RHBâ€™s forum for rental housing associations to share news, events and industry information
Hot Topics: WRAMA summarizes the information presented recently to the City of Kitchener Council about rental housing issues, and provides information about making your property smoke-free. pg. 45 EOLO presents the City of Ottawaâ€™s decision on rental regulation, explaining the new property standards plan that has been adopted instead of landlord licensing or registration, and also reports on the effect of the new Ottawa water and sewer charges. pg. 49 HDAA provides an update on the rental licensing debate in the City of Hamilton, and its recent dinner meeting, as well as announcing its upcoming events. pg. 53 LPMA discusses the recently proposed City of London plan for increasing affordable housing supply, as well as how to restrict window air conditioners for the safety of tenants and others. pg. 57
The Member Associations
PRESIDENT’S MESSAGE Sincere thanks to George Dube, CPA, CA at BDO and WRAMA Treasurer, for stepping in to speak at our event in January. Weather took its toll on country roads, leading to the cancellation of our programmed speaker Sarah Van Allen from Van Allen Insurance. We are looking forward to having Ms. Van Allen at a future event.
Renee Charbonneau-Smith & Andrew Macallum
Presentation to City of Kitchener council On January 13, 2020, WRAMA was grateful to be given time to speak as a delegation to City of Kitchener council regarding a report on housing being presented on the same date. An excerpt from the presentation is below.
George Dube, BDO
A very special thanks to Renee CharbonneauSmith from the Healthy Living Division, Region of Waterloo Public Health, who provided an infopacked evening at our first event of 2020 on January 8. The full interview with Ms. Charbonneau-Smith can be found in this edition of RAV.
WRAMA values the relationships with our associate members and wants to support the growth of businesses in the industry. If you are a WRAMA associate member, please consider taking advantage of a table at one of our upcoming events. It is a perfect opportunity to promote your business to members. Tables are available on a first come, first served basis – at no additional cost. Please contact email@example.com to secure your spot.
WRAMA applauds efforts by the City of Kitchener Mayor, council, and committee members in listening to the various stakeholders including citizens and groups that have a perspective to share about housing. Like any conversation about housing, the media has picked up this story. CBC posted an article (following the Record’s lead the week before) that emphasizes the following factors that influence housing prices: • People
fleeing the Greater Toronto Area in search of relatively greener pastures • More young people choosing to stick around after graduation • New businesses setting up shop and bringing employees • People buying real estate as an investment The article goes on to state that: “Kitchener does not track housing that’s held on speculation, for investment or to generate income through AirBNBs and other kinds of “untracked” rental housing, the report said. Neither does the city track so-called “renovictions.” That’s when tenants are forced to leave their homes so renovations or redevelopment can take place, often resulting in higher rents being charged after the fact.” WRAMA respectfully asks this committee, the greater council, and mayor to consider that rental housing is regulated provincially through the Residential Tenancies Act and its quasi-judicial tribunal system under the Landlord & Tenant Board.
River Rock Laundry, represented by Jeff & Jeff, at an Associate Member Table at The Tannery
Thanks to Brian Bourke for including WRAMA on the January 16th show on AM 570 Kitchener. Listen here: https://www.570news.com/audio/kitchener-todaywith-brian-bourke/
The aforementioned article is correct in stating that the City of Kitchener does not track the sensational and misleading term “renovictions.” This term has been adopted by media to describe what the Landlord and Tenant Board formally refers to as an “N13” - Notice to End (a) Tenancy Because the Landlord Wants to Demolish the Rental Unit, Repair it or Convert it to Another Use. The City also does not track the multitude of other notices and applications that result in changes to housing and/or ends to tenancy agreements including:
- Andrew Macallum, President
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• ( T2)
Application(s) about Tenant Rights Notice(s) to End... Tenanc(ies) Early for Non-payment of Rent • (T7) Tenant Application(s) about Suite Meters • ( N5) Notice(s) to End...Tenanc(ies) for Interfering with Others, Damage or Overcrowding It is doubtful that the City of Kitchener tracks delay times for LTB application processing. This issue has prompted the Ontario ombudsman to launch an investigation into delays at the Landlord and Tenant Board. Among the many factors that influence housing in our province and country are the layers of policy and regulation that are redundant and contradictory. The cities and townships in our region are not immune to this. Rental housing providers big and small are a part of the solution to the housing challenges Canadians face across the country. With this in mind, and on behalf of the board of directors, my hope is that WRAMA will be considered a credible voice and community partner as the City of Kitchener moves forward with this housing report.
