Aug 29, 2008 - 08:18 AM

By Jillian Follert

Comments (2)

OSHAWA -- A precedent-setting court ruling has found 37 landlords guilty of operating illegal lodging houses near the Durham College/UOIT campus.

Justice Peter Howden handed down his decision on Tuesday, ending a year-long legal showdown that pitted the City of Oshawa and the Neighbourhoods of Windfields against a group of landlords that rents homes to students.

"This outcome is going to be very helpful to the City of Oshawa in managing the development of land and restoring a decent quality of life to the neighbourhoods that have been overrun by these investor landlords," said Jonathan Lisus, the lawyer representing Windfields.

He couldn't predict exactly how things will unfold from here, but said Windfields will "take steps to ensure the decision is complied with."

That could potentially result in the affected landlords evicting some or all of their tenants with a new school year on the horizon.

Also pleased with the ruling was City of Oshawa solicitor David Potts, who called it "sound and reasoned," and Mayor John Gray, who said it will make it easier for the City to regulate the area.

"We recognize that we have to have housing for students, but this is all about striking a balance," the mayor said. "If you have nine students in a home, is that safe? Is that a good environment for them to study or have privacy? We want to have appropriate student housing."

At issue was whether 30 properties in the Windfields neighbourhood are operating in violation of the City bylaw that says commercial lodging houses are not permitted in neighbourhoods zoned for single family residential use. These specific properties are not licensed under the municipal bylaw.

Justice Howden heard the case in a Whitby courtroom between March 17 and 19. His 50-page ruling looks at each property on an individual basis and finds 28 violate the bylaw.

This comes at a time when students are already concerned about the availability of housing near campus. The City's controversial new rental housing bylaw, which took effect May 30, limits the number of bedrooms in rental homes to four, which critics argue will lead to a housing shortage.

It isn't known exactly how many students live or were living in the 28 homes in question, but court documents indicate 150 would be a reasonable estimate.

The City bylaw defines a lodging house as "a building or part of a building containing three to 10 lodging units, which does not appear to function as a dwelling unit, although one may be included with the lodging units."

It was left to Justice Howden to interpret the bylaw and decide whether the 30 houses in question fell under its definition.

He looked at each property on a case-by-case basis, using testimony from landlords and information compiled by Windfields' private investigator to determine how many people lived in each home, and how it operated.

For example, landlord Ronald Death is linked to eight houses on Secretariat Place, either as owner, co-owner or someone who assists on title with the management of the properties.

The eight houses have a total of 49 tenants between them and, despite claims that the students function as a consensual group, the judge ruled that the Death houses violate the City's lodging house bylaw.

"There is no evidence that any of the groups are in the home together for any other reason than a temporary need for housing," Justice Howden wrote in his ruling. "They are not a family or similar groupings, not are they bound to each other in any other unit which can be said to function as a single housekeeping establishment."

Even in situations where a group of friends was living together, the judge ruled that the setup was actually a lodging house.

Landlords Dennis and Jeanne Symes rented their Secretariat Place home to a group of five male students who were friends before living together. The group rented the house together and lived in a communal setting with no locks on the bedroom doors, but the judge said the addition of two extra bedrooms and the short-term nature of the leases led him to classify the home as a lodging house.

"They may be friends, but the particular grouping of these five friends in one house is for temporary individual housing needs, not as a basic unit like a family or other similar bond of cohabitation in a state of singleness," Justice Howden wrote.

Attempts by This Week to speak with students in the affected homes were mostly unsuccessful. One student, Dave, 20, who would not give his last name, said the students renting the houses have been largely kept uninformed.

Dave said he wasn't told about the issue by his landlord, but one of his neighbours mentioned it to him, so he's been trying to follow it.

But Dave, a third-year UOIT student living on Secretariat Place, said he feels frustrated and left out of the loop. He had no idea the ruling had been made.

"I can't believe they would do this to us," he said. "We don't even know what's going on. If we all have to leave this close to the beginning of the school year it's going to be really hard to find another place. It's not fair to us. We didn't do anything wrong. We just signed a lease."

Landlord Harold Tomlinson said the ruling is "surprising and very disappointing." Mr. Tomlinson, who owns two properties in the Windfields neighbourhood, lives in one of the two houses. He also rents out two rooms in that property and has four tenants in the other one.

He said he can't understand how the City can introduce a process to license rental properties while at the same time suing landlords who operate similar properties.

Mr. Tomlinson was also concerned by the rationale behind some of the judge's rulings.

"I don't believe you're allowed to make a decision based on the relationship of the occupants, which he seems to have done," he said.

This is the third setback the landlords have dealt with in the past year.

The first came in October 2007, after they argued that the bylaw was too vague to be valid, or properly enforced.

Justice Howden dismissed the motion, saying "the definitions in question are not impermissibly vague."

The students and landlords took another hit in February 2008, when Oshawa council voted to introduce a new bylaw to regulate student rental housing near campus.

As of May 30, landlords are required to obtain an annual licence before renting out their homes, and are allowed a maximum of four bedrooms, among other rules.