Rent Abatement's for Mould

From Riverview Legal Group


A Summary of Landlord and Tenant Board Decisions on Mould

The object of this summary is to illustrate the factors and demonstrate common themes that adjudicators have used in determining the amount of rent abatement provided for mold.

The analysis shows that while there is a wide variation in the percentage of rate abatement's provided, there are some consistencies in the decision making by the adjudicators. In analyzing thirty two (32) cases at the Ontario Landlord and Tenant Board, the abatement's ranged from 10-50% of a rent abatement.

In all but one of the 32 cases, medical consequences of mold were not assumed to arise simply because mold was present, or because tenants provided copies of prescriptions they used throughout their tenancy. SWL-37003-12 (2012) CanLII 74721 (ONLTB) stated it this way: “medical evidence must draw a direct correlation between a specific cause and specific medical effect”. The adjudicator further stated that the mold variety should be tested and correlated with any particular medical problems which are known to rise as a result from this mold. Similarly, in a case where the tenant claimed that the mold caused her asthma, the member found that the tenant’s breathing issues “may have predated her living in the rental unit, although this is not entirely clear from the evidence” (page 2). The doctor’s note that stated the tenant’s asthma was tied to mold was not considered sufficient evidence as the adjudicator said “the evidence is not sufficient to make a causal connection between the Tenant’s medical condition and the environment in the rental unit” (page 3). On the contrary, in the case TEL-14199-11 2011 CanLII 34801 (ON LTB) although the tenants did not provide any proof other than the prescription medications given to their children, the adjudicator stated “The presence of mold in the rental unit for two months is a serious health issue. The landlord should have taken every possible step to remedy this situation.” Although the tenants suffering as a result of the mold was not commented on specifically, the mere presence of the mold itself was enough for the adjudicator to consider a serious health issue.

Abatement's by Severity

In general, abatement's were awarded to tenants based on the extensiveness of the mold throughout the unit, if there were serious maintenance issues along with the mold, and whether or not the tenants contributed to the mold problem. TEL-14199-11 2011 CanLII 34801 (ON LTB) was an exception in that although the public health inspector found only “a minimal amount of mold around some windows and advised tenants how to clean it” this breach was found sufficient to provide a 40% abatement on rent for the months wherein the mold was present and a $45.00 application filing fee for the T6. Serious Maintenance and Mold Issues gave higher abatement's In contrast to this, the highest rent abatement's provided was 50% of rent. In the case SWL-37003-12 (2012) CanLII 74721 (ONLTB) there were issues with both extensive repairs and mold. Mold was found to be “diffuse and considerable throughout the unit” by the adjudicator through references to an inspection report by a third party agency. The repair issues were also numerous, with 11(eleven) different repair problems cited, including problems with electrical issues, exposed tiles with sharp edges, water damage, and cracks in foundation, and a roof with openings that allowed water to enter. In TNT-02015 (Re), 2009 CanLII 78561 (ON LTB) the tenant was also awarded a 50% rent abatement. In this scenario, the tenant had inquired several times about whether or not there were cockroaches in the unit, and the landlord assured her there were not. The tenant in fact found a cockroach infestation so severe that the tenant’s two year old son was victim to bug bites on his face. This was in addition to the mold which was found in the bathroom and around windows. The adjudicator found that this was a breach of the contract between the landlord and tenant as the tenant had specified she only wished a unit which was cockroach free; and in addition, that the Landlord had not met his responsibilities to repair in regards to the problems of mold and pest infestation.

Expectation to Repair in a Timely Manner

Thirty Percent (30%) rent abatement's were given in three very similar fact scenarios. In TET 12602-11-RV 2011 CanLII 27135 ON LTB, the tenants were provided with a 30% rent abatement due to four (4) identified deficiencies in the rental unit and a public health inspection which showed mold was present. Because no repairs were made and no attempt to remedy the mold was made for two months, 30% rent abatement were granted for that period. Similarly, in TEL-00588-09 2009 CanLII 79028 (ONLTB), a 30% abatement was given as the landlord “knew about the mold and did not correct the problem in a timely manner”. In this case, there were only mold issues, and no medical or repair allegations, and no descriptions of the extent of the mold. One conclusion to be drawn from these two cases is that the board expect repairs to be immediate with mold issues; in TEL-00588-09 (Re), 2009 CanLII 79028 (ON LTB) the mold was reported in July and not repaired until September 4th, and the adjudicator provided a two month abatement of 30% to cover this entire period. <30% rent abatement's had mitigating circumstances or limited mold