• ( N4)
Next event Stay tuned for more details at http://wrama.com/wrama-events/. WRAMA directors Darlene Rehman (left) and Julie Popesku (right) get cheesy with WRAMA administrator Sandy Knapp (centre) at the January 8, 2020 WRAMA Education Event.
Picture your property smoke-free Many experts and legislative bodies have declared that smoking in multi-unit housing is a health issue. According to Health Canada, “children and adults who live in multi-unit dwellings where smoking is permitted have higher rates of exposure to second-hand smoke, even if no one in their home smokes.” Exposure to second-hand smoke can cause serious health problems, including heart problems, lung cancer, emphysema, breathing problems (such as asthma), and nasal, chest and ear infections. The Region of Waterloo is a pioneer in smoke-free housing. In 2010, Waterloo Region Housing and Region of Waterloo Community Housing became the first community housing organization in Ontario to adopt a smoke-free policy for their housing portfolios. All new leases signed with the organizations are 100 per cent smoke-free. Waterloo Region Public Health worked with the housing department to develop the region’s Multi-Unit Dwelling Smoke Free Policy Initiative. As a landlord, you have a legal right to implement a smoke-free policy in your building. The Smoke-Free Ontario Act (SFOA), which came into force in 2006, helps to reduce access to tobacco products and protects workers and the public from the hazards of second-hand smoke. It prohibits smoking or holding lit tobacco and cannabis in any enclosed workplace, enclosed public space, and other places designated as smoke and vapefree. The legislation applies to multi-unit dwellings and prohibits smoking in common areas, including hallways, laundry rooms, stairwells, and garages. “By developing and implementing a smoke-free policy, landlords have the right to prohibit the use of tobacco and cannabis combustible products that produce toxic second-hand smoke,” said Renee Charbonneau-Smith, Public Health Nurse, Healthy Living Division, Public Health. “A smoke-free building means that, at a minimum, smoking is not allowed within any part of a building, including the units and balconies. This is a policy that goes above and beyond what is legally required under the SmokeFree Ontario Act, which states that smoking if prohibited in common areas.” Smoke-free policies are enforceable under the Residential Tenancies Act. It covers any activity that substantially interferes with the reasonable enjoyment of the residential complex for all damage to the unit or serious impairment of safety. Under the Act, a landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit
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or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. “Second-hand smoke has been identified as a breach of reasonable enjoyment at the Ontario Landlord and Tenant Board,” said CharbonneauSmith. “Just because someone exercises their freedom to smoke does not mean that they have an absolute right to smoke. A landlord may also give a tenant notice if the second-hand smoke from the tenant’s unit causes severe damage to the unit or building.” There are three key steps to implementing a smoke-free policy in your rental property: 1. Develop a policy based on research, consultation, and legal advice. Review the current situation, including tenant complaints. Identify where smoking will not be permitted and to whom the policy applies. Draft a policy; you can use samples found on the Smoke-Free Housing Ontario website. Select a start date to give sufficient notice to tenants and those on the waiting list. 2. Create a communication strategy. This includes clear and accessible tenant notification, changes to the applications and leases, and posting the
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change on your website, newsletters, and other media. Advise prospective tenants that the building is in transition, and that “grandfathered” tenants are permitted to smoke in their units (unless that smoking specifically interferes with a neighbour’s reasonable enjoyment of their apartment). Provide cessation support information as necessary. 3. Develop an enforcement strategy. Ensure consistent application of the process, and decide on how to handle infractions in advance. Use the same warning and enforcement procedures that you would use for other breaches of the tenancy agreement. Respond quickly and consistently to violations, and educate staff on procedures for dealing with complaints involving “grandfathered” tenants. Keep detailed records of incidents and complaints. Follow the necessary steps when you have to provide notification and take formal action. “When investigating complaints, take steps to minimize smoke transfer, and follow up and document all complaints,” said CharbonneauSmith. “Be diligent in collecting evidence, such as who, what, where, and when incidents occurred, and document the effects of smoking in the building. When taking action, discuss ways to stop or reduce smoking, explore internal moves, and put solutions in writing.”
