Tuesday, 23 October 2012

Non-Payment of Rent

The purpose of this blog is to help both landlord and tenants with the procedural issues surrounding the application of the Residential Tenancies Act (RTA).  The RTA is the law that governs the relationship between residential landlords and tenants (since 2006 to the present date of 2012).  The prior legislation was the Tenant Protection Act and before then the Landlord and Tenant Act.  Any residential lease making reference to the old laws will always be deemed to be the current and actual law which is the Residential Tenancies Act.

Where should a landlord or a tenant start if the issue being dealt with is non-payment of rent?  The first place to look is the law itself.  You may find it at RTA .  Both landlords and tenants should inform themselves of the specifics of the laws as no landlord may take any steps to recover possession of a rental unit without following the technical requirements of the law.  The law respecting non-payment of rent is significantly more complicated than you might think.  It is for this very same reason that a tenant should inform himself/herself of the law as they have many more rights that you might imagine.

What does not work?---you can't tell a tenant to get out and expect them to leave, you can not just send an email or a letter or a note and think that this is lawful.  A handshake has no legal force or effect.  A written "contract" or a written "deal" is unenforceable--void, of no force and effect if that deal (no matter how reasonable it seems) violates the provisions of the RTA.  In short, the law takes away your right--as mature and consenting adults to negotiate the terms of an agreement--no matter how reasonable that deal might seem.

The next most useful place to look is the website of the Ontario Landlord and Tenant Board This website provides the necessary forms that a landlord absolutely must use and it provides brochures and guides on what to do.

I regularly teach landlord and tenant law at a local College here in Ottawa.  It is always surprising to me that the process to deal with non-payment of rent is so poorly understood.  A summary of that process is as follows:

1. Fill out a form N4--which is a Notice of Termination for Non-Payment of Rent.  This is not a choice or a recommendation.  It is mandatory if you are seeking termination of a tenancy for non payment of rent and the payment of that rent.

2. The form N4 will give the tenant 14 days to pay the rent.  If they do, the notice is void and they get to stay in the unit.  While you are waiting for the 14 days (yes two weeks) to pass, you can do nothing except wait.  This delay is a very good reason to serve an N4 immediately after the rent is due--no breaks, no delays as any grace period delays the counting of the 14 days of notice required to be provided in the N4.

3. If the rent is not paid within the 14 day period, then on the 15th day you may fill in a form L1 (Landlord's Application number 1).  File it with the Board, with a copy of the N4 that you served on the tenant along with a Certificate of Service, proving that you served the N4 on the Tenant.

4.  Once you file the L1 with the Landlord and Tenant Board you will receive a Notice of Hearing and an issued copy of the application.  You will need to serve this on the tenant (in the New Year (2013), the Landlord and Tenant Board will start serving the document for you by mail).  You will likely be waiting a week or two for the hearing date to arrive.

5.  On the date of the Hearing, you will need to attend to prove that the tenant has not paid rent.  Normally this is done by simply stating that the tenant has not paid the rent.  Presuming that the tenant does not dispute that the rent is owed, and absent any special considerations, the Landlord and Tenant Board may issue a standard Order, giving the tenant 11 days to pay the rent, plus the $170 application fee.  If the tenant does pay with the additional time provided, the eviction Order will become void and unenforceable.

6. If the tenant does not pay the rent, as Ordered, then on the 12th day (set out in the Order), the landlord may take the Order to the Sheriff (at the local Courthouse) for it to be enforced.  It is the Sheriff (Court Enforcement Officer) who must enforce the eviction order (there is no self help, you can't get friends or even the police to enforce the order--it has to be the sheriff).  The Sheriff will normally give the tenant another 7 days of Notice before physically attending to change the locks.

7.  Once in a tenancy, a tenant may pay the full amount of the rent arrears, even after the Sheriff has posted a Notice to Vacate on a tenant's door.  If they do, the eviction Order is void.  The Sheriff fee of approximately $330 must also be paid by the tenant at the Motion to Void hearing.  In order to void an eviction notice after the Sheriff has posted a notice to vacate a tenant must file a Motion to Void with the Landlord and Tenant Board.

As you can see, the process to terminate and evict a tenant for non-payment of rent is a lengthy process.  The RTA reflects a policy choice (Security of Tenure) to give tenants many opportunities to maintain their rental unit and home in cases involving non-payment of rent.  In fact, not discussed above, is the fact that a tenant, at a hearing before the Landlord and Tenant Board, may ask an adjudicator to exercise his/her discretion and order a payment plan or some other method that is affordable to the tenant instead of issuing an eviction Order.  The power to grant relief from eviction is under section 83 of the RTA.  Where an adjudicator exercises such discretion (and it is mandatory that they consider using the exercise of this discretion), the Board would Order that the tenancy is maintained (and the tenant not evicted), so long as the tenant meets the conditions of the Order (for example $50 per week until the arrears are paid off).


In the event that the tenant does not meet the terms of a conditional order granting them relief (i.e. the chance to maintain the tenancy), the landlord will be permitted to apply again to the Landlord and Tenant Board under section 78 of the RTA in form L4.  Of course, a tenant may bring a motion to set aside an Order obtained under section 78--which all means that the parties will be back before the adjudicator several weeks later---- again.