Tenants who Contributed to the Problems

In cases which were awarded less than 30%, the mold was limited to very specific areas, or there were mitigating circumstances. In TNL-08595-10 (Re), 2011 CanLII 27369 (ON LTB), a 25% rent abatement was provided. The city of Toronto provided the landlord with a violation notice of 14 items in disrepair, which included mold issues. The landlord in this case offered to move the tenant to a new unit, but the tenant had refused to fill out the paperwork.Further, the tenant was found to have “contributed to the situation by taping closed the air vents in the rental unit, thereby preventing air from circulating, and by keeping a large dog in the rental unit, which caused some of the damage, as admitted by the Tenant” (page 3). The tenant’s contributions to the problems caused her to receive a smaller rent abatement despite the numerous repair and mold issues. Isolated and localized mold had less abatement provided. In cases when less than 25% was provided there appeared to be circumstances which were more minor. In TEL-05712-10 (Re), 2010 CanLII 58888 (ON LTB) the tenant was only provided 20% abatement. The mold issues in this case were minor; including only mold growth in the bathroom and around certain window frames (page 2, para 6vi and 6vii). There were additional repair issues, but these were minor, including a damaged fridge door, three missing window screens, garbage strewn in yard and garage by previous tenants, an aluminum panel on front door that is damaged, front and rear doors that would not lock securely, and lighting that does not work for walkway and driveway” (page 2). This case is very similar to ten (10) other cases which were provided abatement's ranging from 8-15%. In all of these 10 ten cases, the mold was isolated to one very specific location of the home and only one location. In TET-23285-12-RV (Re), 2012 CanLII 74538 (ON LTB) and TET-04290-10 (Re), 2010 CanLII 44330 (ON LTB) mold was found only around windows; a 15% abatement was provided for this breach. Areas that commonly collect moisture, such as one of bathtubs in TET-06355-10 (Re), 2010 CanLII 65651 (ON LTB) or kitchen sinks in TEL-13130-11 (Re), 2011 CanLII 27081 (ON LTB) or toilets in TEL-21414-11 (Re), 2012 CanLII 28021 (ON LTB) as well as TET-02147 (Re), 2009 CanLII 79914 (ON LTB) were given abatement's of 10 or 15%. 31. TET-02147 (Re), 2009 CanLII 79914 (ON LTB) did stand out in that the mold was in both the counter top and toilet in the bathroom. The test for these abatement's based on very specific locals in the house to be provided was based on the limited and contained nature of the mold. The adjudicator from the case TNL-19163-11 (Re), 2012 CanLII 44859 (ON LTB) summed up his reasons for a lower abatement of only 15 (fifteen) percent despite the presence of mold as the inspection report had determined that “observations of inspector supports a conclusion that the mold was localized and minimal".

Insufficient Data and Outliers

The only case which did not have minor issues with mold which received a less than 25% abatement which had a potentially more extensive problem with mold was CET-16189-11 (Re), 2011 CanLII 91019 (ON LTB). The adjudicator was rather unclear regarding how extensive the mold was in the report, stating only that "mold existed in the bedroom". Given this description, it is difficult if not impossible to provide an analysis of why only an 8% rent abatement was provided. In all cases where no abatement was provided, there were extreme mitigating circumstances; such as the tenant caused the problem itself in EAT-01750 (Re), 2009 CanLII 74514 (ON LTB), or in SWT-18386-11 (Re), 2011 CanLII 23870 (ON LTB) another the tenant did not seek an abatement due to mold and therefore the adjudicator could not provide an abatement. In another case, the tenant was not provided with a rent abatement, however, the adjudicator stated in his reasons that the Landlord had already provided a 100% rent abatement during the time that the tenant was unable to occupy their unit due to issues with mold and flooding. This case was an outlier, and therefore was excluded from analysis. The data from all these cases was aggregated into a table (See attached chart in the appendix of this report). A number of statistical analysis were conducted; the means of the abatement percentages were analyzed according to several different categories. Where major maintenance issues were present, (dependent variable, major maintenance issue) the mean of a twenty eight percent (28%) rent abatement was provided. To include all maintenance issues, whether or not they were major (dependent variable concurrent maintenance issues) the mean was approximately (22) percent rent abatement, in contrast to when there were no maintenance issues (16%). It is worth noting that 32 cases is not sufficient to draw an binding conclusions as the sample size of cases is too small to draw a meaningful statistical inference to be implied on all board decisions, however these are the only published cases that could be found on CanLII and there is some importance to be drawn from that given that CanLII is the public face of case law to the public.

