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Full text of "Interim report of the Ontario Law Reform Commission on landlord and tenant law applicable to residential tenancies"

ONTARIO 



INTERIM REPORT ON 
LANDLORD AND TENANT LAW 
APPLICABLE TO RESIDENTIAL TENANCIES 



ONTARIO LAW REFORM COMMISSION 



1968 



DEPARTMENT OF THE ATTORNEY GENERAL 




ONTARIO 



INTERIM REPORT 



of the 



ONTARIO LAW REFORM COMMISSION 



on 



LANDLORD AND TENANT LAW 



APPLICABLE TO RESIDENTIAL TENANCIES 



1968 



DEPARTMENT OF THE ATTORNEY GENERAL 



The Ontario Law Reform Commission was established by section 1 
of The Ontario Law Reform Commission Act, 1964, for the purpose of 
promoting the reform of the law and legal institutions. The Com- 
missioners are: 

H. Allan Leal, Q.C., LL.M., LL.D., Chairman 
Honourable James C. McRuer, LL.D. 
Honourable Richard A. Bell, P.C., Q.C. 
W. Gibson Gray, Q.C. 
William R. Poole, Q.C. 

Dr. Richard Gosse, Q.C. is Counsel to the Commission. The 
Secretary of the Commission is Miss A. F. Chute, and its offices are at 
Room 470, Parliament Buildings, Toronto, Ontario, Canada. 



TABLE OF CONTENTS 

Page 

Chapter I Introduction 7 

Chapter II Distress 13 

Chapter III Security Deposits 21 

Chapter IV Contracting Out 29 

Chapter V The Obligation to Repair 35 

Chapter VI Restrictions Against Children 47 

Chapter VII Restrictions Against Trading 48 

Chapter VIII Accelerated Rent 51 

Chapter IX Mitigation of Damages Upon Abandonment of 

Premises by Tenant 52 

Chapter X Doctrine of Frustration 54 

Chapter XI Termination of Tenancies 55 

Chapter XII The Independence of Lease Covenants 56 

Chapter XIII Lessees' Rights Prior to Taking Possession 

(Interesse Termini) 58 

Chapter XIV Covenants Relating to Things in Being (In Esse) 

and Things Not in Being (In Posse) 59 

Chapter XV The Leasehold Advisory Bureau 59 

Chapter XVI Rent Control 63 

Chapter XVII Procedure on Adjudication 72 

Chapter XVIII Protection from Retaliatory Eviction 73 

Chapter XIX Summary of Recommendations 75 

Appendices A, B, C, D, E r F 



3] 



Digitized by the Internet Archive 

in 2011 with funding from 

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ONTARIO 



ONTARIO LAW REFORM COMMISSION 



PARLIAMENT BUILDINGS 
TORONTO 2 



To The Honourable A. A. Wishart, Q.C., 

Minister of Justice and 
Attorney General for Ontario. 



Dear Mr. Attorney: 

Pursuant to the provisions of section 2 (1) (a) of The Ontario Law 
Reform Commission Act, 1964, the Commission initiated a study con- 
cerning the Law of Property. One section of this study is devoted to the 
law governing the relation of landlord and tenant. In view of the 
urgency of the problems respecting residential tenancies, work in this 
particular area was given priority. The Commission now submits an 
Interim Report dealing with some of these problems. 

Further reports on the law governing the relation of landlord and 
tenant will be submitted when research and study now in progress has 
been completed. It is hoped that it will be possible with further study 
to simplify, consolidate and possibly codify the law in this field. An 
important aim of such further study would be to express the law and 
leases made pursuant to it in simple, easily understood and modern 
terminology. A simple standard form of lease for ordinary use is most 
desirable. 



[51 



CHAPTER I 
INTRODUCTION 

1. Aims and Scope OF the Report 

On July 31, 1967 the Commission engaged Professor Morley R. 
Gorsky, Faculty of Law, Queen's University, to do a study of the entire 
law of landlord and tenant. The research demonstrates that there are 
some matters which require immediate legislative action. Other less 
urgent topics must be left for further study and a subsequent report. 
The aim and scope of this interim report is to deal with the following 
subject matters: 

(a) Distress 

The remedy of distress and its operation in Ontario has been studied 
with a view to ascertaining whether its continuance under present 
conditions is justified. 

(b) Security Deposits 

Some aspects of the practice of taking security deposits are of fairly 
recent origin and they have not been the subject of any legal control in 
this jurisdiction. We were concerned to establish whether the right 
of a landlord to require a security deposit upon a tenant entering into a 
lease should be permitted, limited or regulated. A study has been made 
of the various schemes which have been developed in other jurisdictions 
to cope with some of the problems arising out of the practice of requiring 
security deposits and the difficulty that tenants often experience in 
obtaining a return of the security deposit at the end of the lease. 

(c) Contracting Out 

Should the landlord be permitted to require the tenant, upon enter- 
ing into the lease, to contract out of certain statutory protection that is 
provided for the tenant, such as the statutory provisions with respect to 
assigning and sub-letting, and exemptions with respect to distress? 

(d) Obligation to Repair 

We have reviewed the law governing the obligation to repair as it 
exists at common law and have studied the impact on the landlord and 
tenant relationship where municipalities enact minimum standard by-laws 
with respect to dwelling-houses. Such by-laws exist in Ottawa, Kingston, 
Toronto and other areas. We have devoted considerable attention to 
these by-laws and the demands made by landlords for increased rent as 
a result of repairs that have been made to comply with the standards 
imposed by the by-laws. 

(e) Restrictions Against Children 

The practice of denying accommodation in certain types of residen- 
tial units to families with young children is neither new nor isolated. 
We have analyzed the factors in this social problem in an effort to deter- 
mine whether there is a viable legal solution. 

[7] 



(/) Restrictions Against Tradesmen 

High rise apartment dwelling is a growing factor of urban life. 
Restrictions are imposed by landlords or their agents on tradesmen mak- 
ing deliveries to these premises and on the tenant's right to select his 
own commodity and service supplies such as dairymen, laundrymen, etc. 
Should the nature of these restrictions be free of control? 

(g) Rent Control 

A study has been made of rent control legislation as it has existed 
and exists in various jurisdictions in peace time, and the law of Quebec 
which gives to municipalities some power to enact rent control laws. 
In addition, consideration has been given to The Leasehold Regulations 
Act, 1951 and The Rent Control Act, 1953. 

(h) Conciliation 

Experience dictates that many disputes arising between landlord 
and tenant are attributable to ignorance of their respective rights and are 
frequently susceptible to speedy solution without resorting to full scale 
adjudication. Often the complaints are matters that might lend them- 
selves to some form of adjustment through an intermediary. Con- 
sideration has been given as to whether it would be possible to develop 
some conciliation procedure whereby these disputes could be settled 
expeditiously and inexpensively. 

(i) Procedure on Adjudication 

We have considered whether better and less expensive procedures 
could be developed for settling those disputes involving landlords and 
tenants which come before our courts for adjudication. The particular 
difficulties that tenants experience have been under review. A study 
has been made of experiments tried in other jurisdictions. 

These nine topics cover the most commonly reported areas of 
concern. This report, however, does make recommendations in a num- 
ber of other areas and the Commission recognizes that there is a con- 
tinuing need to examine the landlord and tenant laws in broader detail. 
This will, however, require much more time and it is hoped that this 
continuing need will be met and the results of further studies com- 
municated in subsequent reports. 

Experience obtained during the preparation of background studies 
to this report has confirmed that there is among most tenants, and many 
landlords, a strongly felt need for a review of the efficacy of the existing 
landlord and tenant laws. This need is especially clear in the areas 
chosen for examination. 

This study is further restricted to residential tenancies. The special 
problems of commercial tenancies require separate attention. 



2. Method of Study 

There are some assumptions which guided us in the study leading 
to this report and some basic principles which underlie it. 

(a) Almost every contemplated change in the landlord and tenant 
laws must be fully examined in order to anticipate its total 
effects. There is a danger that any particular change could 
have harmful effects which would outweigh any possible 
benefits. Particular attention has been given to this problem. 
In each case where a change in existing laws is dealt with all the 
foreseeable consequences are set forth. Assistance in project- 
ing the consequences has been obtained by studying the impact 
of similar changes in other jurisdictions. To the extent that 
the conditions in such jurisdictions differ from those existing 
in Ontario, similar consequences may not follow if the particular 
changes are made here. An attempt has been made to deter- 
mine if different circumstances are sufficiently material to affect 
the use of experience outside Ontario. 

(b) In carrying out this study there has been no intention to ascribe 
particular blame or bestow praise upon either landlords or 
tenants. It is impossible to read the statements of concerned 
persons, as reported in the press, and as set forth in briefs 
submitted to the Commission, and various organs of govern- 
ment, without becoming aware of the tendency to create the 
"good guys" and the "bad guys" out of landlords and tenants. 
Not only does this tendency hamper the work of law reform but 
it emphasizes an approach to legislation which is irrational, in 
that it fails to recognize the legitimate interests of all parties 
involved in the landlord and tenant relationship. 

(c) Much of the emphasis of this study is placed on the legitimate 
interests of the parties to the relationship. Considerable assist- 
ance in the analysis of what are the legitimate interests of land- 
lords and tenants has been obtained by resorting to the history 
of the changes which have occurred in other areas of land law, 
and particularly in the evolution and development of the law 
of mortgages in Ontario. Attention has been focused upon the 
growth of protective legislation respecting the rights of the 
mortgagor or persons having an interest in the mortgaged 
premises, and this has proved illuminating and rewarding. 

While cautioning against the moralistic approach to law reform, 
it is likewise suggested that the formal legal approach to the development 
of legal principles be discarded. An instance where this has been done 
is found in the law of mortgages. The courts in the exercise of their 
equitable jurisdiction, and the legislature in keeping with the equitable 
principles developed by the courts have necessarily made value judg- 
ments concerning the essential rights of mortgagors and mortgagees. 
Having made these value judgments courts have had a continuing legal 
basis for protecting the vital interests of the parties. While more will 
be said on this subject, in the case where one is dealing with the essential 



10 

rights of mortgagors and mortgagees, it is the money advanced by a 
mortgagee which the courts primarily protect and it is the right to 
redeem the mortgaged lands and premises of the mortgagor (or the 
present owner of the equity of redemption's interest in the mortgaged 
lands and premises) which the courts similarly endeavour to protect. 
Given this "golden thread" which runs through the greater part of the 
subject area courts have fashioned a law based on a balancing of these 
vital interests. Where the courts have been unsuccessful in maintaining 
a successful balance, the legislature has often enacted legislation to 
maintain the balance. 

The common law of landlord and tenant, over the centuries, has not 
developed any legal philosophy based on a theory of vital interests. 
The single most important feature of landlord and tenant law is the 
existence of the leasehold "estate" of the tenant. The vesting of the 
estate in the tenant underlies the rather fixed nature of the law and has 
caused courts to determine the rights of tenants according to rigid land 
law principles rather than in accordance with the more realistic develop- 
ment of contract and tort law which would likely apply in the absence 
of the estate theory. 

This is not an isolated phenomenon peculiar to the province of 
Ontario, but one which affects most of the common law world, including 
the common law provinces of Canada and most of the United States of 
America and England. Landlord and tenant law is not in a consistently 
logical sense concerned with the interests of landlords and tenants and 
it has not even attempted to define them. In a sense the common law 
of landlord and tenant is mechanical in that its conclusions as to the 
rights of the parties are based on the fact of the "estate", not on any 
realistic standard of vital interests which the law will endeavour to 
protect. 

This dominant feature of the law has led to the following anachro- 
nistic consequences: 

(1) Except for cases which for practical purposes will rarely, if 
ever, occur a lessee who has not first obtained actual possession 
cannot obtain a court order for possession even though he has 
a valid lease. Such a court order is only available to one who 
having been in possession has subsequently been dispossessed. 

(2) A lessee not having entered into possession is limited to an 
action for damages and such damages are restricted to either 
his legal costs of investigating title, where there is a lack of 
title in his landlord, or the difference between the rent he has 
agreed to pay and the rent with the premises would normally 
yield. This means that a landlord who refuses to give possession 
does so at minimal risk. In the rare cases where possession is 
not given because of a defect in title in the landlord, there being 
no fraud on the part of the landlord, expenses of searching title 
are not a serious concern. In the more usual case where the 
premises are not completed or where possession is withheld 



11 

for other reasons, damages which can be awarded are likely to 
be non-existent. The most important elements of damage, 
such as loss of business profits in commercial leases or expenses 
incurred by dislocation, incidental to a denial of possession are 
not recognized by the court, unless the court can imply their 
being calculated as a term of the lease. 

(3) At common law the court implies no obligation on the part of a 
landlord to effect any repairs. 

(4) In the event of the destruction of a house, and perhaps an apart- 
ment, the landlord need not rebuild and is entitled to collect 
the stipulated rent to the end of the term of the lease. Lease 
covenants are, peculiarly enough, independent. 

(5) Where a tenant unlawfully quits the leased premises and the 
landlord has an opportunity to re-let to another tenant, in all 
respects suitable, he is not obligated to do so, and can continue 
to hold the original tenant responsible without even attempting 
to reduce the amount of his loss or damages. 

(6) At common law the landlord is not responsible for any damage 
caused to his tenant because of the dangerous condition of the 
premises, even if the landlord knew or ought to have known of 
such dangerous condition, and even where the danger is not 
readily apparent to the tenant. 

This list is by no means complete and is merely produced to em- 
phasize peculiarities which adhere to landlord and tenant law and which 
have moulded it. 

(d) A further assumption which underlies this study is that the 
extent to which contractual provisions can equalize the position 
of residential tenants is limited by the disparity of bargaining 
power between the parties. It is attractive to assume that it 
is the availability of accommodation which distorts the balance of 
power either in favour of the landlord or the tenant. But it 
is not now possible to accept freedom of contract at any given 
time as a fact in the area of the landlord-tenant relationship 
any more than it is in the mortgagor-mortgagee relationship. 
Even during periods of abundantly available mortgage funds, 
mortgage companies very infrequently alter the form of the 
mortgage contract, although admittedly interest rates may 
drop in response to conditions in the money market. Similarly 
landlords' "standard forms" of lease do not change appreciably 
during periods of greater availability of rental accommodation. 
Rents charged may decrease, or allowances may be made by 
the granting of a number of "free" months rent and the dropping 
of "security deposits", but other terms and conditions are 
rarely altered or amended. 

Tenants do not often insist that changes be made in lease provisions 
just as mortgagors do not request changes in the terms of the "standard" 
form of the mortgagee's mortgage. From this fact one might infer that 



12 

"standard" terms are agreed to more or less freely. This conclusion 
overlooks the fact that these contracts have now become virtually con- 
tracts of adhesion. The belief that one ought to be bound by one's 
bargain, freely arrived at, is not questioned but too often apparent 
freedom of contract does not stand up to close examination. The 
legislature has recognized this fact in relation to mortgage contracts 
and also with respect to various contracts relating to personal property 
security and consumer contracts of purchase and sale. 

In each of these latter cases, statutory protection recognizes in- 
equality of bargaining positions and the absence of freedom of contract 
in any real sense. Remedial legislation in such cases is admittedly 
based on value judgments concerning the basic interests of the 
parties which must be protected. The principle of freedom of contract 
must be flexible enough to yield where experience has shown it to be 
a pious hope and an unrealistic assumption. 

The creation of any new value structure, based on the vital and valid 
interests of the parties, contains its own dangers. If the values re- 
cognized for protection are not accurately represented or if the means 
of protecting them are inadequate, new problems may be created and 
old ones, perhaps, accentuated. 

(e) An examination of efforts to effect changes in the landlord and 
tenant laws demonstrates the need to create effective procedures 
so that the intention, inherent in the changes, can be realized. 
If new rights are created, they must be capable of being en- 
forced speedily and with a minimum of expense. If procedures 
are slow, costly and difficult to follow, the remedy which they 
are intended to achieve will not be realized in the manner 
intended. In some cases an ineffective procedure can destroy 
the intent of the legislature. Examples will be provided of the 
ways in which procedure might support the remedy. 

(J) Any assessment of the adequacy of landlord and tenant law 
which is to avoid an undue degree of subjective analysis, re- 
quires the use of empirical data based on objective studies. 
Answers are required to such questions as: 

(i) how extensive are the problems focused upon, i.e. how 
many people are involved? 

(ii) what is the geographic distribution of the problems? 

(iii) what is the economic distribution of the problems? 

(iv) what is the incidence of relief achieved by those who seek 
it? 

To this end an opinion survey of landlords and tenants in Metro- 
politan Toronto was conducted. The development of the study and its 
results are set forth in Appendix A. 



: 



13 

There is no doubt that in this as in other matters it has become 
increasingly essential to know the dimensions of the legal problem as 
established by empirical data. No longer is it sufficient to rely on the 
traditional doctrinal approach to research. We can only know about 
distress, for example, if we know how many distress warrants are issued; 
where the greatest incidence of distraints takes place; who is affected; 
how many irregular distraints occur; how often they are questioned in 
the courts. Admittedly the answers are not easy to obtain, but with 
the refinement of techniques of investigation, results of reasonable validity 
can be hoped for. 

(g) Finally, it is necessary to recognize the limitations of what may 
be achieved by changes in the landlord and tenant laws. Legis- 
lation may achieve many beneficial results in the areas examined 
but no false hopes should be raised. The greatest single obstacle 
to stability and fair dealing in this area of the law is the acute 
shortage of housing accommodation. Amendment of the 
landlord and tenant laws can, however, establish an atmosphere 
of order and stability in this field which could provide the 
impetus for the creation of sufficient rental accommodation at 
rents within the economic means of every person. It will be 
readily admitted that ill conceived changes can have a regressive 
impact on the rental accommodation market. 

Recommendations 

Continuing Study: This interim report deals only with the most urgent 
problems in the law of landlord and tenant. It should be recognized 
that there is a need for further research and study. 

Scope of the Study: In some important aspects residential and com- 
mercial tenancies require different legal treatment. This report is based 
on a study of residential tenancies. Commercial tenancies should be 
the subject of separate examination. 

CHAPTER II 

DISTRESS 

The remedy of distress, available to a landlord as a means of recover- 
ing rent, has been the subject of much comment. The feudal common 
law origins of this remedy and the ancient lineage of the statutory law 
of distress, much of which is still retained, has resulted in an undue 
emphasis being placed upon the employment of language which appears, 
at best, to be quaint and at worst, to be opaque and unclear. This 
tendency towards criticism of the form overlooks the need for an examina- 
tion of the substance of the law. If distress is to be retained it should 
be retained on the basis that the substance of the law deserves to be 
retained. Language which is archaic can be recast. Procedural anomalies 
can be overcome by appropriate amendment. Before this can be under- 
taken, the decision to continue the remedy of distress will have to be 
made and for this to be done the nature of the remedy must be examined, 
stripped of its procedural trappings. 



14 

Essentially, distress in Ontario is an extra-judicial remedy for the 
recovery of rent. It represents one of the remaining self-help remedies. 
Once the relationship of landlord and tenant is found to exist the land- 
lord, without any judicial order, can enforce payment of rent arrears 
by distress. 

The landlord, once rent is in arrears, has the right to effect the distress 
personally or through an agent, usually a bailiff holding a certificate 
of qualification under The Bailiffs Act, R.S.O. 1960, c. 29, and to enter 
the premises and take enough property to provide reasonable security 
for the outstanding rent and expenses. 

By statutory amendment the landlord has the right to sell the goods, 
if the rent is not paid, and to apply the proceeds towards the arrears 
of rent and costs. For present circumstances the vast body of law and 
procedure on this topic need not be examined and such matters as means 
of levying the distress, the time of distress, method of impounding and 
sale, and the means of attacking an unlawful distress may be left in 
abeyance. 

The major question requiring examination is: shall laws permitting 
recovery of an indebtedness by self-help, generally outside the super- 
vision of the court, be continued? That the right of distress is an 
anachronism cannot be denied. A few vestiges of the self-help remedies 
apply outside the area of landlord and tenant law. The most notable 
examples are in the area of repossession and sale of chattels by con- 
ditional sales vendors, sale under power of sale in a chattel mortgage 
and private mortgage sales in the case of real property mortgages. 
In all of these cases there has been a steady growth in statutory protec- 
tion for the benefit of the conditional sales purchaser, chattel mortgagor 
and the mortgagor of real property. Whatever may have been the 
justification for distress as a remedy during feudal and medieval times 
and during the time of the industrial revolution, its efficacy must now 
be determined in accordance with the contemporary standard of meeting 
the justifiable interests of landlords and tenants. 

Landlords would justify the continuance of distress on the basis 
of their special creditor position. Unlike the retail merchant, the land- 
lord, it is claimed, has no effective means of terminating the continued 
granting of credit. While the grocer and furniture store owner can 
refuse to supply additional goods, the landlord, before "credit" can be 
cut off, must usually commence a proceeding for possession and enforce 
an order for possession by the sheriff effecting the writ of possession. 
Even the recovery of possession does not guarantee that further losses 
will not occur, for a new tenant must be found and during the interval 
damages continue to accrue. Thus there appears to be substance in 
the position taken by landlords. The levying of the distress, however, 
does not determine the tenancy and therefore it is not legally a means 
of recovering possession. In practice a distress involving the removal 
of the chattels from the premises does result in the tenant departing and 
not returning to the premises. Therefore, what is achieved in practice 
is but a by-product of the enforcement of a legal remedy for recovery of 
rent. 



15 

In fact, when a distress is completed by a sale of the goods, the 
availability of possession is virtually assured to the landlord. Unlike 
the case of an execution debtor the tenant is often without any exemp- 
tions, for leases almost inevitably provide for the tenant contracting out 
of all statutory exemptions under The Execution Act, R.S.O. 1960, c. 126 
as amended S.O. 1967, c. 26. A successful seizure can leave the tenant 
with nothing but the clothes on his back. In theory, the rent having 
been recovered through resort to distress, the tenant remains entitled 
to his leasehold estate. In practice, this poses some real problems for 
a tenant now devoid of the bare necessities for existence. 

While the legality of contracting out of the protection of the exemp- 
tion provisions of The Execution Act is not finally settled, it is accepted 
as legal by landlords and some dicta support this conclusion. 

Most landlords stated, and there is evidence supporting their view, 
that the number of distress proceedings represents less than 1% of their 
total tenancies. They also stated that the threat of distress is usually 
effective and results in the payment of rental arrears. Some landlords 
maintain that the continuance of the practice whereby tenants are 
required to contract out of exemptions is necessary, not because the 
articles in question are essential to realize the rental arrears, but because 
an impounding of basic living requirements has the effect of making 
recovery of rent more certain. 

In summary the evidence supporting the landlords' position would 
appear to be: 

(1) that he is in a worse position as creditor than merchants; 

(2) that very few distress proceedings are in fact taken; 

(3) that the landlord rarely has to go beyond issuing a distress 
warrant in order to obtain payment; 

(4) that even though they are engaging in self-help procedures 
bailiffs are concerned lest their actions subject them to loss of 
their certificate of qualification; 

(5) that without the availability of distress, a certain number of 
tenants would hide behind their execution-proof status; 

(6) implications of the loss of the right to resort to distress proceed- 
ings would extend to the general attitude of that minority of 
tenants the landlord is concerned with. Breach of repair 
covenants, which can ordinarily be converted into rent arrears 
and are therefore capable of being distrained upon will cause 
further loss to landlords if distress is made illegal; 

(7) if distress is done away with as it has been in many Australian 
and American states, including New South Wales, Victoria, 
Xew York and California, what will replace it; 



16 

(8) it is the "good" tenants who will suffer for the sins of the "bad" 
tenants if distress is done away with. 

Recognizing the strength of the landlords' position the major 
question remains: in an era when the tendency is to civilize debtor- 
creditor relations by requiring court action in aid of recovery, rather than 
self-help, is there a place for distress? And what of the fears of landlords 
if distress is to be abolished? 

Without doubt an extension of self-help remedies to merchants 
generally would now be considered a regressive and Draconian measure, 
even if the collection of debts would likely be made more certain. As 
with credit grantors of all kinds, there is a risk and some responsibility 
for credit losses which should rest on the creditor who grants credit 
without proper investigation. There can be no suggestion that a land- 
lord, in the private sector, is under any obligation to rent to a tenant 
whose credit record and past record as a tenant provides a clear indication 
that such prospective tenant represents a "bad" risk. No one should 
expect landlords in the private sector to provide rental accommodation for 
all potential tenants irrespective of an assessment of their history as 
tenants. While on a comparative basis we have been well served by 
private landlords, there is a large area where they cannot effectively 
function and should not be expected to function. Too often persons who 
probably should not be serviced by private landlords are the "bene- 
ficiaries" of the law's worst aspects. To submit that only an infinitesimal 
number of tenants are ever involved in distress procedures and that 
there seems little evidence of abuse is, however, not a sufficient answer. 

From the tenants' position the major shortcomings of distress, 
apart from procedural deficiencies are: 

(1) Where there is an illegal distress the tenant's remedy is inade- 
quate. This is especially true where the tenant's chattels have 
been impounded off the premises. 

(2) The usual requirement of the tenant giving security for the 
rent and costs of the distress and the other proceedings under 
Part II of The Landlord and Tenant Act are unrealistic. The 
tenant who is faced with the reality of a distress is rarely in a 
position to provide security for rent and costs. 

(3) Similarly the arsenal of means available to a landlord, deter- 
mined to succeed against a tenant, especially where personal 
animus exists, are formidable. Most well-drawn leases provide 
for acceleration of all or a substantial part of the rent, upon 
breach of any covenant, which provision has generally not been 
treated as a penalty and therefore is not void. There is no 
relief against such provisions as in the case of relief from for- 
feiture or against a penalty under either The Landlord and 
Tenant Act, R.S.O. 1960, c. 206, s. 19, or The Judicature Act, 
R.S.O. 1960, c. 197, s. 19. Where rent is accelerated there is 
little chance of a tenant preserving his interest in the chattels 
even if he has a partial defence. 



17 

(4) Costs of distress governed by the regulations made under The 
Costs of Distress Act, R.S.O. 1960, c. 74 are high. The following 
example is based on arrears of rent for two months at $125.00 
per month: 

(a) Levying distress $5.00 

(b) For taking bond in lieu of possession (If possession 
necessary $10.00 per day per man.) 3.00 

(c) Receiving, riling, preparing warrant 3.00 

id) Mileage (av. 5 miles) 1.00 

(e) Appraisal (av. 2 app.) 35.00 

(/) Advertising (average) 15.00 

(g) Where amount due paid before sale 12.50 

(h) Costs of handling, tracing, removing goods, etc. . 10.00 

Total (average) $84.50 

(5) These figures are not unusual where one proceeds beyond 
entry. Where removal of goods occurs the costs can go much 
higher due to removal and possession expenses. Since almost 
all distress proceedings result in payment before impounding 
or taking other steps beyond entry, the costs in practice are 
lower. In fact, the threat of distress alone is usually sufficient 
to procure payment. 

Two factors emerge for consideration. Firstly: is the utility factor 
in favour of landlords to prevail over changing concepts with respect 
to self-help remedies? Where distress is pursued, it results in great 
hardship and disturbance. The tenant can be left without furniture 
and household belongings necessary for the most basic conduct of his 
life and that of his family, and the costs can easily equal the rental 
arrears. Secondly: many distress proceedings are taken with respect 
to goods which are subject to prior claim, e.g. those of conditional sale 
vendors. Tenants who are the subjects of distress proceedings are 
usually those buying furniture and other commodities on the instalment 
plan, i.e. by conditional sales contracts. In such cases the levying of a 
distress results in costs being incurred, usually without recovery to the 
landlord. Rarely is any investigation made prior to issuing the distress 
warrant. Where the goods have been impounded the tenant suffers 
and the landlord does not recover the rental arrears. 

Where a sale is effected, it is inevitable that the sums realized are 
truly "distress" prices. Forced sales attract the bargain seeker, and the 
second-hand value of beds, clothing, electrical appliances and furniture 
is extremely low. The tenant usually must replace them at a much 
higher price than that obtained on the forced sale, which only worsens 
the situation which precipitated the distress. 



18 

The Solution 

Tenants are often the authors of their own misfortune. Failure to 
pay rent when due can have a variety of causes ranging from sickness 
to unemployment and marital problems. Landlords are by no means 
unsympathetic to temporary difficulties and often enter into extended 
arrangements to provide for the satisfaction of arrears. Unfortunately, 
the tenant too often fails to disclose his problems until the bailiff arrives. 
Moreover, the propensity of landlords to serve as social counsellors is 
not by any means universal. 

No one should demand of a landlord that he become personally 
involved in his tenant's misfortune, nor is this likely to become the case. 
As a fundamental proposition, the landlord is entitled to the payment 
of rent when due. No one wishes to discourage acts of charity and human 
understanding, but to consider these qualities as a factor in the landlord 
and tenant relationship can disguise the need for a more realistic approach 
to such remedies as distress. Jurisdictions that have legislated distress 
out of existence do not appear to have suffered by it. Landlords in 
Ontario have rare occasions to employ the remedy other than in terrorem. 
To attempt to bring it under court supervision will not solve its anachro- 
nistic qualities. Landlords, and those representing them, acknowledge 
that the requirement of a court order to effect a distress would impair 
its usefulness. Transfer of implementation of the actual distress to the 
sheriff of the county would, according to landlords, further reduce the 
effectiveness of the remedy. From the tenant's position a distress will 
evoke the same problems no matter which authority has jurisdiction 
over its operation. 

On balance, the advantages of distress to landlords are far out- 
weighed by its disadvantages to tenants and the public. It offends 
modern attitudes against extra-legal self-help. It is mainly effective 
by virtue of its devastating consequences. Even when as a rare event 
it is carried through to sale, the recovery to the landlord hardly justifies 
the expenditure and the detriment to the tenant is disproportionately 
onerous. 

It should be borne in mind that merely removing the common 
law right of distress will not be sufficient unless the private contractual 
remedy of distress is similarly dealt with. 

The problems of protecting the landlord by some other means 
should be explored. This will be done under the next heading "Security 
Deposits". 

If despite our recommendation it should be decided to continue the 
right of distress then, at least, certain changes should be made to ensure 
that its functioning is not abused. In such a case we recommend the 
following: 

(1) It appears possible for the statutory limitations on distress to 
be altered by agreement between the landlord and the tenant. 



19 

(See Daniel v. Stepney (1874), L.R. 9 Ex. 185 and also Linton 
v. Imperial Hotel (1889), 16 O.A.R. 337, per Osier J. at p. 343 
where it is laid down that ". . . if the term is gone, the landlord 
being unable to distrain as at common law, or by virtue of the 
statute, the power of distress specially mentioned (emphasis 
added) in the lease can only be regarded as a personal license 
(emphasis added) to be executed on the tenant's own goods. 
. . .") Such form of waiver should be made illegal. 

(2) Contracting out of statutory exemptions should be prohibited. 

(3) It should be a requirement that a bailiff, or other person author- 
ized to levy the distress, bring the right to statutory exemptions 
to the attention of the person subjected to the distress and not 
as at present provided in section 29 (3) of The Landlord and 
Tenant Act: 

"29. — (3) The person claiming the exemption should 
select and point out the goods and chattels that he claims 
to be exempt." 

This subsection should be qualified by the requirement of 
making known to the tenant the nature and extent of the 
exemptions and then giving the tenant the right of selection. 

(4) Section 29 (2) of The Landlord and Tenant Act which restricts 
the exemption in the case of a monthly tenancy to two months' 
arrears of rent, is unrealistic. The monthly tenant has essential 
and basic needs equal to those of other periodic tenants and the 
exemptions barely cover basic human requirements. Distress 
should not be a device for creating public charges out of tenants 
by leaving them without basic quantities of clothing and furni- 
ture. This is especially true where replacement value so far 
exceeds receipts upon a sale pursuant to the distress. 

(5) Under section 32 (1) of The Landlord and Tenant Act, a tenant 
must either give up possession of the premises or offer to do 
so if he is claiming the statutory exemptions. While this may 
make many distress proceedings ineffective, in others they will 
place the tenant in a difficult position. If he claims his exemp- 
tions, he may have to seek alternative accommodation. This 
is contrary to the basis of distress, which does not interfere 
with the right to possession. 

If exemptions are necessary to preserve basic human needs it is the 
landlord who should have to decide whether to proceed with the distress 
and leave the tenant in possession or to forego the right of distress if he 
seeks possession. 

(6) At common law, chattels distrained had to be impounded. 
Section 50 (4) of The Landlord and Tenant Act provides for 
impounding on the premises or part of the premises. As has 



20 

been noted, if the right to distress is exercised, it means that the 
tenancy remains a subsisting one. If impounding off the 
premises is permitted without a court order, based on special 
danger of damage to the chattels if not impounded off the 
premises, the effect will be to deprive the tenant of both his 
chattels and his term. In theory, a sale may still leave the 
tenant in possession. The landlord, it is again suggested, 
must make a choice between possession and recovery of rent in 
arrears by action or distress and a continued right of possession 
in the tenant. 

(7) There has been an attempt, in this report, to demonstrate the 
extreme difficulty of retaining distress in a "civilized" form, 
whilst still preserving its effect as a remedy. As has been 
previously noted, many critics of the landlord and tenant laws 
condemn the archaic form of the statutory language, when 
in fact it is the substance that matters in its operation. The 
Landlord and Tenant Act is replete with examples of puzzling 
sections which are puzzling because shortcomings in the com- 
mon law necessitated their inclusion. (See ss. 3-9; 16; 25; 59; 
60; 61; which, inter alia, represent conscious changes in the 
previous common law.) Even if the language were changed, 
the reason for the sections would not be apparent without an 
understanding of the common law which existed prior to the 
enactments. Similarly, in the case of distress, such often 
criticized sections as section 43 ". . . sheaves or cocks of grain 
. . ."; section 44 (1) ". . . cattle . . . feeding or pasturing on a 
highway . . ."; section 44 (2) ". . . standing crops . . ."; and 
section 48 ". . . fraudulently . . . conveyed . . . and believed 
to be in any house, barn, stable, outhouse . . ." are part of the 
law only because of limitations in the rights to distrain at 
common law. The articles by the Honourable Chief Justice 
Williams contained in his Canadian Law of Landlord and 
Tenant (3rd ed., 1957), commencing at page 235, amplify what 
has here been touched upon. 

The essence of the dissatisfaction with the law of distress, expressed 
here, is not so much the archaic nature of the language, but rather its 
impact upon tenants. An attempt has been made to indicate the areas 
of concern. The conclusion reached is that the remedy is difficult 
to harmonize with acceptable contemporary standards of protection, with- 
out virtually destroying the remedy's efficacy as a landlords' remedy. 
Nevertheless, some suggestions have been made, which it is felt are 
essential to any modern legislative scheme of distress, if the remedy is 
to be retained. 



Recommendation 

Distress: The right to distrain, whether arising out of the common 
law, statute or contract, should be abolished. 



21 

CHAPTER III 

SECURITY DEPOSITS 

American authorities, in jurisdictions having abolished the remedy 
of distress, have treated the security deposit as a means of compensating 
landlords for the loss of the right to distrain. This can only be partially 
correct, for the reason that the usual security deposit against damage 
cannot be employed to make up arrears of rent without the tenant's 
consent. This can be provided by agreement, declaring the security 
deposit shall stand as security against damage which is the tenant's 
responsibility and payment of rent in arrears and performance of other 
covenants in the lease. 

In Ontario, the security deposit is a feature of many leasing arrange- 
ments. Its emergence usually coincides with a shortage of rental 
accommodation. Landlords, and those representing their interests, 
justify the taking of security deposits on the basis of the need to have a 
means of controlling damage committed by tenants and also as a means 
of recovering at least part of such damage without recourse to the courts. 

As has been noted, in jurisdictions where distress has been done 
away with by statute, such as the State of New York since 1846, the 
security deposit is thought of as one means of assuring the landlord that 
the tenant will discharge his obligations. These obligations, depending 
on the wording of the "Security Deposit" clause, may include, in addi- 
tion to repair obligations, all other obligations which may result in damage 
being suffered by the landlord, including the obligation to pay rent. 

Whatever the purpose of the security deposit it is fundamental that 
it is to be returned to the tenant at the termination of the tenancy, 
barring any breach of covenant by the tenant entitling the landlord 
to forfeit it, in whole or in part, on account of the damage or rent claim. 

In Ontario, on the basis of tenants' submissions and the response to 
questionnaries and individual interviews, the problem of obtaining repay- 
ment of the security deposit is the second most serious cause of tenant 
concern. 

The Landlords' Position 

Tenants are often not unsympathetic to the landlords' arguments 
justifying the collection of security deposits. The landlords' investment 
in the leasehold property is accepted as sufficient justification for the 
practice. Landlords, as in the case of the remedy of distress, state that 
the security deposit is effective because it operates as a deterrent against 
breach of covenants by the tenant. The experience of landlords in these 
matters must be respected and their real problems are not difficult to 
appreciate. If distress ceases to be part of the law of landlord and 
tenant (and many landlords are concerned about the manner in which 
the remedy is capable of being enforced), the landlords' desire to maintain 
the right to obtain security deposits must receive sympathetic attention. 



22 

The Tenants' Position 

One of the major complaints of tenants concerning security deposits 
is the financial burden of laying out monies at the commencement of the 
term. Some tenants maintain that interest should be paid to them by 
the landlord as the monies remain the tenants', at least until forfeiture. 
By far the most serious complaint, however, relates to the difficulties 
encountered in obtaining repayment of the deposit on the termination 
of the tenancy. 

There is some justification for limiting the amount of a deposit to 
one month's rent with the stipulation that it represents security for breach 
of the tenant's covenants, including payment of rent and the obligation 
to repair. In this case no further deposit should be permitted. 

Some landlords do pay interest on security deposits, but rarely does 
this exceed 4% per annum. As it is the custom to mix the security 
deposit with the landlords' funds and not to retain them in a separate 
account (the money then being used in the carrying out of the landlords' 
undertakings) this represents interest free money, save for those landlords 
who pay some interest on deposits. At current borrowing rates the 
savings to the landlord who does not pay interest is over 8% per annum. 

If the security deposit is only a security deposit, it should not be 
treated as borrowed funds. Interest accruing at bank or trust company 
interest should be credited to the tenant less a reasonable amount for 
administration. Funds should not be mixed but should be designated 
as tenants' trust monies and exempt from attachment by the landlords' 
creditors. 

Several jurisdictions, including New York State, have enacted legis- 
lation requiring the maintaining of separate trust accounts for the deposit 
of security deposits and make it an offence unlawfully to withhold pay- 
ment after the termination of the tenancy. Abuses which relate to the 
present practice of mixing funds, therefore, would be largely eliminated. 
However, the problem of the absconding landlord, who has sold the leased 
premises, could only be dealt with by making the purchaser responsible 
for obtaining transfer to him, as trustee, of the security deposits. This 
procedure, if made mandatory, would involve a virtual audit of security 
deposits by a purchaser. To inject a municipal or provincial govern- 
ment department into the relationship as supervisors of all funds, as 
has been suggested by some, would create a new bureaucracy. In short, 
to protect security deposits against creditors and absconding landlords 
involves the development of procedures which invite delay, expense and, 
almost inevitably, litigation. 

The rejection of this proposal does not preclude the possibility of 
requiring that trust accounts be opened where security deposits are 
taken, subject to penalties for failure to do so, as well as for retaining 
deposits without justification. Even here obvious shortcomings are 
evident. As disputes relating to deposits most often involve questions 
of responsibility for repair, it would be difficult to satisfy the criminal 
onus as it is unusual for the landlord to be lacking an arguable case. 



23 

Where penal provisions are attached to breaches occurring, in what is 
essentially a civil relationship calling for the application of a non-criminal 
onus, convictions are difficult to obtain. Examples of prosecution for 
breaches of The Labour Relations Act demonstrate this most clearly. 

Almost all landlords interviewed expressed strong opposition to any 
scheme which would prevent their mixing security deposits with their 
own monies so that they could not be used in carrying on their businesses. 
While some would pay bank interest at the Urban Development Institute's 
recommended figure of 4%, this was the extent of the obligation which 
they felt was reasonable in the circumstances. They were candid in 
expressing their view that the security deposit was a form of rent. That 
is, if they could not treat the funds as borrowed money, rents would 
have to be increased. It would seem less devious to charge rent as rent. 
This still leaves unaffected the landlord's claim that he needs the protec- 
tion of the security deposit against breaches of covenant by the tenant. 

In discussion with landlords, no real claim was made that less 
damage was done to leased premises since the practice of taking damage 
security deposits became widespread. Their value as a deterrent has not 
been established. 

As in the case of distress, it is felt that landlords, being one class 
of credit grantors, must accept greater responsiblity for failure to in- 
vestigate prospective tenants. If this were done more thoroughly and 
if landlords were not prevented from collecting, say, one month's rent 
in advance, to be applied to the last month's rental or the rental arrears 
at the time of proceedings to recover possession, and such proceedings 
were truly summary, no great disservice would be done to landlords' 
interests. At the same time it must be emphasized again that the private 
landlord must not be expected to furnish accommodation because of 
tenants' economic hardship. If landlords are to be treated more like 
other creditors, then in recognition of their changed circumstances, they 
should not be expected to act differently. The landlord is entitled to 
his rent and the performance of the tenant's covenants. Failure by a 
tenant to carry out his obligations under the lease entitles the land- 
lord to possession and an immediate right to sue for arrears of rent and 
other damages. Whatever the source of the tenant's failure to observe 
his obligations, apart from any wrongful act of the landlord, the re- 
sponsibility for the social welfare of the economically oppressed or 
destitute tenant lies with welfare authorities, not the landlord. No doubt 
for reasons of insufficient income, injury, sickness, marital problems, 
as well as behaviour which is not accounted for, a significant minority 
of the population cannot be serviced adequately by the private rental 
sector. If the private sector is forced to do so, then the private landlord 
has a claim for special protective measures. If, however, the means of 
reasonable protective measures are afforded him, then the landlord will 
accept himself as another creditor with the rights of other creditors and 
with the hazards which can best be reduced by such adequate protective 
measures as a thorough investigation of prospective tenants. No attempt 
is being made to claim that investigation will eliminate all credit problems, 
however other business enterprises employ investigatory techniques to 
reduce credit losses. No less should be expected of landlords. 



24 

No attempt is being made to deny the merit of the landlords' position 
that the security deposit is a useful device. It may have some deterrent 
value; it saves cost of collection; it is the source of added revenue and 
may save the tenant who performs all of his obligations from contributing 
financially through increased rental flowing from the default of a tenant 
who is judgment proof. 

Assuming the continuance of the right to demand and retain the 
damage security deposit, and assuming the objections relating to non- 
payment of interest, defalcation or misapplication can be overcome 
without immensely complicating the relationship, there still remains 
the problem of adjudicating damage claim disputes. Naturally the 
security deposit will be retained by the landlord if there is an alleged 
damage claim. Unfortunately the courts are at present an inappropriate 
forum for determining the right of the tenant to the return of the security 
deposit. 

As an example, consider the situation of a tenant whose term has 
ended by effluxion of time. Upon requesting return of the security 
deposit he is advised that it has been forfeited to make good the damage 
caused to the premises for reasons not attributable to reasonable wear 
and tear and thus falling within the tenant's obligation to repair. Assum- 
ing both landlord and tenant are acting in good faith and there is an 
honest difference of opinion in their interpretation of the facts, the 
tenant who disagrees with his landlord concerning the responsibility 
for the alleged damage must commence legal proceedings if he wishes to 
recover the deposit. This is done in the division court if the amount 
involved is less than $400.00, which is usually the case. 

