Can a Landlord Start to Charge For the Water Bill?
A Legacy Amenity That Was Historically Included, Even If Absent From the Lease Terms, May Become An Implied Term of the Lease As Per the Estoppel by Conduct Principle. Withdrawal of a Legacy Amenity Is Usually Unlawful.
Similar Questions About Withdrawal of Amenities Include:
- Can a Landlord Start Charging An Air-Conditioner Fee?
- Is a Landlord Allowed to Start Charging For Using a Storage Shed?
- Does a Landlord Need to Replace a Fence If a Fence Was Always There?
- If Patio Furniture Was Always There Can a Landlord Take It Away?
- Can a Landlord Close Up a Decorative Fireplace?
A Helpful Guide For How to Determine If Withdrawing a Legacy Amenity or Legacy Service is Unlawful
A legacy amenity is a service that was historically provided to a tenant. Examples include access to parking, access to laundry facilities, access to trash dumpster, included utilities, among other things. Often a lease is silent on whether such a service was included, if a proper formal lease even existed as is legally required. When a lease is absent, or silent on an issue, a determination of whether an amenity or service is implied as included and therefore unlawful to withdraw can often be determined by review of the conduct throughout the relationship.
As was stated in the case of P.T. v. V.R., et al, CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB) by the Landlord Tenant Board:
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.
 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.
When an amenity or service is provided over a period of time, such becomes a legacy amenity or service. As a legacy amenity or service provided historically within the tenancy relationship, such becomes an implied term of the tenancy agreement regardless of whether such is written in a lease or in some other way such as agreed to verbally. 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.