Discussion

There were three different variables that the adjudicators tended to provide as their explanations for the amount of rent abatement's:

a. if there were concurrent maintenance issues,
b. if the mold was in more than one specific location of the home and
c. if the tenants contributed to the mold problem or not.

The Tenants of the application before the Waterloo Landlord and Tenant board, SWT-67604-14 are most similar to the situations wherein the tenants did not contribute to the situation and where there were concurrent maintenance issues.The mean amount provided for tenants in these circumstances was approximately 25%. When adding the additional variable of if the mold was present in more than one room in the house, the mean amount jumps to 50%, however only one case in the analysis met these conditions. This was SWL-37003-12 (Re), 2012 CanLII 74721 (ON LTB) To provide a contrast to this, a 40% rent abatement was the mean for cases wherein the mold was found throughout the unit and not just in one area of the house; regardless of whether or not there were concurrent maintenance issues. In the cases studied, there were only three (3) cases which described the mold as being anything other than very minimal and localized. Therefore, the mean of 25% for mold with other maintenance issues is skewed down as there were many more cases wherein the tenants had only minimal mold. To provide context, even for very small issues wherein the tenants only had minimal mold found, as an example, around bathtubs, and no other maintenance issues, tenants received on average a 15% abatement. The adjudicator from SWL-37003-12 (Re), 2012 CanLII 74721 (ON LTB) provided a test by which health claims could be verified on a balance of probabilities: “medical evidence must draw a direct correlation between a specific cause and specific medical effect”. The adjudicator further stated that the mold variety should be tested and correlated with any particular medical problems which are known to rise as a result from this mold. There is just such a correlation in that the mold types specified have been documented by health Canada and peer reviewed medical journals to be correlated with symptoms associated with allergies: wheezing, itchy eyes, rhinitis, sinusitis, etc.

Medical Findings

There is a great deal of research regarding the health effects of mold. A search on Proquest with the keywords “mold” and “health effects” limited to the abstracts of peer reviewed scholarly journals returned 479 journal articles. Limiting the searches to specific types of molds and health effects helped to narrow the results considerably. Of the articles returned, 3 (three) were analysed for their findings. Klich, Maren A. (2009), Lai, K.M. 2006., and Meggs W.J. 2009 These articles were chosen as they provided a literature review of the current research on mold rather than being more specific articles on the biology or epidemiology of specific types of mold. These three articles concurred that while the scientific community has not yet determined the exact mechanism by which allergies and illnesses are caused by stachybotrys or aspergillus mold, nonetheless there is a relationship between these two molds and allergies and illnesses. To quote Meggs: “S. chartarum in buildings, sometimes in association with Aspergillus species or other molds, has been associated with asthma, hypersensitivity pneumonitis, and the constellation of respiratory and neurological symptoms associated with poorly ventilated buildings” (Cooley et al., 1998; Hodgson and Dearborn, 2002; Jarvis et al., 1998; Johanning et al., 1996; Straus and Wilson, 2008, 2009). Lai offered a more cautious approach to the research, writing: “It is reasonable to state that Stachybotrys causes adverse health responses in humans once the toxic level of the corresponding agents reached the target systems.” (2009). On the other hand, the relationship between Aspergillus and diseases has been better researched. Klich summarizes the effects of Aspergills mold as such: “Unlike mycotoxicoses, the primary infection route for aspergilloses is through inhalation. The diseases caused by aspergilli represent a continuum of symptoms from mild sneezing to fatal systemic infections. Many books and articles have been written on Aspergillus diseases” (2009) “Although stachybotryotoxicosis, including the symptoms of dermatitis, coughing, rhinitis, irritated throat, fever, headache, feebleness, and fatigue was found in humans handling contaminated materials and inhaling of airborne toxins in the working environments [4,6], it was not until 1986 that the first concerns of Stachybotrys on public health were published after a family was exposed to an extensive growth of S. chartarum at home in the US [7]. In 1993, a more astonishing health effect of Stachybotrys was reported after a cluster of cases of pulmonary hemosiderosis diagnosed in Cleveland, Ohio [8,9].”