The landlord, upon receipt of the division court claim attends upon 
his solicitor. If this is the landlord's first introduction to division court 
procedures, his solicitor will advise him that many cases are usually set 
down for hearing on the same day and that the loss of time, on even a 
simple matter, can involve at least one day awaiting the disposition of a 
case. For this reason, if a qualified lawyer is to represent the landlord 
a fee of approximately $75.00 will be charged and this is low considering 
the loss of time in attendance on the court waiting for the case to be 
heard. 

In the case of the average landlord it is not just the single security 
deposit which is of concern to him. If he has other tenants he appreciates 
that he is really supporting his continuing position in relation to present 
and future tenants. If he is unsuccessful, it is only natural that word of 
the result will reach many of his other tenants. This situation tends to 
weaken the landlord's position when he again has to withhold some or all 
of a security deposit, which may require disposition of the second dispute 
in division court. 

The lawyer, too, has practical and legitimate reasons for exercising 
discretion in amending his usual fee. Acting for a landlord is usually a 
continuing function and there are occasions when a specific piece of legal 
work may be undertaken at a loss to the lawyer. 



25 

In any event the landlord who feels, as many who responded to 
interviews did feel, that the courts tend to favour the tenant, is more 
likely to see the need for well-qualified representation as a necessary 
expense. Counsel should and ordinarily will advise the landlord to 
have an inspection of the premises made by a qualified painter and 
decorator and all defects noted along with the cost of repairs as well as 
the probable cause. 

The tenant who seeks legal assistance will likely receive much the 
same advice except that in his case the situation is less likely to be 
repeated. Also there is a lesser likelihood of any reduction in the fee 
being offered, although the alternative of being represented by a law 
student is not an unusual suggestion. Regarding witnesses, the tenant 
generally has no connection which enables him to secure the services of a 
decorator. Unlike the landlord's decorator there is no reason why a 
decorator should be agreeable to attending to examine the leased prem- 
ises and then attend at the hearing. If he can be induced to serve as a 
witness, it will be at the cost of a day lost from his work. Thirty dollars 
is not an unreasonable figure. At the trial the landlord has the following 
advantages : 

(1) Evidence of his superintendent or other person familiar with 
the premises is available concerning the state of the premises 
before commencement of the tenancy. Some landlords use 
state of repair forms which are completed at the beginning and 
end of the tenancy. Even where such forms are used the 
whole subject of what may be attributable to "reasonable 
wear and tear" is not an easy one. 

(2) The decorator appearing as the landlord's witness, no matter 
how honest, usually has a financial interest in the outcome and 
has no wish to displease the landlord. Because of his financial 
interest he may treat the court appearance as a service. 

The tenant may choose to be represented by a law student to save 
on legal expenses. He usually will be without a decorator to give evi- 
dence on his behalf. Assume the tenant is successful. If he was able to 
secure a decorator he will have incurred average expenses of: 

(a) Legal fees $35.00 

(b) Witness 30.00 

(c) Loss of a day's wages 20.00 

$85.00 

Less 

No counsel fee if represented by a 
law student 

Witness fees 6.00 

6.00 



Cost of hearing $79.00 



26 

If the tenant loses, his costs will be $85.00 plus a counsel fee of 
$25.00, witness fees and cost of filing and serving claim, an amount 
which can easily amount to $125.00. 

The above figures were prepared based on the most advantageous 
circumstances existing for the tenant. No claim is made other than that 
experience indicates that, where the landlord employs counsel, the 
advantages of his position militate against recovery by tenant of a 
security deposit. The expense of even a successful action makes an 
action by the tenant impractical. Where a tenant does sue there is a 
natural desire on the part of the landlord to make the tenant responsible 
for every item of damage alleged. While he cannot be faulted for pressing 
his claim to its fullest, the inequality of positions often means that the 
tenant not only is unsuccessful in recovering his deposit but also has the 
court award judgment against him for the amount of damage over the 
amount of the security deposit. 

It should be noted that landlords do not accept this as an accurate 
representation of the average action for return of a security deposit. 
They contend that the scales are more evenly balanced and that the 
landlord is usually represented by a student and no evidence is given by 
a decorator. 

The problems created by the security deposit against damage can be 
dealt with in a number of ways: 

(1) The taking of a security deposit to protect the landlord against 
damage as opposed to a deposit to be applied toward rental 
arrears, might be made illegal by statute. Evidence does not 
support the fear of the landlord that tenants will act irrespon- 
sibly if no security deposit is maintained. No doubt a very 
small minority of tenants act irresponsibly under any conditions 
and there does not appear to have been a marked decrease in 
damage attributable to tenants since security deposits became 
a feature of the landlord and tenant relationship. 

The landlords' relative strength, in case of legal confron- 
tation, gives them advantages which require a balancing of 
interests. The abolition of security deposits, against damage, 
would remove an oppressive element from a relationship which 
already has a sufficient basis for conflict. 

(2) If it is deemed necessary to permit the retention of the damage 
security deposit to guarantee the performance of the lessee's 
covenants, then some safeguards should be afforded the tenant. 

(a) The deposit should be designated as trust funds, thus 
making clear the nature of the obligations of the landlord 
with respect to these monies. Deposit of the monies 
should be in a separate trust account and not mingled 
with other funds of the landlord. In this way, the 
monies will truly represent the purpose for which they 



27 

were taken. Too many landlords confuse the security 
purpose of the funds and treat the deposit monies as a 
source of interest-free borrowed capital. The tenant 
should not be expected to finance the landlord's under- 
taking, especially where the deposit funds may be 
dissipated. 

(b) The tenant should be entitled to the interest paid on the 
monies less a small charge to cover the management 
expenses of the landlord. 

(c) Any purchaser of the landlord's interest by sale, assign- 
ment or otherwise must satisfy himself as to the state 
of the trust account and arrange for transfer to himself, 
in substitution for the landlord, on closing. This sug- 
gestion is made to avoid the consequences of Re Dollar 
Land Corporation Ltd. and Solomon, [1963] 2 O.R. 269. 

(d) The landlord must repay the amount of the security 
deposit to the tenant within 10 days of the completion or 
other termination of the tenant's term. Failure to 
comply with this requirement should carry appropriate 
sanction by way of a fine. 

(e) If the landlord has a claim to the whole or part of the 
security deposit then the same can only be paid out to the 
landlord on presentation of a court order to the bank or 
other institution where the funds are deposited. Thus 
the present difficult position of the tenant, who is 
refused return of the deposit, is reversed by casting the 
responsibility for commencing proceedings on the land- 
lord. The justification for this suggestion is two-fold: 
(i) the situation of the tenant, under the present state 
of the law, as previously outlined, makes an action by 
the tenant both difficult and overly expensive in relation 
to the possible success which might be achieved. The 
landlord has the advantage of having obtained the 
deposit and the inequality of the parties makes it more 
reasonable to cast the onus on the landlord to commence 
action to establish the right to forfeiture of the deposit 
to enable payment to him out of the funds from the 
trust account; and (ii) ordinarily the landlord who does 
not have a damage security deposit would have to sue 
and prove his damages. This position would continue 
to apply notwithstanding the existence of a damage 
security deposit. 

(/) If a claim is made by the landlord to part only of the 
deposit then the balance must be paid to the tenant 
within 10 days of the completion or other termination 
of the tenant's term. 



28 

Although considerable attention has been devoted to the means 
by which the hardships and injustices of present practices might be 
ameliorated, we are convinced that the only way to redress the existing 
imbalance in the relative position of landlords and tenants is to abolish 
damage security deposits entirely. 



Recommendations 

Security Deposits: It should be made unlawful for a landlord to demand 
or receive a security deposit against damage or any other contingency 
involving the demised premises. Landlords should be permitted, how- 
ever, to request payment of the last month's rent in advance but any 
sum so paid should be treated as security for the payment of rent only. 

Existing Security Deposits: The abolition of security deposits should 
apply only to leases created or renewed after the coming into force of the 
remedial legislation. Security deposits which have been paid under leases 
which are current at that time should be governed by the following 
requirements : 

(a) interest should be payable to the tenant at the end of the term 
on the full amount of the security deposit at the rate of five (5) 
per cent a year, compounded annually, to be calculated from 
the day of the coming into force of the remedial legislation ; 

(b) the security deposit, together with interest, must be returned 
to the tenant within ten (10) days of the date of the termination 
of the lease, whether by effluxion of time or otherwise; 

(c) if the landlord seeks to retain all or part of the security deposit 
and interest in satisfaction of any damage for which the tenant 
is allegedly responsible, and if the tenant does not consent in 
writing to forfeit that part of the security deposit and interest 
claimed, the landlord must commence an action against the 
tenant to enforce his claim within ten (10) days of the date of 
the termination of the lease. If he does not, his claim to retain 
the security deposit or any part of it should be extinguished. 

Security deposits which have been paid in all other cases should be 
repaid to the tenants within thirty (30) days of the coming into force of 
the remedial legislation. 

Penalty: The breach of any of the provisions enacted to give effect to 
the recommendations concerning security deposits should subject a 
landlord to prosecution, and on conviction to the payment of a fine. 



29 

CHAPTER IV 

CONTRACTING OUT 

1. Contracting Out with reference to Assigning and Subletting 

The legislature has made provision for safeguarding certain tenant 
interests with respect to the right to assign or sublet and the right to 
exemptions from distress. Almost every printed lease form sold by legal 
stationers as well as almost all leases prepared on behalf of landlords by 
thex solicitors provide for a waiver of the statutory protection. 

The Landlord and Tenant Act, R.S.O. 1960, c. 206, provides: 

"22. — (1) In every lease made after the 1st day of September, 
1911, containing a covenant, condition or agreement against 
assigning, underletting, or parting with the possession, or disposing 
of the land or property leased without licence or consent, such 
covenant, condition or agreement shall, unless the lease contains 
an express provision to the contrary, be deemed to be subject to a 
proviso to the effect that such licence or consent is not to be un- 
reasonably withheld." 

The wording of the section makes it clear that contracting out is 
permitted. The landlord's desire to maintain the right to refuse on any 
ground to consent to an assignment or subletting of the term or a parting 
with possession is understandable. He has entered into a lease with a 
particular tenant, relying on the "personal character" of the tenant. The 
right to preserve their property interests, landlords submit, requires that 
they be given the continued right to determine who may occupy their 
premises as tenants, sub-tenants, assignees of the leases or as licensees, 
subject, of course, to the provisions of The Ontario Human Rights Code, 
1961-62, S.O. 1961-62, c. 93, as amended. 

Judicial hostility to restraints on alienation was subject to a broad 
exception with respect to leasehold estates and a landlord could prohibit 
the tenant from transferring the leasehold estates to whatever extent he 
wished. On balance the courts believed that the legitimate objectives 
served by permitting such restraints outweighed the general attitude of 
the courts with respect to the evils which restraints fostered. 

In undertaking a reassessment of the law of restraints against 
alienation by tenants, it must be measured in terms of its present validity. 
The changing nature of the landlord and tenant relationship has been 
toward increasing impersonality. With the increasing mobility of the 
population requiring frequent transfers, coupled with the continued 
accommodation shortage, it is necessary to examine some means of 
curtailing the landlord's absolute power of decision. At the same time, 
any curtailment must recognize the landlord's problems. 

The Landlord and Tenant Act, R.S.O. 1960, c. 206, provides further: 

"22. — (2) Where the landlord refuses or neglects to give a 
licence or consent to an assignment or sub-lease, a judge of the 
county or district court, upon the application of the tenant or of the 



30 

assignee or sub-tenant, made by way of originating notice according 
to the practice of the court, may make an order determining whether 
or not the licence or consent is unreasonably withheld and, where the 
judge is of opinion that the licence or consent is unreasonably 
withheld, permitting the assignment or sub-lease to be made, and 
such order is the equivalent of the licence or consent of the landlord 
within the meaning of any covenant or condition requiring the same 
and such assignment or sub-lease is not a breach thereof." 

It will be seen that while the landlord's consent is not capable of being 
arbitrarily withheld the court is required to judge the conduct of the 
landlord in order to pass upon its reasonableness. An examination of 
section 22 (2) discloses that the onus of demonstrating the unreasonable- 
ness rests upon the tenant. It is open to the landlord to base his refusal 
to consent to an assignment or subletting upon, inter alia, the character 
of the proposed assignee or sub-tenant and the intended user. 

The English Landlord and Tenant Act, 1927, 17-18 Geo. V, c. 36, 
provides : 

"19. — (1) In all leases whether made before or after the com- 
mencement of this Act containing a covenant condition or agreement 
against assigning, underletting, charging or parting with the posses- 
sion of demised premises or any part thereof without licence or 
consent, such covenant condition or agreement shall, notwithstanding 
any express provision to the contrary, be deemed to be subject — 

(a) to a proviso to the effect that such licence or consent is not to be 
unreasonably withheld, but this proviso does not preclude the 
right of the landlord to require payment of a reasonable sum in 
respect of any legal or other expenses incurred in connection 
with such licence or consent; and 

(b) (if the lease is for more than forty years, and is made in con- 
sideration wholly or partially of the erection, or the substantial 
improvement, addition or alteration of buildings, and the lessor 
is not a Government department or local or public authority, 
or a statutory or public utility company) to a proviso to the 
effect that in the case of any assignment, under-letting, charging 
or parting with the possession (whether by the holders of the 
lease or any under-tenant whether immediate or not) effected 
more than seven years before the end of the term no consent or 
licence shall be required, if notice in writing of the transaction 
is given to the lessor within six months after the transaction is 
effected." 

Thus, any contracting out is invalid. Admittedly, where contracting 
out is not possible the court is substituting its judgment for the land- 
lord's. However, the interests of the landlord are protected as the tenant 
must first request the landlord's consent and failure to do so before 
purporting to assign, sublet or part with possession gives the landlord 
the absolute right to declare the term forfeited. This would discourage 
precipitous action by the tenant in attempting to produce a. fait accompli. 
Furthermore the onus of proving unreasonableness rests on the tenant. 






31 

If it is decided to prohibit contracting out of the statutory protection 
there is some merit in requiring that an assignee who has in turn assigned 
the term be bound under the lessee's covenants in the same manner as the 
original lessee, that is, until the end of the term. This appears reasonable 
if the assignment takes place against the wishes of the lessor and only 
under the provisions of the statute. The mobility of tenants dictates that 
more adequate protection be afforded to the landlord. Whereas for- 
merly, he could insist that an assignee bind himself contractually for the 
term to carry out the obligations of the lessee, even after the assignee has 
parted with the term, it is not certain that such a condition could be 
enforced under the requirement of reasonableness in withholding consent. 

Similarly there is some basis for the landlord having the right to call 
for assignment to him of the sublessee's covenants, so that the landlord 
might sue either the lessee and/or the sublessee. This appears to be a 
reasonable requirement where the right to control occupancy has been 
cut down by statute. 

It should be noted that under the provisions of section 19 (1) of the 
English Landlord and Tenant Act the section applies only where the 
covenant is not to assign, etc. "without license or consent". In the case 
of Woolworth v. Lambert, [1937] Ch. 37, (C.A.) Lord Justice Romer 
stated at p. 58: 

"Subsection 1 of section 19 deals with covenants against assign- 
ment and long before this Act ever came into force, the difference 
between an absolute covenant not to assign and a covenant not to 
assign without the license or consent of the landlord, was well recog- 
nized .... If every covenant not to assign ... is to be deemed to be 
a covenant not ... to assign . . . without the license or consent of 
the landlord, then the words 'without license or consent' in the sub- 
subsections would be . . . useless." 

In view of these decisions section 22 of The Landlord and Tenant Act 
in Ontario should be amended to provide that every lease wherein the 
right to assign, sublet or otherwise part with possession is restricted, 
shall be deemed to contain a provision that leave to assign, sublet or 
part with possession will not be arbitrarily or unreasonably withheld; 
and that any agreement purporting to waive this right shall be null 
and void. 

I'nder the present state of the law where consent to assignment, etc. 
may be arbitrarily withheld many tenants have complained that their 
landlord has required the payment of a substantial sum in order to be 
induced to grant the request for the right to assign. It cannot be denied 
that there are expenses which arise upon such request being made and 
the landlord should not have to give his consent and bear such expenses. 
The English section 19 (1) states that ". . . this proviso does not preclude 
the right of the landlord to require payment of a reasonable sum in 
respect of any legal or other expenses incurred in connection with such 
license or consent. ..." The Ontario legislation should be amended to 



32 

provide that the landlord is entitled to reasonable expenses incurred in 
granting leave. It is difficult to provide for an upper limit for such 
expenses, and such determination must be left to the court under section 
22 (2) of the Ontario Act. 

2. Contracting Out of Exemptions from Distress 

Another contracting out clause common to leases is that relating to 
the exemptions from distress. A common form of such covenant is: 
"The lessee hereby waives and renounces the benefit of section 29 of The 
Landlord and Tenant Act being chapter 206 of The Revised Statutes of 
Ontario, I960." 

The goods and chattels exempted are those set out in The Execution 
Act, R.S.O. 1960, c. 126, as amended by S.O. 1967, c. 26, and include: 

1. Necessary and ordinary wearing apparel of the debtor and his 
family not exceeding $1,000 in value. 

2. The household furniture, utensils, equipment, food and fuel 
that are contained in and form part of the permanent home of 
the debtor not exceeding $2,000 in value. 

3. In the case of a debtor other than a person engaged solely in the 
tillage of the soil or farming, tools and instruments and other 
chattels ordinarily used by the debtor in his business, profession 
or calling not exceeding $2,000 in value. 

It will be noted that those goods and chattels represent the basic 
necessities of life and the means of earning one's livelihood. A question 
arises whether there is any public policy which would make any contract- 
ing out null and void. No case dealing directly with this point has been 
found. However, the Ontario Court of Appeal in the case of Shields v. 
Dickler, [1948] O.W.N. 145 dealt with a lease which contained such a 
contracting out or waiver clause. The clause in that case was more 
extensive in its application, since it also referred to ". . . any other section 
of the [Landlord and Tenant] Act. ..." The right arbitrarily to with- 
hold consent to assignment was in issue, and the court did not have 
to deal expressly with its application in the case of the exemption from 
distress. 

Our investigations indicate that the clause relating to exemptions 
from distress is employed so as to treat all goods and chattels, except 
chattels of strangers and chattels subject to conditional sales contracts, as 
being subject to distress. 

It is therefore recommended that if distress is retained as a landlords' 
remedy, then any waiver of exemptions should be treated as null and 
void. The resort to chattels exempt from seizure has a tendency to 
demoralize the tenant subject to the distress. It is also felt that when 
landlords distrain upon chattels normally exempt from seizure they have 
no real intention of disposing of them through a sale since as a general 
rule they have little market value. 



33 

It is significant that in Shields v. Dickler, supra, the lease contained a 
contractual right of distress, in addition to the common law right of 
distress. This reinforces the need to make private contracts permitting 
distress null and void if the common law and statutory provisions are 
also to be taken away. 

There are other provisions in the Ontario statutory law which were 
enacted for the protection of tenants or to redress any imbalance in the 
bargaining position of the parties as reflected by the letter and tenor of 
the written instrument. Such a provision is found in sections 18 (2) and 
19 (1) dealing with relief from forfeiture of the lease as a result of a 
breach of covenant or condition on the part of the tenant. The public 
policy decisions which prompted the insertion of such provisions are 
frustrated if as a result of ignorance of the law or economic pressure 
tenants are permitted to contract out of the protection which the statute 
affords them. Public policy should be implemented by an express statu- 
tory prohibition against contracting out. An amendment to The Land- 
lord and Tenant Act should so provide. 

3. Contracting Out with reference to Tax Reduction Benefits 

The Residential Property Tax Reducation Act, 1968, S.O. 1968, c. 118, 
provides, inter alia, that: 

"4. — (2) Where in any year a reduction of municipal taxes is 
made to a landlord in respect of any residential property, the land- 
lord or his agent shall pay or allow as a reduction in rent to the 
tenant thereof the amount of such tax reduction in such manner and 
at such time or times as are prescribed by the regulations made under 
this Act. 

(3) The right of a tenant to receive the reduction of municipal 
taxes mentioned in subsection 2 is not assignable and may not be 
waived before or after this Act comes into force. 

7. Every landlord and every agent as defined in section 4 who 
contravenes any of the provisions of section 4 or of the regulations 
made under this Act is guilty of an offence and on summary con- 
viction is liable to a fine of not more than $200, and in addition the 
magistrate shall order the landlord or agent to pay or allow as a 
reduction in rent the amount of any credit on municipal taxes that 
in the opinion of the magistrate has not been paid or allowed as a 
reduction in rent in accordance with section 4." 

It seems clear from the provisions of section 4 (3) that any attempt 
by the tenant to contract out of the benefit conferred by the Act in the 
form of a tax reduction is null and void. It is not so clear that the pro- 
visions of section 7 make it an offence by the landlord to offer to the tenant 
for his signature a lease in which the tenant purports to waive his rights. 
It is difficult to assess the prevalence of this practice but there is no doubt 
that it does exist as evidenced by an excerpt of a letter dated October 30, 
1986 and written to the Commission. The letter reads, in part, as follows: 



34 

"Since this new 'Tax Reduction' plan was introduced the 
Tenant has had one or two alternatives: 

(a) he signs a clause in the lease waiving any rebate in Taxes 
granted by the Provincial or Federal Governments [sic]. 

(b) he has his rent increased by the expected amount of any rebate. 

Thus any amount of moneys returned by the Government end 
up in the pocket of the Landlord. 

In my own case I signed a lease with the aforementioned clause. 
It was a choice of either signing the lease or not renting the house." 

One suspects that the amount of rent paid or the amount of tax 
deductions lost to tenants throughout the province under this invalid 
clause may be substantial. In an effort to stamp out the practice and to 
carry out the intention of the legislation it is recommended that the Act 
be amended by stipulating in clear language that it is an offence for any 
landlord to insert such a waiver clause in the lease. 

Recommendations 

Contracting Out with reference to Assigning or Subletting: Section 22 of 
The Landlord and Tenant Act, R.S.O. 1960, c. 206, provides as follows: 

"22. — (1) In every lease made after the 1st day of September, 
1911, containing a covenant, condition or agreement against assign- 
ing, underletting, or parting with the possession or disposing of the 
land or property leased without licence or consent, such covenant, 
condition or agreement shall, unless the lease contains an express 
provision to the contrary, be deemed to be subject to a proviso to the 
effect that such licence or consent is not to be unreasonably with- 
held. 

(2) Where the landlord refuses or neglects to give a licence or 
consent to an assignment or sub-lease, a judge of the county or 
district court, upon the application of the tenant or of the assignee 
or sub-tenant, made by way of originating notice according to the 
practice of the court, may make an order determining whether or not 
the licence or consent is unreasonably withheld and, where the 
judge is of opinion that the licence or consent is unreasonably with- 
held, permitting the assignment or sub-lease to be made, and such 
order is the equivalent of the licence or consent of the landlord 
within the meaning of any covenant or condition requiring the same 
and such assignment or sub-lease is not a breach thereof." 

This section should be amended to give effect to the following 
requirements: 

(a) every lease wherein the right to assign, sublet or otherwise part 
with possession is restricted should be deemed to contain a 
provision that consent to assign, sublet or part with possession 
will not be unreasonably withheld ; 



35 

(b) any agreement purporting to waive the requirement set out in 
(a) shall be null and void; 

(c) the landlord should be entitled to reasonable expenses incurred 
in granting leave; 

(d) in determining whether consent to assign, sublet or part with 
possession has been unreasonably withheld, a court should 
consider all the relevant circumstances, including but not 
limited to the duration of the original term and the length of 
the term remaining when consent is sought. 

Contracting Out of Exemptions from Distress: Any attempt on the part 
of the tenant to waive his rights with respect to exemptions from distress 
and other protective measures under The Landlord and Tenant Act 
should be null and void. 

Contracting Out with reference to Tax Reduction Benefits: The Residential 
Property Tax Reduction Act, 1968 should be amended to make it an 
offence, punishable by fine, for any landlord to insert a waiver clause in a 
lease whereby the tenant purports to waive the benefits conferred 
upon him by the Act. 



CHAPTER V 

THE OBLIGATION TO REPAIR 

The question of where the primary responsibility for the repair of 
leased premises should lie has been a source of much concern. Briefs 
which were submitted to the Commission and the survey of tenants' 
opinions (the results of which are reproduced in Appendix A) indicate 
that repairs are an important factor in the landlord and tenant relation. 
This chapter will give a brief history of the responsibility to repair at 
common law, the manner and extent to which it has been modified by 
statute, and the recommendations which the Commission makes for 
reforming this part of the law. 

1. The Responsibility to Repair 

The general rule of the common law is that, in the absence of express 
stipulations and except in the case of furnished premises, a landlord 
warrants neither that the premises are fit for any particular purpose nor 
that he will put them in repair at the commencement of or during the 
term. In addition, the landlord is not liable for injuries sustained by 
the tenant or his guests as a result of the defective condition of the 
premises. Even in the case of furnished premises, although there is 
an implied condition that they are fit for human habitation when let, 
the landlord is under no obligation to keep them in that condition. 
Apart from fraud or from any statutory or contractual requirements, the 
landlord of unfurnished premises has no obligation to repair. 



36 

Historically, the law of landlord and tenant was developed in an 
agricultural setting based on extended tenancies. The justification for 
relieving the landlord from liability for harm sustained by the tenant 
and his guests and from an implied obligation to repair had at least an 
arguable validity. The growth of modern cities and the inevitable 
changes it has wrought in the way people order their lives requires a re- 
evaluation of the efficacy of the traditional common law rules regarding 
fitness and repair. 

It is an economic fact that the modern residential tenant is less likely 
to be able to bear the cost of undertaking repairs. In the typical urban 
apartment tenancy, which is usually of quite a short duration, the 
landlord is generally considered to be the person having the major 
interest in the condition of the leased premises. It is the landlord who 
receives not only the rent, but also the benefit which results from im- 
provements to the property, including repairs. It is the landlord, there- 
fore, who ought to bear the primary responsibility to repair. He should 
be required to provide premises which are fit for human habitation and 
are in a good state of repair and he should be primarily responsible for 
keeping them in that condition. 

The following examples indicate some consequences of the present 
state of the law: 

(a) In the usual case where there is no agreement by the landlord 
that he will repair, then apart from fraud and the operation of 
local by-laws and such statutes as The Public Health Act, the 
landlord is not responsible for any repairs, no matter how 
necessary. Nor is he responsible for damages suffered by the 
tenant because of the defective condition of the premises; 

(b) If a house which has been leased is destroyed, apart from con- 
tractual stipulations, the landlord is under no obligation to 
repair or rebuild, and the tenant must continue to pay rent and 
carry out his other obligations contained in the lease covenants; 

(c) If a tenant has entered into the usual covenant to repair taken 
from The Short Forms of Leases Act and found in most residential 
leases, i.e. "to repair, reasonable wear and tear and damage 
by fire, lightning and tempest only excepted" with the further 
requirement "that the tenant will leave the premises in good 
repair on the expiration or sooner determination of the term," 
then, subject to the exceptions noted, the following consequences 
may ensue: 

(i) as the covenant to repair in The Short Forms of Leases Act 
includes the obligation to keep "in good and substantial 
repair," then in the absence of any contrary stipulation, 
should the premises be wholly destroyed by external 
agency other than fire, lightning or tempest, the tenant 
is required to rebuild the premises; 



37 

(ii) as recently as 1963, in the case of Vicro Investments Ltd. 
v. Adams Brands Ltd., [1963] 2 O.R. 583, the Ontario 
High Court has declared that the short form repair 
covenant obliges the tenant to leave the premises in the 
condition in which he found them at the beginning of 
the term, apart from reasonable wear and tear and 
damage by fire, lightning and tempest. If the tenant 
is required to put the premises in any higher state of 
repair, that requirement must be expressed in plain 
language in the lease. Even on this basis, however, the 
tenant assumes a heavy burden to effect repairs; 

(iii) in any event, even if the tenant is not bound by covenant 
to repair, unless the landlord has obligated himself to 
repair he cannot be compelled to do so. The result is 
that the tenant must repair at his own expense or con- 
tinue to suffer the inconvenience caused by the lack 
of repair; 

(d) Even where there is no covenant regarding repair and neither 
the landlord nor the tenant is under an obligation to repair, 
the common law implies an obligation on the tenant to use the 
leased premises in a tenant-like manner. The law is well 
settled that, in the absence of a covenant by the tenant to repair 
he is not liable for mere wear and tear. He is liable, however, 
if he fails to effect such repairs as are necessary to prevent 
decay or destruction of the premises. Failure, for instance, to 
repair a minor breach in the roof of a leased house when after- 
wards the roof is blown off because of the failure to repair, can 
result in the tenant being liable for the resulting damage. 

The obligation referred to in example (d) is not completely and 
clearly defined by the present law. Apart from the question of who shall 
be responsible for repair generally, it would seem proper to consider 
limiting the tenant's responsibility for such "house-keeping" obligations 
to actions which are short of actual repair. It is reasonable to require 
a tenant to notify his landlord within a reasonable time of the need to 
effect repairs to prevent increasing the damage. It is, however, im- 
practical to expect the tenant to know, as he now must, if his attempt to 
accomplish minor repairs in order to forestall the need for major ones 
will be effective. It would indeed be to the landlord's advantage to 
control the making of all repairs and hence the safeguarding of his invest- 
ment. 

This re-ordering of affairs need not affect other normal house- 
keeping obligations which should be with the tenant. In any case, 
tenants should still be responsible for damage caused by their negligence 
or wilful actions. The tenant's house-keeping tasks would best be 
limited, however, to such items not requiring true repair, as the changing 
of electric fuses, keeping the premises clean and unblocking minor plugs 
in sink and toilet drains where the services of a plumber are not required. 



38 

2. The Tort Liability of Owners and Occupiers 

It has been necessary to allude to a landlord's lack of responsibility 
for personal injury to the tenant and his guests by reason of the non- 
repair of unfurnished premises. It must be pointed out that this 
is not an area of the law where responsibilities are clearly defined. 

The Commission is mindful of the serious nature of the policy 
and practical considerations involved in these matters and in the law of 
tort generally. In this interim report we are mainly concerned with 
the rights and duties of landlords and tenants arising ex contractu. 
We reserve the matter of general tort liability for consideration at a 
future time. 

3. The Present Position in Practice 

Almost all landlords interviewed were of the opinion that it should 
be the landlord's responsibility at the beginning of the tenancy to provide 
premises which are fit for the purposes intended and to maintain them 
during the tenancy so that they remain in a fit condition as far as health 
and safety are concerned. Many landlords believed this to be the present 
state of the law. To some extent this misconception was based on the 
existence of housing standards by-laws in some municipalities. Very 
few landlords, however, apart from those renting substandard accom- 
modation, ever became involved with municipal officials responsible for 
enforcing such by-laws. Except for these few, landlords' knowledge 
of the operation of housing standards by-laws is minimal. 

With rare exceptions those landlords who hold the view that the 
responsibility for effecting repairs and maintaining leased premises should 
be upon landlords were opposed to any statutory enactment to ac- 
complish this end. Their attitude was that enforcement of public health 
statutes and municipal housing standards by-laws was sufficient protec- 
tion for tenants. In effect they cast the onus on municipal authorities 
for ensuring enforcement of the standards of dwelling houses. Both 
landlords and tenants agreed that the landlords' responsibility to repair 
and maintain premises should be subject to the tenants being liable for 
negligent or wilful damage and also subject to an obligation on tenants 
to perform normal house-keeping tasks such as keeping the premises 
clean. 

Minimum standards by-laws have been passed by many municipal 
councils both under the authority of their private acts (Toronto, Ottawa 
and Windsor) and under section 30 of The Planning Act (Kingston). 
An examination of the City of Ottawa By-law 100-64, which is reproduced 
as Appendix B to this report, indicates that minimum standards are set 
out in substantial detail. In almost all the by-laws examined the speci- 
fications represent a serious and studied attempt to achieve a reasonable 
standard of health and safety requirements. 

The concept of local municipal councils being enabled to set minimum 
housing standards has the following factors to recommend it: 



39 

(a) Municipalities have differing needs. A reasonable standard in 
one municipality may be inappropriate in another. Ideally, 
local control is more likely to achieve the ends sought than 
general legislation aimed at providing for the establishment of 
minimum housing standards. The locally elected municipal 
representative might be expected to have a greater under- 
standing of local conditions. Local administration also has the 
advantage of being close to the community it is intended to 
serve and also of having a greater appreciation of local con- 
ditions. 

(b) By-laws of this type, having enforcement machinery, can have 
and do have a beneficial result in requiring adherence to mini- 
mum standards. By-laws provide for inspection and the citing 
of infractions by municipal inspectors. Failure to carry out 
the correction of infractions can result in proceedings before a 
magistrate for breach of the by-law. Failure to comply with 
the requirements for repair and maintenance of the dwelling 
can ultimately result in an order requiring the building to be 
demolished and the land levelled and cleared. 

(c) Provision is made for extensions of time for carrying out the 
requirements of the by-law as ordered and for enacting by-laws 
providing for loans to owners by the municipal council to 
finance the cost of repairs or of levelling and grading. 

Both the Toronto and Ottawa by-laws were examined in their opera- 
tion. Those responsible for administering them have achieved many of 
the purposes envisaged by their drafters. It was observed that inspectors 
made every reasonable effort to obtain evidence to substantiate the 
violations noted. Objectivity of assessment was aided by the 
taking of excellent colour photographs of the interiors and exteriors of 
premises. There appeared also to be excellent liaison with such other 
concerned authorities as the Department of Public Health, Ontario 
Hydro, local fire departments and welfare organizations. 

Minimum standards by-laws have certain limitations. Those 
responsible for their administration acknowledged that a considerable 
limitation is imposed by the size of the inspection staff available. At 
the time of this study the City of Ottawa reported that they had 18 
inspectors, Toronto had 55, and Kingston had one. At least one author- 
ity has considered that in order to achieve reasonable enforcement of 
standards there should be one inspector for every thousand buildings or 
one inspector for every ten thousands of population. Municipal author- 
ities examined are aware of the need for adequate inspection but some 
additional provincial initiative would be necessary to further the enforce- 
ment of housing standards. 

Another factor limiting the effectiveness of the housing standards 
by-laws is that there is no provision for any private right of action. 
Those municipal housing standards by-laws examined do not affect the 
repair obligations by which tenants are bound in their leases. Section 



40 

3 (4) of Toronto By-law 73-68 casts the burden of the owner's responsi- 
bility for maintaining standards on tenants where they are made re- 
sponsible for repair and maintenance by covenant as well as on owners. 
See also Ottawa By-law 100-64, section 42 (c). (...) 

In practice the enforcement of housing standards by-laws is almost 
exclusively concerned with dwellings where the municipal enforcement 
officials do not call upon tenants to effect repairs. Landlords in these 
cases have small hope of recovery against tenants. If however, the by- 
laws were enforced in cases where tenants could be sued and recovery 
obtained, it is apparent that, even if the landlord were initially made 
responsible under the by-law provisions, the burden for paying for 
repairs would ultimately be on the tenant. This will most likely be the 
case where The Short Forms of Leases Act applies and the covenant to 
repair contained there is used. 

The initial priority of housing standards by-laws is the maintenance 
of standards. The impact of the burden of compliance, while usually 
on the landlord, is not always so. As a result, the by-laws do not really 
affect the ultimate responsibility of the landlord or the tenant for repairs. 

In examining the operation of municipal housing standards by-laws, 
the beneficial aspects represented only one side of their effects. Other 
effects, which were not unanticipated, are a serious cause for concern. 

When a property owner, under compulsion of a housing standards 
by-law, expends a considerable sum of money in converting a substandard 
dwelling into one conforming to the by-law, certain results are almost 
inevitable. Quite naturally, a rental increase usually follows and often 
such increase places the accommodation outside of the financial capacity 
of the existing tenant. 

In addition, many landlords report that certain tenants are chroni- 
cally poor house-keepers and do not respect their obligations towards 
the landlord. Municipal officials administering minimum standard hous- 
ing by-laws noted the significance of this complaint. Hence, where 
repairs are effected, very many tenants can anticipate receiving a notice 
to quit. In recognition of this fact, the City of Ottawa has introduced 
special house-keeping training classes for tenants involved in the city's 
urban renewal projects. These excellent projects can have little impact 
in the case noted. 

It appears unfair to landlords that they should be compelled to retain 
a tenant when previous experience indicates that he will be unsatisfactory. 
The private landlord cannot be and should not be expected to continue to 
rent to an unsatisfactory tenant. While the landlord may have been 
content to do so when the premises were in an unsatisfactory state of 
repair he should not be forced to undertake the duties of social welfare 
authorities. 

The limits of the private sector to satisfy the pressure for rental 
accommodation must be recognized. Increasingly, it has become 
apparent that unless the public sector (represented by various govern- 



41 

mental, quasi-governmental, co-operative and service organizations, in- 
cluding subsidized rental schemes within the private sector, limited 
dividend projects under section 16 of the National Housing Act, and low 
rental government projects based on inter-governmental co-operation), 
fulfils a greater role in rental development, inordinate pressure will be 
exerted on the private sector. If the private landlord is required to 
assume the greater part of the responsibility for the maintenance of 
standards he is entitled to maintain a maximum of freedom in making 
business decisions relating to a tenant's suitability. Interestingly, a 
significant amount of landlord opinion welcomed the growth of the public 
sector to assist in the fulfilment of the commonly accepted goal of good 
housing for all. 

If tenants know that their security of tenure is threatened by the 
enactments which are intended to ensure reasonable standards of fitness, 
it is not unreasonable to suggest that they will be reticent to seek enforce- 
ment. Nevertheless, landlords often are of the opinion that the tenant is 
responsible for the housing standards by-law being enforced. As a 
result, "retribution" often follows. 

Some jurisdictions, in response to this problem, have required that a 
certificate of fitness must be obtained at fixed periods or when a new 
tenancy is entered into with respect to uncertificated premises (see 
Michigan Enrolled House Bill No. 3188, reproduced as Appendix C). 
This, it is felt, will provide the means of ensuring a regular course of 
maintenance and repairs. Municipal by-laws (e.g. Ottawa, section 46 
(b) ) provide for the issuance of certificates of compliance to any in- 
terested person. By-laws also contain provisions similar to Kingston 
By-law No. 5721, which prohibits the use of any residential property 
for residential purposes that do not conform to the minimum standards. 
Such schemes as that obtaining in Michigan advance the procedure by 
requiring a certificate of clearance before the premises may be rented, 
as well as requiring certificates to be obtained on a periodic basis. The 
merit of such a scheme is that inspections become routine and do not 
depend on the reporting of alleged violations. To this extent tenants 
will not be suspected of having "informed". The danger inherent in 
such procedures is that their administration will be difficult and that they 
will spawn a new bureaucracy. 

The Commission is convinced that housing standards by-laws and 
public health legislation do provide a partial means of dealing with the 
problems of repairs and of substandard dwellings. In themselves, how- 
however, such enactments are not enough. Some further legislation 
is needed to set out clearly the obligations of landlords and tenants and 
how they may be enforced. 

4. The Proposed Solution 

While the various aspects of the landlord and tenant relationship 
were being considered the property interest of the landlords was con- 
stantly borne in mind. If the need for protecting the private property 
interests of landlords is neglected, not only will a vital interest be over- 
looked but an unfavourable reaction can be anticipated ranging in form 



42 

from withdrawal of rental investment capital to increased rents. Ex- 
perience in other jurisdictions can provide some insight into which 
measures are considered necessary in order to provide a landlord and 
tenant law more balanced in its effects, between landlords' interests, 
tenants' interests and the public interest and which will achieve a salutary 
effect in this troubled area. As in so many other areas, being the sub- 
ject of scrutiny for law reform purposes, the public interest has become 
an increasingly important consideration. 

The notorious anomalies, peculiar to the law of landlord and tenant, 
were formerly considered almost exclusively the concern of the immediate 
parties to the relationship. Increasingly, the public interest has been the 
basis for intervention in the area of consumer purchase contracts, as 
well as in the area of real and personal property mortgages. As has 
previously been stated, the law of landlord and tenant has seen little 
development beyond its property concepts rooted in the tenants' acquisi- 
tion of a leasehold estate. Where the realities of life and the need for the 
protection of vital human interests are not recognized by the existing 
law, and when this lack of recognition produces many unhappy and 
anomalous results, then existing arbitrary legal rules must yield to a 
re-examination of the law, based upon a realistic assessment of values 
and needs. 

The present landlord and tenant laws furnish tenants with very little 
recourse where premises are unsafe and unhealthy, even if the condition is 
not of their doing. The physical and psychological effects of housing 
which is below reasonable standards of fitness have become increasingly 
well known. Faced with such unsafe and unhealthy conditions, and a 
landlord who is insensitive to such conditions, tenants have available 
to them the expedient of seeking more suitable accommodation — but 
only at the end of the leasehold term. A farmer who raises his domestic 
animals in conditions which amount to cruelty under the Criminal Code, 
section 387 (c) is subject to criminal prosecution. Upon conviction, 
the farmer must mend his ways and take steps to remedy the situation. 
Apart from acts amounting to criminal negligence under section 191 (1) 
of the Criminal Code and provisions of The Public Health Act and mini- 
mum standards by-laws, the residential landlord has no comparable 
obligation to his tenants. 

If repairs are effected by a landlord, the obligation to bear the repair 
expenses is not affected by the statutes. In addition, apart from criminal 
negligence, any illnesses or injuries suffered by the tenant or his family 
which are occasioned by the condition of the premises, are at present 
matters for which the landlord is not legally responsible. 

It is for these reasons that the Commission recommends that the 
repair obligation and an obligation relating to the fitness of the premises 
for habitation should be placed upon the landlord. Through his property 
interest, the landlord is the principal beneficiary of repairs effected. 
Many landlords recognize and voluntarily carry out the repair obligation 
without the goad of mandatory legislation. The major impact of the 
suggested changes will be on those landlords who do not recognize any 
but a mandatory legal obligation. 



43 

Reasonable qualifications must be placed upon the extent of the 
landlord's obligations. The negligent or wilful acts of the tenant and 
his guests are instances for which the landlord ought not to be held 
responsible. There are, in addition, a number of house-keeping tasks 
which, in the absence of contractual stipulation or a management policy 
to the contrary, tenants ought to do for themselves. These tasks 
would include cleaning, polishing, and changing fuses and light bulbs 
within the demised premises. 

For those who were instilled with the importance of maintaining 
freedom of contract and of enforcing contracts legally entered into, there is 
a natural reluctance to interfere in leasing arrangements. Canadian 
courts have steadfastly adhered to freedom of contract concepts in deal- 
ing with the landlord and tenant relationship. The situation has been 
described as a cyclical one. Under conditions favourable to landlords, 
the bargaining power of the landlord allows for the inclusion of covenants 
imposing greater burdens on the tenant. When conditions change and 
there is a greater availability of rental accommodation the bargaining 
position changes in favour of the tenant. This, however, is not a correct 
model of what does happen. During periods of high demand for rental 
accommodation a variety of obligations are imposed upon tenants, along 
with provision for higher rents. From the experience of landlords during 
the period 1963-1965, however, when there was an increase in the rate 
of apartment building and a brief "over-supply" of rental accommoda- 
tions, it is apparent that tenants do not obtain compensating advantages. 
Rental allowances, of from one to three months, were given, but rarely 
were changes made in the other lease covenants. It is not completely 
clear whether the failure to extract advantages by way of relief from the 
usual onerous tenant covenants was because of unwillingness on the 
part of landlords to agree to, or of tenants to require, such changes being 
made as a condition for executing the lease. 

