Frustrated Tenancies:

Question: Can a tenant end a residential tenancy in Ontario if the unit is condemned or becomes uninhabitable due to a fire or other unforeseeable event?

Answer: A tenant may have a strong basis to argue the tenancy is frustrated (and ends by operation of law) when an unforeseeable outside event makes the unit impossible to occupy, such as condemnation that prohibits occupancy or major fire and water damage rendering the premises uninhabitable, which is reflected in Residential Tenancies Act, 2006, S.O. 2006, c. 17 at section 19.  Where the event truly makes occupancy impossible, the landlord and tenant obligations can cease and security of tenure may not apply during the uninhabitable period, and decisions like AS v. CJM show that an official prohibition on occupancy can end the tenancy.  Recourse often includes promptly documenting the condition and any municipal order, asking what the landlord says is the restoration timeline, and getting advice on whether frustration applies versus whether the landlord still must maintain habitable premises; if you need help navigating this in Ontario, DefendCharges.ca™ can assist paralegal guidance, call (647) 559-3377.

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Understanding When the Doctrine of Frustration Applies to a Residential Tenancy and What Recourse Does a Tenant Have?

Incidents that cause serious damage such as a fire, a tornado, a flood, a major water leak, or another catastrophic circumstance, may occur and cause impossibility of occupancy of a residential unit.  Even a change in law may occur in such a way as to make compliance impossible. When a tenancy is made impossible due to unforeseeable outside forces, such is referred to as a force majeure event, and the legal result is that the statutory obligations as well as the contractual obligations of the landlord and the tenant come to an end as per section 19 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17. This ending of the tenancy relationship due to the frustrating event occurs regardless of whether the frustrating event happens within a lease period or happens afterwards when the lease is expired and the tenure is converted into a month-to-month arrangement. Specifically, the Residential Tenancies Act, 2006 says:

Note: Please contact DefendCharges.ca™ by phone at: (647) 559-3377 to discuss any specific questions that you may have.

Condemnation

In some circumstances, premises may become unoccupiable when ordered condemned by the local municipality such as occurred in the case of AS v. CJM, TSL-05808-10 (Re), 2010 CanLII 58985 wherein it was stated:

Accordingly, and apparently, despite that premises may become condemned due to the neglect of the landlord, as a matter of law, frustration of the tenancy agreement, and thereby termination of the tenancy agreement with corresponding termination of the tenancy, results when the premises are officially condemned.

Ceasing of Security of Tenure

Where a tenancy agreement is deemed frustrated, such as in circumstances where a fire requires restorative work that will be extensive and take considerable time, the security of tenure, including first right of refusal to return following restorative work, is absent.  Only where the restorative work can be done in a reasonable amount of time will the tenancy agreement be without frustration and therefore with security of tenure protected as per the case of Y.Y. v. A.T. and L.W., TEL-32649-12 (Re), 2013 CanLII 51226 where it was said:

Summary Comment

When a serious force majeure event occurs, rendering the premises unoccupiable for an unforeseeable length of time, the tenancy agreement, whether within a lease period or month-to-month period, becomes frustrated and all obligations cease including the security of tenure usually enjoyed by the tenant.