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New rental regulation in the City of Ottawa By John Dickie, Chair, Eastern Ontario Landlord Organization As reported in the last issue of Rental Association Voice, long-term landlords and tenants have achieved a win in the City of Ottawa. The City has rejected landlord licensing or registration in favour of enhanced property standards enforcement, focused on problem properties. That means money will not be wasted on inspecting buildings in good condition and processing paperwork. That means rents will not be forced up to pay for the cost of new compliance measures imposed on good landlords. A group of low-income housing advocates and others had sought a landlord licensing program across Ottawa. The advocates sought an expanded version of Toronto’s “RentSafe” program to make every rental provider with three or more units pay $11 per year (plus potential audit fees) to fund proactive inspections of all building common areas, and make all those landlords meet all the paper burden that applies to landlords of 10 or more units in Toronto. Some City Councillors sought pilot licensing projects around the University of Ottawa (in Sandy Hill), in Vanier, and around Algonquin College. That would have been like the licensing regime in Oshawa, which covers only the area of Oshawa near the university and college. Such a regime would have favoured the homeowners in those areas, many of whom dislike student renters. Ottawa City staff determined that 90 per cent of rental units have not been the subject of a single property standards order for the last 10 years, and 23 per cent of the orders have been issued against just one half of one per cent of rental units (0.5 per cent). On that basis, City staff reported that landlord licensing or registration would provide little, if any, benefit, while wasting resources and inflating rents. As a result, staff recommended against any landlord licensing anywhere in the City of Ottawa for rental operators of any size or type.
Conclusion at City Council on November 27 At City Council, “progressive” councillors tried again. They garnered seven votes for a motion directing City staff to study the costs and implications of a landlord licensing pilot in Sandy Hill and Vanier, against 14 opposed, including Mayor Watson.
Action the City is taking instead of licensing City staff recommended enhanced enforcement focused on problem addresses, and the provision of additional consumer education for residents. Specific measures recommended by City staff and the Community and Protective Services Committee, and adopted by City Council, include: 1. Enacting a Rental Property Management By-law requiring landlords to give certain information to tenants in writing (about maintenance requirements, parking rules, and garbage handling)
Short-term rentals The City staff report recommended allowing short-term rentals by people in their principal residence, but not in other dwelling units (e.g., investor owned condos, non-owner-occupied units of duplexes and triplexes, or carriage houses, even if the main house is owner occupied). City Council adopted that approach on November 27. Short-term rental operators have launched a new association, called the Ottawa Short-Term Rental Association (OSTRA), to seek to either reverse the new regime or mitigate it. EOLO looks forward to working with OSTRA on any matters of common concern under the new rental regulations.
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2. E nacting additional pest and vermin control regulations, with standards and obligations for both landlords and tenants 3. C harging re-inspection fees to landlords who fail to comply with property standards orders 4. A dding two additional property standards officers to focus on problem addresses 5. Establishing a consumer protection and education website with:
a. E ducational content on tenant rights and related issues
b. An online searchable database to display any history of non-compliance with property standard orders 6. Exploring the feasibility of providing Property Standards Compliance Reports to both tenants and landlords following investigations EOLO believes that this enhanced enforcement system will be more effective at improving property maintenance than landlord licensing or registration. It will also be less onerous for good and average landlords.
Large and small landlords working together As noted in the last issue, EOLO did a considerable amount of work to make the landlord arguments to the City’s consultant, City staff, and City Councillors. During the consultation process, EOLO made extensive written submissions. Much of our work was reflected in the consultant’s report and the City staff report. In addition, EOLO met several times with the two associations representing small landlords in Ottawa—the Ottawa Region Landlord Association (ORLA) and the Ottawa Real Estate Investors Organization (OREIO)—to alert hundreds of small landlords and investors to the consultation process, and how they could provide input. EOLO also engaged small and large landlords in how to stay united, rather than pointing fingers at each other. The work done by EOLO, supported by Ottawa’s large landlords and the grassroots participation of Ottawa’s small landlords, enabled Ottawa’s rental housing providers of all sizes to avoid landlord licensing and registration fees. This will benefit investors, renters, and taxpayers by keeping costs down, and avoiding the waste of resources entailed in inspecting the many good quality properties, instead of focusing inspection on the small percentage of known problem properties.
