A Landlord's Duty To Maintain A Residential Property

Introduction

In an economic climate where younger generations cannot afford to purchase real estate, it is of fundamental importance that landlords know and thoroughly understand their duties and obligations. According to the Canadian Rental Housing Index of 2018, rental properties account for approximately 4.4 million households across Canada, which equates to 32% of all households.1 In Ontario specifically, approximately 30% of all households are renter households.2

As a result of the prominence of renter households in our province, the potential for liability on the part of the landlord is exponential. This paper focuses specifically on the duty of care that a landlord has for maintaining a rental complex or residential unit a good state of repair. The governing legislation includes the Occupiers Liability Act, and the Residential Tenancies Act.

These Acts set out the responsibilities in question and assist in determining whether the landlord, as an occupier of residential properties, fell below the standard of care.

To whom is a duty of care owed?

Landlords owe a duty of care to tenants and their guests to maintain the premises in reasonably safe conditions. This duty of care is created under both the Occupiers Liability Act, and the Residential Tenancies Act. A landlord cannot contract out of this duty of care, per the Residential Tenancies Act. Liability can be limited on the part of landlords for predictable maintenance standards, through municipal bylaws. Liability may also be limited in cases involving the retention of independent contractors or where a party entering the premises voluntarily assumes risks..

The Occupiers Liability Act (1990) (OLA) governs accidents in both residential premises, commercial premises, such as, shopping centres, grocery stores, warehouses.3 An "occupier" under the OLA includes a person who is in physical possession of premises, or a person who is responsible for or who has control over the conditions of the premises, the activities carried out on the premises, or control over the persons allowed to enter the premises.4 Section 3(1) of the OLA requires that an occupier must take reasonable care to see that people are reasonably safe while on the premises. This section creates the duty of care. However, the OLA creates situations where this duty of care is limited and, therefore, may not always apply.

The landlord's duty of care does not extend to ensuring that the property is free of any possible danger.

The landlord's duty of care does not extend to ensuring that the property is free of any possible danger. Meaning, the occupier is not constantly required to monitor the area. Determining what is a reasonable step to ensure the premises are safe, is fact-specific. Furthermore, section 3(1) is limited by section 4(1) OLA. Section 4(1) OLA states the duty of care owed under section 3(1) does not apply if a person who enters the premises willingly assumes risks. Finally, section 3(3) OLA allows an occupier to restrict, modify, or exclude the occupier's duty.

The duty of care for an occupier extends to landlords under section 8 of the OLA, which states:

Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the...