Many parts of Ontario can now be oppressively hot in the summer and brutally cold in the winter. Climate change and utility costs are impacting housing issues in myriad ways. Freezing temperatures are life-threatening for people without a place to live. For many who are housed, broken furnaces, inadequate insulation and aging windows can also leave them vulnerable to the dangers of freezing temperatures.
Here are 6 common questions tenants are asking when they have no heat or their place is too cold. To provide you with sound legal information, I interviewed our staff lawyer Karen Andrews who has more than 20 years of experience as a tenant lawyer. This general information will help you understand your rights and what you can do if you experience freezing temperatures indoors.
* This blog post contains general information. It is not a substitute for getting legal advice about your particular situation. *
Q #1 – Can my landlord demand that I pay for utilities as part of my rent?
The short answer is “yes”. All Ontario landlords should now be using Ontario’s Residential Tenancy Agreement – Standard Form of Lease. With a few limited exceptions, the Standard Form of Lease sets out that a landlord can demand that a tenant pay for utilities. Given that rents have also been frozen for 2021, landlords may be more aggressive in demanding these costs as a way to increase their bottom line.
If your landlord wants you to pay utility costs, these costs should be clearly specified. As a tenant, you should know if your landlord is the account holder or if you are the account holder of your utility bills. All tenants should also obtain detailed information from their landlord about what the utility costs might be before entering into any agreement to rent. You can ask your landlord what the average cost of hydro has been for the unit you may be renting. These costs may make the difference between what might be affordable accommodation and unaffordable accommodation. And, like rent, these costs can be a subject of negotiation between you and your landlord.
Also, legislation has been recently passed in Ontario that now clarifies the law in cases where a tenant or former tenant does not pay utility costs that they were required to pay under the terms of the tenancy agreement. Landlords can now bring applications to the Landlord and Tenant Board for an order that these costs be paid or set off from the last month’s rent deposit in cases of the termination of your tenancy.
Q #2 – My unit is freezing. When I told my landlord about it, I was informed that the heat isn’t working. My landlord says he is working on fixing the issue. But I can’t live in my unit. What are my options?
Keep a written record of all communication with your landlord about the problem. Email correspondence with your landlord can be a good way to do this.
With any heat issues, buy a thermometer and keep a record of what the temperatures actually are in your unit. The law sets out that a landlord has an obligation to maintain a unit “fit for habitation”. Arguably, if your unit is too cold your landlord is not meeting that obligation.
Your landlord should compensate you for breaching their obligation to keep your unit “fit for habitation”. For example, your landlord could provide a space heater, reduce the rent for the period of the disruption, pay your out-of-pocket or extra expenses if you had to move out temporarily until the heating issues were resolved. If your landlord won’t compensate you, you might consider filing an application at the Landlord and Tenant Board.
Landlords and tenants both have obligations to “minimize losses”. So for example, you could not move into an expensive hotel while the repairs are being done and expect full compensation.
Q #3 – My landlord says that my complaints about the freezing temperature in my unit are unfounded because she’s maintaining the minimum temperature requirements by law. But my place is still too cold. What can I do?
Most places in Ontario have local by-laws to ensure tenants get adequate heat. For example, in Toronto heat has to be provided between September 15th and June 1st to keep the room temperature at least 21 degrees Celsius.
Don’t rely on what your landlord may say, buy a thermometer and check the temperature for yourself. Keep a log or diary of the temperatures in your unit.
If the temperature is below the legal minimum, you should advise the landlord in writing of the results of your investigation reminding the landlord that the heat must be set at the lawful level.
If the problem continues, you should contact your local government and ask for an inspection. In many cities, you just call 311 to do that. If you report a heat issue to the City, the City will contact your landlord and give them an opportunity to raise the heat for the inspection. You might also consider applying for an abatement of rent at the Landlord and Tenant Board.
Some tenants say that their landlord will raise the heat only on the day of the inspection. If this is the case, have a credible third party verify the heat deficiencies of your unit. That person can then act as your witness if you decide to file an application at the Landlord and Tenant Board.
