What you need to know about ‘rent abatements’ in Ontario
Posted October 4, 2023 7:38 pm.
Last Updated October 19, 2023 1:49 pm.
Ontario’s Rental Tenancies Act (RTA) says that if a tenant is not being provided with all the services stipulated in a rental lease or their rights are violated in some way, they may be eligible for a ‘rent abatement.’
An abatement is reimbursement of a portion of rent paid back to the tenant to compensate for what amounts to a breach of contract by the landlord, explains Elysha Roeper, staff lawyer at West Toronto Community Legal Services.
“For example, an illegal entry by the landlord without justifiable cause, harassment, discrimination, breaches in maintenance and repair issues — so if the landlord’s not taking sufficient action to repair something that is their responsibility,” she says.
A rent abatement is a formal order from the Landlord and Tenant Board (LTB). A tenant must apply to the board in order to request and receive one, using either a T2 or a T6 form after which a hearing will be scheduled. Roeper suggests that tenants contact a local community legal aid clinic to help file any paperwork with the board and prepare for the hearing.
Tenants can file a T2 form to have the board rule on issues relating to tenant rights under the following circumstances involving the landlord, landlord’s agent or superintendent:
- The unit was entered illegally
- The tenant was harassed, threatened coerced, obstructed or otherwise interfered with
- Vital services were withheld or interfered with
- The locks were changed and the tenant was not given replacement keys
- Reasonable enjoyment of the unit or complex was substantially interfered with
In addition, a T2 form can be used to have the board determine whether the landlord did not give the tenant 72 hours to remove their property after being evicted by a sheriff.
It can also be used if, in the case of a care home, the landlord did not provide the tenant with a written tenancy agreement for the unit or the agreement did not include information about services, meals or other charges that the tenant agreed to.
Tenants can file a T6 form to have the board rule on issues relating to maintenance and repairs, specifically:
- The rental unit or residential complex has not been repaired or maintained by the landlord
- The landlord is not complying with health, safety, housing or maintenance standards.
“A lot of the times tenants are filing [a T2 and T6] jointly at the same time to make sure that they’re covering all the issues. For example, cockroaches — if you have a pest problem that doesn’t really clearly fit into maintenance or repair or tenant rights. And so I usually suggest that people file both and just expect that the landlord tenant board will address one of them,” says Roeper.
Tenant dos and don’ts
Tenants have up to a year to file for a rent abatement.
DO: Collect sufficient evidence — the more, the better.
As far as possible, all communication between the tenant and landlord should be in written form.
For maintenance issues specifically, Roeper says tenants should ensure they have proof that the landlord was made aware of the problem, plus any other correspondence to support their claims.
“If you don’t have a cloud-based storage system or a way to access it from two places, make sure you back up your evidence,” she says.
“I can’t even describe the amount of times that a tenant has come to me and said that they had all this evidence on their phone and they lost their phone.”
When it comes to a violation of tenant rights, Roeper says it may not always be possible to inform the landlord of the issue.
“You’re not required to go up to someone being racist to you and say ‘stopping being racist to me,’ … you don’t have to put yourself in a situation of danger, but if there is a reason why you’re not going to the landlord with your concerns, you might want to prepare evidence as to why,” she says.
Roeper says where possible, interactions between the landlord and tenant can be recorded to provide as evidence to the board.
As Canada follows the single-party consent rule, a tenant can record any interaction they are a part of in their own home or a public place, including phone conversations.
“If you are in somebody else’s home, that is pretty clearly not allowed … anywhere where someone has a reasonable expectation of privacy because they control the space or it’s a more private area like inside of a religious institution or with your lawyer — those places should not be recorded,” says Roeper.
“What I also suggest to people is that if you have any questions about whether or not you’re able to record — back in days where people wouldn’t use as much technology — I used to suggest people just keep a notebook with all of the issues and note down significant conversations. Because you have to think to yourself that if you have a hearing, it might not be for seven or eight months and how much are you genuinely going to remember? And your own recollection can be one of your strongest pieces of evidence at a hearing.”
DON’T: Withhold rent.
As per the RTA, harassment, lack of repairs or inability to use the unit as intended is not reason enough to stop paying rent.
“Unless you have an order from the landlord and tenant board saying you do not owe X amount of dollars, the rent will be owed because it is a contract at the end of the day,” says Roeper.
“I’ve seen a case where a landlord went after arrears that were six years old and that was allowed.”
How rent abatements are calculated
If the LTB grants the tenant an abatement, it is usually a percentage of the rent based on the length of time the tenant had to live with the issue in question. The landlord’s efforts to resolve the problem are also taken into account.
“There is also a bit of a principle in law where no one’s expected to be perfect all of the time. And so if the landlord puts in an order for a stove and then the shipping company has [delays] the LTB would look at things that stood in the way of the landlord doing what they were supposed to do,” says Roeper.
“If your fridge stopped working and the landlord ordered a new fridge and in the interim gave you a mini fridge, that would be kind of a reasonable reaction and you might not get a lot of rent abatement for that. But if there were other things like the fridge had been not working for a long time, the landlord didn’t touch it, you asked several times, that might point towards a larger abatement. Getting all of your rent back – 100 per cent rent abatement – is usually only reserved for times where you couldn’t physically occupy the unit.”
T2 and T6 forms also have the option of requesting several other remedies apart from rent abatement, including asking the board to fine the landlord and asking for the cost of repairs or replacement of damaged property.
Another common remedy that can be requested is reimbursement of out-of-pocket expenses.
“You can request that the landlord tenant board give you the right to actually go out and purchase the thing that you need. The safest way is always to make the request first and take action after,” says Roeper.
“If the landlord’s not taking action, you can request that you be reimbursed for expenses that you’ve incurred or repairs that you’ve done,”
However, Roeper says it is possible for a landlord to dispute the cost of repairs or a replacement appliance for example, and the LTB might award the tenant only a portion of the cost.
“So there’s no guarantee you’d get a hundred percent of it back,” she says.
“But people are just expected to be reasonable under the circumstances. If you can show ‘this is why I came to the decision I came to’ and the LTB agrees that what you did was reasonable, then often that can be a [fully] reimbursed expense.”