Steps from here EOLO will be meeting City staff to help develop the new requirements for both landlords and tenants with respect to pest control. It seems clear that landlords will be required to bring in professional pest control operators. As well, tenants will almost certainly be required to follow the reasonable instructions of the landlord or the pest control operator as to unit preparation. Tenants who fail to do that will likely be subject to visits from a by-law officer and potentially fines from the City. That may be a significant benefit for landlords in obtaining tenant compliance more quickly and cheaply than can be done now through the Landlord and Tenant Board. EOLO will also provide input to City staff about the new Rental Property Management By-law. Upon request, the landlord will be required to give a copy of the information (with the tenants’ signature) to a by-law officer. Whenever possible, the by-law officer is to determine who broke the rules and fine that person, even if that is the tenant. Examples could be garbage put out too early, or garbage bins not brought in by the appointed time.
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Conclusion EOLO’s vigorous lobbying work at the City has saved landlords (and tenants) about $22 per unit per year, based on $11 for the Toronto fee and the same amount for the administrative cost of compliance with a registration system. As against the cost of landlord licensing, the savings run between $200 and $400 per unit per year, which is what Oshawa and three other Ontario cities charge for their landlord licensing systems.
New Ottawa water and sewer charges In April 2019, the City of Ottawa implemented its new system for charging for water and sewer services with a fixed rate based on the pipe size, as well as a lower rate for water consumption and sewage. The goal was to lessen the impact of water savings measures in reducing the City’s revenue, which the City sought to raise to cover the capital costs for renewing the water and sewer pipes, which is much more costly than operating the system. The new water rate system was designed three years ago, and includes a new fixed charge for the stormwater system, which had been previously paid for through water and sewer charges. EOLO achieved a major win for landlords by persuading the City to provide a 50 per cent
discount on the per unit stormwater charge for apartments and row houses, as compared with single family homes. City staff realized that the amount of runoff is dependent on the amount of hard surface on each lot. Thus, EOLO argued that a single family home with a large roof area per square foot of living area imposes a larger cost than apartments or row houses where the same roof area serves more units. Similarly, a long or two car driveway represents move pavement per unit than the paved areas at most rental buildings. In 2017, EOLO reviewed sample water bills to calculate the likely effect of the new water rate system. We projected that landlords would achieve a saving of 2 or 3 per cent, which was certainly better than a rate increase. To test the actual results, we have now recalculated the charges for the 2016 water consumption based on the 2019 rate system. Over three years, the landlord figures show an average water bill increase of 12.2 per cent. In contrast, the system charges as a whole have gone up 16.6 per cent. If EOLO had not obtained the 50 per cent discount, the average landlord’s water bill would have gone up by 20.3 per cent. EOLO’s work resulted in savings of between $24 and $40 per year per rental unit for the average landlord of two or more units.
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PRESIDENT’S MESSAGE Happy New Year! We are looking forward to an exciting new year ahead, with all of the new opportunities and challenges it will hold. The new year comes with many changes. We welcome two new board members to the HDAA, Anya Heath and Jeff Gilpin, and say goodbye to those leaving the board, Robert Fleet and Lucie Brusse, both of whom made significant contributions to the HDAA during their time with us. We also welcome a new administrator, Anna Kusmider, who will be taking over for Diane Currell and building on the great work that she has done over the many years as our administrator. We hope everyone had a great holiday season and we look forward to seeing everyone at our events this year! - Arun Pathak, President
Licensing update We will be continuing the fight on licensing in 2020 and expect to see some more developments this year. The City of Hamilton had a Planning Committee meeting on December 3, where they discussed and approved the Temporary Use By-law Pilot Project for wards 1 and 8, and part of ward 14. This pilot project provides for alternative zoning by-law standards on a temporary basis for three years to facilitate the creation of an accessory dwelling in single detached and two-family dwellings by amending specific provisions of Section 19 – Residential Conversion Regulations in City of Hamilton Zoning By-law No. 6593 with respect to lot area, unit size, and parking. While HDAA is fairly supportive of this pilot project, as we believe it is a start to not only helping maintain the number of rental units but perhaps increasing the supply of rental units within the City of Hamilton, there are concerns that this pilot project is a precursor to the licensing regime. There is also a concern about this being a temporary project, as there may be hesitation to invest in accessory dwellings
should, come the end of the pilot project, they are no longer seen as legal by the City. Licensing was not discussed at the December 3 meeting and has instead been postponed to May 19, 2020. HDAA is strongly against licensing in the City of Hamilton and believes it will fuel the unaffordability crisis that we are facing, as it will likely mean a further increase in rental prices throughout the City. The City of Hamilton will be taking the stance that they are “not open for business” as a licensing regime may hinder the interest for investment in rental housing in the City. This, compounded by the cancellation of the LRT, may push development to other communities that are making it more appealing for investors and developers. HDAA will continue to participate in discussions on licensing and hopes that the City will hear our concerns and work with us in partnership to find a better solution for the City of Hamilton that will be beneficial for all parties involved.
