Sunday, 4 November 2012

No written lease--Am I in trouble?

From time to time I will get a call from a tenant who is at his/her wits end.  They are having some kind of problem with their landlord and they feel that they don't have any recourse because the landlord never gave them a copy of their lease or they never actually signed one.  Invariably, the landlord has made the tenant feel that they could be forced to leave in short Order if the landlord chose to demand it--all because the tenant does not have proof of the lease or because a lease was never signed.    

The fact is, in Ontario, a tenant has all of the protection of the Residential Tenancies Act even if there is no written lease.  At law, a residential lease between a landlord and tenant may be written, oral, or implied.  Each form of lease is just as valid, just as legal, and provides just as much protection as any of the other forms of lease.  There are a few differences of course, but most relate to the difficulty associated with proving the terms of the lease.  A written lease will speak for itself from the paper it is written on.  An Oral lease requires an adjudicator to listen to what the Landlord and Tenant say were the terms of the lease and choose what the parties agreed to.  In an implied lease, a lease is created by the conduct of the parties or arises from the circumstances surrounding the occupation of the premises.  Often, the terms of Oral leases are ascertained by the conduct of the parties (i.e. amount of rent is determined by the amount of rent paid on a monthly basis).

The point here is that tenants do not need to worry that they have no rights just because there is no written lease.  In fact, it is fairly common for there to be oral lease agreements and all of these tenants and landlords have the same rights as parties who do have written leases.

In Ontario residential tenancies law it is important to remember that landlords and tenants are NOT free to negotiate the terms of their own deal.   The Residential Tenancies Act imposes certain minimum standards, rights, and responsibilities on both landlords and tenants regardless of how the tenancy agreement is formed.  In fact, if the parties agree to terms that are contrary to the provisions of the Residential Tenancies Act those terms are deemed to be void by the law--see section 4 Residential Tenancies Act.

As you should gather from this article, Ontario Residential Tenancies law provides significant protection to tenants regardless of how they became tenants.  The law gives all tenants certain basic rights that can not be negotiated away and can not be over-ridden by contract.  Any landlord who tries to impose terms that are contrary to the Residential Tenancies Act can be charged under the Provincial Offences Act and be subject to fines ranging from $25,000 to $100,000 (see section 238 Residential Tenancies Act).

Michael Thiele
310 O'Connor Street
Ottawa, ON K2P 1V8
Tel: 613.563.1131

284 comments:

  1. Hello and thank you for the comment. If you do a search of this blog (in the handy box they give you on the side) you will find an article called Rent Deemed Lawful. From that article you will see that a $100 per month rent increase on an Ontario Apartment is likely illegal. If the residential unit is not exempt from the RTA rent increase provisions (likely an issue if it is new(ish) construction) and you were not served a valid N1 (Notice of Rent Increase) then you would indeed be entitled to make a claim for the overpaid rent. This is potentially subject to a limitation argument or perhaps even estoppel. The short answer is that you do have a claim--but like all legal claims defences can be raised. Note from your fact scenario that your Notice of Termination should be 60 days---ending on the last day of the term--which is usually the day before rent is due. So, if you were giving notice today (September 3) and you pay rent on the first, the earliest legal notice of termination that you could give is November 30--it is a minimum of 60 days and to the end of term.

    Good luck with this. If it becomes serious please consider getting fulsome legal advice by contacting legal counsel so that the full background can be analyzed.

    ReplyDelete
  2. Hello Michael,

    My girlfriend and I paid I new landlord half of our first month's rent (we were going to move in mid month) and last month's rent in cash. The landlord said he didn't believe in leases and did not make us sign one. Although I did have him give me a receipt for the rent we paid. He promised to have the locks changed a d clean up the previous tennants odds and ends they left in the house and the copious amount of garbage they left outside. Since paying him the rent, he has done nothing to get the place ready for us. We are supposed to start moving in tomorrow, but quite frankly it isn't ready and we are scarred to move in. Is there anything we can do? If this is the way he is going to be we would just like to get our money back and find another place before we even move in. What can we do?

    ReplyDelete
    Replies
    1. Hi Lisa: What a horrible situation you are in! In Ontario you don't need a written lease to be in a "legal" landlord and tenant relationship. So, your situation with this new landlord is not all that unusual. What it means though is that you are likely on a month to month tenancy right from the start as opposed to a fixed one year term (to start). Your landlord has the same obligations under a month to month (no written lease) situation as he would have with a written lease. Not much turns on the existence of a written lease. The landlord has a duty to maintain and repair the property and to ensure that it is fit for habitation whether or not there is a written lease. If the condition of the property falls short on this account then you can call property standards (City, town, or township) to inspect and issue Orders, or call any of the other government agencies (Health, TSSA, Fire) and ultimately you might consider filing an application to the Landlord and Tenant Board.

      I appreciate that what must be particularly troubling right now is that this landlord--before the tenancy even begins--is already demonstrating that he is not particularly responsible and that he may be a bit of "slum-lord". Do you really want to move into a rental unit where you are going to have to fight to get even basic repairs and maintenance? Clearly the answer is "no" to that one. Unfortunately, it is not entirely clear that you are able to avoid this lease as it is "signed", money is paid, and presumably possession will be granted to you [by "signed" I mean there is proof of an agreement and evidence of an intention to lease like the receipt] . In these circumstances, it might be best to have a frank discussion with the landlord and bluntly confront him with the work not done, the locks not changed, and see if he will agree to terminate the lease and return your money. If he says yes, then all is well. If he says no, then you need to make a decision about how bad the unit is and whether you are prepared to move in. If you move in, you can start calling property standards etc., to get orders requiring the landlord to clean up the property etc., and then you can proceed to the Landlord and Tenant Board for a rent abatement or even a termination of the tenancy if the situation warrants. In the end, a blessing of sorts is that you are likely on a month to month tenancy so the maximum exposure you have is 60 days of rent (i.e. you can give Notice to Terminate now).

      The other thing you could do is simply refuse to move in--on the basis that the premises are not fit for habitation and demand a full reimbursement now. If the condition of the premises is BAD ENOUGH then you may be successful in this regard. However, be aware, that in order to terminate a lease on these grounds the condition of the premises needs to be significantly below acceptable standards. The landlord and tenant board would normally expect to issue repair orders and rent abatements as opposed to actually terminating the lease.

      Make sure you take plenty of pictures (evidence of the condition) and do have a blunt discussion with landlord. His "not believing in leases" suggests that he has had trouble in the past and that he prefers to let tenants just move on if the relationship becomes strained. If you indicate--fairly bluntly--that you already want to call property standards to come in and inspect and make orders maybe he will see that you as tenants and he as a landlord are simply not compatible and he will let you go.

      Good Luck

      Michael K. E. Thiele

      Delete
  3. Hi.. I have rented my house to my nephew... Bad move on our part..
    He moved in on June 15th of this year and has been late for his rent every month so far except for November. I have just received an email from him stating his rent will be late by 4 days once again..
    We ha asked him to sign back a rental agreement for over a month now... My wife and I are at our wits end due to the fact he is family..

    Can he be evicted for lack of on time payments? Also my oldest daughter has moved back into my house and would like her to move into my rental property that my nephew is in.. Would it be more simpler of a a task to just to take the property back over and give to my daughter

    ReplyDelete
  4. Hi Lost in Ontario:

    It sounds like you are on a month to month lease with your nephew as there is no written lease for a fixed term. For the persistent late payment of rent (6 months), you can serve him with a form N8. That is a notice of termination for persistent late payment of rent. The termination date is 60 days, to the end of term, on a month to month. If there is a fixed term tenancy then it has to be to the end of the fixed term if it is more than 60 days away.

    Your second option is to serve a Form N12 (Landlord's own use) for your daughter to move in. It also is a 60 day notice unless you are in a fixed term tenancy in which case the termination date has to be the end of the term. For either of these Notices of Termination you can apply to the Landlord and Tenant Board right after serving the Notice of Termination.

    Be aware that for the Persistent Late Payment of Rent that the Landlord and Tenant Board will very likely give your nephew a "second chance" to maintain the tenancy. The Board will Order your nephew to pay the rent in full and on time for the next 12 months. If he breaches then the Board will give you the right to file an L4 application (without notice) and obtain an eviction Order if your nephew is late again.

    With respect to you daughter moving into the house your nephew you resist your application for Landlord's own use on the basis that the Termination is not in good faith. Hence, you may find it necessary to explain and prove that your daughter will indeed occupy the premises.

    Lastly, aside from the legal route, you may wish to speak with your nephew directly and ask him to move out. You could speak frankly with him about how being landlords is not what you want to do and now that your daughter needs a place to live you can get out of the landlord game. The conversation doesn't have to be exactly this of course, but I hope you get the idea that maybe you can have a conversation that will solve your problem. Perhaps, if it makes it easier, you can encourage your nephew to move out by waiving a month of rent. If the conversation route doesn't work then of course you can proceed with the legal route of serving Notices of Termination.

    Good luck and please let me know how it goes.

    Michael K. E. Thiele
    Ontario Lawyer

    ReplyDelete
    Replies
    1. Hi Michael..
      First and foremost my wife and I would like to thank you for your quick and knowledgeable response not only too us but for anyone you have helped..

      So as I had mentioned my nephew had emailed me on the 29th of November to let me know his rent would be late.. I intern hand delivered a letter to him on Dec1st the day the rent would be due. Letting him know the unacceptable lateness of his rent and that we were asking him to leave on Feb15th of 2014 60 day notice..

      I received a text in how we was not late as of yet and I replied with his email regarding the rent would be late..Preemptive strike on my part... Received the typical rant... Hand written eviction,not an N8 form, I was being unreal yadayada..
      Surprisingly enough 2 hrs later he was at my door cash in hand.. Woo Hoo

      Anyways my question to you is, we want him out anyways and we were wondering should we serve him now notice of our intentions that on June 15 th 2014 we no longer wish to rent to him and would like for him to move out..That would give him 1yr in my home.. We are worried that he may just try and stay there even though he does not have a lease and is on as a presumed tenancy.. We are wanting him to move so we can re rent the home and hopefully to a tenant who is willing to pay on time

      Delete
    2. Hello Again. I'm glad that you are finding this information helpful and that you are taking your landlord and tenant issues in hand. At least you are getting your rent! Termination for persistent late payment of rent is still possible and you may serve an N8. However, as I indicated before, your nephew will very likely be given a chance to pay the rent in full and on time for the next year and only be evicted if he breaches that condition (and you apply to evict based on his breach of the condition). Whether it is worth it to serve the N8 is up to you and not really a legal question. If you do decide to serve the N8 make sure the termination date is the end of the term--the middle of the month termination date you are high-lighting is likely incorrect. If he is on a month to month tenancy, that is typical, then the rent is payable on the first of each month for the entire month. This means that the end of a term is the last day of the month--the day before rent is due. The same rule applies for N12 Notices (Landlord's own use).

      The surest way of getting possession is to proceed with the N12 Notice of Termination. This is the Notice for your eldest daughter to move into the house. Presuming that this is a "good faith" notice and that she intends to occupy the premises for residential purposes, then you should prepare and serve the N12 now. There is no reason to wait and the more notice that your nephew gets the better. I also recommend that after serving the N12 that you apply to the Landlord and Tenant Board to get an eviction Order. Do it now as this will get the hearing process and any appeal or review over with by the time that your daughter wishes to occupy the premises. Waiting to see if your nephew moves out (which you technically can do and only apply to the Board after he fails to move) invites headache at the time that your daughter is planning to move into your home. So, make sure that the N12 has a termination date at least 60 days after service and is for the end of the term (which I presume is the last day of the month as rent is due on the first).

      Good luck to you both.

      Michael K. E. Thiele
      Ottawa Lawyer

      Delete
    3. Hi Michael..
      Well it turns out my Daughter has decided to return to Europe earlier than expected so we chose to go with the N8 as he is once again late and has not paid yet this month..

      My wife and I have reserved ourselves to that fact that he is going to milk this as much as its worth.. We have served with aN5 as well for smoking in marijuana in the garage, none the least while we were there to repair an a appliance..IDIOT . The question I have is he originally moved in June 15th and we agreed upon a year lease,but after July's rent was going to be late he offered to move out. We talked to him and said we could deal with it as new moves can be expensive and requires catch up sometimes, then August rent was late and his ex-spouse and he were going to try and get back together so instead of him moving out again on his offer we felt with two incomes perhaps this would be best to allow him and her now to reside in the premises.. At this time My wife and I spoke to them both and were quite clear that instead of moving out we would go on a month to month agreement and not on the year lease we originally discussed.They both agreed to this change. Needless to say she was moved back out within 2 months

      I am inquiring does this change negate the verbal agreement we originally had with him? We have asked him kindly on numerous occasions to sign back the written month to month agreement we gave him.. Which agreement overseas the tenancy agreement? He keeps insisting we have a one year agreement and my wife is afraid he is trying to bait us into saying that we did have the one year lease verbally agreed too as we have given him the N8 for move out April 30th. And if the original stands then we may be stuck with him until at least June 30th or sell the home

      Delete
    4. Hi again: I'm sorry that it isn't working out for you, especially when it involves family. Based on what you've said here I think you are on a month to month tenancy and not a fixed term of one year. Unfortunately, the issue is not conducive to resolution through a blog like this as there is a whole lot of nuance. It will take a close look at the facts and how those facts are presented and explained. I think it is a month to month based on the impression I have (from your comments) on how the tenancy was formed. I'd be surprised if you orally concluded the precise terms of a lease without actually writing them down and therefore doubt that you would have orally agreed to a term of 12 months ending on a specific date. Of course, how these facts come out depend on how you testify and how you communicate what happened to the adjudicator. Further, the "month to month" is supported in the idea that you had mutually agreed to terminate the tenancy but then created a new tenancy after his ex-spouse moved in. Again, a matter of characterization that turns on how the facts are communicated to the adjudicator.

      So, I'm sorry that I can't suggest a definitive answer to your question but all I can suggest is that you think very carefully about what happened and be clear in communicating the underlying circumstances. What would also be helpful to you is a review of the case law in relation to tenancy agreements. There is a great section In Jack Fleming's book on Residential Tenancies--about $300 I think. Perhaps your local library could get it in for you--if you're inclined to try to buy or find the book in a library let me know and I can give you the title, edition, and point you at the chapter.

      Michael K. E. Thiele

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

    ReplyDelete
    Replies
    1. Hi Jay:

      If you are on a month to month then it is a 60 day notice not 30 days--to the end of term. Whether you have a one year lease or month to month is a question of fact that is not so easy to determine from the information you have provided. Certainly, the fact that there is no lease signed is to your benefit.

      The don't pay rent so your landlord terminates you method is not something that I can recommend as it is using the law in a way that it wasn't intended to work. However, it often works out just like you've said. Be aware, that some landlords insist that they continue to have the legal right pursue for unpaid rent even after the service of an N4. However, a recent case from the Small Claims Court seems to put that idea to rest.

      Your fact scenario is complicated enough that you should get legal advice.

      Best of luck
      Michael K. E. THiele

      Delete
  6. Hi Michael,

    My daughter signed a lease for a year on Dec 18, today is Dec 23. Now we find that the same apt. is advertised by a realtor for $50 less rent p.m plus a two month rent free if we sign a lease for eighteen months. Is there any option for us at this stage?

    Thanks in advance

    ReplyDelete
    Replies
    1. Hello: Thanks for the question. This isn't so much a legal question as it is a business practice issue. The Residential Tenancies Act is of no help to you with respect to comparative rent between two units nor does it help you in getting a rent discount based on a comparison to other units. Certainly the RTA does have a lot to say about "lawful" rent and it also has specific sections on rent discounts but unfortunately nothing that says a Landlord must provide its best deal to all tenants at the same time.

      Given the timing of it all it certainly seems like the kind of thing that a Landlord would be prepared to change if you just approached the landlord now. These are fairly significant differences and it is a fairly poor start to a tenancy if your daughter, the new tenant, is unhappy with the Landlord right from the start.

      Good luck and if you don't mind please let me know how you make out.

      Michael K. E. Thiele
      Ottawa Lawyer

      Delete
    2. Hi Michael,
      I'm a student in Hamilton. I live in a house with other tenants and we pay month by month. I was wondering, if I move out at the end of January, will I get my April deposit back? I paid for September and April. I also gave checks in advance so would I be able to get my February and March check back as well? There was no written lease agreement. I have texts from my landlord from when I initially moved in but it does that say anything about moving out before the time period (I was planning on staying until the end of April). Thanks a lot.

      Delete
    3. Hi Samantha: It is a little difficult to understand your fact situation. Do you rent a room in a house where other students also rent rooms--i.e. is it a rooming house? Or did you rent the whole house on a single lease with other room-mates? It is important to determine if you have the individual right to terminate your lease or if your right to terminate is tied in with the other tenants' tenancy. Do other tenants come and go? Is each student in the house limited to being responsible for the rent only for their room? If your liability is only for you and you are permitted to terminate your own lease then you likely have an obligation to provide the landlord with 60 days notice to the end of a term. Without a written lease and presuming that the Residential Tenancies Act applies, you are likely on a month to month tenancy, paying rent monthly, likely on the first of each month. To terminate this tenancy, as a tenant, you must given the landlord a minimum of 60 days notice to the end of term---which is the day before rent is due--hence the end of the term is usually the last day of a month that is at least 60 days after you give notice of termination. If you were giving notice today (January 13, 2014) the earliest you could terminate the tenancy for on valid notice is March 31, 2014--meaning you would be liable for rent until the end of March.

      If you give a proper termination notice (see form N9 on the Landlord and Tenant Board site) and you have over-paid the rent then you will be entitled to a refund of your prepaid rent. If the landlord does not pay you may proceed against him at the Landlord and Tenant Board.

      There are of course other possible outcomes. If the home you are in is the type of place that students come and go perhaps your room-mates would replace you on the lease (if it is a group joint tenancy). If not, and it is like a rooming house, your landlord would be obliged to try to re-rent your room as soon as you return possession of the rental unit to him. You would only be liable for the rent up to the valid notice period or the period up to the time that the landlord re-rents the unit. If there is an pre=paid rent and the landlord re-rents your unit then he would indeed have to refund you the excess rent. He can not double dip.

      Hope that helps you out a bit. This area of the law is confusing enough. If you can get help at a local legal clinic go on in and take guidance through the process. There are many other options as well that all depend on more facts and what you are willing to do.

      Michael K. E. Thiele

      Delete
    4. It is a rooming house. So we all pay $400 separately. None of us signed a lease but some of my room mates are staying for 8 months and others are for 12 months. I planned to stay for 8 months but I plan on moving back home. So legally, if I give a notice today, I would only get the April rent back since I gave her prepaid checks?

      Delete
    5. Samantha:

      I know from the wording of your question that you are looking for a clear cut answer. There are several possibilities depending on what you are prepared to do. If you left now and put the landlord back into possession without notice the landlord would have to try to re-rent your room right away. While it may not make you a popular person with the landlord, the landlord might just find someone quickly to take over your room. Your liability would be capped for the period of time that the landlord takes to find someone and arguably, in any event to the 60 days of a valid Notice of Termination. You have given post dates cheques so you would either have to ask for them back or put a stop payment on the cheques and advise the landlord in writing that they will not clear and should not be deposited. Some others would argue that failure to pay rent would likely lead to the landlord terminating your tenancy for non-payment of rent and you would be out on 14 days notice in a Form N4. Others would say the best way to deal with this would be to approach the landlord directly, be forthright, and see if you can make a deal. My role as a lawyer is often to deal with the legal consequences of various courses of action that my clients have taken. Where the client poses the question before taking action I ultimately end up at what was the intended action that the legislature contemplated when they passed the Residential Tenancies Act. In that context, and conduct that is beyond reproach, would be giving your written 60 day notice to the end of term which, if given today, is the end of March 2014. If you vacate before the end of the 60 days you can return possession to the landlord and ask him to re-rent the unit early. If it rents early (within your notice period) the landlord will have to pay you back your prepaid rent for that period of time. If he doesn't you would have a good case at the Board. So that's the long answer.

      The short answer is if you give legal notice of termination for the end of March 2014 now, the only rent that you will get back is your April rent.

      Hope that helps.

      Michael K. E. Thiele
      Ottawa Lawyer

      Delete
    6. Thanks a lot Michael. I appreciate your help.

      Delete
  7. Hello.

    I am hoping you can offer some advice. We entered into a lease with a civilian landlord in May 2013. We are military and we have always lived in military housing, so needless to say, we are not as familiar with our rights as tenants on "civi" street. We noticed after we received the lease that the landlord never filled in his name or address. The lease is signed, but that could be anyone's signature to look at it.

    Our issue is, does this still constitute a legally binding lease? We had approached our landlord a couple of weeks ago, to see if we could get out of the lease early due to financial hardship. He said that as long as he found new tenants by the time we needed to leave, it wouldn't be a problem.

    Last week, he posted an ad for the house and he got a fast response from someone wanting to see the house. They came that night and they loved the house. They got the rental application from the landlord that night and he said he would check references. The new people contacted us the following day to see if we could vacate a month earlier. We had no problem with that since our new landlord was being very accommodating with us. A few days later, we still hadn't heard from our landlord about what was going on. We needed confirmation as to when the new people were moving in so we could move forward with our new lease. The landlord told us that he had called their references and was just waiting to hear back from them, once he had, we would be all set to leave.

    I received an email from the supposed new tenants this morning, telling me that he had told her the same story, that he had called her references and was just waiting to hear back, but everything was in order. She had found out that he never called her references, which they would attest to. So, they have had to accept the lease on another property.

    I feel that our landlord has lied to both parties involved and has no intention of actively looking for new tenants for his property. And now we have entered into an agreement with a new landlord, based on things our current landlord told us.

    We are wondering if we have any rights and if our lease with him is even binding that we can vacate.

    Thank you.
    Frustrated in London

    ReplyDelete
    Replies
    1. Hello Frustrated in London (Ontario):

      I can not provide you with legal advice on this blog and that is something I always need to make clear. This blog is not a substitute for legal advice from a lawyer or licenced paralegal as a formal retainer with a lawyer or paralegal will result in a formal analysis of your legal situation and many more questions being asked of you to fill in the blanks. Hence, I am pleased to provide you with general information in relation to your questions but that should not be regarded as legal advice.

      A residential lease in Ontario is written, oral, or implied. The landlord's failure to fill out his own lease form fully is unfortunate but it will not nullify a rental agreement between you and the landlord. The written lease can be supplemented by oral knowledge, implied knowledge that you clearly have from dealing with the landlord. The idea that a written lease can be informed by oral and implied terms may be regarded as a bit of a shocking statement to many lawyers as there is a legal notion that leases pertaining to land need to be in writing and that the document needs to be complete. This simply isn't the reality of practice before the landlord and tenant board in Ontario, in 2014. If the written lease were determined to be invalid the Board would find that you then have an oral or an implied lease---hence this issue does not end the lease for you.

      Delete
    2. The Residential Tenancies Act does have sections that indicate what is required to be in a lease and the consequence of that information missing. Those sections generally provide that a tenant may suspend the payment of rent until the information is provided and then pay the full rent--even for the suspended period--when the landlord provides the information.

      With respect to the balance of your fact scenario I find myself trying to slot it into the Residential Tenancies Act---i.e. what sections of the Act apply here? You are seeking to end your tenancy or get out of the unit during the term of a lease that is likely ending April 30, 2014 (presuming a 12 month term)? You can terminate the lease on 60 days notice to the end of term which means that notice of termination in the proper form should be given soon (use form N9 on the Landlord and Tenant Board website).

      What you seem to have tried to do is to assign the tenancy to a new person. By approaching the landlord you have essentially asked permission to assign the tenancy or at least this seems to be the way that your request was interpreted. The response to your request to leave early, otherwise, was no. From his response I would infer that the landlord consented to you assigning the tenancy. He went even further and advertised the premises which is normally the function of the tenant(s) when an assignment is sought. So far, the landlord can not be faulted.

      The failure to call references and stating the opposite of what was actually done is troubling. It also doesn't make much sense. The landlord in advertising the unit, receiving an application, dealing with the applicants, is using his own time for your benefit. It doesn't make sense that he would expend so much effort to find new tenants and then fabricate a story about calling references. It seems more likely to me that the references were not good or that the references weren't willing to provide a favourable reference. That perhaps got a little sticky between the new prospective tenants and their references and therefore they decided to just blame your landlord. This is pure speculation, but as I said, something doesn't sit right with these events.

      Delete
    3. If, the situation is exactly as you say, then the landlord is playing some kind of game with you. Having agreed to an assignment and having agreed to assist you in renting out the unit by advertising etc., I think it is incumbent on the landlord to do this in good faith and properly. If he purposely scotched the new tenancy, did not call the references, or delayed with the intent of preventing the assignment (AND YOU CAN PROVE IT), then it is arguable that the landlord has in fact refused you the right to assign the rental unit. The landlord's words agreeing to an assignment are opposite to his actions in which case you could have the right to terminate your tenancy. Take a look at the sections on Assignment in the Residential Tenancies Act and the consequences when a landlord refuses to allow an assignment.

      That being said, it strikes me as a true longshot that the landlord didn't call the references. If you end up at a hearing (i.e. you file an application to the Board) seeking to terminate a tenancy because the landlord refused to allow an assignment the burden will be on you to establish that the landlord said he called the references and that he did not do so. I think it would be incumbent on you to actually bring the prospective tenants and the references into the hearing as witnesses. When you try to get them to show up I think you'll find them to be very reluctant and unwilling to do so.

      Otherwise, and speaking generally, take a look through the other articles in this blog and take a look at the Landlord and Tenant Board website for information on your rights as tenants. There is no obvious termination right for financial hardship and no simple application to end your lease. However, you may wish to consider what the "rules" are when or if you vacate early and whether those consequences are something that you can handle.

      If your circumstances are such that you need to take immediate action or you have committed yourself legally to two landlords now, it would be quite worthwhile to sit down with a lawyer or licenced paralegal to map out a strategy. Clearly you have two legal obligations now and one of them will not be met. Hence, you need to know how the law will deal with the breach of one of those obligations. A lawyer or paralegal can give you the legal advice you need in this regard.

      Good luck to you both.

      Michael K. E. Thiele

      Delete
    4. Morning Michael.

      I replied to your post the other day but I am guessing it didn't go through since I don't see it here.

