If Water Was Always Included, Can a Landlord Now Start to Charge For the Water Bill?

When a Landlord Provides the Use of Various Amenities to a Tenant, Being Parking, Storage, Laundry, Among Other Things, the Landlord Must Continue to Provide Such Amenities, Even If Such Amenities Are Absent From the Lease Terms.

Similar Questions About Withdrawal of Amenities Include:

  • If a Landlord Always Included Water Can a Landlord Afterward Require the Tenant to Start Paying the Water Bill?
  • Is a Landlord Required to Keep the Pilot Light For a Decorative Gas Fireplace On?
  • Can a Landlord Substitute Pay Laundry When It Was Always Free Laundry Before?
  • Is a Landlord Required to Rebuild a Fence If a Backyard Fence is Damaged By a Storm?
  • Should a Landlord Fix a Dishwasher That Wasn't Mentioned In the Lease?


Determining If Withdrawal of An Amenity or Service is Unlawful

Residential Lease Document A service historically provided to a tenant is a legacy service or amenity. Examples include parking, storage shed, fenced yard, laundry facilities, trash dumpster, various utilities, and many others. Often whether such service or amenity is included within the tenancy arrangement is absent, meaning silent, within the lease agreement, if any. In the absence of lease terms, or even when such was provided despite a contrary lease term, whether the service or amenity must remain available may be determined by review of conduct.

The Law

As per the case of P.T. v. V.R., et alCET-74735-18 (Re), 2018 CanLII 88578 (ON LTB) it was said by the Landlord Tenant Board that:

11.  The issue for me to consider here is whether the Landlords have substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household by the male Landlord demanding the Tenant and her guests obtain his permission for them to park in the two unassigned spaces she has had the use of for about 4 years before September 2016 and arranging to have the Tenant’s daughter’s car and the Tenant’s guest’s car ticketed.

12.  The lot survey submitted by the Landlord indicates that there is plenty of space to park along the eastern side of the Landlords’ house without encroaching on the right-of-way that is a dead end.

13.  Indeed, the photograph of a car parked beside the Landlords’ house shows it is not on the right-of-way and yet that was where the Tenant’s daughter apparently was parked when she was boxed in for 3 hours by the male Landlord in late January 2018. The male Landlord called the City parking enforcement division to have the Tenant’s daughter’s car ticketed but because she was present the enforcement officer refused to do so.

14.  The lease is silent on the issue of parking by the Tenant’s guests or occupants. However, examination of the parties’ conduct suggests that there was a long-standing and until fairly recently uncontested practice of the Tenant’s guests parking on the property.

15.  In Feather v. Bradford (Town), the Ontario Court of Appeal succinctly set out the general principles of estoppel by conduct as follows:

[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. (London: Sweet & Maxwell, 2001), at p. 891:

[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]

16.  Through their conduct the Landlords permitted the Tenant the right to unassigned parking spaces for her car and that of her guests. Having relied upon that representation, the male Landlord is estopped from claiming authority to revoke this right four years later.

17.  Consequently, I also find for at least the past year the Landlords have substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenant and the Tenant’s son while he was an occupant of the rental unit by demanding adherence to arbitrary rules with respect to parking for the Tenant and her guests, including her family members, contrary to a long established practice whereby the Tenant’ has two parking spots to use for herself and her guests and guests were able to park behind her car.

Interestingly, in addition to the finding that the landlord withdrew an amenity that was deemed included by the 'estoppel by conduct' principle, the landlord was found to have behaved in further misbehaviour for interfering in reasonable enjoyment of the rental unit due to the manner in which the landlord attempted to demand compliance with the position of the landlord.

Accordingly, when a landlord, or equally a tenant if the tables were turned and involved other facts or another specific issue, the historic behaviour may establish the parameters of what is an included amenity or service.  Once established as a legacy amenity or service, a landlord is unable to withdraw that amenity or service.

Summary Comment
What Is the Short Answer?

When an amenity or service is provided over a period of time, such becomes a legacy amenity or service. While the lease may be silent as to whether such is an included amenity or service, the principle of 'estoppel by conduct' indicates that a party to an agreement is unable to act in a certain way for an extended period of time and then choose to act in a contrary way. The mere fact that such amenity or service was historically provided may establish an 'estoppel by conduct' that precludes the withdrawal of the amenity or service.

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