Left out of this short blog is the possibility of a tenant raising various defences to the Landlord's application.  Those various defences include the legal right to argue any grounds for abatement of rent (maintenance, repair, illegal entry, tenant's rights etc.) or any other argument that would impact on the right of the landlord to collect rent (i.e. the lawful rent, the validity of the Notices, etc.).  If any of these arguments are successful the landlord might find that the rent arrears are substantially reduced or even that the application is dismissed on what is often derisively called a "technicality".

If you are a landlord, or a tenant, I hope you have taken from this blog the fact that the requirements of the RTA are highly technical, that not following the technical requirements of the RTA is in fact illegal, that tenants have many rights that are not necessarily intuitive, and that getting professional legal help--whether you are the tenant or the landlord is a very good idea.

Michael Thiele
Quinn Thiele Mineault Grodzki LLP
Lawyers
310 O'Connor Street, Ottawa, ON K2P 1V8
Tel: 613.563.1131
mthiele@pqtlaw.com
<a href="http://www.hypersmash.com">HyperSmash.com</a>

38 comments:

  1. Hello Michael.

    I finally got an order to have my tenants evicted for breaching the order. The order stated that they had to pay rent on time and in full. The tenant paid rent 6 days after the rent was due and did not make a full payment.

    I received the order November the 19th, and since it is almost Christmas I decided to let them stay Dec 15th-jan15th, without getting the sheriff involved.

    I sent them an advance notice to enter with my real estate agent, and received a message stating that i could do the inspection after Christmas.

    Do they have the right to deny entry at this point?


    I also called the landlord and Tenant board and found out that they filed a motion on Dec the 10th. which is past the 10 day requirement. I am confused why a hearing date was given, without an extension request.

    The hearing date is now booked for Dec 16th.

    You have been very helpful in the past, and I would really appreciate your assistance.

    Thank you, kindly!

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    1. Hello:

      With respect to the tenant's denying entry to allow you to show the unit, inspect the unit etc.. The right to enter is covered in section 26 & 27. The cumulative effect of these sections is that the tenant does not have the right to deny entry. I always say that this is subject to reasonableness/decency--i.e. if the tenant is on the couch with the flu being sick etc., then I think that even though the landlord has the right to enter their would be no consequence to the tenant for refusing.

      In your situation, a simple denial without a proper reason is not acceptable. Note that you could explore the idea of entry without notice pursuant to section 26(3)(a)--if the purpose is to show the unit to a prospective tenant. Follow the requirements in section 26.

      The second part of your comment makes me have to guess what has happened here. I presume that you had an Order under an N8 (Persistent Late Payment of Rent). The Board ordered as a result of that N8/L2 application that the tenants could stay but would have to pay in full and on time for the next year (a fairly standard order). In breach, you were allowed to file a motion under section 78--which means an L4 application relying on affidavit evidence. That would have resulted in you getting an ex parte order it the mail---i.e. an Order based on your affidavit without the tenant having any opportunity to make submissions.

      An Order obtained in this way may be automatically stayed by a motion to set aside the order if the motion is brought within 10 days of the order issue date. If, as in your case, the 10 days expires without the motion being brought, the tenant may request an extension of time to file the motion--usually citing as a reason that they didn't get the Order or some other such thing. Clearly, whatever they wrote was persuasive enough for the Board to accept the Motion to Set Aside and schedule a hearing date. Given the scheduled hearing your eviction Order is likely stayed pending the hearing.

      Hope that explains the process a bit more.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  2. Hi Michael,

    I am kind of a new landlord and my tenant hasn't paid rent for 6 months. I have given N4 notice then filed L1. We had a hearing today and judge had asked him to vacate. He has agreed to vacate by tmrw. He owes $5614 and is on social assistance. I was using my line credit to manage the expenses during the period. He will disappear after tmrw for sure. Since he is on welfare, how can I collect the money? How to find his new address? I cannot afford any further expenses. Kindly, advise me. Thx.

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    1. Hi: I suspect that you already know that the answer to your question is not what you want it to be. If your tenant's sole source of income is Ontario Works (welfare) or perhaps ODSP (Ontario Disability Support Plan), then your tenant's income is exempt from garnishment or seizure for the payment of your debt. You could convert your Landlord and Tenant Board Order to a Judgment of the Small Claims Court (small fee) and try a debtor's examination in Court which is an opportunity to ask him about his assets and what he has available to pay you (it is quite possible that the answers will be that he has nothing and can't afford to pay you). Out of that process you can sometimes get Orders and payment plans that could be backed up with possible contempt findings. Sometimes the Small Claims Court judges get very creative to find a solution! Another option is to hire a collection agency and see if they have any luck--they often charge a percentage of what is collected. Sadly, you may be counting on the debtor inheriting money or winning the lottery as a condition of getting paid yourself.

      Finding the debtor's address, employment details if any, is a matter of luck. There is no specific way of finding this information for the purpose of enforcing an Order. If you can't find the information yourself you could hire a process server (who can do various database searches) or alternatively a Private Investigator who can do a bit more. This is usually called "skip tracing" and you can expect it to cost several hundreds of dollars. It is very helpful if you collected the debtors date of birth, drivers licence number, etc., at the time of renting the unit to him. This information would give the Private Investigator a head start in locating the debtor for you.