Hello 123

"Determinations:


1. The rental unit is on the second floor of a 3-storey residential complex.


2. On October 2, 2019, the Tenants observed water leaking from the unit above into their hallway, bedroom and bathroom. KA immediately called the Landlord’s emergency line and left four (4) voice messages about the water leakage. He also sent emails to the Landlord about the issue.


3. On October 3, 2019, contractors attended the residential complex to patch the roof. However, no repairs were done to the interior of the rental unit. At this time, the water-saturated bathroom ceiling collapsed and plaster and lathe fell into the bathtub. The bedroom walls and ceilings also showed bubbling and other signs of water damage. At this time, the Tenants sent a further email to the Landlord with attached photographs showing the water leakage and water damage, including the collapsed ceiling. The Tenants also contacted the City of Hamilton Bylaw Department.


4. On October 7, 2019, the Landlord’s Manager, Tina Lister (TL), inspected the rental unit, conducted moisture tests and reviewed the issues and damage in the unit. Following her inspection, TL discussed options to resolve the situation, i.e. termination of the tenancy as of October 9, 2019 in exchange for the payment of $9,000.00 or in the alternative, housing the Tenants while required repairs are conducted.


5. By email dated October 8, 2019, TL referenced and attached the Landlord’s proposed settlement, indicating that “the settlement has been proposed as an option to the tenants of the property due to the shareholders preference to demolish the rental unit, as the building and unit ultimately require extensive renovation beyond the scope of the damage incurred from the recent occurrence with the roof leak”. In the same email, TL set out the Landlord’s proposed alternative settlement, as follows:


- Alternative housing would be provided immediately by way of a prepaid hotel stay for the period of approximately two weeks while the required remediation and repairs are conducted

- The issuance of an entitled rent abatement in an amount to be determined using the guidelines set out by the Landlord and Tenant Board, based on the number of days of interruption of services of the residence.

- The remediation and repairs would be conducted to restore the residence to same or better than pre-existing condition.


6. On October 11, 2019, the Tenants’ bathroom ceiling completely collapsed, causing the drop ceiling and debris to fall into the tub.


7. Following discussions back and forth between TL and the Tenants regarding timelines and accommodations during repairs, work began on or about October 15, 2019 and carried on until October 23, 2019. The work consisted of replacing the drop ceiling in the bathroom and covering water-damaged areas with gray paint.


8. On October 25, 2019, the following the City By-Law Officer’s inspection on October 11, 2019 and October 25, 2019, the City By-Law Officer Melissa Ivanchuk-Merritt (MIM) issued an order requiring the owner of the property to obtain building permits for the construction.


9. The Landlord provided the Tenant with 50% rent abatement for November 2019, equivalent to $515.00. In KA’s email acknowledging the rent abatement, the Tenants indicated:


This payment does not indicate we agree that the work is completed and brought up to property standards nor that we believe the abatement you have indicated is full or completely justified.


10. Throughout the months of November and December 2019, the water-soaked wallpaper in the unit continued to peel, bits and pieces of dirty plaster and lathe continued to drop from the bathroom ceiling, small leaks continued on occasion with droplets of water entering the unit and the smell of dampness and mould permeated the bedroom. Throughout this time, the Landlord did not carry out any further repairs.


11. Following a further inspection on December 4, 2019, City By-Law Officer MIM issued a Property Standards Order dated December 10, 2019 finding that the property did not comply with the standards prescribed by the City of Hamilton’s Property Standards By-Law #10-221. The Order described the following deficiencies:


1a) In the bathroom in the apartment, there is a water leak in the ceiling from the units above and the roof. The lathe and plaster bathroom ceiling in the apartment is damaged.

There are broken, loose and warped materials.


1b) The walls and ceilings in the bathroom, hallway and bedroom in the apartment have damage from water leaking into the apartment from the above unit and the roof.


2a) There is a leak in the roof of the apartment building. There are sections of the roof that have been covered over with tarps.