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Recent events January 9, 2020 – Dinner Meeting Our first dinner meeting of the year was a great success. Marvin Ryder, an Assistant Professor of Marketing at the DeGroote School of Business for more than 34 years, joined us to speak on the economic outlook for 2020. Mr. Ryder has contributed greatly to the City of Hamilton; he has sat on numerous boards including Hamilton Place, Hamilton Convention Centre, and Copps Coliseum. He was also Chair of the Transition Board for the new City of Hamilton and the Hamilton Health Sciences Board of Directors. He has written more than 70 case studies illustrating marketing, business strategy, and entrepreneurship problems, including case studies on Porsche, Union Gas, Crayola, and Molson Breweries. Today, he is most recognized for nearly 350 appearances annually on television, radio, and in newspaper, commenting on business issues of the day. Mr. Ryder provided some great insights to our membership of what to expect in the coming year. The overall Canadian economy grew approximately 1.5 per cent in 2019 and 2020 should see similar growth, our unemployment rates are at some of the lowest levels we have seen in nearly half a century, and our dollar has been steady compared to the U.S. dollar, fluctuating from approximately 75 to 78 cents for every U.S. dollar. As with 2019, there are no indications that interest rates will change this year; if there are any changes, interest rates may decrease slightly. Overall, 2020 is predicted to be quite similar to 2019. A possible recession has been on everyone’s mind, however, particularly due to the inverted yield curve we have been seeing (yields on bonds with a shorter duration are higher than the yields on bonds that have a longer duration). However, Mr. Ryder has put everyone’s mind at ease with his prediction that there will be no recession in 2020 (as long as political issues don’t get in the way). The hot button issue on everyone’s mind in Hamilton is the recent cancellation of the LRT and what this means for the City in regards to growth and development. Mr. Ryder provided his thoughts on this topic. He believes that intensification is still very likely along the now cancelled LRT corridor. It seems the LRT is likely dead but, on a positive note, this opens up the possibility of other transit options within that corridor, and we look forward to see what the City of Hamilton proposes. Things to look out for past 2020? The aging population means balancing our budgets will be more problematic and more creative options and strategies will need to be looked at, and they will need to looked at now. There are talks about potential changes to the capital gains inclusion rate as one such strategy, which would have a drastic impact not only on the rental housing industry, but on anyone who invests in capital earning investments. CFAA is currently creating an Action Plan in regards to this and HDAA will be representing our membership in any discussions.
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Upcoming events March 12 – Dinner Meeting Wondering about the CMHC Rental Market Report for 2019? Join us at our next dinner meeting on March 12, 2020 to hear HDAA President, Arun Pathak, present last year’s findings, and get a Real Estate Market Update and Outlook for 2020 from Lucie Brusse, Commercial Real Estate Advisor, Royal LePage Burloak Real Estate Services.
April 15 – HDAA Trade Show Our annual Trade Show will be held at Michelangelo Events & Conference Centre. It will be a great opportunity to meet some amazing suppliers to the rental housing industry. The suppliers who exhibit are also members of the HDAA, so you know they support housing providers. We have some great things up our sleeves this year to make this the best trade show yet. Keep an eye out on our website and emails for more information leading up to the event.
