Expert: Phil Nicols - 12/19/2008

Question
QUESTION: Would allowing my building to fall into disrepair be grounds for breaking my lease?

ANSWER: Hi Martin

If I was your lawyer (and I'm not, I'm a real estate broker) I would argue that the two are separate cases and must be looked at individually.

That said, Ive seen lots of cases where tenants withhold rent because of this and that -- usually, its because they can't pay it and use other things as an excuse.

2nd, I don't know if you are talking about a residential tenant or commercial.

in residential, there is Landlord and Tenant Act which supersedes most leases.

In Commercial however, it depends on what the lease says. If the lease says that the landlord shall keep the place in good order (to that effect) you could have a problem.

Don't know where you are located but in Ontario, there are rules to follow when evicting a tenant. If you are talking about a residential tenant (and if you are in Ontario) I would absolutely start eviction process ASAP. The Ontario Act has a series of times that you need to act on, I forget off the top of my head, but if the cheque bounces or they don't pay, you have to give them 20 days first notice, then if its still not paid, you have to get the Bailiff to lock them out etc.

point is, you need to start the clock ticking asap, even if they say its due to this or that, so you don't waste more time.

Final point on a personal level, commercial or residential, times are tough. You should make all efforts to keep you tenants happy (within reason) I mean, if they are unhappy with the type of granite you picked or the valet parking, F'em but if its something like their shower leaks or the roof leaks, absolutely, you need to fix that. Its your property and you should be proud of it. When you spedn money on improvements, its only going from your one pocket to the other. I owned 35 units myself and managed over 200 at one point we did everything possible to make tenants happy.

it cost more money and time to get new tenants so if you can keep existing ones, you are far better off -- same goes for customers.

Hope that helps.

best, Phil

---------- FOLLOW-UP ----------

QUESTION: Phil
I should have clarified. I'm the tenant in the commercial lease. My land lord is allowing part of the roof to sag threatening to cave in as well as 2 large sink holes, one is starting to effect the foundation of the building. These are both happening on the end of the building that has all the services entering the building. So if one of the 2 finally gives it will shut down all business for all of the tenant.
I've been a good tenant always paying rent on time. but every time i point out the problem he acts surprised and claims he'll fix it.

Its been over a year now since i first pointed it out and he still hasn't fixed it.

Could i break my lease to get out of the danger zone?

Answer
A YEAR?? Sounds like a nightmare!

ok, first thing - make sure you and everyone is SAFE FIRST! Money/lease is secondary (at best).

2) DOCUMENT EVERYTHING -- send the landlord registered letters about the problem -- get copies and registry confirmations in case you need them for court.

3) in your case, it sounds like a death trap waiting to happen! Call the building dept immediately! Before any snow gets on the roof - then we will be reading about you in the 6pm news!! Get the BUILDING CONDEMNED!

there isent a lease in the world that would be able to hold you in a position where your LIFE could be threatened.

The building will likely be SHUT DOWN by the building inspector if its that bad.

if it ISEN'T life threatening, there are clauses in insurance commercial policies that cover things like "business disruption" - (call your insurance agent to review your policy)

its not a one way street. When you pledged to pay the landlord, he also pledged to give you a premises fit for occupation. if he did not do that, then you have a good case becuase in fact, the landlord breached his end of the agreement.

it depends on the severity of the situation.

so if it REALLY looks like it will cave in - GET OUT regardless what your lease says! - and call the police and /or fire dept!

if you only THINK that it looks like its in bad shape, call the building dept asap!

-- they CANNOT keep you in a lease if the building is condemned!

write me back - let me now how it works out. pnicols "at" stockwellrealty.com

best, Phil