12. The Order required the Landlord to complete the following work no later than January 24, 2020:

1a)

Remedy: Repair or replace all damaged, broken, loose and warped materials in the bathroom ceiling to prevent the penetration of water and dampness arising from the entrance of moisture.


1b)

Remedy: Repair and/or replace all water damaged walls and ceilings in the apartment bathroom, hallway, and bedroom.

Ensure all walls and ceilings in the apartment are kept free from water penetration/moisture.


2a)

Remedy: Repair the source of the leak. Ensure the entire roof surface is maintained in a weather tight condition, and able to prevent the leakage of the water into the dwelling.


13. The Landlord did not complete the repairs required by the City on or before January 24, 2020.


14. Meanwhile, the Landlord served a notice of termination for demolition of the rental unit with a termination date on end-February 2020 (N13). I accept KA’s evidence that everyone, except for them, has vacated the residential complex, pursuant to the N13 notices served by the Landlord on all the tenants of the building en masse.


15. On January 24, 2020, the Tenants experienced water leaking from the unit above into their bathroom. By email dated January 24, 2020 with attached photographs, the Tenants notified the City By-Law Enforcement Officer MIM, with copy to the Landlord’s Manager, TL, of the water leaking into their bathroom.


16. I accept KA’s uncontested evidence that, apart from putting a tarp on the roof, the Landlord has not repaired or resolved the roof issue. The Landlord also has not replaced the Tenants’ collapsed bathroom ceiling, other than replacing the drop ceiling, parts of which have continued to fall on the tub and the floor every rain fall. The Landlord also has not repaired the water damage including bubbling and rippling paint in the bedroom and hallway walls and ceilings. The Tenant submitted photographs depicting the disrepair.


17. KA testified, and I accept, that since January 24, 2020, they have had further water leakage every time it has rained. In an email message to the Landlord dated March 29, 2020, sent at 4:24 am, the Tenants advised:


Currently the “repaired” drop ceiling we told you in November was not adequate has completely collapsed in the bathroom. Water continues to flow from the upper unit. In the hall bedroom and gushes in the bathroom.


18. The Tenants also notified the City By-Law Officer MIM, by email with attached photographs, and advised that the Landlord had not sent any contractors to perform repairs and that the tarps which had covered the roof were wind-damaged and blown everywhere. The tarps were “gone”.


19. The Landlord gave the Tenants another 50% rent abatement for the month of January 2020, equivalent to $515.00.


20. I accept KA’s uncontested evidence that as of the hearing date, the Landlord had not addressed and rectified the issues.


21. Based on KA’s testimony and photographs and the Property Standards Order dated December 4, 2019, I find that the rental unit does not comply with maintenance standards and that the Landlord has not taken prompt and reasonable steps to do the required repairs, in breach of its repair and maintenance obligation under Section 20 of the Act.


22. The Tenants have continued to reside in the rental unit, amidst the leaking roof and ceiling and water damage unremediated by the Landlord. I accept KA’s evidence that, they have continued to experience water leakage every time it has rained, and they have had to put buckets on the bathroom floor and on their bed to capture the water. They have had to sleep on the couch during days and days of heavy rains. They have had their bed covers and sheets and carpets soiled. Their bathroom has had a gaping wide open ceiling, exposing the floor joists and structural framing of the floor above; there is no longer a fire separation between the rental unit and the above unit in this area. The Tenants have put up a big white sheet to block out the collapsed ceiling and to section off for themselves a usable area. They have had to live with the water-damaged ceilings and walls in their bedroom and the hallway.


23. Considering the impact on the Tenants as described above, I find that the Tenants are entitled to 30% rent abatement for December 2019 and for the 6-month period from February 2020 until July 2020. I fix the rent abatement at 30% considering the substantial disruption to the Tenants’ ability to normally reside in the rental unit. The continued water leakage in the bathroom, affecting the bedroom and hallway as well, every time it rains has significantly impinged upon their use and enjoyment of the rental unit. I limit the rent abatement to 30% as the Tenants have had use and enjoyment of the other areas of the rental unit. Based on the monthly rent of $1,100.00, the Tenants are entitled to rent abatement of $330.00 per month or $2,310.00 for a 7-month period.


24. The Landlord is not exempt or excused from its Section 20 repair and maintenance obligation, by reason of its service of a notice of termination (N13) on the Tenants; and shall be ordered to comply with the Property Standards Order dated December 4, 2019."

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