      Good luck and I hope for your sake that your tenant does voluntarily vacate today. If he doesn't leave on his own you will need to file your eviction Order with the Sheriff so that the Sheriff will come and remove the tenant. This will cost another approx $330 dollars and depending where you are in the province take a number weeks.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Dear Michael,
      It is a pleasure to have ppl like you, who help others with valuable information. I really appreciated and proud of you. At the same time, the society has ppl like my tenant, who steals others money and leave them with debts. I just came from Dr. Office and my BP is high. I have decided to follow your advise and got the forms to fill out. The tenant was willing to hand out the key by today. Also, I have found out that he doesn't have any assets or even vehicles. I was told that he works for cash, while on welfare. Officially, he doesn't work.......(he is a handy man). Do you still think it is better to go through the small claim court or better with collection agency? What you will do (if you were me)? He is still living somewhere close to my condo......other ppl have seen him. He has done that to other landlords too (I found out, while he was talking). He has told the board member that he can't pay, b/c other roommates were moved. The board member has repeated that "it is your problem sir".
      Kindly advise your opinion.....that is the only relief I have now. Thanks.

      Delete
  3. Hello,

    Myself, fiancé, 4 year old, and 2 year old have rented an apartment starting September 1st. We payed first and last, etc etc. My daughters run lightly back and fourth, play with their toys, and mak normal noise throughout the day. They go to bed at 8pm, and was up at 8am.

    The first day we moved in, the neighbour below us banged on his ceiling as if we were making too much noise. We were in the unit for 20 minutes, and it was 8:30pm on a Monday.

    Fast forward to Friday of that week, and he has continued to bang on the ceiling. This time he figured he would come up to my apartment and ask for me to keep unit. I told him that I would have it quiet from 8-8... Other than that, they are kids and will make a bit of noise.

    Let's move forward to th next week, the second week of being a tenant in this building (family building, by the way). We wake up on Saturday at 9:30am. My kids trott down the hallway, ply with their cats and dogs, and sit on the couch. Typical kid stuff. He proceeds to bang on the ceiling. At this point I'm getting annoyed and I've already told my kids (which I shouldn't have to) to step a little lighter. We leave at 10:00am to do some laundry, shopping, and visiting family members. We get back at 2:15. He bangs on the ceiling again at 2:20 while we're putting groceries away. I leave to go see my brother in law. As soon as I leave, he storms upstairs and yells at my pregnant fiancé to shut our kids up, and to fu**ing control them. She closes the door and locks it. S calls me and I come over. I see this tenant outside an email immediately starts yelling at me and telling me to control my f**king kids. Take them out to play, and how I am n unfit parent because they are at home. He tells me how his mother sent him out to play etc. Anyhow, he threatens to call the police on me, and tells me he is going to get me evicted. I call the police, they tell me they are just kids and I'm not doing anything wrong.

    Let's move to this week. I get a notice from the landlord that there has been "multiple complaints about excessive noise." the issue I have with thi is the fact that the tenant below me is friends with everyone in this building. I have a feeling he is telling them to complain about me to get me evicted.

    I'm not sure what to do. I spoke with the landlord and he told me that if the complaints keep coming in, that h would have to serve me an N5 which would/could lead to eviction.

    What do I do? I haven't done anything wrong yet I am getting essentially bullied by the other tenants of this building for what is considered normal noise.

    Let me add that the man below me works 8am-5pm. My fiancé takes our kids out during the day, and on weekends we are never home. This weekend alone we left at 11am on Saturday, returned at 9pm. An left at 12pm on Sunday, and returned at 6:30pm, where I was greeted by a notice from the landlord clutter stating there have been multiple excessive noise complaints by multiple tenants.)

    I will be emailing the landlord tomorrow detailing the events that have transpired just to have a written copy of it.

    What do I do? I feel as if I am being done wrong.

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  4. Hello,

    My boyfriend and I currently rent the basement of his brother's house.We do not have a written lease but a "verbal" one. When we moved in, we were informed that our rent would be paying for the cable and internet and that he would be the one shoveling the snow and mowing the lawn. We share the laundry room and the kitchen. Since we moved in, we have rarely had internet (when it goes out his brother is slow to call Bell for repairs) and we do not have cable. We have done the gardening, most of the lawn mowing and did all the shoveling in the winter. His brother rarely takes care of the house and my boyfriend and I are the ones that have taken on the majority of the responsibilities. He has taken our food, he does not clean up after himself, doesn't take out his garbage and does not do his dishes. We started to do his dishes and take out his garbage for him as we started to get a large amount of fruit flies and ants coming inside. We have grown tired of paying him rent and taking care of his house for him. We gave him notice that we would not be paying October rent if we do not see some change (cleaning up after self and cable since that is something we are paying to have). He did not provide this until yesterday. I understand that this may be more of a family matter issue, but from the perspective of the Landlord Tenant Board, what can the tenant do when the landlord is not fulfilling their duties (rent, mowing lawn, shoveling snow, taking out garbage)?

