You’ve given notice, moved your belongings to your new digs and left your former rental home in what you thought was good condition.
Then you get the bill.
Your old landlord has compiled a list of damages they say you’re responsible for — a new coat of paint for marks on the wall, perhaps, or to cover grout replacement for mould along the bathtub.
When it comes to damages, what can a tenant be held responsible for?
The Residential Tenancies Act states “the tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.”
At best, the terms wilful and negligent are “subjective,” according to landlord and tenant lawyer Caryma Sa’d.
An example of negligent damage could be something like if a shower head has been leaking since a tenant took up residency in a unit and it caused parts of the basin to begin moulding. If a tenant neglects to tell their landlord of the problem and the issue grows, so does the cost of repairs. Because the tenant didn’t make their landlord aware of the problem, the onus may be on the tenant. That’s why Sa’d said it’s “so important for there to be a good chain of communication between the parties.”
Sa’d also said that a portion of claims for negligent damage have been filed due to damage caused when a tenant tried to fix a problem themselves, and only made it worse.
“Negligent damage can be understood to mean damage that is accidental or incidental to a tenant’s activities,” Lynn Burns, media representative for Pro Bono Ontario, an organization who provides legal services for Ontarians who cannot afford them, wrote to the Star.
Wilful is intentional damage, according to Pro Bono Ontario. “This could also extend to reckless behaviour that is very likely to result in damage, such as if a tenant caused damage by dragging a large object up a staircase instead of lifting it,” Burns said.
Wear and tear
If there are crumbs behind the stove, the top layer of paint is a bit worn and there are some indents in the carpet where your bed frame marked up the floor, both Sa’d and George Brown, president of the Ontario Paralegal Association, said this could be regarded as wear and tear, and a landlord would be hard-pressed to make a claim once a tenant has left. However, everything is case specific.
It’s “anything that the landlord can easily repair by simply repolishing or repainting,” Brown said.
Burns defines it as “wear and tear that is not unusual in the circumstances. “For example, if the flooring is at issue, general wear would include a worn carpet or scratched floor that would ordinarily occur through everyday use. Similarly, if a kitchen surface was at issue, general wear and tear could be seen to include minor chips or stains that is normal for surfaces of the age and material at issue.”
Does a tenant have to pay?
Sa’d said it’s up to the landlord to push a claim if they see fit. Since it is illegal for landlords to hold money in the form of a “damage deposit,” a landlord with a tenant still living in the unit would have to file a claim with the Landlord and Tenant Board (LTB) to request payment from a tenant for specific damages through an N5 form.
Further, Burns said if a tenant still resides in their landlord’s unit, a landlord can file to end the tenancy due to damage.
Brown said many people think landlords can simply charge a tenant as they see fit, but that isn’t true — the landlord must take the claim to the LTB with proof of the damage and a few estimates on how much repairs will cost. From there, the file will move into a small claims court.
If, however, the tenant has already moved out and a landlord notices damage that could be classified as wilful or negligent, the issue is out of the LTB jurisdiction and the landlord would have to file directly to small claims court. According to Brown, this doesn’t fair well for landlords, as a tenant could potentially argue that the claim should have been made through the LTB while they occupied the unit, and that they are not responsible for damages.
“Landlords need to pay attention and monitor their property,” he said.
For both tenants and landlords, Sa’d said they should consider what the total value of the damages are and use their own judgment — or in some cases, legal advice — to decide if the time and expenses of going to a small claims court is worth the price of damages caused.
There are a few best practices both landlords and tenants can take to help avoid potential conflict in repair costs, according to Sa’d. For starters, both parties should take video of the unit before anything is moved in. “You want to get a general sense of what the place looks like.” It may be beneficial to do something similar when the lease is terminated or expired.
Secondly, Sa’d recommends tenants keep a list of maintenance issues and faulty utilities so there is a record of them notifying their landlord. Similarly, she said landlords should do routine checks, at least annually, so they aren’t surprised by anything when the tenant moves out, that would cause a landlord to file for damage fees.
“Landlords have to be proactive,” Brown said, noting that damages must be faced when they become apparent.