Frustrated Tenancies:

Question: When a residential unit becomes unoccupiable due to a fire, flood, or municipal condemnation, who can help a tenant understand whether the doctrine of frustration ends the tenancy under Ontario law and what steps the tenant should take next?

Answer: Lippa Legal Services can help tenants in Ontario, including in Vaughan and the surrounding GTA, understand when a tenancy may be treated as frustrated under section 19 of the Residential Tenancies Act, 2006 and what recourse may still be available, including what to do if repairs are lengthy or the unit is declared uninhabitable or prohibited by a condemnation order; for example, a condemned complex can terminate the tenancy by operation of law, and in longer restoration timelines tenants may not have security of tenure such as a first right of refusal to return, so get advice early about notice, documentation, and dispute options; to speak with a paralegal about your situation, call (416) 241-4529.  

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 some other 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:

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

An unforeseeable destructive event, often referred to as a force majeure, that renders a rental unit unoccupiable for an unknown length of time, generally, results in a frustration of the tenancy agreement, regardless of whether the event occurs during a lease period or during a month-to-month period. When such an event rises to the level of a frustration, the obligations of both landlord and tenant end and the tenancy arrangement, including the security of tenure, end.