It always comes as a great surprise to me that many tenants pay their rent in cash. They pay the rent in cash, often forget to get a receipt, lose the receipt, or don't even ask for one. These are very trusting tenants.
I'm often confronted with the cash paying tenant at the Ontario Landlord and Tenant Board. Most often when I am representing that tenant. We are usually defending an application for termination of the tenancy for non-payment of rent. As is my usual practice, we go through each month of claimed rent arrears, line by line. It is in doing so that the tenant swears to me that the rent is paid---paid in cash. That's when I ask the tenant if they have a receipt or any proof that the cash was delivered to the landlord. The answer is often naive and the tenant tells me that the landlord knows the rent is paid. Sometimes the tenants can show a withdrawal of the exact amount of cash from their bank account and we try to infer that the rent must have been paid from this withdrawal. Most often though, there is no proof of payment.
The burden of proof in any application at the Ontario Landlord and Tenant Board is on a balance of probabilities. In a non-payment of rent case, the burden is easily discharged by the landlord who only has to say " I didn't get the rent for X month(s)". The burden then shifts to the tenant to prove that the rent has been paid. How do you do that without a receipt?
The simple answer is that most of the time you can't The Landlord and Tenant Board imposes the proof of payment on the tenant. Without a receipt, cancelled cheque, direct deposit slip, there simply isn't any evidence of proof of payment. Of course, a tenant's own testimony is evidence, and perhaps there is a circumstance in which the adjudicator would prefer the tenant's oral evidence that the rent was paid over the landlord's oral evidence that the rent was not paid. However, those instances are very few and far between.
Tenants who pay cash, and who don't keep their receipts, risk having to pay the rent twice should the landlord deny receiving the rent in cash. This is profoundly upsetting and quite expensive for tenants who are often paying the rent in cash because they can't afford a bank account or because the landlord insists on getting the rent in cash.
Tenants should be aware that a landlord can not insist on getting rent in cash. Even if a tenant gets a receipt, it is better to pay the rent in a form that is traceable. Direct deposit, cheque (get copy of cancelled cheque), money order, all of these are better than paying in cash. A lost receipt for cash is as bad as never getting a receipt in the first place.
Wednesday, 7 November 2012
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