The landlord and tenant relationship is not, if indeed it ever was, 
one where tenants have a real freedom to contract. Traditional state- 
ments which maintain that a tenant need not agree to the leasing 
covenants but can seek agreement on more suitable terms elsewhere 
are not borne out by what happens in the real world of landlords and 
tenants. If protection is necessary for tenants and if a balancing of 
the interests of the landlords and tenants is to be undertaken, then 
inevitably, some long standing concepts must suffer. 

As even the most objective assessment of the landlord and tenant 
relationship discloses an impressive disparity between the rights and 
duties of the landlord and tenant, the changes suggested seem inevitably 
to take place at the "expense" of the landlord. Ultimately, the policy 
which governs whether these changes should be made must be based 
on a close examination of the rights which are to be affected. If a law is, 
on balance, unfair, it should be changed. If mere tinkering with a 
particular right in order to "civilize" it will still leave its worst features 
intact, then change can hardly do more than excite false hopes. Thus 
to give statutory protection to a class of citizens and yet permit con- 
tracting out of that protection invites contracting out. To maintain 



44 

that tenants freely contract out of the statutory protection relating to 
assignment and subletting and exemptions from distress is to regard 
freedom of contract in its most limited sense. It is unlikely that tenants 
signing the standard form of landlords' lease undertake contracting out 
obligations voluntarily, for, as has been stated, the modern lease more 
often represents a contract of adhesion than an individual contract freely 
entered into. In the area of landlord and tenant there are sound reasons 
for the legislature intervening in order to do justice. 

For these reasons, and because contracting out of statutory protec- 
tion is the rule where leases are professionally drawn, it is necessary to 
provide expressly that any attempt to limit the application of the 
statutory provisions in whole or in part, will be null and void. The 
extent of contracting out of the statutory protection, in cases of the 
right to assign or sublet and in the case of exemptions from distress, 
provide an adequate basis for predicting that contracting out of the 
proposed repair and fitness provision will take place if it is permitted. 

It is further suggested that the statutory change in repair obligations 
which is proposed contain a provision that the privilege of a prospective 
lessee to inspect the premises shall not defeat his right to the benefit 
of the new obligations imposed on landlords. In enacting similar legis- 
lation effective July 1, 1968, the State of Michigan (Bill No. 3384) added 
a corresponding provision. 

All residential tenancies and holdings, including licences, should 
be covered by the landlords' obligation to repair and maintain. The 
licencee-licensor arrangement must be included to prevent landlords 
from evading their responsibility by altering the form but not the sub- 
stance of the landlord and tenant relation. All residential tenancies, 
of whatever duration, must be included because the cost of repairs ought 
to be apportioned economically among a series of tenants throughout 
a period of time. If the obligation to repair is left on tenants then the 
tenant at the time when repairs are effected must immediately bear the 
entire cost of the repairs. This precludes the spreading of such costs 
over a reasonable period and among the subsequent tenants who would 
also benefit. 

A further problem is who should enforce the obligation for mainte- 
nance and repair to be imposed upon the landlord. It is apparent that 
municipalities, being the only bodies legally able to enforce minimum 
standards by-laws, are not likely to have the facilities to enforce any 
enlarged standards of maintenance in as many cases as will require 
attention. Unless there is clear provision giving a private right of action 
none will be inferred by the courts. The municipal by-laws provide for 
enforcement by the municipality, the costs being borne collectively by 
the taxpayer, defendants on prosecution and recipients of orders for 
demolition and levelling. This still leaves open the subject of damages 
for breach of the obligation. Unless a private right of action is given to 
persons who might be affected by a breach of the landlords' repair obliga- 
tions, the obligation will be largely precatory. 



45 

When in the course of an action on the new landlords' obligation a 
court is called upon to determine the nature and extent of that obligation, 
it should be proper for the court to consider all the relevant circumstances. 
This would mean that reference could be made to the standards imposed 
by any relevant public health legislation, regulations, or by-laws, whether 
directly applicable or not. 

Alternatively to an action on the obligation, a breach of the landlords' 
covenant to repair should give rise to a right in the tenant to effect the 
repairs himself, at a reasonable price, and deduct the repair expenses 
from the next ensuing rental instalments. The tenant would have a 
right to sue for any amount which cannot be so deducted because of the 
end of the term. As an alternative to effecting repairs and deducting 
the repair expenses, the tenant should be able to terminate the tenancy 
and thereupon be discharged from further payment of rent and per- 
formance of other conditions or covenants contained in the lease. 

In order that this right to effect repairs and deduct the cost from the 
rent or to determine the tenancy may be supervised adequately, the 
procedures whereby it may be exercised should be subject to the super- 
vision of the court under summary proceedings similar to those set out 
in Part III of The Landlord and Tenant Act. This would require the 
giving of notice to the landlord to remedy the breaches of the obligation, 
similar to that required by section 18 (2) of the Act, subject to a pro- 
hibition against proceeding to repair or quit the premises without a 
court order or the written consent of the landlord. 

Under The Short Forms of Leases Act, Schedule B, a breach of any 
tenant's covenant gives a right of re-entry and entitles the landlord to 
forfeit the term. This is subject to relief against forfeiture of the term 
given under section 19 of The Landlord and Tenant Act. A tenant, 
however, cannot determine the tenancy, save for a breach of a condition 
in the lease upon which the continuation of the lease is founded, or in 
the case of such occurrences as eviction by a title paramount to that of 
the landlord. Even a breach by the landlord of such covenants as that 
for quiet enjoyment provides the tenant with no means for the deter- 
mination of a tenancy. It is therefore necessary to give such a right on 
breach of the landlords' implied repair covenant. Otherwise, tenants 
may be compelled to live in unsafe or unhealthy premises. This would 
be true especially if the tenant could not obtain enforcement of the local 
municipal housing standards by-law and has no funds to effect repairs 
upon obtaining a court order to do so. 

One last point must be made in this chapter. It is necessary to be 
aware of the fact that if greater obligations are to be cast upon landlords, 
problems of financing will be created in areas where mortgage funds for 
renovation are not easily come by. It is not within the scope of this 
interim report to deal in detail with a solution for such problems. A 
perceptive, realistic and helpful assessment of this problem is contained 
in an unpublished study included as Appendix D to this report. 

Note should be taken of the contents of the last mentioned article 
dealing with tax incentives for private construction and rehabilitation 
in the United Sates and in particular to the late Senator Robert F. 



46 

Kennedy's proposal, S. 2100, 90th Cong. 1st Sess., introduced July 13, 
1967, amendment introduced on September 14, 1967, Amendment No. 
316. Proposal S. 2100 combines long term low interest rate mortgage 
loans by the Government with tax benefits at every stage to induce 
private investors to build or substantially rehabilitate low rent accom- 
modation. Considerable intergovernmental co-operation is required in 
dealing with municipal tax incentives. The proposal contains limited 
dividend provisions and cost of qualifying. The Commission recom- 
mends that consideration be given to providing similar financial assistance 
to landlords in Ontario. 

Recommendations 
The Commission therefore recommends that: 

(1) Landlords be under a duty at the beginning of the term to 
hand over possession of premises in a good state or repair and 
fit for habitation. 

(2) Landlords be under a duty to maintain the premises in a good 
state of repair and fit for habitation during the tenancy. This 
duty, however, should be subject to an obligation on the tenant 
to repair damage caused by his wilful or negligent conduct or 
that of persons brought onto the premises by him. The 
landlord's duty should also be subject to the obligation of the 
tenant to perform such normal housekeeping tasks as cleaning, 
polishing, changing fuses and light bulbs, etc. 

(3) In determining the nature and extent of the landlord's obligation 
to repair, a court be able to consider all relevant public health 
legislation and municipal minimum housing standards by-laws. 

(4) Tenants be given by statute a right of action to enforce, each 
for his own benefit, any repair obligation, whether devolving 
upon landlords by contract, lease, statute or municipal by-law. 

(5) Where a landlord is in breach of his obligation to repair, the 
tenant after giving notice to the landlord and upon obtaining 
the order of a court, have the power to terminate the tenancy. 
By analogy to relief against forfeiture a court should be em- 
powered to grant the landlord time to remedy the breach. 
Alternatively, at the request of the tenant, the court should 
permit the tenant to make the necessary repairs and deduct 
his expenses from the next ensuing instalments of rent. 

(6) Consideration be given to the establishment of a system of tax 
incentives and low interest loans for the financing of the repair 
and renovation of substandard dwellings. If obligations are 
to be imposed on landlords reason dictates that they be given 
proper means to discharge those obligations. 

(7) A prospective lessee's inspection of the premises not defeat his 
right to the benefit of the landlord's repair obligation. 



47 

CHAPTER VI 

RESTRICTIONS AGAINST CHILDREN 

Many tenant submissions were critical of landlords who refused to 
rent to families with young children. There is an admitted serious 
problem for such families which is not an outgrowth of the current crisis 
in housing but merely a continuation of a long standing situation. 
Landlords are sympathetic to the plight of such families but insist that 
it is both unfair and unrealistic to single them out as instruments of a 
desirable social policy. They maintain that in order for them to be in a 
position to expand the available market for family accommodation many 
changes must be made in the municipal taxation and zoning laws. 

Firstly, they claim that there is an irrefutable logic in their present 
practice of, in effect, maintaining * 'segregated" accommodation. The 
social problems, especially in multiple family buildings, which are caused 
by families with young children being mixed with unmarried people, 
families with no children and older tenants are considerable. Whatever 
the sociological literature may have to say about the benefits of having 
an admixture of the generations, older people feel they are entitled to 
live in quiet surroundings, which is hardly possible in buildings where 
children are present. In the case of younger tenants, especially un- 
married ones, the possibility of life styles causing conflict is the principal 
factor dictating separation. 

Some jurisdictions in the United States have made illegal any dis- 
crimination against families with children "on the sole ground that there 
are children in the family". Where accommodation is denied to families 
with children for any other reason than that there are children in the 
family the statute clearly would not apply. The reason might be that 
the building was occupied with tenants without children and the landlord 
wished to preserve this special character of the premises. In fact, it 
would appear that the only time the statute would apply is where a 
family with children was being excluded from a building already occupied 
by families with children. 

Landlords complain that zoning by-laws which create low density 
requirements make the cost of building higher than it need be. This, 
in turn, requires the maximization of profit through limiting the occupa- 
tion of accommodation to tenants without families or to families with 
only one child (usually under a stated age). This is in addition to the 
management reason which is based on the incompatibility of mixing 
the tenants with and without children. 

Examples of landlords who do not maintain such divisions are 
numerous and no claim is made that the decision to separate tenants is 
universal. Yet to force landlords to rent to families with children goes 
beyond the basic obligations which should be imposed on landlords. 

The experience of the New York statute indicates that the decision 
to refuse to rent to a family with children is based on business reasons. 
Alleviation of the problem of families with children must proceed in a 



48 

different fashion. The superficially attractive solutions, such as requir- 
ing the rental to families with children, are precisely the kind of treatment 
which can lead to development capital being diverted to other investment 
sources. 

It is basic to this problem that municipal, provincial and federal 
levels of government must provide incentives to private developers of 
accommodation for families with children. Current municipal tax and 
zoning structures, as well as development cost factors, favour develop- 
ment for a limited purpose occupancy. These factors, coupled with the 
higher maintenance and management costs of family accommodation 
units and amenities, which must be provided where children occupy 
rental units, militates against the development needed to satisfy needs 
for adequate rental accommodation. 

The problem is circular because the financial obligations of municipal 
government require taxation and planning policies which often have a 
negative impact on providing necessary incentives to builders. The 
financial problems of municipal governments cannot be solved without 
co-operation and assistance from the other two levels of government. 
It is not the purpose of this study to examine the impact of these factors 
on the market of rental accommodation. However, the interrelation of 
the problems is noted for the purpose of establishing the proper means of 
apportioning responsibility. Were this not done the landlord would 
too often appear to be the culprit where public needs and expectations 
are unfulfilled. 

It is certain that landlords do not deliberately discriminate against 
the family with children. The apparent discrimination has an economic 
basis. If the climate created by governments was favourable to the 
development of the family unit the private sector would no doubt volun- 
tarily do its share towards relieving the existing conditions of hardship. 

Recommendation 

The problem of restrictions against children cannot be dealt with ade- 
quately by legislation. Many restrictions apparently unfair, in fact 
result from the special nature of the particular building rather than 
from any desire to discriminate. The accommodation problems of 
families with young children can be treated best by making it as attractive 
for developers to build for families with children as it is for other oc- 
cupants. Discrimination solely on the basis that prospective tenants 
have young children is condemned but legislative action by way of direct 
prohibition is not recommended because it is not feasible and has not 
worked satisfactorily in other jurisdictions. 

CHAPTER VII 

RESTRICTIONS AGAINST TRADING 

Tenants' submissions indicated that a significant body of landlords 
in the multiple accommodation area place restrictions on the trades- 
people with whom their tenants may deal. The most usual restrictions 
relate to bread and milk deliveries, and cleaning serivces. In the case 



49 

of row housing (town houses, maisonettes, etc.) where the tenant is 
responsible for heating his own unit, restrictions are sometimes imposed 
requiring the purchase of fuel from a particular supplier and for prevent- 
ing the transfer from one class of fuel to another (e.g. from fuel oil to 
natural gas). 

In both classifications the objection is raised that it is an unwarranted 
restriction upon the tenant's freedom of choice. A second serious objec- 
tion is that, not infrequently, the restriction results in a financial ad- 
vantage to the landlord by way of payment from the particular supplier 
of goods or services. Payment is either fixed or is based upon a percent- 
age of the dollar value of goods and services supplied. In the case of 
fuel requirements, the advantage to the landlord will usually be related 
to second mortgage terms, which terms are more advantageous than 
those available on the open market. 

As far as the supply of such items as bread, milk and dry cleaning 
service is concerned the landlords' position is that an unrestricted ad- 
mission of tradespeople causes too many people to be on the premises 
during the course of a day. This causes additional maintenance and 
repair expenses, inconvenience in elevator services at peak periods of 
use and an increase in the risk of theft and break-ins. Most tenants 
concede the merit of the landlords' reasoning. They still take objection, 
however, to the way this reasoning is translated into action. 

The most frequent solution put forward is the establishment of a 
tenants' council to decide which suppliers should be given permission 
to enter the premises. As a democratic ideal the submission has some 
validity. As an administrative proposition it contains the basis for 
unduly complicating an already complicated relationship. 

To leave the general situation as it is, it is submitted, does no great 
injustice to tenants. To create a structure for achieving a tenant con- 
sensus concerning the particular persons who will have the right to 
supply these goods and services contains within it more areas for new 
conflicts than the problem warrants. 

Restrictions upon the purchase of heating fuels are usually included 
as provisions in the mortgage documents, often by way of restrictive 
covenant. To intervene in the landlord's financing arrangements, it is 
submitted, is an unwarranted interference. 

In fairness to tenants the provisions relating to limitations upon the 
freedom to trade with whomsoever the tenant wishes should be brought 
to his attention in the lease. It is suggested that, in the case of fuel 
purchases, the vendor company should have to charge prices which are 
competitive with those of other suppliers in the municipality. If this 
latter condition is not met then the restriction should not be binding 
upon the tenants. 

Restrictions on tradespeople imposed for legitimate purposes are 
acceptable realities of high rise apartment living. Tenants made aware 
of such restrictions in advance and unable to accept the nature and 
quality of the services offered with respect to particular accommodation 
are free to seek more agreeable arrangements elsewhere. 



50 

Restrictions imposed on tradespeople for purposes of ill-gotten gain 
fall into a different category. It may be that many landlords do not 
receive such payments, although acknowledgment of their receipt has 
been admitted publicly by one landlords' association. There is ample 
evidence to support the fact that they are received by building super- 
intendents, frequently surreptitiously. Tenants should not be denied 
freedom of choice of tradespeople where such restrictions are imposed 
for improper purposes. The practice of tradesmen making payments 
to owners, their building superintendents or managers should be made 
illegal. 

An informed electorate is the bed-rock of our democratic society. 
Its achievement and maintenance require concessions, compromises 
and, indeed, sacrifices. The restrictions imposed on tradespeople 
should not be extended to political canvassers, at reasonable periods 
and reasonable hours. It is no answer to say that these privileges are 
denied to other people engaged in other pursuits. One frequently has 
to draw the line where visible inconvenience results. The whole of 
human affairs involves a balancing of interests. Political canvassing 
beyond the threshold of the individual's private premises, whether in 
an apartment building or detached dwelling, is a matter of personal 
invitation. The political canvasser should not be denied the opportunity 
of having the invitation extended. 

Recommendations 

Restrictions Against Trading: Although there are valid reasons for per- 
mitting restrictions concerning the admission of tradesmen to multiple 
unit dwellings, the practice of tradesmen making payments to owners 
or superintendents of buildings in exchange for the privilege of exclusive 
access should be made illegal and subject to penalty. 

Note: Mr. McRuer would prefer this paragraph to read as follows: 

[Although there are valid reasons for permitting restrictions 
concerning the admission of tradesmen to multiple unit dwellings 
the practice of tradesmen making payments to agents or em- 
ployees of owners of buildings in exchange for the privilege of 
exclusive access should be made illegal and subject to penalty.] 

Subject to this, restrictions should be permitted but where they are 
imposed their precise nature should be set out in a separate clause in 
future leases. The tenant should acknowledge in the lease that the 
restrictions were drawn to his attention before he signed the lease. 

In this, as in other matters, the importance of the tenant receiving a true 
copy of the lease is apparent. We recommend that it be made obligatory 
that tenants be given such copy. 

Legislation should provide that landlords of multiple family units shall 
not restrict canvassing and orderly distribution of election literature by 
candidates or their authorized representatives in federal, provincial, 
municipal or school board election campaigns. 



51 

CHAPTER VIII 

ACCELERATED RENT 

Many leases contain a covenant providing that upon breach of any 
covenant to be performed by the lessee, then at the option of the lessor 
all or part of the rent for the balance of the term shall immediately 
become due and payable. Such covenant, as it does not amount to a 
forfeiture, is not capable of being relieved against under the provisions 
of section 19 of The Landlord and Tenant Act. Not being a penalty, 
there is similarly no power in the court to relieve against enforcement 
of the acceleration of rent under the powers contained in section 19 of 
The Judicature Act. 

Acceleration provisions are not peculiar to landlord and tenant 
law. Mortgages similarly provide for acceleration of principal repayments 
in the event of a breach of any of the terms of the mortgage including the 
provisions for repayment. In recognition of the basic unfairness of 
acceleration provisions the Ontario legislature enacted what is now 
section 20 of The Mortgages Act, R.S.O. 1960, c. 245, which states: 

"20. — (1) Notwithstanding any agreement to the contrary, 
where default has occurred in making any payment of principal or 
interest due under a mortgage or in the observance of any covenant 
in a mortgage and under the terms of the mortgage, by reason of 
such default, the whole principal and interest secured thereby has 
become due and payable, 

(a) at any time before sale under the mortgage or before the com- 
mencement of an action for the enforcement of the rights of the 
mortgagee or of any person claiming through or under him, the 
mortgagor may perform such covenant or pay the amount of 
moneys due under the mortgage, exclusive of the money not 
payable by reason merely of lapse of time, and pay any ex- 
penses necessarily incurred by the mortgagee, and thereupon 
he is relieved from the consequences of such default; or 

(b) in an action for enforcement of the rights of the mortgagee or 
of any person claiming through or under him, upon performance 
of such covenant or upon payment of the moneys due under the 
mortgage, exclusive of the money not payable by reason 
merely of lapse of time, and upon payment of the costs of the 
action, the mortgagor may apply to the court for relief, and 

(i) if judgment has not been recovered the court shall dismiss 
the action, or 

(ii) if judgment has been recovered but no sale or recovery 
of possession of the land or final foreclosure of the equity 
of redemption has taken place the court may stay 
proceedings in the action. 



52 

(2) Notwithstanding subclause ii of clause b of subsection 1, 
where judgment has been recovered and recovery of possession of 
the land has taken place, the court may stay proceedings in the 
action upon the application of a person having a subsequent lien, 
charge or encumbrance, made under subsection 1 within ten days 
after service of notice of the judgment has been made upon him. 

(3) Where proceedings have been stayed under subclause ii of 
clause b of subsection 1 or under subsection 2 and default again 
occurs under the mortgage, the court upon application may remove 
the stay. 

(4) This section applies to mortgages existing on or made after 
the 2nd day of April, 1953. 

The interest of the mortgagee is thus protected by the requirement 
that the dismissal of the action or stay of proceedings is not ordered by 
the court until the unaccelerated arrears are paid or until the other 
breaches of covenant are remedied. 

A similar provision might be introduced into The Landlord and 
Tenant Act, and the acceleration provisions, while still permitted, would 
be subjected to reasonable controls. As in the case of mortgages, the 
requirement that breaches of covenant be cured and unaccelerated arrears 
paid, will safeguard the landlord's interest. 

The peculiarities of rent acceleration represent yet another example 
of the incidents of the tenant's leasehold estate. The acceleration does 
not destroy the tenant's leasehold estate; it merely provides for an 
alternative means of payment of rent. 

Recommendation 

Accelerated Rent: In order to make rent acceleration clauses less subject 
to abuse whilst still protecting landlords' legitimate interests where the 
landlord claims an acceleration of rent and if the tenant pays arrears or 
remedies the breach of covenant, a court should have a power to stay 
proceedings similar to that conferred by section 20 of The Mortgages Act, 
R.S.O. 1960, c. 245. 

CHAPTER IX 

MITIGATION OF DAMAGES UPON ABANDONMENT OF 
PREMISES BY TENANT 

As long as the landlord does not acquiesce in the tenant's abandon- 
ment, rent accruing due under a lease remains recoverable. 

The case of Goldhar v. Universal Sections and Mouldings Limited, 
[1963] 1 O.R. 189 (C.A.) is a clear example of a further anomaly based 
upon the tenant's acquisition of a leasehold estate. Mr. Justice McGilliv- 
ray deals with this peculiarity at page 200: 



53 

"An anomalous situation undoubtedly exists when the duty 
imposed upon a plaintiff by the law of contract to do what he can to 
minimize the damages might, if allowed under property law, result, 
when he re-lets, in his being deprived of a right of recovery for his 
loss and the following extract from an article in The Michigan Law 
Review, vol. 23, pp. 221-2, must reflect the opinion of many: 

'Turning aside for the moment from the attempt to mirror 
these legal rules of yesterday, today and the immediate to- 
morrow, one reflects on the curious yet characteristic glimpse it 
affords of the growth of our law. Long after the realities of 
feudal tenure have vanished and a new system based upon a 
theory of contractual obligation has in general taken its place, 
the old theory of obligations springing from the relation of 
lord and tenant survives. The courts here have neglected the 
caution of Mr. Justice Holmes, "that continuity with the past 
is only a necessity and not a duty." If one turns from a decision 
upon the conditions implied upon a contract for the sale of 
goods in installments, to one upon the obligation of the parties 
to a lease, one changes from the terms and ideas of the twentieth 
century to those of the sixteenth. The notion of "privity of 
estate" and its attendant rights and duties appears as quaint 
and startling as a modern infantryman with a cross-bow. 

'The ancient weapons, reshaped though they have been in 
the attempt to fit them for modern uses, will at some future day, 
one conjectures, be altogether thrown aside. The doctrine of 
implied conditions, no longer disguised under such names as 
"constructive eviction" will be applied to leases and the law 
of landlord and tenant will be assimilated to the law of contracts 
generally. When the process is complete, one cannot doubt 
that the old rules as to the effect of surrender by operation of 
law, forfeiture, and eviction, as preventing the landlord from 
recovering his actual loss from the tenant's breach of contract, 
will wholly disappear and will be supplanted by the principles 
governing the effect of repudiation, breach, and rescission of 
other contracts. No less certainly the logic, inescapable accord- 
ing to the standards of a "jurisprudence of conceptions", which 
permits the landlord to stand idly by the vacant, abandoned 
premises and treat them as the property of the tenant and 
recover full rent, will yield to the more realistic notions of 
social advantage which in other fields of the law have forbidden 
a recovery for damages which the plaintiff by reasonable efforts 
could have avoided.' " 

Thus, upon abandonment of the premises by the tenant there is no 
obligation upon the landlord to mitigate damages. This is an apparently 
unreasonable distinction between the obligation to mitigate damages 
applicable to a simple contract under contract law and the total absence 
of such obligation under the landlord and tenant law. There does not 
appear to be any reason to maintain this distinction. This would not 
only harmonize the responsibility of landlords with the generally accepted 



54 

requirements of contract law, but would also dispense with the require- 
ments placed upon the landlord who chooses at present to mitigate 
damages as outlined at page 200 of the Goldhar case. 

Recommendation 

Mitigation of Damages: Where a tenant abandons the premises the 
present rule whereby the landlord is not required to mitigate his damages 
should be reversed so that the ordinary rules of contract relating to 
mitigation of damages will apply. 

CHAPTER X 

DOCTRINE OF FRUSTRATION 

It is trite law that in the absence of an express provision to the 
contrary the liability of the tenant to pay rent remains notwithstanding 
the subsequent occurrence of some unforeseen event which makes the 
obligation unconscionable. Thus a tenant must continue to pay rent 
despite the fact that the premises are completely destroyed by fire: 
Matthey v. Curling, [1922] 2 A.C. 180. In such a case the tenant cannot 
take refuge in the doctrine of frustration applicable to contractual 
obligations. Under this doctrine the contractual obligations are dis- 
charged if the transaction is frustrated by the occurrence of some un- 
expected event that strikes at the root of the agreement. The effect of 
the application of the doctrine is that the contractual rights and obliga- 
tions cease automatically upon the occurrence of the unanticipated event. 

In Ontario the rights and obligations of the parties are further 
defined by the provisions of The Frustrated Contracts Act, R.S.O. I960, 
c. 157, which amplifies and clarifies the implications of the common law 
doctrine. This statute does not apply to leases and neither does the 
common law doctrine of frustration, although doubts have been cast by 
high authority upon the soundness of this view: see Lord Simon and 
Lord Wright in Cricklewood Property & Investment Trust Ltd. v. Leighton s 
Investment Trust Ltd., [1945] A.C. 221. 

The classic reason ascribed for this unhappy state of affairs is that a 
lease creates more than a contract. It creates an estate in the land. The 
argument proceeds that since the estate remains vested in the tenant, the 
land remains available to him even though the buildings have been 
totally destroyed. The lease does not cease merely because it has become 
burdensome or, indeed, because performance of one or more of the con- 
tractual obligations has become impossible: Cheshire, The Modern Law 
of Real Property (9th ed., 1962), at page 396. 

Though historically defensible, this view of the matter, particularly 
with reference to residential tenancies, is outmoded and unacceptable. 
The traditional rule should be reversed and the doctrine of frustration 
made applicable to residential tenancies. The Frustrated Contracts Act 
should also be made expressly applicable in order that the total rights of 
the parties may be properly adjusted. 



55 

Recommendation 

Frustration of Lease: The doctrine of frustration of contract should be 
made applicable to leases. Where the premises have been destroyed by 
fire or been so damaged that they are no longer of use for the purposes for 
which they were let, the obligation to pay rent should cease. When the 
obligation to pay rent ceases, the landlord's obligation to repair should 
cease as well. 

CHAPTER XI 

TERMINATION OF TENANCIES 

The subject of termination of tenancies has caused much difficulty 
for both landlords and tenants. Many tenancies have been kept alive 
because of an improper understanding of the means of terminating them. 
In addition there is uncertainty as to the status of overholding tenants 
after a term of years, there being apparent conflicting decisions in the 
Ontario Court of Appeal. The problem is shortly stated in Laskin, 
Cases and Notes on Land Law, revised edition, 1964, page 325: "Where 
rent is paid and accepted on a holding over so that a new periodic tenancy 
results, should the governing consideration in determining the kind of 
tenancy be the term or period length of the original lease, or should it 
be the way in which or the time unit for which rent is reserved?" 

A number of statutory attempts have been made to deal with the 
problems of termination. The Landlord and Tenant Act of the Province 
of Alberta, S.A. 1964, c. 43, provides an excellent basis for study. The 
statute, being Appendix E to this interim report, provides: 

(a) for notice in writing. There is a problem in permitting oral 
notice to quit where there is a dispute as to sufficiency. 

(b) that an irregular notice shall take effect on the last day of the 
period of the tenancy next following the giving of notice. This 
provision corrects a hardship which exists at present in Ontario, 
where the notice is improperly given. 

(c) for the form of notice which may be used (Forms A & B). It 
is suggested that the relevant provisions for giving notice be 
posted in rental accommodations setting out the rights and 
duties of tenants and that the forms of notice be added as a 
component part. 

(d) for the problem of serving the tenant by establishing alternative 
methods of service. 

(e) for the simplification of termination of weekly and monthly 
tenancies in cases where rent is payable other than on the first 
day of the week or month. 

(/) that the tenancy from year to year may be terminated by 
notice "on or before the sixtieth day before the last day of any 
year of the tenancy" which is an improvement over the present 



56 

requirement of one-half year's notice. The problem of a year 
to year tenancy not based on a calendar year is dealt with in 
section 8 of the statute. 

(g) rules governing the creation of a tenancy by overholding and 
payment of rent (section 9(1)). It will be noted that in the case 
of a tenancy for a term of years, where the term has expired, 
the payment of rent does not create a new tenancy unless the 
parties agree. The onus of proving the creation of a new 
tenancy is on the person so claiming (section 9 (2)). The 
landlord is entitled to compensation for use and occupation 
after expiry of the term. The tenancy from year to year is an 
anomaly and rarely exists other than by implication. Therefore 
section 9 of the Alberta statute represents a realistic avoidance 
of this anachronism. 

Recommendation 

Termination of Tenancies: New rules should be enacted to govern the 
form of notices to quit, the time for giving such notices, the method of 
calculating time when notice has been given, the cases where over- 
holding tenancies will arise and to provide for substitutional service. 
The Alberta legislation is a helpful guide in the formulation of these 
rules. 



CHAPTER XII 

THE INDEPENDENCE OF LEASE COVENANTS 

This study has emphasized the unhappy legal positions of tenants 
which result from the lease being considered a conveyance of an estate 
in land. Very few covenants are implied in favour of the tenant and 
even where there are covenants agreed upon in favour of the tenant, an 
additional complication exists. The usual rules of contract law making 
bi-lateral contractual provisions mutually dependent will excuse one 
party from further performance upon a substantial breach of a material 
covenant by the other party. In the case of a lease, covenants are 
presumed to be independent, therefore a breach of the landlord's cove- 
nant, for example, to heat, does not relieve the tenant of his obligations, 
including the obligation to pay rent. (See Johnson v. Givens, [1941] 
O.R. 281, (C.A.); see Edge v. Boileau (1885), 16 Q.B.D. 117). 

The logic of the distinction is difficult to discern. Historically the 
early agricultural economy, out of which our landlord and tenant law 
grew, placed principal importance on the conveyance of the leasehold 
interest. The supporting covenants being secondary, there emerged the 
continuing duty to pay rent even though the building is destroyed. Cove- 
nants may be broken by the landlord without any effect on the obligation 
to pay rent for his estate. Concepts rooted in an agricultural economy 
of a by-gone day provide little logical relevancy for today's landlord and 
tenant realities. 



57 

The independence of covenants in a lease does not usually affect the 
landlord because of the provision contained in The Short Forms of Leases 
Act, R.S.O. 1960, c. 373, Schedule B, para. 12 which in effect transforms 
tenants' covenants into conditions, including the covenant to pay rent. 
Thus, the violation of a covenant provides the landlord with the right 
to re-enter "as of his former estate" just as in the case of a condition. 
The result is an imbalance of rights in favour of the landlord. 

A re-examination of the independence of covenants in leases is 
required, and it is submitted that covenants be treated as dependent in 
the case of the tenant's obligation to pay rent where the landlord has 
broken his obligation such as covenants to heat, for quiet enjoyment or to 
repair. Under the present state of the law the strange result is that, 
barring a total eviction, the tenant must continue to pay rent even if he 
has a right to sue for damages. 

As under paragraph 12 in Schedule B of The Short Forms of Leases 
Act, covenants amount to conditions in favour of the landlord, there is 
some justification for giving similar rights to the tenant. There is little 
excuse for requiring a tenant to be bound to pay rent where the landlord's 
covenants for making repairs, heating, and for quiet enjoyment have been 
broken. 

It is suggested that the right to terminate the lease and to obtain 
possession would best be restricted to cases where a court order is ob- 
tained, under proceedings similar to a Part III application under The 
Landlord and Tenant Act, and that self-help be done away with except 
in cases of an abandonment. 

At present self-help in regaining possession is permitted. Unfor- 
tunately, many tenants and landlords report that this is often effected 
by the landlord changing the locks. The changing of locks represents an 
illegal, though a very effective, means of regaining possession and of 
effecting an illegal distress. Effectiveness, while it has much to recom- 
mend it, cannot be countenanced where the conduct is patently illegal. 
In order to encourage use of correct legal procedures a penalty should be 
attached to the illegal changing of locks. 

Under a statutory provision permitting determination of tenancies 
for breach of landlords' as well as tenants' covenants the court should 
have the power to grant relief against forfeiture not only to the tenant 
but to the landlord as well, on such terms as the court may deem just. 

The proposals made above, if implemented, would have the following 
effects: 

(a) they would make self-help illegal except in the case of aban- 
donment as described; 

(b) they would make it punishable by fine to change locks with a 
view to terminating a tenancy or effecting an illegal distress; 



58 

(c) they would remove the obligation on the part of a tenant to go 
on paying rent if certain important covenants of the landlord 
were breached ; and 

(d) they would equalize the rights of landlords and tenants to 
determine the tenancy upon breach of covenant, but only after 
adjudication by the court. This would not affect determina- 
tion of tenancies by mutual agreement. 

Recommendation 

Independence of Covenants: The covenants in leases should be treated 
as dependent, each upon the others, and the positions of landlords and 
tenants respecting breach of covenants should be assimilated. This 
would eliminate the anomaly of a tenant having to pay rent and perform 
his other obligations under a lease even though the landlord has broken 
such covenants as to repair, provide heat and give quiet enjoyment. 

Where the other has broken a covenant in the lease, either the land- 
lord or the tenant should be able to apply to a court for an order ter- 
minating the tenancy. Relief against forfeiture should be available to 
either party in a proper case. 



CHAPTER XIII 

LESSEES' RIGHTS PRIOR TO TAKING POSSESSION 
(INTERESSE TERMINI) 

The "interest in the term" obtained by a tenant under a valid lease, 
before entry, has been referred to earlier. Without an actual entry the 
"estate" interest does not vest in the tenant and no covenant dependent 
on the existence of an estate, for example, the covenant for quiet enjoy- 
ment, can be enforced under mere interesse termini. In Laskin, Cases 
and Notes on Land Law there is an excellent summary of the interesse 
termini. With the kind permission of the author this summary has been 
reproduced and is annexed as Appendix F. The interesse termini repre- 
sents another instance of the negative impact of the estate aspect of 
landlord and tenant law. It has been dealt with by legislation in England 
and under this present law a tenant under a valid lease is in the same 
position before and after possession has been taken. It is suggested that 
legislation be enacted in Ontario to the same effect. 

Recommendation 

Lessees' Rights Prior to Taking Possessio?i {Interesse Termini): A lessee 
under a valid lease should have the same rights before he takes possession 
as after. Accordingly the doctrine of interesse termini should be abolished. 
The inadequacy of relief available to a lessee to whom possession has 
been wrongfully denied thus would be remedied. 



59 

CHAPTER XIV 

COVENANTS RELATING TO THINGS IN BEING (IN ESSE) 
AND THINGS NOT IN BEING (IN POSSE) 

One of the ancient rules, as enunciated in Spencer's Case (1583), 
5 Co. Rep. 16a, which has remained part of the law of landlord and 
tenant is that an express covenant which touches and concerns the 
subject matter of the lease runs with the land and is binding on successors 
in title whether or not these "assignees" are named, so long as the 
covenant refers to something already in existence (in esse). An example 
is a covenant to repair an existing wall. Where, however, the covenant 
refers to something not in existence (in posse) at the time of the lease, the 
covenant does not bind the assignees unless the original lessee covenanted 
for himself and his assigns. 

As in the case of the interesse termini, this anachronism should be 
done away with by appropriate legislation. Thus covenants "in posse' 
should be treated in the same way as covenants "in esse". 

Recommendation 

Covenants Relating to Things in Being (In Esse) and Things Not in Being 
(In Posse): The rule which holds that covenants concerning the leased 
property relating to things in existence at the time of the demise run 
with the land, while covenants relating to things not in existence at that 
time do not run with the land, should be abolished. 

CHAPTER XV 

THE LEASEHOLD ADVISORY BUREAU 

Unless reasonable procedures are made available to tenants to per- 
mit their rights to be dealt with speedily and inexpensively, changes in 
the law, ostensibly for their benefit, are apt to remain little more than 
pious wishes. There is evidence, based on responses from Area Legal 
Aid Directors, that applications for certificates arising out of landlord 
and tenant disputes have been negligible in number. Similar experience 
has been noted in American and English studies. Those tenants who 
most require assistance are the least likely to seek legal redress by con- 
sulting a lawyer. 

Any serious legislative approach to the revision of the landlord and 
tenant laws must be predicated on the introduction of effective reforms. 
Traditionally, it has been held that it is up to the intended beneficiaries 
of a statutory provision to utilize the rights created upon the changes 
being effected. Ideally this is what is hoped for. When a new statutory 
provision is not used by those it was designed to help it is a reasonable 
assumption that the reasons for its enactment were somehow miscon- 
ceived. Any such assumptions concerning the landlord and tenant 
laws must be tested against an additional consideration. There is 
evidence that main - tenants because of unhappy experience or because 



60 

of unfamiliarity with their rights are unwilling to take a matter to the 
courts. They are happier resorting to government agencies and tenants' 
associations for advice and assistance. Evidence disclosed that these 
agencies and associations have had very creditable success in a con- 
ciliatory role. 

Municipal authorities could play a very useful role if they were 
authorized to create rental conciliation services to aid landlords and 
tenants in settling their disputes. Many landlords are unaware that 
certain of their actions are in fact illegal because the means they employ 
have never been questioned by a tenant. The changing of locks without 
the tenant's consent is, for instance, common practice. A communica- 
tion from a third party questioning the legality of what the landlord has 
done often results in legal advice being sought and a correct legal pro- 
cedure being followed. Tenants also can benefit from being advised 
to seek legal advice and in proper cases should be referred to the local 
area legal aid director. 

It must be emphasized that no conciliation service should act in 
the capacity of legal adviser, now has this been the case in those govern- 
ment departments and in those tenants' associations which have been 
studied. Various kinds of conciliatory programmes have been employed 
in the United States in landlord and tenant matters. The history of 
conciliation in labour disputes has been a feature of Canadian labour 
law for over forty years and a recent survey of labour and management 
opinion acknowledges its continued usefulness. It is not without reason 
that among experiments in landlord and tenant relations one of the more 
successful has been the collective agreement between landlords and 
tenants' associations, a feature of which is conciliation. Failure to 
recognize that total reliance on traditional procedures is not enough 
can result in statutory reform failing to achieve its purpose. 

The recommendation that conciliation procedures be created is not 
intended and should not be interpreted as a criticism of the courts. It is 
intended only to deal realistically with a problem where a different 
approach, in some ways unconventional, could usefully be employed. 
A conciliation procedure would in no way usurp the function of the 
courts whose paramountcy must be and is recognized. 

Professor A. Chayes of the Law School of Harvard University in the 
foreword of Wald, Law and Poverty (1965), stated: 

"... there is a built-in promise that the law itself can be the dynamic 
of change, that the poor man, by learning about his rights under 
the law and by acting to vindicate them can gain self-respect, a 
sense of personal worth, the realization that he has value in himself 
and is not just an object to be manipulated by the system." 

Professor Chayes' statement supports the axiom that when rights 
are given to the subject they should be rights which he can exercise. 
There is evidence, both in the United States and England, that sub- 
stantive law reform is not always sufficient by itself. Reference will be 
made in a subsequent chapter to the need for examining means of making 



61 

the courts both more accessible and better able to handle the volume of 
litigation which can be anticipated. There is, however, the problem of 
the "perfect" statute which does not approach the expectations of those 
responsible for its enactment. 

The case of the English Rent Act, 1965, published as 1965, c. 75, is 
illustrative. The then Minister of Housing said at the time of its enact- 
ment: 

"Anybody who is the rightful occupier of a house in the broadest 
sense will from now on be protected against people who bully them, 
people who prosecute, people who . . . try to force them to get out of 
a place. That will become a crime. These people are to be pro- 
tected throughout the country." 

The "Shelter" Report Notice to Quit published in September, 1968, 
dealt with the Act's efficacy. One of the major discoveries of the 
"Shelter" Report is that there still exists a considerable body of tenants 
who are either ignorant of their rights or fearful about exercising them. 
The Report states: 

"It is clear . . . that there is a great need for advice and guidance 
on housing matters . . . the field is complicated and few are familiar 
with more than a part of it. Advice is needed on the law relating 
to landlord and tenant, public health requirements . . . and the 
1965 Rent Act." 

The late Senator Robert Kennedy, when Attorney-General, told the 
Chicago Law School: 

"Our new problems are a little more difficult. The fees are less. 
The rewards are greater. First we have to make law less complex 
and more workable. Second, we have to begin asserting rights 
which the poor have always had in theory but which they have 
never been able to assert on their own behalf. Unasserted, unknown, 
unavailable rights are no rights at all. Third, we need to practice 
preventive law on behalf of the poor." 

Available evidence indicates that if municipal governments were 
to set up landlord and tenant conciliation services, many disputes and 
disagreements might be settled without the need for litigation. Because 
many problems can be attributed to the ignorance of the parties, the 
services of a disinterested third party would serve the purpose of obtain- 
ing voluntary compliance with the laws. 

While there are objections which can be made to the establishment 
of municipal conciliation services, on a balance of considerations the 
advantages of such services far outweigh the disadvantages. Experience 
in other jurisdictions, where laws are not dissimilar from our own, in- 
dicates that amending the law is not enough. The realities demonstrate 
that many people, who have traditionally occupied an inferior social 
and economic position must be assisted in making use of the law and 
must be educated as to their rights. No more is intended than the law 



62 

be made known to all and that persons be directed to the means of 
obtaining legal assistance, where necessary. To some extent we are the 
victims of a mythology which stresses individual responsibility for 
protecting legal rights. That ideal must never be lost sight of and 
cannot be seriously questioned. What, however, of a reality which 
shows that a substantial body of citizens do not, for various reasons, 
utilize the laws enacted for their protection? Humanity dictates that 
they not be abandoned because they do not or cannot act in accordance 
with our beliefs. In any event, tenants would not be playing a passive 
role for they would have to seek out the conciliation service. 

Perhaps the only way we can expect the realization of the ideal of 
individual responsibility is to demonstrate that the laws do protect all 
of the citizens. If a conciliation service demonstrates the availability 
of relief and serves an educative role, it should not be rejected merely 
because it is strange and possessed of certain risks. 

It is most definitely intended that a conciliation service should not 
practice law and should in no way abandon its conciliatory role. This 
does not mean, however, that the service should not have its own legal 
advisers. Municipalities are aware of the extent and seriousness of the 
present housing crisis and surely wish to do everything possible to improve 
the climate between landlords and tenants. Their co-operation is 
therefore certain to be forthcoming. 

Not all municipalities have housing problems requiring the establish- 
ment of conciliation services. If the services were established on a local 
option basis, the service in each municipality being locally organized 
and staffed, the programme could be tailored to suit local conditions 
and its overall cost kept to a minimum. 

