Real Estate

Tenant Damage - LTB or Small Claims Court

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  • Mar 10th, 2019 4:37 pm
Newbie
Nov 11, 2016
14 posts
6 upvotes

Tenant Damage - LTB or Small Claims Court

I'm dealing with a situation where a tenant has damaged one of my rental units - they scratched the laminate flooring so badly in a few rooms that it will need to be replaced. This is my first time having to pursue a tenant for damages so I'm hoping to get some advice from other landlords that may be on the RFD forums.

The tenant in question has given notice and will be leaving at the end of April. From speaking with the Landlord Tenant Board, my understanding is that I have one of two options:
  1. Serve tenant with notice before they move out and have the matter heard by the Landlord Tenant Board.
  2. Wait until after the tenant has moved out and bring them to small claims court (as the LTB will not get involved since they are no longer tenants).

I'm wondering if anyone here has had experience with LTB vs small claims and can tell me if I should be preferring one over the other.

Also, any information anyone can give regarding what to expect with the process, would be greatly appreciated. I have lots of photos (both before and after) along with a document the tenant signed when they moved in indicating that there was no damage so I'm hoping it will be relatively painless but, again, this is my first time.
35 replies
Deal Addict
Dec 21, 2010
1864 posts
1174 upvotes
GTA
First thing I always do is try to mitigate my damages buy addressing the issue directly with the tenant before going through other channels. If they are not willing to agree to pay half the cost, then I would let them know that I have to pursue further action.

Of course, make sure you have their new address BEFORE you make any threats to pursue action.

Good job getting the photos before and after the move-in to present day!

Did you collect a damage deposit?

What province are you in?
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Penalty Box
Aug 11, 2005
4175 posts
1432 upvotes
Unless you can prove it’s negligent and malicious, it will be considered normal wear and tear by small claims court. Just the cost of doing businesses
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Jr. Member
Feb 12, 2012
111 posts
28 upvotes
BRANTFORD
Keep good records of all conversations with the tenant regarding this issue.

I would be hesitant to start the process before they have left the unit as there could and likely would be further damage to the unit during the move out process. I have yet to pursue any actions against my tenants but even the LTB will direct you to small claims to collect and moneys due from the tenants.

Good luck in the process and keep us updated as to how it goes if you decide to move forward with litigation.
Deal Expert
Feb 29, 2008
21738 posts
21353 upvotes
Tarrana & The Ri…
This is why a damage deposit should be allowed (Ontario). Some tenants are animals and I have dealt with a couple that pretty much destroyed the place. Even the key fob was damaged.

Good luck.
Deal Addict
Dec 23, 2010
1897 posts
969 upvotes
Moon
Luckyinfil wrote: Unless you can prove it’s negligent and malicious, it will be considered normal wear and tear by small claims court. Just the cost of doing businesses
Damage is damage. Doesn't need to be malicious. Accidental damage is damage.

OP I would sue in small claims court but give them a legal letter to have the chance of paying up first.. All you need to do is supply photos before and after (you should have taken pictures of your home extensively before you rented it) in order to prove damage.
Deal Addict
Dec 4, 2016
2011 posts
1030 upvotes
Please keep us posted on what the outcome is. I would ask the tenant to pay half the cost of replacing the floors, if my gut feeling tells me they're reasonable people. Institutional landlords usually do a move out inspection before a tenant moves out, in order to document any damages done.
Deal Addict
Jan 15, 2010
1629 posts
2027 upvotes
Toronto
Flooring damage I have to imagine is going to be difficult to prove was beyond "wear and tear". How long has the tenant been in the unit, what is the age of the flooring?
Penalty Box
Aug 11, 2005
4175 posts
1432 upvotes
DaMan12 wrote: Flooring damage I have to imagine is going to be difficult to prove was beyond "wear and tear". How long has the tenant been in the unit, what is the age of the flooring?
That's exactly the case. Flooring has a certain lifespan, and it's reasonable to expect wear and tear (AKA scratches and dents) during the time of rental. It's up to you to prove and convince the judge that the damage goes beyond normal wear and tear. Even then you will not get the cost of a full flooring replacement, likely only a very small portion. Not to mention that you'll have to pay 500 bucks for a small claims court application.
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Sr. Member
User avatar
Feb 25, 2018
567 posts
215 upvotes
I agree with Luckyinfil. You rent something it gets used, when things get used sometimes they break. Scratching a floor or walls are normal. That is why LL's use the cheapest materials for renos. If you have a fancy place you want to rent you need to find just one soft person to rent to and charge a bit more to cover damages of expensive fixtures.
Deal Addict
Jan 15, 2010
1629 posts
2027 upvotes
Toronto
DaveVentura wrote: I agree with Luckyinfil. You rent something it gets used, when things get used sometimes they break. Scratching a floor or walls are normal. That is why LL's use the cheapest materials for renos. If you have a fancy place you want to rent you need to find just one soft person to rent to and charge a bit more to cover damages of expensive fixtures.
Yea I think flooring will be really tough to get money. But if it was a new place and the floors were wrecked after 1-3 years they'll probably have a case. If the existing flooring is 5-10+ years old then good luck.
Deal Addict
May 12, 2014
3487 posts
3895 upvotes
Montreal
Luckyinfil wrote: Flooring has a certain lifespan,
The floor at my dad's place is 30 years old and looks like it was put in yesterday. Has never been fixed/redone or repaired in any way.
Deal Guru
Dec 11, 2008
13067 posts
3756 upvotes
You may be better with small claims as I am assuming the LTB is harsher on landlords.

