| Mar 22, 2007


Legalese - March 22, 2007

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Legalese - March 22, 2007 Keep Your Hands Clean byWilliam A. Florence, Barrister and Solicitor

The law is all about fairness. In adjudicating disputes, courts have historically relied on “equitable principles”. The saying, “He who comes into equity must come with clean hands,” is an example of a legal “maxim”, and is an equitable principle. This maxim means that if someone is seeking help from a court, but they are guilty of unlawful or immoral conduct relating to what they are asking the court to help them with, the court may decide not to help them. In other words, if someone has a problem and needs help from a court, it is easier for them to get relief if they have done nothing wrong themselves.

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Here is an example. Tenants can have problems with the state of repair of their rental unit. These problems can range from a leaky faucet, to serious safety hazards. The best thing that a tenant can do once they realize they have a problem, is to let their landlord know about it right away, in writing. The landlord may not even know that there is a problem, and needs to be informed so they can fix it. The tenant should:

keep track of when they first discovered the problem;keep track of when they first and subsequently notified the landlord;keep notes detailing the problem; andtake pictures of the disrepair if possible.

If the landlord does not respond to the repair request, there are avenues available to assist tenants. For instance, the local municipal government could be contacted. In response it may send someone to inspect the property for bylaw violations and issue a municipal work order that requires the landlord to fix the maintenance problems by a deadline. However, sometimes tenants decide that if the landlord is not going to fix things, then they will withhold the rent to motivate the landlord into action. This is a bad idea. As the landlord is required by law to maintain the property in a good state of repair, there is no need for the tenant to withhold rent. In fact, this can hinder a tenant’s attempt to get their legal rights enforced.

The venue where landlord and tenant disputes are resolved is the “Landlord and Tenant Board”, (“LTB”). Both landlords and tenants have equal opportunity to bring applications before the LTB. If a tenant withholds the rent, the landlord can give the tenant a notice of termination, and then file an application to the LTB to have the tenant evicted. It is possible during an eviction hearing for the tenant to raise the issue of maintenance problems. However, it is much simpler and in the tenant’s interest not to withhold the rent, and file an application themselves about the maintenance problems. Then they will not have to worry about fighting a potential eviction because of non-payment of rent.

If the tenant files an application about maintenance problems to the LTB, they must prove their case. This is why the detailed notes, and photographs described above, come in handy. The tenant could also file an application for a request that their rent be paid to the LTB, instead of the landlord, until the application about maintenance is decided. Then tenant would have to justify why the LTB should accept this request.

One of the first things that an adjudicator at the LTB wants to know when hearing a case is whether all the rent has been paid. If the tenant can go in front of an adjudicator with “clean hands”, it is easier for them to pursue a favourable remedy. The LTB could order the landlord to make repairs, and order a rent abatement, whereby the landlord must repay the tenant some of the rent, due to the landlord’s failure to uphold their legal obligations.

Your community legal clinic is an excellent resource for further information, and can provide legal advice and representation for tenants who are in need of assistance.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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