Recommendations 
The Leasehold Advisory Bureau: 

(1) Municipalities should be authorized to establish, as a matter 
of local option, offices or networks of offices to be called Lease- 
hold Advisory Bureaux (L.A.B.). Landlords or tenants having 
problems arising out of a tenancy could go to an office near 
to them and seek advice as to the nature of their rights and how 
they might proceed to enforce them. The staff of the office 
would use their best endeavours to obtain a satisfactory and 
perhaps amicable settlement of the problem. If that proved 
impossible, they would then advise the parties as to how they 
might obtain a settlement of the issue by the courts or by setting 
administrative action in motion. In appropriate cases parties 
could be referred to legal aid. 

(2) Where metropolitan or regional municipalities have been estab- 
lished, it would be preferable that these powers be granted to 
the metropolitan or regional councils, rather than to the local 
or area municipalities. 



63 

(3) The functions of each L.A.B. should be the provision of informa- 
tion, conciliation and rent review. It would answer the ques- 
tions of landlords and tenants, explain the benefits and burdens 
of provincial legislation affecting them, seek to mediate disputes 
and to aid in fair settlements, and when necessary, undertake 
a full rental review. 

(4) On the L.A.B. staff would be a Rent Review Officer whose 
duties would be to attempt to obtain fair and just settlements of 
disputes concerning the payment or increasing of rent at any 
time during or at the end of the tenancy, and of disputes over 
whether a tenancy should be continued or renewed. A more 
thorough description of the function and duties of the Rent 
Review Officer will be given in the next chapter. 

(5) Either the Attorney General or the Minister of Financial and 
Commercial Affairs should exercise a general supervisory role 
over the entire programme. 



CHAPTER XVI 
RENT CONTROL 

1. History of Rent Control in Canada 

(a) Federal Legislation 

The major experience of Canadians with a system of rent control, 
was under wartime and post-war legislation justified by the conditions of 
a war -oriented economy. Order-in-Council 9029, approved on the 21st 
of November, 1941, under the provisions of the War Measures Act, 
R.S.C. 1927, c. 206, gave authority to the Wartime Prices and Trade 
Board to make regulations governing the maximum amount of rental 
which might be charged for any particular accommodation, and any 
particular services supplied by the landlord to the tenant thereof, and 
giving to the tenant some degree of security of tenure in addition to that 
accorded by the ordinary common law and applicable statute law. 

Section 5 of P.C. 9029 established a maximum rent for all real 
property in Canada which was subject to a lease on the 11th of October, 
1941, and for which a maximum rental had not been previously fixed by 
or on behalf of the Board. The maximum rent chargeable for affected 
accommodation was to be the rent payable under the lease in effect on 
the specified date. The section also fixed the maximum rent for real 
property not subject to a lease on such date, at the rent payable under 
the last lease in effect between the 2nd of January, 1940, and the 11th 
day of October, 1941. "Lease" was defined in section 2 (1) (c) of the 
Order as any enforceable contract for the letting or sub-letting of all 
property whether oral or written and included any leave or licence for 
the use of real property. 



64 

Section 3 gave the Board power to fix the maximum rent at which 
any real property might be rented, to prescribe the grounds upon which 
and the manner in which leases might be terminated. Provision was 
made for the appointment of a Rentals Administrator, a Rentals Ap- 
praiser, a Court of Rental Appeals, and for the appointment of other 
officials. 

A system of rent control is inextricably bound up with a great deal 
more than merely the control of rents. In Rental Control in Canada, 
an article contained in the first volume of the Refresher Course Lectures, 
arranged by the Law Society of Upper Canada in 1945 for its Members 
in the Armed Forces, at pages 295 to 368, Wishart F. Spence, now Mr. 
Justice Spence of the Supreme Court of Canada, stated: 

"It has been alleged, however, that the Wartime Prices and Trade 
Board have no jurisdiction in entering the second field of regulation 
(that relating to security of tenure) and that so long as the Board 
controls the maximum price at which accommodation may be 
rented, the problem of who is to occupy the accommodation and 
to pay such maximum price is not a topic with which an anti- 
inflation agency can be concerned. ..." 

Mr. Justice Spence went on to say: 

"The answer to such allegations is two-fold. 

Firstly, security of tenure is absolutely necessary for the enforce- 
ment of control on the price; experience has shown that so soon as 
security of tenure is let go, control of the price disappears." 

Peacetime rent control cannot overlook tenure control. These two 
concepts are opposite sides of the same coin. Almost every rent control 
system maintained in peacetime has controlled both rental and tenure 
aspects. 

What then are the basic differences between peacetime and wartime 
controls? As Mr. Justice Spence dealing with the wartime basis stated 
in the lecture cited above: "In Canada [rent regulation] is an integral 
and most important part of the general policy of price freezing, as a 
means of preventing wartime and post war inflation. ..." 

The obvious difference between peacetime and wartime control is 
the existence of total or almost total price fixing in wartime, of which 
rent regulation is only a part— albeit an important part. There is a 
further important distinction, in that residential contruction during 
wartime was reduced to the barest trickle. These two distinctions 
demonstrate the difficulty of comparing the efficacy of peacetime rent 
control with that of rent control imposed during the war. The impact 
cannot be the same. Where all or most prices are fixed there is little 
basis for excluding rents. During the war, rent control would not have 
any impact on the rate of construction as it might have in a peacetime 
economy. 






65 

There is, however, one common basis for instituting rent control, 
whether in time of war or peace. Appropriately enough, it is expounded 
in the following quotation taken from a report of one of the few North 
American jurisdictions having a form of peacetime rent control. In 
Rent Control in New York City (1967), at page one it is stated: 

"The fundamental, and legal, basis of rent control is to prevent 
the speculative, unwarranted and abnormal increases in rents that 
would result from the unnatural competition of too many tenants 
bidding for too few apartments and the economic and social hard- 
ships this would cause. . . . 

"The prime purpose of rent control is to make it possible for 
tenants to find and keep decent apartments at reasonable rents." 

(b) Ontario 

When the Government of Canada left the field of rent control, 
transitional legislation was enacted by the Province of Ontario. Section 3 
of The Leasehold Regulations Act, 1951 provided for the continuation of 
the Wartime Leasehold Regulations. By section 4, provision was made 
for the continuation of proceedings in accordance with the said Regu- 
lations. The powers formerly vested in the Wartime Prices and Trade 
Board were, by section 5, transferred to the Lieutenant Governor in 
Council. 

Subsequently, by a series of regulations made under the powers 
contained in section 6 of the Act of 1951, the provisions of the Act 
ceased to be applicable to named areas of the province. 

The Rent Control Act, 1953 represented a further change in the 
operation of rent control in Ontario. Under the provisions of section 2(1) 
of that Act: 

"The council of any municipality in which . . . [regulations made 
under The Leasehold Regulations Act, 1951] . . . are in force on the 
day this Act comes into force may pass by-laws, 

(a) adopting such Regulations as are in force in the municipality 
on the 1st day of March, 1954, and declaring them in force in the 
municipality; 

(b) creating a rental authority and providing for the administration 
and enforcement of the Regulations; 

(c) revoking, amending, remaking or substituting for any of the 
Regulations." 

Under section 2 (2) of the Act of 1953, such by-laws could be passed 
with respect to the whole or part of the municipality. 

Section 3 of the Act of 1953 provided for continuation of proceedings 
commenced before the 2nd day of March, 1954, under the provisions of 
the new Act. 



66 

By section 5 of the Act of 1953 The Leasehold Regulations Act, 1951, 
was repealed on the 2nd day of March, 1954. 

An examination of the regulations passed under the Act of 1951 
indicates that such cities as Ottawa, Toronto (but not all of what is now 
Metropolitan Toronto), Hamilton, Fort William, Port Arthur and 
Kingston were "municipalities in which the regulations were in force on 
the day" the Act of 1953 came into force. (2nd April, 1953). There 
is nothing in the wording of the Act of 1953 which indicates that a failure 
at any point in time to adopt the existing Regulations or to create a rental 
administration authority would disentitle a municipality from doing so 
later. 

It could be argued that because the Act of 1953 is unrepealed, 
although unconsolidated, it is still in force. Therefore, any municipality 
included in section 2, could now pass by-laws pursuant to the authority of 
section 2. 

At least one municipality has apparently been advised that the 1953 
legislation cannot be acted upon unless there was no hiatus in the con- 
tinuation of the Wartime Leasehold Regulations. A number of muni- 
cipalities (e.g. Ottawa and Windsor) by a vote of council have urged 
the provincial government to pass enabling legislation. In the case of 
the City of Windsor the request was only for the establishment of a rent 
review tribunal with only recommendatory powers. A by-law passed 
pursuant to the Act of 1953 could, of course, be tested by a direct challenge 
or by a reference under The Constitutional Questions Act, R.S.O. 1960, 
c. 64. 

(c) The Province of Quebec 

In 1951 the Quebec Legislature passed "An Act to Promote Con- 
ciliation between Lessees and Property Owners." The Act is not one of 
general application either in a geographic or an economic sense. 

By an amendment passed in 1963, section 35 of the Act sets out the 
municipalities where the Act applies. It would seem that the Act applies 
to centres of greater population density (i.e. of more than 10,000 popu- 
lation). The law applies only within the limits designated in section 35 
of the Act as amended. Pursuant to an amendment, passed on March 7th, 
1968, thirty-three municipalities made a request for coverage under the 
Act. 

As amended in 1962, section 32 of the Act provides that the Lieu- 
tenant Governor may permit a municipal council to withdraw from the 
Act's provisions upon a vote of an absolute majority of the council. 

A Rental Office has been established in each municipality. Each 
office has a Rental Administrator whose decisions may be appealed to 
the Rental Commission by either party. The Rental Commission has 
power to modify the decision of the Rental Administrator. 



67 

Under section 35a of the Act, which was created by amendment in 
1962, on the Island of Montreal only, the Act ceases to apply to houses 
(including dwelling or apartment but not rooming houses) for which the 
rent legally in force on the 1st of December, 1962, exceeded $125.00 
per month. In other municipalities this figure is $100.00 per month. 

The basic scheme of the Act is that during a specified period before 
the expiry of a term, landlords and tenants may discuss the renewal of 
the lease for another year. It is only where no agreement can be achieved 
that the tenant can make application to the Rental Administrator, 
applying for an extension of the lease and the fixing of rent. Hence the 
description of the statute as one "to promote conciliation". 

The Act is re-enacted every year and this has the effect of renewing 
leases for an additional year. Under section 25, however, if he has 
broken covenants in the lease or is in arrears of rent for three weeks, 
the tenant may be evicted upon authorization by the Rental Adminis- 
trator. 

The Act only comes into operation where the parties cannot agree. 
When they do agree or are deemed to have agreed, they are bound by the 
agreement. Rent may be reduced or the lease terminated, however, 
where, inter alia, the premises are in a state of disrepair. Sections 26 and 
26a deal with such a situation in the following manner: 

26. Whenever a house, without the act or fault of the lessee or of a 
person for whom he is responsible, suffers any deterioration 
which seriously reduces its rental value, or whenever the lessor 
reduces its space, services, or conveniences, the lessee, failing 
agreement with the lessor, may apply to the local administrator 
for a reduction of rent and the administrator shall have power 
to grant him such reduction if he deems it equitable. 

26a. The administrator may annul the prolongation of a lease 
whenever, through age, disrepair, fortuitous event or irresistible 
force, the house is in danger of falling and dangerous to the 
public or occupants. 

He may also permit an owner who so desires to make 
repairs to such house, and for such purpose may, if necessary, 
order the same to be temporarily vacated on such conditions 
as he deems it expedient to fix for the protection of the lessee's 

rights. 

Section 23 and those sections following it provide that the owner 
may, in proper cases, recover possession of a house for his own use or for 
the use of members of his family. That is, he may take the premises 
out of the rental market if he is acting in good faith. 

Premiums, commissions or bonuses are forbidden by section 28 and 
they can be recovered by action. Section 29 prohibits the obtaining of a 
higher rent from a new tenant than that received from the former tenant 
without authorization of the rental administrator. 



68 

The Quebec Act is aimed at protecting low income tenants. The 
Montreal offices of the Rental Commission were visited and its officials 
were questioned. A number of Montreal lawyers were questioned as 
well. The statute appears to have had a beneficial effect on the position 
of the low wage tenant and its scheme represents a model deserving of 
close attention. 

2. The Most Common Forms of Rent Control 

There are a number of differently conceived rent control schemes. 
First, there is the method of changing the common law landlord and 
tenant relationship by conferring upon existing courts the power to 
assist tenants threatened either with eviction or an "unreasonable" 
demand for rental. This was characteristic of various American plans 
during World War I. Second, there is the "rent freeze" method which was 
employed in Canada during World War II. It is also characteristic of 
the legislation passed under the United States federal Emergency Price 
Control Act of 1942. The third device is "fair rent" legislation which 
provides machinery for testing any queried rental as to whether it 
affords a "fair return" to the landlord. An example of this approach 
is found in the Virginia Emergency Fair Rent Act of 1947, and to a degree 
in the United States federal legislation of 1949. On occasion all three 
of these approaches have been employed in a single statutory rent 
control scheme. 

3. Analysis of the Positions of those Favouring and of those 

Opposing Rent Control 

A great deal of comment has been made recently about the need 
for rent control legislation in Ontario. A good many advocates of rent 
control have favoured a form of the "fair return" philosophy. Conver- 
sations with developers of rental properties indicate a remarkable 
unanimity of viewpoint between two seemingly polarized groups. The 
developers stated that all they wished to achieve was a fair return. 
The eight per cent return on their investment, often quoted as being 
average, is not far off the mark cited as representing a fair return by 
many advocates of rent control. 

One apparent divergence of opinion results from developers feeling 
uncertain of what their position would be in a tenants' market if their 
rents, and hence their profits, were to be controlled during a landlords' 
market. Some developers, perhaps facetiously, have stated that a "fair 
return" system of rent control might be acceptable to them if it was 
guaranteed during periods of partial occupancy. Of all the areas of the 
landlord and tenant relationship the subject of rent control remains the 
most heated and controversial. Its imposition has been justified because 
of the lack of any true free housing market and because of the fact that 
for practical purposes no freedom of contract exists in the rental market. 

The many studies made of English and New York City rent control 
during peacetime further exhibit the extreme polarization of positions 
on this subject. The maintenance of a rent control system is either 
beneficial or harmful depending on the report examined. It is interesting 



69 

to note that both the English and New York City statutes are intended 
to be in effect only temporarily, until the normalization of the rental 
situation. In New York City, the magic figure for removal of rent control 
is a vacancy rate of 5 per cent. Once instituted, however, peacetime rent 
control tends to survive changes of governments and changes of municipal 
administrations. It should be reported that in New York City between 
1960 and 1965 the percentage of controlled apartments dropped from 
77 per cent to 69 per cent. 

It is doubtful, however, whether analogies can readily be drawn 
from the experience either in England or New York City in the area of 
rent control. The high density of population, the low percentage of 
occupant owned homes, the small land areas involved, the different 
concepts of construction, and the different economic milieu of these 
jurisdictions all militate against comparisons. 

Certainly the evidence received by the Commission has disclosed 
the existence of much hardship among tenants in Ontario, much of it 
attributable to recent frequent increases in rent. Landlords stoutly 
maintain that most landlords only raise rents in response to such increased 
costs as taxes, interest rates, and maintenance and repair costs. In the 
case of new construction, sales tax, land costs, subdivision costs and 
interest charges incurred during development are cited as reason for 
higher rents. There are some advocates of rent control who, in order 
not to discourage new private construction would exempt from controls 
buildings recently erected, say, within the last five to ten years. 

Suspicion of rent gouging and profiteering, however, is not alone 
enough to justify controls. It is essential that so drastic a measure not 
be undertaken unless it is certain that the welfare of our society demands 
it. One of the factors which has made rent control acceptable to persons 
normally unsympathetic to such controls has been the conduct of lessors. 
It has been seriously questioned whether they maintain a reasonable 
degree of self-control in the light of their advantageous bargaining 
position. On the other hand, however, if they are the victims of a 
general inflationary trend, they ought not to be made the scapegoats 
for a universal economic malaise. 

4. Conclusions 

There is no doubt that many tenants are the victims of landlords 
who are taking advantage of the acute housing shortage in some areas 
to charge excessive and in some cases unreasonable rents. This results 
from the fact that in those areas there are too many prospective tenants 
bidding in the market where there are too few rental units available. 
It is obvious that the only effective long term solution to this problem 
is to increase the supply of housing units available for sale or rent. Until 
this long term solution can be realized a serious social evil will continue. 

Rent is an important element in the cost of living but it is only one 
element. A consideration of any system of rent control cannot be 
dissociated from consideration of control over all those elements that 



70 

go into the cost of construction and maintenance of housing accommo- 
dation. This includes the cost of land, building supplies, wages, and the 
food and clothing for the wage-earners and their families, together with 
municipal and other taxes. The wisdom of such controls is something 
that requires a wide economic study and policy decisions that go far 
beyond the powers of this Commission as a law reform body. 

It is in the light of this that we put forward recommendations with 
a view to alleviating hardship as far as possible without entering upon 
consideration of state control over the various areas of the economy of 
the province which cannot be adequately considered without considering 
their relation to the economy of the nation. 

Provision should be made for a rent review procedure to be adopted 
on a local option basis in those areas of the province where market 
conditions demand it. The review procedure should be operated in 
conjunction with the Leasehold Advisory Bureaux discussed in the 
preceding chapter. 

The Rent Review Officer there referred to would be responsible for 
the administration of this scheme. The function of the Officer would be 
to conciliate and recommend. Tenants believing a rent increase to be 
improper would be able to consult with a local Rent Review Officer who 
would be required to consider the circumstances of the complaint and 
determine whether the proposed increase is fair and if not, what increase, 
if any, is appropriate. His findings should be made known to both parties 
and a record be made of what action the landlord takes in response to 
them. 

Municipalities which consider it necessary to control further their 
local landlord and tenant problems should in addition be empowered 
to create Rent Review Boards to which matters that have not been ad- 
justed by the Review Officer may be referred by either the landlord or 
tenant. 

The powers of the Board would be to investigate and recommend. 
Its duty would be to make a complete investigation of the case. It 
should have power to summon witnesses and call for the production of 
documents. The findings of the Board should be embodied in a written 
report and communicated to the parties to the dispute. The landlord 
should be allowed an opportunity to act on the Board's recommendations 
and if satisfactory action is not taken a copy of the report and the land- 
lord's response should be forwarded to the local municipal council for 
its information and the report be made public. 

If this procedure is not effective to remedy the situation that now 
exists, more stringent measures will have to be considered. 

Alternative measures which might be considered are: 

(1) To confer power on the Rent Review Board to fix rents subject 
to appeal; 



71 

(2) To set up a system of rent regulation under which rents in 
specified areas would be frozen at levels current on a given day 
or during a given period. In order to be able to increase the 
rent chargeable for a particular unit a landlord would have to 
appear before a Rent Review Board and show cause why the rent 
should be increased. Only if the board gives its approval would 
it be possible for the landlord to collect a higher rent. 

The Commission points out that the latter alternative might operate 
to penalize some landlords who have charged lower rents in the past and 
likewise operate to the advantage of landlords who were charging ex- 
cessive rents at the time the freezing regulation came into effect. The 
Commission wishes to emphasize that before a comprehensive form of 
rent control legislation is enacted there should be a study in depth of the 
relative economic factors and full consideration should be given to the 
administrative machinery that would be necessary for the just enforce- 
ment of the law. 

Recommendations 
Rent Control: 

(1) Municipalities should be empowered to appoint Rent Review 
Officers within the organization of Leasehold Advisory Bureaux. 

(2) Rent Review Officers should be authorized to investigate complaints 
of unreasonable rent increases brought to them, to mediate between 
the parties in an effort to obtain a proper settlement of the dispute, 
and to recommend to the parties what increase in rent, if any, is 
justifiable in a given situation. 

(3) Municipalities should be empowered to establish Rent Review 
Boards. 

(4) Rent Review Boards should be authorized, on the application of a 
Rent Review Officer, a landlord or a tenant, to re-investigate a case 
where the Rent Review Officer's recommendations have not been 
followed or where any party is dissatisfied with the Officer's dis- 
position of the case. 

(5) After making its investigation the Rent Review Board should send 
a copy of its findings and its recommendations as to what would 
constitute a just resolution of the case to all parties in the form of a 
written report. 

(6) Where a landlord fails to act in accordance with the Rent Review 
Board's recommendations, the Board should be under a duty to 
send a copy of its findings and recommendations, together with the 
landlord's response to them, to the local municipal council. 

(7) The local municipal council should be empowered to publish the 
report of the Board. 



72 

(8) Either the Attorney General or the Minister of Financial and 
Commercial Affairs should exercise a general supervisory role over 
the entire scheme. 

(9) If these measures do not prove sufficient to secure just rents the 
introduction of a more stringent and compulsory system of control 
should be considered. Such control should be considered after a 
careful study of the economic factors involved and the effect that it 
may have on them and on provision for future housing accommo- 
dation. 

CHAPTER XVII 

PROCEDURE ON ADJUDICATION 

There is a general consensus that legal process must be made more 
accessible to tenants. Even landlords generally agreed that this was so 
although they expressed the belief that it was merely part of the larger 
problem of procedure in the courts. 

Parts II and III of The Landlord and Tenant Act contain examples 
of summary procedures in the county or district courts, designed as 
alternatives to the traditional, expensive and slow course of legal process 
in disputes over the legality of distraint or recovery of possession. The 
tendency in many areas of law has been to create summary procedures 
and to transfer jurisdiction to the county courts. While admirably 
conceived this solution for cases where delay and expense are a problem 
has been overtaken by events. Steadily expanding court lists, especially 
in larger population centres, show the county court system to be in- 
undated with cases. The result is that it has become quite difficult to 
obtain appointments for the speedy disposition of landlord and tenant 
matters. 

With a view to easing this situation the Commission recommends 
that the Attorney General consult with the Chief Judge of the County 
Court to devise some system whereby landlord and tenant matters in 
urban areas may be brought forward and dealt with more expeditiously. 
Evening sittings, for instance, might be very beneficial, although they are 
by no means a complete answer. 

Tenants would not be the only beneficiaries of the more expeditious 
disposition of landlord and tenant matters. Recovery of possession is 
of continuing importance to landlords and is likely to be of even greater 
significance once tenants' rights are expanded generally. 

Furthermore, because delays in obtaining relief are of such im- 
portance in landlord and tenant matters, injunctive relief should be 
available for breaches of covenants where appropriate. Landlords, for 
example, would find it useful in cases where, say, a tenant was keeping 
animals in breach of a covenant. Tenants could employ it in the face 
of a breach of the covenant for quiet enjoyment. At present, there is 
no alternative in these cases to the slow and expensive action on the 
covenant. 



73 
Recommendation 



Procedure on Adjudication 



(1) The Commission recommends that the Attorney General consult 
with the Chief Judge of the County Court to devise some 
system whereby landlord and tenant matters in urban areas 
may be brought forward and dealt with more expeditiously. 

(2) In cases where it would be appropriate, injunctive relief should 
be made available to landlords and tenants to restrain breaches 
of covenants. 



CHAPTER XVIII 

PROTECTION FROM RETALIATORY EVICTION 

One serious difficulty with any law to provide for the protection of 
tenants is that the tenant who takes advantage of it may receive a one 
month's notice to quit, if he is a periodic tenant, or may fail to have his 
lease renewed in the event that he has a tenancy for a fixed term. This 
is known as retaliatory eviction. Unless some measure of protection 
from retaliatory eviction is enacted the purpose of remedial legislation 
may be frustrated. 

Very few statutory attempts have been made to deal with this 
problem in other jurisdictions. The result has been a less satisfactory 
utilization by tenants of rights enacted for their benefit. One of the 
few statutes enacted to restrain retaliatory evictions is contained in the 
State of Michigan Enrolled House Bill No. 3384 (1968) which provides 
as follows: 

"Sec. 5634. The person entitled to any premises may recover 
possession thereof in the manner hereinafter provided, in the follow- 
ing cases: 

(4) When proceedings commenced under this chapter are to 
regain possession of the premises following the alleged termination 
of a tenancy, if the defendant alleges in a responsive pleading and if 
it appears by a preponderance of the evidence that any of the follow- 
ing situations exist, judgment shall be entered for the defendant: 

(a) That the alleged termination was intended as a penalty for the 
defendant's attempt to secure or enforce rights under a lease 
or contract, or under the laws of the state or its governmental 
subdivisions, or of the United States. 

(b) That the alleged termination was intended as a penalty for the 
defendant's complaint to a governmental authority with a 
report of plaintiff's violation of any health or safety code or 
ordinance. 



74 

(c) That the alleged termination was intended as retribution for 
any other lawful act arising out of the tenancy. 

(d) That the alleged termination was of a tenancy in housing 
operated by a city, village, township or other unit of local 
government, and was terminated without cause. 

(5) When proceedings commenced under this chapter are to 
regain possession of the premises following the alleged termination 
of tenancy, if the defendant alleges and it appears by a preponderance 
of the evidence that the plaintiff attempted to increase the de- 
fendant's obligations under the lease or contract as a penalty for 
such lawful acts as are described in subsection (4), and that the 
defendant's failure to perform such additional obligations was a 
material reason for the alleged termination, judgment shall be 
entered for the defendant on the claim of possession, and all such 
additional obligations shall be void." 

We do not advocate the imposition of statutory tenancies, i.e. 
tenancies which can only be terminated for cause, but rather the adopt- 
tion of controls without which the tenants' rights would be in jeopardy 
by retributive action on the part of landlords. We therefore recommend 
protective measures covering periodic tenancies only and not tenancies 
for a fixed term which terminate automatically by the effluxion of time. 

Recommendations 

Protection from Retaliatory Eviction : 

(1) The Leasehold Advisory Bureaux should be given specific 
responsibility to investigate and report upon cases where land- 
lords are accused of retaliation against tenants who have resorted 
to their statutory rights. 

(2) On an application for a writ of possession or in an action for 
possession, if it appears to the court, on a balance of probabilities 
that: 

(a) the notice to quit was given because of the tenant's 
complaint to any governmental authority of the land- 
lord's violation of any statute or municipal by-law 
dealing with health or safety standards, including mini- 
mum housing standards by-law; or 

(b) the notice to quit was given because of the tenant's 
attempt to secure or enforce his legal rights; 

then the court may refuse to grant an order for possession and 
may declare the notice to quit invalid. In such case the pre- 
vious tenancy shall continue as if no notice to quit had been 
given. 



75 
CHAPTER XIX 

SUMMARY OF RECOMMENDATIONS 

This chapter lists the recommendations made by the Commission in 
this Interim Report. With the exception of recommendations 23 and 24, 
a full explanation leading to the recommendations is found in the text of 
the report. Recommendations 23 and 24 are self-explanatory. 

1. Continuing Study: This interim report deals only with the most 
urgent problems in the law of landlord and tenant. It should be 
recognized that there is a need for further research and study. 

2. Scope of the Study : In some important aspects residential and com- 
mercial tenancies require different legal treatment. This report is 
based on a study of residential tenancies. Commercial tenancies 
should be the subject of separate examination. 

3. Distress: The right to distrain, whether arising out of the common 
law, statute or contract, should be abolished. 

4. Security Deposits: It should be made unlawful for a landlord to 
demand or receive a security deposit against damage or any other 
contingency involving the demised premises. Landlords should be 
permitted, however, to request payment of the last month's rent in 
advance but any sum so paid should be treated as security for the 
payment of rent only. 

5. Existing Security Deposits : Our recommendation abolishing security 
deposits should apply only to leases created or renewed after the 
coming into force of the remedial legislation. Security deposits 
which have been paid under leases which are still current at that 
time should be governed by the following requirements: 

(a) interest should be payable to the tenant at the end of the term 
on the full amount of his security deposit at the rate of five (5) 
percent a year, compounded annually, to be calculated from the 
day of the coming into force of the remedial legislation; 

(b) the security deposit, together with interest, must be returned 
to the tenant within ten days of the date of the termination of 
the lease, whether by effluxion of time or otherwise; 

(c) if the landlord seeks to retain all or part of the security deposit 
and interest in satisfaction of any damage for which the tenant 
is allegedly responsible, and if the tenant does not consent in 
writing to forfeit that part of the security deposit and interest 
claimed, the landlord must commence an action against the 
tenant to enforce his claim within ten days af the date of the 
termination of the lease. If he does not his claim should be 
extinguished. 

Security deposits which have been paid in all other cases should be 
repaid to the tenants within thirty days of the date of the coming 
into force of the remedial legislation. 



76 

6. Penalty: Breach of any of the provisions enacted to give effect to 
the recommendations concerning security deposits should subject 
a landlord to prosecution, and on conviction to the payment of a 
fine. 

7. Contracting Out: 

(1) Section 22 of The Landlord and Tenant Act, R.S.O. 1960, 
c. 206, should be amended to give effect to the following require- 
ments: 

(a) every lease wherein the right to assign, sublet or otherwise part 
with possession is restricted, should be deemed to contain a 
provision that leave to assign, sublet or part with possession 
will not be arbitrarily or unreasonably withheld; 

(b) any agreement purporting to waive the requirement set out 
in (a) should be null and void; 

(c) the landlord should be entitled to reasonable expenses entailed 
in granting leave; 

(d) in determining whether leave to assign, sublet or part with pos- 
session has been arbitrarily or unreasonably withheld, a court 
should consider all the relevant circumstances, including but not 
limited to the duration of the original term and the length of the 
term remaining when leave is sought. 

(2) Any attempt on the part of the tenant to waive his rights 
with respect to exemptions from distress and other protective mea- 
sures under The Landlord and Tenant Act should be null and void. 

(3) The Residential Property Tax Reduction Act, 1968 should 
be amended to make it an offence, punishable by fine, for any land- 
lord to insert a waiver clause in a lease whereby the tenant purports 
to waive the benefits conferred upon him by the Act. 

8. Obligation to Repair: 

(1) The landlord should be under a duty at the beginning of the 
term to hand over possession of premises in a good state of repair 
and fit for habitation. 

(2) The landlord should be under a duty to maintain the 
premises in a good state of repair and fit for habitation during the 
tenancy. This duty, however, should be subject to an obligation 
on the tenant to repair damage caused by his wilful or negligent 
conduct or that of persons brought onto the premises by him. 
The landlord's duty should also be subject to the obligation of the 
tenant to perform such normal housekeeping tasks as cleaning, 
polishing, changing fuses and light bulbs, etc. 



77 

(3) In determining the nature and extent of the landlord's 
obligation to repair, a court should consider all relevant public health 
legislation and municipal minimum housing standards by-laws. 

(4) Tenants should be given by statute a right of action to 
enforce, each for his own benefit, any repair obligation, whether 
devolving upon landlords by contract, lease, statute or municipal 
by-law. 

(5) Where the landlord is in breach of his obligation to repair, 
the tenant, after giving notice to the landlord and upon obtaining 
the order of a court, should have the power to terminate the tenancy. 
By analogy to relief against forfeiture a court should be empowered 
to grant the landlord time to remedy the breach. Alternatively, at 
the request of the tenant, the court should permit the tenant to make 
the necessary repairs and deduct his expenses from the next ensuing 
instalments of rent. 

(6) Consideration should be given to the establishment of a 
system of tax incentives and low interest loans for the financing of 
the repair and renovation of substandard dwellings. If obligations 
are to be imposed on landlords reason dictates that they be given 
proper means to discharge those obligations. 

(7) A prospective lessee's inspection of the premises should not 
defeat his right to the benefit of the landlord's repair obligation. 

9. Restrictions Against Children: The problem of restrictions against 
children cannot be dealt with adequately by legislation. Many 
restrictions, apparently unfair, in fact result from the special nature 
of a particular building rather than from any desire to discriminate. 
The accommodation problems of families with young children can 
be treated best by making it as attractive for developers to build for 
families with children as it is for other occupants. Discrimination 
solely on the basis that prospective tenants have young children is 
condemned, but legislative action by way of direct prohibition is 
not recommended because it is not feasible and has not worked 
satisfactorily in other jurisdictions. 

10. Restrictions Against Trading: Although there are valid reasons for 
permitting restrictions concerning the admission of tradesmen to 
multiple unit dwellings, the practice of tradesmen making payments 
to owners or superintendents of buildings in exchange for the privi- 
lege of exclusive access should be made illegal and subject to penalty. 

Note: Mr. McRuer would prefer this paragraph to read as follows: 

[Although there are valid reasons for permitting restrictions 
concerning the admission of tradesmen to multiple unit dwellings 
the practice of tradesmen making payments to agents or em- 
ployees of owners of buildings in exchange for the privilege of 
exclusive access should be made illegal and subject to penalty.] 



78 

Subject to this, restrictions should be permitted but where they 
are imposed their precise nature should be set out in a separate 
clause in future leases. The tenant should acknowledge in the 
lease that the restrictions were drawn to his attention before he 
signed the lease. 

In this, as in other matters, the importance of the tenant receiving 
a true copy of the lease is apparent. We recommend that it be 
made obligatory that tenants be given such copy. 

Legislation should provide that landlords of multiple family units 
shall not restrict canvassing and orderly distribution of election 
literature by candidates or their authorized representatives in 
federal, provincial, municipal or school board election campaigns. 

11. Acceleration Clauses: In order to make rent acceleration clauses 
less subject to abuse whilst still protecting landlords' legitimate 
interests, where the landlord claims an acceleration of rent and if 
the tenant pays arrears or remedies the breach of covenant, a court 
should have a power to stay proceedings similar to that conferred by 
section 20 of The Mortgages Act, R.S.O. 1960, c. 245. 

12. Mitigation of Damages: Where a tenant abandons the premises the 
rule whereby the landlord is not required to mitigate his damages 
should be reversed so that the ordinary rules of contract relating to 
mitigation of damages will apply. 

13. Frustration of Lease: The doctrine of frustration of contract should 
be made applicable to leases. Where the leased premises have been 
destroyed by fire or been so damaged that they are no longer of use 
for the purposes for which they were let, the obligation to pay rent 
should cease. When the obligation to pay rent ceases, the land- 
lord's obligation to repair should cease as well. 

14. Termination of Tenancies: New rules should be enacted to govern 
the form of notices to quit, the time for giving such notices, the 
method of calculating time when notice has been given, the cases 
where overholding tenancies will arise and to provide for sub- 
stitutional service. The possible form which these rules might take 
is given in the text. 

15. Independence of Covenants: The covenants in leases should be 
treated as dependent, each upon the others, and the positions of 
landlords and tenants respecting breach of covenants should be 
assimilated. This would eliminate the anomaly of a tenant having 
to pay rent and perform his other obligations under a lease even 
though the landlord has broken such covenants as to repair, provide 
heat and give quiet enjoyment. Where the other has broken a 
covenant in the lease, either the landlord or the tenant should be 
able to apply to a court for an order terminating the tenancy. 
Relief against forfeiture should be available to^eitherjparty in a 
proper case. 



79 

16. Penalty for Lock-out: In order to prevent resort to self-help as a 
means of regaining possession and effecting a de facto termination 
of the tenancy, a landlord who unlawfully changes the locks on doors 
giving access to the leased premises should be subject to prosecution, 
and on conviction to the payment of a fine. 

17. Lessees' Right Prior to Taking Possession {Inter esse Termini): A 
lessee under a valid lease should have the same rights before he takes 
possession as after. Accordingly the doctrine of inter esse termini 
should be abolished. The inadequacy of relief available to a lessee 
to whom possession has been wrongfully denied thus would be 
remedied. 

18. Covenants Relating to Things in Being {In Esse) and Things Not in 
Being {In Posse) : The rule of distinction which holds that covenants 
concerning the leased property relating to things in existence at the 
time of the demise run with the land, while covenants relating to 
things not in existence at that time do not run with the land, should 
be abolished. 

19. The Leasehold Advisory Bureau: 

(1) Municipalities should be authorized to establish, as a matter 
of local option, offices or networks of offices to be called Leasehold 
Advisory Bureaux (L.A.B.). Landlords or tenants having problems 
arising out of a tenancy could go to an office near to them and seek 
advice as to the nature of their rights and how they might proceed 
to enforce them. The staff of the office would use their best en- 
deavours to obtain a satisfactory and perhaps amicable settlement 
of the problem. If that proved impossible, they would then advise 
the parties as to how they might obtain a settlement of the issue 
by the courts or by setting administrative action in motion. In 
appropriate cases parties could be referred to legal aid. 

(2) Where metropolitan or regional municipalities have been 
established, it would be preferable that these powers be granted to 
the metropolitan or regional councils, rather than to the local or area 
municipalities. 

(3) The functions of each L.A.B. should be the provision of 
information, conciliation and rent review. It would answer the 
questions of landlords and tenants, explain the benefits and burdens 
of provincial legislation affecting them, seek to mediate disputes and 
to aid in fair settlements, and when necessary, undertake a full 
rental review. 

(4) On the L.A.B. staff would be a Rent Review Officer whose 
duties would be to attempt to obtain fair and just settlements of 
disputes concerning the payment or increasing of rent at any time 
during or at the end of the tenancy, and of disputes over whether a 
tenancy should be continued or renewed. 



80 

(5) Either the Attorney General or the Minister of Financial 
and Commercial Affairs should exercise a general supervisory role 
over the entire programme. 

20. Rent Control: 

(1) Municipalities should be empowered to appoint Rent 
Review Officers within the organization of Leasehold Advisory 
Bureaux. 

(2) Rent Review Officers should be authorized to investigate 
complaints of unreasonable rent increases brought to them, to 
mediate between the parties in an effort to obtain a proper settlement 
of the dispute, and to recommend to the parties what increase in 
rent, if any, is justifiable in a given situation. 

(3) Municipalities not believing that Rent Review Officers 
alone are sufficient to handle their local rent increase problems 
should be empowered to establish Rent Review Boards. 

(4) Rent Review Boards should be authorized, on the applica- 
tion of a Rent Review Officer, a landlord or a tenant, to reinvestigate 
a case where the Rent Review Officer's recommendations have not 
been followed or where any party is dissatisfied with the Officer's 
disposition of the case. 

(5) After making its investigation the Rent Review Board 
should send a copy of its findings and its recommendations as to 
what would constitute just resolution of the case to all parties in the 
form of a written report. 

(6) Where a landlord fails to act in accordance with the Rent 
Review Board's recommendations, the Board should be under a 
duty to send a copy of its findings and recommendations, together 
with the landlord's response to them, to the local municipal council. 

(7) The local municipal council should be empowered to publish 
the report of the Board or to take such other action as it deems 
proper. 

(8) Either the Attorney General or the Minister of Financial 
and Commercial Affairs should exercise a general supervisory role 
over the entire programme. 

(9) If these measures do not prove sufficient to control im- 
proper increases in rent, the legislature should consider the intro- 
duction of a more stringent and compulsory system of control. 

21. Procedure on Adjudication: 

(1) The Commission recommends that the Attorney General 
consult with the Chief Judge of the County Court to devise some 
system whereby landlord and tenant matters in urban areas may 
be brought forward and dealt with more expeditiously. 



81 

(2) In cases where it would be appropriate, injunctive relief 
should be available to landlords and tenants to restrain breaches of 
covenants. 

22. Protection from Retaliatory Eviction: 

(1) The Leasehold Advisory Bureaux should be given specific 
responsibility to investigate and report upon cases where landlords 
are accused of retaliation against tenants who have resorted to their 
statutory rights. 

(2) On an application for a writ of possession or in an action 
for possession, if it appears to the court, on a balance of probabilities 
that: 

(a) the notice to quit was given because of the tenant's complaint 
to any governmental authority of the landlord's violation of 
any statute or municipal by-law dealing with health or safety 
standards, including minimum housing standards by-law; or 

(b) the notice to quit was given because of the tenant's attempt 
to secure or enforce his legal rights; 

then the court may refuse to grant an order for possession and may 
declare the notice to quit invalid. In such case the previous tenancy 
shall continue as if no notice to quit had been given. 

23. Effective Dates: Of the foregoing recommendations, some, by their 
nature, would apply to existing tenancies, while others would apply 
only to future tenancies. The Commission recommends that recom- 
mendations numbered 3, 5, 7 (1) and (2), 11, 12, 13, 15, 16, 18, 19 
and 20 be made applicable to all existing residential tenancies. 
Recommendation 8 would be applicable only to new leases, except 
that in the case of existing periodic tenancies, it should become 
applicable on the first anniversary date of such tenancies after the 
legislation becomes effective. Other recommendations would become 
effective in respect of leases concluded after the legislation becomes 
effective. 

In the period between the introduction of a Bill implementing 
these recommendations and Royal Assent to the Bill, it is possible 
that arrangements might be made to frustrate the protection the 
Commission has proposed. Accordingly, the Commission recom- 
mends that the Legislature consider making the new Act effective 
from the date of its introduction. 

24. Short Forms of Lease: The Short Forms of Leases Act, R.S.O. 1960, 
c. 373, applies to commercial as well as residential leases. This 
report deals only with the latter. Some of our recommendations 
concerning residential leases are inconsistent with the provisions 
of the Act. If the recommendations arc implemented the Act 
should be amended accordingly. 



82 

Conclusion 

In the course of our research of the project and in the preparation of 
this interim report we have studied the experience of other jurisdictions. 
Attention has been focused on that of the other provinces of Canada, the 
individual states of the United States and England, but reference has 
also been made to the Scandinavian and other European countries. The 
problems are not by any means indigenous to the Province of Ontario 
although, admittedly, there are local complicating factors which require 
special treatment. These matters have been taken into account in our 
recommendations. 

At the beginning of this report reference was made to the opinion 
survey of landlords and tenants conducted in Metropolitan Toronto. 
We wish to thank the substantial number of landlords and tenants who 
responded to our request to complete questionnaires. The Commission 
also published a notice in the Ontario Reports and newspapers having 
wide circulation throughout the province inviting all interested parties 
to submit briefs. The Commission has received briefs from departments 
of government, municipalities, landlords' associations, tenants' asso- 
ciations, associations of real estate boards, individual landlords and 
tenants. In addition, the Commission office has received many hundreds 
of telephone calls from individuals, chiefly tenants, making oral sub- 
missions and requesting information. With the helpful co-operation 
of Mr. Andrew M. Lawson, Director of The Ontario Legal Aid Plan, 
special questionnaires were completed by the area directors in all legal 
aid areas throughout the province. We are grateful to all these indivi- 
duals, institutions and associations for their assistance. 

The Commission records its thanks and sense of obligation to 
Professor Morley R. Gorsky, the research supervisor of the project, for 
his scholarly research and assistance. In addition we thank the members 
of the permanent staff of the Commission who assisted us in this onerous 
but challenging task. 



All of which is respectfully submitted. 



H. ALLAN LEAL, 

Chairman. 

JAMES C. McRUER, 

Commissioner. 

RICHARD A. BELL, 

Commissioner. 

W. GIBSON GRAY, 

Commissioner. 

WILLIAM R. POOLE, 

Commissioner. 



December 10, 1968. 



