Illegal Clauses in Lease Agreements
Today we're going to talk about the terms of your lease agreement - specifically the subject of illegal clauses. As always, this is not legal advice and you should always consult a paralegal or lawyer for professional advice on your individual scenario.
Let's get into it.
When you sign a lease agreement, there is typically a list of terms that you and the landlord have agreed to. For example, your lease agreement may have a clause stating that you are required to have tenant's insurance as a requirement for renting the property. Or maybe there's a clause stating that you and the landlord have both agreed to have rent paid via E-Transfer.
However, often in lease agreements you will see clauses that are not legally valid in Ontario. Some examples include:
- No pets (this is only enforceable in certain circumstances)
- That the Tenant has to pay rent by post-dated cheques (the landlord is not allowed to demand post-dated cheques as the only method of rent payment)
- That the tenant will pay the first $50+ of any repair costs (the Tenant should only be responsible for damage resulting from willful damage or neglect - e.g. you drop a heavy pot on the stove and crack the glass top)
Now, it's important to know that in Ontario, you cannot contract out of your legal rights afforded to you by the Residential Tenancies Act. For example, if you signed a lease with a 'no pets' clause, and then you got a pet after moving in, there would be no legal recourse for the landlord to evict you. The only exception would be cases where a pet can legally be prohibited, such as when a condo building bans pets in their by-laws.
TLDR: Illegal clauses in your lease agreement are void and unenforceable.
So the question becomes: Do you negotiate to get those illegal clauses out of the lease agreement, or do you leave them in, knowing they can't really be enforced? The answer is that it depends. Sometimes stirring the pot is more trouble than it's worth, especially when you're up against competition.
Example:
I helped a client find a condo to rent last Spring. The landlord insisted we include a clause in the lease stating that the Tenant will pay the first $100 of every repair. We were up against a number of other offers, and so we decided to just leave it in knowing it can't legally be enforced. My client got the apartment.
Of course, a month ago an appliance broke down through normal wear and tear. The landlord asked my tenant-client to pay the first $100 of the repair. I told my client to send this brochure outlining Landlord and Tenant rights and responsibilities in Ontario. The landlord dropped it and paid the full repair cost (as they should).
Now, it may not always be this easy to get the landlord to cooperate and maybe this is something you'd rather discuss with the landlord before signing any paperwork - but it's important to know what your rights are so you can protect yourself accordingly.