    Thank you,
    Keaghan

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    Replies
    1. Hi Keaghan: On the assumption that the Residential Tenancies Act applies (which is not clear in your case), on the facts you describe you can bring a T2 and T6 application. The T2 is a tenant's rights application and speaks to "substantial interference with reasonable enjoyment" by the landlord (there are other grounds covered as well in the T2). The T6 is an application to compel maintenance and repair and to seek orders for rent abatement etc.. You may file both applications together. Take a look at the Landlord and Tenant Board website and you will see a guide for each of these applications.

      The applications are straightforward and certainly on the facts you describe you have good grounds to complain. The issue will be whether this tenancy is covered by the Residential Tenancies Act or not. If you are sharing a kitchen and/or bath with the landlord then the relationship is not covered by the RTA.

      Good luck

      Michael K . E. Thiele
      www.ottawalawyers.com

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  5. Hi Michael,

    I am new in the rental business. I have rent a house last August 2014 and we signed a contract with the tenant. After the first year passed now the tenant is not paying the rent.
    Should I have to follow all steps listed for you before to asking to leave my house?
    What is the best way to handle the N4 or L1 for? By regular mail or certified mail or it has to be in person? Does he has to sign it?

    Please let me know.

    Thank you in advance.

    Mauricio S.

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  6. Hello Michael

    My brother and I had decided to rent the baisment since I had to move out and we had found someone on kijiji and he signed the contract for one year starting September 2015- September 2016. When he moved in he gave us cash to cover until November 2016 and told us that he will order the checks ( the contract requested postaded checks ) and a couple of weeks my brother notice that his car wasn't in the driveway and that he wasn't coming in the house at all his belongings are still in the basement .. We been trying to contact him since last Thursday and send the letter of "late rent notice " on Friday .. My question is how long do we have to wait until we change the front door ? What to do with the belongings? We don't have any information but his phone number ..his email is not working and he hasn't respond back. Rent was due December 1st...
    I'm very concern since we have no idea what to do or where to look for at this point we just don't want to let him have access and lose the money of this month .. What can we do ?
    Help!!

    adri257@live.com

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    Replies
    1. Hi Adriana: I presume it is a typo when you say that rent was paid until November 2016. Is the basement a separate rental unit? Does the basement tenant share a kitchen or bathroom with the owner of the premises? Are you or your brother the owner of the premises or are you also renting the place from the owner? Unfortunately I need answers to these questions before being able to provide any general guidance.

      If the person you rented the basement to is a tenant and the relationship is governed by the Residential Tenancies Act then you would have to proceed in accordance with the RTA---i.e. serve a Notice of Termination for Non-Payment of Rent and then proceed to the Landlord and Tenant Board to get an eviction order. Proceeding on the basis that the unit is abandoned is risky given that the person's property is still in the basement.

      Unfortunately, it isn't clear to me whether this is an RTA covered tenancy. If it isn't, then you have a whole lot of flexibility on how to proceed. As the "tenant" can't be found you could proceed to change locks and put his property in storage for a reasonable amount of time. This is a reasonable way to proceed if this is not an RTA covered tenancy.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Hi Michael,
    This post is fantastic and a great read. I have a question for you, I have a two bedroom basement apartment with two guys living in it. The rent is $900 and they each pay half the rent so $450 each to me, both names are on the lease. I had the one tenant pay me his $450 for the month, but the other tenant has skipped out and can't be contacted. I want to serve a N4, but it is stated on the form that it must be served to both tenants living in the unit, but one of them has paid his portion of the rent? I don't want my good tenant to be getting evicted, just the one that hasn't paid his rent. Unfortunately the lease doesn't say how rent is split up between them just that the total is $900 and they are both tenants. What do I do in this case?

    ReplyDelete
  8. Hi Michael,

    I rented out my downtown condo unit to a lady. Unfortunately, she didn't have great credit so her agent and her offered to pay the first two months and the last two months of the lease.

    After the first two months had past, her third month post-dated cheque had bounced. At which time she apologized and told us she would rewrite another cheque including the admin fee. When we went to pick up the cheque she only wrote the cheque for the rent amount to my real estate agent's name. When he deposited that cheque it had bounced the second time.

    We decided to give her an N4. Finally on the last day before the N4 day expired, she had given us a the rent using a bank draft but was $75 short from the original rent amount. Then finally, the next month rent is due at which time the cheque had bounced again. We served her with another N4. When we had reminded her multiple times that the due date was coming up. She tells that she cannot pay her rent and we can do whatever the f**k we want. Now her rent for the upcoming month had reached yesterday and she had missed that payment as well.

    I will be filing for an L1 to evict her as she she has not paid her last two months rent.

    My son had begun working downtown and is willing to live there. Is there any way I can evict her and allow my son to live there? I do not want anything to do with her and just want my money for the last two months rent.

    Please let me know the complications behind this issue.

    Your help is greatly appreciated.

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    Replies
    1. Hi: Your question is rather over-broad as there could be a great number of possible complications. Some can be guessed at, others are not yet apparent. Ultimately though, your application is based on rent and non-payment of that rent. If the tenant has not paid you will indeed get an eviction order, which will give her "pay and stay" options. Presumably she will not pay and you will be able to enforce the order. The trick will be to always serve the N4 and start the proceeding as soon as possible under the Rules.