June 24 – Golf Tournament Looking for an excuse to spend some time outdoors during the week? Our annual golf tournament will be here before you know it. We are hosting this year’s event at Century Pines Golf Course. We will be sending out early bird registrations soon, so keep an eye out for those and make sure to reserve your spots quickly as space is limited.
Hamilton and District Landlords Since 1960, the Hamilton and District Apartment Association has grown significantly. Our members manage over of 30,000 units throughout Hamilton, Burlington, Brantford, Guelph, Mississauga, Oakville, St. Catharines and into the Niagara Peninsula. The association is a highly respected organization, sought out regularly by government, industry, media and the public.
Interested? Call us or join online! Ph: 289-208-5445 Web: www.hamiltonapartmentassociation.ca
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Looking ahead to 2020 I would like to thank all of our members and associates for a wonderful end to 2019. The final event of the year, our Christmas party, was well attended by approximately 180 people. Members also contributed generously to the Salvation Army Toy Drive, which provides toys to underprivileged children. In addition, we honoured long-time member Brenda Trineer with a lifetime achievement award. Brenda was an active board member during her time and she acted as committee chair for the charity golf tournament through its 20th anniversary this year. In this issue, we’ve featured a story that deals with a new affordable housing initiative and another that focuses on ways that landlords can mitigate risk with respect to window air conditioners. Stayed tuned to our website for information pertaining to our upcoming monthly meetings. Thank you for all of your support for a magnificent 2019!
- Shirley Criger, LPMA President LONDON CONSIDERS A PLAN TO INCREASE AFFORDABLE HOUSING UNITS The City of London is working on a new initiative that could help developers and non-profits overcome the barriers to developing affordable housing units. Travis Macbeth, a city planner and the project’s lead, said that the draft Affordable Housing Community Improvement Plan calls for interestfree loans that could help developers and nonprofits offset the costs of development charges and land acquisition that were identified during consultations last summer. “It’s to encourage more mixed-income and mixeduse development, and encourage more affordable units being constructed,” Macbeth said. “There’s a need for this at the low end of the market to affordable level.” Housing is considered to be affordable if it costs 30 per cent or less of pre-tax income of low- to moderate-income households, according to the
Canada Mortgage and Housing Corporation (CMHC). Through the plan, the City aims to aid those who are earning too much to qualify for rent-gearedto-income housing, but not enough to afford high market rents. More than 50 per cent of renter households can’t afford $1,021 a month for an average one-bedroom apartment. Macbeth said one of the plan’s goals involves defining affordable housing needs based on household incomes. Private-market developers and non-profits would enter into interest-free loan agreements with the City based on the cost of the units being created. Homeowners who create secondary or granny suites in their homes would also be eligible for loans. The plan suggests that loans be offered at $20,000 for each affordable unit and for each secondary suite (to cover renovation costs). Developers would need to build five or more affordable housing units in a multi-residential building or townhome complex, Macbeth said. Developers and non-profits would be required to develop new affordable units at or below the City’s average market rent, as defined by CMHC. The City will assess the rents that existing secondary suites are commanding. The aim is to make home ownership more affordable and increase the long-term rental supply. “This is just to encourage more of those units being created,” Macbeth said. “Anecdotally, it’s the idea that basement units are going to be cheaper than any other newly built unit in an apartment building.” Early in the new year, planners will present the final draft of the Community Improvement Plan. If the plan is approved at the end of the multi-year budget process, and funding is available, the City could enter into loan agreements with applicants. The plan would also unlock funding from upper levels of government. The National Housing Strategy, a 10-year multi-billion-dollar plan, requires co-investment from the City to access a particular stream of federal funding. The City’s loans represent its portion of the co-investment.