As other have said:

Keep documentation - all written (email, text) of all understanding.

Have you reached out to tenant regarding damage? Also depends on the damage, it needs to be bad to count as damage, normal wear and tear doesn't cut it.

Give your tenant the chance to help pay for the cost, if you cannot agree then go to small claims. But this agreement should occur before tenant moves out so they are aware that you are either going to pursue them or at least they know you do not accept the floors as normal wear and tear. When I mean before I mean before you close out and they hand their keys back. The inspection needs to indicate this so it's not a surprise to them. My landlord came to be like 30 days after I moved out saying I broke the stove and washer and I said "the inspection was done and there were no issues and you said you had a cleaning lady come in, how do I know they did not damage anything or the new tenant?".

I went through LTB and got a judgment against my landlord and of course the money never came back so I took it to small claims and then landlord paid me back. having said all that, this was a complicated process and if you don't know legalities like me, you question what you are doing and are you following the process. Usually if your paperwork matches up and you followed the process, it's not bad, just time and energy. If you don't have your stuff in order, be prepared to be chewed out at LTB (as many people did, it was like Judge Judy lite, I was scared lol but I made it out alive since I was well prepared).

Small claims court, the guy was too nice, I was the mean one there but I got my way. However, be aware that the tenant may be long gone and it will be very difficult to get your money back even with a judgment. You may have to resort to wage garnishing and/or bank garnishing etc which require detective work and timing.

Good luck.
Deal Addict
Nov 27, 2007
3678 posts
820 upvotes
This is a tough battle. Before pictures, does it clearly show the state before and after, plus did the tenant sign off on those pictures. The lenght of scratched you have to put a dimension on it for the judge to see, most times it will be he said she said. Most times it will be considered wear and tear, unless obvious damages, hardwood is not

It is renting, you as a landlord needs to put aside money to fix damages, cost of being a landlord.

You are wasting time, plus if you get a paralegal, you are wasting more money and gaining nothing.
Deal Fanatic
User avatar
Dec 27, 2009
7941 posts
5483 upvotes
Victoria, BC
I don't think it is worth the hassle of trying to get something out of the tenant. You will likely expend a lot of effort and some money, and still get nothing.
Newbie
Nov 11, 2016
14 posts
6 upvotes
Thank you to everyone that replied to this thread. Very sorry for not replying sooner. Even though I was subscribed to the thread, I wasn't receiving notifications of the replies so assumed I hadn't gotten any. Checked my RFD settings and found the problem (I think) so hopefully I'll receive notifications going forward. Would be nice if RFD warned you that you wouldn't receive replies when posting but that's a battle for another day.

As an update, I decided to take the tenant to the Landlord Tenant Board. I'm currently awaiting the hearing and am prepping the information for that (pictures, quotes, etc).

Before filing with the LTB, I tried talking with the tenant to see if they would cover a portion of the damages but they refused. The offer I made them was for them to simply cover the cost of the material and I would install myself . That worked out to about half the total cost but they weren't interested.