      Your double LMR (Last Month's Rent), is a potential problem. If she raises that, or the Board raises the issue, you might find that you are ordered to rebate the portion in excess of the allowable deposit. You would show the LMR by amount and not that it covers two months. The Landlord and Tenant Board may or may not raise it as an issue. There is case law supporting an enhanced deposit, where it is offered unsolicited, and the landlord would otherwise refuse the tenant. That being said it is still frowned upon. Even if the issue came up negatively for you I don't think it should interfere with your application or deny you eviction. Presentation will be key.

      Proceed with an accurate N4 and follow up with an L1 within timelines and the burden will be on the tenant to prove that she has paid rent. When she can't the Board will likely issue a standard 11 day pay and stay order to evict her for non-payment of rent.

      Moving your son into the building is something that you are entitled to do using a Form N12. Note that the notice required is 60 days to the end of term. If you have a signed lease for a fixed term the N12 can not be effective before the end of the lease. From you description it sounds like she is a new tenant and with an agent I presume she signed a lease.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hi Michael

      I am in the somewhat similar situation. My tenant has never payed me on time, which I always co-operated. But now I need the property for my parents so I served the N12 to my tenant (two weeks back). Now it seems that he has stopped paying the rent, responding to my calls/text messages and also started giving me hard time to enter the property even with advance notice. By his behavior it seems like he will not evict the property as stated in N12. Can I start the eviction process now and also serve him N4 as well while the N12 period is counting down.

      Thanks in advance for your help.
      ~A

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    3. Hi: You may indeed file an application based on the N12 now (you may do so right after serving the N12). You will use a Form L2 and there will be an additional document (affidavit) to sign. When you file that application you will get a hearing date from the Board. In the mean time, the respective responsibilities of the landlord and tenant continue. Meaning the tenant must still pay rent, must still not damage, etc. etc.. As such you may indeed serve an N4 now and any other applicable form that may be useful depending on what the tenant does. The N4 is particularly good because it does not void with the passage of time. All other termination forms become void 30 days after the termination date in the Form unless they have been acted upon (i.e. application filed) within that time period. The N4 simply remains valid and you can file with the Board when you're ready (presuming the tenant is still in possession). The reason I mention this is that you may find that the dates pile up on one another. If you file the N12 now you will get a hearing date in the next month or so (depending on where you are in Ontario). If you serve an N4 today then you need to wait 14 days to allow the tenant to pay and void the notice. If he does not pay, then you may file an application in form L1--which gets you a hearing date. From a timing perspective you might find that your hearing date for the N12/L2 is rather close in time to the N4/L1. If this happens, you might find that the tenant would argue to adjourn your soonest application to the date of the later application. You should try to avoid this if possible as you want to have your case heard as quickly as possible. The Board will indeed adjourn cases to join them into one big case. Depending on the timing, and where you are in the province, this has the potential to really draw out the process. So, if you find yourself in a position to file on the N4 but you have a hearing coming up in a few days or week on the N12, you should consider waiting until after the hearing.

      Aside from the N4 you could also consider the N8 form for persistent late payment of rent. The N8 is unlikely to get you actual eviction, but if the tenant retains the right to remain in the unit the typical order is to require the tenant to pay the rent in full and on time for 12 months.

      Good luck to you

      Michael K. E. Thiele
      www.ottawalawyers.com

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  9. Hi Michael, thank you for all the great information you have shared :)
    Question, my parents currently have a tenant, since June 2015. She has not paid her rent on time or has been late a month, since she has moved in, at first, they gave her chances, but after the 3rd time they served her the N4, they went to court in November (at this point she owed October, November,and because her 11 days fell into after December, she also owed December, the tenant had 11 days to pay the full amount, well she did so. Now January 22nd and she has yet to pay the rent for January 1st. So my parents, again, filed the N4 and are awaiting a court date. This seems to be a pattern, and one that most likely be this way for a very long time. Is there anything my parents can do to once and for all, evict them? Don't landlords have any rights? It seems that there is nothing they can do to break this pattern and evict her. And even if we ended up with the eviction order and a sheriff, I bet you she would pay just on time before she gets forced to move out.. What is the solution for this? At this point they just want her out! thank you.

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    Replies
    1. Hi: Please take a look at the Form N8. This can be used to terminate a tenancy for persistent late payment of rent. The N8 has a 60 day notice period to the end of term. However, you will want to file it anyway as the standard order for an N8 is a conditional order allowing the tenant to stay so long as they pay their rent in full and on time. If the tenant breaches the order then the landlord may file an L4 application (free) establishing the breach of the conditional order and an eviction will then be ordered for persistent late payment of rent. This kind of order is not voidable once it is made. It isn't a perfect solution to a frustrating situation but it is at least something to deal with the persistently late payment of rent. Keep serving the N4's until the N8/L2 application is dealt with at the Board.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you, you are great!! :)

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  10. Hi Michael, thank you very much for sharing the great information here.

    I bought a freehold townhouse in Markham and rented out my basement to a single male tenant last year, we signed a lease agreement for one year (May 2015 to April 2016) with an OREA sample agreement and he paid first and last months. The agreement stated that the tenant to provide ten post-dated cheques but we verbally agreed that he would pay cash on the first of each months. Everything was fine for the first few months although he paid the rent a few days late on some occasions. Fast forward to December 2015, I was unable to contact him on the first few days of the month and did not receive the rent, he later responded and has been promising to pay the rent on the following weeks but it never happened. He has been prolonging the due date for weeks and he told me briefly that he is dealing with the health issue of his father. To date, he has yet to pay the rent for December and January; I have been keeping the text message conversation between us as a record. I am planning to sell my house in May of this year and would need to sort out this dispute ASAP, I am wondering what is the best course of action and where to start. Thank you very much for your help.