APPENDICES 



TABLE OF CONTENTS 

Page 

Appendix A Report to Ontario Law Reform Commission on 

Apartment Accommodation in Toronto 5 

Appendix B By-Law No. 100-64: 

A By-law to Establish A Minimum Standard 

for Existing Housing in the City of Ottawa. . . 87 

Appendix C State of Michigan: 

Enrolled House Bill No. 3188 103 

Appendix D "The Changing Nature of Landlord-Tenant Rela- 
tionship: The Medium and a Message' 1 , an un- 
published study prepared by Joseph M. Hassett 113 

Appendix E Province of Alberta: 

The Landlord and Tenant Act, 1964 123 

Appendix F Laskin, Cases and Notes on Land Law, Revised 

edition 1964, p. 189 129 



[3] 



APPENDIX A 



REPORT 



TO 



ONTARIO LAW REFORM COMMISSION 



ON 



APARTMENT ACCOMMODATION IN TORONTO 



1968 



TABLE OF CONTENTS 

Page 

Introduction 9 

Purpose of the study 9 

Organization of the Report 9 

PART J The Tenant Study 11 

Chapter 1. Rent 12 

Chapter 2. Lease 17 

Chapter 3. Vacating before expiration of the lease. 23 

Chapter 4. Subletting and Assignment 25 

Chapter 5. Use of Self-Help by Landlords in gain- 
ing Re-Possession and Re-Entry. ... 27 

Chapter 6. Notice to Quit and Eviction 29 

Chapter 7. Bailiffs 31 

Chapter 8. Damage Claims against Tenants by 

Landlords 32 

Chapter 9. Repairs 33 

Chapter 10. Reduction of Services 39 

Chapter 11. Other Common Complaints 43 

Chapter 12. Restrictions 45 

Chapter 13. Restrictions against Children 47 

Chapter 14. Security or Safety Deposits 51 

Chapter 15. Other Monetary Assessments made by 

Landlords against Tenants 53 

Penalty payments 

Fines 

Charges 

Chapter 16. Persons with Fixed Incomes 54 



7] 



8 

PART II The Landlord Study 57 

Chapter 1. Statistical Information 58 

Chapter 2. Explanation of Results 67 

PART III General Methodology of Survey 69 

Design of the Studies 70 

Data Collection Method 70 

Pre-testing 71 

Selection of Sample — 

Tenant Study 71 

Landlord Study 72 

PART IV Appendices 73 

1. Tenant questionnaire 74 

2. Landlord questionnaire 79 

3. Tenant covering letter 83 

4. Landlord covering letter 84 

5. Letter from Executive Director, Urban Develop- 

ment Institute, dated July 11, 1968 85 



Map of Metropolitan Toronto 



INTRODUCTION 



PURPOSE OF THE STUDY 

The purpose of this study is to investigate the subjective attitudes 
of both landlords and tenants to a variety of aspects of their relationship. 
The statistical evidence obtained indicates what are the areas of concern 
of landlords and tenants. 

The landlords and tenants chosen for study were drawn from the 
City of Toronto. Their answers were individually processed and the 
results tabled statistically in terms of percentages. 

From the statistical analysis certain conclusions may be drawn, 
which are mainly supportive of information obtained from personal 
interviews and submissions directed to the Commission. This study is 
an exploratory one, however the general techniques would prove useful 
in studies which might be undertaken in other Ontario communities. 
If time and resources permitted such studies might employ controlled 
personal interviews as an additional control. 

For detailed information about the design of the study, see Part III 
of this Report. 



ORGANIZATION OF THE REPORT 

Parts I and II are divided into two headings: Tenant Study and 
Landlord Study. Each study has been divided into topic divisions. 
Each topic division is introduced by statistical information which is 
broken down for each area of the City from which responses were received. 
The material which follows the statistical information is made up of 
a detailed analysis of the facts, explanations and conclusions based 
thereon. 

Part III explains in detail the general methodology of each study 
describing the sample, questionnaires and procedure used. 

Part IV is made up of appendices which contain the basic materials 
used in order to obtain the responses from those selected according to the 
planning area shown on the map of Metropolitan Toronto which follows 
the Appendices. 



[9] 



PART I — THE TENANT STUDY 



CHAPTER 1 



RENT 



The Average Amount of Rent that is Paid per Area 



Area 


Lease 1 


No 
Lease 2 


Area 
6 


Lease 


No 
Lease 


Area 
11 


Lease 


No 

Lease 


1 


$147 


$111 


$129 


$105 


$155 


$127 


2 


$129 


$121 


7 


$142 


$122 


12 


$159 


$130 


3 


$136 


$115 


8 


$152 


$129 


13 


$133 


$120 


4 


$161 


$132 


9 


$144 


$135 


14 


$132 


$129 


5 


$156 


* 


10 


$139 


$116 









The Average Number of Rooms per Apartment per Area 



Area 


Lease 


No 
Lease 


Area 
6 


Lease 


No 
Lease 


Area 
11 


Lease 


No 
Lease 


1 


2.4 


2.0 


2.4 


2.2 


3.1 


2.6 


2 


2.4 


2.3 


7 


2.9 


2.6 


12 


3.3 


2.0 


3 


2.7 


2.6 


8 


2.9 


2.9 


13 


3.0 


2.5 


4 


2.6 


2.4 


9 


3.2 


2.7 


14 


2.9 


2.6 


5 


3.1 


* 


10 


2.5 


2.6 









*Not sufficient returns. 
^ease — written lease. 
2 No lease — oral lease. 



[12] 



13 



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14 

The Average Number of People per Apartment per Area 

Bachelor One Bedroom Two Bedroom 



Area 




Lease N 


o Lease 


1 


1.1 


1.2 


2 




1.3 


1.0 


3 




1.2 


1.5 


4 




1.0 


1.0 


5 








6 




1.0 


1.0 


7 




.... 


1.0 


8 




1.0 




9 




.... 




10 








11 








12 








13 




1.0 




14 




1.0 




Total 

Average 




1.1 


1.1 


In 


98% 


of the 1 


tenant 



Lease 


No Lease 


1.5 


1.5 


1.9 


2.0 


1.8 


1.8 


1.4 


1.5 


2.0 




2.1 


1.7 


2.4 


1.7 


2.0 


1.3 


2.5 


3.5 


2.1 


3.3 


1.6 


2.1 


2.0 




2.4 


2.0 


1.9 


1.8 



Lease 


No Lease 


2.8 


2.9 


2.5 


4.2 


2.9 


3.1 


2.0 


2.4 


2.8 




2.5 


2.6 


2.6 


3.3 


3.0 


2.3 


3.3 


3.3 


3.7 


3.6 


2.7 


2.0 


4.3 




3.4 


3.0 


3.7 


3.4 



2.0 



2.0 



3.0 



3.0 



basis, 2% paid on a weekly basis and none on a yearly basis. 

The average number of tenants sampled per area who had to pay 
rent in advance in addition to a safety deposit not including the usual 
one month's rent in advance: 



Area Lease No Lease 



Area Lease No Lease 



Area Lease No Lease 



1 


% 
31 


% 
5 


6 


% 
33 


% 
3 


11 


% 
31 


% 
16 


2 


23 


18 


7 


25 


16 


12 


21 





3 


21 


7 


8 


15 





13 


20 


50* 


4 


25 


13 


9 


10 


50* 


14 


21 


14 


5 


35 




10 















The average number of tenants sampled per lease and no lease who 
had to pay rent in advance in addition to a safety deposit not including 
the usual one month's rent in advance: lease 22% 

no lease 15% 



*Not sufficient returns. 



15 

RENT 

The difference of rental rate between apartments with 
written leases and those without written leases. 

An examination of the figures shown in the pages preceding indicates 
the rent generally charged for apartments that are rented under a written 
lease is higher by approximately $21 than those apartments that are 
usually rented on a monthly basis with no written lease. 

There are several possible explanations for this; firstly: apartments 
that have no written leases allow the landlord to raise or lower the rent 
according to the general market demand for his apartment units and 
therefore allow him to vary the rental charges according to the general 
market conditions each month. Those renting with written leases for 
a longer term must make a pre-estimate of the market value for each unit 
for the term of the lease and rent accordingly. 

Secondly, the explanation may be that the difference is due to the 
lack of sophistication of small landlords. Larger landlords more often 
require a written lease, whereas the small landlords more often rent on a 
month to month basis, without a formal written lease. From inter- 
views conducted, it appears that the smaller landlord seldom knows 
what the market value of each of his units is at any particular time and 
tends to follow the rent structure established by the larger landlords for 
similar units. 

Larger landlords generally run their operations on very slim financial 
arrangements and cannot afford to risk depressed or declining market 
values of units and therefore to ensure themselves against such declines 
employ a lease which will assure themselves of receiving a specific rate 
regardless of the actual market values of these units. However, in order 
to prevent their units from suffering potential losses, in that advantage 
cannot be taken of any future increases in the market values of units, 
they make a projected estimate of what the average market price of each 
unit will be and this becomes the monthly rental charged for each unit 
for the term of the lease. Some larger landlords employ a formal written 
month to month lease which, in a rising market provides them with 
greater flexibility in establishing higher rents without much danger of a 
tenant serving notice of termination. 

Thirdly, the larger landlord, because of his superior financial 
accounting structure is aware of what he must charge for each unit, in 
order to meet his obligations, and this dictates what the monthly rental 
will be. If this is the case, then the monthly rental of units will vary 
according to the size and financial stability of each landlord and not 
strictly according to the present market price of each unit based on 
demand. 

Fourthly, the larger landlord determines his rent on the basis of 
both his financial obligations and the market demand for his units. 

Fifthly, the quality of accommodation could also represent an 
influencing factor in establishing rentals. The nature of this study did 
not permit an examination of this factor. 



16 



Rooms 



Figures show that the average number of rooms per apartment with 
a written lease is smaller than the average number of rooms for apart- 
ments that have no written lease. The difference is approximately one 
more room in no-lease apartments. 

The reason for this, as far as can be determined, is that no-lease 
apartments are older units when the utility of space was not so important 
as today. Other influencing factors are inflation, increased building 
costs and the increased cost of land. 

Persons 

There is no significant difference in the number of persons who are 
governed by written leases and those who have no written lease. 

Conclusions 

Rent is based on the projected determination by the experienced 
landlords (landlord-developers) of the true market value of their apart- 
ment units for the term of the lease. This is a function of supply and 
demand in the apartment market and also may be a function of that 
particular landlord's financial structure. 

The inexperienced or small landlord generally does not have the 
facilities or the same need to make accurate market determinations for 
each of his units and tends to base his rental charges on what the larger 
landlords are charging. If this is correct, then the tenant is paying not 
for the market price of his rental unit based on supply and demand, but 
rather according to the financial structure of the landlord-developer at 
that particular period. 

This would mean that the tenant, of the larger landlord, is also an 
insurer in that he is insuring that landlord-developer against business 
risks which may be encountered. 

Considerations based on an analysis of 
statistical information. 

Controls 

(a) If rent is determined as a direct function of a true market 
situation where the landlords know the real value of each unit 
at any particular time and charge that amount including reason- 
able profit, then rent control if it established a ceiling which is 
lower than the market value, could discourage the building of 
apartment units. 

(b) If, on the other hand, the alleged market value is a function of 
the supply and demand as well as the tenant insuring the land- 
lord against the risk of business failure, or financing further 
developments, then it would seem that the landlord enjoys an 
excessive profit. 



17 



CHAPTER 2 



THE LEASE 



Table 1. The number of tenants who claim to have a lease, whose 
lease is in writing. 

Area % Area % Area % 



1 


100 


6 


100 


11 


94 


2 


71 


7 


100 


12 


93 


3 


100 


8 


100 


13 


76 


4 


75 


9 


100 


14 


71 


5 


97 


10 


100 







The average number of tenants sampled who have written leases 
as above: 91%. 

Table 2. The number of tenants per area who claim not to have 
lease as above. 

Area % Area % Area % 



1 


29 


6 


51 


11 


30 


2 


60 


7 


61 


12 


63 


3 


34 


8 


29 


13 


22 


4 


25 


9 


40 


14 


29 


5 


3 


10 


50 







The average number of tenants sampled who have no lease, as 
above in 1,: 37.5%. 

The number of tenants per area who received a copy of their written 
lease. 

Area % Area % Area % 



1 


97 


6 


100 


11 


100 


2 


98 


7 


100 


12 


93 


3 


96 


8 


100 


13 


100 


4 


93 


9 


92 


14 


100 


5 


98 


10 


100 







The average number of tenants sampled who received a copy of 
their lease: 98%. 



18 

The number of tenants per area who said they read their lease before 
signing it: 

Area % Area % Area % 



1 


92 


6 


97 


11 


94 


2 


97 


7 


78 


12 


93 


3 


92 


8 


100 


13 


77 


4 


95 


9 


100 


14 


91 


5 


97 


10 


87 







The average number of tenants sampled who said they read their 
lease before signing it: 92%. 



The number of tenants per area who said they understood their 
lease. 



Area 


% 
88 


Area 


% 
89 


Area 


% 


1 


6 


11 


69 


2 


94 


7 


85 


12 


87 


3 


76 


8 


92 


13 


77 


4 


85 


9 


83 


14 


77 


5 


81 


10 


60 







The average number of tenants sampled who said they understood 
their lease: 82%. 



The number of tenants per area who had their lease explained to 
them : 



Area 


% 
21 


Area 


% 
17 


Area 


/o 


1 


6 


11 


14 


2 


39 


7 


19 


12 


87 


3 


17 


8 





13 


12 


4 


21 


9 


25 


14 


5 


5 


24 


10 


33 







The number of tenants sampled who had their lease explained to 
them: 24%. 



19 



Who usually explained the lease per area: 



Who 


Area 


1 


2 


3 


4 


5 


6 


7 


8 


9 


10 


11 


12 


13 


14 


No one 


% 


% 
55 


% 


% 
7 


% 


% 


% 


% 


% 
5 


% 
33 


% 
20 


% 
20 


% 


% 
10 


Landlord 




5 


20 


13 


31 


12 




40 






10 








Leasing 
Agent 




20 




16 












33 


20 


40 


10 




Superin- 
tendent 


53 


20 


53 


43 


54 


88 




40 


95 


33 


20 


40 


80 


60 


Lawyer 


12 


.. .. 


21 


7 






20 






10 








Friend 


35 


.. ! 27 


8 

i 












10 


30 



Out of the total number of tenants sampled the lease was explained 
by the landlord in 10%, leasing agent in 11%, superintendent in 52%, 
lawyer in 6%, a friend in 9%, and no one in 12%, of the questionnaire 
returns. 

The average number of tenants per area who had trouble with their 
lease:* 



Area 


07 

/c 


1 


2 


2 


4 


3 


7 


4 


2 


5 


5 



Area 


% 


6 


6 


7 


7 


8 


17 


9 


92 


10 


13 



Area 



/o 



11 





12 





13 


15 


14 


5 



13%. 



The number of tenants sampled who had trouble with their lease: 



""Trouble here means trouble of any type. 



The number of tenants per area who had some difficulty in under- 
standing their lease.* 



Area 


% 


1 


23 


2 


29 


3 


34 


4 


10 


5 


25 



Area 

6 
7 
8 
9 
10 



_%_ 
17 
8 
11 
50 
47 



Area 



% 



11 


31 


12 


13 


13 


32 


14 


32 






The average number of tenants sampled who had some difficulty in 
understanding their lease: 26%. 

*Difficulty here means difficulty of any type. 



20 



The average number of tenants per area, who would prefer a form of 
lease approved by the government which has to be used by everyone: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 
65 


% 
43 


6 


% 
64 


% 
37 


11 


% 
90 


% 
80 


2 


87 


45 


7 


75 


47 


12 


100 


75 


3 


77 


50 


8 


78 


72 


13 


85 


67 


4 


79 


58 


9 


83 


67 


14 


79 


88 


5 


67 




10 


100 


87 









The number of tenants sampled who would prefer a form of lease 
approved by the government which has to be used by everyone: 
lease 81% 

no lease 63%. 



With very little exception, all leases have a clause which specifies 
the extent of the tenant's obligation to make repairs. In response to a 
question directed at whether there was such a clause in their leases the 
respondents indicated (69%) that there was no such clause. This is 
clearly inconsistent with established facts, i.e. that nearly all leases do 
contain such a clause. 

The questionnaire also revealed that 82% of the respondents are 
certain that they understand their lease. This 82% is of the 92% who 
said that they read their lease. 

On reading the questionnaire responses, especially to questions 
4, 9, 10, 13, 25 and 26, we have concluded that in fact most of the re- 
spondents do not understand their lease, especially the technical legal 
wording and obviously do not understand the legal implications. 

The majority of those who read their leases and indicated that they 
had no difficulty in understanding their leases, however, in their answer 
to question No. 25 went on to suggest that there should be a summary of 
or an explanation of each clause in the lease in layman's language or it 
should be made compulsory to have a lawyer explain each lease to the 
new tenant before he signs the lease, and if this is not done the lease 
would not be binding. 

From this it may be inferred, that of those respondents who said 
they understood their leases, that most of them experienced a great deal 
of difficulty in attempting to do so. Probably most were uncertain 
whether, in fact, they understood their leases fully. 



Note: In referring to tenants specified in the tables 1 and 2 on page 17 entitled "The 
Lease", they shall herein be referred to respectively as tenants with a lease in 
writing and without a lease in writing or words to the same effect. 



21 

Although the research conducted did not keep accurate records of 
the problems that were revealed by phone calls to the Commission, it 
would seem fair to say that there was an average of six calls a day and 
the majority of those callers demonstrated that they did not understand 
even the most basic of covenants in their leases. 

Therefore, it may be concluded that the majority of leaseholders 
do not, in fact, understand their leases with respect to basic covenants 
and clearly do not appreciate the legal consequences of those covenants. 

The study also indicated that the majority of tenants do not have 
any assistance in understanding their leases. The statistics show that, 
from the total number of respondents, only 24% had their leases explained 
to them and a lawyer was least consulted for this purpose (6% of the 
time). The superintendent, on the other hand, was the most widely 
consulted (52% of the time). This indicates that the tenant is not 
receiving proper guidance with respect to his rights and obligations 
as contained in his lease and by the common law and by statute. 

Therefore, it may be concluded that the majority of those people 
who consider that they understood their leases, after having them 
explained to them, in fact do not, and probably are receiving quite 
incorrect interpretations of their rights and obligations as tenants. 

However, the statistics indicate that only 12% of the number of 
tenants, who responded, claimed to have had any difficulty with their 
lease (this information was revealed in the responses to question No. 2 
of the questionnaire). 

It is clear that the language employed in most leases is not com- 
prehensible to the large majority of tenants, nor do they appreciate the 
legal implications of their tenancies. Furthermore, a large number of 
tenants are so exasperated by the language, size and fine print contained 
in their leases that they do not even attempt to read them. This was 
revealed in answers we received to question No. 25 in the tenant question- 
naire. 

In question No. 25 we also asked the respondents for any suggestions 
they may have as to how the understanding of leases could be made 
simpler. 

1. The language of the lease 

In order to meet the expressed desires of tenants the language of 
the lease should wherever possible be drafted in clear language un- 
complicated by unnecessary use of technical terminology. 

Wherever the use of legal terminology cannot be avoided, an explana- 
tion of such terminology should follow explaining the general meaning 
of the terminology. If possible examples should be given of the practical 
application of the language. 



22 

2. The form of the lease as contained in replies to questionnaire 

Respondents suggest that it would be of a great deal of assistance 
to have it made legally compulsory to use large type in leases. 

It has been suggested also that the lease should be divided into 
various subject headings so as to enable the tenant to make immediate 
reference to any area with which he is having difficulty without having 
to reread the entire lease; for example, subject headings such as rent, 
children, repairs, redecorations, and restrictions, etc. 

It was also suggested that there be a clear division in the lease so 
that in one division the landlord's rights, duties and responsibilities are 
defined, and that the other division contain the rights, duties and obliga- 
tions of the tenant. 

The suggestion was made that a numbered index might be employed 
so as to permit easy reference to the subject headings. 

The study indicated that 72% of all tenants sampled desired a 
standard form of lease required by statute. Of this 72% the study 
revealed that 81% of those living in premises which had a written lease 
desired such a lease, whereas 63% of those living in premises which had 
no written lease desired such a government-approved lease. 

3. Other suggested means of assistance contained in replies received from 
respondents 

(a) There were numerous respondents who suggested that it be 
compulsory that a separate document be given to a tenant before 
signing his lease. This document would contain a summary and 
an explanation, in layman's terms, of each clause contained 
in the lease with examples wherever necessary. 

(b) It was also suggested that it be compulsory for each party to 
keep a list, approved by both landlord and tenant, with respect 
to defects in the leased premises existing before the tenant 
moved in, so that, on the termination of the lease, a proper 
apportionment could be made of the responsibility for making 
repairs. 

(c) Some of the respondents considered that a glossary of legal 
terms appended to the lease would be helpful. 

(d) Other respondents thought that it was essential that tenants 
should have their leases explained to them by someone with 
legal training, which would exclude building superintendents 
who are agents of the landlord and who, in any event, would not 
qualify. The study also revealed that many tenants who had 
their leases explained to them relied solely on the explanation 
and interpretation given to them by the party explaining the 
lease, whether he was competent to do so or not. 



23 

(e) Some suggestion was made that the lease should be signed in 
front of a third party (for example, a lawyer, a justice of the 
peace) whose duty it would be to explain the lease to the tenant 
and who would also be in a position to spot inequitable leases 
and potential areas of conflict and who, in such circumstances, 
could withhold his approval to a binding lease between parties 
being effected. 

(/) It was finally suggested that a tenants' "ombudsman" be 
appointed by the government, who could exercise supervision 
over this area. 



CHAPTER 3 



THE VACATING OF THE PREMISES 
BEFORE EXPIRATION OF THE LEASE 

The average number of tenants per area who have left their apart- 
ments before the lease expired:* 



Area 


% 


Area 


/c 


Area 


% 


1 


16 


6 


6 


11 


6 


2 





7 





12 


13 


3 


10 


8 


15 


13 


16 


4 


3 


9 


7 


14 


9 


5 


17 


10 


13 







The average number of tenants sampled who have left their apart- 
ments before the lease expires: 9%. 



Analysis of Questionnaire Responses 

The object of question No. 3, in the tenant questionnaire, was to 
determine how many persons had either abandoned the premises or had 
otherwise broken their leases before the termination of period of the 
lease occurred by effluxion of time. 

The analysis of the statistics indicates that only 9% of the total 
number of respondents sampled had ever terminated their leases before 
the expiration of the period by effluxion of time. 

*The answers to this question revealed that approximately 62% of the respondents 

considered the question but did not want to answer it for some reason or other. 
The reason may be that the respondent felt challenged by the question; if so, the 
response averages to this question may be unreliable. 



24 

Question No. 3 also enquired as to the reasons for the premature 
termination of the lease. The reasons listed are as follows: 

1. The most frequent reason given for the breaking of leases was 
that the tenant had been transferred to another city by his employer. 
In the case of job transfers those persons involved had four alternatives. 
These alternatives are listed in order of frequency of use. 

(a) Firstly, the tenants were allowed to vacate upon (i) paying 
one month's rent from the date they wished to vacate and 
(ii) forfeiting their security deposit. 

(b) Secondly: vacating tenants had to pay the entire amount due 
under their lease, to the end of the leased period. 

(c) Thirdly: vacating tenants were required to pay the landlord's 
"cost" of preparing a new lease, plus two months' rent from 
the date they wished to vacate. These tenants were usually 
charged amounts averaging $35 for the drafting of a new lease 
to a new tenant. 

(d) Fourthly: some tenants admitted that they often signed leases 
realizing that they could not stay the entire term because of 
frequent job transfers. The reason given for this practice was 
that it was difficult to find desirable apartment accommodation 
that did not have a lease and it was worth the loss of their 
security deposits to give notice and immediately move out 
without any further payments being required, the loss to the 
tenant, in these cases, being only their security deposit which 
our statistics indicate amounts to one month's rent in most 
cases. 

2. The second most commonly used explanation for breaking the 
lease related to the conduct of the superintendent. 

(a) In many of these cases the superintendent had, prior to the 
signing of the lease, assured the tenant that permission to 
vacate before expiry of the leased period would not be withheld 
if there was a reasonable cause for doing so and that there would 
be no extra charges in such case. However, this assurance was 
later denied by both the superintendent and the landlord in 
the following cases: 

(i) Tenant had purchased a new home which was ready for 
immediate occupancy. 

(ii) Tenant's husband died and she could no longer afford the 
apartment and was forced to immediately seek less 
expensive accommodation. 

(iii) Tenant required more space because of an increase in 
the size of his family. 



25 

(iv) Tenant was frightened by the superintendent who con- 
stantly entered her apartment and made advances. 

(v) Some superintendents made unreasonable demands of 
tenants, for example, some forced tenants to remove their 
overshoes and boots before entering the buildings; 
charged tenants for cleaning up of any dirt that may be 
tracked in to the common areas regardless of weather 
conditions; prevented the children of tenants from using 
the apartment elevators or using the main door of the 
apartment building, and in some cases refused tenants' 
guests the right to enter the apartment building. 

3. The third most common explanation for breaking a lease was due 
to poor health standards, the most common of which are as follows: 

(a) either too much heat or too little heat in the tenant's apartment, 
as a result of broken or malfunctioning heating equipment which 
the superintendent refused to repair; 

(b) too much noise caused by other tenants in adjacent and over- 
head apartments, which the superintendent ignored; 

(c) unsanitary conditions caused by filthy common areas, such as 
hallways and laundry facilities, garbage odours seeping into the 
apartments caused by the garbage not being regularly collected 
or caused by poor garbage disposal units, and pests such as rats, 
cockroaches and silver-fish in the plumbing. 



CHAPTER 4 



SUBLETTING AND ASSIGNMENT 

The average number of tenants per area who have tried to sublet or 
assign : 

Area Lease Area Lease Area Lease 



1 


% 
13 


6 


% 
6 


11 


% 
9 


2 


4 


7 





12 


13 


3 


8 


8 


10 


13 


31 


4 


9 


9 


17 


14 





5 


13 


10 


13 







The average number of tenants sampled who have tried to sublet or 
assign: lease 10%. 



26 

The average number of tenants per area who had problems with 
respect to subletting or assignment:* 

Area Lease Area Lease Area Lease 



1 


% 
40 


2 


4 


3 


29 


4 


4 


5 


38 



% 

6 50 

7 

8 4 

9 
10 13 



11 


% 



12 


10 


13 


3 


14 






The average number of tenants sampled who had problems with 
respect to subletting or assignment: lease 14%. 

*Problems here mean problems of any type. 



The average number of tenants per area who had to pay higher rent 
because of apartment "subletting" or "assignment":* 

Area Lease Area Lease Area Lease 



1 


% 
10 


6 


% 



11 


% 
3 


2 


10 


7 





12 


10 


3 


15 


8 





13 


3 


4 


1 


9 





14 





5 





10 


7 







The average number of tenants sampled who had to pay a higher rent 
because of apartment "subletting" or "assignment": lease 5%. 

*This question refers to those persons who had to pay higher rent than the previous 
tenant because the landlord was letting the premises instead of the previous tenant. 

This part of the question was badly answered as there may have been some 
doubt on the part of the respondent as to the meaning of the question. On the 
basis of phone calls received and generalizing from the questionnaires these averages 
would appear to be too low. 

The statistics indicate that only 10% of the total number of tenants 
sampled had been involved in subletting, or assignment and of this 10% 
only 11% had encountered any difficulty in doing so. 

The questionnaire information also points out that only 4% of the 
total number of tenants sampled were required by the landlord to pay 
a higher rent for the premises they occupied than was paid by the previous 
tenant. However, this question may not have been fully understood 
by the respondents and therefore may be inaccurate. It has been 
indicated that if there is any inaccuracy here it is perhaps that the figures 
are too low. This conclusion is based upon the overall processing of 
the questionnaires as well as the telephone conversations received by the 
Commission with respect to tenants' problems. 



27 

There are some apparent abuses, in this area, which take the form of, 
(i) excessive charges levied against the tenant by the landlord for such 
matters as the drawing up of a new lease, where the superintendent had 
assured the tenant that there would be no charge or other impediment 
involved in subletting or assigning, the assurance being subsequently 
denied; (ii) a penalty for breaking the lease, in the sense that the tenant 
is exercising his subletting rights under the lease which the landlord 
interprets as a tenant's default under the lease; (iii) the charging of a 
finder's fee by the landlord for obtaining a substitute tenant for the 
tenant; (iv) a charge for cleaning and sometimes redecorating the apart- 
ment which cleaning and decorating is rarely performed; and (v) the 
forfeiting of the tenant's safety deposit. 

Although the conclusions based on the statistics compiled from the 
processing of the questionnaire would indicate that there are few problems 
encountered by the landlord or tenant in the area of subletting, and 
assignment, it must be pointed out that there is some uncertainty con- 
cerning these statistics, in which case the percentages may be too low. 
However, it must also be pointed out that the statistics may be accurate 
and it would therefore be reasonable to assume that they are, in light of 
the great demand for apartments, the landlord thus having little problem 
in obtaining suitable substitute tenants. 



CHAPTER 5 

USE OF SELF-HELP BY LANDLORDS 
IN GAINING RE-POSSESSION AND RE-ENTRY 

The average number of tenants per area who knowingly had their 
apartments entered without their permission: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 
10 


% 
9 


6 


% 
11 


% 
5 


11 


% 
6 


% 



2 


15 


5 


7 


25 





12 


16 





3 


14 


9 


8 


8 


9 


13 


13 





4 


10 


7 


9 








14 


5 


29 


5 


21 




10 















The average number of tenants sampled who knowingly had their 
apartments entered without their permission: lease 11% 

no lease 5% 

total average 8% 



28 

The average number of tenants per area who have had their furniture 
distrained upon by their landlord: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 



% 




6 


% 



% 




11 


% 



% 




2 


2 





7 








12 








3 


1 





8 








13 








4 








9 








14 








5 








10 















The average number of tenants sampled who have had their furniture 
distrained upon by their landlord: lease 0.2% 

no lease 0% 

total average 0.1% 



The average number of tenants per area who have been locked out 
of their apartment by their landlord: 

Area Lease 1 No Lease 2 Area Lease No Lease Area Lease No Lease 



1 


% 



% 




6 


% 



% 



11 


% 



% 




2 








7 








12 








3 








8 


4 





13 








4 








9 








14 








5 








10 















The average number of tenants sampled who have been locked out 
of their apartment by their landlord: lease 0.3% 

no lease 0% 

total average 0.2% 

1 Lease — written lease. 
2 No lease — oral lease. 

The questionnaire reveals that only 9% of the tenants who responded 
knowingly had had their apartments entered either by the landlord or 
his representative without their permission. It should be pointed out 
that the replies, with little exception, indicated that apartments may have 
been entered, by the landlord, without the tenant's knowledge. 

There were many examples given where the superintendent entered 
the tenant's apartment without the tenant's permission in order to 
perform repairs. In very few of such cases was notice given beforehand. 



29 



There were an equal number of tenants who indicated that the 
superintendent had been caught entering the tenant's apartment and 
upon being apprehended, explained that he was merely checking for 
matters requiring repair. 

The respondents also indicated that the superintendent had, on 
occasion, entered their apartment to show it to prospective tenants, 
without having first notified the occupying tenants. 

There were also complaints of blatant abuses, such as the super- 
intendent entering the tenant's apartment while the tenant was on vaca- 
tion, using his television set. These occurrences were few in number. 

The statistics also revealed that the landlord's right to distrain upon 
a tenant's furniture for non-payment of rent is little exercised. The 
practice of locking a tenant out of his apartment is also stated to be 
rarely resorted to. 

It must be pointed out that there is a possibility that these latter 
figures relating to forceful possession may be too low, the reason for 
this being that there is a general tendency on the part of those answering 
questions not to respond to questions which reflect upon their honesty 
or integrity, as this question may do since it requires the respondent to 
admit that he may not have lived up to the terms of his lease. 



CHAPTER 6 

NOTICE TO QUIT AND EVICTION 

Notice* 

The average number of tenants per area who have ever received 
notice to quit (written or oral) : 

Area Lease 1 No Lease 2 Area Lease No Lease Area Lease No Lease 



1 


% 
3 


% 



6 


% 
3 


% 



11 


% 
9 


% 
6 


2 


5 





7 





5 


12 


6 





3 


5 


2 


8 


10 





13 


6 





4 








9 


9 





14 








5 


3 




10 


14 


7 









*The percentages as shown may be invalid as it is well known that there is a general 
tendency not to answer questions which may challenge the respondent's honesty, 
pride or which he feels may cause him to be held in disregard. This question was 
badly answered. 

1 Lease — written lease. 

2 Xo lease — oral lease. 



30 

The average number of tenants sampled who have ever received 
notice to quit (written or oral): lease 5% 

no lease 2% 

total average 4% 

The number who have received written notice to quit out of the 
average number of tenants per area who have ever received notice: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 
100 


% 


6 


/o 
50 


% 


11 


% 
60 


% 
100 


2 


50 


— 


7 


— 


100 


12 


100 


— 


3 


100 


100 


8 


100 


— 


13 


100 


— 


4 


— 


— 


9 


100 


— 


14 


— 


— 


5 


100 





10 


100 


100 









The number who have received written notice out of the average 
number of tenants sampled who have ever received notice: 

written lease 87% 

no written lease 100% 

total average 94% 

The average length of time given to quit the premises after the 
tenants had received notice was consistent throughout all areas and was 
at least one month for those who paid on a monthly basis or at least one 
month before the end of the lease for those who had written leases. 

Eviction 

The average number of tenants per area who have been evicted: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 



% 



6 


% 



0/ 

/c 



11 


% 



% 
6 


f 


20 





7 








12 


6 





3 








8 


4 





13 








4 








9 








14 








5 


2 





10 


20 


7 









The average number of tenants sampled who have been evicted 
written lease 4% 

no written lease 0.9% 

Total average 3% 



31 



Notice to Quit 



The results indicate that of the total average number of tenants 
sampled only 4% had ever received notice and that of this 4%, 94% 
received written notice. 

Results also indicate that, with little exception, all those who 
received notice were given notice within the required time. 

The reasons why these tenants were given notice to quit vary but 
may be summarized as follows: (i) tenants were behind in their rent, 
(ii) tenants were too noisy, and (iii) tenants had children while living in 
apartments where the landlord had restrictions against leasing to tenants 
with children. 

It was also found that landlords gave a conditional notice on occa- 
sion; for example, conditional notices were used to notify the tenant of 
an increase in rent and if the tenant did not wish to pay that increase 
then he was to consider the notice as a notice to quit the premises. 

Eviction 

The statistical information reveals that of the total average number 
of tenants sampled only 3% had ever been evicted. 

This figure may be inaccurate in that the answer to this question 
reflects upon the respondent's integrity. As previously mentioned, 
there is a general tendency for the respondent to place himself in the most 
favourable light and to answer accordingly. 



CHAPTER 7 



BAILIFFS 

The average number of tenants per area who have had a bailiff 
sent to their apartment by the landlord: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 



% 



6 


% 



% 




11 


% 



% 
6 


2 


3 





7 








12 


6 





3 








8 








13 


6 





4 








9 








14 








5 


5 


— 


10 















The average number of tenants sampled who have had a bailiff sent 
to their apartment: written lease 1.4% 

no written lease 0.5% 

total average 1% 



32 

The responses indicate that the respondent believes that the bailiff, 
in most cases, is sent by the superintendent: 80%. 

The statistical information indicates that bailiffs are seldom em- 
ployed and when they are, they are sent by the superintendent who uses 
them as a threat in order to collect rent. 

Even though private bailiffs are not often employed, when they are, 
they tend to bully the tenant who does not know his legal rights. As a 
result, unfortunate tenants feel they are often required to pay their 
arrears of rent plus excessive bailiffs' expenses. If the tenant does not 
do so it is stated to be common practice for these bailiffs to force their 
way into the tenant's apartment to effect a distress. 



CHAPTER 8 

DAMAGE CLAIMS AGAINST TENANTS BY LANDLORDS 

The average number of tenants per area who have had to pay for 
damage done to their apartment: 

Area Lease No Lease Area Lease No Lease Area Lease No Lease 



1 


% 
3 


% 
3 


6 


% 
6 


% 



11 


% 
9 


% 



2 


4 





7 





11 


12 


10 





3 


8 


1 


8 


4 





13 


3 





4 








9 








14 








5 


11 


— 


10 


20 


7 









The average number of tenants sampled who have ever had to pay 
for damage done to their apartment: written lease 6% 

no written lease 2% 

total average 4% 

DAMAGES 

The question from which this statistical information was obtained 
was directed to damage done to the tenant's apartment, whether he was 
responsible for it or not. However, it may have been interpreted by the 
respondents as damage done by him directly ; these figures may therefore 
be inaccurate. From the information received, it would appear that 
actual payment for damage done to apartments is not a problem area. 
From the response we received, the majority of the respondents felt that 
the landlord was justified in charging them for damage which they had 
caused. However, they indicated that the assessment of charges for 
damage caused was usually levied by the superintendent and was 
exaggerated by him. The problem of levying a fair charge for damage 
done to the apartment is fully discussed under the topic of security 
deposits. 



33 



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37 

SAMPLE 

Explan.it ion of reasons why repair is not made: 



Area I 



Written Lease 



71% — landlords ignore or refuse 
repair. 

12% — cannot be fixed. 

5% — repairs too expensive. 

12% — tenants have not complained. 



No Written Lease 



77% — landlords ignore or refuse 
repair. 

7% — repairs too expensive. 

8% — tenants have not complained. 

8% — rent will be increased. 



Area III 



80% — landlords ignore or refuse to 
repair. 

7% — cannot be fixed. 

13% — rent would be increased. 



88% — landlords ignore or refuse to 
repair. 
6% — cannot be fixed. 
6% — repairs too expensive. 



Area V 



77% — landlords ignore or refuse to 
repair. 

7% — repairs too expensive. 

16% — tenants have not complained. 



There are no "no-lease" returns for 
Area V in the sample. 



Area VI 



86% — landlords ignore or refuse to 
repair. 

14% — rent would be increased. 



66% — landlords ignore or refuse to 

repair. 
34% — repairs too expensive. 



The answers to question twelve of the questionnaire revealed that 
28% of the apartments rented under a lease are in need of repair. This 
figure is substantially higher for apartments rented under a short term 
lease at 43%. The results of the returns from tenants with written 
leases are close to a mean of 28%. Returns from respondents without 
written leases have a greater standard deviation from the mean of 43%, 
ranging from a low figure of 18% to a high figure of 75%. This is probably 
due to the small size of the sample of tenants without written leases 
in relation to the sample of tenants with written leases. General main- 
tenance repairs, painting and decorating, plumbing and plastering, are 
by far the most frequent repairs required in the apartment sample. 
There is no appreciable difference between the apartment tenants with 
a written lease and those without a written lease, in regard to the type 
of repairs required. About 75 to 80% of all tenants, in the sample, 
replied that their landlord completely ignored any complaint or request 
for needed repairs. If there is a reply from the landlord, he will usually 
threaten to increase the rent if the repairs are insisted upon or he will 
simply tell the tenant to move if he does not like the present condition 
of the apartment. Many tenants indicated that they have given up 
their attempts to have the landlord effect necessary repairs in order to 
preserve his good will and to protect themselves from retaliatory rent 
increases. 



38 

Repairs undertaken by the landlord are usually performed by the 
superintendents of the apartments. They are usually executed in an 
unworkmanlike manner, because of failure to use proper materials and 
tools, and because the superintendent usually lacks the necessary trade 
skills. 

Explanation of Results 

The lower average need of repair for the apartments subject to 
written leases reflects the fact that the majority of these are newer and 
consequently are apt to be in a better state of repair. 

Repairs required are identical for apartments subject and not subject 
to written leases, in both type and order of frequency. This fact estab- 
lishes fairly conclusively that the landlord and tenant disputes, as to 
repairs, are concerned, almost exclusively, with general maintenance, 
painting and decorating, plumbing and plastering, in that order. 

An explanation for the relatively high need of repair in apartments 
must be found in the financial and market conditions of the apartment 
industry and in the peculiar sociological makeup of the tenants. 



39 



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42 



SAMPLE 



Reasons why services were reduced: 



Area I 



Written Lease 



39% — repair to equipment. 

54% — breakdown of equipment due 

to poor maintenance. 
75%— other. 



No Written Lease 



25% — repair to equipment. 
75% — breakdown of equipment due 
to poor maintenance. 



Area III 



20% — repair to equipment. 

53% — breakdown of equipment due 

to poor maintenance. 
27%— other. 



50% — repair to equipment. 

25% — breakdown of equipment due 

to poor maintenance. 
25%— other. 



Area V 



30% — repair to equipment. 

70% — breakdown of equipment due 
to poor maintenance. 



There are no "no written lease" 
returns in this area in the sample. 



Area VI 



50% — repair to equipment. 

50% — breakdown of equipment due 
to poor maintenance. 



40% — repair to equipment. 

60% — breakdown of equipment due 
to poor maintenance. 



The results of the questionnaire indicate that 20% of the tenants 
in the sample suffered reduction in the services which they were entitled 
to. No appreciable difference was found between tenancies based on 
the existence or absence of a written lease. The results, in the case of 
non-written leases, were surprising in view of the 43% alleging needed 
repairs in the non-written lease sample. On closer analysis, an explana- 
tion was found in the fact that the repairs required to maintain the 
essential services of hot water, heat and elevators were equal for both 
samples, and the higher figure for the non-written lease apartments 
resulted from a greater incidence of complaints in the area of painting 
and decorating and similar repairs. Reduction in the supply of hot 
water was the most prevalent complaint followed by the reduction in 
heat and elevator service. Other reductions complained of are small in 
number compared with the incidence of the above. 



Explanation of Results 

Some landlords, in order to increase their profit, will neglect neces- 
sary maintenance and will only repair when a breakdown is imminent or 
has happened. This submission is reflected in the results obtained which 
show that over 50% of the reductions in services are incurred because of 
improper maintenance of equipment providing such services. The land- 
lord can only increase his potential profit, aside from keeping his units 
fully occupied at all times, by reducing his expenses for maintenance in 



43 

services. Substantial savings can be effected by starting the boilers 
supplying heat late in the fall and turning them off early in the spring. 
Many tenants complained of this occurrence, and also of reductions 
during the heating period, which were blamed on repairs and on the 
difficulty of obtaining replacement parts. 

The incidence of these occurrences is lessened considerably when 
tenants make determined complaints or approach the relevant public 
authorities. Other complaints include limitation on access to laundry 
facilities; children's facilities advertised in advertisements and promised 
prior to signing of the lease but never made available to the tenant; 
swimming pools constructed and available to the tenants just after the 
opening of a newly constructed apartment house which develop mal- 
functions which necessitate temporary shutdown, which often becomes 
permanent. 

Elevators are reported to have a high incidence of malfunction. 
The present legislation does not provide adequate sanctions against 
landlords who fail to properly maintain this service. The Elevator 
Inspection Branch is unable to do anything about inadequate service 
contracts entered into for a minimal sum. Such contracts are said to be 
used by some landlords to reduce blame directed against them in the 
event of a breakdown or malfunction in service and in order to induce the 
Elevator Inspection Branch to grant additional time for repairs to be 
made. 



CHAPTER 11 



OTHER COMMON COMPLAINTS 

Question twenty-six of the tenant questionnaire gave the tenant an 
opportunity to express any other dissatisfactions he felt in relation to his 
tenancy. About sixty-five per cent of the people returning the question- 
naire took the opportunity to set out, in some detail, the additional 
complaints they might have. 

Approximately 48% of the people living in apartments subject to 
written leases had such complaints, compared to approximately 40% of 
those living in apartments not subject to a written lease. 

Most people complained about poor maintenance and the ineffectual 
response to complaints made to the landlord. The second most frequent 
complaint was about high rents; followed by complaints about noise, 
insufficient heat and hot water, in that order. 

Explanation of Results 

The results obtained were somewhat surprising because it had been 
established that the non-written lease apartments were generally older, 
and offered fewer amenities than the written lease apartments, but the 



44 

results might indicate that the people renting the apartments subject 
to a written lease expect a higher standard commensurate with the higher 
rent paid by them and object more strenuously when this standard is 
not maintained. 

