Renter faces issue with damage deposit after flood

Protection for tenants is weak and often requires going to court

A Calgary woman who lost her apartment in the flood is concerned landlords are refusing to return damage deposits to tenants in similarly destroyed rental units. Cassandra Christie lived in the basement suite of a house on Elbow Drive. She says that after floodwaters destroyed the suite her landlord refused to return Christie’s $650 deposit.

Christie says that when she returned home after the flood she realized it was uninhabitable and the lease would naturally be dissolved.

“The water level went into the first floor above my suite — my suite was an aquarium…. My sunken patio was a swimming pool and the glass doors and windows were blown out and my bed was floating in it…. There was still a foot of mud and sludge and broken glass we were walking around in. Everything was everywhere. Nothing made sense. The fridge had floated… the drywall on the ceiling in my bedroom had completely fallen down… I’ve lost everything.”

Because it was an illegal suite Christie says her landlord asked her to “keep this on the down-low” and she would “see if I can scam some insurance for some of your stuff.” Christie says she didn’t hear from her landlord so on June 28 she again gave notice that she would no longer be a tenant and asked for her damage deposit back. On July 10 her landlord finally responded.

“She said ‘I’m not giving you a dime’” says Christie. “She felt that she didn’t need to give my damage deposit back because of all of the clean-up and wreckage that had to be done in the suite.”

Christie says Service Alberta the ministry that oversees landlord-tenant agreements told her that while her landlord must return the deposit her only recourse if she refused was to sue the landlord for it which Christie says she couldn’t afford to do after losing everything.

Gabriel Chen a senior lawyer at Calgary Legal Guidance confirms Christie is legally entitled to walk away from her lease without penalty and receive her deposit but admits tenants are in a difficult position when landlords don’t comply.

“If the premises are destroyed or damaged to the point that it is not reasonable to expect someone to live there then the contract is frustrated and the parties are free to walk away…. This is really difficult because a lot of people I think want to do that but the issue is where are they going to go? Because the vacancy rate was already almost zero before the flood so there’s not really any suites to go to right now” says Chen.

There is still a lot of confusion around what landlords and tenants are entitled to do with respect to flood-damaged properties. The province’s Residential Tenancy Act states that a tenant whose premises are uninhabitable does not have to pay rent but they must leave. If the unit is temporarily uninhabitable but the tenant intends to return after it is repaired the lease remains intact and they must continue to pay rent though they are entitled to negotiate a lower rate with their landlord. Damage deposits cannot be used to pay for unforeseeable damage not caused by the tenant.

The province does have a consumer help line available to advise tenants and landlords of their rights. Service Alberta also offers a Residential Tenancy Dispute Resolution Service in Calgary to help tenants and landlords come to terms outside of the court system which is often too costly and time consuming for most people embroiled in lease disputes.

Chen says his office has not received as many calls from tenants as he expected following the flood but has received quite a few from landlords seeking information.

“The calls that we’ve been getting have just been the typical thing like about insurance different types of coverage if the landlord can move [into the rental property] if their [own] place is destroyed things like that. And of course the answer to that last one is the landlord can’t” says Chen.

“I spent quite a lot of time with one particular landlord explaining that they were not entitled to hold on to the security deposit because it’s basically the same as what I said before: it’s unforeseen and it’s out of the control of the tenant. The tenant didn’t actually cause the damage. So essentially if they were to try to do it they’d be double dipping because home insurance should be covering it and it’s not what the deposit is for. The deposit is only for damage or cleaning issues caused by the tenant” he explains.

Christie says she did get her damage deposit back several days ago after a friend who is also a Calgary Sun reporter phoned the landlord to look into the matter.