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  11. Hi Michael,

    Your advise on my rental dispute will be highly appreciated. I hope you can get me some positive direction to deal with this situation.
    I am waiting for a L1 hearing on Mid February for non payment of rent from my tenant at LTB. My tenant has served me a email notice today that they will vacate the unit on February 29 2016. But they will not pay the previous dues (last one and half months rent) and the February 16 rent for financial difficulties. Also informed me they will talk with some legal representative how they will repay in small amounts after they move out.
    What can I do at the present situation? Wait for them to move out first then wait for their legal papers to come in? How can I reach them if they do not contact me or if they don't give their address after they move out. Though I have the tenants office address. They have also breached the lease agreement as not giving me 2 months notice for vacating and the lease term as it will expire September 2016.

    Looking forward for your kind advice.
    Thanks

    ReplyDelete
    Replies
    1. Hi Hamid: From what you describe here I suspect that you served an N4 (Notice of Termination for non-Payment of rent), and then, after the 14 day period you proceeded with the L1. The hearing that is upcoming will terminate their tenancy and calculate the rent arrears owing to the time that they vacate.

      Your tenants are giving you a move out date that is after the hearing date. In theory, the Landlord and Tenant Board could order an earlier termination and they could be evicted sooner. However, practically speaking that is highly unlikely as the Board Order will give them at least 11 days to pay and the sheriff would give the tenants at least another 7 days, which if you add it up likely puts the tenant's termination date of February 29 in advance of when the Board order would be enforceable.

      In your situation I would proceed with the hearing and be prepared to prove your case. The tenants may not even show up to the hearing. If they do, you could ask them to provide their new address to the Board--see if they do. At this stage you should not forego any rights that flow from your application. Don't adjourn or withdraw your application because of the tenants' promises. Just go ahead and get your order terminating the tenancy and for rent arrears. It is fine an good that the tenants are promising a payment plan through a lawyer but that, in my experience, is a false promise. Ultimately, if you are to ever recover the rent arrears you are going to have to chase them for it through the Court processes of garnishment, debtors examination, writ of seizure and sale. You may want to retain a collection agency to enforce the order when you get it.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  12. Hello Michael,
    Thanks for educating us landlords on these important matters.
    I have tenant that has not paid rent since December 2105. I served her a N4 and later a N8 too ,but unfortunately I had the old N4(I had with me copies of the N4 that was in use prior to Jan/2011) that has the same rules as the new N4 but just a different Format. I had called in LTB several times to ask them the rules of N4 and they all sounded the same as before January 2011. So it never occurred to me that the Forms had changed. Now my N4 and L1 has been returned with a note saying that the Adjudicator MIGHT not accept it. It all depends on the Adjudicator . I could plead my case but I would be taking a chance. I called back LTB and asked them as to what should I do now ? I was told that I could resend the N8 and also a L9 but L9 does not guarantee an Eviction , and N8 might help towards an eviction. Another person suggested I start the whole process again. Ouch. That will give this bad tenant even longer to stay free.
    My question is : Should I take a chance and re-file the N4, along with my N8 and L9 . So if the N4 gets thrown out then at least they might consider the L9
    for the repayment of Rent and L2 & N8 for the eviction.
    Please guide me at the earliest. Time is of the essence.
    Thanking you kindly,
    Kulvinder

    ReplyDelete
  13. Hello,

    I was wondering, If I was served an eviction notice, then the landlord accepts the next months rent, does that make the eviction notice void?

    Thanks

    ReplyDelete
    Replies
    1. Hi: The answer is "no". This issue is specifically addressed in section 45 of the Residential Tenancies Act.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  14. Hi Michael, thank you so much for a great information.I learned a lot because im a new landlord.My tenant move in on july 20,2016 and paid first and last payment only the next month i was collecting rent he was complaining of smell or mold in the living room, the next day i went with my inspector to check the problem but there was no problem the place is newly renovated with a new hardwood flooring.After 2 months i went to the hearing with my Lawyer because he sued me for the mold issue, my tenant did not show up.My tenants on the 2 units moved out because he blocked the entrance going to the backyard so that they can not park there cars he use woodboard.He want the back parking for his dog only running around and never picked up after his dog excrement.Tenants are complaining because they could not have an access to the back parking, i went and cleared up the entrance he came out and yelling at me not to touch his property, this was happened 3 times already i went and removed the board, i called the police 3 times but never change.He does not pay rent until now march 2016 because my Lawyer postponed the hearing so that all tenants in the building will come over including the tenants who moved out last november 2015.We had the hearing last month of february all of us were there at the court room except him.My Lawyer phoned him but he pretend that was his brother and my tenant went to a meeting.When we went home he phoned my lawyer that he did not received a letter a notice of hearing.He said he will make an appeal to the highest court eventhough he does not pay the rent.I received a court order to pay the full amount of his rent arrears plus the application fee but still no payment of rent, I went to the enforcement office to pay the Sheriff for eviction $330.My question is can he make an appeal for stay order with out paying rent.I am so worried because i can not get any tenants because of him ,he block the entrance for the back parking.Until now i have 2 units available plus his apartment.I just bought this building last june 2015.Please advice me ASAP.Thank you so much....

