Frustration of Tenancy Agreement (Covid-19)
<p>My daughter is out of the country for about 6 weeks returning Feb 10 at which time she will be required to quarantine for 14 days, not allowed to leave her suite or permit anyone entering.   Her 1 year fixed term lease expires at the end of February, leaving her about 4 days to move out after her quarantine period.  Prior to leaving the country, she had planned to renew her lease, until the landlord indicated the rent would be increasing $100 per month.</p>
<p>The Landlord has made it clear that they have the right to show the premises at any time, and no intention of relinquishing that right, and therefore my daughter must find someplace else to reside during her 14 day quarantine.    This would seem to meet the definition of a Frustrated Contract.</p>
<p>“A frustrated contract is a contract that, subsequent to its formation, and without fault of either party, is incapable of being performed due to an unforeseen event (or events), resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract.”   Cut and pasted from Google.</p>
<p>Realizing that my daughter would not be allowed to quarantine in her rented premises, we moved all her belongings into storage, cleaned the suite and turned in the keys a week ago.</p>
<p>We have also noticed a very strange clause in her lease:</p>
<p>2.(c )   The Terms and Conditions and all Schedules of this Lease continue with the Occupancy of the Owner’s property by the Tenant until the Tenant either signs a new lease with the Owner or vacates the premises, which ever occurs first.</p>
<p>This seems very strange to me, but it appears that the Terms and Conditions of the lease have no effect after the Tenant vacates the premises.</p>
<p>So the question is, do we file a claim for Frustration or simply that the Tenant has vacated the premises and rent is no longer payable?</p>

<h2>The contract is not frustrated</h2>
<p>The fact that your daughter cannot reside in the premises for a period or that the landlord cannot show the premises does not amount to frustration. If the property had burned down - that might be frustration (if the lease didn’t contemplate that - most do).</p>
<p>Unfortunately, your daughter is obliged to comply with her obligations under the lease or she will be in breach. This includes paying rent until it ends and allowing the landlord to show the property as the lease permits.</p>
<p>She has correctly identified that if she quarantines in the property she will be preventing the landlord from showing it. She has two options:</p>
<ol>
<li>Quarantine elsewhere and comply with the lease,</li>
<li>Quarantine at home, break the lease and pay damages to the landlord. The landlord would need to demonstrate that the breach had caused damage. That is, they would need to prove that being unable to show the property during the 2 week period had caused them to not be able to relet it and, probably, the maximum damage would be two weeks at the new rent - this would be full compensation for the two week delay in their ability to show the property.</li>
</ol>
<p>Your daughter chose 1., possibly without being aware that 2. was an option.</p>
<p>In common law jurisdictions, parties must comply with their contractural obligations even if extraneous factors (like government regulations) make that more difficult. Civil law jurisdictions have the doctrine in law of <a href="https://en.wikipedia.org/wiki/Force_majeure" rel="nofollow noreferrer">force majeure</a> but in common law jurisdictions, that concept is a creature of contract. That is, a party is only released from an obligation hindered by an external factor if the contract deals with it. For example, if a government mandate shuts down a construction site, the builder must still complete by the date for completion notwithstanding. Or, remember the ship stuck in the Suez Canal? Other ships delayed by that event would still be required to pay if they were late unless the contract released them (common law), but could claim force majeure if the contract was under civil law.</p>
<p>The narrower doctrine of <a href="https://en.wikipedia.org/wiki/Frustration_of_purpose" rel="nofollow noreferrer">frustration</a> requires that the <em>principal purpose</em> of the contract be impossible or radically altered by the extraneous event. The principal purpose of a residential lease is for the landlord to provide the dwelling and the tenant to pay rent: neither of these are affected so there is no frustration. The situation is certainly frustrating in an emotional sense but it isn’t frustrated in a legal sense.</p>

<blockquote>
<p>do we file a claim for Frustration or simply that the Tenant has vacated the premises and rent is no longer payable?</p>
</blockquote>
<p>Clause 2.(c) in and of itself sounds in [tenant's] right to <em>early termination</em> of the lease. This means that your daughter might not have to pay the last month of the lease (or, if she already paid, she would be entitled to a reimbursement). However, that is inconclusive because the contract altogether might strike the argument of said &quot;right to early termination&quot;. Also the exact dates at issue and the possibility of prorating are relevant and unspecified in your description.</p>
<p>If the contract does not provide for early termination, your daughter mistakenly waived her rights by turning in the keys already. In that case, there is not much she can do at this point.</p>
<p>The assertion that your daughter &quot;<em>must find someplace else to reside during her 14 day quarantine</em>&quot; is inaccurate. Your daughter was fully entitled to spend her quarantine period in the premises insofar as that period was well within the duration of her lease.</p>
<p>The direction that a quarantined person ought to avoid that others enter the premises does not impose on your daughter an obligation to do &quot;everything she can&quot; to prevent her adamant landlord from showing the premises to potential tenants. An extreme scenario illustrates the point: a person breaking in the suite does not put your daughter in violation of the quarantine rules.</p>

covid-19 tenancy-rules