In Ontario, the residential landlord and tenant laws provide tenants with security of tenure. This means, that a tenant, even after the expiry of a lease, is automatically entitled to continue living in the apartment/rental unit on the same terms and conditions as under the expired written lease. The tenancy becomes a month to month tenancy and the tenant has the legal right to continue the tenancy indefinitely. This means that the landlord is not entitled at law to regain possession of the apartment just because the lease ended. It also means that a landlord has no absolute right to possession of the apartment. Once the tenant is granted a leasehold interest in the property it is intended by the law for a landlord to have limited options to regain possession.
Most people understand that a landlord can seek to terminate a tenancy and evict a tenant where the tenant is breaching the terms of the lease or the Residential Tenancies Act. Things like non-payment of rent, interference with reasonable enjoyment (music, cleanliness, etc.), illegal act, are all fault grounds for termination of the tenancy. The tenant's security of tenure is terminated by the tenant's conduct.
What though, about the model tenant? The tenant who always pays the rent, doesn't cause a problem, and in fact looks after the landlord's property as if it were their own. Can such a tenant ever be evicted?
The idea in the Residential Tenancies Act is that the model tenant should be able to live in a rental unit indefinitely. There are only a few "non-fault" grounds for termination of the tenancy.
The one I'm writing about today is Termination For Landlord's Own Use. Where a tenant is at the end of a term, or on a month to month, the Residential Tenancies Act does allow a landlord to serve the tenant with a Notice of Termination based on the landlord's good faith requirement to use the rental unit for residential purposes (for himself, his spouse, parent, spouse's parent, or person providing personal care services to these individuals. For those interested in the technical wording see section 48 of the Residential Tenancies Act.
The form that a landlord serves on a tenant to terminate the tenancy for own use is Form N12. This form must be served at least 60 days prior to the proposed terminate date. The termination date must be the last day of a term (usually the last day of a month as this is the day before rent for the next term is due). The 60 days of notice is a minimum notice and certainly the landlord may provide much more time to a tenant.
Sometimes, the N12 is used to terminate a tenancy--not because the landlord actually intends to occupy the premises but for other alterior motives. What are some examples of those motives? Well, perhaps the rent is really low and the landlord would like to kick out the sitting tenant so that the unit can be re-rented for a much higher market rent. Perhaps the sitting tenant makes complaints to property standards thereby costing the landlord money in having to comply with property standards orders. Or maybe, the landlord and the tenant have had a falling out about something that is not grounds for termination of the tenancy but which nevertheless results in the landlord wanting to get rid of the tenant.
When the N12 is used in this way, a tenant has the option to force a landlord to prove the good faith of their application. This is done by refusing to move out and insisting that the landlord bring an application to the Ontario Landlord and Tenant Board to prove the good faith of their intention. If the tenant can cast serious doubt on the landlord's "good faith" intention then the application will be dismissed. Further, if the tenant can show that the N12 was served in retribution for the tenant enforcing her rights under the Residential Tenancies Act, complaining to a government body, for organizing a tenant association, or because the unit is occupied by children--then the Landlord and Tenant Board must refuse the application to terminate the tenancy (see section 83(3) of the Residential Tenancies Act).
A word of caution, while a tenant may certainly put the landlord to the test of proving his good faith, my experience is that it is often difficult to disprove the landlord's sworn evidence that he has a good faith intention to occupy the premises for residential purposes. If the only contradictory evidence that a tenant has is a "theory" then they are unlikely to be successful. To that end, if there are messages, statements, notes, letters, witnesses who heard the landlord express a contrary intention, then it is critically important for that evidence to be brought to the hearing. Great evidence, to disprove good faith, that I have used in cases includes: real estate listings showing the property has been put up for sale by the landlord, photos of the Landlord's actual house to show that the apartment he is moving into is smaller than his current garage. I've had phone messages from landlord's that demonstrate how angry the landlord is with the tenant for complaints, and I've had client's who have surreptitiously recorded landlords admitting that the only purpose of the N12 is to get the unit back to get higher rent from a new tenant.
What about the situations where the landlord does indeed intend to occupy the apartment in good faith? Let's assume that there is nothing nefarious. Does the tenant have any options other than to move out?
In fact, the tenant does have a way of resisting the termination of the tenancy and in my experience they tend to have a fair amount of success in at least delaying the eviction to for an extended period of time. To understand why the Board would refuse to terminate a tenancy you have to consider the circumstances of a tenant. Imagine a family with children in school. The N12, if enforced, would result in the children not being able to finish the last month in their current school (assuming that the family couldn't rent in the same area). What of a tenant who has severe disabilities, has been living the apartment for 10 years, and simply can't pack and find an accessible unit and move in 60 days. I think you get the point. There are circumstances where an N12, served in strict compliance with the law, imposes profound hardship on the tenant if the tenant is required to move out by the date stipulated in the notice.
I suppose it is only fair, if we're considering hardship stories, to also realize that a landlord serving an N12 may be serving it because of difficult circumstances as well. Perhaps the landlord needs the apartment due to a marital breakdown. Maybe the apartment is for a child who is returning home due to injury, disability, etc.. My point, is that hardship does not rest only with a tenant.
The hardship angles, and whether 60 days is enough, may be considered by an adjudicator under section 83 of the Residential Tenancies Act. This section gives the Landlord and Tenant Board the discretion to extend the time or even refuse eviction depending on the circumstances. In my representation of tenants in N12 cases I have had the Board extend the termination date by more than a year as well as outright refusals. And this has been in cases where the good faith of the landlord has not been in question. Depending on the circumstances, an adjudicator has the power to ignore the 60 days and do "justice" as between the parties.
Doing "justice" is often a subjective concept and open to critcism depending on one's views. Certainly, with respect to N12's, there is a camp that focuses the argument on property rights and that the landlord, as owner of the land, should not have to tolerate the presence of the tenant any longer than the 60 days set out in the Residential Tenancies Act. To open the 60 days to the discretion of the adjudicator is an affront to the rights of property owners. The flip side, of course, is that the tenant did nothing wrong, pays the rent, and is of lesser means than the Land Baron (landlord) and therefore the landlord is in a better position to deal with the problem of not getting the unit back than the tenant is in dealing with the problem of having to move in short order.
For me, I have argued both sides of this position depending on who my client is. To that end, my personal view does not come into it very often. If asked, I would offer the following framework to determine what is appropriate when faced with two compelling and truthful parties. I would look at the landlord and tenant relationship from the position of who is more innocent in the face of the application. In this context of an N12, I would favour a hardship argument from a tenant (and try to ameliorate that hardship) on the basis that the tenant has a legal right of security of tenure and the landlord knew that when he rented the unit to the tenant. While the tenant is deemed to know that an N12 could be served, this was only a contingent possibility whereas the notion of security of tenure attaches from the moment the tenancy commences.
So, in summary, the N12 is a fairly potent method of termination that is normally effective. The Landlord and Tenant Board does recognize the legislature's intention to allow property owners to recover their apartments for this reason and hence it is difficult for a tenant to defeat such an application. Mere inconvenience is not enough to deny the landlord its legal right to regain possession of the unit. However, in appropriate circumstances, the Landlord and Tenant Board retains sufficient discretion to delay or deny such a application where to grant the landlord's request would be fundamentally unfair.
Michael K. E. Thiele
Ottawa, Ontario, Canada