      With regard to our situation, we have a question for you. What constitutes the start of a lease? We paid our landlord first and last month's rent in May 2013 and he gave us the keys to the house, allowing us to start moving things into the house that the military movers wouldn't move. We also started painting and paying utilities. But our lease is dated for one month later, due to the fact that it had to be set up that way for military purposes for our move. Our landlord was fully aware that we had to alter the date on the lease and he knew why and he agreed to it, even though he knew we actually began our lease with him in May. Now he is feigning ignorance and says our lease started in June.

      We have proof that we paid rent in May and were given keys.

      So...who is correct?

      Thank you.
      Frustrated in London

      Delete
    5. Hello: I'm not sure that it helps but section 13 of the Residential Tenancies Act states: "The term or period of a tenancy begins on the day the tenant is entitled to occupy the rental unit under the tenancy agreement". 13(2) states: A tenancy agreement takes effect when the tenant is entitled to occupy the rental unit, whether or not the tenant actually occupies it.

      Perhaps what is more useful, though not necessarily what you want, is the commentary in Jack Fleming's book Ontario Landlord & Tenant law Practice 2014 at page 52---which I'l paraphrase for copyright reasons--that it isn't uncommon for a tenancy to start midway through a month with the tenant paying a pro-rata portion for that month. The rent due date is not affected as that is set out in the tenancy agreement NOR is the term of the tenancy as the end date is set out in the lease/tenancy agreement---unless the term is stipulated as "one year" and not with a fixed end date.

      I can't quite figure out what you're getting at with an earlier start date, proof of payment, in May versus June---what does it matter? Isn't the key the end date of the lease for you to terminate? What end date does the lease provide?

      Mike Thiele
      Ottawa Lawyer

      Delete
    6. The point is, if our lease started at the time we paid first and last and were given keys, then that means we can leave the house 1 month earlier. If it goes by the date on the lease, then we are stuck with him until end May 2014.

      We have tried contacting him and he is not responding to us at all. He has failed to do repair work on the house, things that should have been done before we even moved in and things that he has been made aware of recently but is doing nothing about.

      Delete
    7. Hi Again: Thanks for clarifying the reason for the start date. In my opinion the key date is the end date of the lease. Leases can be for fixed terms and there is nothing to prohibit a lease from being longer or shorter than one year. Hence your fixed term could be for 13 months. The key is the end date in the lease agreement.

      With respect to the non-repair and breach of obligations under the Act, it is rare for those things to be of sufficient severity to warrant termination of the tenancy. Most non-repair or similar breaches by the landlord entitle you to an abatement of rent as well as orders for repair. Terminate of the tenancy is a possible remedy but it is not easily granted by the Board. If you wish to pursue the landlord for compensation arising from non-repair you should ensure that you can prove that you asked for repairs and that the landlord has not completed them. Getting property standards from the City involved may be worthwhile if the repair issues are substantial. Note that compensation is normally calculated as a percentage of rent and your rent is reduced by that amount. You can go back 12 months from the date of your application.

      Good Luck.
      Michael K. E. Thiele

      Delete
  8. Hi Michael,

    I am in a sticky situation right now with a roommate. We entered into a one year lease and supposedly our names were both on it although I never saw any lease or was aware of the terms of the lease nor did I sign it... I was told when I was moving in that everything was taken care of and I didn't need to worry. All I needed to provide was 12 post-dated cheques. After 5 months things were not working out with our situation so I gave my 60 days notice I was going to leave and they told me there was a lease and I was liable for the rest of the term. I noticed that my signature is forged on the lease. Can they come after me for rent after the 60 days? The roommate has taken all responsibility to find a new tenant or so he says.. I am worried about my credit being affected. Any help would be much appreciated! Thank you.

    ReplyDelete
  9. Hello: Thank you for the interesting question--though I'm sure it's not the kind of "interesting" thing you hoped to be in the middle of. Presuming of course that this is in Ontario, the first thing I think about is whether or not you are a tenant. The lease, though containing a forged signature, suggests that you are a tenant and it would be your burden to prove that you signature has indeed been forged. So that in itself is a hurdle in any claim against you in your capacity as a tenant. However, beyond your signature on the lease, query whether you aren't a tenant in any event. Tenancy Agreements in Ontario may be written, oral, or implied. In the category of oral or implied leases the Board or a Court would look at the surrounding facts and circumstances. Having provided the landlord with 12 post dated cheques likely places you firmly in the "tenant"camp irrespective of the written lease document. You may have regard to the definition of tenant and see that you would likely fit within the definition. On top of all of this one wonders what your roommate or co-tenant would say? Even the opening of your comment states "we entered into a one year lease" and if you choose your words like that then I don't doubt that you would be held to be a tenant.

    Why the big deal about being a tenant or roommate? Obviously, your obligations as a roommate are different than your obligations as a tenant.

    The fact that your existing roommate is going to remain in possession and not seek to assign or sublet then your argument will be that he should be responsible for the entirety of the rent as he is not taking any steps to terminate the responsibility of the lease. The most you could be liable for, vis a vis your roommate is half of the rent. However, with respect to the landlord you may still be liable for the full amount of the rent or any rent arrears or any damage to the unit. This will be the case until such time as your tenancy is lawfully terminated. If your roommate finds a new roommate and gets the landlord to add that new roommate to the lease and at the same time removes your name you will then be off the hook. Until then, there are scenarios depending on what happens that could result in you having future liability.

    hope that helps

    Michael K. E. Thiele

    ReplyDelete
  10. I have a question. My step-daughter moved in with her sister. Her sister's boyfriend's mother owns the townhouse. There was a report of abuse and the boyfriend has left and now living with Mom. The mother wants everybody out by Friday she is changing the locks. My step-daughter and her sister have no signed lease. What are her rights?

    ReplyDelete
    Replies
    1. Hi Sylvie: The answer to the question will lie in whether your step-daughter's sister is a tenant or not. As a tenant she will have the right to occupy the premises as a tenant. Whether she is a tenant or not does not depend on the existence of a written lease. A tenancy agreement may be written, oral, or implied from the circumstances which means that we have to look at the surrounding facts. Was there a written lease at all? Did she pay rent? How did she come into possession of the rental unit with her boyfriend at the time (did they rent it together?). It is from "facts" like this that the Landlord and Tenant Board will decide whether or not she is a tenant. Again, if she is a tenant, then the landlord may not just tell her to get out. Your step-daughter, as a roommate of a tenant, also has the right to stay--but that too relies heavily on whether or not her sister is a tenant. If she is not a tenant then, arguably, she is an unauthorized occupant. The landlord, if they find an unauthorized occupant in their rental property--and they want possession back and the unauthorized occupant refuses to move---must make an application to the Landlord and Tenant Board to evict the unauthorized occupant. It is at that hearing that your step-daughter could argue that she is a tenant. Just going ahead and changing the locks is illegal. If the landlord doesn't seem too concerned about the law try calling the Invesitgations Branch of the Ministry of Housing (number is on the LTB website). Explain what is happening and they will sometimes call the Landlord, advise them that their intended actions are illegal, and direct them to the right legal path. Otherwise, your step-daughter could also make an application to the Board to prevent the locks being changed,

      I hope this helps. I must say this fact scenario is challenging and it would be worthwhile for your step-daughter to get legal help from a lawyer or paralegal who can explore all of the facts with her and review all of her options.

      Best of luck

      Michael K. E. Thiele

      Delete
  11. Hi Michael,

    This is a really helpful blog - thanks for this! I'm currently living in a house with tenants in other rooms leased out by my parents who are the primary landlords. My understanding is that 5 (i) of the RTA exempts our situation from the Act because of my shared living situation.

    My parents were unaware of this situation at the time of lease signing, so at the time, they had used the Schedule A Form of Lease provided in the Short Forms of Leases Act with modifications to lease out to the tenants. Incorporated to their amendments of conditions are statements worded in ways based off the RTA; for example:

    "Provided that, if the Lessee remains an occupant of the premises after expiration of the term hereby granted without a written agreement to the contrary and no such notice has been given, he shall not be deemed to be a tenant from year to year, but shall be a
    monthly tenant at a rental equivalent to the monthly payment of rent herein provided for, payable on advance, and shall apply to such monthly tenancy."

    My parents wish to terminate the tenancy of one individual at the end of their year-long lease due in truth to difficult-to-prove interference with reasonable enjoyment and have asked me to clarify their ability to do so. In short, I'm not sure if RTA's Section 4 would apply and supercede our lease agreement when Section 5 nullifies the RTA based on our shared living condition. Would you be able to advise in this chicken-and-egg scenario?

    Thanks for your help in advance.

    ReplyDelete
  12. Hi there. This is an interesting scenario and not one that I have come across before. Certainly, on the plain reading of the RTA, the fact that you are a child of the landlord the section 5 exemption applies to the tenancy so long as your living in the unit pre-dates the tenancy (i.e. you can't create an exemption if the tenancy of the roommates was originally covered by the RTA.). In my view, if the relationship is exempted from the RTA then you don't need to concern yourself about section 4. Section 4 will only apply to tenancies where the RTA applies.

    Michael K. E. Thiele

    ReplyDelete
    Replies
    1. Hi Michael,

      That helps - thanks! Does that mean that based on the provided clause, my parents have no way of terminating the tenancy if the tenant decides to occupy their room after the year-long lease ends and continues to pay on a monthly basis? Taken further, would there be no possibility of retrieving a room within our own house if they simply decided to stay indefinitely without causing blatantly illegal havoc? I'm just wondering what rules do apply in our situation.

      Delete
    2. You are asking a question that causes some debate among lawyers and even police who are sometimes called to remove a person from a property in which they have clearly lived or appear to be living presently. When the relationship is clearly governed by the Residential Tenancies Act the rules are fairly clear--and in fact quite strict--that it is the Landlord and Tenant Board that has exclusive jurisdiction to to terminate the tenancy and order an eviction. That Eviction Order may only be carried out by the Sheriff/Court Enforcement Office. What about non-RTA relationships? It is a grey zone. My personal view is that non-RTA tenants are present in a property by licence. A licence, by its legal nature, is revokable by the grantor. Once the licence to occupy the space is revoked, then the person becomes a trespasser. You may require a trespasser to leave your property and if they refuse--the normal response is to call a police officer and ask them to remove the person. My usual experience is that the police will remove the person. HOWEVER, there are exceptions and certainly I am aware that some officers are not comfortable removing a person from what appears to be there home, especially if the situation is peaceful. In circumstances where the police won't help I think you are left with no choice but to commence an application in the Superior Court of Justice for a Writ of Possession. That writ of possession would be enforced by the Court Enforcement Office.

      Michael K. E. Thiele

      Delete
    3. Hi Michael,

      Thanks for your help - I really appreciate your insight! All the best with your continued contributions online. Best wishes!

      Delete
  13. I am renting a home without a lease agreement and the tenant is 2 months in default of rental payments. I have tried repeatedly to contact the tenant, however, my attempts are being ignored. I count on the rental payments to pay the taxes, utilities and mortgage. Am I allowed to change the locks and remove his belongings?

    ReplyDelete
    Replies
    1. Hello: Presuming of course that this is in Ontario and the Residential Tenancies Act applies the answer is an unequivocal "no". You may only regain possession of your rental unit with an order from the Landlord and Tenant Board and then only if the tenant vacates voluntarily pursuant to that Order. If they do not, then you have to get the Sheriff/Court Enforcement Office to enforce the Board's Order. For eviction for non-payment of rent you will want to serve and file a form N4 (Termination for non-payment of rent). The process is highly technical, especially for landlords who have never done it before. If you follow all of the proper steps and the tenant does not pay the amounts owing you may expect the process to take about 6 weeks--more or less---and that presumes you don't make any errors that require you to start from scratch. That you rely on the rent payments to cover your expenses does not give you a fast-track in any way.

      The manner of proceeding that you describe (change the locks and remove his belongings) would not be a small violation of the law. It is in the category of major contravention and if you proceeded in that way you could expect the tenant to be put back in possession or the tenant being awarded damages along with you being fined by the Board and potentially charged under the Provincial Offences Act.

      I hope this helps to clarify the situation a bit for you. As this will be your first experience with the Landlord and Tenant Board, do consider getting legal advice from an experienced landlord and tenant lawyer or paralegal. I can tell you, without any exaggeration at all, that the Landlord and Tenant Board is not as "user friendly" as it might appear. Make no mistake, it is an adversarial process just like "regular" court and the "bias" in the legislation is towards security of tenure and maintaining tenancies as opposed to making it easy to evict people from their homes.

      Good luck.

      Michael K. E. Thiele

      Delete
    2. I should also have mentioned that "without a lease agreement" in Ontario is irrelevant to whether the Residential Tenancies Act applies or not. A lease in Ontario may be written, oral, or implied, and that pretty much covers every kind of relationship. If your tenant is in the property on an oral agreement and owes you rent--you are likely covered unless the exemptions in the RTA apply to your situation.

      Delete
  14. Hello there, it seems the previous home owners had their distant relatives family living in our finished Basement, 4 people total; and they requested that we accommodate and keep them as tenants as they do not have finished basement in the next house they moved into; there is no contract signed nothing is official; they are paying $700 monthly and they get my Cable, parking and Internet for that along with Laundry, and utility.

    Now, the technical question:
    They have declared this their primary residence, and asked as to add this information when doing Taxes so as they would like to apply for Tax refund; Now what problem can I face if there are any? Am I gonna end with with even less then $700 when they claim from government?


    If I ever wanted to get rid of them; how hard would it be as the price they were paying to their relatives was too low and I can not keep them at that price? Would there be problems as I just found an advertisement for $860 for my neighbors basement ?

    What things do I need to be careful about? Any tips will be greatly appreciated...

    ReplyDelete
    Replies
    1. Prashant: Unfortunately I can not be of help or use to you in relation to the tax questions you are asking. I think either an accountant or a tax lawyer is what you need. I'm not aware of anything that you would do to recognize their declaration that the basement is their primary residence so it would be worth getting expert advice from an accountant or tax lawyer. It does sound like they want to ensure that you are reporting the income that you receive from them in rent as they intend to seek tax credits on their tax returns. Unfortunately, I know very little about such things and can't say whether you would end up with less than $700, though I would guess it is likely. When speaking to an accountant/tax lawyer make sure to inquire about the effect of the capital gains exemption on the home and whether you should recognize certain expenses for tax purposes if you are also recognizing rental income.

      With respect to getting rid of them the ease of doing that will depend on whether they are protected tenants under the Residential Tenancies Act. I presume from your question that you bought your house with these people living in the basement. So the first question will be whether they were RTA covered tenants before you bought. If so, then your act of purchasing the house did not likely deprive them of their RTA status (meaning they are protected by the Residential Tenancies Act). However, if they were not covered by the RTA before purchase then we need to look and see if any of the exemptions under the RTA apply. The usual biggest exemption is the requirement to share a kitchen and/or bath with the owner. How separate is the basement from the main part of the house? If an easy answer is not available then you would be looking at filing an A1 application with the Landlord and Tenant Board which is an application to determine if the Act (RTA) applies or not.

      If the RTA applies then it will be fairly difficult to require them to leave--unless you have grounds under the RTA. If they are not covered then you could ask them to leave on reasonable notice.

      Best of luck.

      Michael K. E. Thiele

      Delete
  15. Hello Michael, in terms of RTA they were living with their cousins so I doubt any contract were signed as they were simply paying month by month; and house contract does not specify anything regarding existing Tenants;

    Now, about RTA who do I call to find out what their status is and if they are covered or not as I don't want to ask them?

    The house was built in 1999; Can I ask for rent increase as with Tax deduction my true gain from rent is much less and they are getting pretty good deal like this.

    ReplyDelete
    Replies
    1. Prashant: The existence or non-existence of a written tenancy agreement or lease does not help you. A lease can be written, oral, or implied. If the basement is a self contained unit separate from the rest of the house it may very well be a covered tenancy.

      Whether a tenancy is covered by the RTA is a question of fact--meaning it is determined on the specific circumstances of each case. Tenancies are not registered and apartment are not registered as they were many years ago. Hence there is no one to call to get the information. If you call the Landlord and Tenant Board they will tell you more or less the same thing and then tell you that for a sure determination you will need to file an application in form A1---you can get the form online or at the Landlord and Tenant Board. The clerks at the Board will also answer some questions for you but remember that their advice is not "official" as the only binding decision is that of an Adjudicator after a hearing.

      With respect to raising the rent. Let us presume that you are covered by the RTA. You may raise the rent in accordance with the Guideline amount on proper Notice using a Form N1. You may do this once every 12 months and must give a minimum of 90 days notice. Be sure to read the N1 form carefully and make absolutely certain that it is correct as a notice that contains errors is void and unenforceable.

      What is interesting, is that you may indeed be exempt from the Guideline--meaning you may be able to raise the rent to an amount that you choose--assuming of course that the amount you choose is not in retaliation for anything or to punish any otherwise lawful by the tenants. To see if you are exempt, review section 6 (2) of the RTA. There you will see that certain rental units are not subject to some of the provisions of the RTA--the criteria for exemption are all based on "dates". With a build date of 1999 your basement rental unit appears to be exempted under this section. Section 120 of the RTA stipulates that rent may not be raised more than the guideline amount. Section 6(2), if applicable, exempts your unit from section 120, which means that you may raise the rent more than the guideline amount in accordance with the other rules relating to rent.

      Once you have reviewed these sections perhaps give the Board a call and ask them if your rental unit is exempt from the rent increase provisions. They can ask you questions to make sure the underlying facts support the exemption.

      Best of luck.

      Michael K. E. Thiele

      Delete
  16. Hi Michael,

    I was wondering if I could please get some advice. I am living in Toronto, Ontario. I have not signed any lease, when I moved in I signed a paper with my name, the date, rent owed and when it was due. I never received a copy of this document, nor did my landlord provide any receipts of rent paid. I have been living here for over 6 months. My landlord has approached me with a lease agreement (that should have been presented at the time of rental) and I wish to leave before the 60 days termination. When I moved in we decided that terms would be on a month to month basis. Will there be any type of legal consequence to not providing a full 60 day notice of termination? Thank you very much! Your article/ comments have been incredibly helpful and greatly appreciated.

    ReplyDelete
    Replies
    1. Hi and thanks for the question. I must qualify my statements here as information as opposed to legal advice given that there is no retainer and I haven't had the opportunity to interview you in any depth. My comments can only address the facts you disclose in the comment and certainly if there is pertinent information that isn't in your comment my answer could be completely different. So, with that being said, your lease presently is on a month to month basis. In order to terminate a month to month tenancy you need to give 60 days notice to the end of term--meaning the day before rent for the following term is due. For the vast majority of people this means the notice needs to end on the day before rent is due (i.e. last day of the month). So, it is a minimum of 60 days to the end of term (last day of a month).

      There may be consequences to not providing a full 60 days of notice--and that would be the landlord holding you responsible for the rent. Interestingly, some people maintain that if no valid 60 day notice is given, then the notice is completely invalid and the tenancy continues as if the lease was never terminated. My view, supported by the RTA, is that if you give short notice and move out, then the RTA limits your rent liability to the next first date of legal termination--i.e. the RTA fixes your defective Notice by extending it to the first valid termination date.

      Of course, there are the "legal" requirements and then there is what people actually do. It may be that if you tell your landlord that you want to leave that he may simply agree. If so, grad a copy of a Form N11 off of the Landlord and Tenant Board website and make sure the landlord signs it. It is an agreement to terminate.

      Michael K. E. Thiele

      Delete
    2. Hey Michael,

      I would like to thank you lots for the big HELP you provided. It made a huge difference in terms of how I felt before and now I do not feel as trapped and I am ready to move forward. I used your suggestion of the form N11 and it went great. Thank you again, your work has been thoroughly appreciated.

      Delete
  17. Hi Michael,

    i have been living with my current roommate for about a year and a bit. When i moved in i was added to the lease and the person that left was removed. In mid january of this year, we both decided we would file the 60 day notice. We both read the form over and signed it and gave it to the landlord.

    Now my roommate wants to recant the 60 day notice and stay back, i told her i will not sign a recant letter until my name is off the lease, which would mean we find a new roommate and they get approved or she takes on the lease under her name if she gets approved. I luckily called the building management to ask them about my options and i was told she had emailed them saying we both recant the 60 day notice and cc'ed me on this email. She ensured the email used was not actually mine, a "mistake" was made in the spelling of my name. I let the building know that i did not agree to this verbally and in writing and let them know such a letter i would actually sign and not just email. My question to you is this: is there any way the roommate can force me to sign this recant notice? is there anything else i should legally do to ensure that I am protected against her, considering what she tried to do with the email? (i did see the email since once confronted she forwarded it to me, i do get that we are both in a tough situation but playing dirty is not the way i do things)

    thank you so much for your help!

    ReplyDelete
    Replies
    1. Hello: An interesting situation for sure. I think that you are fortunate that you both initially signed a Form N9--which is a tenant's notice of termination. I presume that the N9 was accurate, that it provided 60 days to the end of term so that the last day in the N9 was the end of the month (the day before rent is due). Once a valid N9 is served on the landlord, the tenant has thereby terminated the tenancy. There is no "recant" method or any form. The tenant does not have a legal right to remained in the premises beyond the termination date in the Notice of Termination. Not only can you not be forced to sign a document purporting to recant a termination, such a document has no legal force or effect.

      It would be wise to write to the landlord confirming that the tenancy was terminated by service of the N9. Advise that you were no part of the email trying to recant. Advise that under no circumstances are you continuing in the tenancy and that you consider the obligations under the lease terminated as of the date in the Notice of Termination. If your roommate does not move out, ask the landlord to file an application to evict her, or enter into a new lease with her, or simply acknowledge that you are no longer a tenant and that you have no responsibilities under a lease anymore as of the date in the N9. On the day that you move out, make sure to inform the landlord that you have vacated the rental unit. Return your keys and ask the landlord to sign for them. You need to make it clear to the landlord (and the world) that you no longer live there. This will be especially important if your roommate does not move out. At that time, reiterate to the landlord (if the landlord has not given you written confirmation that you are off the lease and have no further liability) that you want them to file an application to evict your roommate, based on the N9 that you both signed and delivered to the landlord. The point is that you are trying to assure that the lease is ended so that your liability is ended. Insisting on these things will help your case in the future should the landlord pursue you for rent arrears, damage, etc., that is caused or incurred after you move out.

      Nothing stops the landlord from making a new deal with your roommate and you don't have to insist on her eviction if a new deal (new lease) is entered into. You just need confirmation of that new lease.

      Lastly, please ensure that all of your communication is in writing and in a form that you can prove delivery of. That means, email that has been replied to, or fax with the main part of the letter sent as the first page so that the confirmation sheet prints on the main page of your fax. You want to be in a situation where there is no doubt that you have communicated your position and that you can prove it if the other party denies that you sent a letter, made a phone call, etc..

      Best of luck.

      Michael K. E. Thiele

      Delete
  18. Hi, I don''t know if you have advice on this. I am currently renting a room from my roommate (who is the lease holder of the apartment). I am not on the lease and we do not have a written contract. I have been paying him cash up until now. I did inquire with the tribunal office and right away was told that my situation does not apply to the Ontario landlord and tenant law because my roommate is considered a tenant not a landlord. I am moving due to many issues with my roommate and I was basically guilted in to staying until June 1. I have never signed anything saying I am moving out June 1 and have only referred to staying until June in a few texts but have never said I am giving notice for that date. Because things have taken a turn for the worse between us I want to give notice for May 1. He is now saying that I have already given him a verbal agreement to stay until june 1 and referred to staying until june 1 in texts. I would think I can easily give him something in writing and signed saying I am giving 60 days notice to move out may 1 and that would supercede anything previously discussed. Many people I have mentioned this too have said I could move out without any notice since we have no written contract however I don't really plan on doing that. I would think that if my roommate wanted to try to get an extra month from me its basically his word against mine and he would have to sue me.

    Thanks

    ReplyDelete
    Replies
    1. In non-residential tenancies matters, your notice period is governed by the contract between you and your roommate. What was your agreement about Notice to end the relationship? That will be what governs. If you didn't have a specific agreement about how to end the roommate agreement then the easiest thing is to do is to terminate by analogy to the RTA. That would lead to you being able to give 60 days notice to the end of term---which in this case gives you to May 1 (April 30). Of course, if circumstances are such that your safety is in jeopardy, or there is illegal activity, or something sinister---then there is always an argument that immediate termination is the only option.

      Good luck.

      Michael K. E. Thiele

      Delete
  19. Hello Michael...great articles with lots of information. I have entered into a verbal agreement with my landlord to rent a fully furnished apartment. No lease agreement was signed, only verbal. The term of the verbal lease agreement was from April 1 2013 to April 1 2014. I payed first and last months rent at the beginning of the term. I have been paying monthly during this time. I am now looking to leave on April 1st and have given him a total of about 40 days notice. He states that since I did not give him 60 days notice prior to April 1st, that I still have to pay rent on March 1st. Would the last months rent I paid originally not cover me until April 1st, which is the end of the verbal 1 year agreement? Thanks, Patrick.

    ReplyDelete
    Replies
    1. Hi Patrick: The verbal fixed term lease in your situation seems a bit of a red herring as you might as well be on a month to month tenancy given that you are at the end of term in any event. Terminating a fixed term tenancy is 60 days minimum notice to the end of the fixed term and terminating a month to month tenancy is 60 days minimum notice to the end of the term (on a month to month the term is 30 days--one month). So, however you cut it, you need to give the landlord 60 days notice. By your own statement you are short on notice as you've only given 40 days. Your notice needs to be more than just a straight 60 days as it must also end on the last day of a term. I presume that the end date of April 1, 2014, is an error as that should normally be the last day of the fixed term and your commencement date is the first day of the month?

      If your notice is short the RTA will make your notice valid by extending the termination to the next legal date. I'm presuming you gave notice some time in February for April 1, 2014. Being short on days, your notice gets pushed out to the next end of term which would be April 30, 2014 (or May 1, 2014 if that really is the end of term date). This applies whether you are on a fixed term lease or month to month at this stage.

      Your last month's rent deposit gets applied to the last month--which must be April and therefore you owe March rent. The story does not necessarily end there though. Your landlord is being rather technical in demanding the full 60 days notice--would the short period really affect him--i.e. would it really have made a difference? In one sense, the law is the law, but really? Could he not play lets make a deal and charge you a little but for the short days etc? Of course he doesn't have to, but it seems to me to be a decent thing to do everything else being equal.

