Can a Landlord Start to Charge For Parking?
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 Reduce Free Parking From Two Down to One?
- If Patio Furniture Was Always There Can a Landlord Take It Away?
- Can a Landlord Close Up a Decorative Fireplace?
- Is a Landlord Allowed to Start Charging For Using a Storage Shed?
- What Happens If a Landlord Wants to Start Charging For An Air-Conditioner Fee?
Determining If Withdrawal of An Amenity or Service is Unlawful
Amenities or services provided during the course of a tenancy may become legacy amenities or services. Examples of potential legacy amenities or services include such things as storage shed, trash dumpster, fenced yard, parking, patio furniture, decorative appliances such as a non-essential gas fireplace, laundry facilities, various utilities, among others. Often, after a reasonable period of time, whether such an amenity or service becomes an established lease term, even if unwritten within a lease and therefore an implied lease term, such is determined by a review of the historic conduct within the relationship.
Per P.T. v. V.R., et al, CET-74735-18 (Re), 2018 CanLII 88578 (ON LTB) it was held by the Landlord Tenant Board that:
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.
As above, further to determining that the 'estoppel by conduct' principle was applicable and therefore the landlord improperly withdrew an amenity or service, the Landlord Tenant Board also found that the landlord engaged improperly by interfering in the right of the tenant to enjoy the rental unit in a state of peace. This interference arose due to the authoritarian manner in which the landlord demanded that the tenant comply with the landlord.
As such, a landlord, and presumably a tenant if the circumstances involved another issue, behaviour may be the determining factor of what amenities or services are included within the tenancy arrangement; and, once established as a included amenities or services, the withdrawal of those amenities or services is improper.
What Is the Short Answer?
A legacy amenity or service is an amenity or service that was provided or available throughout the tenancy relationship. 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. Accordingly, a landlord is unable to provide an amenity or service and then unilaterally choose at a later date to withdraw that amenity or service.