An attempt was made to categorize the specific complaints registered 
by tenants, but this attempt was abandoned when it became clear that 
the results were too fragmentary to yield specific results and therefore 
the results were collected under the headings indicated above. 

Although 35% of the people returning the questionnaire did not 
answer this question (26), it is felt that the figures indicating the incidence 
of complaints are fairly accurate because people who have no complaints 
found the question superfluous and indicated their response by not listing 
any complaints. 



45 





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46 

The results obtained from the questionnaire show that 34% of people 
with written leases had restrictions placed upon them before moving into 
the apartment. In the case of people with no written leases, only 15% 
had restrictions placed upon them before moving into their apartment; 
16% of people with written leases had restrictions placed upon them after 
moving into an apartment. No statistically valid results were obtained 
from people with no written leases for restrictions imposed upon them 
after they moved in; the common restrictions in the incidence are out- 
lined on the chart supplied. 

Explanation of Results 

The results of restrictions imposed before moving in, as outlined on 
the graph, appear to be too low. It is felt that only those people who: 
(i) experience a restriction; (ii) read the lease thoroughly; or (iii) were 
instructed specifically as to the restrictions, were aware of such restric- 
tions. It may fairly be assumed that the figures in the graph are the 
absolute minimum and are very likely, in fact, substantially higher. 

Restrictions on tenant noise are most prevalent, closely followed by 
restrictions on children or the number of children. Landlords also restrict 
the number of milkmen, cleaners, and other service personnel who have 
access to the apartment building. The surprisingly low figure on 
restrictions on pets is probably a reflection of the fact that very few 
people living in an apartment ever attempt to keep pets. Most people 
do not read their lease thoroughly, and assume that pets are not allowed 
in apartments and therefore they seldom experience a restriction against 
keeping pets. 

Restrictions seem to centre around those stated in the graph as 
indicated by the very low percentages listed under the heading of 
"Others". 

In view of the common newspaper reports of the widespread imposi- 
tion of restrictions on tenants, the results seem surprising as to the low 
incidence of these restrictions, especially in view of the fact that the 
results were obtained from tenants in a position to list anything which 
they felt was a restriction regardless of whether they felt it was reasonable 
or not. 

Restrictions on tenant noise were most frequent, and are considered 
necessary in an environment where many people live in close proximity. 
Very few respondents took exception to these restrictions. Restrictions 
on visitors were relatively rare, and few complaints were received, since 
the restriction is basically directed against visitors who intend to move 
into the apartment permanently without there being a commensurate 
increase in rent. Restrictions as to children will be treated fully in a 
subsequent chapter. 



47 



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49 

About 33% of all tenants in apartments subject to a written lease 
have young children. This figure is about 8% lower in no written lease 
apartments. The breakdown into areas indicates that the incidence of 
children is higher in the peripheral areas and lower in the downtown or 
central areas. It may be speculated that because demand at present 
is greater than supply, the landlords can afford to create adult buildings 
only, the result of which compounds problems as families with young 
children have only one solution and that is to accept sub-standard accom- 
modation. 

It was observed that about 52% of parents of young children have 
been refused rental because of having young children. This figure is 
substantially lower for no written lease apartments (about 25%). 
Approximately 21% of parents with young children in apartments subject 
to written leases had to pay a higher rent because they had young children. 
Approximately 14% of parents with young children had to pay a higher 
rent in the no written lease apartments. This would indicate that there 
is a greater percentage of tenants with young children being accom- 
modated in premises where there is no written lease and as may be seen 
in the chapter on rent, rentals for such apartments are substantially less. 
The reason for this situation may be ascribed to lower standards of 
maintenance, older buildings and fewer services or "luxuries". 

These figures would appear to include tenants with young families 
who have been refused rentals by buildings restricted to adults as well as 
those apartments having an active policy which limits rentals to tenants 
having young children to a certain size of family, i.e. to families with 
only one or two children. This means larger families of three or more 
suffer a greater handicap because of the increased difficulty in finding 
apartment accommodation. 

The figures indicate that approximately every third apartment is 
occupied by a family having young children. 

The results show that about 51% of all parents with young children 
have been refused rental in apartments where written leases are required. 
This figure is not surprising in view of the fact that the children cause 
more damage to apartments, especially to elevators, halls and other non- 
supervised areas than do adult occupants. The landlord who is trying 
to maximize his profits, in a relatively tight apartment market, will 
naturally avoid renting to families with children. If he does rent to 
such families he will demand a higher rent, as evidenced by the 21% 
figure of parents with young children who had to pay a higher rent 
merely because of having young children. 

An additional amount of rent will, in some cases, overcome the 
reluctance of landlords to rent to families with young children. This 
holds true as long as there are only one or two children. As the number 
of children increases more parents will be faced with an even greater 
resistance in their attempts to find rental accommodation. Few land- 
lords will rent to large families unless these families are prepared to rent 
three and four bedroom apartments which, in view of the results obtained 



50 

under topic one, as mentioned above, are almost prohibitive in cost to 
the great majority of such families faced with this problem. Unless 
such families can afford the higher rents for larger apartments or are 
able to buy a house, which is seldom the case, they will be forced to 
accept substandard accommodation from a landlord who is willing to 
rent to them at rents far in excess of the real market value for the par- 
ticular apartment. 

Landlords either refuse to rent to families with children or increase 
the rent payable by such tenants. As a result families with young 
children are unable to obtain a standard of accommodation that could 
be obtained if cognizance were taken by planners, developers and archi- 
tects of the increasing number of families with young children in need 
of apartments. 

The problem of forcing these families to accept substandard accom- 
modation results in increased interparental frustrations as well as the 
curtailing of a necessary and healthy development of our youngsters, 
the adverse result of which could be seen in the future as affecting the 
educational levels of such children, the productivity, their potential crime 
rates and all other accompanying consequences. 

Some Observations 

The Moss Park Development in Metropolitan Toronto provides 
two and three bedroom apartment units in a two storey arrangement, 
the first two storeys being occupied by these two and three bedroom apart- 
ments which are restricted to families with children. Each apartment 
unit is accessible through private entrances enabling mothers to supervise 
their children. The children never enter the main apartment building, 
ride the elevators or traverse the halls. This arrangement effectively 
curtails most of the objections landlords have against renting to families 
with young children. 

Many of the restrictive conditions against families with young 
children might be removed by appropriate architectural design. Land- 
lords should be encouraged by appropriate incentives to build such units 
through the institution of special mortgage rates or land subsidies but 
in no case should they be punished by way of restrictive legislation for 
charging higher rents, as there is no alternative to these higher rents 
unless government in some way participates or reduces the expense 
involved in maintaining family apartments. 



51 



CHAPTER 14 



SECURITY OR SAFETY DEPOSITS 

There is a substantial difference between the written lease and no 
written lease apartments in the area of security deposit requirements. 
Eighty per cent of all apartments rented with a written lease require a 
security deposit of about ($123.00) one hundred and twenty three dollars 
while only about 48% of the no written lease apartments require a security 
deposit of about ($89.00) eighty nine dollars. 

It is open to speculation that the reason for requiring of security 
deposits is not so much for the protection of the landlord against potential 
damage caused by tenants but rather for some other reason, for example, 
the accumulation of a large fund of interest free capital which could be 
profitably employed in short term investments and that this purpose is 
frustrated in the no written lease apartments because: 

(a) the landlord is not assured of any specific amount for a specified 
length of time due to the frequency or potential frequency with 
which monthly tenancies may be severed by either party, thus 
requiring reimbursement to the tenant of his deposit thereby 
causing uncertainty with respect to accumulation of such a fund. 

(b) the landlords who rent on a no written lease basis tend to be 
smaller than those landlords who operate on a written lease 
basis. Thus the smaller landlords would not find it as profitable 
to seek safety deposits in order to build an investment fund as 
would the larger landlords who control numerous apartment 
units. 

(c) small landlords are not as sophisticated as their larger counter- 
parts and therefore are not aware of all the methods of tenant 
exploitation. 

It may also be speculated that the reason fewer safety deposits are 
required in no written lease tenancies is because the landlords who offer 
no written lease tenancies repair less frequently because of the greater 
frequency with which their units change tenants. However, doubt may 
be cast upon this assumption because of the fact that those landlords 
who require safety deposits often attempt to levy charges against vacat- 
ing tenants for what they refer to as damage done to the apartment, which 
in fact is often normal wear and tear and make a further profit as this is 
also deducted as depreciation with respect to the building. This amount 
may or may not be used to redecorate the apartment but in either case 
represents a profit to the landlord. The size of the security deposit is 
usually equal to a monthly rental payment and consequently the security 
deposit on an expensive apartment is greater than a deposit on a cheaper 
apartment. 



52 

Tenants are told that their deposits will be returned upon leaving 
the apartment at the expiration of the lease but in reality only about 
50% of the tenants responding to the questionnaire receive their full 
deposit back at the end of the lease. This figure is approximately the 
same for written lease and no written lease apartments being 54% and 
48% respectively. About 32% of written lease tenants received part 
of the deposit back after the lease expired. Insufficient returns were 
received from no written lease tenants to make accurate projections as 
to the size of the deposit that was returned. Indications are that the 
proportion of no deposit at all being returned is higher than the figure 
obtained from an apartment with a written lease. 

Only about 20% of all tenants who answered this question had been 
in a position to have a safety deposit returned to them. The remaining 
80% never had to pay a safety deposit until now or had just moved into 
an apartment of the first time. 

Explanation of Results 

The greater proportion of security deposits required in apartments 
subject to written leases reflects the policy of the larger development and 
rental companies to impose such deposits on their tenants. The small 
landlord in Metro has a tendency to rent his units without a written 
lease and also without imposing a security deposit. There are indications 
that the small landlord is following the pattern established by the larger 
companies and is starting to impose security deposits with greater 
frequency. 

The abuses complained of concerning security deposits show the 
same frequency of complaints for written lease and no written lease 
apartments. The most frequent complaint by tenants concerns the 
attempt by landlords to retain as much as possible of the deposit by claim- 
ing fictitious or superficial damage to the apartment. Much of the 
claimed damage is alleged to be pre-existing. At the time of leaving, 
this pre-existing damage was charged against the tenants' security deposit. 
This complaint is alleged rather frequently and may be due to the lack 
of repair records evidencing the state of repair that the apartment was 
in at the time occupancy was taken. The high turnover of apartment 
superintendents may also contribute to the situation rather than a cal- 
culated attempt by the landlord to deprive the tenant of his security 
deposit. 

The landlord's constant need for liquidity, the lack of controls 
affecting the taking and keeping of security deposits combine to militate 
against the return of the deposit monies to a tenant who has delivered 
up a well kept apartment unit to the landlord. As the landlord very often 
employs the deposit monies in his business ventures, he will often attempt 
to prolong or postpone the return of the deposit and in many cases, will 
simply refuse to return it for rather superficial reasons. A few of the 
most cited reasons for deducting money from the deposit are claims up 
to ($30.00) thirty dollars to plaster over nail holes, substantial sums for 
alleged redecorating, or unauthorized decorating done by the tenant, 
burnt counter tops and sloppy cleaning, when vacating apartments. 



53 



CHAPTER 15 



OTHER MONETARY ASSESSMENTS 
MADE BY LANDLORDS AGAINST TENANTS 

This topic may be conveniently divided into three sections. Penalty 
payments, fines and charges. 

Penalty payments: From the statistics obtained it was found that 
the number of tenants who complained of having paid penalties for 
alleged violation of their lease covenants amount to approximately 5%. 
This matter was not pursued in detail in questioning the respondents and 
therefore little information is available as to what the particular re- 
spondent meant when he referred to penalty payments. 

Fines: There were a number of questions in the questionnaire 
relating to fines (questions 19, 20 and 23 in particular). From these 
questions it was determined that approximately 4% of those persons 
having a written lease complained of receiving a fine in relation to that 
lease. Out of the total number of respondents questioned it was deter- 
mined that approximately 2% of those persons holding written leases 
had been fined whereas approximately 1% of those persons not holding 
written leases had been fined. 

Charges: Charges have been levied against tenants for many reasons 
too numerous to list. From the statistics it has been determined' that 
the majority of tenants were subject to charges in some form with respect 
to repairs and/or services which they required in their particular apart- 
ment unit. Of those respondents questioned it was determined that 
approximately 10% of those respondents who held written leases had 
been charged with respect to these services or repairs, whereas ap- 
proximately 6% of those persons who did not have written leases had 
been charged with respect to repairs or services. 

There may have been some discrepancy in the understanding of 
what these particular questions meant and therefore it may be assumed 
that the respondents considered fines, penalty payments and charges 
as one and the same thing and therefore these charges are treated as 
charges in general. 

About 6% of tenants with written leases had their rent raised during 
the term of the lease without being given a new lease. 

The landlord sometimes ignores the terms of the lease and notifies 
the tenant, during the duration of the lease, of an increase in rent. 
This frequently takes place when the landlord has just bought the prop- 
erty from the previous owner and finds himself bound by existing leases. 
He usually notifies tenants that he is the new owner and that he is setting 
new rental rates and that he will not be bound by the rental rates under 



54 

the old leases. He often justifies the increases by citing tax increases 
and higher mortgage interest rates. The survey shows that most tenants 
submit to his demand for a rent increase during the term of the lease and 
neglect to take advantage of the rights vested in them under the lease. 
This is probably due to ignorance concerning their legal rights; the desire 
not to displease the landlords; and the high cost of moving into another 
apartment. Very few tenants stated that they consulted a lawyer and 
many tenants indicated that they thought this to be very costly and 
fraught with uncertainty. 



CHAPTER 16 



PERSONS WITH FIXED INCOMES 

There was no opportunity to fully research the implications inherent 
in the topic heading, however, there are certain aspects which it is 
necessary to advert to. 

The average cost for a person wishing to move from one apartment 
to another in the city of Toronto, is approximately one hundred and 
thirty dollars ($130.00). This amount represents a considerable expense 
to those persons who are on fixed incomes such as pensioners and elderly 
persons. 

With the tendency on the part of landlords to increase the rent 
payable by a tenant on the termination of his lease, the rent charged for 
the apartment is eventually put out of the reach of the persons on fixed 
incomes. The result is that the tenant must move from that apartment, 
thus suffering the additional cost of moving in addition to being placed 
in the difficult position of obtaining alternative rental accommodation. 

A further result is that many of these persons are being forced to 
live in conditions which they have not been accustomed to and suffer 
even further and greater hardships in doing so because of their age and 
state of health. 

In order to maintain the standard of living to which they are accus- 
tomed, many of these people cut down on other expenses such as heat, 
light, clothing, entertainment and, most important, food expenses, with 
the result of potential danger to their physical well-being. 

Many of these people are also unable to cope with the increasing 
pressures which accompany renting and they are often quite unable to 
afford the premises within which they are living and are also unable to 
afford the cost of moving. 

Elderly people go out of their way not to cause any confusion, strife 
or apprehensions among the people with whom they deal. As a result, 
they suffer more than other tenants do with respect to their apartment 



55 

conditions because they are not forceful in their demands but rather 
suggest that repairs or redecorating are needed and they seldom persist 
in making these suggestions. For example, a questionnaire was filled 
out by a lady of 87 years who had lived for twenty years in the same 
apartment, where the wallpaper was falling off the walls and which was 
badly in need of other repairs which the landlord refused to effect. Nor 
had any repairs been made for the twenty-year period. This lady was 
fearful that, if she pursued her demands, it would aggravate the landlord 
and she would be given a notice to quit. 

Such people are often taken advantage of in many other ways, 
such as excessive charges being levied on them for such things as repairs, 
redecoration and other apartment services. 



PART II — THE LANDLORD STUDY 



CHAPTER 1 

STATISTICAL INFORMATION 
TOTAL RESPONSE 

ANSWERS TO LANDLORD STUDY 

A total of 118 landlords replied 
representing a total of 69,624 units 

Most tenants are: 

(a) careful — 40% 

(b) indifferent — 60% 

(c) destructive — 6% 

Most damage done by: 

(a) tenants — 56% 

(b) children of tenants — 50% 

(c) outsiders — 21% 

(d) children of outsiders — 10% 

Increased police protection: 

(a) will reduce damage — 50% 

(b) will not reduce damage — 50% 

Present standard of police protection : 

(a) satisfactory — 65% 

(b) not satisfactory — 36% 



Note: Where the total is greater than 100% it is because some landlords 
made more than one choice. 



[58 



59 
RESPONSE FROM LARGE DEVELOPERS 

ANSWERS TO LANDLORD STUDY 



Large developers or management firms in Metro 
representing a total of 40,133 units 



Most tenants are: 

(a) careful — 41% 

(b) indifferent — 56% 

(c) destructive — 3% 

Most damage done by: 

(a) tenants — 44% 

(b) children of tenants — ^% 

(c) outsiders — 3% 

(d) children of outsiders — 6% 

Increased police protection: 

(a) will reduce damage — 77% 

(b) will not reduce damage — 23% 

Present standard of police protection : 

(a) satisfactory — ^% 

(b) not satisfactory — 67% 



Note: Where the total is greater than 100% it is because some landlords 
made more than one choice. 



60 
TOTAL RESPONSE 

Rent to families with young children: 

(a) Yes - 76% 

(b) No — 25% 

(c) continue renting to families with 

children — 70% 

(d) will not continue renting to families 

with children — 4% 

Safety deposits: 

(a) not important — 11% 

(b) convenient — 4% 

(c) vital — 84% 

Interest payment on safety deposits: 

(a) necessary — 6% 

(b) fair — 56% 

(c) unnecessary — 32% 

Government controlled body for arbitrating disputes re safety deposits 

(a) favour — 14% 

(b) do not favour — 80% 

Distress: 

(a) favour retention — 88% 

(b) do not favour retention — 7% 

(c) resort to use often — 6% 

(d) seldom resort to use — 66% 

(e) never resort to use — 20% 



61 
RESPONSE FROM LARGE DEVELOPERS 



nt to families with young children: 




(a) Yes 


-95% 


(b) No 


- 3% 


(c) continue renting to families with 
children 


- 51% 


(d) will not continue renting to families 
with children 


- 12% 



Safety deposits: 

(a) not important — 3% 

(b) convenient — 3% 

(c) vital — 95% 

Interest payment on safety deposits: 

(a) necessary — 3% 

(b) fair — 77% 

(c) unnecessary — 18% 

Government controlled body for arbitrating disputes re safety deposits: 

(a) favour — 12% 

(b) do not favour — 90% 

Distress: 

(a) favour retention — 93% 

(b) do not favour retention — 6% 

(c) resort to use often — 18% 

(d) seldom resort to use — 75% 

(e) never resort to use — 6% 



62 



TOTAL RESPONSE 



Lease 



(a) 


provide lease for tenant 


92% 


(b) 


do not provide lease — 


3% 


(c) 


sometimes provide lease 


3% 


(d) 


present lease fair to tenant — 


90% 


w 


present lease not fair — 


3% 


(/) 


protection against destructive tenants — 


50% 


is) 


no protection — 


42% 


(ft) 


charge a premium for lease 


— 


(0 


do not charge a premium — 


91% 


(i) 


provide tenant with copy of lease — 


90% 


(ft) 


do not provide tenant with copy of 
lease — 


1% 


(0 


favour government approved lease — 


36% 


(w) 


do not favour such lease 


58% 



RESPONSE FROM LARGE DEVELOPERS 



Lease : 



(a 


i provide lease for tenant 


- 98% 


(&: 


) do not provide lease — 





(c 


) sometimes provide lease 


- — 


(d. 


) present lease fair to tenant 


- 90% 


w 


) present lease not fair 


- 3% 


(/: 


) protection against destructive tenants— 


-47% 


(*: 


) no protection — 


- 53% 


(h- 


) charge a premium for lease 


- 


a: 


) do not charge a premium — 


-100% 


u: 


) provide tenant with copy of lease 


- 98% 


(ft; 


I do not provide tenant with copy of 
lease — 





u: 


) favour government approved lease 


- 27% 


(m] 


) do not favour such lease 


- 70% 



63 
TOTAL RESPONSE 

Returns on investment: 

Apartment built before 1960 — 

(a) insufficient — 21% 

(b) sufficient — 46% 

(c) good — 5% 

(d) very good — — 

Apartment built 1960-1965— 

(a) insufficient — 24% 

(b) sufficient — 36% 

(c) good 8% 

(d) very good 

Apartment built 1965-1968 — 

(a) insufficient — 25% 

(b) sufficient — 28% 

(c) good — 3% 

(d) very good — 1% 

Complaints of high rents by tenants: 

(a) justified — 25% 

(b) not justified — 69% 



64 
RESPONSE FROM LARGE DEVELOPERS 

Returns on investment: 

Apartment built before 1960 — 

(a) insufficient — 27% 

(b) sufficient — 38% 

(c) good — 12% 

(d) very good — — 

Apartment built 1960-1965— 

(a) insufficient — 30% 

(b) sufficient — 35% 

(c) good 6% 

(d) very good — — 

Apartment built 1965-1968— 

(a) insufficient — 38% 

(b) sufficient — 44% 

(c) good — 3% 

(d) very good — — 

Complaints of high rents by tenants: 

(a) justified — 27% 

(b) not justified — 62% 



65 
TOTAL RESPONSE 

Sublet: 

(a) levy extra charge — 48% 

(b) do not levy extra charge — 48% 

Landlord association: 

(a) belong — 26% 

(b) do not belong to any — 70% 

Tradesmen : 

(a) restrict — 46% 

(b) do not restrict — 46% 

Rent review by government controlled body: 

(a) unacceptable — 66% 

(b) acceptable if only on landlords with 

high return — 13% 

(c) necessary — — 

(d) in the best interests of landlord and 
tenant — 16% 



Note: Where the total is greater than 100% it is because some landlords 
made more than one choice. 



66 
RESPONSE FROM LARGE DEVELOPERS 

Sublet: 

(a) levy extra charge — 83% 

(b) do not levy extra charge — 12% 

Landlord association: 

(a) belong — 65% 

(b) do not belong to any — 35% 

Tradesmen : 

(a) restrict — 80% 

(b) do not restrict — 18% 

Rent review by government controlled body: 

(a) unacceptable — 75% 

(b) acceptable if only on landlords with 

high return — 3% 

(c) necessary — — 

(d) in the best interests of landlord and 
tenant — 18% 



Note: Where the total is greater than 100% it is because some landlords 
made more than one choice. 



67 



CHAPTER 2 



EXPLANATION OF RESULTS 

(1) The returns obtained for this survey comprised 106 identifiable 
forms in areas 1 to 14 inclusive and 12 forms which are not referable to 
any single area but cross area boundaries. The 106 forms received 
represented 106 different landlords who owned approximately 150 
apartments. In addition the 12 returns assignable to more than one 
area represented large landlords representing a total of 17,927 apartment 
units. 

(2) The total units owned or managed by the respondents amounted 
to 69,624 units. 



PART III — GENERAL METHODOLOGY OF SURVEY 



70 
GENERAL METHODOLOGY OF TENANT SURVEY 

Design of the Studies 

The design model used to study the nature of tenant complaints was 
intended to elicit responses from tenants through the use of question- 
naires which were sent to tenants selected at random. 

It was the initial intention of the investigators to explore the area 
by way of a general questionnaire and then to proceed to obtain more 
detailed results through the use of a secondary series of questionnaires 
constructed to explore those specific areas which the general question- 
naire indicated as problem areas. 

Due to the lack of time and facilities, the two stages were combined. 
The questionnaire, as prepared, explored both generally and specifically 
the major areas of tenant concern. By way of caution it is noted that 
there are bound to be some discrepancies, as this represents an exploratory 
study. 

This study though mainly exploratory is also descriptive. Past 
research in such studies has pointed out the usefulness of the "grass- 
roots" approach which must be taken in order to find out what really 
happens rather than what is thought to happen or speculated to have 
happened. The exploratory or formative study was chosen because of 
the need to adopt an open approach to the research question. The ex- 
ploratory method allows flexibility in the design, the main concern being 
an exploration of primary legal areas of the subject being investigated. 

Such a design offers not only a good deal of flexibility but permits 
an emphasis on discovery, reduces the need for rigid sampling procedures 
and eliminates the narrow frame-work required by the experimental 
approach for the control of variables. This design also allows the in- 
vestigator to modify the focus of his investigation in light of new ideas 
where unexpected leads arise during the investigation. For example, 
the soliciting of briefs from various organizations and those persons 
familiar with the topics involved as well as the carrying out of telephone 
enquiries. The overall purpose and value of this exploratory study is 
that it provides a clear ranking of research priorities within the area 
of landlord and tenant law reform, including practical information which 
will be of assistance in future investigations. 

Data Collection Method — Tenant Study 

The first step in the exploratory study was to select the method of 
data collection. Because of the large population involved (Metropolitan 
Toronto), it was impossible to personally interview each tenant without 
the aid of a large research force. Therefore the questionnaire method 
or area sample, as it is sometimes referred to, was selected. Question- 
naires were designed to obtain information from each group of persons 
who were felt to be mainly associated with the landlord and tenant 
relationship, hence the divisions — landlord study and tenant study. 



71 
Questionnaires were similarly constructed for the landlord study. 

Pretesting, a very important part of the questionnaire method, is a 
useful means of testing ideas, creating new categories, restructuring 
questions so as to be assured that each person sampled fully understands 
its meaning, regardless of his or her educational background. It is 
also useful to determine the length of time required to answer the ques- 
tionnaire, and in this way the forms might be altered so as to prevent the 
sampled persons from failing to respond, due to the length of time 
required to answer the questions. 

The questionnaire was pre-tested and, as a result, the questions 
were substantially revised, from the original form, because of the failure 
of some persons to understand the meaning of some questions. For 
example, distress, improvements or alterations and such other language 
caused many of the respondents difficulty. 

Ideally, a questionnaire should have been constructed for each area 
so as to be certain that each person received a questionnaire which he 
could understand. As circumstances did not permit this procedure being 
followed several of the questionnaires were not well answered. 

Poorly answered questions might be ascribed to two factors: 

Firstly, as described above, a lack of understanding as to the mean- 
ing of a particular question and, 

Secondly, it is w r ell known that persons who respond to questions, 
which pertain to their honesty and integrity, have a tendency to respond 
in a fashion which will reflect most favourably upon them. 

Landlord Study 

The landlord study was substantially the same in that it was a 
questionnaire study from which responses were elicited and processed. 
There was, however, not the same need to run a pretest on these ques- 
tionnaires, as they were to be sent to persons who would not likely 
experience conceptual difficulties. 

Selection of the Sample — Tenant Study 

The next step was to select a sample of potential respondents. 

The population for this study, as mentioned, is defined as generally 
all tenants in Metropolitan Toronto. It was obvious that all tenants 
could not be contacted due to time and staff limitations. Therefore a 
method of random sample was chosen. 

The initial stage was to acquire an up-to-date list of all apartments 
in Metropolitan Toronto. Such a list was made available to us by the 
Metropolitan Toronto Planning Department. From this list a selection 
of addresses of 1,121 apartments was made at random. This figure 
represents approximately one-quarter of the number of existing apart- 
ment buildings in Metropolitan Toronto and therefore one out of every 
four apartment buildings was placed on our list. 



72 

Note that the above list of addresses was placed according to the 
planning area divisions or districts of Metropolitan Toronto. 

The next step was to estimate the approximate number of apart- 
ment units for each planning district. From this break-down an esti- 
mate was made of the maximum approximate number of returns that 
would be required from each planning district. 

It was ascertained that a minimum number of 1,000 returns was 
required in order to make the study reliable for the data which we 
wished to receive. 

The appropriate number of questionnaires to be sent into each 
planning district was calculated by firstly ascertaining the number of 
apartment units in each metro planning district. From an apartment 
study published by the Metro Planning Board in 1967, a total of 3,222 
questionnaires was mailed and each planning district received a propor- 
tion of this total commensurate to its apartment unit population. For 
example, planning district no. 4 had 30,470 apartment units which was 
about 20% of the apartment unit population of Metropolitan Toronto 
in 1967 and consequently 20% of the total number of questionnaires 
which was about 640 was allocated to planning district no. 4. 

The final step was to consult the Might's directory for the names of 
tenants occupying units of the apartments at the addresses obtained 
from the Metropolitan Planning Department for the apartments that 
had been selected. 

From the listing of tenants at the above addresses, 3,222 were 
selected at random. The method of selection was to choose every 
twentieth person in large buildings and every tenth person in medium 
sized buildings and every third person in small apartment buildings. 

There are a number of difficulties involved in the use of such a 
directory. For example, the latest directory is not entirely accurate in 
that the frequency of apartment vacating is high, especially in a city the 
size of Toronto, with the result that the number of persons sampled is 
reduced accordingly. 



Selection of the Sample — Landlord Study 

With the co-operation of the Urban Development Institute a com- 
plete list of their members was obtained. The names and addresses of 
the other landlords were obtained from the records of the Licensing 
Branch of the Department of Labour who keep an up-to-date list of 
addresses of the owners of all apartment buildings that have elevators. 
The difficulty with this list is that only those owners appear whose 
apartments have elevators and therefore the landlords with smaller 
apartment buildings which do not require elevators do not appear on the 
list. To this extent the landlord sample is not representative. However, 
it is felt that the pattern shown, with respect to the questionnaire re- 
sponses received from these landlords, is indicative of all landlords. 



PART IV — APPENDICES 



TENANT STUDY 



APPENDIX 1 



PLEASE RETURN WITHIN 10 DAYS 

Instructions 

Use a tick [V] where you see a bracket to indicate the correct answer. 
Where you see the word "explain" or "why", write clearly all the details 
which you think are important. Add more paper if not enough space is 
given and number the answer the same as the question; use the back of 
the question sheets if you wish. 

1. How much is your rent? 

How many rooms has your apartment? 

(not including bathrooms or kitchen) 

How many live there? 

Do you have any complaints about the premises? 
(If yes, explain on back of page). 

2. Do you have a lease? □ yes □ no. If the 

answer is "no", do not answer Questions 2, 3 
and 10. 

Is your lease written? □ yes □ no 

Did you get a copy? □ yes □ no 

Did you read the lease before signing it? □ yes □ no 

Did you understand it? □ yes □ no 

Did anyone explain it to you? □ yes □ no 

If yes, who? 

Have you ever had any trouble with a lease? □ yes □ no 

If yes, explain what the trouble was and what the 
final result was. 



3. If you have ever left your apartment before your 
lease expired, explain why and what was the 
final result? 



4. Have you ever tried to sublet? □ yes □ no 

If your answer is "yes", have you ever had any 

problems with your landlord in doing so? □ yes □ no 

If "yes", did you have to pay a higher rent? □ yes □ no 

If your answer is "yes" to any of the above, 
explain what happened and why. 



[74] 



75 

5. Has your landlord ever entered your apartment 

without your permission? □ yes □ no 

Taken your furniture? □ yes □ no 

Locked you out of your apartment without your 

permission? D yes □ no 

If your answer has been "yes", to any of the above 
questions, explain what happened in each case 
and why. 



6. Have you ever been evicted from your apartment? G yes □ no 
If your answer is "yes", explain why. 

7. Was notice ever given to you? □ yes □ no 

If your answer is "yes ", how long before you were 
asked to leave? 

Was the notice written? □ yes □ no 

If notice was given to you, explain what happened 
and why. 

8. Has the bailiff ever been sent to your apartment? □ yes □ no 
By whom? 

If the answer is "yes", explain why. 



9. Have you ever made any repairs to your apart- 
ment? □ yes □ no 

If your answer is "y es "» what were they? 



Who paid for them and why? 
Explain. 



10. Was there a clause in your lease requiring you to 

make repairs? □ yes □ no 

11. Have you ever had to pay for damages done to 

your apartment? □ yes □ no 

If your answer is "yes", what was the damage and 
do you feel that you should have had to pay? 
Explain. 



76 

12. Does your apartment need fixing in any way? □ yes □ no 
If your answer is "yes", what needs fixing? .... 

Why has it not been fixed? Explain. 



13. Have you ever had any other complaints to make 
about your present premises? List them, 
describe what action you took and what the 
final result was. 



14. Did your landlord or building superintendent ever 
reduce or stop any of the apartment services? 
(e.g. water □, elevator □, heat □. others □ ). 
Explain. 



15. Did your landlord ever place restrictions on you 
before you moved into your apartment, for 
example, restrictions on: 

(1) who you could buy your milk or newspapers 

or other services from? □ yes □ no 

(2) times of the day when you were allowed guests? □ yes □ no 

(3) noise? Q yes □ no 

(4) children? □ yes □ no 

(5) others? List. 

or were such restrictions ever placed on you after 

you moved into your apartment? □ yes □ no 

If your answer is "yes", list which ones. 



If your answer to any of the above is "yes", explain 
each, telling what the final result was in each 
case. 



77 

16. Do you have young children? □ yes □ no 

Have you ever been refused rental because of 

having young children? □ yes □ no 

Did you ever have to pay a higher rent because of 

having young children? Q yes □ no 

If you have had other trouble renting because of 
having young children, explain. 



17. Did you ever have to pay a safety deposit before 

entering an apartment? □ yes □ no 

How much? 

Were you told that it would be given back? □ yes □ no 

If your answer is "yes", when was it to be given 
back? 

How much of it was given back? □ all of it, 
□ part of it, □ none of it. 

When was it given back? 

If you have ever had any other trouble with 
deposits, explain. 



18. Have you ever had to pay the entire amount due 

under the lease before the lease came to an end? □ yes □ no 

If the answer is "yes", explain why. 



19. Did your landlord ever raise your rent after you 

signed the lease without giving you a new lease? □ yes □ no 

After you moved in? □ yes □ no 

If the answer is "yes", explain why. 



20. If you have ever been evicted from your apart- 
ment, did you have to keep paying rent? □ yes □ no 

If the answer is "yes", explain why. 



21. How do you pay rent? □ weekly, □ monthly, 
□ yearly. 



78 



22. Did you ever have to pay rent in advance in addi- 
tion to a safety deposit? 

If the answer is "y es "» explain why. 



□ yes □ no 



23. Did your landlord □ or building superintendent □, 
or someone else ever fine you (make you pay 
more than usual rent for any reason?) □ yes □ no 

If the answer is "y es "» explain why. 



24. Did your landlord □ or building superintendent □ 
ever charge you for doing anything, such as for 
repairs or any other service? 

If the answer is "y es "» what did he charge you for? 
Explain. 



□ yes □ no 



25. Do you have difficulty in understanding your 
lease? 

Do you think there should be a standard form of 
lease approved by the government which has to 
be used by everyone? 

Do you have any suggestions as to how the under- 
standing of leases can be made simpler? 
Explain. 



□ yes O no 



26. Are there any complaints that you have had about 
your landlord, your apartment, or about any- 
thing concerned with these? If there are, 
please list the complaints briefly and give details 
of what happened from start to finish. 



LAxNDLORD STUDY APPENDIX 2 

PLEASE RETURN WITHIN 7 DAYS 

Instructions 
Use a tick [V] where you see a bracket to indicate the correct answer. 

When you are asked to explain an answer, please indicate briefly all 
details which you think are important. 

Additional notes and comments are welcome. Use the space provided. 

1. Please indicate the number of apartment units 

you own 

2. In your opinion, are tenants generally □ careful 

□ indifferent 



□ destructive 



towards the upkeep and maintenance of their 
rented premises? 



3. Do you feel that most of the damage done to 

your apartment is caused by □ tenants 

□ children of 

tenants 

□ outsiders 

□ children of 

outsiders 

4. Do you feel that increased police protection 

would reduce the damage done to your apart- 
ment house? □ yes 

□ no 

5. Are you satisfied with the standard of police 

protection you have been receiving? □ yes 

□ no 

6. (a) Do you rent to families with young 

children? □ yes 



□ no 



(b) What percentage of your total units do you 
make available to families with young 
children? 

179] 



80 



(c) If you do not rent 50% of your total num- 
ber of units to families with young children, 
please explain why. 

(d) If your answer to question 6a is yes, please 
indicate whether you will continue your 
policy. □ yes 

□ no 



7. (a) Do you regard safety deposits as □ not important 

□ convenient 

to the successful operation of your apart- □ vital 
ment rental business? 

(b) Do you regard the payment of interest on 

safety deposits as □ necessary 

□ fair 

□ unreasonable 

(c) Would you prefer a government controlled 
body arbitrating disputes between land- 
lord and tenant to the present system of 

safety deposits? □ yes 

□ no 

(d) If your answer is no, please explain why. 

8. (a) Do you favour the retention of distress as a 

remedy against delinquent tenants? □ yes 

□ no 

(b) Do you resort to the remedy of distress □ often 

□ seldom 

□ never 

9. (a) Do you provide a lease for your tenants? □ yes 

D no 

□ sometimes 

If your answer to question 9 is no, please 
omit questions 9b, 9c, 9d, and 9e. 



81 

(b) In your opinion, is your present lease fair 

to the tenants? □ yes 

□ no 

(c) In your opinion, does your present lease 
offer enough protection against destructive 

or undesirable tenants? □ yes 

□ no 

(d) Do you charge a premium for providing a 

lease? □ yes 

□ no 

(e) Do you provide a copy of the lease for your 
tenants? Q yes 

□ no 

10. (a) Do you favour a compulsory government 

approved lease? □ yes 



□ no 



(b) If your answer is no, please explain why. 



11. (a) In your opinion, are the returns on your 

investment in apartments built before 1960 □ completely 

insufficient 

□ sufficient 

□ good 

□ very good 

(b) In your opinion, are the returns on your 
investment in apartments built from 1960 

to 1965 □ completely 

insufficient 

□ sufficient 

□ good 

□ very good 

(c) In your opinion, are the returns on your 
investment in apartments built from 1965 

to 1968 □ completely 

insufficient 

□ sufficient 

□ good 

□ very good 



82 



12. (a) Do you feel that the general complaint of 

high rents by tenants is justified? □ yes 



(b) Please explain your answer. 



□ no 



13. (a) Do you levy an extra charge if a tenant 

desires to sublet his apartment? □ yes 



(b) If your answer is yes, please indicate the 
amount you normally charge. 



(d) If you do, please indicate which one. 



□ no 



(c) Do you belong to an apartment developers 

or landlord association? □ yes 



□ no 



14. (a) Do you impose any limitations as to the 
number of tradesmen admitted to your 
apartment. — e.g. milk delivery from one 
dairy only? □ yes 



(b) If your answer is yes, please indicate your 
reasons. 



□ no 



15. Do you regard rent review by a government 
controlled body as 



16. Are there any other complaints that you have 
about your tenants, their children, guests, out- 
siders, or the present state of the law of Land- 
lord and Tenant? 



□ completely 

unacceptable 

□ acceptable 

only when 
applied to 
landlords 
with a high 
return on 
their invest- 
ment 

□ necessary 

□ in the best in- 

terest of 
landlord and 
tenant 




ONTARIO LAW REFORM COMMISSION 



APPENDIX 3 



COMMISSIONERS 

H.ALLAN LEAL.Q C..LL. M..LL.D. 

CHAIRMAN 

HONOURABLE JAMES C.McRUER, LL.n. 
HONOURABLE RICHARD A. BELL, P. C..C 
W. GIBSON GRAY, O.C. 
WILLIAM R.POOLE, O.C. 



COUNSEL 

RICHARD GOSSE, LL B ,D PHIL. 

SECRETARY 

MISS A. F CHUTE 

PARLIAMENT BUILDINGS 
TORONTO 2 



Re: Research study on 

Landlord and Tenant Law 



/J^tv ^i/KjJL 



uu* 



The Ontario Law Reform Commission has undertaken a study of 
the law governing landlord and tenant relations with a view to making 
recommendations for the reform of that law where desirable and necessary. 

The enclosed questionnaire is directed towards finding out the 
nature and frequency of the problems existing in this area. We request 
your co-operation in completing the questionnaire. It is important that 
you answer each question and return the form as soon as possible in the 
envelope provided. 

Please feel free to give any additional information which you 
judge will be helpful to our enquiry. The identity of those replying 
to the questionnaire will not be disclosed. 

If you have any questions concerning the completion of the form, 
please phone 365-4761 and request to speak to Mr. Boeckle or Mr. Campbell. 

Yours very sincerely, 



0^Uv /uuU^ 



H. Allan Leal 
Chairman 



83 



APPENDIX 4 






' I ;J '3ffi 




ONTARIO LAW REFORM COMMISSION 



COMMISSIONERS 

H.ALLAN LEAL,Q.C,LL.M.,LL.D. 

CHAIRMAN 

HONOURABLE JAMES C. McRUER, LL.D. 
HONOURABLE RICHARD A. BELL, P. C.,Q.C. 
W.GIBSON GRAY, O.C. 
WILLIAM R.POOLE, O.C. 



COUNSEL 

RICHARD GOSSE,LL.B.,D.PHIL. 

SECRETARY 

MISS A.F. CHUTE 

PARLIAMENT BUILDINGS 
TORONTO 2 



Re: Research study on 

Landlord and Tenant Lav; 



Dear Sir: 

The Ontario Law Reform Commission has undertaken a study of 
the law governing landlord and tenant relations with a view to making 
recommendations for the reform of that law where desirable and necessary. 

The enclosed questionnaire is directed towards finding out the 
nature and frequency of the problems landlords are faced with in the 
Metropolitan Toronto area and your reaction to suggested changes in the 
field of Landlord and Tenant Law. We request your co-operation in 
completing the questionnaire. It is important that you answer each 
question and return the form as soon as possible in the envelope provided. 

Please feel free to give any additional information which you 
iudge will be helpful to our enquiry. The identity of those replying to 
the questionnaire will not be disclosed. 

If you have anv questions concerning the completion of the form. 
please phone 365-4761 and request to sneak to Mr. Boeckle or Mr. Campbell. 



Yours very sincerely, 



H. Allan Leal 
Cha irman 






84 



APPENDIX 5 



""£3 iTiT 



=r> 



!UL_E_tJ_E_ 



H'i-,l^C„ ! ;l>...^..l. 




iafct. 



URBAN DEVELOPMENT INSTITUTE 



ONTARIO DIVISION 



SUITE 24, OFFICE MEZZANINE, KING EDWARD SHERATON HOTEL 

TORONTO 1, ONTARIO, CANADA 

TELEPHONE 363-0155 



July llt-h, '196a 



TO ALL UDI .APARTMENT DEVELOPER MEMBERS: 



This is to acknowledge that ue have been contacted 
by the Ontario Lau Reform Commission, have examined their 
proposed questionnaire, and give full approval to their pro- 
ject. 

It is urged that all members complete this question- 
naire fully and return it as soon as possible in the enclosed 

•_IOJ. I — CJUUX OO 0(-U CIIULIUUC i 



Yours sincerely, 

URBAN DEVELOPMENT INSTITUTE, 



■£.+£ 




ue 



Lloyd F. Berryman, 
Executive Director 



85 




I 5 I 7 I 9 I II I 11 1 15 L 



APPENDIX B 
By-Law No. 100-64 

A BY-LAW TO ESTABLISH A MINIMUM STANDARD 
FOR EXISTING HOUSING IN THE CITY OF OTTAWA 

The Council of the Corporation of the City of Ottawa 
enacts as follows: 



1. In this by-law, 

(a) "Accessory building" means a detached subordinate 
building on the same lot as the main building. 

(b) "Bathroom" means a room containing a bathtub or 
shower with or without a water closet and basin. 

(c) "Chief of the Fire Department" means Chief of the 
Fire Department of the Corporation of the City of 
Ottawa. 

(d) "Corporation" means The Corporation of the City 
of Ottawa. 

