate claims against the tenant in the event that the landlord makes claims against the insurance it carries, and even in cases where the landlord makes genuine claims. Subrogation, to put it simply, is the procedure by which an insurance company tries to recover losses paid to, or on behalf of, its client when, in reality, the occurrence was caused by someone else. Therefore, whether the landlord demands payment from the renter directly or whether the insurance of the landlord seeks to recoup monies paid to the landlord, the tenant remains in the same financial position of owing compensation to either the landlord or the insurance company of the landlord. In response to the attempted argument that a landlord should make claim against the insurance company of the landlord rather than pursuing the tenant, in the case of P.R.E.S.C. as referenced earlier as above, the Landlord Tenant Board said:
31. According to the tenant, the landlord should have filed an insurance claim with its insurer to lessen its losses. That is not a convincing argument for me. A claim made through insurance transfers loss but does not lessen it or change liability. In the event that a claim had been filed, the insurance provider may have subrogated itself against the tenant to recover the damages.
According to the Insurance Act, R.S.O. 1990, c. I.8, which states the following, an insurance company is legally entitled to act in the position of its client who has suffered a loss. For example, an insurance company may act as a landlord and seek reimbursement for damages or injuries caused by the tenant.
152 (1) The insurer is subrogated to all rights of recovery of the insured against any person upon making a payment or taking liability therefor under a contract to which this Part applies. The insured may initiate legal action to enforce these rights.
Summary Comment
Tenants may be held accountable to the landlord if they inadvertently hurt the landlord, suffer losses as a result of damage to the landlord’s property, or hurt a third party and subsequently file claims that lead to the landlord having to pay out excessive amounts of money. The landlord’s insurer may file a claim against the tenant if the landlord makes claims against the insurance that the landlord has. Tenants should have enough liability insurance for these and other reasons, such as the possibility of being liable to parties other than the landlord.
A tenant should speak with a qualified insurance expert if they would like to acquire insurance that might defend them against lawsuits filed by the landlord.
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