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L A N D L O R D S C O N T E M P L AT E R E S T R I C T I O N S T O W I N D OW A I R CONDITIONERS Owners and managers of multi-residential buildings are rethinking the rules that allow tenants to install window air conditioners in their apartments. The change comes following the death of Crystal Mirogho, a two-year-old who was hit by an air conditioner that fell from an apartment window in a Toronto Community Housing high-rise building last November. Joe Hoffer
As a result of that tragedy, Toronto Community Housing Corporation (TCHC) announced in a news release that it will no longer permit tenants to install window air conditioners and has begun removing them in a phased approach. It will replace each window air conditioner with a new floor-mounted model air conditioner, at no charge to the tenant, before the start of the 2020 cooling season, as part of its existing exchange program. London lawyer Joe Hoffer said that landlords are tightening their rules in an effort to mitigate risk. Air conditioning units that are improperly installed by tenants can fall, injuring or killing pedestrians below, but landlords would likely be sued, even though they weren’t responsible for the installation. One way of mitigating risk is to amend a lease to restrict the installation of window air conditioners and help the landlord ensure the safety of any person entering the property, Hoffer said. The landlord is required under the Residential Tenancies Act, the Occupier’s Liability Act, and simple duty of care civil liability to minimize such risks. Hoffer said one landlord with a large portfolio took the position that no window air conditioner could be installed unless it was directly over a tenant’s balcony, or there was a maximum of four feet between the air conditioner and the ground. Currently, the Rules and Regulations of the LPMA lease state that tenants aren’t allowed to use air conditioners without first obtaining the written consent of the landlord and paying a charge to cover the additional use of electricity. Some landlords take the additional step of restricting the size of the unit, requiring that a professional install it and then confirm in writing that it was installed safely. Others stipulate that the landlord be allowed to inspect the unit following the installation. “The basis for granting consent varies among landlords,” Hoffer said. It is Hoffer’s position that once a public housing provider—in this situation, TCHC—issues restrictions, the standard of care dictates that restrictions be imposed overall on the installation of air conditioners. Hoffer said one appropriate restriction centres on limiting where air conditioners could be installed in relation to something below that could break their fall if they toppled out of a window. Another is to prohibit them completely, which he believes is excessive. A third and more viable option is to limit air conditioners to portable floor units if tenants can’t meet the minimum ground-to-unit ratio.
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“In my view, that would be a reasonable restriction in light of what occurred in this case,” he said. Hoffer said landlords don’t need to change the language of their lease to make a restriction. However, they might experience some resistance from tenants who have used window air conditioners for many years. “Those residents could take the position that this is grossly unfair, that they’ve been allowed to do it before, and the landlord can’t prevent them from continuing to do it,” Hoffer said. In the Waiver section of the LPMA lease, the landlord and the tenant acknowledge that just because landlords have agreed to something in the past doesn’t mean that they have waived their rights under the lease going forward. Although that clause is in the landlords’ favour, Hoffer doesn’t recommend that they solely depend on it to make their case. He suggests that they send a notice to residents outlining the restrictions and the reason for them. “They should point out that, as a result, TCHC has introduced the same restrictions that the landlord is going to introduce, that it’s being done for the safety of residents and anybody who comes onto the property, and that it is going to be the rule going forward,” Hoffer said. The Rules and Regulations in the LPMA lease also allow landlords to use their rule-making power. They could tell tenants who resist that this is a new, but very real, risk that landlords hadn’t contemplated before and, to meet their standard of care, it’s appropriate to introduce a rule.
“I think that would really nail things down,” Hoffer said. “If a landlord gets some pushback, he can say, ‘Fine, we’ll enact a rule under the terms of the lease and you better comply with it or else we’ll initiate proceedings.’” If that occurred, a landlord could initiate a notice of termination due to the tenant’s interference with the landlord’s legal interest in ensuring the safety of anyone who comes onto the property. Hoffer likens it to a common law duty of care and standard of care, and it’s also a statutory standard of care under the Occupier’s Liability Act.
Hoffer said landlords should put a notice in tenants’ mailboxes explaining the new rule. If it is worded properly, it won’t reflect poorly on the landlord. “It’s going to make the landlord look good that they’re taking this kind of issue seriously, that they’re following a protocol that’s been established by essentially a municipal government agency, and that it’s being done for the safety of anybody who comes onto the property, including residents, their children, and so on,” Hoffer said. It also demonstrates that landlords are taking action before another tragedy could occur.
London Property Management Association (LPMA) is a non-profit organization, located in London, Ontario, Canada, that provides information and education to landlords. LPMA represents the interests of both large and small property owners. The association has more than 400 landlord members representing approximately 35,000 rental units. Membership is open to landlords and property management professionals who own or manage one or more residential rental units.
Sign up online or call Cassie Allison. Ph: 519-672-6999 Web: www.LPMA.ca
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