      Delete
    2. So, if the landlord wants to get technical, you may wish to consider whether you have your own applications to bring, whether you want Property Standards to inspect the unit for deficiencies that you've given the landlord a pass on. Essentially, if strict compliance is required of you then it would be fair to require it of your landlord. Lastly, consider not paying the March rent and advise the landlord that you intend to vacate April 1, 2014 and that he should make immediate arrangements to re-rent the premises. He has a duty to mitigate his losses and take active steps to re-rent. He needs to advertise the premises for rent and actively seek out a tenant for April 1, 2014. HIs failure to do so is a breach of his obligations under the RTA to mitigate his losses. This means that if he sues you for the loss of rental income (if he doesn't re-rent for April 1) you could defend the claim on the basis that he failed to mitigate his losses--and hence he could lose (not a guaranteed successful defence--but generally effective if proven). Of course, by putting the shoe on the landlord's foot--is he really going to sue for one month of rent? Big hassle for small money and there is always the risk that you win on the mitigation argument. One thing is for sure, the landlord is not entitled to double dip. He can't re-rent your unit for April 1 and keep your rent money. So, until you know for sure that he hasn't re-rented the unit for April 1 and you are satisfied that he actively sought to re-rent it, you don't know whether he would truly be entitled to the rent you pay for April (your LMR). Obviously, getting your rent returned if he re-rents to another tenant puts you in the same position---do you really take the time to file legal paperwork, pay the application fee, give up days of work to prove the point? It's a matter of principle now, but in reality many people just let it go and chalk it up to a lesson learned. From that perspective, it might be nicer to hold the money and pay what is due if it is clear that he hasn't re-rented and it is clear that he tried.

      Hope that explanation is clearer than mud--let me know if you need clarification.

      Cheers

      Michael K. E. Thiele

      Delete
  20. Thank you Michael, appreciate the prompt and thorough reply. More complicated than I thought, but I get the jest of it.
    You are a terrific help.
    Thanks again, Patrick.

    ReplyDelete
  21. Hi Michael,
    really hoping you can give us some advice.
    we have been in our basement apartment for 3 years now.. when we moved in our landlord did not want to do a lease,, we pay cash everymonth and she requested no reciepts to be given, so we are loosing out on our taxes as well. when we moved in there were alot of things not completed in apartment (it was a brand new apartment when we moved in) the door wasnt finished, kitchen cuppords not installed yet etc etc.. she deducted a bit of rent and my husband and parents had to finsih all renovations after we gave her first and last in cash... there was even property of hers we can to move on our own before we could bring our stuff in. no inspection was done,, nothing.. for the past 3 years she has not acted like a landlord at all,, she is barely there and doesn't do many repairs etc,, only when it is convient for her.. no she is coming at us saying for insurance purposes she wants an inspection done.. we have no issue with her coming down to look at the place, we know that is her right,, she did give us 24 hours notice and reason,, but no time was given.. then when we went out on that day after waiting all day, she decided to try to enter apartment when she knew we were not home. we know if time,,day and reason are given she is allowed to enter without us being there,, but with no time given is that allowed? seemed really sneaky to us.. just wondering what our rights are here and as well after 3 years,, we want reciepts for our rent. it isn't fair that she isn't claiming out rent on her taxes.. are we allowed to ask for that after all this time. any info you could offer would be great.
    Thank you
    Kim

    ReplyDelete
    Replies
    1. Hi Kim: The law on entry is in section 27 of the RTA (Entry with Notice). The landlord, with respect to the content of the notice, must specify the reason for entry, the day of entry, and a time of entry between the hours of 8:00 a.m. and 8:00 p.m.. Generally, a time range of a few hours is acceptable. Presuming that the notice is legal nothing in the Act gives you the legal right to be present and nothing in the Act prevents you from being present either.

      With respect to rent receipts, please take a look at section 109 of the Residential Tenancies Act as well as section 9 of Ontario Regulation 516/09, section 9. Your landlord is required to provide you with a rent receipt and the contents of the receipt is goverened by the Regulation. It is an offence pursuant to section 234(h) to not provide a rent receipt. I recall there being a specific application to the Landlord and Tenant Boad to raise the issue of not getting rent receipts but I can't find it at the moment. Perhaps my memory is off on this point in which case I would just use a T2 application and demand a rent receipt in this application. You can also ask at the Landlord and Tenant Board if there is a specific application to get the landlord to provide rent receipts. Lastly, on the point of rent receipts, I am always worried when I hear of situations where rent has been paid in case without receipts. The burden to prove payment of rent rests with the tenant. If the landlord says you haven't paid then it falls to you to prove the opposite. Without rent receipts and only cash payments you may find the landlord can put you in a very difficult spot. Therefore, before starting any kind of fight, it would be wise to get some kind of confirmation from the landlord---in writing, email, text, voice recording, something wherein she acknowledges that all of your rent is paid up to the current month. At least if you have that you will have evidence from the landlord's own mouth supporting your position that all of the rent has been paid.

      Best of luck to you.

      Michael K. E. Thiele

      Delete
  22. Hi Michael, great article and I've been reading all of the responses you've given so far. Hoping you can help! My sister rented a place with 5 other friends on May 1, 2013 with a written lease. Her landlord advised her at the beginning of February that he was increasing the rent by $100 (16%!) and asked if she was going to stay. She told him it was illegal for him to charge this increase amount, and also said that she would NOT be staying. She told him again by telephone mid-February and he accepted this, and said that he was going to start showing the apartment to potential renters. Since then he has a few showings.
    Today, the landlord contacted my sister again (March 3rd) and said that because she did not give written notice before March 1st that she was leaving, she will now be month-to-month and have to pay rent for May 1st. She told him that they had an oral agreement that she would be leaving and he accepted that, but he kept saying that he needs written confirmation.
    She is 20 years old, wasn't aware that she needed written agreement ALSO, and the landlord has tried other ways to take advantage of students renting his property before. Does she have any recourse to terminate her lease on the date that the lease ends: April 30th?
    Thanks in advance,
    Joyce

    ReplyDelete
    Replies
    1. Hi Joyce: Your comment raises a few questions. The landlord could not have raised the rent as of February 2014 if the lease was entered into on May 1, 2013. The landlord may only raise the rent once a year. So the $100 increase is a problem. If the tenancy is exempt from rent control (there are many such units) 16% could be legal--it just depends on whether the exemption applies. However, the rent can still only be increased once per year.

      I understand from your comment that your sister was seeking to terminate the lease for the end of term--which in this case is April 30, 2014. The lease does renew automatically on a month to month basis unless it is properly and legally terminated. The law with respect to what is a proper termination does not favour oral agreements though you can find support for oral agreements to terminate a tenancy in caselaw (Hamilton v. Szajka, [2005] O.J. No.2374 (Ont. Div. Crt)) being enforced. Ideally, your sister should have provided a Form N9 signed before March 1 to terminate for April 30. The timing of the landlord's comment shows what kind of person he is. Did any of this happen in emails? There is a general saving provision respecting substantial compliance that perhaps can be used to say that emails or anything else in writing amounts to a Form N9 (tenant's notice) or a Form N11 (an agreement to terminate). It is an underutilized section of the RTA and not much has been developed out of the section.

      I think its fair to say that on the general rules applicable that your sister (and her co-tenants) are stuck with a May 31 termination. However, if she has a stomach for a fight, there are interesting elements in what has happened. The landlord's entry into the unit to show it to prospective tenants (presuming she can prove that it happened and hopefully the landlord won't lie about it) is evidence of an agreement to terminate. Given how it came about, perhaps she'd move out for end of April, give the landlord an N9 for end of April with a covering letter that this N9 is given in accordance with the Notice given orally in February, don't pay rent for April as the LMR (Last Month's Rent) applies and vacate. The landlord can then choose his options which also may play into your sister's favour or alternatively he will do nothing, watch your sister move out, and then sue in the small claims court for the additional month of rent. In the small claims court your sister can defend on the basis of the oral agreement, the landlord showing the unit (otherwise isn't it an illegal entry?), the landlord threatening an illegal rent increase and inviting termination/surrender of the lease and a general estoppel argument (equitable argument). Assertively argued I think your sister would have a good case in the small claims court. Unfortunately, going to Court is nerve wracking, stressful, very long, and expensive if you hire a lawyer or paralegal (i.e. cost more than the amount of one month's rent).

      Hope that sorts it out a little for you. Your direct question---"... any recourse to terminate her lease on the date that the lease ends" has no absolute "yes" or "no" it is subject to the nuance described above. The safest or cautious approach answer is "no".

      Michael K. E. Thiele

      Delete
    2. Thank you so much for your quick answers, Michael. I have sent your blog link to my sister! We will decide what to do, since she has upcoming exams, she may not want to go through the court fighting process but she is so upset at this situation that she may want to pursue this! She just wants to end her lease when the lease should be ended! We are looking through her email correspondences and also if the landlord spoke to any of the other tenants about terminating the lease by email and hope they can at least TRY that route.

      The landlord entered their apartment while all of the tenants were out of town during reading week to show, it was not for repairs or anything so it's a good point that it could be categorized as illegal entry! Thank you for your insight into this and all of the little details that may / may not work in our favour for this difficult landlord. I really appreciate and admire you for the assistance you give to so many people through your blog!

      Regards,
      Joyce

      Delete
  23. Hello Michael,

    I'm looking for some advice concerning my father's tenancy. He was renting a room from a friend who owns a home, with no written lease on a month by month term. He informed the homeowner that he was moving to Montreal at the end of December but would need to leave his belongings at the residence until the end of February/beginning of March, and was assured that this was okay. This was also a verbal agreement. After attempting to contact the homeowner, he was told that he had abandoned his belongings and had no more rights to them. The homeowner has already given away several of his belongings claiming that he was owed back rent for Nov/Dec. the value of the items far exceed the $800 he claims he is owed. He has ignored phone calls, text messages, and other attempts to contact him online. I was able to speak to him recently and he stated that he did not need to contact the tribunal or the Sheriff's Office and had the right to distribute the belongings as he saw fit.
    My father is returning this Friday and hoping to retrieve any items that may still be in his possession at the residence, and we are wondering if we should contact the police regarding picking up these items and reporting the items given away as stolen.
    Please advise on the best course of action as we want to limit any conflicts that may arise as the homeowner is refusing to allow us access to the property and residence, again claiming all the belongings as his own property now.

    Thank you,
    Jessica

    ReplyDelete
    Replies
    1. Hi Jessica: The landlord is correct in that this wasn't an RTA protected rental. This is because the owner shared a kitchen and/or bath with your father. Hence the unit is exempt of the RTA. However, that does not mean that the landlord can just do what he likes and he may not just throw things out or keep them. A lawsuit against the owner should prove successful. Based only on what you've said, I think a reasonable way of approaching this is to seek the assistance of the police and have them attend the property with your father. Let the landlord tell the officer what he thinks his legal rights are. Perhaps the officer will be of assistance and explain that this is not the case. In any event, the officers report will be useful and he would be a good witness in the small claims court action should your father choose to sue. While you may wish to report the matter as "stolen property" I'd recommend that you explain the full circumstances to the police and see if they conclude that this is a matter of theft.

      There is no question in my mind that your father has been wronged. It is very difficult to see how the landlord can possibly think he is in the right.

      Best of luck.

      Michael K. E. Thiele

      Delete
  24. Hello Michael,

    I have a question about eviction. My parents own a house with a basement apartment, which is rented out to a young man. When our old tenant moved out he introduced us to the current tenant who moved in. My parents are older and don't know much about the law so they never signed a lease with him. When the old tenant left (to go back to his home country) he left his car behind and told us that the current tenant would sell it and send the money to him. Because of this we didn't expect to have a parking space taken up. The current tenant decided to keep the car though so he's renting the apartment at a price that doesn't include a parking space and causing a lot of trouble for us since we have 3 other cars now. For this and other reasons (smoking, loud friends and tv) we want to evict him but my parents don't believe they have cause. It's been a few years since the car thing happened and my parents really depend on the rent so they think it's a really risky move. Do they have enough cause to chance it?

    Thank you.

    ReplyDelete
    Replies
    1. Hi Nazish: The "chance" you are talking about is whether eviction would work or not? If the relationship with the tenant is already to this point then it will be clear to the tenant that your parents want him to leave. Would the relationship be so much worse if your parents tried to evict and were unsuccessful? The cost of an application to the Board is $170 and the consequences of losing are not so severe.

      That being said, the car and parking space are likely the weakest arguments they have. In a situation where a lease is not written, the amenities that go with a tenancy are assumed from context of the tenancy and the unit. In this situation, the passage of time will result in a parking space being included (in my opinion). Of course it can always be argued otherwise. To get the "parking" issue before the Board you would advise the tenant to not park anymore. Presumably he would breach that direction, cause a conflict. Then your parents would serve a Notice of Termination (form N5), see if its voided by compliance, if not file an application and see what happens. As I've said, I don't think this is the strongest argument and my guess is that you wouldn't be successful on it.

      That being said, your parents should consider a meeting with a Landlord and Tenant lawyer. They may have many other grounds and ways to get rid of this tenant. It sounds like he is disturbing them (noise, smoke, television) all of which can be reasons to terminate--and as this is a landlord in a small building--you should be able to evict without the tenant having another chance to correct the behaviour. Also, for their trouble, have they raised the rent regularly? Is the property rent controlled or is it exempt--meaning they can raise the rent to a level that compensates properly for the headache this tenancy represents.

      Anyway, my point is that your parents may have options that they have not thought about. It would be worthwhile for them to sit down with a lawyer who specializes (or a licenced paralegal for that matter) in landlord and tenant law.

      Hope that helps.

      Michael K. E. Thiele
      Ottawa lawyer

      Delete
  25. Hello Michael:
    I have been renting off of a man who has been away in Florida for the winter. We agreed to rent via email until his return Apr 25th/14. The agreement is that upon his return we were going to move to another space in the same house. But he is an absolute monster and a bully. We have decided to vacate the premises prior to his return from the U.S. We have in writing him allowing us to stay until April 25th as long as we show the other available rooms to new tenants to occupy the space we were going to be utilizing upon his return. The problem is he very harassing with his emails and I do not answer him when he demands to be answered. Heaven forbid if I have a life away from my e-mail account. Well as of tonight because I did not respond to his snarky email as he demanded me to, he now has sent me via e-mail an eviction notice. He told me in writing not to "F*** with him". Also he says he is now flying back early and we need to be off of his property. Our rent is paid until March 31st. Can he in fact evict us as of April 9th or does he have to give us 30 days notice on April 1st? What rights do I have if any?

    ReplyDelete
    Replies
    1. Hi Jennifer: The first question to ask is whether your tenancy is covered by the Residential Tenancies Act or not. In Ontario not all leases are covered by the RTA. From the perspective of many tenants you do want to be covered by the RTA as your rights are clearly defined under this legislation. If you are RTA covered your tenancy continues until you terminate it. The landlord can't just ask you to leave and he can't just serve you with an eviction notice because he feels like it. He may only terminate your tenancy on lawful grounds as set out in the RTA. If this is RTA covered and the landlord wanted to evict you for his own use then the notice period is 60 days ending on the last day of a term.

      That being said, it sounds like you would share a kitchen and/or bathroom with the landlord in this house when he returns from Florida? If so, then your relationship may fall outside of the RTA. This means that the usual protections that you have are now not so clear. Your relationship would be governed by contract and the terms that are unwritten implied. Unfortunately, there is no ready made system of law for you to access if the landlord behaves unreasonably or contrary to your "deal" with him. In the end, your remedy is a lawsuit in the small claims court. If you should find yourself in a confrontation make sure to involve police as their records and reports can be helpful in future litigation.

      Michael K. E. Thiele

      Delete
  26. Hi Michael,

    Great site, very informative. Thanks for your time and effort answering so many people's questions, hoping you can answer mine as well.

    Where I live, the "head tenant" (the one who deals with the landlord, collects our rent to pay the landlord, etc) is moving out. He's been living here for roughly 15 years, with dozens of different people moving in and out during that time, and without an updated lease in about a decade. The rest of us currently occupying the house have been living here between two and three years. We wish to stay, and obviously, none of us are on the lease.

    The landlord has mentioned that he wants to raise the rent when the head tenant moves out. I realize that the landlord can raise the rent as much as he likes with a new lease.

    I'm wondering though, after having lived here for several years, would we be required to sign a new lease, with new terms? Also, if things get litigious, could it be effectively argued that we're "unauthorized occupants"? We don't yet know how much the landlord intends to increase the rent, but if it's unreasonable (to us), aside from moving out, what might be our recourse? We live in Ontario, so I guess we're covered by the RTA.

    Thanks in advance,
    Derek

    ReplyDelete
    Replies
    1. Hi Derek: Presuming of course that the tenancy is covered by the RTA it seems to me that you have identified the ultimate question correctly. Are you "tenants" as defined or are you "occupants". If you are "tenants" then you have the protections of the RTA---and no rent increase unless in accordance with the guideline. The house sounds old enough that it wouldn't be exempt from rent control otherwise. Your advice that the "head tenant" collected rent from the roommates and dealt with the landlord (exclusively?) is a comment that leans towards the roommates not being tenants. I presume that the landlord took no interest in the coming and going of the roommates? Did the rent ever get reduced when there were fewer roommates or between roommates? Is there anything in the relationship between all concerned that points to the roommates being tenants? That there is no written lease does not matter as a tenancy agreement may also be oral or implied from the circumstances. Ultimately, the Board is empowered to look at the real substance of the situation (see section 202 RTA) and look at what is actually going on here. It would be the Board that decides whether you are tenants or occupants. Perhaps this level of inquiry by the Board helps you?

      If the landlord decides that you are unauthorized occupants, after the "tenant"moves out, he must take steps to evict in a timely manner. Failing such steps you are deemed to be tenants (see section 100 RTA--specifically 100(2)). At that hearing you could argue that you are tenants if there are underlying facts that support that contention. Will the landlord take steps to commence such proceedings in a timely way? What if you deliver post dated cheques to the landlord? Will it just be easier for him to continue to cash them as opposed to seeking to terminate your "unauthorized" occupancy?

      As for signing a lease--you are not required to do so as you and the landlord may agree to just continue on a month to month. Given the desire to maintain a relationship with the landlord--and you don't describe him as a bad guy--perhaps the best course is to be upfront about what you find acceptable and see if it is a reasonable deal. He avoids the need to evict, he avoids renovating costs, he has long term tenants already with you and knows that you are not "nightmare" tenants. There are plenty of reasons to continue with the current situation (presuming of course all these statements are true?).

      Ultimately though, the options are few. There are tricks to delay and get more time to move, but in the end, if the landlord files a timely application to remove unauthorized occupants and it is proven that you are not tenants then the Board is going to order eviction. In those circumstances it might be better to try to avoid litigation and make a deal with the landlord.

      Hope this is of use to you.

      Michael K. E. Thiele

      Delete
    2. Thanks for your reply!

      This is all helpful, and yeah, it seems like we're probably occupants, not tenants. The rest of us have never even met the landlord. Negotiating something agreeable to all parties is likely the best solution. Handing the landlord a stack of post-dated cheques also sounds like a good idea.

      The house is really old and falling apart - we put up with it and repair things ourselves because of the price and location - hopefully he an be convinced that maintaining this agreement is better than dealing with new people and spending a bunch of money on renovations.

      Thanks again, I think between yesterday and this morning I've read almost everything on your blog, it's great.

      Derek

      Delete
  27. Interesting situation I am in...what constitutes written notice for moving out of my place?

    I am a student currently living in a basement suite, and have not signed any formal rental agreement. I was sent a rental agreement via email to be signed when I moved into the space last summer, however was not approached further by either the landlord or the property manager to sign after this date. I moved into the place on July 15th 2013, prior to which I transferred a deposit to secure the unit, and then followed up with a final amount which made up the first and last months rent.

    I then received an email a couple of days ago requesting the final two weeks of rent from April 15th - April 30th, as per the rental agreement. I then mentioned to my landlord that I had never signed a rental agreement, and wasn't actually aware of the April 30th date which was on the agreement that I did not sign. I mentioned to her that I would be finishing school on the 22nd of April, and as a compromise, would be willing to pay for the additional weeks rental of the unit at a price slightly higher than the rate I would be paying for a week under the monthly rental rate, to which she replied - "yeah, sure..."

    At this point in time, I deposited the weeks rent from by bank account into hers electronically. I then received an email today, quoting her property manager stating that since I did not sign a lease, I am considered a month to month renter, and would be obligated to pay an additional months rent. She then told me that she could come after me for two additional months rent since I did not give 60 days notice, however said she would be satisfied with just the additional two weeks.

    It should also be mentioned, back in January my Landlord asked me via email, when I intended to leave the unit as she had someone interested in looking at it - to which I responded some time around April 20ish...does this constitute written notice?

    What are my rights as a renter that did not sign a lease prior to, or after moving into the unit? Am I obligated to forward the additional weeks rent even after getting confirmation on the compromised additional weeks rent?

    What further action could be landlord take against me, and is she likely to follow through with it?

    Thank you very much for your time


    ReplyDelete
    Replies
    1. Hello and thank you for your comment. Sometimes the comments/questions sound like law school exam questions and yours seems to be one of them. There are so many issues in your comment that it is a little difficult to know where to start and secondly to keep the response to a reasonable length. As such, I will give you an high level response to the facts you've put out and will presume that the RTA applies. For more detail read some of the other articles on this blog that deal with the issues you've raised or consider obtaining legal advice from a student legal aid clinic if your school has one.

      The first issue to consider is when does your tenancy start and hence, when is the rent due date. From how you describe it, it sounds like the rent due date is mid-month on the 15th of each month. This suggests that your term runs from the 15th to the 14th of the next month--which begs the question--how do you pay rent? Do you pay for a month from the 15th to the 14th? That you have a term that isn't a calendar month is certainly possible (though not preferable). But if that's what has happened then this is your term. That you make certain what your term is, is important as the last day of the term is the date which your notice of termination must specify.

      If you paid for the two weeks in July 2013, and then paid rent on a calendar month, and the unsigned agreement isn't operative then you are on a month to month tenancy with the last day of the term being the last day of the month (i.e. the day before rent is due for the next term). If this is the case, then your notice of termination needs to specify the last day of the month as the end of your tenancy.

      The unsigned rental agreement seems to contain further specifics of the contract that are not revealed in your comment. You must have had a discussion about a term of less than one year? July 2013 to April 2014 is approximately a 10 month term--which makes this sound like a student housing arrangement? In any event, even if the lease had been signed it would not terminate at the end of the term without you providing notice. However, if you should want to obtain legal advice, you should make sure to take your unsigned lease with you to any lawyer/paralegal you may see. The emails and written correspondence leading to the tenancy agreement (there is one--even if the lease is not signed) are useful in discerning the terms of your lease and figuring out what the parties meant when entering the tenancy agreement.

      So, on the assumption that you are on a month to month, you must, if you wish to terminate your lease provide written notice of termination. The ideal and preferred method of providing Notice of Termination is to fill out an N9 Form (available on the LTB website) which is a tenant's notice to terminate. The termination date specified in the notice must be the last day of the term and it must be given to the landlord at least 60 days before the effective termination date. Clearly, you did not use the N9 form so this situation is not ideal.




      Delete
    2. Is something less than an N9 form acceptable? Certainly, if something in writing from you contains all of the essential requirements of a Notice of Termination, then it may be held that your notice is indeed effective notice to terminate your tenancy. Whether your email correspondence meets the technical requirements can be simply answered, in my opinion, as "no". Without a deeper analysis, I think that your notice in the email is flawed simply on the termination date---as the word termination is not used (leaving is different than terminating--but perhaps it can be implied). Using "20ish" doesn't work. There is a fair amount of case law surrounding the specification of a termination date. Considering the case law, I don't think "20ish" would ever be held to be a valid termination date. Hence, it is arguable that you gave notice in writing, but it is likely that your notice in writing is void for not specifying a proper termination date (which needed to be the 14th or the last day of the month if your term is the calendar month).

      You inquire as to your rights as a renter that did not sign a lease. The question is far too broad to be answered here. I can say that your rights are no different than a person who did sign a lease as you have the protection of the RTA. That being said, being a month to month tenant is different than being in a term as the landlord may not terminate a tenancy on non fault grounds during a term and you the tenant, may not terminate a tenancy during the term other than in accordance with the RTA.

      Are you obligated to forward additional rent? I'm not sure what you comment about the "compromised rent" is about, but I will say that until you legally terminate your lease your rent obligation continues. I have not seen anything in your comment that amounts to a legal termination of your lease. I do understand that there is a lot of back and forth and that your landlord has impliedly acknowledged that you are leaving. She seems to clearly understand that you are going from the very nature of her inquiry via email. These are great points for a debate and certainly speak to moral right and wrong. However, in a legal context, the question will likely be judged by legal obligations and in this context, it is your burden to properly terminate your tenancy in accordance with the RTA. If you fail to do so, notwithstanding the apparent "understanding", you risk being liable for ongoing rent until your tenancy is terminated either by notice or operation of law.

      Your landlord's recourse, once you are out of possession, is to sue you (likely in small claims court) or to refer the matter to a collection agency that may sue you on behalf of the landlord and demand money from you in the mean time. If you are in possession past a rent due date, and your landlord acts quickly she could also proceed against you at the landlord and tenant board for termination of the tenancy and rent arrears or just for rent arrears. Whether your landlord chooses to proceed against you is not something I can guess at. Certainly, your landlord seems to be fairly flexible about the RTA and the rules meaning she is not so concerned about the strict application of the law--query whether this is a characteristic of someone who is less likely to pursue legal action.

      In summary, I don't see you as being in a solid legal position as I don't see you as having legally terminated your tenancy. To solve the problem on a permanent basis--and to avoid legal wrangling, I'd recommend making a deal with the landlord about the rent due, the termination date, and then signing off on the tenancy on a Form N11 which is an Agreement to Terminate--which may specify any terminate date that you agree upon and still be legal.