    ReplyDelete
    Replies
    1. Hi: From what you've written I understand that you filed an application against your tenant to terminate for non-payment of rent and that you have received an order for termination and rent arrears to be paid. For whatever reason, your tenant did not show up at the hearing. You are now waiting for the sheriff to enforce the order.

      Your tenant has two options to try to set aside the eviction order. The first is that he could file a Request to Review with the Landlord and Tenant Board. He would allege that he was not reasonably able to participate in the hearing. If his reason sounds plausible, he would likely get a hearing date and your eviction order would be stayed until at least the review hearing.

      There is a chance, however, that his Request to Review is denied and no hearing is granted. This means that the order is never stayed and the sheriff will come as you have directed.

      The tenant has another option and that is to file an appeal to the Divisional Court. An appeal of the kind of order that you are talking about, without paying rent, is certainly a frivolous appeal. However, an appeal to the Divisional Court results in an automatic stay of an eviction order until the appeal is resolved. IF the tenant does this, then you will need to instruct your lawyer to bring a motion to set aside the stay or quash the appeal.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. Hello Michael,

    I happen to be on the receiving end of the N8 from the property owners that are attempting to evict me as a long time tenant so they can hike the rent up to their current asking amount which is a few hundreds of dollars higher than what I pay. To add, they have refused to fix my rotting kitchen (water damage from their faulty fix jobs) after 3 years of false promises, while its literally Crumbling down on me. I am assuming they would love to see me go, fix the kitchen as they do for all new tenants and not only get their money back via the rent increase but also stop paying for this units hydro and start charging for the parking spot all of which is included currently in my rent. The issue is, due to a very difficult year - first a immediate family moment suffered a stroke following which I myself became ill and was on disability 1/3 of my salary from my employer, I unintentionally had been late with rent. The landlord was aware of the issue and seemed to be accommodating. This month would have been my last month of lateness as I am full time back to work and got a nice promotion. I got an n4 which was not shocking as I have gotten it in the past although the office said they would not issue it since they knew my situation and were supposedly willing to wait, I had dropped off the rent prior to the date on the n4 only to come home and discover the n8 one day after dropping off the cheque. I am a young single woman supporting family overseas and In Canada and working my butt off fulltime to make ends meet, finally got my lucky break at my long time employer and bam. Eviction? I don't know what to do. I had full intentions to provide them with post dated cheques to assure they get it on time since I am no longer between a rock and a hard place... Please help.....

    ReplyDelete
    Replies
    1. Hi Marie: I hope that I understand your situation correctly. You have recently received a Form N8, termination of tenancy for persistent late payment of rent. You seem to identify only one instance of late payment of rent. Is this correct? If so, the N8 will never fly with the Landlord and Tenant Board. The Landlord and Tenant Board, in looking at N8 forms wants to see and extended pattern of persistent late payment. The Board often looks at the last 12 months and inquires how many late payments there have been. To be successful, a landlord needs to show a good number of late payments. I can't give you an exact number as there isn't an exact number in the Residential Tenancies Act. However, from a practice perspective the adjudicator is going to want at least 6 late payments, focused in the immediate past months. If the late payments are only a few, only by a day or two, this is not going to be enough.

      Aside from that, the Board will not normally terminate a tenancy even if there is persistent late payment. The Board will normally give a tenant a chance to pay in full and on time and only terminate if there is a breach of that condition.

      If the Landlord files with the Landlord and Tenant Board make sure to consult at least with duty counsel and if you can retain a lawyer or paralegal to take you through the process. You can certainly represent yourself but if you want a bit more certainty as to outcome hire an experienced lawyer or paralegal.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  16. Good afternoon
    I have a question for you. We have a tenant who is constantly late paying their rent. N4 forms have been issued and sometimes they have paid up to 12 days later. Last fall they didn't pay and we filed a L1 form for hearing. It was set but they paid before the hearing. Once again this winter they have been constantly late and N4 forms being issued. Now we have another hearing date set again. When we were looking at the forms we found a N8 form for eviction. Can we use this form as well as the hearing to get them out of the house or do they have to be separate. Thanks
    Dianne

    ReplyDelete
    Replies
    1. Hi: You may indeed serve an N8 form for persistent late payment of rent. Note the details of the form and fill it out correctly. Had you filled out an served the N8 around the same time as the N4 forms you could have filed a combined L1 and L2 application and paid only one filing fee. The adjudicator would have heard your N4/L1 and made the standard order for pay and stay and then would have heard your N8/L2 and made the typical order for it.

      Because you have already filed (and paid for the L1/N4) you can't now get the benefit of combining the applications and paying only one fee. However, nothing stops you from filing the L2/N8 application now if you serve the N8. Careful though, if you serve and file the N8/L2 before the first hearing date on the N4/L1 you risk the tenant asking to adjourn the first hearing to coincide with the scheduled second hearing. The effect is delay.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  17. This comment has been removed by a blog administrator.

