A reader is desperate to get her landlord to carry out maintenance work in her damp townhouse and is asking the experts if withholding rental payments could give her some leverage.
The dwelling is apparently suffering from internal damp, which has resulted in the reader having to discard clothing and shoes damaged by the damp.
The skirting boards are starting to rot and the bathroom ceiling is mouldy despite her having cleaned and painted it with mould resistant paint.
The reader, who has lived in this townhouse for three years, tells us that she has complained to the landlord on various occasions.
He denies the problem is a result of damp but rather caused by steam.
The reader says the landlord misspoke in one of their discussions and admitted to merely painting over the problems before a new tenant took occupation of the dwelling.
See the reader’s question here.
The terms of lease have not been provided to us but the lease should be examined for any remedy.
While steam could cause the mould on the bathroom ceiling, it is doubtful whether it would extend to the rest of the dwelling.
A tenant is entitled to the full use and enjoyment of a leased dwelling.
The Rental Housing Act makes reference to the ‘habitability’, which includes the protection of the health of the inhabitants. The damp and mould could constitute a health risk to the occupants.
The Act further prescribes that a landlord must maintain the existing structure of the dwelling and facilitate the provision of basic services to it.
The regulations to the Act provide for similar provisions and a failure to comply may constitute an ‘unfair practice’. This could provide the reader with the basis for a referral of the matter to the Rental Housing Tribunal.
The reader could also approach the court for assistance but she should consider the cost.
The advice of an attorney may be beneficial in taking the matter forward.
Our courts have considered how these types of situations can be dealt with.
They have expressed in various judgments that an order for a specific performance is less desirable than an order for damages.
It is difficult for the court to oversee the repairs and to ensure that the order is adhered to.
The tenant could thus request the reimbursement of monies spent in carrying out the repairs that should have been effected by the landlord.
A reduction in the rental could also be appropriate depending on the circumstances.
In instances where the Consumer Protection Act is applicable the reader could also consider any appropriate remedy under this legislation.
However, the remedies under the Rental Housing Act would probably be a better course of action as they address this type of issue directly.
It would not be advisable to withhold rental in an attempt to force the landlord to carry out repairs.
This could lead to a situation where the landlord takes legal steps for the recovery of the arrear rental and possibly the eviction of the reader.
Although the landlord’s failure to carry out the repairs could be raised as part of a defence, it would not result in speedy repairs as litigation may take a considerable period of time.
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