      Best of luck

      Michael K. E. Thiele

      Delete
  28. Searching for some answers24 March 2014 at 14:04

    Hi Michael,

    I came across your blog while searching for some information online about what my rights as a tenant are when the landlord has the home up for sale. It is a single family dwelling where I live with my husband, 20 month old and baby due in 30 days. Our landlords notified us at the end of November that they were listing the property for sale. The property has been listed since the beginning of December 2013 with over 60 showings and 5 illegal entries. We initially attempted to work with the landlords for times for showings due to the age of our son and his nap schedule, but the landlords became more hostile as the days have gone on and started blaming us for the lack of offers on the home. We have recently served them notice that we require the 24 hours notice in writing for all showings and this has eliminated all but one illegal entry.

    Our landlord now wants to do some "renovations" to help aid in the sale of his home. Of course our major concern is, what exactly is he permitted to do while we are living there with a young child and soon to be newborn while I am recovering from the birth. Our landlord seems to think he is superior to us and that we are "just" tenants. We have always paid our rent on time and even reminded him when he's forgotten to pick up the cheques. We have been living here since October 2012 and did not sign a second term for the lease but continued to be month to month with providing 60 days notice of our termination. We did deliver our termination notice to be effective May 31, 2014 so we can get out of this hell hole and away from this landlord.

    Can you provide any insight for me?

    Feeling overwhemled and stressed out with a small child and one on the way is not how I imagined my second pregnancy to be.

    Thank you

    ReplyDelete
    Replies
    1. Hello and congratulations on the baby on the way.

      Given that you lease is up in just over 60 days, any extensive renovation would seem to be excessive and inappropriate. What exactly a landlord may do is governed by the RTA and in this case by section 27 (Entry with Notice). WIth 24 hours notice the landlord may enter the unit to "carry out a repair or replacement OR DO WORK IN THE RENTAL UNIT". I expect that the landlord would rely on the "or do work in the rental unit". To enter to do work, the notice that the landlord provides must specify the reason for entry, the day of entry and a time of entry between 8 and 8. The issue of course is what if the work is unreasonable? What if it so impacts your quiet enjoyment that it is intolerable? How you react will depend on the nature of the work he intends to do. If it is intolerable then you might consider denying him access and perhaps filing a T2 application to the Board seeking an Order preventing him from doing this work pending you moving out. Alternatively, you could deny him access and see if he takes you to the Board. In you favour are the regulations to the RTA that address the issue of rent abatements for interference with reasonable enjoyment during repairs. If it comes to it, you will see that those criteria favour a structured approach to substantial renovations.


      hope that helps

      Michael K. E. Thiele

      Delete
    2. Michael,

      That does provide more clarification than I have been able to find, thank you. Right now we do have a hearing scheduled with the Board for the 5 illegal entries and the lack of enjoyment (our privacy) being completely invaded and the landlord not caring one bit. We are hoping to come to an agreement with him in mediation instead of having to through the hearing process. We are definitely concerned with his idea of a minor repair versus our idea of a minor repair, seeing as he did not even think people entering our home without our knowledge (twice while my son was sleeping and I was in the shower and thankfully my husband was home) was a big deal. We have been living in a constant state of sensitivity on whether or not people are just going to walk into our home for 4 months and our rent is not cheap.

      Thankfully once the baby arrives we can start moving as we signed a new lease through a management company last night!

      Your blog has been very helpful and I appreciate the information you have provided.

      Delete
  29. Hi Michael, I recently signed a lease and everything is filled out correctly, the only issue was the landlord did not bring ID when we signed. There was one signature line but it looks like a typed full name instead. Is this contract still valid? What happens if the landlord rents out the place to someone else? Thank you in advance. I really appreciate any advice you can give!

    ReplyDelete
  30. Hi Michael,

    I'm so confused and a little scared. I live in Ontario and have been subletting off a "friend". I pay month-to-month by e-transfer to the main occupant. I have never signed any lease, nor talked about one. I have been living there for six months. I found a much cheaper place and gave a 30-day notice of terminating my tenancy (I thought that was enough). Now my "friend" is demanding that I should have given him two months and that he will take me to court for the last months rent when I move out.

    I've never met the actual landlord to the property and do not have his address, email nor telephone number. I've been told that the actual lease is just for one tenant in the house, I have no idea whether he is allowed to sublet or not. I've asked multiple times to see his lease, but so far he has either refused or failed to produce it. I do know that as the sole tenant he is liable for 100% of the rent if I leave, he currently splits it with me. I think this is why he is demanding rent for the last month. If this is the case, am I liable to be taken to court for not paying it?

    Any advice would be fantastic!

    ReplyDelete
    Replies
    1. Hi Alex: From the facts you describe it does not sound like you are a tenant. Your status is that of a room-mate. A roommate has very few rights (some but not many) under the Residential Tenancies Act. You do not have a "notice" requirement as you do not have a tenancy. Your legal relationship with the actual tenant is contractual is it is anything at all. So, what does your "contract" or "roommate" agreement say? I presume it says nothing as there isn't one (which is typical). So how do the Court's deal with this? Generally a gauge is fairness based on the circumstances. To that end, did you move into the apartment when the tenant rented it? Was it understood that you were like joint tenants? Or, did you move in when the tenant was already in possession (i.e. the tenant had already assumed responsibility for the lease) and you just became a roommate after the fact? Did you have any discussions about how long you would stay? If the tenant did not like you--did you discuss how much notice you would get? Are there any emails or notes of any kind documenting any of this? Whatever there is, and whatever the circumstances, these will inform the obligations in your relationship with the actual tenant.

      Now, in my view, 30 days is quite reasonable--especially in the absence of any written agreement. However, the traditional notice period that everyone knows is 60 days--but that is for tenants (not roommates).

      Ultimately, I think you are in a good position and I don't see your roommate (tenant) being in a very strong position to sue you. The manner in which you describe the situation it frankly sounds like bullying. I'd be surprised if he actually sued you as his case is weak (on the facts you describe). If there should be legal proceedings make sure to seek legal advice at a local legal clinic. They can help you understand your rights in the context of any claim. I think it is important that you get legal advice as you are mixing certain legal terminology in your comment/question that leaves me unsure as to the exact nature of your occupation of the premises (i.e. sublet has a specific legal meaning that does not include being in a roommate relationship).

      Best of luck. You're not in a bad position and certainly have not done anything that you need to be scared about.

      Michael K. E. Thiele

      Delete
  31. Hello Michael, I agreed to move in to someone's apartment as a roommate. The terms we agreed on were 1st+last months rent for 6 months.

    Due to circumstances I am unable to move in and let him know the day after I was supposed to move in that I wasn't going to be living there.

    How much rent do I owe him?

    ReplyDelete
    Replies
    1. Hello: Thanks for the question. Again, presuming this is all in Ontario, whether you owe anything depends on the circumstances. It would be a breach of contract--if it is anything. What are the consequences of the breach--i.e. what damages does your roommate sustain. Sure, he doesn't get rent from you--but he now has the use of all of the space. He can also get another roommate if he wishes. How long would it take to get a new roommate? These are all factors in assessing damages. So, unfortunately, the simple straight forward number that you're looking for does not exist. In circumstances like this it is best to negotiate something with the tenant that feels fair to both of you.

      Michael K. E. Thiele

      Delete
  32. Hello. I am a visitor in Toronto. I rented an apartment with an oral agreement. I am going back and forth from my country, and by now I am renting this apartment since a year. I rented it for two people but most of the time I lived there alone. Yesterday, after 12 months, my landlord asked me for an increase of my rent, 100 or 200 $ if there will be 2 people in the apartment. I don't want to pay this extra money and I think it is not fair. Do I have any rights since I am just a visitor in Canada?
    P.s. starting from next September I will be a student here.
    Thank you,
    Raffaella

    ReplyDelete
    Replies
    1. Hi Raffaella: You have the same legal rights under the Residential Tenancies Act as anyone else--meaning you have the same protection from illegal rent increases. Whether you may be required to pay a $100 or $200 rent increase does not turn on your status in Canada. Instead, the issue is whether your apartment is subject to the Residential Tenancies Act and further whether your tenancy is subject to rent control. To a certain extent all tenancies are subject to rent control in that rent may be set at any amount at the beginning of a tenancy and after that a landlord may only raise the rent once every 12 months. All tenancies are subject to these conditions. Where there is a difference is that some tenancies--especially in newer buildings--are not subject to any controls over the amount of a rent increase. Older apartments can only have the rent increased by a "Guideline" amount that is set by the government. This is a percentage that is never more than 2.5% of the rent being charged. Newer apartments (there are precise dates for exemptions in the RTA) are not limited to the guideline amount. This means that the landlord may increase the rent to any amount they wish--once per year. Therefore, it is possible (depending on your apartment) that your landlord has the legal right to raise the rent by $100 or $200. To do so, your landlord must serve you with a form N1 which is a Notice of Rent Increase--without this form being served the landlord may not raise the rent.

      Hope that helps

      Michael K. E. Thiele


      Delete
  33. Thank you so much for your answer. It is a good news for me because my apartment is in a very old house, so if I understood my landlord can't raise my rent so much. So if she said that I have to leave the apartment if I don't pay what she is asking, I don't have to leave. Am I correct?

    ReplyDelete
    Replies
    1. Yes, Raffaleia, that is correct. If you live in a very old house and the Residential Tenancies Act applies to you, then you do not have to pay a rent increase above the guideline amount and the landlord can not evict you because of your refusal to pay an increased amount. I presume that your landlord does not live in the building with you (i.e. you do not share a kitchen or bathroom with the landlord?). I ask because I'd like to make sure that your rental unit is not otherwise exempt from the Residential Tenancies Act.

      Delete
  34. NO, she does not live in the house. I do not share the apartment

    ReplyDelete
    Replies
    1. That's good then Raffaelia, it is then very unlikely that your unit is exempt from the RTA and what I indicated above is fine.

      Michael K. E. Thiele

      Delete
  35. Thank you again. tomorrow I am going to meet her, and I am a little scared about that. And for the next 3 months I will be out of Canada, living all my stuff here, my roommate will stay in the apartment but I am afraid that my landlord could bother him

    ReplyDelete
    Replies
    1. Hi Raffaelia: Certainly, your roommate should not be bothered by the landlord. May I presume that the landlord knows of the presence of the roommate and is okay with it? Depending on characterization, is it possible that a landlord would look at your roommate and think that you transferred occupancy of the unit to the roommate (without permission)? If so, you might be getting into an unauthorized sublet or assignment situation. To address it, I would send the landlord and email informing him that you are going away for 3 months, that you are not vacating the unit, that your roommate will still be there, that rent will be paid, that your stuff remains in the unit, and that you may be contacted at the following addresses and phone numbers if need be. Advise the landlord that because you will not be home in those three months that he send you copies of any legal documents via email or alternatively, give it to your roommate (if you trust the roommate). Also take some pictures of your apartment and everything you have in it (so you have proof of what you own) and save those pictures. Beyond that, if you are able to prepay the three months of rent that will come due while you are away that would be useful. If not, make sure the landlord has post-dated cheques and confirm in writing with the landlord that he has them for the months that become due.

      Best of luck.

      Michael K. E. Thiele

      Delete
  36. Stressed out Tenant14 April 2014 at 12:44

    Hello Michael, thank goodness I stumbled upon this blog and I hope you can help me. My boyfriend and I moved into our apartment last July when I was a few months pregnant and with our 3 year old. We didn't sign a lease, but the landlord did write a note stating that we were renting the apartment after I gave them a deposit of the first months rent. She did ask if we would stay for at least two years because she wanted long term tenants. We aid yes. Fast forward 7 months later after I had my son and she approaches me stating that since we had another body in the apartment now (ie. my two month old) they wanted to increase our rent. Is this even legal. Seeing how I'm on maternity leave and my pay is significantly decreased we can't afford any increases. She also mentioned to me that her sister had wanted her to evict us so she could move into the apartment because she was having trouble with her landlord (mind you she also just had a baby). Mind you we have been good tenants thus far and have always paid our rent on time. I don't have the energy or the time to move a 3 year old and two month old out of the apartment and I feel like this rent increase is a ploy to frustrate us enough to move out on our own. What can we do. I'm already stressed out to begin with and don't need any more unnecessary stress. Can she evict us in order for her sister to move in and can she increase our rent just on a whim because of the extra tiny person we have here. Any advice will be greatly appreciated. Thank you!

    ReplyDelete
    Replies
    1. Hi there. I hope that I can relieve your stress a bit. A landlord may only raise the rent once every twelve months and that rent increase must be in accordance with the Residential Tenancies Act. Unless the unit is exempt, the amount of the rent increase is determined by the Ministry of Housing (the "guideline" amount). Without a lease you would be considered to be on a month to month tenancy. WIth respect to terminating the lease for a "sister" or sibling, the applicable section is section 48 of the Residential Tenancies Act. There you will see that you may NOT terminate a tenancy to allow a sibling to move in.

      Michael K. E. Thiele

      Delete
  37. hi there

    i hope that you may be able to help. we have been having some problems with other renter in the house there are 5 rooms total. the landlord moved his daughter in to the house and now he comes and goes as he pleases. im wondering because he is the landlord is this legal. (the house is rented per room, like a boarding house)

    ReplyDelete
    Replies
    1. The landlord is required to give 24 hours written notice of entry and may not come and go as he pleases. There is nothing wrong with moving his daughter into the house but this does not remove the protections of the Residential Tenancies Act. While you may now be sharing facilities in such a way that section 5(i) would seem to remove the RTA protection, the fact is that the landlord can not take away RTA protection in this way and the Board has ordered that a landlord can not take away RTA protections by manufacturing an exemption after the commencement of an RTA covered tenancy.

      All that being said, you get some funny outcomes when the case involves rooming houses. Query whether the landlord needs to give 24 hours notice to enter the common areas or just the rooms themselves? I've had adjudicators rule that the landlord can't enter the house without 24 hours notice and I've had adjudicators rule that it only applies to the private rooms and not the spaces shared by all tenants. Further, in circumstances similar to yours (landlord moved her boyfriend into the house), I've had the Board rule that when the landlord is a guest of her boyfriend she can come and go as she pleases as she is in the home in a non-landlord capacity.

      Michael K. E. Thiele

      Delete
  38. Hi Michael,

    I am new to Canada and currently living in Brampton and when I took the basement for rent the landlord told me that there will be 1 year lease but there was no written agreement, Its less then 2 months now and I got a job and have to travel 3-4 hrs daily from home to office and I want to move nearby. Can I go ahead and tell my landlord that I want to move and give him 1 months notice? I am new here so not sure how it works. Please advice.

    Thanks

    ReplyDelete
    Replies
    1. Hello: Presuming that the Residential Tenancies Act applies to your tenancy you would have to provide legal notice to terminate your tenancy. The legal notice, where rent is paid monthly, is 60 days of notice to the end of term. Meaning, if rent is due on the first you would have to give a Notice of Termination for the end of the month at least 60 days from the date of the Notice. The one month of Notice that you propose is not likely to be legal notice. The big question is whether you are on a fixed term lease of one year or whether your lease is a month to month lease. In the absence of a written lease with a fixed term of one year my opinion is that you are likely on a straight month to month lease with the terms of the Residential Tenancies Act speaking to the variables in the tenancy agreement. I mention this as there may be an inclination to consider the oral statement as establishing a fixed term of one year. While logical in one sense, I think it is fair to point out that the Landlord indicated that there would be a one year lease--which implies a written lease. That written lease would contain terms that might be a little different (but still legal under the RTA). Further, a fixed term deprives the landlord of the right to terminate your tenancy for non-cause grounds. The landlord's decision to not present you with a written lease for a fixed term of one year is not just a technicality. The landlord benefits from the absence of a written lease should he decide to terminate your lease for non-fault grounds as you would hardly be in a position to prove that you have a 12 month term. I think it is fair to say that the landlord chose not to document a 12 month fixed term lease and hence the presumption has to be towards a month to month tenancy. Accordinly, you would use a Form N9, provide 60 days notice ot the end of term. If you served the Notice today, (presuming you are on a month to month), the effective termination date would be June 30, 2014.

      Best of luck.

      Michael K. E. Thiele

      Delete
  39. Hello Michael, you have a great, helpful blog here!
    I'm in a non-written agreement living situation with roommates that is on a month-to-month basis in Ontario. I've given 30 days' notice and am planning to move out at the end of April. My roommate is claiming that I am responsible for finding a new person to take over my room, and I have posted numerous listings and have had people over to view the apartment, though they let me know that they decided against moving into the place (my roommate has a very cluttered style of living and did not make any effort prior to the viewing to tidy up). I am hoping that I am not legally responsible to find a new roommate (which, seeing as there is no written agreement, I would imagine so). Thanks for your help!

    ReplyDelete
    Replies
    1. Hello: Please let me recap my understaning of your circumstances (just to make sure). Your roommate is a tenant and has rented the apartment from the landlord. You are not a tenant, are not on the lease, did not rent the premises with the tenant(roommate). Your presence in the apartment is as a roommate to the tenant. You pay some amount of rent to the tenant. There is nothing in writing between you and the tenant and there is no "understanding" that can be inferred from emails, letters, texts or even cocktail napkins. Even the oral conversation about you becoming a roommate focused on your share of the rent and sharing the accommodation and not so much on the relationship ending (i.e. no explicitly discussed notice period).

      If this summary is accurate then I think your view--that you have no obligation to find a replacement roommate--is indeed accurate. I guess it might be possible to contract to a term requiring you to find a replacement roommate should you chose to move out--but frankly I've never seen such a clause and wonder whether it would be enforceable in any event. There is no magic in 30 days notice---it is simply a question of whether 30 days is reasonable or not in the face of a roommate agreement (contract) that does not address the point at all. 60 days notice is the knee jerk reaction to the question of what is reasonable notice as everyone in Ontario knows this as a notice period under the RTA. However, you as a roommate are not covered by the RTA and you do not have any notice requirement other than what you contract to and in the absence of such a term whatever an objective person would think is reasonable under the circumstances.

      Michael K. E. Thiele

      Delete
  40. Hi Michael,

    I just read your article concerning the different types of agreements and how RTA protects its tenants' rights even if it is an implied agreement. This was extremely helpful especially in my situation whereas the landlord entered a verbal agreement with me, before I signed the lease saying the Internet was included in the rent. But because it is not written on the lease, he is denying that ever happened, saying that rather the internet is a bonus or free which means he has no obligation to provide the service nor fix any technical issues. Unfortunately the other tenants in my unit who entered the same contract are extremely passive and will not make a statement or act as witnesses to say that the internet is included in the rent, when the landlord did indeed tell all of them the same thing he told me.

    Anyways, my hearing with the RTA is going to be in a few days, and the only evidence I have to support my clam is the initial advertisement saying that the internet was included, and a written statement from one of my housemate's saying that he remembered that the internet was included in the rent on the housing advertisement, which really isn't specific enough.

    Anyhow, I am wondering if these pieces of evidence are sufficient to prove that if anything, there was an implied agreement between my landlord and me considering that he has been providing the internet service for 9months. Also, what can I do to further support my claim?

    Thank you so much,

    Betty

    ReplyDelete
    Replies
    1. Hi Betty: When you are trying to prove the terms of an oral or implied agreement you would look to anything that proves what you are claiming. This would include oral statements, emails, photographs, witness statements, and to things that would allow you to infer the existence of an agreement. The advertisement you have is excellent evidence of the services included with the lease. The fact that you have had access---and a password to the wi-fi--is also evidence of an agreement. Ultimately, I don't think you will have all that much difficulty. It doesn't seem to be the case that the landlord will deny that he was providing you with internet access. Does your written lease say anything about internet service? I appreciate that it does not include it as a service--but does it say that it isn't included? Clearly the landlord knew that he was going to provide internet with the tenancy--because he advertised it. If this internet service was not going to be an included service going with the tenancy agreement--then he should have specified that fact in the lease---i.e. the fact that internet is not in the lease is not in the landlord's favour.

      Hope that helps. Please let me know how it turns out. In the end, be aware that if the landlord reduces or removes a service the remedy should be a rent abatement for the amount of the service. Before you go to the hearing--get a quote from your local service provider for what it would cost to get internet service installed and the monthly plan cost--that is the amount of the rent abatement that you should ask for on an ongoing basis if the landlord isn't going to provide the internet. Your roommates should consider filing an application and asking for the same thing as it is doubtful that you could share your internet service with them and be in compliance with your service providers terms of service.

      Good luck.

      Michael K. E. Thiele

      Delete
  41. Hi Michael,

    I have my Internet issue resolved. So now I am concerned about my hearing on Monday with the RTA over a T2 form because I kind of sent the package only a few days ago to my landlord when it said I was supposed to do that 10 days before the hearing. Additionally, I delivered the package right to his door, but there was no mailbox, so I just dropped it on the floor. I asked him if he received the package, and he just ignored my text.

    I am kind of concerned because my landlord is a huge liar; he lies about everything. I did take photos of the package on the floor as well as the door number. Is this sufficient or should I be proving that there was more I did?

    Additionally, I just finished gathering and preparing evidence that I will be presenting to the court; which is different from the intial evidence in the application package that I gave my landlord a copy of. I am wondering, am I obligated to send copies of the evidence to my landlord before the hearing or would it be okay if I simply gave him copies of the day of the hearing?

    I believe I have very strong evidence but I am concerned that I will get messed up over the minor details in regards to the protocols and being timely.

    Thanks again,
    Betty

    ReplyDelete
    Replies
    1. Hi Betty: Given that you have "solved" the internet issue is there any need to still proceed with the T2? If you did a deal with the landlord to solve the issue--did your resolution deal with the application as well? I will presume that it didn't or there is some other reason to continue with the T2. So, on your concerns. The need to serve the application in advance of the hearing--whether 10 days, 5 days, whatever number of days---that requirement is procedural and not substantive law. The Board may relieve from strict compliance with these time-lines--on a motion to abridge time which you could technically bring at the beginning of a hearing. If the landlord attends the hearing, and doesn't object, the short service (i.e. not enough days), will not be a problem. If the landlord does not attend the hearing--then you will indeed have a problem as your certificate of service will reveal service that is not in compliance with the RTA and the Rules. This is true for the time and manner of service (leaving on a matt is not proper service). If the landlord does not show up--or argues that he did not have enough time to prepare because of the short service--the likely outcome is an adjournment of your application to another date. If the landlord does not show up the Board may tell you to serve the landlord in accordance with the Rules and file a valid certificate of service for the new date when your application is rescheduled.

      With respect to sharing evidence in advance of the hearing. The Board will encourage you to show up for your hearing with at least 3 copies of everything. You should give a copy of your evidence to the landlord in advance of the hearing. In fact, if you have a neat and tidy book of documents it is helpful to file a copy with the Board as well as many adjudicators review the files before the hearing. Ultimately though, the Board rules and the RTA do not require the sharing of evidence prior to the hearing. You can be strategic about what you share and when you share it. That being said, failure to share the evidence well in advance of the hearing is a reason to ask for an adjournment on the part of the party who did not get the evidence until the day of the hearing. There is often a bit of gamesmanship involved in disclosure of evidence. Just make sure, if an order is made for you to disclose your evidence to the landlord that there is a mutual order for him to disclose his evidence to you.

      That being said, if the evidence amounts to a few pages--then the norm is to proceed with the hearing after giving the Landlord a few minutes to look at the documents. Presumably, the nature of the case and details would be abundantly clear from the application itself and the landlord can hardly claim to be surprised.

      Best of luck

      Michael K. E. Thiele

      Delete
  42. Hello Michael,
    I have come across a huge dillema today and have been researching all kinds of landlord and tenant rights all day. Here it goes.. I am 20 years of age and don't live with my parents. They reside in Texas. I have probably moved 2-3 times in the last year and a half. It has been a hassle because the place I was living at for the past year was leased by me ex best friend's dad and the lease just ended in April. I started looking for other places and figured living with your friend was probably not the best idea. Moving out of there was a relief. Then I started looking for basement apartments in Mississauga and finally found one I absolutely loved because of the way it was renovated and everything it comes along with. It is absolutely convenient and I have already moved in. It has only been three days. Today, the woman upstairs calls me and tells me to come upstairs to speak to her husband. They tell me that her brother just got approved for his visa to come to Canada and should be coming next month and basically telling me that I should move. This is very, very frustrating for me. I have been living on my own since the age of 17 and have constantly been moving around. Now, for the legal part of it.. on May 1st..I went upstairs, gave her copies of my passport that I already had, even let her keep my health card for the day so she can make copies of it for herself. As well as, she gave me lease papers that I went upstairs and signed myself. The problem is, her husband is a working man and is always busy so that specific day was not home. She told me she would get him to sign the lease papers from his end and then give me the copy of it. I believed her..just like I believed everything else. I know that was very stupid of me, but please take into consideration that this is a very good, muslim, religious family and I figured that they wouldn't do something like this. I figured she would give me the copy today or tomorrow. I signed the lease. They didn't. We did have a whole verbal agreement though in front of two witnesses..(one of my girl friends and my fiancee). On May 1st, I also told the woman that I have just applied for Ontario Works and that if it was possible on her end, to write a letter so I can fax it over to my case worker. She said she would definitely speak to her husband about it. I work full time and have been working at this restaurant for almost two and a half years. I have income coming in, so it is not only that I will be living off of welfare...that is just extra money to help me out. I personally do not believe that they have any relatives coming and think that they might just be discriminating. Even without welfare, I can do well for myself and have been for about four years. Believing in them was the stupidest thing I could do and I even gave them 800 dollars for the rent and made a verbal agreement that I would pay them the other 800 dollars for the last months rent on the 15th of May, which they also agreed to. I asked her if I could get a receipt and she said that it is alright, so i figured it was okay. It is my fault in a way and at the same time, I can't help that I am just a nice and trusting person. Now, they are telling me if I move out within a week, they will give me that 800 dollars back, but I don't want to leave. I dont have a car and my friends just helped me moved in for like the third time this past year. I was so happy that now I have a place and I won't have to move for another year. Please tell me, is there anything that can be done about this? This basement is perfect and I don't know if I will find anything like it anytime soon. Plus, I just let 800 dollars go to waste if I can't find one till June 1st. I don't even want to move for another year. Please reply back and help me and tell me what can be done. This is just so unfair and wrong. I am very angry and hurt. Thanks for taking your time out to read this.

