July 15, 2021 | Christianah
Even though under a lease agreement, the tenant takes possession of the property, the landlord still has some obligations to fulfill under the agreement. On some occasions, performance of these obligations can be so crucial to the lease agreement, that failure to execute them could make a landlord responsible for a tenant’s negligence. In today’s blog post, we examine the case of Youssef (Litigation guardian of) v Misselbrook,  OJ No 462, 2020 ONCA 83, and the obligations that may be imposed on landlords to maintain a property even after leasing it to a tenant under the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
Redi-Mix (the “Landlord”) owned a rural residential property of about 100 acres. It was rented to Mark Burnfield (the “Tenant”), who used it as a farm to keep livestock, which was done with the knowledge of the Landlord. The Redi-Mix property was fenced along the northerly limit of its 100 acre parcel of land that paralleled Winchester Road, in addition to fencing on the east-west limits. However, the fences and gate were not secure for the purpose of keeping livestock. Amir Youssef was riding his motorcycle on Winchester Road in Durham Region on September 6, 2009 at approximately 3:00 a.m. when his motorcycle struck a donkey on the road. The donkey had escaped from the Tenant’s property, along with four others. Youssef lost control, suffered serious injuries, and had no recollection of what happened. Youssef, through his litigation guardian, sued both the Tenant and the Landlord for negligence. The Landlord also brought a third-party claim against the Tenant. The main contention between the Landlord and Tenant in this case is the condition of the fencing and gates and the obligations of the Landlord to inspect, maintain and repair, if necessary, the gates and fences.
The Court held that the Landlord was responsible for the condition of the fence and was negligent because he had no policy or procedure in place to inspect or repair the fences.
This decision was based on the provisions of the Residential Tenancies Act which describes the responsibilities of landlords.
Section 20(1) states:
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Section 8 of the Maintenance Standards, O Reg 517/06, specifically provides:
8. Retaining walls, guards and fences in exterior common areas shall be maintained in a structurally sound condition and free from hazards.
The Court also held that it made no difference whether the tenancy was a residential or a commercial tenancy or whether the landlord was in or out of possession of the tenanted property.
From this case, it is unmistakable to see that a landlord’s obligations do not end once he or she rents out a property to a tenant. In certain circumstances, like the one described in this case, the landlord can even be made accountable for the negligence of his or her tenant. It is therefore important for both landlords and tenants to be aware of their responsibilities under lease agreements and the statutory provisions of the Residential Tenancies Act (Ontario) or Commercial Tenancies Act (Ontario), as applicable.
If you have any questions about the use of lease agreements and how to properly structure them to protect your interest in future real estate matters, kindly book a free consultation with Northview Law on this link, or contact us at 416-639-7639. We look forward to hearing from you soon.