What makes a lease clause illegal?
Lease agreements in Ontario are governed by the Residential Tenancies Act ("RTA"). The most fundamental rule of the RTA is found in Section 4:
Provisions conflicting with Act void
4 (1) Subject to subsection 12.1 (11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4; 2017, c. 13, s. 1.
This means any clause in a lease agreement that contradicts the RTA is void, or in other words, unenforceable.
If a clause in a lease is found to be void, it doesn't make the entire lease void, only the specific provision that contradicts the RTA.
This being said, there are a few common clauses that I see in lease agreements regularly, that are actually unenforceable.
1. No Pets
This one should be fairly well known by now - yet I continue to see them in lease agreements. The RTA spells this one out very clearly:
"No pet” provisions void
14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void. 2006, c. 17, s. 14.
A lease agreement cannot prohibit a tenant from having a pet.
While a "no pet" clause can't be enforced, a landlord is allowed to ask a tenant if they have any pets in a rental application - and deny them based on that. Also, if the pet is causing damage to the unit, it can create grounds for eviction, so be mindful of this.
The exception to the "No pet" provisions rule are in condos where the corporation has passed rules and by-laws that prevent residents from having certain pets. In these instances, a "No pet" clause would be valid and enforceable by the Landlord.
2. No Roommates
This one catches a lot of people by surprise.
A Landlord cannot prohibit a Tenant from getting a roommate or bringing in someone to live with them, like a spouse or partner. They become referred to as guests or occupants. The original Tenant is, however, entirely responsible for their conduct and behaviour.
This also means that a Landlord cannot charge extra fees or raise the rent because there's a new guest or occupant in the unit.
Remember though, these guests or occupants do not have the same rights as a Tenant. If the original Tenant ends their tenancy, the guest or occupant's rights end as well. If they don't vacate with the original tenant, they become an unauthorized occupant and are subject to eviction.
3. Tenant Responsible for Lawn Maintenance
This is a highly debated topic. I wrote a previous article about this here.
Exterior Maintenance is the Landlord's responsibility under Section 20 (and the Maintenance Standards regulation) of the RTA. Therefore, they cannot transfer that responsibility to the Tenant by way of the lease agreement.
So when a Landlord simply writes "the Tenant agrees to be responsible for lawn maintenance" in the lease, the clause is unenforceable.
However, if the Landlord and Tenant prefer to create a relationship where the Tenant is responsible for the lawn maintenance, they can do so by way of a separate contract.
As long as this agreement is separate (severable) from the tenancy agreement, it will be valid. It just can't be done through the lease.
4. Tenant to Pay Repair Deductible
I've seen this one written a few different ways, for example:
"The Tenant agrees to pay the first $100 of any repairs inside the unit"
A Landlord cannot charge a tenant a deductible for regular maintenance of the unit. Regardless of whether the Tenant agrees to the arrangement via the lease, this clause would contravene the Landlord's responsibility to keep the unit in good repair and in accordance with maintenance standards.
This responsibility also applies to appliances provided with the unit, common areas, parking lots, and hallways.
However, any damage to the unit or appliances caused by the tenant or their guests and occupants will be the full responsibility of the Tenant. This includes both wilful damage and negligence.
What to do if you find an illegal lease Clause?
If there is a clause in a lease agreement that is in fact unenforceable, it DOES NOT give the Tenant the right to stop paying rent.
When the Landlord-Tenant relationship is good, the first step should simply be to bring the error to their attention. If the issue cannot be resolved from there, an application to the Landlord and Tenant Board may be necessary. Consult with a paralegal or lawyer to understand your rights.
- A clause in a lease agreement that's inconsistent with the RTA is unenforceable
- An unenforceable clause doesn't void the entire lease agreement
- Keep an eye out for the following clauses: No Pets, No Roommates, Tenant Responsible for Lawn Maintenance, Tenant Pay Repair Deductible
- If there is an unenforceable clause in a lease, it doesn't give the Tenant the right to withhold rent
Real Estate Lawyer