    ReplyDelete
    Replies
    1. Hello Haya Tariq:

      You seem to lead an interesting life! I will make the assumption that your tenancy is subject to the Residential Tenancies Act (i.e. no exemptions---the most common exemption is sharing a kitchen or bath with the landlord). The difficulties that you are facing with this landlord seem to arise from your easy going and trusting nature. The "legal" parts of your life would probably go more smoothly if you view them with a little more formality and insist that the i's are dotted and t's are crossed before you rely on any contracts/leases. You are probably correct, there is no brother--no visa--the landlords have just decided that they do not wish to rent the unit--either to you specifically or perhaps just generally and they are trying to get you out with a sad story.

      Ultimately, the law is on your side on this one. Even though you do not have a written lease---you do have at least an oral lease. The oral lease gives you the exact same protection as the written lease under the Residential Tenancies Act(RTA). The basic rules of the RTA apply to you regardless of the existence of a written lease. This means that your landlord may only evict you if they have grounds under the RTA. In order to evict for a landlord's own use, the landlord would have to serve you with a Form N12 (Notice of Termination for Landlords Own Use). That is a 60 day notice and must be served in a particular way. This Notice can not be used to evict for a sibling so the landlords brother is not going to get your apartment. Further, an N12 is 60 days of notice to the end of term. You have a one year term hence you can not be evicted on an N12 until the end of the year. Of course, the legal difficulty is proving the existence of the one year term.

      It would be quite helpful if you started to document your exchanges with the landlord. If you could text or email and get some admissions from the landlord that would be helpful to your case. Even get a copy of the advertisement for the apartment as evidence of intention. With respect to getting a copy of the lease--you could legally refuse to pay rent until the landlord provides a copy of the lease--the RTA provides that the obligation to pay rent is suspended until the landlord provides a copy of your lease or the details of the information that you are seeking----this would be a good way to pressure the landlord to give you the information you need for your OW application.

      From a legal perspective you are in good shape and you do not have to move. The landlord is required to serve you with Notices of Termination and must apply to the Landlord and Tenant Board to evict you. From what you describe, I'm unaware of any legal basis for the service of such a Notice of Termination. All that being said, you are living in close contact with the landlord in a small building. The landlord has expedited eviction rights if you are indeed behaving in a way that warrants the service of a Notice of Termination. While you are in a legally superior position--based on the facts you provide--it is always better to try to find a peaceable and common ground with the landlord so that the landlord wants you to live in the unit and you want to live there. Then everybody can be happy. Perhaps approach the landlord and ask if there is anything that you are doing that is bothering them and see if there is something you can do that will encourage them to maintain the tenancy. Maybe this solves the problem. If not, you have your legal rights that you may insist upon--and as I said, those righs are strong.

      Best of luck

      Michael K. E. Thiele

      Delete
  43. Hello Michael,

    I seem to be in a little predicament here. In august of last year I let one of my female friends move into my basement. She was starting school, and her previous residence was being sold so she had to move out. I offered to have her move in with me, and pay me a small sum to help out with the bills ($400/m). There was no lease signed or anything. It was simply a friend helping out another friend. Well fast forward to now, and I have to say I've had enough. She doesn't do anything to contribute to the house, doesn't even clean her area. We share a kitchen, but she has her own bathroom downstairs. I've become increasingly frustrated with her behaviour lately (being rude, non-communicative) and I'm looking for a way out of this. The added stress from her living here is not worth the 400 she brings in. Just last week she told me that she cannot come up with the money for this month and will be using up her "last month" that she paid for in advance in August of last year. But I know for a fact that she has money because she just bought herself a $200 pair of boots and then bragged about it (the same night she told me she couldn't come up with the 400 for the month). Do I have to serve her a 30 day notice? I'm really at my wits end. I tried helping out a friend and now it seems like I'm being taken advantage of and I want her out of my house. Do you have any advice?

    ReplyDelete
    Replies
    1. Hello: Section 5(i) of the Residential Tenancies Act (RTA) provides that the RTA does not apply with respect to a rental unit where the "living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouses' child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located". From your comment, it sounds as if your friend does indeed share a kitchen with you. As such, the RTA does not apply. The significance of this is that the security of tenure (right of a tenant to occupy an apartment) is significantly reduced. If your legal relationship with your friend is not subject to the Residential Tenancies Act you do not have to comply with the Notice provisions under the RTA.

      In an RTA exempt relationship (presumably like yours), you have to look at your "agreement" with your friend. This agreement becomes the contract that governs the relationship. That agreement might not be written or it is possible that the agreement is very short and utterly deficient in that it does not address the problem of the present circumstances. In those situations it is wise to be "reasonable" to the standard of an ordinary person. In my opinion, the law allows you to remove you friend from the home by simply demanding that she leave. If she refuses to leave I hold the legal opinion that she becomes a trespasser that can be removed by the police. Sometimes, police will not enforce an owners request to remove a person and it may become necessary to get a writ of possession from the Superior Court of Justice.

      Whether you need to give your friend 30 days notice, something more or something less, turns on your contract and on the circumstances of the situation. As an example, I don't think anyone would think there is anything wrong wtih immediately evicting a person if you came home and found them committing a serious illegal act in your home. Similarly, I don't think many people would think you reasonable if you sought to evict her at 3:00 a.m. because of a relatively trivial transgression (i.e. leaving a dirty cup in the sink). Reasonableness matters in the context of requiring her to leave as she will obviously have no place to go. She may end up in a hotel, on the street, etc.. She may suffer financial losses as a result of being required to leave. If those losses are suffered because you were unreasonable in your demand then she could sue you for those damages.

      Hope that helps

      Michael K. E. Thiele

      Delete
  44. Hi Michael,

    I just had my hearing today and it was very, very messy and disorganized. My landlord brought a paralegal to represent him and he was nowhere to be found and I was just told to keep waiting.Anyways, when he finally showed, he told me that he wanted an adjournment, when I was really against. I didn't even get a chance to present my evidence. The hearing went on, and they just pretty much decided on an adjournment, and then paralegal just kind of left. Afterwards I went back to the board, to ask if I would be compensated for the amount of rent that accrued over time because of the delays and he refused to answer, saying that he wasn't allowed to give legal advice. I felt like they should have informed on the whole process so I know my rights.


    According to my understanding of the adjournment process stated on the site, I should be entitled to a compensation due to the delay in time? Would I have to appeal for that in my next hearing? There are three months left in my lease; and the landlord seems to intentionally stalling it. When I filed the application, it took like a month to process and for the hearing to take place, I assume it would take another month. Would I be entitled to the money accrued as a result of the delays?

    My landlord has lied to me, tried to intimidate me, and pretty much neglected his responsibility of everything. His tenant caused me severe emotional distress by stealing and using my properties, noise disruption, bringing over a lot of friends to stay over, heavy usage of marijuana where the smell would go into my room, threatened my belongings, and just cause me SO much stress. That combined with my landlord's constant bullshitting just stressed me out so much for 9months. So I feel I feel like I have to see this through.

    Anyways, so my question is would those claims I make in regards to the accrued expenses due to the delay be made next hearing? Is/Are there anything I should do before next hearing to get the issues resolved sooner?

    Thanks again,

    Betty




    ReplyDelete
    Replies
    1. Hi Betty: Whether or not an adjournment is granted is a procedural issue that is in the discretion of the adjudicator. There is no "right" to an adjournment but neither is there a right to proceed with a scheduled case. The process of hearing a case invokes the procedures of the Landlord and Tenant Board and the adjudicator has the ultimate say over the process. To be sure, the adjudicator is instructed by the RTA to adopt the most expenditious method (see section 183 RTA) to determine a matter but this direction is also constrained by the rules of natural justice. An adjournment may indeed be warranted by the inability of a party to be ready, the need to retain counsel, for disclosure to be made, etc. etc.. In you situation, presumably the adjudciator heard argument over whether the matter should adjourn (landlord's position) or whether it should proceed (your position). The adjudicator decided to adjourn. I note your earlier comments and wonder if the service of the application was an issue? Was the adjournment granted due to a failure to serve properly? Whether your costs, incurred by the delay, are subject to recovery turns rather significantly on whether the adjournment was granted because of something you did (or did not do).

      Costs are something that may be argued at the end of a proceeding. For costs associated with an adjournment, you should have asked for costs at the hearing. The adjudicator could have granted the costs, denied costs, or alternatively could have reserved the costs to the end of the case. If the issue of costs was not at all addressed nothing stops you from raising them at the end of the hearing (presuming you win) but it is unlikely that an adjudicator will consider these costs without any reference to these costs in the record.

      With respect to other things to do---did the adjudicator order any disclosure or did he make any other orders? If so, then compliance with those is likely a prerequisite to the case proceeding the next time. Did you get an order requiring the landlord to disclose his evidence? If not, consider writing a letter to the paralegal (keep a copy and send it in a way that you can prove delivery) requesting a copy of all evidence the landlord intends to use at the hearing (if you don't get it--you could object to that evidence being tendered at the hearing or alternatively ask for an adjournment if you need time to get responding evidence). Also, I would be surprised if there was not some direction or requirement for you to disclose your evidence to the paralegal for the landlord.

      Michael K.E. Thiele

      Delete
  45. The reason was the adjournment was due to my failure to serve on time. He did not make any other orders. In regards to the evidence, I'm not quite sure I understand. Do you mean I should write a letter asking for the evidence the landlord intends to use for the next hearing or the last hearing? I don't believe my landlord had any evidence for the last hearing, nor would he present it to me.

    Betty

    ReplyDelete
    Replies
    1. Betty: You are not required to ask for disclosure from the landlord--but you may. It is not about the last hearing but for the upcoming hearing. If you are so inclined, you may write to the landlord's paralegal and ask for a copy of any evidence that the landlord intends to enter at the next hearing. The value of this letter lies in the fact that having requested the evidence you should not find yourself at the next hearing being ambushed by piles of documents. If, at the next hearing, you receive a large pile of documents you could quite legitimately ask for an adjournment or for the documents not to be received in evidence due to the failure of the landlord to disclose this evidence in advance. While there are no explicit disclosure rules at the Landlord and Tenant Board it is good practice to ask for the other sides evidence in advance of the hearing. You may expect a similar request for your evidence.

      Michael K. E. Thiele

      Delete
  46. Hi I am a student and I go away for school. I have an 'implied' lease with my landlord I guess ... My roommates signed a year lease but I never got around to signing it due to circumstances . The lease started in September 2013. Out of the 12 months I would have only lived in the unit for 4 months. I've had internships and my college has know ended. I don't want to pay him anymore money. What should I do?

    ReplyDelete
    Replies
    1. Hello Markita:

      I can't begin to suggest what you should do as that is not the purpose of this blog. My goal is to give people legal information about how the Landlord and Tenant laws in Ontario work. My comments are not intended to be legal advice either, just information that is specific to the questions asked. For legal advice, which takes into account all of your particular circumstances you should retain a lawyer or paralegal.

      That being said, I can offer a general comment about your situation. It is understandable that you no longer wish to pay rent as you no longer intend to live in the house. The question, therefore is, what is your legal obligation? Your roommates are clearly on the hook for the obligations under the lease as they have signed it. Presumably they expect you to uphold your part of the lease? If you stop paying, the landlord will then simply go after them for your share of the unpaid rent. Your roommates could decide to sue you for the portion of the rent you have not paid as they entered into this lease with you on the agreement that each of you would pay your proportionate share. If this is the case, then it makes sense for you to speak with your roommates and come to an arrangement. Perhaps you will all agree to find a replacement for you in the house and that person takes over your share. For doing this, you would get your roommates to agree that you are released from all further obligation in relation to anything to do with the house.

      Hope that helps

      Michael K. E. Thiele

      Delete
  47. Hi Michael,

    I have a question in regard to a forged signature on a lease agreement.

    The actual tenant living in the unit added another party on the lease. The added party is a close friend of the tenant much like a mother figure.

    The tenant forged the signature on the lease and also forged another parties signature as a witness to their signature.

    The tenant has not paid the rent in over a year and the landlord is taking the forged party on the lease to tribunal to collect over $22,000.00 in arrears of rent. The tenant living in the unit has not been named in the action in front of the board even though on the forged lease agreement both are named as tenants.

    The tenant that actually lives in the unit has three children and did work as a real estate agent for the party whose signature has been forged on the lease. The tenant had access to the signature of the party whose signature was forged on this document.

    The party with the forged signature on the lease has never lived at the leased premises and loaned her money to pay arrears in the past because she is like a mother figure to her.

    What can this party who's signature was forged on this lease agreement do to prove that in fact she did not sign this lease and the party actually living there did? She is sick to death on being found liable for something she had absolutely no idea about until the landlord of the rented premises showed up at her place of business with a Notice of Hearing 10 days ago?

    The party whose signature is forged has tried to contact the tenant for an explanation and to ask why she has done this but to no avail and it is too late to summons the tenant as a witness for a hearing scheduled on May 22, 2014.

    Do you have any suggestions how to help her out and to have the actual tenant held liable?

    Nichole

    ReplyDelete
    Replies
    1. Hi Nichole: This is a very unusual story. Presumably the landlord is also a party to the fraud if they are trying to take legal action against this person who has never lived in the unit, never signed the lease, etc. etc.. If the landlord is a scoundrel then the lies will certainly flow and a good cross examination should likely make the fraud appear clear to everyone. However, in the mean time there is the immediate problem to deal with.

      The landlord's application to the Landlord and Tenant Board can not proceed against the forgery victim if she is not in possession of the unit and was not in possession of the unit at the time that the application was issued. She should (better to retain counsel than do it herself as the argument is technical and evidence will need to be tendered) present evidence of where she resides (drivers licence, bills, property tax bill or lease, statements from neighbours, anything else that proves where she lives) as this will deprive the Board of jurisdiction to adjudicate this case. If the landlord wishes to seek this money from her then the landlord will need to sue her in Superior Court (possibly Small Claims Court). In the Small Claims Court she could sue the tenant and she would defend on the basis that this is a forgery. The facts you describe are a bit cryptic and curiosity makes a person wonder what "access to the signature" means. How innocent is the forgery victim? Do the full facts reveal shades of gray? No rent paid in a year (that is bizarre if no legal action taken)? It is odd for a landlord to name only the forgery victim and not the tenant in the property as a respondent to the application--that in itself is problematic in getting eviction for non-payment of rent. The application, as put together, has problems. The forgery victim would benefit greatly from a sit down with a lawyer and laying out all fo the facts to figure out where this is going.

      Best of luck.

      Michael K. E. Thiele

      Delete
  48. Just to clarify "access to signature" they are real estate agents and the tenant worked for the victim. She was dismissed due to being unstable and not being able to perform her job correctly. She was privy to purchase and sale agreements and other tenancy agreements with the victims signature on them while employed at the agency.

    ReplyDelete
  49. Hi There,

    If I am renting a shared home, and the landlord needs to evict a tenant with no no written lease due to damage, noise, drugs and violent outburts... how would I go about doing so? He is renting on a Month to Month basis and it has gotten to the point where the other occupants would like to have police involved as they no longer feel safe.

    Thanks!

    ReplyDelete
    Replies
    1. Hello: I will assume that you are the landlord, that you do not live in the premises, that the Residential Tenancies Act applies and that you are renting out individual rooms in the home to various tenants. If this is the case then you can serve the offending tenant with a Notice of Termination. If he does not move out then you can apply to the Landlord and Tenant Board for an eviction Order. The behaviour that you are describing would allow for the service of various Notices of Termination (N5, N6, N7). All of these are available on the Landlord and Tenant Board website. The website also has guides for filling out the forms.

      If you are not renting individual rooms, but instead this is one tenancy, then you could proceed to terminate the tenancy of all the tenants by serving a Notice of Termination and once you get an eviction Order you could enter into a new lease with the tenants who are not a problem.

      If you are living in the home as well (or an immediate family member is), and you share a kitchen and/or bath, then it is possible that the RTA does not apply in your situation In that case you have more leeway to simply ask the offending tenant to leave.

      If you would like to provide greater detail of the rental situation I could try to give you a more thorough description of the steps you might wish to consider taking.

      Michael K. E. Thiele

      Delete
  50. Hi Michael,
    If a tenant fails to keep their end of the bargain (yardwork written into the lease) and I have to pay someone, can I increase the rent to reflect that? If not, when the lease is due for renewal, can I take that wording out and hire someone and have it billed to them? Any better solutions?
    Nancy and Phil

    ReplyDelete
    Replies
    1. Nancy/Phil: If the yard work is "maintenance" then arguably the law makes it your obligation--one which you can not legally transfer to the tenant. Whether yard work is maintenance is not immediately apparent. The Court has been clear that snow clearing is indeed maintenance--and hence can not be shifted to the tenant. However, yard work has been held (in at least one case) to be part of the tenant's obligation to maintain the premises to a standard of ordinary cleanliness. I don't think the case is well reasoned--but nevertheless it is out there.

      To find out where you stand, you might wish to consider trying to terminate the tenancy through an N5 Form for the breach. You could argue the failure to do the yard work cost you money--and charge it back through the N5. The Board could then rule on the question of whether your lease term, in relation to the yard work, is enforceable.

      If it is a problem that does not resolve well, then you may very well be stuck without a satisfactory option for this tenancy. If it has not be contracted for properly you may find that the obligation to do the yardwork is entirely yours without compensation. Certainly, after this tenancy and before entering into a new one, you should consult a lawyer familiar in Landlord and Tenant law who can help you draft an enforceable clause (basically, charge a higher rent and then enter into a separate contract from the lease (not in the same document) and pay the tenant to do the yard work. If they breach you don't pay them and the higher rent covers the yard work. You can't make this contract for the yard work a condition of the tenancy agreement (if you do it is void).

      Michael K. E. Thiele

      Delete
  51. Hi Michael,

    I have a tricky situation. Earlier this year, my ex of 8 years lost his job and faced eviction. He moved into a house that I solely own, which was vacant at the time. He has not paid a dime in rent and has done little to even maintain the property, despite having no job the entire time.

    There is no lease, although I was aware he was in the house and our children would sometimes stay there with him if I was away for work.

    In early June, things got messy and I told him he was not welcome to stay in my home any longer. I told him, in front of the police, that he needed to move out. But he refuses to comply and has made no effort to find another place. The police seem disinterested or unable to help.

    Last weekend when I was at my house, he prevented me from bringing our 12y/o daughter home with me, against her clearly expressed wishes. He lied and said the CAS didn't want the kids with me, and threatened to call the police if I didn't leave "his" house. I complied because it was in the best interest of the kids not to witness any more craziness between their parents.

    Since it was the weekend, I had no way of confirming anything with the CAS (I had visited the police before my visit, and as mentioned, they were really no help). Anyhow, local CAS did a home visit, met my fiance, said our lovely home is perfectly safe and acceptable for the children, and told my ex as much. They basically deemed my ex's claims totally bogus, and they closed the file. So the 12 y/o is now back with me.

    But our 16y/o is making things complicated by saying she wants to live in our old house with her father. Teenagers, fun times!

    I can't afford to continue paying for a house I don't live in. I need to sell the house, but it first needs some repairs, and that won't happen while the ex is there.

    Can you please tell me if I have any right to force my ex out of the house that I solely own without a costly court procedure? I don't believe he is a tenant and he certainly isn't my spouse. If it matters, we were never legally married and his name was never on title to the house.

    Thanks for this great resource,
    Taylor in ON

    ReplyDelete
    Replies
    1. Hi Taylor: On similar facts I recently obtained a writ of possession for a client who owned the home but who was not in possession of it. The client's "friend" (not a spouse, nor common law) was in possession of the unit and was refusing to leave. The key to that case, as in yours, is that you are the legal owner of the property.

      There may be and likely are a bunch of family law issues at play here--particularly because of the children. For those issues please consult a family law lawyer (I know very little about family law). However, outside of the family law context, a person squatting in your home without your permission is trespassing. If the police will not help you remove that person then your next option is to obtain a writ of possession from the Superior Court of Justice. Obtaining a Writ of Possession is done through an Application to the Superior Court of Justice. The process is complicated and entirely paper based.

      Can this be done without a costly court procedure? I'm not aware of such a process if the police won't remove him as a trespasser. Depending of where in Ontario you live, try calling Bailiff services-- the nature of their authority is a bit vague for me but they may indeed be able to help you (if they do, please let me know).

      Best of luck

      Michael K E. Thiele

      Delete
  52. Hi There,

    My sister and I entered in to a one month sublet with a large apartment building (the company also owns a number of different properties). We approached the superintendent about parking, but she told us that we were not allowed to get parking, and that only tenants who signed one year leases could. Is this true?
    Thanks for your help.
    -Robin

    ReplyDelete
    Replies
    1. Hi Robin: What the superintendent is telling you has nothing to do with the law. They certainly are "allowed" to rent you parking. If they are not renting you parking it is because they don't want to. Have you asked the actual tenant whether he/she has parking with the unit? If so, there is an argument to make that you take the benefit of the parking right that is contained in the lease that you are subletting on. If the lease contains no right to parking then you may be out of luck. Perhaps try talking to someone higher up in the corporate food chain than the superintendent. If the owners have parking available (i.e. it is not a scarce commodity and you only want it for a month) and you have cash in hand it is difficult to see why they wouldn't rent it to you. If it is because of a shortage perhaps suggest that you would pay for a month in advance, agree that the Landlord may terminate on 24 hours notice with a refund of the unused daily amount.

      Michael K. E. Thiele

      Delete
    2. Thank your for your help, and prompt response. Much appreciated.

      Delete
  53. Hi Michael,
    Thank you for creating this blog, you provide a great resource and information for people.

    Two questions:
    1). I am currently renting a condo (oral agreement, I have been here for four years) and the landlord wants to sell. If I read the landlord and tenant act correctly my landlord cannot ask me to vacate unless he/she want to move in or a spouse or immediate family OR if they sell the purchaser or spouse or immediate family move in. Is this correct?
    2) Part of the rental agreement is a parking space. My landlord has advised me they are trying to sell the parking spot so that I will not have the use of the spot. Can they do this?
    Thank you so much in advance for the information.

    ReplyDelete
    Replies
    1. Hi: A landlord may serve you with a Form N12 which is a termination for landlord's own use (which includes various family members and care-givers--see the Form for the list). The Form is only valid if the landlord intends to occupy the premises for residential purposes. The Form may not be used to simply get vacant possession of the unit. If the Landlord sells the rental unit and the purchaser indicates that they wish to occupy the premises for residential purposes then the Landlord may serve an N12 on behalf of that purchaser. Again, the N12 may not be served just because the unit might sell better vacant. The Form itself has useful notes on it so I recommend that you review them to see the various conditions--they are slightly different for landlords and purchasers.

      With respect to the parking spot. The landlord is certainly entitled to sell the spot. Ownership of the spot is irrelevant. However, you have a contract to use the spot--or perhaps a contract that provides that the Landlord will provide you with a parking spot. If it looks like the landlord is not going to respect this part of the lease then you may wish to consider bringing an application to the landlord and tenant board in Form T2.

      Michael K. E. Thiele

      Delete
  54. Hi Michael,

    Thanks so much for creating this blog, I am so grateful for all the information you have provided.

    Here's what happened to me: I applied for an apartment and was approved. So I went to drop off the deposit for first and last. I have not moved in or signed the lease and I changed my mind about that apartment and the property manager says I cannot get my deposit back as we are in a verbal contract. She said I am responsible for the unit until they find another tenant.

    Is that true? If it's true, am I required to sign the lease if I do move in?

    ReplyDelete
    Replies
    1. Hi Tasha: Thanks for the question. You are at a very critical juncture and I think you should see a lawyer or paralegal or go to a community legal clinic if you can. The question to be answered is whether you are already in a lease or not. Aside from that legal question, the wording in relation to Last Month's Rent (LMR) deposits can be significant as to whether you get it back or not. Many landlords are still using rental applications that charge penalties or forfeit deposits if apartments are not taken up--such clauses can be illegal and you can get your money back. An awful lot turns on the wording of the documents that you signed. In some instances, the rental application commits you to a tenancy if the landlord reviews the application and accepts it. In other situations it is not so clear and the tenancy is only created upon the signing of a lease (i.e.--you get to apply for the unit, and if accepted by the landlord you get to decide whether you want to sign the lease). Which of these circumstances you are in depends entirely on the wording of the paperwork and hence it would be best for you to get a lawyer/paralegal or clinic to take a look at them for you. In the mean time, I would caution against signing any more documents and certainly not a lease until you get legal advice. If you sign the lease, at this stage, you will be committed to the term set out in the lease (likely one year).

      Michael K. E. Thiele

      Delete
    2. Thank you so much for your response. I'm in Toronto, ON and I was wondering if you can be my lawyer or if you can refer me to someone in my area? I don't have the application. I filled it out on the spot (after viewing the apartment) and did not photo copy it. I'm thinking if a lawyer or paralegal requested it, this might be over before it gets started...I don't remember any clause regarding the deposit being forfeited but I really wasn't looking for anything like that since I didn't even think this could happen.

      Delete
    3. Hi Tasha: The Law Society of Upper Canada has a lawyer referral service. They can be reached at 1-800-268-8326 or 416-947-3330. Given the scope of the matter (small) it likely isn't practical for you to retain me here in Ottawa for a matter in Toronto. See if you have some success in getting a good referral from the law society for a local lawyer or paralegal who focus on residential landlord and tenant law.

      Best of luck.

      Michael K. E. Thiele

      Delete
  55. Hi Mike,

    Great blog! Thanks for your advice. One quick question. Can a landlord evict a tenant in Ontario with only 72hrs notice if they claim they need the house back because of a "family emergency?" This recently happened to a friend on mine and they said they called someone from the Landlord and Tenant commission and were told it was legal. They did hastily pack up there stuff and put it in storage and are now living in a motel until they can find another place.

    ReplyDelete
    Replies
    1. Hi Joe: There is no basis in law for for a 72 hour eviction for a "family emergency". If your friend was lawfully evicted it was for something else (after a longer process) or your friend cut a deal with the landlord (maybe non-payment of rent) and agreed to move out.

      Michael K. E. Thiele

      Delete
  56. Hey Micheal,

    Thanks for you blog. I have a question: three of us have a lease with a landlord ( though, never got a copy of it, just an increasing notice each year ), one of them moved out on March 1st, we found a new roommate, and the second one moved out on July 1st, and we found a new roommate. My old roommates and I informed the landlord each time about these changes, but the landlord did not change the lease. Now, this new roommate did not pay to the landlord ( each month one of us gives one check for the payment to the landlord, and we split the rent by 3 and we pay our rent to the person who gave the check) . Now the landlord contacted me and told me I am the only guy in the lease because other people moved out and I should be responsible for this situation.

