When negotiating the lease of a dwelling, there is often a clause governing “access to the yard” which is often granted to the tenant on the first floor with no restrictions other than the standard conditions the lease. Unfortunately, this clause causes problems for landlords, particularly when the tenants take the initiative to put things in the yard (swimming pool, gazebo, barbecue, car etc…).
This sets in motion the process of sending warning notice to the tenant and possibly taking the case to the Rental Board. And since the hearing delays at the Rental Board are often rather long, the tenant will be able to benefit from his swimming pool, or his gazebo, all summer long whereas this situation can lead to problems for the owner, as well as to the other tenants. As surprising as this may appear, once the swimming pool has been installed, the owner cannot take the law into his own hands and remove the swimming pool himself without having first obtained a court order. If he doesn't, he will expose himself to a possible claim by the tenant for damages and a reduction in rent.
The owners would be wrong to believe that simply mentioning the access in the lease suffices to explain to the tenant what the right of access allows them to do or not do, and with whom they must share this right.
In theory, a right of access generally refers to a right-of-way to the alley-way or a right of temporary use which is often shared with the owner of the backyard. In theory, this right does not extend to the right to install or place anything whatsoever in this area. Many tenants do not know what their right of access includes since the landlords specific intentions are not described in detail in the lease.
In a recent case¹, a Rental Board judge said that: “In the lease, the tenant has access to the grounds and this, without restriction. Additionally, he has a liability insurance. The landlord must send a notice of modification of this condition of the lease if he does not wish to allow the swimming pool in the future.”
In fact, if there are no restrictions of the access granted in the lease, the tenant is free to proceed with the installation of a swimming pool or some other installation. The landlord has no choice but to modify the conditions of the lease to prohibit the swimming pool considering that in the lease, the right of access does not prohibit it specifically.
For this reason, we believe that this judgement could open the door to abuses on the part of tenants and we hope that this case will not necessarily establish the rule in future cases.
Nevertheless, it is of primary importance to spell out in minute detail in the lease the use of the right of access which you want to grant to the tenant in order to establish what he will have the right to do, and especially, what he cannot do, failing which the landlord will be creating an uncertain situation and opening the door for tenants to do as they please.
¹. Marie-Louis Lehoux vs. Gilbert Tremblay 16-060707-003G
AN AMBIGUOUS ACCES CLAUSE