    ReplyDelete
  18. Hi Michael,
    I have been served with 4 N4 notices, but each time I have paid the rent before the termination date. I was given a termination of tenancy document (N8) and a termination date. My question is, prior to being served with this N8, shouldn't I have been given some type of warning, warning me against late payment once more?

    ReplyDelete
    Replies
    1. HI: You are presumed to know what your obligations are under your lease--i.e. rent is due on the date stipulated. The N4 notices, aside from terminating your tenancy for non-payment of rent, also constitute a warning from the landlord that late payment is not acceptable. While you voided the N4's by paying the inference will be that receiving the N4's is a communication from the landlord indicating that late payment of rent is not acceptable. On that basis, there is no requirement in the law to warn you about the possibility of an N8 being served on you.

      If the landlord proceeds to file an application based on the N8 you will have an opportunity to defend the case. Arguably, 4 late payments does not constitute persistent late payment of rent. It depends on the circumstances. 4 times over 12 months does not in my view meet the criteria. 4 consecutive months and those 4 months are the last 4 months and you have a bit more of a problem. The explanation matters, the circumstances matter. For example, if the landlord requires you to pay at an office that is out of the way and it is difficult to get there that would be a reason to be flexible on the date. Also, how late is late? If you are paying on the first business day after rent is due and are unable to pay before because the office isn't open is also a consideration. My point simply is to inquire about the circumstances and perhaps there is a defence in that.

      If the landlord applies to the Board the typical order is not to terminate and evict for an N8. Even if the Board finds that there has been persistent late payment of rent the Board normally orders that you will have a chance to maintain your tenancy by paying the rent, in full and on time, for the next 12 months. If you do that the termination order is voided. If you fail to do that the landlord can apply without notice to you, pursuant to section 78, for an order terminating your tenancy.

      Good luck

      Michael K.E. Thiele
      www.ottawalawyers.com

      Delete
  19. Hi Michael,
    I was late paying my rent this month and was served a notice on the 2nd claiming that I have to pay my rent in full and pay $170 for an application to the board. I have informed them that I will be paying the next few days and am just waiting on money to transfer over.

    My understanding is the cannot apply to the board for an L1 form and charge me the $170 application fee until after 14 days from the notice. I called and spoke with the legal department for the landlord company and they informed me that they file the application immediately and therefore I will have to pay the $170 as well. Is this true if I pay my rent before the 14 day period? There was also no date listed on the form that I must pay by before they submit the application to the board. Thanks for your time,

    Mike

    ReplyDelete
    Replies
    1. Hi Mike: Very odd. You mention being served an notice on the 2nd. I presume that was an N4 Notice of Termination for Non-Payment of Rent. If so, you can see from the language on the Notice that you have 14 days--or until the termination date that is at least 14 days after the serve to pay the rent arrears claimed in it. If you pay within that time then the N4 is void and nothing more is done.

      The Landlord's statement that they apply immediately is unlikely to be true. The Board would not accept an L1 based on an N4 that has a termination date that has not passed yet. If the landlord managed to sneak an L1 by the Board and get it issued for an N4 that had not yet expired that application would be dismissed and the $170 would not be due and payable.

      Another possibility is that your landlord applied to the Board on an L9 application. This is an application that is not based on a Notice of Termination. It is the equivalent of an lawsuit in small claims court. It can not lead to termination. In theory your landlord could file this without giving notice and simply look for a "judgment". It seems very unlikely to me that this is what your landlord has done.

      Hence, the rent is due, the $170 is very likely not.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Hi Michael,
      Upon further review I'm positive that what I was served with is an L9 document and there was no reference to me being evicted or a time frame in which to pay it back. The only thing it states is that "as early as the 2nd of the month, I take the Landlord's overdue list and start to apply for Orders from the Board for anyone who has not yet paid their rent."

      I'm assuming they can legally file an L9 form immediately? I'm a little upset as this is the first time I have been late on payment since moving in over a year ago and I have explained I will be paying in the next few days.
      Thanks again for your time,

      Mike

      Delete
  20. Hi Michael,
    I hoping to get some expert guidance on my case. My renter is a drink addicted lady, and a bit abusive too, obviously more abusive when drunk. In March after getting so much trouble from her, we verbally asked her move out of the basement, and she agreed not to drink at the premises and not to disturb us by her shouts and abusive phone calls. So April passed very quietly and we had no problems.
    On the 2nd May at 9p.m., we again had arguments over her nuisances and shouting. I gave her last warning. On 3rd May I had to call police to stop her from calling me over and over and shouting for 60 day written Notice.
    on 4th May, I gave her N7 notice for causing "serious problems" with 14 days to evict (i.e by May 15th).
    Now that she got the notice of eviction, She stopped the rent payment which her husband (separated,lives in Edmonton) pays over e-transfer, though she probably gets rent money from the Ontario disability support too. Upon calling, He asked me to grant 2 more days to pay, and next time, same thing happened , told me he will pay in 2-3 days.

    Now she says she would need some time to move out, may be by the first week of June. Today as of 11 May, I called her for rent and she says will pay me for May by 16th and half month rent for June at the start of June.

    Now I am not sure if they will pay me by 16th or not and want to know what are my options here.

    ReplyDelete

IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.