    According to law, am I the only person under the lease in this situation?
    Would you inform me a how leases under several names work?

    Sorry for such a long question.
    Thanks in advance!

    Ben

    ReplyDelete
    Replies
    1. Hi Ben:

      Your question encompasses a great deal of law. There are twists and possible different outcomes based on what you are describing---my point being that a one size fits all answer is not possible. An example of what one of those twists might be is that even though there is just one lease--the behaviour of changing out tenants and no objection by the landlord could lead to a conclusion that there are three separate tenancies--given how the rent is paid. That being said, this is an unlikely "twist" but I want you to appreciate that a sit down with a lawyer to discuss all aspects of your situation can not be replaced by this blog.

      Anyway, speaking in generalities to your questions. "Who" the tenants are does not really matter. If there are three names on a lease the landlord may chase any one of the three for the rent. Having two new people in the rental unit, the landlord could choose to chase any one or more of you--but he has decided to chase you. He can do that. He could do that even if the original guys were still in the rental unit. Typically, every individual in the group on the lease is responsible for the whole of the rent. So, if one of the co-tenants does not pay the landlord can chase the person most likely to be able to pay. As between you and your co-tenant roommates, if one of them doesn't pay up you have the right to sue them for the money they were supposed to pay but didn't. At this stage, the landlord is likely chasing you because he can not chase your former roommate co-tenants at the Landlord and Tenant Board. Them being out of possession of the unit denies the landlord the opportunity to proceed at the Board against them---and he likely doesn't know where they are. Hence, you are handy. If the landlord was so inclined, however, he could in theory still sue your roommates in Small Claims Court--that raises other possible arguments to defend such a claim--but generally speaking, your former roommates are on the hook until they are officially off the hook. Note, of course, that liability as between landlord and tenants is different than liability as between tenants/roommates.

      Hope that helps. The possible outcomes on this fact scenario are many so you won't ever get a definitive answer until after a hearing/trial. But the summary answer---applicable generally--is that you are liable to the landlord for the whole of the rent and your roommates are liable to your for their share.

      Michael K. E. Thiele

      Delete
  57. I have a couple of questions regarding my roommate. First off, I have been paying more rent than her since the start (also paid more for first and last) on the verbal agreement that she would be able to pay her half after three months. It has now been 8 and she has done nothing to fix this situation. Now I find out that she's plotting behind my back and has arranged plans to move back home and try to stick me with the lease on my own. We signed the lease together, I have a copy of it, and we are locked in until January 1st.

    What are my options here? I'm trying to find a sublet but I can't just let anybody into my house with my large dog. Can she actually give 60 days notice and stick me with the bills or does she have to pay her half of the lease?

    ReplyDelete
    Replies
    1. Hi: Like most things in life the answer to your question contains a lot of "it depends". I'll give you a general answer that applies in most circumstances but if you need to take legal action or need to enforce your rights you should set an appointment with a lawyer or paralegal to get advice based on your specific facts.

      My legal opinion, generally, is that tenants who jointly sign a lease for a fixed term (like one year) are responsible to each other for the shared cost of that lease for the duration of the term. The presumption is that the costs are shared equally unless there is an agreement to the contrary. If one of the two wishes to move out early, that tenant needs to get the consent of the tenant who does not wish to move out early to assign the lease to someone else (which means that both joint tenants will move out if an assignee can be found). If the remaining tenant does not wish to assign the lease then the tenant who is leaving is stuck with the liability for the duration of the lease. However, the remaining tenant needs to take steps to find a suitable replacement and try to find someone to take over the obligation of the tenant who has moved. It should not be forgotten that the tenant who moves out still have rights to occupy the premises and can not be excluded from the premises so long as they are a tenant. If it gets nasty, either of the tenants could make living in the unit unbearable for the other tenant. This is to be avoided.

      In my view, if a tenant moves out and the remaining tenant does nothing to try to re-rent or find another roommate, or excludes the other tenant from the premises, or behaves in a way that does not mitigate the loss of the tenant who has moved then on application to the Court I think the tenant who has moved out will be absolved from ongoing liability for rent (vis a vis the co-tenant). If the landlord sued the tenant who moved out, the tenant could claim against the remaining tenant. The landlord would recover against the tenant who has moved out but that tenant would be indemnified by the remaining tenant.

      In my opinion, upon the expiry of the term, either tenant can give 60 days notice and terminate the entire lease.

      So, applying this generally to your situation, try to get a roommate to replace her when she leaves. Keep track of your efforts and make diligent efforts (i.e. advertise, send out emails, invite the roommate to locate a replacement etc.). Don't be unreasonable with respect to selection of a new roommate. Tell old roommate what she owes you up to the point of moving out (break it down clearly) and tell her that she is responsible for half of rent and base utilities until a new roommate is found. Get her to agree to the amount in writing and get her to make a payment to you. If she ignores you, denies it, or hides from you, then you know she isn't going to do the honourable thing. Then you will have to decide whether to sue her in the small claims court or not.

      Hope that gives you a bit of an outline of the things that can apply in your circumstances.

      Michael K. E. Thiele

      Delete
  58. I see that you usually respond quickly. I'm hoping you can point me in the right direction. I accepted a job last year and one of the terms was that I could live rent-free in a condo owned by the business owner. (No formal contract, all verbal or email.) The business relationship has since soured, there is a dispute about money owed by the business to me and I'm now being told I must leave in 2 days otherwise he and the police will lock me out. I am working on leaving but need a few weeks to be able to find a place. There is more to the story, but my questions are: can I be forced out like this? Who can I turn to for help? What can I do if the police arrive? Thank you.

    ReplyDelete
    Replies
    1. Hi: The first question to ask is whether your living arrangement is covered by the Ontario Residential Tenancies Act. If it is covered, then you have rights under the Act that will prevent you from being evicted other than in accordance with the Residential Tenancies Act. The details and the "more to the story" are critically important to determining whether the Act apply. That being said, I think it is a fair comment that in residential relationships like this (i.e. landlord and tenant like) the RTA is presumed to apply unless it can be shown that there is an exemption from the application of the RTA. The exemptions are generally found in section 5 & 6 and there is also section 93 & 94 with respect to Superintendent's premises (covered by RTA but have a short termination).

      The best thing for you to do, if you have time to do it, is to retain counsel to go over your facts and review the "more to the story". After hearing you out I would start by looking at the sections cited to see if your situation is exempt from the application of the RTA. If it is exempt, then your ability to retain possession of the premises, even for a "reasonable time" is more difficult as your right to occupy the premises does not, in my opinion, actually exist. The owner of the land (your former employer) may be liable to you for the damages you suffer (hotel expenses, food expenses, storage expenses etc.) unnecessarily due to an unreasonably short notice. What is "unreasonable" is open to interpretation based on the circumstances--i.e. a Judge will have to decide. If you find yourself in a position where the RTA does not apply--or that is what is being asserted---and the police come---and the police assert that the RTA does not apply---then I think you would likely be removed from the premises as a trespasser. In that case, I'd make sure to advise the officer and ask the officer to make note that the removal from the property is unreasonable, that you will incur expenses and damages because of it, that you would like the officer to tell the property owner this, get the officer to note the condition of the property and document the circumstances. Inform the officer that you will be suing the landlord for this and that the officer will be called as a witness.

      The other possibility, of course, is that you are covered by the RTA. If covered by the RTA you can not be summarily removed from the property at the landlord's whim. You may only be removed by an Order of the Landlord and Tenant Board and that Order may only be enforced by the Sheriff. If you assert this position to the police, if they come, the police may very well inform the property owner that you are asserting your rights under the RTA and that it would be illegal for them to remove you from the property if the RTA applies.

      Delete
    2. If the RTA applies may be the big question for the police--especially if the landlord says it doesn't and you say it does. Most police officers will not want to make this judgment call especially if there is no peace keeping needed and both parties seem to be behaving reasonably/rationally. In such circumstances a police officer might be convinced to call this a "civil dispute" that can only be resolved by a Judge or the Ontario Landlord and Tenant Board--which means they will do nothing until the Board or Court decides whether the RTA applies or not. At the Board such an application is brought in form A1.

      There is another possible outcome of course and that is that you are forcibly evicted--with or without the assistance of the police--while being covered by the RTA. You will suffer the indignity of an illegal eviction, suffer damages, and ultimately have the right to sue for a breach of your rights.

      Hope that helps a bit. It would be helpful, if you can, to get counsel to review whether the RTA applies or not and to perhaps have a letter on hand from counsel should the police show up. Another option would be to file and have pending an A1 application to the Ontario Landlord and Tenant Board to show to police as they may be less willing to remove you from the property in the face of a pending legal application.

      Good luck

      Michael K. E. Thiele

      Delete
  59. need to move out!30 July 2014 at 16:11

    Hi Michael! I tried several times to contact you but I am not finding you reply on site...and I have great faith in you and your kmowledge so this is my story.
    july 1st I moved into an apartment in Brampton that had no fridge. Landlord said they would provide one...I still don't have one as of today. Part of the basement was flooded. I have mold everywhere and have to sleep in living room. I can hear all the noise from landlords upstairs and they come to disturb me at every hour of day and night. They have came to my apartment without my knowledge and have changed a lot of things we agreed on. We didn't sign a lease and I am on a month to month agreement. Is it possible to move out for september 1st? I paid them 1st and last...I do not want to stay another day here but because I did pay, I will suck it up an extra month and my plan was to tell them to take the last rent I paid for the upcoming month of august. They haven't done anything so far and I can tell it will be a miserable time for me if I stay any longer.Thank you I will be waiting!!!

    ReplyDelete
    Replies
    1. As we've spoken today, I hope you have some clarity on the different ways that this may proceed. Unless you get an agreement to terminate with your landlord in Form N11, you would be best to seek an Order from the landlord and tenant board terminating the tenancy. The Board will decide if what you are suffering is sufficient to terminate the tenancy or whether some lesser remedy is sufficient to address the problems you are having. If you have to go to the Board then you may as well also seek compensation for what you are going through in this unit. If you simply move out of the unit the landlord would have to decide to pursue you in Court or not. If they do, you may still raise these issues as a defence to any claim. Make sure to collect evidence of what you are going through before moving out.

      Good luck.

      Michael K. E. Thiele

      Delete
  60. Hi Michael,

    My friend is renting an apartment month-to-month on a verbal lease. He is supposed to be in the country until October, but the landlord has come to him last week and told him that he needs to leave ASAP. He says he found a new tenant that will sign a longer lease and is willing to pay more money.

    To me this sounds illegal, and even though my friend is not a citizen he should still be protected by RTA. He is renting an expensive condo (1 bedroom + den) in downtown Toronto.

    I have told him to tell the landlord that he will not be leaving until October.

    Can you confirm that what I am saying is accurate, and that the landlord can not just evict him to make more money?

    ReplyDelete
    Replies
    1. Hi: Based on the facts you have provided your understanding is indeed correct.

      Michael K. E. Thiele

      Delete
  61. hi Michael, I have a question: I have been living in this house in the last 6 years. The house was up for sale a couple of months ago, the house was sold, and a new owner will take over the ownership of the house. I have been told that I do not have to move out by my current landlord. No letter has come to serve me a notice of eviction. My current landlord has used up my last month rent to terminate my lease with him. I have two questions: a) Do I have to sign a new lease agreement (i.e. for 1 year lease)?
    b) Can the new owner raise the rent?
    This house is an old house.
    I don't know how old exactly the house is, but I have been told that this house IS an old house by the current owner (landlord).

    ReplyDelete
    Replies
    1. Hi and thank you for the question. The change in ownership does not terminate your tenancy. If your original landlord served you with a valid Notice of Termination that Notice became void 30 days after the termination date in the Notice unless the landlord applied to the Board to terminate the tenancy. Presuming that this did not happen, your original lease continues on the same terms. Your new landlord may only do what the RTA allows--which is nothing more than what your original landlord would be allowed to do if he were still your landlord. Hence, no rent re-set to whatever the market may bear. The current landlord is likely limited to a guideline increase amount based on the very old age of the house.

      Michael k e Thiele

      Delete
    2. Thank you Michael for your respond.

      Delete
  62. Hi Michael,
    I am having a disagreement with a landlord and am not sure of my legal rights.
    I contacted the owners of a home that was advertised for rent on kijiji. The owners informed me on inquiry that the house was in poor shape because of the previous tenant but that she was being evicted and the house was being repaired (they were suing the tenant for the damages.) I met the owner (and his adult daughter) at the house and viewed it; it was in pretty terrible shape but the owner emphasized that he would be fixing everything and that it would be beautiful again. Based on these promises I felt hopeful that this house would be a good option for me. (However the promises were not documented - I trusted the word of the owner)
    I asked the owner if I could see the improvements before making a commitment to the rental. He agreed that I would need to give a deposit to prove my interest, and assured me that I would be pleased with the restoration to the house, however agreed if I wasn't satisfied, that he would refund my deposit. The promise to refund the deposit was witnessed by the owners adult daughter.
    My expectations for the quality of work to be done to professional standards (all damages repaired, "beautiful" and "done right" were based on the claims of the owner and his daughter. The agreement was verbal.
    The owners changed my possession date twice because the house was not ready.
    When I discovered the work to be below my expectations, I asked for a refund and the owner agreed in writing, however disappointedly, to write me a cheque refunding the deposit. The owner than recanted their willingness to refund my deposit.
    The owner holds me responsible for the house sitting vacant. I informed the owner of my decision on the 16th of the month. The owner communicated that another couple that viewed the house would like to rent it but cannot get out of their current lease for a couple months. The owner says they will not refund my deposit because of this lost revenue; can they punish me for lack of revenue if they choose not to seek immediate renters?
    The owners have told to seek legal avenues if I want to pursue this because they have other properties and know their rights. Do I have any recourse?

    ReplyDelete
    Replies
    1. Hi: It strikes me that a lot will turn on the characterization of your deposit and what it is that you were agreeing to with the landlord. I didn't see in your description any commitment on the part of the landlord to hold the property for you. Further, it doesn't seem that you entered into a lease or even an agreement to lease. It seems more to have been a conditional agreement to lease--premised on certain terms being met (i.e. the property being fixed to standard). If this is an accurate reflection of what happened (and more importantly what a Judge thinks happened) then I think you would indeed get your money back. The owners position seems to be premised in the notion that you are the tenant, that they had to rent to you, and that you are backing out of a lease. If you did indeed enter into a lease for the premises, without condition, and it was only a matter of waiting for a commencement date then the landlord may indeed have a point and you could be liable for backing out of a lease agreement. The landlord is being careful in suggesting that your deposit is being applied to lost rent--which would make the use of the deposit legal (as opposed to retaining it as a penalty for breaking a lease).

      How this goes will depend on what the "facts" are found to be, whether you are believed, whether witnesses tell the truth, and frankly whether a Judge "gets it". There is no guaranteed outcome either way--which makes it 50/50 for you and the landlord. In cases like this, getting experienced counsel, a well supervised student, or experienced paralegal can indeed make the difference between winning and losing.

      best of luck

      Michael K. E. Thiele

      Delete
  63. HI Michael,
    I have just purchased a property that has a tenant in place. The previous landlord used an OREA form called Agreement to lease but it does not really look like a lease yet they say it is the lease. There are many fields missing. Is it a valid lease? Read all your other entries above I am wondering if it is not a lease would it then fall a bit in the middle and be like a verbal lease? It is for two years and people have been there for a month and a half only.

    thanks

    ReplyDelete
    Replies
    1. Hello: There is no specific form of lease in Ontario for residential units. While some formats are more common than others the fact is that a scribble on the back of a cocktail napkin could be deemed to be a lease. Where a written lease misses some information or fails to address important points those points will be filled in by the provisions of the RTA or by the rules of interpretation/construction of contracts. Certainly, it is open under the RTA for oral or implied terms, if proven, to also be incorporated into the provisions of the tenancy agreement. While the agreement you are looking at is less than perfect I would doubt that the blank spots would make the lease invalid.

      Michael K. Thiele

      Delete
    2. Thanks for your help. Much appreciated.

      Delete
  64. Let me start off with I am the landlord and there are no signed documents of any kind between my tenant and I. I'm not sure if I am in a worse or better situation by not having a rental agreement in writing.
    The tenant is currently over $3,500 behind in rent. I am guessing we have a month to month agreement. I have tried to talk to her repeatedly about her arrears but now she won't answer the door or phone. Occasionally her daughter will answer the door but always with the same excuse, "my mom is in the shower". The tenant & her 2 adult son's are working, I feel there is no excuse for their being behind. At $800 per month and nearing the end of August, if no payment is made she will be over $4,400+ in arrears. I have proof that they can afford trips and vacations....Niagara Falls, Canada's Wonderland, African Lion Safari, trips to hunting and fishing cabins, trips to warm destinations in the southern states, expensive prom dresses, epicure, etc.
    Over the last winter, I agreed to let her park her car inside the garage for the winter months only, but now they are using the double garage plus it's walk in attic to the garage in it's entirety. They have moved my contractor's equipment and allowed their friends / relatives to store their stuff as well. They may even be charging people to store their belongings in my garage, but I don't have proof of that. I expressly told them my second floor to the garage was off limits. They have being working on cars I assume and the floor is a greasy mess. They are BBQ-ing inside the garage which is a fire hazard.

    #1- Can I install locks on the garage since it was not part of our verbal agreement other than she could park her vehicle on one side of the garage during the last winter?

    #2- How and where do I start to get these tenants out?

    #3- Can I sue her and her adult sons equally to better my chances of reimbursement?

    #4- They also have a young PitBull ( not quite a year old) which I understand is an illegal pet in Ontario. Is there anything I can do about that? The originally moved in with an old lab mix and have since added this PitBull pup?

    #5- How do I enter my own premises? When they used to answer the door, they only opened it about 12 inches and slid through, closing it quickly behind themselves so as to obstruct any possibility of me seeing inside. This has only raised my suspicions that there are damages or they are hiding an illegal activity.

    #6- Can I evict them and allow my elderly mother's caregiver to move in? How long will this process take? (The caregiver will be given a reduced rent for helping take care of my mother. I'm not sure if that is relevant)

    #7- In the future, would it be more beneficial for me as the landlord to have a written lease agreement or continue on a verbal? I'm not sure if I am in a worse or better situation by not having a rental agreement in writing. Can you advise on this?

    I'm at my wits end. I have to pay the mortgage on this house and my own and if this keeps up, I'm going to be in serious financial hot water. Please advise.
    I may just scrap the "rental to people" and rent out part of the property to another contractor sometime in the future, retaining part for my own business. It is zoned residential / commercial and was used as such by the last 2 owners. #8- Any advice on this as well?

    ReplyDelete
    Replies
    1. Hi Karjinx: If ever there was a comment from someone who needed to get a lawyer--that is your comment! You are being taken advantage of in many significant ways and it is exceedingly clear that you have no idea what your rights as a landlord are. In Ontario you have a right to enter a unit on providing 24 hours notice in accordance with the Residential Tenancies Act. For non-payment of rent you may serve a Form N4 (Notice of Termination for Non-Payment of Rent)---that form should have been served on the day after the rent was late for the first time. Once you follow the detailed procedures you would end up at the Landlord and Tenant Board to obtain an eviction Order. The process takes a few months--so don't delay.

      Your tenants seem to be "experienced" in taking advantage of naïve landlords--and from your description they have certainly relied on your "trusting" nature to take advantage of you. The lack of a written lease is not determinative of your rights. A lease in Ontario may be written, oral, or implied. The Residential Tenancies Act provides the basic terms of a landlord and tenant relationship if you haven't written one down. Note that failing to have a written lease makes some things more difficult to prove (like who has the right to use the garage).

      It seems to me that given the extent of the rent arrears that your very first step should be serving the N4. The other points you raise all have provisions in the RTA for specific notices for those issues. Whether or not you can use those Notices will depend on facts that you have not provided and frankly it is never a matter of yes or no. Given how the tenants have manipulated the situation you are best advised to get an experienced lawyer to take you through the process. The expense of the legal fees will be well worth it as I suspect these tenants will continue to attempt to enjoy your premises for free while causing expensive damage that you are unlikely to recover the costs for. Try to find a lawyer in your area--the Law Society of Upper Canada (Ontario), has a lawyer referral service that you can access simply by calling. They should be able to refer you to someone in your area.

      Best of Luck

      Michael K. E. Thiele

      Delete
  65. Hi Michael, I posted a comment on 18 August and you have answered my questions there. Thank you.
    I just want to know one more thing, I have been told by my current landlord that after end of this month, I will be with the new owners of the house (hence, they will be my new landlord) and I do not have to provide them with first and last month rent again. But, how can that be, since I will be with a different landlord based on my current lease (in the last 6 years)? Don't I have to provide them with first and last, since my last rent from my previous landlord has been used to cover this month rent?
    Thanks for your time to read this. I really appreciate your time to read my questions (comments).

    ReplyDelete
    Replies
    1. Hi: Where a property with sitting tenants is sold by the landlord to a buyer, the buyer upon closing the transaction steps into the shoes of the landlord and takes over the rights and responsibilities of being a landlord. There is no new lease agreement and the relationship that you enter into with the new landlord is not a new contractual arrangment. To visualize it, imagine taking your written lease agreement and scratching out your old landlord's name and replacing it with the buyers name with everything else staying the same. It is almost like the new landlord being your landlord from the beginning. The last month's rent deposit remains to your credit as this deposit is for your last month. You would not pay a first month as your month to month tenancy is just continuing onwards--this is not a new lease. The Last Month Rent deposit will be transferred from the old owner to the new owner in the real estate transaction and credits will be given as needed between them to take into account the deposits that the old owner is holding.

      While your question doesn't raise the issue, I'll briefly mention an exception to the idea that the new landlord steps into the shoes of the old landlord. There is some dispute about whether a new landlord can be liable for the actions of an old landlord or for repair issues that pre-date the assumption of ownership by the new landlord.

      Hope this answers your question.

      Michael K. E. Thiele

      Delete
    2. Thanks for your reply Mr. Michael Thiele. So, what you are saying is that I do not have to pay first and last month again, since the lease IS the SAME old contract which I signed 6 years ago. Ok, the old landlord "cashed" in the last month deposit to be applied for the month of August (this month), tomorrow is 1 September and you said that "the last month rent deposit will be transferred from the old owner to the new owner in the real estate transaction and credits will be given as needed b/w them to take into account the deposits that the old owner is holding." In my case, my ORIGINAL last month deposit has been used for this month (August), my rent cheque that was supposed to be paid for this month was returned by my old landlord to me and other applicable deposit (key deposit), as a result my LAST MONTH deposit HAS BEEN USED up for this month. Sorry I am bit confused. To my knowledge, there IS NO MORE last month deposit from my old landlord to transfer to the new landlord and so, that WAS why I have stipulated that I have to pay FIRST and LAST months, like I am entering a new agreement all over again. I HAVE NEVER been in this situation before and I am from BC, when I lived there, I was living partially in one of my own family's properties and did rent at a few apartment buildings. But, the rule there is different: half month rent for rental deposit which is for the damage deposit, applicable deposits (i.e. key fobs), and first month (upon entering the lease agreement); then, when I move out (leaving the premise in a pristine condition (like the first day I moved in)), I will get my last month deposit along with other applicable deposit(s) back. So, I am pretty much lost here in Ontario. The rules are different and good, but can be quite confusing. Thank goodness that I found this blog and you have been very kind to answer my questions. I am just saying that I really appreciate your answers, which are very valuable lessons for me as a renter in Ontario. Thank you so much, apologise for the long query.
      Your comment to my previous post IS MUCH appreciated.

      Delete
    3. Hi again: Unofrtunately, from what you describe it appears that your landlord is going about the transfer of ownership--from him to the new owner--improperly. The Last Month's Rent deposit is for the last month of your tenancy and a mere sale of the property does not affect your tenancy. Given that your landlord is going about this in the wrong way you will need to work with the new landlord to get your tenancy on a "normal" footing. Technically, you could insist on the new landlord still holding a credit for you for the LMR and technically you are in arrears for the one month of rent that the old landlord refused to cash. While you would be correct in maintaining this position, perhaps (because of the circumstances) it would be better to be more flexible with the new landlord and get on a solid footing with him. You could approach the new landlord to pay your ongoing monthly rent and simply acknowledge that there is no LMR anymore notwithstanding that this is not technically correct. In effect you could agree to continue your tenancy without an LMR in place. Not having an LMR is perfectly legal but it means that when you move, someday, you will need to pay your rent to the very last of occupancy as you won't have a credit.

      What I would like to emphasize with you is that being flexible about the rent and LMR with the new landlord in no way means that you are agreeing to a new tenancy. The prejudice you might suffer if you go along with this being a "new tenancy" is that the new landlord might think that he can set the rent at whatever amount he wishes. That is true between tenancies but NOT true when a building changes ownership. You are entitled to continue in your tenancy at the same rent. You are also entitled to continue your tenancy on the same terms--meaning the new landlord can not change the terms of your lease. Also, you are currently on a month to month--the new landlord can not require you to sign a new 12 month fixed term lease (though your can if you want to ).

      In all of this, the most important point for you is to recognize that you have the right to continue your existing lease with the new landlord and that the new landlord does not get to make a new deal just because he is new.

      Michael K. E. Thiele
      Ottawa Lawyer

      Delete
    4. Hi Michael, thank you so much for the valuable information here as explained in your reply. I will let my new house owner of my rights as an existing tenant in his newly acquired property. I will just have to see what will happen today.
      I am planning to move back home to where I am from (BC) very soon. It has been a very valuable knowledge that you have guided me these far. I really appreciated. I sincerely hope that you would continue to help to tenants like myself in many years to come. Thank you.

      Delete
  66. Hello Michael,

    My partner and I signed a one year lease with an understanding that the property would be free for us to rent for three years. Our landlord explained that after having purchased the house for themselves his wife was accepted at a law school out of town, and as a result they would not be able to live in it for the duration of her 3 year program. The signed lease ended yesterday, September 1st 2014.A few weeks ago the landlord notified my husband via text that they are having a baby this month, and they would like their property back preferably by the 1st of October but is willing to be kind and give us to the beginning of November. Their decision to reclaim the home was spur of the moment after a guidance counsellor at the university suggested transfering to a more local law school. The transfer was apparently applied for, accepted and completed with the first week of August. As of today we have received no written letter of intent from him.