The main reason I chose LTB over small claims was because the Landlord Self Help Centre told me that, since I noticed the damage while the tenant was there and had communicated with them about the damage, that a small claims judge might throw the case out on the grounds that I should have gone to the LTB since the damage was discovered during the tenancy.

My guess is that this is going to turn into an expensive learning experience but we'll see how it goes. The out-of-pocket costs so far have been reasonable ($190 for the LTB filing fee) but the main "cost" has been in the form of the time required to prepare all the documentation, pictures, etc for the hearing.

From my discussion with the LTB, I learned that LTB hearings aren't well equipped for electronic information (presenting pictures, video, etc) so I'm having to prepare a printed package and make sure that everything is clear, that the pictures show the damage adequately when printed, etc.

Very time consuming putting that together but I've already learned a lot from it and have made adjustments to my processes going forward so I’m glad I followed through. As I mentioned in my first post, this is my first time doing this - I’ve owned rental property for 10+ years and have been very fortunate with tenants. If nothing else, I’ll be better prepared and have better processes in the end.

I'll post back and let everyone know how the hearing went - it's at the end of this month. Answers to a few of the questions that were asked below as well.

loriblum wrote: Of course, make sure you have their new address BEFORE you make any threats to pursue action. [...] Did you collect a damage deposit? What province are you in?
I'm in Ontario. Damage deposits aren't legal in Ontario unfortunately. Luckily, someone told me about the difficulties serving someone and collecting damages if you don’t have their new address so I was able to get the tenant’s new address before approaching them about the damages.

Thank you very, very much for those skeet50 - super informative. The “useful life” listing in the first article was fantastic as was the description of the small claims process for tenant damages in the second article.

Engi-Nir wrote: Before pictures, does it clearly show the state before and after, plus did the tenant sign off on those pictures? The length of scratched you have to put a dimension on it for the judge to see, most times it will be he said she said.
I think the pictures clearly show the before and after state but we’ll see how it goes. Thank you for the suggestion on the length of the scratches, I’ll see if I can add that.
Deal Fanatic
Jul 4, 2004
7430 posts
4677 upvotes
Ottawa
I'm curious to know how this works out. From my impression and understanding, the LTB hearing will give you nothing except possibly allowing you to evict the tenant early but will not actually get you any money (and you can't keep their last month's rent to pay for damages).

From your description, I do believe you'll have a case in Small Claims Court but collecting is very difficult.

Best of luck OP. Keep us informed to what happens.
Newbie
Nov 11, 2016
14 posts
6 upvotes
michelb wrote: From my impression and understanding, the LTB hearing will give you nothing except possibly allowing you to evict the tenant early but will not actually get you any money (and you can't keep their last month's rent to pay for damages). From your description, I do believe you'll have a case in Small Claims Court but collecting is very difficult.

Best of luck OP. Keep us informed to what happens.
Thanks @michelb. From what I gather the LTB can give you a ruling but, if the tenant doesn't pay, you have to take the LTB ruling to small claims court if you want to enforce payment, garnish wages, etc. I've never gone through that process in small claims but I spoke to another landlord that said that it's difficult to collect if the tenant isn't employed, doesn't have any money, etc - hard to get money if they have none. I will definitely reply back once the LTB process is over to let everyone know how it went.
Deal Guru
User avatar
Sep 8, 2007
10978 posts
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Way Out of GTA
wwwKris wrote: Thanks @michelb. From what I gather the LTB can give you a ruling but, if the tenant doesn't pay, you have to take the LTB ruling to small claims court if you want to enforce payment, garnish wages, etc. I've never gone through that process in small claims but I spoke to another landlord that said that it's difficult to collect if the tenant isn't employed, doesn't have any money, etc - hard to get money if they have none. I will definitely reply back once the LTB process is over to let everyone know how it went.
For poor beaten up landlords, I'd always recommend getting a signed condition report. And give the tenant a copy, which you can scan and email them for a record that not only did they sign it, they recieved a copy. And for things that might be considered "wear and tear" I'd tend to highlight the condition on a scale of 1-10 on move in. In your case it's sounds like when they moved in, no scratches, and now the floor is beaten up. Which is not wear and tear. And now because they didn't take you up on the offer of free labour I'd go after for supply and install. You've used your time with the LTB process instead.

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