If you live in an apartment building, you should discuss the matter with your neighbours to see if they want to get the city involved or perhaps participate in a joint application at the Landlord and Tenant Board.
At the end of the day, the success of an application will come down to good evidence and credibility.
Perhaps your landlord has tried to alleviate the issue but it’s still too cold to live in your unit. If you have a documented health condition or disability that requires a warm unit, and the cold in your unit is impacting your health, this might raise a human rights issue. Tell your landlord of your need for accommodation. If the accommodation cannot be provided, the landlord can agree to terminate the tenancy and provide alternative accommodation.
If you find the temperature too cold in your unit even if it is at the legal minimum, you may have to resort to wearing warmer clothes at home.
Q #4: I live in a triplex that has a furnace in the basement, controlled by the landlord, that supplies some heat to all three units. But my unit has baseboard heaters as well and I have to pay for the electricity used, which is becoming costly. My landlord says he has set the temperature at 21 degrees but my unit is colder. Do I have to turn on my baseboard heaters or is it the landlord’s duty to provide enough heat to my unit with the furnace in the basement?
The answer depends on your agreement with the landlord.
You may have a written lease that says the landlord is responsible for providing heat. You may have an oral agreement (you and the landlord talked about it and agreed he would provide heat) or an implied agreement (the landlord has always provided the heat). In any of these cases, you do not have to make regular use of the baseboard heaters. They are there for emergency back-up.
If there is no agreement making the landlord responsible for providing heat, or your agreement with the landlord is that you will contribute to the cost of heat by using the baseboard heaters, the landlord will not be held responsible if the temperature is below the legal minimum of 21 degrees.
The landlord is still responsible for providing and maintaining heating equipment that is capable of keeping the temperature at the legal minimum, but if you pay all or part of the heating bill, it’s up to you to keep the temperature up.
Q #5 – Am I (tenant) responsible for keeping my unit warm? What if I don’t have access to the thermostat to set my temperature?
The landlord is responsible for keeping the rental unit at or above the lawful minimum temperature. Houses with more than one unit can present problems with temperature – the upper floors can be too warm and the lower floors can be too cold. The animosity between tenants can also present problems. The tenant who has access to the thermostat can control the temperature of all the units.
Take your evidence of a ‘too cool’ unit to the landlord and they will have to require the tenant who controls the thermostat to keep it at proper minimums.
If the landlord takes no action, keep a log or diary of the temperatures in your unit and consider filing an application at the Landlord and Tenant Board.
Q #6 – My place is freezing! I bought a space heater to warm up my unit because the place is too cold. But I pay for hydro and I’m afraid the bills will be too costly. Is there any way I can have the landlord pay for some portions of the bill?
You need to conduct your own investigation about the temperatures in your unit. If the temperature is too low because of an inadequate heating system and you are satisfied that a space heater is the best way to solve this issue, you should request that your landlord reduce your rent to account for your increased electricity charges. Rent can be decreased at any point during a tenancy agreement.
Alternatively, you and your landlord can agree that the landlord will pay for all your electricity in return for a corresponding increase in rent, relying on s. 123 of the Residential Tenancies Act (RTA). This increase in rent should not include the increased electricity charges due to the heat issue.
Do keep in mind that space heaters may be a fire hazard. Make sure to read the manual and use your space heater safely.
Pandemic Issues to Keep in Mind
Several of these issues may require a tenant having to file an application at the Landlord and Tenant Board. Before the pandemic hit, the Landlord and Tenant Board was severely backlogged. Because of the pandemic, these delays have become even greater. Also, the Landlord and Tenant Board is no longer conducting in-person hearings and many tenants without proper technology are facing difficulties in meaningfully engaging in their remote hearings
Heating problems can be urgent in nature. Filing an application at the Landlord and Tenant Board may not be a suitable way to address a pressing problem with the heat. You should obtain legal advice before terminating your tenancy or pursuing a self-help remedy if your landlord will not address the heating problem with the urgency that it requires.