    They are currently residing in an apartment in his parents home. We would like to help them by moving as quickly as possible however finding a home to suit all of our familial needs in the city of Toronto is a challenge to say the least - one child with diagnosed clinical anxiety who is still getting over last years move, children just beginning school, I teach piano from this home with very local clientelle ( and to incur another moving expense!)... we never would have taken a property for one year..

    We don't want to be labelled as difficult tenants but this is a very challenging situation and moving 4 people and a business is not as simple as packing a few suitcases. We did say we would do our best, when we asked if they would be able to offer compensation for this inconvenience they declined citing there own needs.

    What would be an acceptable course of action this challenging situation?
    If written notice were issued say the 5th of September would that mean that we would have to vacate 2 months from that date? Or since we pay rent on the 1st of the month do we then have an extra month?

    Thank you so much for you time.

    ReplyDelete
    Replies
    1. Hi: A properly completed N12 has a termination date that is a minimum of 60 days to the end of term. Hence, an N12 issued and served on September 5 would have to have a termination date of November 30--presuming that rent is due on the first of the month and the last day of a month is the last day of the monthly term. You could not be evicted before the end of November.

      The facts you describe are quite compelling and depending on your ability to comply with the landlord's request you could indeed ask for more time. If the landlord is not willing then you could ask the Board to extend the termination date under section 83 of the RTA (a discretion section). While obtaining discretion from the Board is not automatic, the circumstances you describe may very well result in the Board granting you additional time--especially if the landlord has housing with in-laws.

      Hope that helps.

      Michael K. E. Thiele

      Delete
    2. Thank you for the quick response, this information is most helpful.
      Again, thank you for your time,
      Leslie

      Delete
  67. Hello Michael,

    I have a roommate who has rented the den in my condo and signed a term for 4 months Sept 1 - 31 Dec. This new roommate is causing some issues with myself and my other roommate. How much notice do I have to give her, 30 days or 60 days?

    ReplyDelete
    Replies
    1. Hi: You dont say whether you are an owner or a tenant in the condo. It makes a difference in determining how the RTA does not apply to this situation. I am presuming it doesn't because I presume the den isn't a separate rental unit--you share a kitchen and or bath? If you are a tenant you can't be both tenant and landlord while in possession of the unit and as such he is likely only a roommate without the protections of the RTA. Presuming then that the RTA does not apply you have no statutory notice requirements--there is no 30 or 60 days--reasonableness will be the standard that goverrns in the event that your written agreement is silent on the subject of early termination of your agreement. If you terminate unreasonably and cause the tenant unnecessary hardship and losses there is a risk that he might sue you. A Judge would look at the circumstances and consider what would a reasonable person have done (absent contractual terms) and measure your conduct against that of the reasonable person in similar circumstances.

      Best of luck.

      Michael K E Thiele

      Delete
  68. Hello Michael,
    Thanks for your assistance in advance.
    I have run into a bit of an issue with an old friend of mine who has just moved into my rental. We verbally discussed the need to do a lease agreement and post-dated cheques while were doing a walk through of home. Once he had decided that he was in fact interested in the home he did not end up meeting me to give me post-dated cheques, first and last months or sign lease agreement. I live outside town so I dismissed the issue for months one and two. In the meantime he stated he would provide me with etransfers which ended up being about two weeks late both months. During month two I reminded him that I would still need a signed lease agreement and post-dated cheques just so that lease was clear and that late payments would hopefully become less of an issue. In the meantime, he had asked via text if he could buy a shed and have it put on the property. I clearly stated that I would not want this as property is small and assumed he would be taking shed with him when he left it would leave with me patio stones or a big piece of soil from where the shed would sit. This month being month three I was able to make my way to town and asked him to meet so we could go over the lease and collect post-dated cheques. On my arrival I discovered he not only took down my fence accommodate his shed he also dug up few trees I had planted, laid patio stones and put up an 8x10 shed right on my property line. In addition, he had a satellite put on my roof and he also made up his own tenancy agreement which stated he would be paying me with etransfers and that he could in fact make amendments to the property. I was to say the least speechless. After some thinking I sent him a text requesting that he leave as things weren't going as was originally agreed. He feels I am over reacting and wants to stay. He has only been at house for 3 months now and he has been late paying rent for all three months. Just not sure the best course of action to take at this point but would primarily like him to move out or agree on a lease that included first and last months, post-dated cheques to reduce issues with being late and assurance that he will not be making any more changes to my property. Thanks, Angela

    ReplyDelete
    Replies
    1. Hi Angela: You raise a number of issues in relation to this tenancy which would take quite some time to address. While you may like to have post dated cheques it is not legal to require them. The lack of a written lease does not mean that there isn't a lease but it would be handy from a perspective of dealing with issues like manner of rent payment and alterations to the property. Given the boldness of your friend/tenant you might like to think twice about continuing this tenancy as it seems, on what you've presented, that this fellow is going to do what he wants regardless of what you say or approve. At this stage you may wish to consider formally terminating the tenancy by serving a notice of termination in Form N5--for damage, alternations. At the same time, serve an N8 for persistent late payment of rent. Make sure to read the notes and guide for these forms closely (on the Board website) as you must be absolutely correct in the content of the form otherwise the form will be void and you will have to start over again. I presume of course that you did not accept the tenant's lease (though keep a copy) and he has not accepted your version as he has refused to sign it. I think that this leaves you with a month to month tenancy as opposed to a fixed term lease. Some basics are clearly agreed upon but rather significant parts are not.

      Good luck

      Michael K E Thiele

      Delete
  69. Michael, if a tenant receives an N4 prior to the end of the one year contract with 4 months remaining, are you responsible for paying for the remainder even if you moved out?

    ReplyDelete
    Replies
    1. Hi: Thank you for this question. One might think that there should be a definitive answer to this question but as of today I am unaware of any appellate decision that finally settles the question. My opinion (and be aware there are other and opposite opinions) is that the service of an N4 that is not voided reflects a choice of the landlord to terminate the tenancy and end the obligation of the tenant to pay rent as of the day of regaining vacant possession of the unit through the N4/L1 process. The N4/L1 process will result in an order that establishes a certain amount of rent owing minus mandatory deductions(s.87(4) RTA), plus any per diem compensation (s.86 RTA) to the date the unit is vacated. My review of s. 59 RTA--non payment of rent, s 37(2) Termination by Notice, and section 88 RTA, all lead me to the conclusion that once a tenant is served an N4 the obligation to pay rent, and occupation rent, for the unit terminates because the lease under which the obligation arose has been legally ended by the choice of the landlord. A landlord does not have to terminate a lease in order to get a Judgment against a tenant for rent arrears. A landlord has a choice to continue the lease, get a judgment for rent arrears only (see Form L9), and enforce accordingly.

      I am aware of cases supporting the position I take above but they are not binding authority. The alternative argument, as I understand it, is that a tenant who forces a landlord to terminate and evict them should not have the benefit of getting out of their lease early because of their non-payment of rent. The argument is that the tenant breached the lease and therefore should be liable for the landlord's losses for the remainder of the term of the tenancy notwithstanding that the lease and hence the balance of the term was terminated by Order. The advocates of this position refer to some caselaw but that caselaw, as far as I know, is not decided under the Residential Tenancies Act and that caselaw does not take into account the arguments made above. Neither view point is confirmed by appellate authority--which would make the law clear.

      So, in my view, if a tenancy is terminated by N4 and the tenant moves out in accordance with that Notice then there is no obligation to pay any more rent after the move out. It is worth noting that regardless of one's view on this, it is generally agreed that a landlord has a duty to mitigate losses to reduce the amount of arrears regardless of the reason that a tenant vacates.

      Michael K. E. Thiele

      Delete
  70. hello, my husband and I have rented a 3 bedroom house beginning Oct 1. No problem. A few weeks ago, our adult daughter, had to move out of a room she was renting while attending university because she discovered bed bugs. She has taken care of the situation, but needs a place to live temporarily. I had informed the landlady. She tells me that she cannot move in because she only rented to 2 people. And because she doesn't want bed bugs. I informed her that the problem was absolutely taken care of. Can she do this, as it is our daughter?

    ReplyDelete
    Replies
    1. Hi: No she can not do this. However, are you talking about where you are or where you are going to be? If you are already in possession then the landlady can't stop you from having your daughter stay with you. However, if it is the place you are intending to move to be careful as the landlady may decide to not give you possession of the unit and thereby leave you without a place to move into. She can't legally do this--but while the question gets sorted out at the Board or Court you would still be suffering the consequences of not being allowed to move into you ned place.

      Michael K. E. Thiele

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

    ReplyDelete
  72. Hi: The landlord does not have the right to limit the use of the rental unit in this way. It amounts to discrimination which is contrary to the Human Rights Code. Here is the text from the HRC:

    Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (2); 2012, c. 7, s. 2 (1).

    Note the prohibition on discrimination in relation to family status & marital status. The effect of limiting the rental unit to a single person is to discriminate against couples etc.. The unit is clearly able to support the presence of more than one person as it is a two bedroom unit. The landlord simply does not have the right to limit the use of the unit in this way.

    Michael K. E. Thiele

    ReplyDelete
  73. Hi Michael,

    I am in a bit of a situation and I hope you can help!
    Basically the situation is..where my boyfriend works, there is a home on the front of the business property....his boss asked if we wanted to rent the main floor of that house as my boyfriend didn't have a car and we were considering moving in together and I lived 45 mins away...so prior to me giving my 2 months notice at my apt that I lived in for 7 years my boyfriend had numerous conversations with his boss/our possible future landlord and stated that I would be the main tenant and our rent would be 1300/mth all incl which included a back deck(that has to be repaired through an insurance job from a snow storm last winter) and the garage; my boyfriend also told 'the boss/landlord' that the only time I could move would be the weekend of Aug 10, 2014 but because I had to pay last months rent at my apt that we would need to start paying rent on Sept 1, 2014 and would pay first and last on the condition that the back deck was completed otherwise there needed to be a discounted rent rate until the back deck would be completed. The other agreement was that I would be the tenant as I was giving up my entire security of my other apt and uprooting my son to a new area. The 'boss/landlord' agreed to all these terms and so I gave my notice...

    ReplyDelete
    Replies
    1. Hi: This sounds like it is going to be a long story. Already I have many questions. Specifically, can you tell me if you have a written lease and if you do who is named as the tenant. Also, does your boyfriend's employment have anything to do with the need to be on-site? There may indeed be a question about whether this tenancy is covered by the RTA--potential exemptions are in section 5(j).

      I'll wait to get the rest of your story.

      Michael K. E. Thiele

      Delete
  74. Hi Michael,
    I'm renting out a few rooms in my house & found myself in a situation where I'm not sure what to do. A renter has gave me 15 days notice before moving out. We didn't have a lease but did have a verbal agreement that 30 days notice would need to be given prior to moving out. I collected first/last month rent when he moved in & was not able to find a renter for this upcoming month. I let the renter know that. I'm currently trying to find another renter. He has left a few items in his former room in my house & wants to be able to use my laundry even though he moved out of my home last weekend. He wants to use my laundry until mid-next month. He did not return my key. Next month begins on a Wednesday. A few questions: what can I do with his things (a few bags ofclothing)? Do I have to allow him to use my laundry/enter my home until mid-next month? Can I ask him to have all his clothes out of my house by the end of this month ie in two days. (He moved everything else and most of his clothes). He did not give me proper notice but I have his last month's deposit so I'm not sure what to do. I'm afraid that he'll do something to my home because he isn't getting the deposit back which is why I don't want him to still have access especially when I'm not home.

    ReplyDelete
    Replies
    1. Hi:

      One of the first things I do when reviewing comments on this blog is to try to figure out what specific law applies to the facts being described by the person writing to me. The writers generally are unaware of the legal requirements of the law and hence I don't always get the facts I need to analyze the situation--or sometimes the facts are a bit vague or seem uncertain thereby making it difficult to address the question.

      The first question I have in relation to your comment is to ask whether the Residential Tenancies Act applies (or not). Whether the RTA applies or no is critically important to answering your question as the RTA contains certain rules, rights, and obligations. The rules, rights, and obligations apply both to tenants and landlords and compliance with or breaches thereof speak loudly on how the issue being raised would be determined in a court or at the Landlord and Tenant Board.

      If the RTA does not apply to the circumstances described then the case is likely to be governed largely by a "contract". In broad terms, with numerous exceptions, adult persons are presumed to be competent and they have a freedom to contract lawfully to whatever terms they may wish. A contract may be written, it may be oral, it may be partly written and partly oral and some terms may even be implied from the circumstances. In landlord and tenant like relationships that are not governed by the RTA it is often the case that the "problem" being addressed was never contemplated by the so called landlord and tenant and no provision was ever made for the resolution of the problem. In those circumstances, a Court may be called upon to make a decision where the only guide as to what should happen is founded in a sense of what is "fair". Of course, "fairness" is often in the eye of the beholder.

      So, what does all of this mean for you? From your comment I understand that you are renting rooms in your own home. That raises the question of whether your rental relationship with your roomers is exempt from the RTA. The exemption I am thinking of is in section 5(i) which provides an exemption where the tenant is required to share a bathroom or kitchen with the owner. There are other exemptions as well.

      If your relationship with this roomer is indeed exempted from the Residential Tenancies Act then the question of what law applies (and therefore what rules, rights, obligations) is likely answered by saying "contract" law. The answers to specific inquiries in contractual relationships is to ask what does the contract say? The contract should provide a framework for answering particular questions and sometimes the contract can even provide for a dispute resolution mechanism that is different than going to court.

      So, what does your contract say about the questions that you posed? You mention some of it is oral so that immediately raises the problem of "proof". Also, to the extent that there is anything written, and you wrote it, you should be aware of a presumption in law that an interpretation of a contract is interpreted against the drafter of the contract in situations where there is ambiguity.

      The timeline in your fact scenario is not entirely clear to me. However, I will presume that the roomer has indeed paid for the entirety of the upcoming month or for the balance of the month in excess of his 15 days of notice. One can not presume that the Notice must be for the monthly term so is it possible that notice can straddle two terms?





      Delete
    2. Absent anything written or provable on an oral basis then I think you will default to a "fairness" analysis. If the roomer is paid up for the month then whether or not he lives in the house I would think it fair that he retain the use of the premises. As he is paid up, he may keep the key and use the services for which he has paid. Of course, he must continue to abide by the rules of the house.

      I appreciate your concern that he may do something. That, however, is part of the risk of renting to people and hopefully your screening originally means you didn't rent to a person who would behave in such an uncivilized manner. While I understand that you may fear such behavior, if the roomer hasn't actually done anything then I don't see the basis for excluding him from a room he has paid for. While the RTA does not apply, in a similar circumstance under the RTA a landlord would not be entitled to exclude the tenant from the premises.

      Similarly, I do not think that you can ask him to remove his clothes from the premises. He has paid for the room and he intends to use it--whether or not he is in possession. This is significant as his continued use of the premises absolves you from trying to find a new roomer to replace him during his notice period. If he left without notice or on short notice and returned possession to you, I think you would be required to seek to re-rent the room as soon as possible (a duty to mitigate losses is generally applied in the law). If successful in re-renting quickly, you would have to return to the former roomer the money for the period of time that you successfully re-rented the room. You can't just keep the "notice" money as a windfall.

      Ultimately, the roomer could decide to sue you in the small claims court if you proceed in a way that is contrary to the contract or contrary to what he perceives as fairness. Whether or not he would go to the time and trouble of suing is another question entirely. However, if he does sue, you will want to be able to stand by your actions as being in compliance with your contract or being fair on an objective standard (i.e. fair in the eyes of regular people). Finally, you may solve all of this by asking him to move out his stuff and simply return the balance of his money from the date he is moved out. Nothing requires you to insist on the 30 days of notice and returning the money for the key and possession will get you the peace of mind of knowing that he won't "do anything" to your house.

      Best of luck

      Michael K. E. Thiele

      Delete
  75. Hi, Michael
    I'm in a difficult and frustrating situation here and i hope you can provide me with some guidance and advice. thanks in advance!
    i have been living in this apartment building for over 2 and half years. when i initially moved in, i did not have to sign a lease nor pay last month rent. all i had to fill out was an apartment application form. My former landlord told me if i have to move out, i need to give her 30 days notice and that's it. Now, just a couple of months ago, a new property management company took over, however, they did not provide us with any proper documentation or have us sign a new lease regarding landlord and tenant responsibilities etc. so i was not made aware of the change to the 30 days notice. I will be moving out last day of Oct, 2014, and i gave them my notice on Sept 30, 2014, just as i was told by my former landlord. However, they new company insists on the 60 days notice and basically doesn't care about what my former landlord had told me. now they want to charge me all the way til the last day of November, the month i won't be staying in this building. I thought the new landlord is supposed to carry over what the previous landlord had provided to the tenant, and if any changes, the new landlord should make sure the tenants are made aware, right? i don't plan on paying the extra month of rent. what should i do? thank you so much for your time!

    ReplyDelete
    Replies
    1. Hi:

      Surprisingly enough the answer to your question isn't as logical or evident as you think it would be. The RTA provides that any provision in a lease agreement (which may be written, oral, or implied) that contravenes the RTA is void. The RTA provides that a tenant needs to give 60 days notice when terminating a tenancy. If your lease, written, oral, implied, contains a term that allows you to terminate with only 30 days notice that would on its face be a violation of the RTA. I expect that the Landlord would argue this point and ask the Board or a Court to determine that you were short on your notice and demand the extra 30 days on the basis that the law requires 60 days and even if you had a deal for 30 days it is void under the RTA.

      What is a bit unclear to me though is whether you had an agreement for 30 days (as opposed to 60 days) or whether your landlord told you that she would accept 30 days notice of termination. There is a difference between the two. I do believe that an agreement to accept 30 days notice of termination is different than a clause requiring 30 days notice of termination. A willingness to accept 30 days as opposed to 60 days may be a waiver of part of the Notice requirement and this is not prohibited by the RTA. In fact, parties are allowed to agree to terminate for shorter periods if they wish.

      Your greatest difficulty of course will be proving your entitlement to move out on 30 days Notice. Any chance of finding the old landlord and confirming that she agreed to waive the 60 days notice requirement? If you can't prove it you are likely going to lose on the point.

      Best of luck

      Michael K. E. Thiele

      Delete
  76. Hello,

    Any advice would be appreciated. I will try to remain concise.

    I am tenant, with no official lease signed with landlord. I pay rent in full but had an old "friend" move in who was going to 'help' with rent, I acknowledged that this would be slow at first since he was looking for work, but I trusted him (big mistake) So we made a verbal agreement that he would eventually start to pay in full.

    Fast forward three years - he has paid what I calculate to be about 15% of his share of rent and utilities (all documented). some of his payments were cash along the way, but very limited and a fraction of what he owes. I kept on waiting for his situation to improve but it never did, and I was patient, but now am losing patience since he has stopped making payments. We made a verbal agreement to do twice-a-month payments, which he followed for two years, but still the total paid is well below what a true 50% share would have been.

    landlord is aware of this subletter aka roommate but never objected within 60 days for me to get rid of this person (wish he did)

    Do I have ANY legal options to recover or sue him for this money?

    Thank you and sorry if this message is a bit incoherent since I am fuming about the situation and a little too agitated to craft a well-written message.

    ReplyDelete
    Replies
    1. Hi:

      As I understand your comment this person who moved in is living with you as a roommate. If this is correct then he is your roommate until you decide he is no longer your roommate. He has no rights under the RTA. He is very likely not a tenant. The landlord could not have objected to his presence so long as you also remained in possession of the unit---it is not a sublet or assignment unless the original tenant vacates the rental unit.

      Your relationship with this person is governed by your understanding. Your "understanding" is a contract as it is an agreement to allow him to live in your unit in exchange for payment. It is likely that termination of this agreement wasn't spelled out in any detail at the beginning. If that is true, then frankly the governing law will be one of just being reasonable. It would be unreasonable to throw him out on the street without warning at 2 in the morning. It would be quite reasonable to tell him that he has to be out after 60 days. Reasonableness is also informed by his behaviour. If you arrived home and found him smoking crack in your unit (and that is something you don't do) then it would be reasonable to throw him out on the spot. No judge is going to require you to live under threat or in the presence of illegal behaviour.

      With respect to getting the money he owes you. It's great that you documented it. There is generally a two year limitation period on debt claims--meaning you need to sue him within 2 years of a debt becoming due. You may already have lost the ability to sue for some of the early debt---unless of course he acknowledges the debt as still owing. You may sue him in the small claims court. However, keep in mind, if after almost three years he is still broke the chances of ever recovering anything from this guy might be fairly slim. I'm not discouraging you from suing but there are costs--such as filing fees to sue---and the old expression of not being able to get blood out of stone is as true to day as ever.

      Good luck

      Michael K. E. Thiele

      Delete
    2. Thank you for your rapid response.

      At this stage I am reluctant to throw him out because I feel like that would lessen my chances of ever receiving any money from him. He could easily pull a disappearing act and make himself unreachable. This individual does disappear for short spurts periodically without much regard for anyone trying to contact him.

      I chuckled at your comment re: smoking crack in the unit - to my knowledge, he is not doing anything like that.

      My absolute main concern is collecting what he owes me. Realistically, I don't believe I will get the full amount but I am going to attempt to anyway. If you would, could you estimate for me the cost of filing fees - and isn't there an upper limit on what is considered 'small claims'? In other words, if the debt is in excess of $25,000, is that too large to qualify for small claims? What evidence will I need to present - unfortunately there is a very little in writing re: the agreement between us. Should I trick him into saying things over email (ie acknowledging the debt?)

      Thank you again for your help.

      Delete
    3. Hi Again: The Small Claims Court has a jurisdiction of $25,000. If your claim exceeds $25,000 you may still commence the action in the Small Claims Court but you would have to waive any amount in excess of the $25,000. Given that the small claims court is quicker and more user friendly without a lawyer than the next level of court up--it may be worth it to waive some amounts in excess of $25,000--especially if you think that it is unlikely that you will recover.

      The Ontario Small Claims Court fees are published on the Superior Court of Justice website--but roughly it is under $100 to issue a claim and I think it is $100 to set the case down for trial if it does not settle at a settlement conference. If you need to take other steps--like filing a motion there is a fee again for that--I think around $50. None of these amounts are terribly large--though still thrown away if you are unlikely to recover.

      The evidence you will need to lead is all of that information necessary to prove your case (how is that for stating the obvious). You will need to prove your contractual relationship with him. Prove to the Court what the deal is. Prove what he agreed to pay. Assert that he did not pay. He will have the right to rebut that statement. Then ask for judgment. As you are the plaintiff you have the burden to prove all of the elements of the relationship and that he owes you money. It is basically a contract case so you need to prove the breach of contract.

      Should you "trick" him. I don't like that phrasing and can't encourage that. However, there is nothing wrong with asking him to confirm when he is going to pay you and asking him that in writing. If he responds etc., then fine, it is relevant evidence. The reason people write things is to have a record of it--hence this isn't really "tricking" him.

      Good luck.

      Michael K. E. Thiele

      Delete
  77. Hello,

    I have no written lease with my landlord, the contract is month to month. I gave her notice a month ago that I will be moving out by the end of November so she could apply my last month's rent to November. If she decides to evict me during this period, do I get my money back from her? I have the rent receipts.

    ReplyDelete
    Replies
    1. Hello:

      While I don't have the specific dates from you it sounds like you gave your landlord at least 60 days written notice to terminate at the end of term (i.e. the last day before rent is due for the next term--which is monthly in a month to month). Presuming of course that your tenancy is covered by the RTA a landlord is not permitted to evict you just because you gave notice to terminate. If your landlord evicts you before the end of November--because you gave notice--that would be illegal. You would indeed get your rent deposit back and you could also claim for additional losses.

      However, just because you have given Notice to Terminate does not prevent the landlord from taking "legal" steps to evict you during your notice period. Hence, a landlord may indeed serve you with a Notice of Termination and file an application to the Landlord and Tenant Board for an eviction order. If the landlord wins then you may be evicted sooner than your notice period at the end of November. If this happens, a landlord is still required to account for prepaid rent and the rent deposit. The landlord does not just get to keep the money. However, a landlord may be entitled to additional costs for the application plus any damages that the Board awards to the landlord (presuming they ask for compensation in the application). These amounts, if the landlord wins them, can result in any rent refund that you would otherwise get being used up.

      Good luck.

      Michael K. E. Thiele

      Delete
  78. Hello,

    My boyfriend and I rented an old farmhouse with a written lease for 1 year ending July 31, 2014. The Landlord informed us that he was sold the farm and brought the new owners in to meet us in June to assure us that they wanted us to stay on as long term tenants. The new owners were provided with a copy of our lease. Our lease with the current landlord provided that he would be responsible for grass cutting and snow plowing of the driveway. The driveway is approximately 200' long and the grass to be maintained is approximately an acre plus a bit. We contacted our current landlord in July to get the new owners contact numbers because we had not heard from them and were worried because our tenancy terminated July 31st. They told us not to worry. They are farmers and were very busy and would get an agreement typed up for us. They showed up the end of August with the new Agreement. They live too far away and therefore we would be responsible for clearing the driveway and cutting the grass ourselves. The rent would stay the same. Since this would entail us having to put out a large amount of money to obtain a lawn tractor and snow blower, we asked if they would allow us to use the 30' x 72' shed located beside our house. They were renting the one behind it to another farmer for $100 per month. They had no use for this one. They eventually got back to us and said that we could rent it for $100 per month. While waiting for them to get back to us, we did sign a 2 year lease agreement as is, gave them first and last months rent and post dated cheques for a year. We negotiated some more and it was agreed that we would rent the shed for the 2 years to coincide with our lease and that we would pay $100 per month. They in turn would pay for snow removal for the first season up to a maximum of $600. It was agreed. They also said that they would clean up the shed of all the garbage that the previous owner left. We were to pay 100% of the rent for the shed though even if we didn't have 100% of the use. A new agreement with all the new items was dropped off to us, signed by the landlord on Wednesday evening. They said that they would be back the next afternoon to clean the shed. I signed the Agreement that night. My boyfriend works night so he was not available. Thursday morning my boyfriend and I discussed it and he said that he didn't want them moving the large articles while our stuff was in the shed. It was too easy for things to get broken or vehicles to get scratched. I phoned early morning and left messages on their answering machine and also sent an email not to come and why. They were at the house by 8:30am and were livid that the shed was locked and that we wasted their time. The wife of the landlord is the only one we get to talk to as her husband is too busy. She said some nasty things and hung up. Later in the day she sent me an email and apologized for her harsh words and hoped that we could trust them to let us know if they damaged anything. Anyway, I emailed her first thing Friday morning and said the Agreement is fully signed, could I drop it by their home or put it in their mailbox as I know that they are very busy. I got a phone call from the wife again Friday afternoon at 2:30 saying that they had changed their minds and we could only have the shed until July 2015. My question is do they have the right to change this again after we had all signed the first revision of the Agreement. I informed her it was done and she did tell me she got my email. Is the new signed Agreement legal even though they don't have their copy yet? The other thing is, we never speak to the landlord listed in our Agreement. There is no mention of Landlord and/or agent. Do we have to talk to his wife or can we demand to speak to him personally?