(e) "Dwelling" means a building or structure or part of a 
building or structure occupied or capable of being 
occupied in whole or in part for the purposes of 
human habitation and includes the land and prem- 
ises appurtenant thereto and all outbuildings, fences 
or erections thereon or therein. 

(/) "Dwelling Unit" means one or more rooms con- 
nected together as a separate unit in the same 
structure and constituting an independent house- 
keeping unit for residential occupancy by humans 
for living and sleeping purposes. 

(g) "Fire Resistance Rating" means time in hours or 
parts thereof that a material construction or assembly 
will withstand fire exposure, as determined in a fire 
test made in conformity with generally accepted 
standards, or as determined by extension or inter- 
pretation of information derived therefrom. 

(h) "Habitable room" means any room in a dwelling 
unit used or intended to be used for living, sleeping, 
cooking or eating purposes. 

(i) "Inspectors" means all inspectors set out in sub- 
section a of section 37. 

[87] 



Definitions 



88 

(j) "Medical Officer of Health" means the Ottawa- 
Carleton Regional Medical Officer of Health. 

(k) "Multiple Dwelling" means a building containing 
three or more dwelling units. 

(/) "Non-habitable Room" means any room in a 
dwelling or dwelling unit other than a habitable 
room, and includes bathroom, toilet room, laundry, 
pantry, lobby, communicating corridor, stairway, 
closet, basement, boiler room or other space for 
service and maintenance of the dwelling for public 
use, and for access to, and vertical travel between 
storeys. 

(m) "Owner" includes the person for the time being 
managing or receiving the rent of or paying the 
municipal taxes on the land or premises in connection 
with which the word is used whether on his own ac- 
count or as agent or trustee of any other person or 
who would so receive the rent if such land and 
premises were let. 

(n) "Rooming House" means a dwelling where there 
are eight or more persons who obtain lodging with or 
without meals. 

(0) "Sewerage system" means the city sanitary sewerage 
system or a private sewage disposal system ap- 
proved by the Medical Officer of Health. 

(p) "Standards" means the standards set out in Parts 1 
and 2 of this by-law. 

(q) "Standards Officer" means a Standards Officer 
appointed by the Council of the Corporation to 
administer and enforce this by-law. 

(r) "Toilet Room" means a room containing a water 
closet and wash basin. 

(s) "Yard" means the land other than publicly owned 
land around the appurtenant to the whole or any 
part of a dwelling and used or intended to be used, 
or capable of being used in connection with the 
dwelling. 

Part 1 — Maintenance of Yards and Accessory Building 



Yard to be 9 VAi?n 

Kept clean L ' x AKU 



(a) A yard shall be kept clean and free from rubbish or 
other debris and from objects or conditions that 
might create a health, fire or accident hazard. 



89 

(b) Heavy undergrowth and noxious plants, such as 
ragweed, poison ivy, poison oak, and poison sumac 
shall be eliminated from the yard. 

(c) A yard shall be cultivated or protected by suitable 
ground cover which prevents the erosion of the soil. 

(d) Any vehicle, including a trailer, which is in a wrecked, 
discarded, dismantled, inoperative or abandoned 
condition shall not be parked, stored or left in a yard. 

(e) Areas used for vehicular traffic and parking shall be 
paved with bituminous or concrete surfacing or 
crushed stone of no more than %" diameter stone 
and shall be kept in good repair. 

3. (a) Sewage or organic waste shall be discharged into a f?i^fifage nd 

sewerage system. 

(b) Inadequately treated sewage shall not be discharged 
on to the surface of the ground whether into a 
natural or artificial drainage system or otherwise. 

(c) No roof drainage shall be discharged on sidewalks, 
stairs or neighbouring property. 

(d) Storm water shall be drained from the yard so as to 
prevent recurrent ponding or the entrance of water 
into a basement or cellar. 

4. There shall be a surfaced walk leading from the en- Walks 
trances of every dwelling to the street. 

5. Steps, walks, driveways, parking spaces, and similar passage 
areas of a yard shall be maintained so as to afford safe passage 
under normal use and weather conditions. 

6. Fences around or on a dwelling shall be kept in good Fences 
repair, free from accident hazards and protected by paint, 
preservative or other weather-resistant material. 

7. An accessory building shall be kept in good repair and Accessory 
free from health, fire and accident hazards. 

8. (a) Every dwelling and every dwelling unit within thegfjbage 

dwelling shall be provided with sufficient receptacles 
to contain all garbage, rubbish, and ashes. 

(b) Receptacles shall be, 

(i) made of water-tight construction, 



90 

(ii) provided with a tight-fitting cover, and 

(iii) maintained in a clean state. 

(c) Garbage, rubbish, and ashes shall be promptly stored 
in receptacles and made available for removal in 
accordance with By-law Number 407-62 of the 
Corporation and all amendments thereto. 

Part 2 — Maintenance of Dwellings and Dwelling Units 

p est - f n ^' ( a ) ^ dwelling shall be kept free of rodents, vermin, and 

insects at all times and methods used for exterminat- 
ing rodents or insects or both shall be in accordance 
with the provisions of The Pesticides Act, R.S.O. 
1960, Chapter 293, and all regulations passed 
pursuant thereto. 

(b) Basement or cellar windows used or required for 
ventilation, and any other opening in a basement or 
cellar, including a floor drain, that might permit the 
entry of rodents, shall be screened with wire mesh, 
metal grill or other durable material which will 
effectively exclude rodents. 

Floors ent 10. (a) Basement, cellar or crawl spaces which are not 

served by a stairway leading from the dwelling or 
from outside the dwelling may have a dirt floor 
provided it is covered with a moisture proof covering. 

(b) Basements or cellars which are served by a stairway 
leading from the dwelling or from outside the dwelling 
shall have a concrete floor, and where required, with 
a floor drain located at the lowest point of the said 
floor and connected to a sewerage system. 

Foundations n.( a ) The foundation walls and the basement, cellar or 

crawl space floor shall be maintained in good repair 
and structurally sound and where necessary shall be 
so maintained by shoring of the walls, installing of 
subsoil drains at the footing, grouting masonry 
cracks, parging and waterproofing the walls or floors. 

(b) Every dwelling unless of the slab-on-grade type shall 
be supported by foundation walls or piers which 
extend below the frost line or to solid rock and all 
footings, foundation walls, piers, slabs-on-grade shall 
be of masonry or other suitable material. 

(c) Subsection b does not apply to accessory buildings. 



91 

12. (a) Every part of a dwelling shall be maintained in a §*u U n c ( } urally 
structurally sound condition so as to be capable of 
sustaining safely its own weight and any load to 
which it may be subject. Materials which have 
been damaged or show evidence of rot or other deteri- 
oration shall be repaired or replaced. 

(b) The exterior walls, roofs and other parts of the 
dwelling shall be free from loose, rotted, warped and 
broken materials and objects. Such materials and 
objects shall be removed, repaired or replaced. 

(c) All exterior surfaces shall be of materials which 
provide adequate protection from the weather. 

13. The exterior walls and their components shall be^ x ^ lor 
maintained so as to prevent their deterioration due to weather 

and insects, and shall be so maintained by the painting, re- 
storing or repairing of the walls, coping or flashing, by the 
waterproofing of joints and of the walls themselves, by the 
installing or repairing of termite shields and by the treating 
of the soil with poison. 

14. A roof including the facia board, soffit and cornice Roof 
shall be maintained in a watertight condition so as to prevent 
leakage of water into the dwelling. 

15. The interior floors, ceilings and walls shall be kept free Dampness 
from dampness arising from the entrance of moisture through 

an exterior wall or a roof, or through a cellar, basement or 
crawl space floor. 

16. (a) Windows, exterior doors, and basement or cellar windows' 1 

hatchways shall be installed and maintained in good 
repair so as to prevent the entrance of wind or rain 
into the dwelling. 

(b) Rotted or damaged doors, door frames, window 
frames, sashes and casings weather-strippings, broken 
glass, and defective door and window hardware shall 
be repaired or replaced. 

(c) All entrance doors in a dwelling unit shall have 
hardware so as to be capable of being locked from 
both inside and outside the dwelling unit. 

(d) All windows intended to be opened shall have hard- 
ware so as to be capable of being locked or otherwise 
secured from inside the dwelling unit. 

17. An inside or outside stair and any porch appurtenant | t ( a , 1 c r ^ e and 
to it shall be maintained so as to be free of holes, cracks and 

other defects which may constitute possible accident hazards 



92 

and all treads or risers that show excessive wear or are broken, 
warped or loose and all supporting structural members that 
are rotted or deteriorated shall be repaired or replaced. 

Egress 18. (a) Every dwelling unit shall have a separate access so 

as to provide a safe continuous and unobstructed 
exit from the interior of the building to the exterior 
at street or grade level. 

(b) Every dwelling unit located on other than the 
ground floor level shall have a secondary means of 
egress approved by the Chief of the Fire Department. 

(c) All exits, halls, stairways and porches shall afford 
safe passage at all times. 

and UStrades 19. (a) A balustrade shall be installed and maintained in 
Handrails good repair on the open side of a balcony, porch, 

landing, stairwell and stairway with a rise of 5 feet 
or more, except for basement stairways. 

(b) A handrail shall be installed and maintained in good 
repair in all stairways with three or more risers. 

CeUinJs nd 20. (a) Every wall and ceiling cladding shall be maintained 

so as to be easily cleaned and shall be free of holes, 
cracks, loose coverings or other defects which would 
permit flame or excessive heat to enter the concealed 
space. 

(b) Where dwelling units are separated vertically, the 
dividing walls shall be continued in the basement 
from the top of the footings to the underside of the 
finished first floor surface, and in the attic from the 
top of the finished ceiling surface to the underside 
of the finished roof surface and such walls shall 
consist of two half-inch layers of gypsum wallboard 
or material of equivalent fire resistance rating and all 
cracks or openings shall be tightly sealed with caulk- 
ing of mineral wool or similar noncombustible 
material. 

Floors 21. (a) Every floor shall be smooth and level and be main- 

tained so as to be free of all loose, warped, protruding, 
broken or rotted boards that might cause an accident 
or allow dirt to accumulate and all defective floor 
boards shall be repaired. 

(b) Where floor boards have been covered with lino- 
leum or some other covering that has become worn 
or torn so that it retains dirt or might cause an 
accident, the linoleum or other covering shall be 
repaired, replaced or removed. 



93 

(c) Every bathroom, toilet room, and shower room shall 
have a floor of water repellent construction with a 
water resistant base moulding, except at the door 
opening, at least two inches in height. 

22. Every floor, wall, ceiling, fixture and appliance in a Cleanhness 
dwelling shall be maintained in a clean and sanitary condition 

and the dwelling shall be kept free from rubbish or other 
debris. 

23. Every dwelling shall be provided with an adequate Watei 
supply of potable running water from a source approved by 

the Medical Officer of Health. Every sink, wash basin, bath- 
tub, or shower required by this by-law shall have an adequate 
supply of hot and cold running water. All hot water shall be 
supplied at a minimum temperature of 120° Fahrenheit. 
Adequate running water shall be supplied to every water 
closet. 

24. All dwellings shall have the waste pipes connected toly^em 
the sewerage system or a system approved by the Medical 
Officer of Health. 

25. All plumbing, drain pipes, water pipes and plumbing plun,h,llg 
fixtures in every dwelling and every connecting line to the 
sewerage system shall be maintained in good working order 

and free from leaks and defects and all water pipes and appur- 
tenances thereto shall be protected from freezing. All waste 
pipes shall be connected to the sewerage system through water 
seal traps. 

26. (a) Every dwelling (except otherwise provided in sub- Kitchen and 

section b) shall contain plumbing fixtures consisting fifties 1 
of at least, 

(i) a water closet, 

(ii) a kitchen sink, 
(iii) a wash basin, 
(iv) a bathtub or shower. 

(b) The occupants of not more than two dwelling units 
may share a water closet, wash basin and bathtub 
or shower, provided, 

(i) not more than a total of eight persons occupy 
both dwelling units, 

(ii) access to the fixtures can be gained without 
going through rooms of another dwelling unit 
or outside the dwelling. 



94 

(c) In a rooming house there shall be a water closet, 
wash basin and bathtub or shower for every eight 
persons or portion thereof and the facilities shall be 
located on the same storey as, or on the next storey 
up or down from the storey on which the room or 
dwelling unit is located. 

and h Toii?t 27. (a) All bathrooms and toilet rooms shall be located 

Room within and accessible from within the dwelling. 

(b) All bathrooms and toilet rooms shall be fully en- 
closed and with a door capable of being locked so as 
to provide privacy for the occupant. 

(c) A wash basin shall be located in the same room as 
the water closet, and where this is not possible, a wash 
basin shall be located in a room conveniently ad- 
jacent to the room containing the water closet. 

Kitchens 28. (a) The splash back and counter top around the kitchen 

sink shall have an impervious surface. 

(b) Every kitchen shall have provided an adequate and 
approved gas or electrical supply. 

(c) All combustible materials immediately underneath 
or within one foot of any cooking apparatus shall be 
fire retarded or covered with fire resistive material, 
except where such apparatus is installed in accor- 
dance with the requirements. There shall always 
be at least twenty-four inches clear space above any 
exposed cooking surface of such apparatus. 

Heating 29. (a) Every dwelling shall be provided with a heating 

system capable of maintaining a room temperature 
of 70 degrees Fahrenheit at five feet above floor level 
and three feet from exterior walls in all habitable 
rooms, bathrooms and toilet rooms. 

(b) The heating system required by subsection a shall 
be maintained in good working condition so as to be 
capable of heating the dwelling safely to the required 
standard. 

(c) No room heater shall be placed so as to cause a fire 
hazard to walls, curtains, and furniture, nor to im- 
pede the free movement of persons within the room 
where the heater is located. 

(d) Rigid connections shall be kept between all heating, 
including cooking, equipment burning any fuel and a 
chimney or flue. 



95 

(e) Rigid connections shall be kept between such equip- 
ment burning gaseous fuel and the supply line, 
except that an approved flexible connection not 
more than 24 inches long, may be installed to permit 
cleaning behind a stove used for cooking. 

(/) A fuel burning central heating system in a multiple 
dwelling shall be located in a separate room having 
walls, ceiling and doors with a fire resistance rating 
of not less than one hour. 

(g) A space that contains a heating system shall have 
natural or mechanical means of supplying the 
required combustion air approved by the Chief of the 
Fire Department. 

(h) Where a heating system or part of it or any auxiliary 
heating system burns solid or liquid fuel a place or 
receptacle for the storage of the fuel shall be provided 
and maintained in a convenient location and properly 
constructed so as to be free from fire or accident 
hazards. 

(i) Fuel burning equipment shall be properly vented 
to a duct leading to an adequate chimney or a vent 
flue approved by the Chief of the Fire Department. 

(j) Every chimney, smoke pipe and flue shall be main- 
tained so as to prevent gases from leaking into the 
dwelling. 

(k) All flues shall be kept clear of obstructions, all open 
joints shall be sealed and all broken and loose 
masonry shall be repaired. 

(/) Chimneys, flues, and gas vents shall be installed and 
maintained so that under conditions of use, the 
temperature of any combustible material adjacent 
thereto, insulated therefrom, or in contact therewith, 
does not exceed a temperature of 160° F. 

(m) Fireplaces and similar construction used or intended 
to be used for burning fuels in open fires shall be 
connected to approved chimneys and shall be in- 
stalled so that nearby or adjacent combustible 
material and structural members shall not be heated 
so as to exceed a temperature of 160° F. 

30. (a) Every dwelling shall be wired for electricity and ge?vice° al 
lighting equipment shall be installed throughout to 
provide illumination. 



96 

(b) Every habitable room, except for a kitchen, shall 
contain at least one electrical duplex convenience 
outlet where the floor area does not exceed 120 square 
feet. For each additional 100 square feet of floor 
area, one additional outlet shall be provided. 

(c) Every kitchen shall have at least two electrical 
duplex convenience outlets which shall be on sepa- 
rate circuits. 

(d) Fuses or overload devices shall not exceed limits 
set by the Hydro Electric Power Commission of 
Ontario. 

(e) An electrical light fixture shall be installed in every 
bathroom, toilet room, laundry room, furnace room, 
kitchen and hall. 

(/) Extension cords which are not part of a fixture shall 
not be permitted on a semi-permanent or permanent 
basis. 

(g) The electrical wiring and all electrical fixtures located 
or used in a dwelling shall be installed and main- 
tained in good working order and in conformity 
with the regulations of The Hydro Electric Power 
Commission of Ontario. 

Llght 31. (a) Every habitable room except for a kitchen shall 

have a window or windows, skylights or translucent 
panels that face directly to the outside at least six 
inches above the adjoining finished grade with an 
unobstructed light transmitting area of not less 
than ten per cent of the floor area of such rooms. 
The glass area of a sash door may be considered as a 
portion of the required window area. 

(b) Whenever walls or other portions of structures are 
located on the outside less than three feet from a 
window, such a window shall not be deemed to face 
directly to the outside and shall not be included as 
contributing to the required minimum window area 
of the room. 

(c) Whenever window wells are used, only that part 
of the window which is above a 45° line projected 
downwards from the top of the window well shall be 
used in calculating the required light transmitting 
area. 

(d) All public halls and stairs in multiple dwellings shall 
be lighted at all times by the owner. 



97 

32. (a) Every habitable room shall have an opening or ventilation 

openings for natural ventilation and such opening or 
openings shall have a minimum aggregate un- 
obstructed free flow area of three square feet, and 
shall be located in the exterior walls or through 
openable parts of skylights. 

(b) An opening for natural ventilation may be omitted 
from a kitchen, living-room or living-dining room if 
mechanical ventilation is provided, which changes the 
air once each hour. 

(c) Every bathroom or room containing a water closet, 
shall be provided with an opening or openings for 
natural ventilation located in an exterior wall or 
through openable parts of skylights and all such 
openings shall have a minimum aggregate un- 
obstructed free flow area of one square foot. 

(d) An opening for natural ventilation may be omitted 
from a bathroom or toilet room where a system of 
mechanical ventilation has been provided, such as 
an electric fan with a duct leading to outside the 
dwelling, and which operates whenever the light is 
turned on in the bathroom or toilet room. 

(e) All systems of mechanical ventilation or air condi- 
tioning shall be maintained in good working order. 

33. Every basement and unheated crawl space shall be or a un^ e eated 
adequately vented to the outside air by means of screened crawl space 
windows which can be opened or by louvers with screened 
openings, the area of which shall not be less than one per cent 

of the floor area. 

34. (a) No person shall use or permit the use of a non- standards 7 
habitable room in a dwelling for a habitable room purpose. 

(b) The maximum number of occupants in a dwelling 
unit shall not exceed one person per 100 square feet 
of habitable room floor area. 

(c) For the purpose of computing the maximum number 
of occupants in subsection b any child under one year 
of age shall not be counted, and any child of more 
than one year of age but under twelve years of age 
shall be deemed one-half person. 

(d) For the purpose of computing the habitable room 
floor space in subsection b the floor area under a 
ceiling which is less than seven feet high shall not 
be counted. 



98 



(e) No room in any dwelling shall be used for sleeping 
purposes unless there is a minimum width of six 
feet and a minimum floor area of 60 square feet. 
At least one-half of the required minimum floor area 
shall have a ceiling height of seven feet, and no floor 
area with a ceiling height of less than five feet shall 
be counted. 



of C Basement 35. No basement or cellar space shall be used as a habitable 
Spaces room unless, in addition to section 34, it meets the following 

requirements: 

(a) Floor and walls are constructed so as to be impervious 
to leakage of underground and surface run-off water 
and treated against dampness. 

(b) The habitable room meets all requirements for light, 
ventilation, and ceiling height set out in this by-law. 

(c) Each habitable room shall be separated from the 
heating equipment, or other equally hazardous 
equipment by a partition having a fire resistance 
rating of at least one hour. 

(d) Access to each habitable room shall be gained without 
passage through a furnace or boiler room. 



Responsi- 
bilities of 
Tenant 



36. Subject to the provisions of any lease occupants of 
dwellings shall : 

(a) Limit occupancy of that part of the premises which 
he occupies or controls to the maximum permitted 
by this by-law. 

(b) Maintain that part of the premises which he occupies 
or controls in a clean, sanitary and safe condition. 

(c) Maintain all plumbing, cooking and refrigeration 
fixtures and appliances as well as other building 
equipment and storage facilities in that part of the 
premises which he occupies or controls in a clean and 
sanitary condition, and provide reasonable care in 
the operation and use thereof. 

(d) Keep exits from his dwelling clean and unen- 
cumbered. 

(e) Dispose of garbage and refuse into provided facilities 
in a clean and sanitary manner, in accordance with 
the provisions of by-law 407-62 of the Corporation. 

(/) Exterminate insects, rodents or other pests within 
his dwelling. 



99 

(g) Maintain yards in a clean, sanitary and safe con- 
dition and free from infestation insofar as said 
occupant occupies or controls said yards and any 
parts thereof. 

(h) Keep his domestic animals and pets in an appropri- 
ate manner and under control. 

37. For the purpose of the administration and enforcement p n ^p|ctors d 
of this by-law, 

(a) The Corporation may from time to time appoint 
Standards Officers and inspectors for the purpose of 
administering and enforcing this by-law. 

(b) Each Standards Officer is hereby appointed as a 
tribunal. 

38. All inspectors and the Standards Officers shall have En^er and 
the same right to enter, inspect and examine any dwelling or Ins pect 
premises as an inspector under section 84 of The Public 
Health Act, R.S.O. 1960, Chapter 321, and the provisions of 
sections 84, 114, 115, subsections 2 and 3 of section 116 and 

117 of the said Act shall, mutatis mutandis, apply. 

39. (a) When a Standards Officer has reason to believe thatg£*j!j® ° f 

any dwelling is not in conformity with the standards, a 
Standards Officer shall send to the owner at his 
last known address by prepaid registered mail a 
notice specifying wherein the dwelling fails to con- 
form to the standards, stating the date, time and 
place of a hearing to be held by a Standards Officer 
to determine what action must be taken with respect 
to the dwelling and informing the owner that he or 
his representative may appear at the said hearing 
and make such representations and lead such evi- 
dence as he so desires and that in the event that he 
does not appear at the said hearing an order may be 
made by a Standards Officer in his absence. 

(b) The said Notice may also contain an outline of what 
action may be taken to make the dwelling conform 
to the standards and any other information that a 
Standards Officer deems necessary. 

40. The hearing referred to in subsection a of section 39 Hiring 
shall take place not sooner than seven days and not later than 
thirty days after the mailing of the said Notice to the owner. 

41. Within a reasonable time after the said hearing a° rder8 
Standards Officer may make an Order or Orders, 



100 



(a) requiring the owner or occupant to make the dwelling 
conform to the standards within a period of time 
not to exceed ninety days; 

(b) prohibiting the use of the dwelling; 

(c) directing the placarding of the dwelling as provided 
in section 45; 

(d) requiring the owner to demolish the dwelling within 
a period of time not to exceed ninety days; and 

(e) causing the registration of a caution on the title to 
the property as provided in section 46. 



Responsi- 
bilities of 
Lessee 



42. (a) Where an Order of a Standards Officer is directed 
to an owner under the provisions of subsections a or 
d of section 41 and the dwelling affected is used or 
occupied by a person or persons holding such 
dwelling under the provisions of a lease, oral or 
written, the person or persons in the use or occu- 
pancy of the affected dwelling shall afford entry to 
the owner or his agent at all reasonable times so 
that the owner or his agent may carry out the 
required repairs or demolition. 



(b) Where an Order of a Standards Officer is directed 
to an owner under the provisions of subsections a 
or d of section 41 and the dwelling affected is used or 
occupied by a person or persons holding such 
dwelling under the provisions of a lease, oral or 
written, a Standards Officer may order the said 
person or persons to vacate the affected dwelling 
within a period of time not to exceed ninety days. 



Right of 
Owner to 

Enter 



(c) The occupant of any dwelling to the extent that he 
is made responsible by the lease or agreement under 
which he occupies the dwelling shall be required to 
repair and maintain the dwelling in accordance with 
the standards or demolish the whole or any part of 
the dwelling. 

Every owner shall have the right to enter and repair any 
dwelling pursuant to an Order, notwithstanding anything 
contained in or resulting from a lease or agreement pursuant 
to which possession of the dwelling has been given to another 
person. 



Extensions 



43. A Standards Officer may also make an Order extending 
the time for compliance with any Order given by him pur- 
suant to the provisions of subsections a or d of section 41 



101 

provided there is evidence of intent to comply with any such 
Order and that reasonable conditions exist which prevent 
immediate compliance. 

44. Any Order or Orders made pursuant to section 41 shall oiSor na ° f 
be sent by a Standards Officer by prepaid registered mail 

to the owner at his last known address and where an Order 
is made pursuant to subsection b of section 41 such Order may 
also be sent to the occupant or occupants of the dwelling. 

45. A Standards Officer may cause to be placed in a prom- Placarding 
inent position on the exterior of any dwelling which does not 
conform to the standards a placard in the form set out in 
Schedule "A" to this by-law and no person shall pull down 

or deface any such placard. 

46. (a) Where an Order of a Standards Officer is directed to S^ggStton 11 

an owner under the provisions of subsections a or d 
of section 41 the Order may be registered in the 
proper Registry Office or registered as a Caution in 
the proper Land Titles Office, and, when so regis- 
tered all conveyances, mortgages, leases or other 
dispositions of the land to which the Order applies 
and all interests acquired under any such convey- 
ances, mortgages, leases, or other dispositions shall 
be subject to such Order as confirmed or modified, 
and such Order shall be an encumbrance on the land. 

(b) When the requirements of the Order have been 
satisfied a certificate shall be delivered to any in- 
terested person that the Order has been so satisfied, 
and such certificate may be registered in the same 
manner as the Order and shall operate as a discharge 
thereof. 

47. Where an Order of a Standards Officer is directed to an Jf?"f, n ff of 
owner under the provisions of subsections a or d of section 41. Order 

no person shall sell, mortgage or lease or agree to sell, 
mortgage or lease any dwelling in respect of which such an 
Order has been served without first having furnished any 
proposed purchaser, mortgagee or lessee with a true copy of 
such Order. 

48. Any person who fails to obey an Order of a Standards comply* 
Officer given pursuant to the provisions of this by-law is guilty 

of an offence. 

49. When an owner has failed to repair or demolish all or ^JjSS^or 
part of a building, a Standards Officer may cause the repairs or Demolish 
demolition to be done and the cost of the work shall be added 

to the Collector's Roll of Taxes for the current year and shall 
be collected as taxes. 



102 

Obstruction 50 ^ny p erson w ho obstructs or interferes with any of the 
inspectors or a Standards Officer in the performance of their 
duties under this by-law is guilty of an offence. 

Penalties 51 Any person who contravenes any of the provisions of 

this by-law shall, upon conviction thereof, forfeit and pay a 
penalty of not less than $50.00 and not more than $300.00 
for the first offence, and not less than $150.00 and not more 
than $300.00 for a second or subsequent offence, exclusive of 
costs. 

Enforcement The provisions of this by-law shall be enforceable in the 

as under ^ J . 

The Muni- same manner as a by-law passed under the authority ot 1 he 
cipai Act Municipal Act, R.S.O. 1960, Chapter 249. 



Given under the Corporate Seal of the Corporation of the 
City of Ottawa this day of , 19 



City Clerk Mayor 



APPENDIX C 

Act No. 286 

Public Acts of 1968 

Approved by Governor 

July 1, 1968 

STATE OF MICHIGAN 

74th LEGISLATURE 

REGULAR SESSION OF 1968 

Introduced by Reps. White, Mrs. Elliott, Heinze, Bradley, Vaughn, 
Ziegler, Holmes, Mrs. Ferguson, Del Rio, Hood, Edwards and Brown 

ENROLLED HOUSE BILL No. 3188 

AN ACT to amend Act No. 167 of the Public Acts of 1917, entitled 
"An act to promote the health, safety and welfare of the people by 
regulating the light and ventilation, sanitation, fire protection, main- 
tenance, alteration and improvement of dwellings; to define the classes 
of dwellings affected by the act, to establish administrative requirements 
and to establish remedies and fix penalties for the violation thereof," 
as amended, being sections 125.401 to 125.519 of the Compiled Laws 
of 1948, by adding a new section 2a and a new article 7; and to repeal 
certain acts and parts of acts. 

The People of the State of Michigan enact: 

Section 1. Act No. 167 of the Public Acts of 1917, as amended, 
being sections 125.401 to 125.519 of the Compiled Laws of 1948, is 
amended by adding a new section 2a and a new article 7 to read as follows: 

ARTICLE 1 
GENERAL PROVISIONS 

Sec. 2a. As used in this act: 

"Enforcing agency" means the designated officer or agency charged 
with responsibility for administration and enforcement of this act. 

ARTICLE 7 

ENFORCEMENT 

Sec. 121. Before construction or alteration of a dwelling, or altera- 
tion or conversion of a building for use as a dwelling is commenced and 
before construction or alteration of a building or structure on the same 
lot with a dwelling, the owner, or his agent or architect, shall submit 
to the health officer or other appropriate public official as the mayor 

[1031 



104 

may designate, on forms to be furnished by them, a detailed statement 
in writing, verified by the affidavit of the person making it, of the speci- 
fications for the dwelling or building, and full and complete copies of the 
plans of such work. With the statement there shall be submitted a 
plan of the lot showing the dimensions, the location of the proposed 
building and all other buildings on the lot. The statement shall give 
in full the name and residence, by street and number, of the owner or 
owners of such dwelling or building and the purposes for which such 
dwelling or building will be used. If the construction, alteration or 
conversion is proposed to be made by a person other than the owner of 
the land in fee, the statement shall contain the full name and residence, 
by street and number, not only of the owner of the land but of every person 
interested in the dwelling, either as owner, lessee or in any representative 
capacity. The affidavit shall allege that the specifications and plans 
are true and contain a correct description of the dwelling, building, 
structure, lot and proposed work. The statements and affidavits may 
be made by the owner, his agent or architect, or by the person who 
proposes to make the construction, alteration or conversion or by the 
agent or architect of such person. No one, however, shall be recognized 
as the agent of the owner or of such person unless he files with the health 
officers or such other appropriate public official as the mayor may 
designate, a written instrument signed by the owner or person, designat- 
ing him as such agent. False swearing in a material point in an affidavit 
is perjury. The specifications, plans and statements shall be filed in the 
health department and be public records, but no specifications, plans or 
statements shall be removed from the health department. 

Sec. 122. (1) The health officer or such other appropriate public 
official as the mayor may designate, shall cause such plans and speci- 
fications to be examined. If the plans and specifications conform to 
the provisions of this act, the health officer or such other appropriate 
public official as the mayor may designate, or his duly authorized assist- 
ant, shall approve them and a written certificate to that effect shall be 
issued by him to the person submitting them. The health officer or 
such other appropriate public official as the mayor may designate may 
approve changes in plans and specifications previously approved by him, 
if the plans and specifications when so changed are in conformity with 
law. The construction, alteration or conversion of a dwelling, building 
or structure, or any part thereof, shall not be commenced until the filing 
and approval of the specifications, plans and statements. A permit 
shall not be granted and no plan approved by the department of build- 
ings, where such exists, for the construction or alteration of a dwelling 
or for the alteration or conversion of any building for use as a dwelling 
until there has been filed in the office of the department of buildings a 
certificate of the health officer or such other appropriate public official 
as the mayor may designate, to the effect that the dwelling conforms 
to the provisions of this act. The construction, alteration or conversion 
of a dwelling, building or structure shall be in accordance with the 
approved specifications and plans. 

(2) A permit or approval which may be issued by the health officer 
or such other appropriate public official as the mayor may designate, 
but under which no work has been done above the foundation walls 



105 

within 1 year from the time of the issuance of the permit or approval 
shall expire by limitation. The health officer or such other appropriate 
public official as the mayor may designate or his duly authorized assistant 
may revoke or cancel a permit or approval in case of failure or neglect 
to comply with any provision of this act, or in case any false statement 
or representation is made in specifications, plans or statements submitted 
or filed for such permit or approval. 

Sec. 123. The governing body of a municipality to which this act 
by its terms applies, or the governing body of a municipality which 
adopts the provisions of this act by reference, shall designate a local 
officer or agency which shall administer the provisions of the act, and if 
no such officer or agency is designated then the local governing body shall 
be responsible for administration of the act. Municipalities may provide, 
by agreement, for the joint administration and enforcement of this act 
where such joint enforcement is practicable. 

Sec. 125. (1) A registry of owners and premises shall be maintained 
by the enforcing agency. 

(2) The owners of a multiple dwelling or rooming house containing 
units which will be offered to let, or to hire, for more than 6 months of a 
calendar year, shall register their names and places of residence or usual 
places of business and the location of the premises regulated by this act 
with the enforcing agency. The owners shall register within 60 days 
following the day on which any part of the premises is offered for occu- 
pancy. Owners of multiple dwellings or rooming houses containing 
units which are occupied or offered for occupancy at the time this act 
becomes effective shall register within 90 days after the effective date of 
this Article. 

(3) If the premises are managed or operated by an agent, the agent's 
name and place of business shall be placed with the name of the owner 
in the registry. 

Sec. 126. (1) The enforcing agency shall inspect, on a periodic 
basis, multiple dwellings and rooming houses regulated by this act. 
In no event shall the period between inspections be longer than 2 years. 
All other dwellings regulated by this act may be inspected at reasonable 
intervals. 

(2) An inspection shall be conducted in the manner best calculated 
to secure compliance with the act and appropriate to the needs of the 
community. Inspections may be on 1 of the following bases: 

(a) An area basis, such that all the regulated premises in a pre- 
determined geographical area will be inspected simultaneously, or within 
a short period of time. 

(b) A complaint basis, such that complaints of violations will be 
inspected within a reasonable time. 



106 

(c) A recurrent violation basis, such that those premises which are 
found to have a high incidence of recurrent or uncorrected violations 
will be inspected more frequently. 

(3) An inspection shall be carried out by the enforcing agency, or 
by the enforcing agency and such representatives of other agencies as 
may form a team to undertake an inspection under this and other 
applicable acts. 

(4) An inspector, or team of inspectors, may request permission to 
enter all premises regulated by this act at reasonable hours to undertake 
an inspection. Upon an emergency, as defined under rules promulgated 
by the enforcing agency, the inspector or team of inspectors shall have 
the right to enter at any time. 

(5) The enforcing agency may establish and charge a reasonable fee 
for inspections conducted under this act. 

Sec. 127. (1) In a nonemergency situation where the owner or 
occupant demands a warrant for inspection of the premises, the enforcing 
agency shall obtain a warrant from a court of competent jurisdiction. 
The enforcing agency shall prepare the warrant, stating the address of 
the building to be inspected, the nature of the inspection, as defined 
in this or other applicable acts, and the reasons for the inspection. It 
shall be appropriate and sufficient to set forth the basis for inspection 
(e.g. complaint, area or recurrent violation basis) established in this 
section, in other applicable acts or in rules or regulations. The warrant 
shall also state that it is issued pursuant to this section, and that it is 
for the purposes set forth in this and other acts which require that in- 
spections be conducted. 

(2) If the court finds that the warrant is in proper form and in 
accord with this section, it shall be issued forthwith. 

(3) In the event of an emergency no warrant shall be required. 

Sec. 128. (1) It is the policy of this state that the inspection pro- 
cedures set forth in this article are established in the public interest, 
to secure the health and safety of the occupants of dwellings and of the 
general public. 

(2) The enforcing agency shall keep a record of all inspections. 

(3) The enforcing agency shall make available to the general public 
a checklist of commonly recurring violations for use in examining premises 
offered for occupancy. 

Sec. 129. (1) Units in multiple dwellings or rooming houses shall 
not be occupied unless a certificate of compliance has been issued by the 
enforcing agency. The certificates shall be issued only upon an inspec- 
tion of the premises by the enforcing agency, except as provided in sec- 
tion 131. The certificate shall be issued within 15 days after written 
application therefor if the dwelling at the date of the application is 
entitled thereto. 



107 

(2) A violation of this act shall not prevent the issuance of a certi- 
ficate, but the enforcing agency shall not issue a certificate when the 
existing conditions constitute a hazard to the health or safety of those 
who may occupy the premises. 

(3) Inspections shall be made prior to first occupancy of multiple 
dwellings and rooming houses, if the construction or alteration is com- 
pleted and first occupancy will occur after the effective date of this 
article. Where first occupancy will occur before the effective date of 
this article, inspection shall be made within 1 year after the effective 
date of this article. Upon a finding that there is no condition that would 
constitute a hazard to the health and safety of the occupants, and that 
the premises are otherwise fit for occupancy, the certificate shall be 
issued. If the finding is of a condition that would constitute a hazard 
to health or safety, no certificate shall be issued, and an order to comply 
with the act shall be issued immediately and served upon the owner in 
accordance with section 132. On reinspection and proof of compliance, 
the order shall be rescinded and a certificate issued. 

Sec. 130. (1) When a certificate is withheld pending compliance, 
no premises which have not been occupied for dwelling or rooming pur- 
poses shall be so occupied, and those premises which have been or are 
occupied for dwelling or rooming purposes may be ordered vacated until 
reinspection and proof of compliance in the discretion of the enforcing 
agency. 

(2) A certificate of compliance shall be issued on condition that the 
premises remain in safe, healthful and fit condition for occupancy. 
If upon reinspection the enforcing agency determines that conditions 
exist which constitute a hazard to health or safety, the certificate shall 
be immediately suspended as to affected areas, and the areas may be 
vacated as provided in subsection (1). 

(3) The duty to pay rent in accordance with the terms of any lease 
or agreement or under the provisions of any statute shall be suspended 
and the suspended rentals shall be paid into an escrow account as provided 
in subsection (4), during that period when the premises have not been 
issued a certificate of compliance, or when such certificate, once issued, 
has been suspended. This subsection does not apply until the owner 
has had a reasonable time after the effective date of this article or after 
notice of violations to make application for a temporary certificate, as 
provided in section 131. Nor does this subsection apply where the 
owner establishes that the conditions which constitute a hazard to health 
or safety were caused by the occupant or occupants. The rent, once 
suspended, shall again become due in accordance with the terms of the 
lease or agreement or statute from and after the time of reinstatement 
of the certificate, or where a temporary certificate has been issued, as 
provided in section 131. 

(4) Rents due for the period during which rent is suspended shall 
be paid into an escrow account established by the enforcing officer or 
agency, to be paid thereafter to the landlord or any other party authorized 



108 

to make repairs, to defray the cost of correcting the violations. The 
enforcing agency shall return any unexpended part of sums paid under 
this section, attributable to the unexpired portion of the rental period, 
where the occupant terminates his tenancy or right to occupy prior to 
the undertaking to repair. 

(5) When the certificate of compliance has been suspended, or has 
not been issued, and the rents thereafter withheld are not paid into the 
escrow account, actions for rent and for possession of the premises for 
nonpayment of rent may be maintained, subject to such defences as the 
tenant or occupant may have upon the lease or contract. 

Sec. 131. (1) An owner shall apply for a certificate of compliance. 
Inspection and issuance of certificates shall be in accordance with the 
requirements of this act and with procedures established by the enforcing 
agency. The enforcing agency may authorize the issuance of temporary 
certificates without inspection for those premises in which there are no 
violations of record as of the effective date of this article, and shall issue 
such temporary certificates upon application in cases where inspections 
are not conducted within a reasonable time. Temporary certificates 
shall also be issued for premises with violations of record, whether 
existing before or after the effective date of this article, when the owner 
can show proof of having undertaken to correct such conditions, or when 
the municipality has been authorized to make repairs, or when a receiver 
has been appointed, or when an owner rehabilitation plan has been 
accepted by the court. 

(2) An application for a certificate shall be made when the owners, 
or any of them, enroll in the registry of owners and premises. If the 
owner fails to register, any occupant of unregistered or uncertified 
premises may make application. 

(3) A fee of $10.00 shall be paid by the applicant at the time the 
certificate is issued. 

Sec. 132. (1) If, upon inspection, the premises or any part thereof 
are found to be in violation of any provision of this act, the violation 
shall be recorded by the enforcing agency in the registry of owners and 
premises. 

(2) The owner, and in the discretion of the enforcing agency the 
occupant, shall be notified in writing of the existence of the violation. 
The notice shall state the date of the inspection, the name of the inspector, 
the nature of the violation and the time within which the correction shall 
be completed. 

(3) A violation which is determined by the inspector to constitute 
a hazard to the health or safety of the occupants, under circumstances 
where the premises cannot be vacated, shall be ordered corrected within 
the shortest reasonable time and notice of having begun compliance 
shall be given the enforcing agency by the owner within 3 days. All 
other violations shall be corrected within a reasonable time. 



109 

(4) The enforcing agency shall reinspect after such reasonable time 
for the purpose of ascertaining whether the violations have been corrected. 

Sec. 133. (1) The owner of premises regulated by this act shall 
comply with all applicable provisions of the act. 

(2) The occupant of premises regulated by this act shall comply 
with provisions of the act specifically applicable to him. 

Sec. 134. (1) If the owner or occupant fails to comply with the 
order contained in the notice of violation, the enforcing agency may 
bring an action to enforce the provisions of this act and to abate or 
enjoin the violation. 

(2) An owner or occupant of the premises upon which any violation 
exists may bring an action to enforce the provisions of this act in his 
own name. Upon application by the enforcing agency, or upon motion 
of the party filing the complaint, the local enforcing agency may be 
substituted for, or joined with, the complainant in the discretion of the 
court. 

(3) When the violation is uncorrected and creates an imminent 
danger to the health and safety of the occupants of the premises, the 
enforcing agency shall file a motion for a preliminary injunction or other 
temporary relief appropriate to remove such danger during the pendency 
of the action. 

(4) Owners and lienholders of record or who are found by the com- 
plainant upon the exercise of reasonable diligence shall be served with a 
copy of the complaint and a summons. The complainant shall also 
file a notice of the pendency of the suit in the office of the register of 
deeds for the county in which the premises are located. 

(5) The court, having obtained jurisdiction, shall make such orders 
and determinations as are consistent with the objectives of this act. 
The court may enjoin the maintenance of any unsafe, unhealthy or un- 
sanitary condition, or any violations of this act, and may order the 
defendant to make repairs or corrections necessary to abate the con- 
ditions. The court may authorize the enforcing agency to make repairs 
or to remove the structure. When an occupant is not the cause of any 
unsafe, unhealthy or unsanitary condition, or any violation of this act, 
and is the complainant, the court may authorize the occupant to correct 
the violation and deduct the cost thereof from the rent upon such terms 
as the court determines to be just. Whenever the court shall find that 
said occupant is the cause of any unsafe, unhealthy or unsanitary con- 
dition, or any violation of this act, then the court may authorize the 
owner to correct the violation and assess the cost thereof against the 
occupant or his security deposit. 

(6) No building shall be removed unless the cost of repair of the 
building will be greater than the state equalized value of the building. 



110 

(7) When the expenses of repair or removal are not otherwise 
provided for, the court may enter an order approving the expenses and 
providing that there shall be a lien on the real property for the payment 
thereof. The order may establish the priority of the lien and may provide 
that it shall be a lien senior to all other liens, except taxes and assessments; 
except that a mortgage of record having a recording date prior to all 
other liens of record shall retain its first priority if, at the time of recording 
such mortgage or at any time subsequent thereto, a certificate of com- 
pliance as provided for in this article is in effect on the subject property. 
The order may also specify the time and manner for foreclosure of the 
lien if not satisfied. A true copy of the order shall be filed in the office 
of the register of deeds for the county where the real property is located 
within 10 days after entry thereof in order to perfect the lien granted in 
the order. 

