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Debra, Lawyer
Category: Canada Law
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Finished basement of single family rented house flooded during

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Finished basement of single family rented house flooded during June 24 flood in Calgary. Tenants were dispalced for aprox 1 week and then moved back into main floor of house once power and water restored. Still in process of rebuilding, although they had partial use of basement as of Aug 1 ( laundry room and 1 bedroom). Allowed tenants to pay half rent for July. Lease contains Force Majure clause that is solely to benifit of Landlord should the LL decide a termination would "be advisable from his perspective". Sec 40 of Alberta Residential Tenancy Act states law of frustration of contract applies if lease has been frustrated due to destruction of premises or damage beyond what is reasonable to repair or damage is such that a reasonable tenant would not want to remain. Tenant has just given 30 days notice that is terminating lease because repairs taking too long and too much of a hardship on them. They want damage deposit returned if house left in reasonable condition and only to pay half rent for last month. What are the Landlord's rights?

Debra Thal :

Thank you for your question.

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Debra Thal :

Are you saying that they have the use of the full house aside from the basement?

Debra Thal :

Is this a fixed term lease or a month-to-month tenancy?


The Lease is a 12 month fixed term ending Feb 28/14. Yes, the tenant is
renting the whole house which is a main floor and the basement. The main
floor was not damaged.
As of about Aug 1 they have had the use of 3 of the 5 rooms being rebuilt
in the basement. The bathroom and family room are about 90% complete and if
we could keep the trades on site would be finished in about a week. Problem
is they are all juggling more then one job as the demand for their services
is high in Calgary.

This is difficult issue and I don't really think there is one clear answer.

But I think that based on your facts there has not been a material breach of the lease.

You've compensated them, where appropriate, with a rent abatement and they have the use of most of the house now.

There was also no misconduct or negligence on your part.

So I don't think a Court would say that you owe them anything and in fact I think a Court could likely say they were not permitted to move out and say the lease is at an end given these facts.
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