    Thanks for any information you can provide.

    ReplyDelete
    Replies
    1. Hi:

      I have to say "wow"--what an incredible number of facts and twists and turns. Unfortunately there is no yes or no to the overall thrust of your comment. In fact, there are individual parts of all of this that can be dissected--for example---a landlord is responsible for maintenance and can not shift that responsibility to the tenant as a condition of the tenancy--though they may contract separately with the tenant for the service to be provided. Whether or not you have a new tenancy agreement is interesting as your old tenancy agreement never actually expired notwithstanding that the "term" of that first tenancy agreement did expire. A tenancy does not end just because the term of a lease ends. When the term ends, the lease continues on a month to month basis on the same terms of the written lease. Can parties make amendments to existing tenancy agreements? The answer I think is yes, but those changes must be lawful changes. Oddly though, your new tenancy agreement does not purport to be an amendment but instead is a new tenancy agreement. In my view, it makes reading the new agreement a bit more difficult. I would approach the new document as an amendment to the existing tenancy agreement. The things that are in it, that are lawful, are enforceable. Hence entering into a fixed term of 2 years is fine. The maintenance is not. Adding the shed is curious as it changes the nature/scope of the rental unit--I'm inclined to view that agreement as a separate contract from the residential tenancy and treat it more like a parking contract that is separate from a lease and hence not governed by the RTA.

      What makes a binding contract is two parties negotiating, understanding the position of the other party, one of the parties making an offer, which offer is accepted by the other party in exchange for something (normally money). Certain types of contracts must be in writing or be otherwise provable through performance. Many other contracts are enforceable whether written or oral. In fact, under the RTA a contract may be "implied" from the circumstances and need not be written or oral.

      With respect to changing the agreement and whether you have a deal or not. There are ways to spin the facts and I can't definitively promise you an outcome. That being said, I think it is fair to consider a tendered document to be an offer. Once the offer is accepted you have a deal. I don't think anything turns on the document being returned or not. Hence, I think you have a good argument for the terms of the written document (i.e. not July 2015). All that being said, your facts are tricky and I have concerns about how this purported new lease will be regarded in law.

      With respect to who you are speaking with. Ultimately, a party to an agreement may appoint their representative and that is who you would speak with. Insisting on speaking to a particular person may simply result in you not speaking with anyone at all which of course is a problem in trying to sort out the issues between you both.

      Best of luck

      Michael K. E. Thiele

      Delete
  79. Hi Michael,

    I appreciate your advice in this case.

    I am a single senior still working. I am paying a mortgage for my house and to help myself with the mortgage I am renting a couple of rooms that I have in the basement for students. I use part of the basement, I share the laundry room with them and I use the recreation room as a furniture storage. To make their lives easy and for them to be able to study with no interruptions I have organized a kind of dining area downstairs with essential appliances as a bonus. I advertise them as "rooms" for rent. We sign an agreement with each student that occupy a room defining the term, the name of the renter and name of the occupant and the statement that nobody else will be allowed without a written permission. I ask for first and last month rent. Of course I pay the utilities.

    It is happening that a student with a three month contract by the time that the agreement was signed asked for permission to have a visitor one weekend a month. I agreed as long as the visitor doesn't stay more than three days. Well the visitor is almost an additional occupant now. Everyday is coming for extended hours and stays overnight three four times a week. This makes me very uncomfortable because I didn't rent for two, just for one. I pay utilities, they cook, do the laundry, take the shower and I feel abused. I refrain for going down stairs when needing it if the person is there (most of the time) because I don't want to find this person face to face and not be able to say anything because I do not know what is legal and what is not.

    The first week after noticing this situation I talked to the student and asked to attached to the terms of the agreement and that this situation was not allowed, no answer was given. After the second week I met with the student again with a copy of the agreement (they already have one from the beginning) and stayed this is not what we signed for. The student's answer was to breach the agreement and will leave asap and asked for some days to find another place. I agreed on it and advised he has to pay for the other person in the meantime. The answer was NO and the situation has not changed. We are coming to the end of the first month and the only thing that has changed is that the other person is almost 70% of the time in the house. The second room is vacant at this time.

    What to do in this case? What if this couple is going to stay one more month to avoid charges and because the last month rent was already deposit? What are my rights, what is the law that protects me? Thanks a lot.

    ReplyDelete
    Replies
    1. Hello:

      This is an unfortunate situation. From how you describe the facts, I think that your rental situation is exempt from the Residential Tenancies Act. If you share a kitchen and or bath with them then the relationship is exempted under section 5 (i) of the RTA. If your relationship is exempt from the RTA then your relationship is governed by the terms of your written agreement. In this instance, you seem to have a written agreement and you may insist on the terms being adhered to. If the "extra" person does not leave you may wish to consider terminating the agreement. The difficulty of course is that you are relying on the money being paid by this person and terminating the relationship ends the income that you are getting. Perhaps you need to consider which way you would rather proceed with this (put up with the extra person or require the extra person to leave). Which is more important to you?

      Enforcement of evicting is likely something that you can do with the assistance of the police if they refuse to leave your home. Remember that "reasonableness" is always a factor and if you are able to give them notice of your intentions to require them to leave that is preferable. Of course, you would never be required to live in fear or at risk if they behave improperly.

      If you are uncomfortable with asserting your legal position you may wish to consider hiring a lawyer or paralegal to write a letter for your roomer setting out your position clearly and making it clear what legal steps you will take if they fail to comply.

      Best of luck

      Michael K .E. Thiele
      www.ottawalawyers.com

      Delete
  80. Hello Michael,

    Great Blog BTW. Quick question. Visited an apartment, loved it, met with the owners (we met at a bar, a friend of mine was present/witness) of the small building this past Friday regarding renting the unit for Dec 1st. They wanted to meet me in person, we discussed background information and agreed on the terms for rent. One of the two owners of the building wrote on a piece of paper the breakdown of the deposit which is first and last months rent which will include hydro, how to pay them ie cheque e-money transfer, their contact information, address and unit # and at the bottom "Deposit seals the deal. Formal lease to follow" no signatures though. Before I paid the deposit I called and tried to get a better deal on the place, they gave in and knocked a bit off and I gave the deposit through e-money transfer. He follow up with a text "place is your, I will get the paper work started this weekend." I haven't heard from him since Fri, tried texting/calling, no biggie its the weekend but I am worried that they are dragging their feet hoping someone will offer them full price and they will simply give me my deposit back and say too bad we found someone else. Is this possible? Do we have an agreement in place even though I have not signed a lease agreement? What options are at my disposal if this does happen to me? If you can shed some light it would be much appreciated.

    Best,

    Daniel

    ReplyDelete
    Replies
    1. Daniel: A residential lease is a contract. Do you have a contract with the landlord? That is the question. Based on what you have said here I do think you have a contract. You have an offer, acceptance and the exchange of consideration. The essential terms of the lease are clear. As such, I think you have a lease/contract. If the landlord plays games with you and tries to cancel or do something similar that would likely be a breach of contract. You would have the right to sue and possible commence an LTB application requiring the landlord to put you in possession of the premises if the unit is vacant. I suppose there are other possibilities but it is a little much to speculate. If something happens, write again with details and I will try to steer you in the right direction.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  81. I have a question regarding a situation my daughter is in currently.
    There is no written lease agreement in place, rent is paid monthly with a cheque
    She rents the upper floor of a house that has a side door entrance to hallway that leads to stairs upstairs, a door to the basement for shared laundry facilities and another steel door that leads to the landlord's portion of the house on the main floor.
    There is no door with a lock that prevents the landlord from using her steel door entrance to the hallway going upstairs into her apartment as the staircase is open.
    The landlord did state that the attic entrance is in the apartment kitchen and that from time to time they would like access to the attic but would let my daughter know when they would require access.
    This is where it gets a little sticky.
    My daughter works from 8 to 4 every day and the few times she has been late for work or sick at home. the landlord has come upstairs unannounced, resulting in one time my daughter being caught walking the apartment in her underwear.
    Needless to say we want to get our daughter out of the situation and into a place that has more privacy.
    So I have 2 questions
    1) Is this a legal rental unit, without the guarantee of a completely private entrance, we should have noticed this but didn't when we looked at the place?
    2) If she gives notice after being in the unit for 6 months, is 60 days notice sufficient as there was never a signed or oral agreed to length of rental period?

    ReplyDelete
    Replies
    1. Hi: You are correct to ask about the rental unit. The issue isn't whether it is a "legal" unit or not as even illegal rental units are covered by the RTA. The question you need to determine is whether the tenancy relationship between your daughter and the landlord is covered by the RTA. The RTA provides a definition for "rental unit" and that is "any living accommodation used or intended for use as rented residential premises, ..." (s.2 RTA). From what you describe, your daughter certainly lives in space that falls within the definition of a "rental unit".

      The lack of privacy because the landlord can simply open the "steel door" and enter the apartment is not dispositive of the question of whether this is a rental unit or not. Given that landlords are entitled to keys of their rental units there is arguably no more privacy in a traditional rental unit than in one that has this steel door you describe.

      Whether or not the RTA applies is a broad question. Once you identify living space that falls within the definition of a rental unit and rent is paid for it, it is fair to presume that the RTA presumptively applies. You then look to the exemption sections of the RTA (sections 5, 6, 7) to see if the circumstances of your individual tenancy remove it from the RTA. From what you describe I don't see an obvious exemption. Usually in situations where the rental unit is within a house the tenant is required to share a kitchen or bath with the landlord which then exempts the unit from the RTA (s. 5(i)). Take a look through the exemption sections to see if there are any facts (which you haven't mentioned) that may attract an exemption.

      With respect to #2, it appears to me that your daughter is on a month to month tenancy--if the RTA applies. If your daughter is indeed on a month to month tenancy then the legal period of notice is 60 days (s 44(3) RTA) to the end of the monthly term--see section 47 of the RTA. There is also a specified form for giving Notice and that is FORM N9 available on the Landlord and Tenant Board website. You should use this form (if you are prepared to acknowledge that the RTA applies) as it is the proper form and there are notes on the form that will help guide you in completing the form properly.

      Michael K. E. Thiele

      Delete
  82. Hello Michael. I am a landlord renting their own property and I have recently had a problem with my tenant.

    Before we allow any tenant to move in, we explicitly tell them that the room is under a minimum 6 months lease. We also clearly write it in our advertisement of the room that all leases are a minimum of 6 months.

    It has only been 3 months since our tenant moved in, and now they want to move out due to some benign excuse that the weather in Canada is too cold.

    We did not sign a paper lease, however, I do have a cached copy of the advertisement saved on my computer from 3 months ago where it states that all leases are a minimum of 6 months.

    The angle I want to approach this is that by contacting us through the advertisement, they also agree with our terms. This seems reasonable to me because if there was a term on the advertisement that they did not agree with, they simply wouldn't contact us. (ie: if we put no pets allowed, a pet owner wouldn't contact us because they have a pet).

    My question is: If this is binding, how much can we expect to take from them because of the premature breach of contract? From what I understand about leases, if you sign a lease for capital for 12 months but only pay for 6 months of it. You are still liable to pay for the 6 months that you have agreed to lease it for. Does it work the same way for a room?

    Thank you

    ReplyDelete
    Replies
    1. Hi: Speaking only to the question of liability on the balance of a term (i.e. presuming you have a 6 month term) and assuming that the Residential Tenancies Act (RTA) applies to your lease with the tenant. The earliest that a tenant may terminate is at the end of the term. For tenants who need to leave earlier the RTA gives them options in assignment and sub-letting (which may also lead to earlier termination of the tenancy). If a tenant simply moves out without properly terminating the tenancy or without notice then the landlord has a duty to minimize losses (s. 16 RTA) Section 88 RTA speaks to the manner in which compensation is calculated and the rules when a tenant leaves without proper notice. In short, under the RTA, the most you will get for a short notice termination is to the end of the term but you may get less if you fail to minimize your losses. Minimizing losses requires proof of trying to re-rent.

      Hopes that answers your question.

      Michael K. E. Thiele

      Delete
    2. Wow! Thanks for the quick response!

      I've already spoken with them on the option of subletting and the tenant seems completely uninterested in it or just indifferent.

      According to the RTA, I believe my situation would fall under an implied contract. At this point I don't think there's anything I can do to sway or reason with my tenant because they seem completely adamant on simply exiting. I believe the only option I have is escalating this matter to a small claims court.

      In the situation the court rules in my favor, I'm guessing that the tenant will be forced to attempt to sublet the room. In the case that the tenant is unable to find a tenant, what would happen in that case?

      Delete
    3. Hi:

      Based on the limited facts you have provided in the original comment I was trying to dodge the question of whether you actually have a 6 month term with your tenant. Frankly, I don't think you do and the whole "implied" notion is just an argument. While I have no idea what your tenant might say (they may even agree that they are on a 6 month term), I could imagine a situation where the tenant might say that they expected you to require them to sign a lease for a six month term but that you seemed to forget about it. Therefore they were quite willing and perhaps happy to proceed with a lease on a month to month basis. If that story competed with your story (and I appreciate that there are counterpoints and more counterpoints etc.) but if this was how it came out I expect that your would lose. As the landlord, with the control, it is your obligation to set the terms of the contract. Absent a written lease and a clear agreement as to the terms of the lease the "doubt" as to the terms will be resolved in favour of the tenant (in my opinion). It is similar to a contra proferentum argument in contract law--though here the ambiguity includes not only written documentation but oral and implied terms that the RTA makes "valid". That being said, you have an argument and perhaps the tenant will agree or say something else that does not help them or perhaps a Judge will accept your theory. I don't give it much of a chance though.

      With respect to your last paragraph. The tenant will never be forced or ordered to attempt to sublet or assign the lease. The only thing a Court or even the LTB would order is money damages. Hence, if the tenant simply vacates and does nothing to sublet or assign you would be forced to try to re-rent the unit (i.e. mitigate your losses--i.e. minimize). If you were unsuccessful you could then sue the tenant for the rent that you have lost as a result of the breach of the lease and the failure to provide proper or legal notice of termination.

      If I am correct and you do not have a 6 month term then the tenant is on a month to month tenancy. The tenant is obliged to give you proper 60 days notice to the end of the term (which is monthly). Hence, if notice were given today, the earliest that it could be effective is January 31, 2015---presuming a monthly term running on the calendar with rent being paid on the first for the upcoming month.

      If the tenant does not give you a proper Notice of Termination (Form N9), and simply moves out based on an email it is my experience that the Court will translate that failure to give a proper notice into a period of time that the tenant could have legally given at the time. This is consistent with the tenor of the RTA. That period of time will be 60 days--subject still to your duty to minimize losses and re-rent. Hence, if you re-rent before the 60 days you would only get that portion of the un-paid period of time (plus perhaps mitigation expenses such as advertising). If you can't prove that you took reasonable mitigation steps then you could actually get zero.

      If you do proceed against the tenant I would be interested to hear from you about how the Court decided.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  83. Sorry to spam you Michael, but I did some research. So I was going to rent a room in a house where I need to share bathroom and kitchen with the land lord; which makes my case not fall under the RTA. We didn't even sign anything, there is no contract or anything at all written. I gave her 2 cheques on November 28th, 1 for December rent and 1 for a deposit, and she did gave me receipt saying that she received the two cheques. So what happened is, I tried to move on Nov 28th night because the land lord told me that's okay to do so; but when I woke up the next morning, my stuffs from the bathroom I was supposed to be using by myself was all thrown away and land lord replaced the bathroom the way it was before I moved in. I tried to speak to her but she was not at home. So I called her and asked her what happened, she told me that even though I am renting I cannot dictate the place because it's her house. She complaint that she had to clean the bathroom because my hair was all over the place (which I used for 1 night; just 1 night) and she told me that I should not change the bathroom and she likes to keep the bathroom the way it is now. She also told me not to eat in my room and if I want to use a kitchen, I should use one at the basement, not the one on the living room area. So I told her that it's not gonna work and I told her that I cannot move in to the room, and since the rent hasn't even begun yet, I want to take it back. But that's when she got furious and start talking about taking legal actions and she also THREATENED me by saying that she will find out where I work and come looking for me. I understand that she could be frustrated, but the way she treated me, I cannot live in environment like that. So bottom line is,, well it's not covered by RTA and we did not even sign anything. She has my cheques and I have the receipt but the cheque is not issued yet since it's not december yet. Do I have to pay the december's rent to her? She is saying that I need to give 30 days notice before I move out and I am obligated to give her december's rent. what should I do? this lady is so disrespectful I really don't want to pay her any money.

    ReplyDelete
    Replies
    1. Hi: Unfortunately, when the RTA does not apply there are no clear cut rules that we can turn to for guidance---i.e. no legislation. What will govern your relationship is the contract between the two of you. Again, the unfortunate thing for you is that there is no written contract so there are no clear cut terms of the relationship. The negative consequence of there not being clear cut terms also is a problem for your landlord. In the absence of legislation, and further in the absence of a written contract, a court would consider the terms of the contract that are agreed upon that were "oral" in nature. The burden to prove those terms will be on the person trying to rely on the contract. That will be difficult in this case---which I presume will be your landlord trying to sue you. For those parts of the relationship that are not part of the terms of the deal---i.e. not written, never discussed, then reference would be had to the general law if there is anything applicable and as a last resort to common sense and reasonable behavior requirements.

      Certainly, from what you describe I think you are correct that there is no way this relationship is going to work out. Can you just move out and pay her nothing? I think that is a fair interpretation on the facts as you put them. However, she will have a counter-argument I am sure. The question is, will either of you actually sue each other in small claims court over this? I presume that the unlikelihood of a lawsuit is why you are thinking about stopping the cheques you have provided to her as the person with the money is the one who won't do anything. I can't say that you should proceed in this way but from what you describe it would not be unreasonable to proceed this way. If I were to guess how a judge would see it, I think he would give the landlord a bit of money for a few days and that is it. I think it will all come down to a reasonableness analysis as you do not describe any agreement as to essential terms of your contract with the landlord.

      best of luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Thank you for such a quick, detailed, and helpful respond. My family debated for a long time; I could certainly just give the landlord 1 month rent and forget about it; but the way she treated me was unacceptable; she even made racist comments and that was so mean. My family decided that we shouldn't just let her get what she wants after what she did to me. If this means I have to go to the court, well I guess I should then. Anyways, thank you so much for clearing things up. This blog, by the way, is beyond amazing. Thank you! Have a great holiday!

      Delete
  84. Mike,

    I respect this blog as it has helped me understand how things work a little better.

    Here is my situation...
    My Landlord (past employer) I know.. all my eggs in one basket not a good idea, had not only terminated my employment on Nov 21st but also gave me notice to evict the house by February 1st/2015. Tough day for me and my family for sure.

    The landlord and I had no lease or contract. However verbally here are the terms.
    1. 6 months free rent (we occupied the house February 2014)
    2. Rent is $1000.00 per month

    Rent started to be paid ( I have cheques as records) in July 2014. That is only 5 months free. Common for him to change the terms after I move in but because he was my employer I did not want to cause friction.
    note...Since we have resided here we have had to pay for service on the dryer which was $ 209

    You need to know, he wanted me and my family to suffer and struggle as we too are Landlords and rented out our home in a different city knowing the entire process would be a mess for us. Little did he know that we have great friends and they have provided a house for us to stay in and we are settled in.

    We no longer reside in the house and do not want to pay rent for December 2014 and January 2015.
    One... because we are owed another months free rent as we agreed
    Two... He put me and family in a terrible situation
    Three... We no longer reside at the landlords house.

    Your thoughts...
    Thank you kindly in advance

    ReplyDelete
    Replies
    1. Hi:

      There are a number of pieces missing for me to understand exactly what is going on here. The fact that you were employed by your landlord may have triggered one of the exemptions from the RTA as listed in section 5 of the RTA. The first thing is to determine whether you are RTA covered or not. If your tenancy is covered by the Residential Tenancies Act (RTA), then we analyze the issues in accordance with RTA rules. If you are not RTA covered then it is your contract that dictates the terms of the relationship and the ending of it.

      Presuming that your tenancy is indeed covered by the RTA (and you are not a superintendent), then I see the following issues at play.

      1) The amount of your lawful monthly rent is very unlikely to be $1000 per month. It is likely closer to half of that amount but for a precise number you need to get someone who is good with equations--or yourself if you have the patience---to do the math. What do I mean by this? Well, the 6 months of free rent are a discount to the rent. Perhaps its only 5 months, then the math is different but the principle is the same. Take a look at section 111 RTA. That section deals with the impact of rent discounts on lawful rent. If a landlord gives a discount of up to three months then the lawful rent is not affected (section 111(2.1). However, where the discount is different than the one permitted by s. 111 (2)[prompt payment discount] and 111(2.1) [other discount], then the lawful monthly rent is calculated in accordance with the prescribed rules.

      "Prescribed rules" means we have to look at the regulations. In this case, Ontario Regulation 516/06 sections 11 & 12. Section 12 is the one you would have to work through to figure out what your lawful rent is. All I know from looking at the section is that your lawful rent is likely much less than $1000. However, someone needs to do the math. I wonder if the Landlord and Tenant Board has a computer program that you can input the variables to get the number.

      Anyway, the issue of lawful rent is important as you may indeed already have paid your rent and you might be entitled to a refund.

      SECOND ISSUE

      Presuming again that the RTA applies to your tenancy. The landlord does not have a general right to give you a notice of termination. He can't just say get out by such and such a date. The landlord may only terminate the tenancy on lawful grounds as set out in the RTA. The lease ending is NOT a lawful ground of termination.

      So, presuming that the RTA applies, I'm going to guess at a possible basis for the landlord terminating your tenancy that would have been legal. That Notice is a Form N12--Notice of Termination for Landlord's own use---i.e. the landlord wants to move into your home. This is a valid basis to terminate a tenancy under the RTA (see section 48 RTA).

      Unfortunately, it sounds like your landlord did not use the proper form. Further, if he said February 1, then it is likely the wrong termination date as a Notice under section 48 has to be for the last day of a term.

      Delete
    2. However, what is interesting and useful for you is that under section 48(3) a tenant who receives a Notice of Termination under this section can give notice to terminate at any time prior to the date of the landlord's termination date and move out in accordance with that notice by giving the landlord 10 days notice.

      So, what I'm saying is that the landlord's notice to you entitled you to terminate the tenancy earlier and hence your obligation to pay rent ended at the same time.

      The failure to use proper forms, the incorrect termination date, likely make the landlord's notice of termination invalid. Arguably, your right to rely on s. 43(3) is also therefore not permitted as that can only be used in the face of a proper N12 notice. However, I think anyone looking at these facts would say that you relied on certain representations of the landlord about your tenancy and your right to continue occupying the premises. These representations may have been false, but you did not know that and you therefore acted on these representations believing them to be true. I don't think it would be too much of a stretch to argue--on a T2 or in defence of a small claims court case that the landlord's actions amount to harassment and interference with your rights as a tenant. One of the remedies you can ask for is termination of the tenancy as of a specific date--which I think you make the day you moved out. If the facts are as set out I think you have a reasonable chance of getting such an order and hence you would have no further liability for rent.

      If the section 48 basis of asking you to leave does not fit the facts--and he just gave you 60 days notice because he though he could, then I think you can make the same harassment argument and ask for termination as the remedy should the landlord pursue you for the rent to his "termination" date.

      Against, I have to highlight that all of the foregoing presumes that you are RTA covered--if you are not then the analysis is completely different.

      Best of luck.

      Michael K. E. Thiele

      Delete
  85. I am a university student and last year was my first year being a tenant. (And our landlord definitely knew that, and took advantage of that, for example charged us an illegal damage deposit until we started researching laws and fought back). Anyways, so I claimed on my taxes that I paid rent in 2013. In September I received a letter from Canada Revenue Agency that says that they regularly conduct review programs as an important part of the self-assessment tac system, and they request that I provide proof to support my claim of rent paid in Ontario in 2013. (Since I live away from home, I didn't get that letter until now.)
    My landlord provided me with a rent receipt at the end of my tenancy. However, my last name is spelled wrong, when writing out the amount he wrote "fifteee" and then scribbled an "n" over the third "e" (without initialling it as authorization of that change, would he have to initial this mistake?), the address is just the house number and street name (no city or province), and there is a signature, but no written out name of the landlord. Based on the list of what is required on a rent receipt, I chose not to submit this shoddy receipt to Canada Revenue expecting it to be rejected. Instead I requested a letter from my landlord. I dealt with his wife for some reason, who insisted I show her a copy of the letter from Canada Revenue that I received because she was "confused" about what I needed (even though I typed it out for them and laid it out very plainly). Finally I got her to agree to write this letter for me, but it has her signature on it, when on the lease, the landlord is listed as her husband.

    So my main questions:
    1. Is it normal to receive this letter from Canada Revenue? Was it by fault of mine or my landlords (for example, not filing our taxes properly)?
    2. Was I right not not submit the rent receipt I was provided with? Any further information on rent receipts?
    3. Will the letter proving that I paid rent be accepted with the signature of the landlord's wife?

    Thank you in advance!

    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.

Search This Blog

Follow by Email

About Michael Thiele

My photo

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.