Leases and Lawns: Maintenance Rules for Residential Tenancy

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Yesterday, I was reviewing a lease.

It was for a single-detached property, where the tenant would occupy the entire home.

I started reading through the "Additional Terms" section and I come across this:

Bingo, we have a problem.

This clause (and any similar clause) is void and unenforceable.

Why?

It takes away a Landlord's responsibility under the Residential Tenancies Act (RTA).

Section 26 of Regulation 517/06: Maintenance Standards, states that the Landlord is Responsible for exterior maintenance.

There's also a famous case from 2009, Montgomery v. Van, where the Court of Appeal confirms that snow removal is the Landlord's obligation and cannot be transferred to the Tenant through the lease.

Nowadays, the Landlord and Tenant Board frequently cite this case and apply the rule equally to lawn maintenance.

So remember the rule:
You cannot make a tenant responsible for grass and snow as a term of the lease.

But... 

The Court of Appeal in Montgomery v. Van did more than just confirm the rule, they provided a solution around the rule:

A Landlord can contract with a Tenant to provide snow removal services - as long as that agreement is severable from the lease.

In plain English: There has to be a separate contract.

So...

If a Landlord and Tenant want to create an agreement where the Tenant is responsible for grass and snow, they need to have 2 separate contracts.

The first is a lease agreement that creates tenancy.

The second is a service agreement where the Tenant is paid by the Landlord to perform maintenance.

Simply adjust the rent accordingly.

Key Takeaway

Create a separate contract to transfer property maintenance responsibilities to a Tenant.


Written by
Zachary Soccio-Marandola
Real Estate Lawyer

Direct: (647) 797-6881
Email: zachary@socciomarandola.com