Sec. 135. (1) When a suit has been brought to enforce this act 
against the owner the court may appoint a receiver of the premises. 

(2) When the court finds that there are adequate grounds for the 
appointment of a receiver, it shall appoint the municipality or a proper 
local agency or officer, or any competent person, as receiver. In the 
discretion of the court no bond need be required. The receivership 
shall terminate at the discretion of the court. 

(3) The purpose of a receivership shall be to repair, renovate and 
rehabilitate the premises as needed to make the building comply with 
the provisions of this act, and where ordered by the court, to remove 
a building. The receiver shall promptly comply with the charge upon 
him in his official capacity and restore the premises to a safe, decent 
and sanitary condition, or remove the building. 

(4) Subject to the control of the court the receiver shall have full 
and complete powers necessary to make the building comply with the 
provisions of this act. He may collect rents, and other revenue, hold 
them against the claim of prior assignees of such rents, and other revenue, 
and apply them to the expenses of making the building comply with the 
provisions of this act. He may manage and let rental units, issue 
receivership certificates, contract for all construction and rehabilitation 
as needed to make the building comply with the provisions of this act, 
and exercise other powers the court deems proper to the effective adminis- 
tration of the receivership. 

(5) When expenses of the receivership are not otherwise provided 
for, the court may enter an order approving the expenses and providing 
that there shall be a lien on the real property for the payment thereof. 
The provisions of subsection (7) of section 134 as to the contents and 
filing of an order are applicable to the order herein provided for. 

Sec. 136. (1) When the owner of a dwelling regulated by this act 
permits unsafe, unsanitary or unhealthful conditions to exist unabated 
in any portion of the dwelling, whether a portion designated for the 
exclusive use and occupation of residents or a part of_the common areas, 



Ill 

where such condition exists in violation of this act, any occupant, after 
notice to the owner and a failure thereafter to make the necessary cor- 
rections, shall have an action against the owner for such damages he has 
actually suffered as a consequence of the condition. When the con- 
dition is a continuing interference with the use and occupation of the 
premises, the occupant shall also have injunctive and other relief appro- 
priate to the abatement of the condition. 

(2) Remedies under this section shall be in addition to such other 
relief as may be obtained by seeking enforcement of the section authoriz- 
ing suits by a local enforcement agency. The remedies shall be con- 
current. When several remedies are available hereunder, the court 
may order any relief not inconsistent with the objectives of this act, and 
calculated to achieve compliance with it. 

Sec. 137. The enumeration of rights of action under this article 
shall not limit or derogate rights of action at common law. 

Section 2. Sections 98 to 119 of Act No. 167 of the Public Acts of 
1917, as amended, being sections 125.498 to 125.519 of the Compiled 
Laws of 1948, are repealed. 

Section 3. All proceedings pending and all rights and liabilities 
existing, acquired or incurred at .the time this amendatory act takes 
effect are saved and such proceedings may be consummated according 
to the law in force at the time the proceedings were commenced. This 
amendatory act shall not be construed to alter, affect or abate any 
pending prosecution, or prevent prosecution hereafter instituted under 
such repealed sections for offenses committed prior to the effective date 
of this amendatory act. All prosecutions instituted after the effective 
date of this amendatory act for offences committed prior to the effective 
date of this amendatory act may be continued or instituted in accordance 
with the provisions of the law in force at the time of the commission of the 
offense. 



Clerk of the House of Representatives. 



Secretary of the Senate. 



Approved 



( Governor. 



APPENDIX D 

"The Changing Nature of Landlord -Tenant Relationship: 

The Medium and a Message," an unpublished study prepared 
by Joseph M. Hassett (pp. 24-35 and footnotes pp. 47-51). 

VII 

Thus far this paper has borne out Edgar May's observation that, 
"the traditional villain is the slumlord; he is to housing what the butler 
is to the detective story, except that he rarely gets in at the end". 1 
As this paper approaches its end, the landlord must have his day in 
court. 

Suppose the tenant succeeds in compelling the landlord to make the 
necessary repairs. Will he face an immediate increase in rent? Should 
he? Where the landlord is the villain he should bear the cost of putting 
his building into tenantable condition. Where the landlord is not 
garnering an excessive profit the repairs should nevertheless be made but 
devices for spreading the cost must be developed. Finally, how shall we 
distinguish between the villains and the good guys? 

Unfortunately, landlords are not given to publishing financial state- 
ments and it is very difficult to determine if, in fact, slum landlords are 
milking their tenants for an exorbitant return. There are, however, some 
indications that at least some landlords are doing so. A study of one 
block in Boston's West End 2 attempted to compute the annual return on 
each unit by deducting estimated expenses from rent. 3 A comparison 
of this return with the most recent recorded purchase price showed annual 
returns on investment ranging from 12.3%to 35.2% and averaging 18. 3%. 4 

In the same vein, a New Jersey legislative committee reported 
evidence of a 20% return and concluded, 

Landlords consistently refuse to maintain minimum standards of 
decency and health. Unquestionably some specialize in buying slum 
properties at cheap prices and rent them exclusively to welfare 
clients at exorbitant rates. 5 



1 E. May, The Wasted Americans 130 (1964). It is interesting to note the reversal of 
roles as a legal device develops through centuries of use. Originally the lessee, who 
used the lease as a means of avoiding prescriptions against usury, was the villain. 
Cf. Plucknett, A Concise History of the Common Law 541 (4th ed. 1948) for the 
statement that lessors were generally poor or improvident and lessees were placed 
in popular literature in the company of "scoundrels who prey upon society". 

2 A. Xakagawa, The Economics of Slum Housing from the Property Owner's Point 
of View, January, 1956 (unpublished thesis in Robinson Library). 

3 The author recognizes the danger lurking in the fact that the rent figures were based 
on the word of owners who knew that an appraisal was being made for condemnation 
purposes. Cf. Id. p. 55. Cf. also p. 64 on other limitations. 

*Id. at p. 63. 

•""Welfare Investigating Committee of the New Jersey Legislature, Report on the Aid 
to Dependent Children Program, 64 (1963). Similar findings were made in Illinois 
and New York. 

11131 



114 

Landlords making even a fraction of the more exorbitant returns could 
well be expected to bear the cost of improving their properties. Further- 
more, all landlords would be able to share the cost with the federal 
government by deducting the cost of improvement (I.R.C. sec. 163 or 
212) or, if capital, adding it to basis [I.R.C. sec. 1016 (a) (1)] and making 
it available for the landlord's favorite, the sec. 267 depreciation deduction. 
The tax advantages of this deduction for landlords of slum property are 
especially appetizing since a deduction is available for depreciation which 
did not in fact occur. 6 

Suppose, however, that some landlords of slum property can validly 
object that they cannot make the necessary repairs without increasing 
rents to a level that their tenants cannot afford. This may occur in a 
number of different situations and for a variety of reasons. For example: 
(1) repairs may be so numerous and of such major proportions that the 
capital outlay appears prohibitive; or (2) even though only relatively 
moderate amounts must be expended, landlords fail to make the repairs 
because (a) they lack appropriate sources of financing; or (b) such sources 
are available but landlords are unaware of them; or (c) landlords feel 
overburdened by property taxes or fear increased taxes as a result of 
improvements; or (d) landlords would be willing and able to repair but 
are not ready to act because of the fear that such improvements would 
put them at a competitive disadvantage in relation to owners who have 
not repaired. 

Cost spreading and other devices of equal variety can be developed 
on both the landlord and tenant side of the coin to meet these situations. 
Wise planning requires that the housing market in question be carefully 
analyzed so that the remedy may be aptly fashioned to fit the disease. 
A nicely packaged prescription for all of Boston's housing ills cannot be 
attempted in a paper of this scope. Nevertheless, each of the typical 
situations set forth above will be briefly analyzed and some possible 
cures suggested. 

A disheartening example of the first situation (large outlay for major 
rehabilitation) is the experience of a non-profit organization with an 
"old law" tenement on New York's Lower East Side. 7 The building, a 
six-storey walk-up built around 1880, was acquired for $15,500 by the 
Citizens Housing and Planning Council from Lawrence Rockefeller, who 
also donated $250,000 to the Council. "In all, $115,000 was spent putting 
in new kitchens and bathrooms . . . replacing all electrical wiring and 
plumbing, replastering the public areas and patching and painting the 
apartment walls." 8 Even though rents were increased from $23 a 



6 I.R.C. 1250 is so qualified as not to be a major obstacle to this practice but does 
remove some of the attractiveness of frequent changes in ownership, with owners 
taking accelerated depreciation deductions and then selling for a capital gain. 
I.R.C. 1250 requires the owner to recognize gain as ordinary income to the extent 
he has taken accelerated depreciation since 1964. However, this amount is reduced 
by one per cent for each month the owner has held the building in excess of 20 months. 
Therefore, no depreciation is recaptured from a 10-year owner. 

7 New York Times, Mar. 9, 1967, at 1, col. 6 (City ed.). 

Hd. at 38, col. 5. 



115 

month per apartment to $65, the building's first year of operation showed 
a net loss of $565.07 without depreciation and $4,461.86 counting de- 
preciation. The main reasons for the deficit, according to the group's 
executive director, "were vandalism, the high costs of maintenance and 
materials, and the inability to charge rents, that would meet these 
costs." 9 

It is relevant to ask whether vandalism would have been such a 
prohibitive cost if the tenants themselves had innovated the rehabilitation 
program. Even where the immediately affected tenants do not partici- 
pate in the program, a milieu in which tenants are aware that the law is 
moving with an even hand on both landlords and tenants may result in 
greatly reduced vandalism costs. 10 

The second cause cited for the deficit (high cost of rehabilitation) 
need not be inexorable. Jason R. Nathan, New York's Administrator 
of Housing and Development, stressed that, "the more sophisticated 
technology that is being developed would cut costs and make rehabilita- 
tion more profitable." 11 Mr. Nathan offered no prediction as to when 
such technology would proceed beyond the development stage. Certainly 
more activity in this highly underdeveloped area is long overdue. 

The final reason given for the deficit (inability to charge higher 
rents) may be a relevant factor in many rehabilitation situations and 
rent supplements must be a reality where private financing cannot 
provide a solution. 12 The Housing and Urban Development Act of 
1965 12a authorized a dual system of rent supplements. The 12 USC 
1701 s (Supp. I, 1965) program applies to limited dividend corporations 
and 221 (d) (3) co-operatives. The program contained in 42 USC 1402, 
1416 (Supp. I, 1965) provides an excellent vehicle for utilizing existing 
housing stock. Owners who brought their buildings up to standard 
might look forward to participation in such a program. Local housing 
agencies may compile a list of "decent, safe and sanitary" dwellings where 
families of low income could be housed as efficiently as in public housing. 
Participating owners would negotiate the rental agreement with the 
housing agency. The rent split between the agency and the low income 
tenant would be achieved on the same basis as if the tenant lived in a 
federally aided public project. 



9 Id. Members of the seminar may derive some consolation from the inference that 
the "Hawthorne effect" is not an ubiquitous one. 

l0 The council attributed the more successful operation of a second building in the 
"East Village" to decreased vandalism costs. The tenants of this building, many of 
whom are students and artists, "have a completely different attitude". New York 

Times, supra n. 8. 

n Id. Mr. Nathan also noted that rehabilitation is more feasible "if done over a large 
area, and not just on scattered buildings". Id. cf. text at n. 38 infra on this point. 
Tenant involvement at the neighbourhood level might be expected to affect the 
costly 80% annual turnover rate in the first building. 

^Rehabilitation which cannot be paid for can be expected to be followed by a lack of 
maintenance expenditures, thus starting the cycle in motion again. 

l2a Pub. L. 89-117, 79 Stat. 451, 457 (Aug. 10, 1965). 



116 

I nfortunately, appropriations for such supplements have been scant. 
An eventual Vietnam settlement must be accompanied by an escalation 
in funding or the objectives of the National Housing Act dismissed as 
campaign oratory. 

It must be remembered that not all sub-standard housing requires 
such major improvements as those effected in the New York experiment. 
Indeed, the largest category (19,576) of Boston's sub-standard rental 
housing consisted of units which contained adequate plumbing facilities 
and were characterized by only "intermediate" defects. 13 The next largest 
group (13,457) lacked adequate plumbing but were otherwise sound. 14 
Therefore, remedies appropriate to the other four situations set forth 
above may be expected to achieve satisfactory results in Boston. 

First, lack of appropriate financing. Methods of financing the 
acquisition of slum properties can be expected to shed some light on 
potential sources of rehabilitation financing. Sternlieb's study of three 
slum areas in Newark indicated that the availability of conventional 
lending sources was in inverse proportion to the degree of housing 
decay. 15 As footnote 15 indicates, 50% of the mortgages in Area 1, the 
worst area, were privately written while banks and savings and loan 
companies accounted for 28%. In Area 3, the best area, banks and 
savings and loan companies climbed to 61% while private sources 
dropped to 24.5%. The typical mortgage in all areas was for only an 
eight to ten year period 16 and carried a 3-7% discount off the face 
amount with interest at 6%. 17 

Given this gloomy picture of initial financing, it is not surprising 
to find that owners were hesitant to invest in rehabilitation 18 and pessi- 
mistic about the possibility of securing additional financing. 19 The sur- 



13 Cf. U.S. Bureau of the Census, U.S. Census of Housing: 1960 Vol. I States and 
Small Areas Mass. Final Report HC(l)-23. 

15 Area 1 contained tracts with the percentage of sound housing ranging from 2.3% to 
17.7%. The range in Area 2 was from 26.7% to 46.6% and from 50.2% to 66.8% 
sound in Area 3. The percentages of 1960-1965 mortgages written by various sources 
were as follows: 



Area 1 Area 2 
Savings & Loan Co.. . 28 38.8 

Private 50 26.5 

Mortgage Co 8 22.4 

Bank .. 4.1 


Area 3 
59 
24.5 
10.2 

2 


G. Sternlieb, The Tenement Landlord 41, 108-110 (1966). 




™Id. at 113. 




"Id. at 114. 




™Id. at 118. 




™Id. at 192. 





117 

vey of owner expectations introduced the additional and interesting 
element, that large landlords had the most realistic impression of the 
high cost and short term nature of available rehabilitation financing 20 
but were more anxious than single parcel owners to take advantage of a 
hypothetical long term mortgage. 21 

Effective rehabilitation of an area such as that studied by Sternlieb 
calls for more accessible long term loans at market rates for large scale 
owners and shorter term but lower cost financing for single parcel owners. 22 
A survey of the Boston market may indicate similar needs. Small owners 
in any market may require subsidies ranging from low-interest loans 
through no-interest loans to outright grants for rehabilitation purposes. 
This type of approach to small owners (and market rate but more 
accessible long term borrowing for larger owners) would involve some 
re-definition of the purposes of both the FHA and the Urban Renewal 
programs. To the extent that Urban Renewal programs are designed to 
rehabilitate existing housing facilities for low income families, the already 
noticeable shift in that program from its original emphasis on clearance 
projects (which tended to benefit higher income groups) would become 
more pronounced. Likewise, insofar as money is made available for 
low income housing rehabilitation through the FHA, that program 
becomes less of an underwriter of actuarial risks and more an instrument 
for effecting broader social policy. 23 

Recent legislative developments suggest a trend in this direction. 
For example, the Housing Act of 1964 24 amended sec. 203 (k) of the 
National Housing Act, 25 which provides for rehabilitation loans on 
buildings designed for occupancy by four or fewer families, to require 
that such loans be "an acceptable risk" in place of the more stringent 
previous requirement that the loan be "economically sound", thus 



20 /d. Interviews with owners and FHA officials led Sternlieb to conclude "that ihe 
only significant source of rehabilitation money at the time of the interview was a 
Title I with its effective interest rate of ten per cent and effective maximum term of 
ten years". Id. Apparently the investment was too great a risk or the building too 
small to qualify for lower interest, longer term borrowing under Sec. 207 of the 
National Housing Act [12 U.S.C. 1701 ss. ( 1964)]. The absence of a renewal program 
may explain the unavailability of Sec. 220 or 220 (h) or 221 (d) (4) of the same Act 

The Newark experience should be compared with Boston's success with refinancing 
rehabilitated properties with Sec. 200 mortgages at S]4 ( /c interest. "A Boston 
Redevelopment Authority survey of Washington Park indicated that, of 570 mort- 
gaged properties judged practical for rehabilitation, 40% would have their month) 
mortgage payments lowered. Another 24% would remain level in monthly charge 
while only 36% would go up". W. McQuade, "Urban Renewal in Boston," in Urban 
Renewal, etc. (J. Q. Wilson ed., 1966) at 271. This was achieved with the help of 
Boston banks who pledged some $20 million toward new mortgages, lor an example 
of municipal efforts to make rehabilitation funds available in Philadelphia see Note, 
Enforcement of Municipal Housing Codes, 78 Harv. L. Rev. 801 ( 1965) at 854. 

nid. at 201. 

22 These small owners were war)- of long term debt. Id. at 201. 

"Prudent management may call for separate funding and accounting for more liberal 
FHA credit programs. 

"Pub. L. 88-560, 78 Stat. 769 (Sept. 2, 1964). 

2M2 U.S.C. 1709K (Supp. I, 1965), amending 12 U.S.C. 1709K I 1964). 



118 

allowing FHA officials to insure greater risks. This same "acceptable 
risk" criterion is embodied in another 1964 enactment (sec. 312 of the 
Housing Act of 1964) 26 which authorizes direct rehabilitation loans to 
owners or tenants of property in an urban renewal area (or an area where 
a program of concentrated code enforcement is being carried out) 27 
if the applicant is unable to secure funds from other sources on com- 
parable terms and conditions. 28 This statute casts more light on the 
meaning of "acceptable risk". It permits the administrator to consider 
not only the applicant's ability to repay and the available security but 
the "need for rehabilitation" as well. 29 To the extent that this last factor is 
emphasized, this statute can be an effective aid to rehabilitation of 
housing for low income families. 

Most recently, the Housing and Urban Development Act of 1965 30 
added sec. 115 to the Housing Act of 1949. 31 Sec. 115 authorizes a direct 
grant of up to $1500 for rehabilitation of an owner-occupied structure 
in an urban renewal area. The owner must have an income of less than 
$3000. If his income is more than $3000, a grant is authorized to the 
extent that the cost cannot be amortized under any available loan 
without causing his housing expense to exceed 25% of his income. 
Although the direct impact of sec. 115 is limited to low income owner- 
occupants (who may have a tenant), it is significant in that it indicates a 
continuing trend toward more easily accessible funds for rehabilitation 
of existing housing stock. It is not unlikely that future years will witness 
more widespread availability of other federal sources such as those 
mentioned in footnote 20 supra. 

The second inhibitor of rehabilitation listed above was the owner's 
ignorance of available sources of financing. Whatever governmental 
aids are available, Sternlieb's study indicates that greater efforts must 
be expended to inform owners, especially smaller ones, of these oppor- 
tunities. 32 In addition to more conventional pedagogical methods, the 
possibility of a tenant's action or the non-payment of rent may stimulate 
the landlord to quaff of the Pierian spring. 

Third, real property taxes. One of the least surprising findings of 
the Sternlieb study was that all owners listed heavy real property taxes 
as a major reason for low levels of maintenance and the fear of re-assess- 
ment as a large-scale inhibitor of rehabilitation. 33 An interesting sub- 
group of findings, however, showed that these factors were more burden- 



26 Pub. L. 88-560, 78 Stat. 769 (Sept. 2, 1964), 42 U.S.C. 1452 b (Supp. I, 1965), 
amending 42 U.S.C. 1452 b (1964). 

27Cf. 42 U.S.C. 1468(1964). 

28 Comparable terms would be quite liberal since the statute authorizes loans for up to 
twenty years at a maximum interest of 3% per year on the declining balance. 42 
U.S.C. 1452 b (1964). 

30 Pub. L. 89-117, 79 Stat. 451, 457 (Aug. 10, 1965). 

31 42 U.S.C. 1466 (Supp. I, 1965). 

32 G. Sternlieb, supra n. 15, at 187, 189. 

®Id. at 212-214. 



119 

some to smaller owners while landlords with larger holdings viewed the 
tenantry as their major problem in maintenance and improvement. 34 
This latter factor seems directly traceable to the feelings of isolation or 
hostility which characterize tenant's attitudes towards large-scale 
landlords, again emphasizing the need for expanded tenant rights, 
albeit tempered with appropriate tax policies. 

There are a variety of possible changes in the tax structure which 
could operate both to free more funds for improvement expenses and 
remove the fear of increased taxes as a result of improvement. For 
example, N.Y. Real Prop. Tax 489 authorizes cities to exempt from real 
property tax the increase in assessed value which results from improve- 
ments eliminating dangerous or unsanitary conditions. Cities may also 
provide for the abatement of taxes on such property, including the land, 
by an amount equal to 8}/3% of the cost of the improvements. Both the 
exemption and the abatement may be extended for twelve years. 35 

Another approach which adheres more closely to proportional assess- 
ment would be to tax the land component of real estate relatively heavily 
and the building component comparatively lightly, thus eliminating 
the penalty for improvement of the building. 36 Finally, the special 
Boston problem of already boasting the nation's highest real property 
tax makes serious consideration of property taxation on a metropolitan 
basis a must. The justification for this approach lies in the fact that 
Boston provides a good number of services for suburbanites (many of 
these arising out of the 42% of Boston's real estate which is tax exempt) 
and accommodates more than its share of the region's low income 
families who often require more in services than they pay in taxes. 37 

Finally, otherwise able landlords may hesitate to make repairs 
because they fear competitive disadvantage, either because even a 
modest increase in rent would drive tenants to neighboring owners who 
have not repaired, or because, even without any shifting of tenants, 
neighboring owners might benefit from neighborhood improvement 
without bearing any of the cost. Owner attitudes surveyed by Stern- 
lieb 38 bear out the interesting game theory elucidation of this notion by 
Davis and Whinston. 39 Active tenant groups with effective legal rights 
would considerably simplify the landlord's decision-making process. 



Zi Id. at 212. The smaller owner's fear was matched by his ignorance of the difference 
between re-assessable and non re-assessable improvements, indicating another area 
where landlord education is appropriate. 

35 For difficulties which may be presented with regard to such a proposal by Mass. 
Constitution pt. II, C. 1, Sec. 1, Art 4 (conferring power on the General Court "to 
impose and lew proportional and reasonable assessments, rates and taxes") cf. e.g. 
Opinion of the Justices 334 Mass. 769, 126 N.E. 2d 795 (1955). 

36 Cf. M. Meyerson and E. Banfield, Boston: The Job Ahead, 68 (1966) at 29, 73. 

37 Cf. Id. at 21-30. 

33 G. Sternlieb, supra n. 15, at 155, 223. 

39 0. Davis and A. Whinston, "The Economics of Urban Renewal." in Urban Renewal: 
the Record and the Controversy (J. Q. \\ ilson ed., 1966). 



120 

Once the repairs have been made, what should be the effect on 
rent? This is the final (and thorny) question of distinguishing between 
cases where improvements operate only to give the tenant what he has 
already been paying for and those in which they justify a higher rent. 
What of the Meyerson- Ban field thesis that a free economy can market 
housing in the same way that it markets ice cream cones? 40 It may well 
be that, to the extent that the law of landlord and tenant can be used to 
increase the supply of standard housing and strengthen the tenant's 
bargaining position, and to the extent that collective negotiation of 
leases further strengthens the tenant's hand, 41 market factors alone will 
sort out the properties which can command a higher rent from those 
which cannot. The market could be expected to fulfill this role in an 
area such as that studied by Sternlieb in Newark where high vacancy 
rates made landlords wary of rent increases. 42 

Nevertheless it is not without significance that New York, the city 
which has the most stringent laws designed to result in landlord repair 
and maintenance, also has a system of rent control. 43 Rent control is 
often assailed as an inhibitor of investment in the housing market for 
both construction of new units and rehabilitation of old ones. 44 However, 
Rodwin's comparison of Boston's housing experience with a free market in 
one post-war period and rent control in another casts doubt on these argu- 
ments. 45 Even so, whether full scale rent control is a necessary adjunct 
of adequate housing for low income tenants is certainly questionable. 
Market forces alone may provide adequate protection in many areas 
and these forces may be augmented by limited controls such as a recent 
New Jersey statute which imposes rent control only when the owner has 
failed to comply with an order to bring his building up to minimum 
standards. 46 Another limited approach is available in N.Y. Real Prop. 
Tax 489 which authorizes cities using the tax incentives described in the 
text at n. 35 supra to deny such benefits where rents exceed a uniform 
stated amount per room per month as fixed by the local legislative body. 



40 M. Myerson and E. Banfield, supra N. 36. 

41 A type of publicly enforced collective bargaining is available in New York Socia' 
Welfare Law 143 b which permits welfare officials to withhold rent from a recipient's 
landlord when there is outstanding any violation of law in respect of the recipient's 
housing accommodations which is dangerous, hazardous or detrimental to life or 
health. This provision has been found unconstitutional by one trial court and 
constitutional by two trial courts. Trozze v. Drooney, 35 Misc. 2d 1060, 232 N.Y.S. 
2d 139 (1962) (unconstitutional). Schaeffer v. Monies, 37 Misc. 2d 347, 240 N.Y.S. 
2d 859 (1962) and Milchman v. Rivera, 39 Misc. 2d 347, 240 N.Y.S. 2d 859, appeal 
dismissed, 13 N.Y. 2d 1123, 247 N.Y.S. 2d 122, 196 N.E. 2d 555 (1964), (constitu- 
tional). 

42 G. Sternlieb, supra n. 15, at 155, 223. Although the 1960 census standard vacancy 
rate for Newark was 4.1 (Id. at 88) Sternlieb found an actual rate of 9.5% in the 
area studied (Id. at 47). 

43 However, the need for rent control in New York City may be attributed not to more 
stringent laws but to the city's housing shortage. New York's 1960 standard 
vacancy rate was a low 2%. 

44 Cf. e.g. New York Times, Mar. 16, 1967 at 1, col. 4 (City ed.). 

45 L. Rodwin, Housing and Economic Progress (1961). Cf. esp. pp. 6, 148-157. Rod- 
win recognizes that ceilings must not be so low as to inhibit repair and maintenance. 
Id. at 153. 

4 6N.J. Stat. Ann. ch. 42, sec. 74-84. 



121 

In sum, the name of the techniques for financing the rehabilitation 
of our urban housing is legion. If the moral imperative to, and social 
and economic benefits of, reform of the law of landlord and tenant be 
accepted as valid, then the conclusion for bench, bar and legislative 
should be to proceed along these lines suggested in sections V and VI, 
confident that the appropriate financing techniques can be developed. 

The public expenditure required for any of these financing devices 
is small cost indeed for the resultant benefits of the proposed changes in 
private law. The significant contribution which reform of landlord- 
tenant law could make to the problem of providing adequate housing 
for the nation's low-income urban dwellers would alone justify the 
expense. Furthermore, it is submitted that such reform is a worthy 
(and long overdue) end in itself. Finally, this self-purification of the law 
would offer a ready medium for alleviating that sense of isolation and 
despair which is the hallmark of cyclic poverty. Here, in a bit of reverse 
McLuhanese, the message is the medium. The message of hope through 
participation in an even handed legal system could well be a most effective 
medium of social change. 



APPENDIX E 

1964 

CHAPTER 43 
An Act respecting the Termination of Tenancies 

(Assented to April 15, 1964) 

HER MAJESTY, by and with the advice and consent of 
the Legislative Assembly of the Province of Alberta, 
enacts as follows: 

1. This Act may be cited as "The Landlord and Tenant Short title 
Act". 

2. This Act does not apply to minerals held separately J£j^ ral 
from the surface of land or any dealings in minerals. exempt 

3. — (1) A weekly or monthly or year to year tenancy termination 
may be terminated by either the landlord or the tenant upon of tenan °y 
notice to the other and, unless otherwise agreed upon, the 
notice, 

(a) shall meet the requirements of section 4, 

(b) shall be given in the manner prescribed by section 5, 
and 

(c) shall be given in sufficient time to give the period 
of notice required by section 6, 7 or 8, as the case 
may be. 

(2) Any other kind of tenancy determinable on notice 
may, unless otherwise agreed upon, be terminated as provided 
by sections 4 and 5. 

4. — (1) A landlord or a tenant may give notice either notice 01 
orally or in writing, but a notice by a landlord to a tenant 
is not enforceable under sections 10 to 14 unless it is in writing. 

(2) A notice in writing, 

(a) shall be signed by the person giving the notice, or 
his agent, 

(b) shall identify the premises in respect of which the 
notice is given, and 

[ 1231 



124 



(c) shall state the date on which the tenancy is to 
terminate or that the tenancy is to terminate on the 
last day of the period of the tenancy next following 
the giving of the notice. 



(3) A notice may state both 



(a) the date on which the tenancy is to terminate, and 

(b) that the tenancy is to terminate on the last day of 
the period of the tenancy next following the giving 
of the notice, 

and if it does state both and the date on which the tenancy 
is to terminate is incorrectly stated, the notice is nevertheless 
effective to terminate the tenancy on the last day of the period 
of the tenancy next following the giving of the notice. 

(4) A notice need not be in any particular form, but a 
notice by a landlord to a tenant may be in Form A of the 
Schedule and a notice by a tenant to a landlord may be in 
Form B of the Schedule. 



Manner 
of giving 
notice 



5. — (1) Notice by a tenant to a landlord may be given 
personally to the landlord, or his agent, or may be sent to him 
by ordinary mail at the address where the rent is payable. 



(2) Except as provided in this section, a notice by a land- 
lord to a tenant shall be given personally to the tenant. 

(3) Where the tenant cannot be given notice by reason 
of his absence from the premises, or by reason of his evading 
service, the notice may be given to the tenant, 

(a) by giving it to any adult person who apparently 
resides with the tenant, or 

(b) by posting it up in a conspicuous place upon some 
part of the premises, or 

(c) by sending it by registered mail to the tenant at the 
address where he resides. 

(4) Notwithstanding anything in this section, a notice 
to a corporation may be given in the manner permitted under 
section 270 of The Companies Act. 



Notice to 
terminate 
weekly 
tenancy 



6. — (1) A notice to terminate a weekly tenancy shall be 
given on or before the last day of one week of tenancy to 
be effective on the last day of the following week of the 
tenancy. 



125 

(2) For the purposes of this section, "week of the tenancy" 
means the weekly period on which the tenancy is based and not 
necessarily a calendar week and, unless otherwise specifically 
agreed upon, the week shall be deemed to begin on the day 
upon which rent is payable. 

7. — (1) A notice to terminate a monthly tenancy shall be laminate 
given on or before the last day of one month of the tenancy [J^^ 
to be effective on the last day of the following month of the 
tenancy. 

(2) For the purposes of this section, "month of the tenancy" 
means the monthly period on which the tenancy is based 
and not necessarily a calendar month and, unless otherwise 
specifically agreed upon the month shall be deemed to begin 
on the day upon which rent is payable. 

8. — (1) A notice to terminate a year to year tenancy shall t^^mfnaVe 
be given on or before the sixtieth day before the last day of yearly 
any year of the tenancy to be effective on the last day of that 
year of the tenancy. 

(2) For the purposes of this section, "year of the tenancy" 
means the yearly period on which the tenancy is based and 
not necessarily a calendar year, and unless otherwise agreed 
upon, the year shall be deemed to begin on the day, or the 
anniversary of the day, on which the tenant first became 
entitled to possession. 

9. — (1) A landlord is entitled to compensation for the use^^P e ^ en 
and occupation of premises after the tenancy has expired or premises 

. . ill i i ii i r not vacated 

been terminated and the acceptance by a landlord of arrears 
of rent or compensation after the expiration of the tenancy 
or after notice of termination of a tenancy has been given 
does not operate as a waiver of the notice or as a reinstate- 
ment of the tenancy or as the creation of a new tenancy unless 
the parties so agree. 

(2) The burden of proof that the notice has been waived 
or the tenancy has been reinstated or a new tenancy created 
is upon the person so claiming. 

(3) A landlord's claim for arrears of rent or compensation 
for use and occupation by a tenant after the expiration or 
termination of the tenancy may be enforced by action or as 
provided in section 11. 

10. — (1) Where a tenant, after his tenancy has expired ^ppJJ^. 10 '^ 
or has been terminated, does not go out of possession of the for 

° ^ ... possession 

premises held by him, the landlord may apply by originating 
notice of motion to the Supreme Court for an order for posses- 
sion. 



126 



Claim for 
arrears 
in rent 
and com- 
pensation 



(2) The originating notice shall be served at least three 
days before the day named in the notice for hearing of the 
application. 

(3) The application of the landlord shall be supported by 
an affidavit, 

(a) setting forth the terms of the tenancy, 

(b) proving the expiration or termination of the tenancy, 

(c) stating the failure of the tenant to deliver up posses- 
sion and the reasons given for the failure, if any were 
given, and 

(d) stating any other relevant facts. 

11. — (1) The originating notice of motion of the landlord 
may also include a claim for arrears of rent and for compensa- 
tion for use and occupation of the premises by the tenant 
after the expiration or termination of the tenancy. 

(2) Where a claim is made under subsection (1) the affidavit 
in support of the motion shall also show, 

(a) where a claim is made for rent, the amount of rent 
in arrear and the time during which it has been in 
arrear, and 

(b) where a claim is made for compensation, particulars 
of the use made of the premises after the expiration 
or termination of the tenancy, so far as is known. 



application 12. — (1) Upon hearing the motion, or, where it is opposed, 
upon hearing and considering, in a summary way, the oral 
and affidavit evidence of the parties and their witnesses, the 
judge may, 

(a) if he is satisfied that the tenancy has expired or has 
been terminated, give an order for possession, 

(b) where a claim for rent is made, give judgment for 
the amount of rent proven to him to be in arrear, 

(c) where a claim for compensation is made, give judg- 
ment in such amount as the judge may determine as 
compensation for the use and occupation of the 
premises after the expiration or termination of the 
tenancy, having regard to the nature of the use and 
occupation and the rent payable during the tenancy, 
and 

id) make such order as to costs as he thinks just. 



127 

(2) The judge may grant or dismiss the application in whole 
or in part and may direct the trial of an issue to determine 
any matter in dispute. 

13. — (1) An order under section 12 granting possession, ^^for 

possession 

(a) shall direct the tenant to deliver up possession of the 
premises to the landlord by a specified date or within 
a specified time after service of the order on the 
tenant, and 

(b) shall state that if the order is not obeyed by the 
specified date or within the specified time a writ of 
possession will issue without any further order. 

(2) The order may be served in the same manner as a notice 
may be served on a tenant pursuant to section 5. 

(3) Where the order is not obeyed by the specified date or 
within the specified time, the landlord is entitled, without any 
further order, to be issued a writ of possession on filing an 
affidavit showing service of the order and that it has not been 
obeyed. 

14. Proceedings in respect of a claim for arrears of rent |7ter e ten ant 
or compensation may continue to judgment notwithstanding vacates 
that the tenant delivers up possession of or vacates the 
premises after service upon him of the originating notice of 
motion. 

15. The Lieutenant Governor in Council may make re gu- Regulatlons 
lations for the purpose of carrying out the intent of this Act 

and, without restricting the generality of the foregoing may, 

(a) prescribe forms to be used in proceedings under this 
Act, and 

(b) prescribe a tariff of court fees and solicitors' costs 
in connection with proceedings under this Act. 

16. This Act comes into force on the first day of July, StS^force 
1964. 



128 

SCHEDULE 

FORM A 

Notice to Tenant 

TO (Name of Tenant) 

I hereby give you notice to deliver up possession of the premises 



{identify the premises) 

which you hold of me as tenant, on the day of 

next, or on the last day of the period of your tenancy next following the 
giving of this notice. 

Dated this day of , 19 . . . . 



{Landlord) 



FORM B 
Notice to Landlord 

TO (Name of Landlord) 

I hereby give you notice that I am giving up possession of the premises 



{identify the premises) 

which I hold of you as tenant, on the day of 

next, or on the last day of the period of my tenancy next following the 
giving of this notice. 

Dated this day of ,19 



{Tenant) 



APPENDIX F 

Laskin, Cases and Notes on Land Law, 
Revised edition 1964, p. 189 

Jnteresse Termini and Possession 

As pointed out in the Introductory Note to this chapter, at common 
law a lessee under a lease had no estate in the land before entry; hence 
he could not sue for breach of any covenants which envisaged an estate 
nor could he bring trespass against a third person unless there had 
been entry. Moreover, he himself was not liable until entry for mere 
use and occupation although he was liable, whether he entered or not 
(where entry was available), for rent reserved by his lease as by way 
of covenant to pay it: see Edge v. Stafford (1831), I C. & J. 391, 148 E.R. 
1474 (Ex.); Lowe v. Ross (1850), 5 Ex. 553, 155 E.R. 242. Nonetheless, 
his inter esse termini was assignable and inheritable. On the other hand, 
subject to any stipulation to the contrary, there was an implied obligation 
of the lessor that the premises, subject of the lease, would be open to 
actual entry by the lessee on the day specified in the lease : see Coe v. Clay 
(1829), 5 Bing. 440, 130 E.R. 1131 (C.P.); Jinks v. Edwards (1856), 
11 Ex. 775, 156 E.R. 1045. In other terms, a person who agrees to let 
must be taken to promise that he has a good title to let, not necessarily 
a fee simple, but an interest sufficient to support the leasehold transaction: 
see Stranks v. St. John (1867), L.R. 2 C.P. 376, 36 L.C.J. P. 118. 

If entry was denied, either because of the lessor's repudiation or 
because an overholding tenant was rightly or wrongly in possession, the 
lessee was entitled to damages and could withdraw from the lease: 
see Reaume v. Lalonde, [1939] O.W.N. 167 (where the measure of damages 
was governed by the rule in Bain v. Fothergill (1874), L.R. 7 H.L. 158); 
Commercial Finance Corp. v. Dunlop Tire & Rubber Goods Co., [1942] 
O.R. 380, [1942] 3 D.L.R. 150 (C.A.); Yakchuk v. Holgate, [1951] O.W.N. 
894. There is a line of cases in United States holding that it is sufficient 
if the lessor can give "legal" possession to the lessee, thus obliging the 
latter to sue a third person who may be wrongfully in possession, as by- 
holding over at the expiration of his term; see 1 American Law of Property, 
s. 3.37. The preferable rule, followed by another line of United States 
cases, is that the lessee does not bargain for a lawsuit and hence is entitled 
to have the premises open to his possession at the time agreed upon. 

The common law recognized the right of a lessee, who had not yet 
entered, to maintain ejectment against a third person wrongfully in 
possession, if the lessee chose thus to seek possession rather than go against 
his lessor for damages. In Coe v. Clay (1829), 5 Bing. 440, 130 E.R. 
1131 (C.P.), it was urged on behalf of a lessor that because the lessee 
could bring ejectment against an occupier wrongly holding over he could 
not go against the lessor, but the argument was rejected. The remedies 
are thus alternative, and the only remaining question which has been 
a troublesome point in connection with inter esse termini is whether a 

[129] 



130 

lessee entitled to possession against his lessor may sue him for possession 
directly instead of relying on damages or on a claim to be relieved of his 
obligations. The dilemma which interesse termini created stemmed 
from the fact that a person who never had possession could not claim to 
recover it when he had no estate on which to found his claim. (Specific 
performance is inapplicable save to an agreement for a lease, but in such 
case the relief would be execution of a lease and hence the position is 
not advanced.) Yet there were dicta in a number of cases to the effect 
that, at least in the case of a lease to commence immediately, the lessee 
obtained an enforceable right to possession against the lessor: see Doe d. 
Parsley v. Day (1842), 2 Q.B. 147, 114 E.R. 58; Ryan v. Clark (1849), 
14 Q.B. 65, 117 E.R. 26; cf. Cole, Ejectment (1857), pp. 72, 76. 

It seems wrong today that even in the absence of legislation sweeping 
away interesse termini (as was done in England by the Law of Property 
Act, 1925 (Imp.), c. 20, s. 149 (1) (2) ), there should be a refusal to enforce 
a claim to possession against a lessor where no outstanding rights of third 
persons would be affected: see Note, Is Interesse Termini Necessary?, 
(1918) 18 Col. L. Rev. 595. There are cases in the United States which 
so hold and they express a sensible position: see 51 Corpus Juris Secun- 
dum, p. 974. The best solution would, of course, be to abolish the 
doctrine. 

[The need of physical entry to create a term of years was avoided 
where the leasehold took effect under the Statute of Uses, and this too 
points up the emptiness of interesse termini for modern purposes. A 
consequence of the doctrine not mentioned above was that since a lessor 
still retained his whole interest (before the lessee's entry), a purported 
release of his reversion as such accomplished nothing. 

For a discussion of interesse termini in relation to liability for loss 
or destruction of the premises by fire or otherwise, see Cole, Interesse 
Termini and Risk of Loss, (1954) 19 Sask. Bar Rev. 4.] 

[In Miller v. Emcer Products Ltd., [1956] Ch. 304, [1956] 1 All E.R. 
237 (C.A.), Romer L.J. said (at p. 321 Ch., 243 All E.R.): "I do not 
think there is any ground for implying the Coe v. Clay obligation in addi- 
tion to the covenant for title and quiet enjoyment which is implicit in 
a formal instrument of demise or grant. By the very force of the liability 
which is imposed on a lessor under the covenant for quiet enjoyment, 
the tenant is entitled to be put into possession of the premises which are 
leased to him, at the outset of the tenancy and to remain quietly in 
possession thereof throughout the term". Does this mean that the 
covenant for quiet enjoyment is enforceable by the lessee before actual 
entry once the date for entry has arrived? Where does this leave Wallis 
v. Hands, [1893] 2 Ch. 75 (C.A.)? Note, however, the explanation of 
Coe v. Clay given in the Emcer Products case and the reference to the 
abolition of interesse termini in England.] 

Damages on Failure or Inability of Lessor to Give Possession: 
Liability of Lessor and Holdover Tenant 

If a person wrongfully holds over in the face of a new lease of the 
premises to another, or if the lessor simply refuses to give possession, 



131 

the lessee is, of course, entitled to sue the lessor for damages which would 
ordinarily be the difference between the rental value and the actual rent 
reserved. Indeed, he has a cause of action against the lessor even where 
an existing tenant is rightfully retaining possession (but subject to the 
rule in Bain v. FothergiU (1874) L.R. H.L. 158 as to damages.). Special 
damages, if any would also be recoverable where found to be within the 
contemplation of the parties to the lease. 

The lessor himself may sue the overholding tenant, and in such an 
action he may recover the general damages which he may have been 
obliged to pay in a suit against him by his new r lessee: see Bramley v. 
Chesterton (1857), 2 C.B.N.S. 590, 140 E.R. 548. The intimation in 
Bramley v. Chesterton is that the lessor could not recover from his over- 
holding tenant any special damages which the lessor may have had to 
pay to the lessee by reason of the reletting having been for some special 
or extraordinary purpose. (Suppose, however, the existing tenant was 
made aware of the special nature of the re-letting before expiry of his 
term!) Ordinarily, a lessor suing his overholding tenant may recover 
as damages only the rental value of the premises, at least where the over- 
holder is not made aware of any special use to which the lessor wishes 
to put the premises on the expiry of the existing term in the overholder: 
see Cohen v. Godkin, 55 O.L.R. 436, [1924] 4 D.L.R. 350 (App. Div.) ; 
noted (1925) 38 Harv. L. Rev. 1117. These damages would be recover- 
able either on a basis of assumpsit for use and occupation or as mesne 
profits for trespass on the case.