Thursday, 4 April 2013

My Apartment isn't Ready on the Move in Date!

When moving into a new apartment tenants presume that the rental unit will be ready for them when they arrive in their rental truck--all set to take over the unit and get settled.  Sometimes, this process does not go as smoothly as one would hope.  The problem, most often, arises when an existing (sitting) tenant, fails to vacate the unit in accordance with the lease end or a notice to terminate.

Why is there sometimes a moving problem?  While a tenant who has terminated a lease must move out by midnight of the last day of the term (usually the last day of the month), it is often the case that the new rental unit they are moving is not available until the first of the following month.  This means that moving out on the last day of the term will leave the tenant without a home for one evening.  Often this problem is solved by the tenant simply not moving out on the last day of the month but instead they wait until the following day to vacate.  When this happens, and the rental unit has been rented to a new tenant, you can have a situation where the old tenant is literally moving out while the new tenant is moving in.  In these situations, landlords are often not doing any work in the turnover (paint, clean, repair, maintenance) and often there is no move in inspection done to determine the condition of the unit when the new tenant takes over.  Nevertheless, these overlaps usually resolve themselves through cooperation and people just trying to get along and out of each other's way.

The more significant problem occurs when the tenant who was supposed to move out--fails to move out at all.  In these circumstances, the new tenant arrives at the rental unit only to discover that they can not move in and that the sitting tenant is refusing to leave altogether.  How long will it be before the sitting tenant is forced to get out?  The answer is that unless they move out voluntarily--it will take the landlord several weeks to file an application with the Landlord and Tenant Board, get a hearing, and get the sheriff to enforce the eviction---presuming that the landlord wins!  If you find yourself in such a situation it is reasonable to expect extended delays to the point that it makes more sense to find a different place to live (unless you are satisfied by representations from the landlord and sitting tenant that the unit will be available shortly).

What about the financial consequences for a new tenant, who has packed their worldly possessions into a rental truck (that likely has to go back tonight), and now has no place to live.  Who is responsible for these costs?  The answer to this question varies depending on the specific circumstances of each situation.  One of the first places to look is in the offer to lease and the lease itself.  Often times, a landlord will include a clause in the offer to lease or the lease itself that delays the commencement of the tenancy to the date that the unit is vacated by the sitting tenant.  There are different versions of these clauses---with varying degrees of effectiveness.  The point is that the landlord is seeking to transfer the risk of the sitting tenant not moving out to the new tenant moving in and thereby shifting the financial losses suffered by the new tenant to that tenant.

Sometimes, the lease, the offer to lease, or any of the paperwork surrounding the creation of the tenancy says absolutely nothing about a delay in the commencement of the tenancy.  Sometimes the paperwork--or the oral or implied understanding--is clear that the tenancy begins on a fixed date without excuse.  If the apartment is not ready or available under those circumstances there is a greater chance that the new tenant can recover the immediate financial losses they suffer from the landlord.  This would normally be done in a claim in the small claims court if reasonable terms of settlement can not be worked out with the landlord.  Good landlords will recognize the predicament that their new tenant is in and often will try to make good for the unfortunate circumstance.

Whether or not a landlord is liable for failing to provide a rental unit, on the date stipulated in a lease (oral, written or implied) depends entirely on the circumstances.  Even if there is no clause limiting liability if a sitting tenant does not move out, you still have to analyze why the unit is unavailable.  For example, if the night before the new tenant was to take over the unit the building burns to the ground, it is fairly clear that the landlord becomes unable to perform the lease contract and hence it is impossible to deliver the unit described in the lease.  If your circumstance is similar to such a situation it is possible that your contract is "frustrated" (see frustrated contracts act).  This act applies in the Residential Tenancies context and as a result you may find that there is no remedy for your particular situation.

Another avenue to consider, and depending on the circumstances, is an insurance claim if there is a tenant's policy in place.  If the unit is unavailable due to flood, fire, or some other event, it is possible if a policy is in place for the insurer to provide temporary accommodation under the provisions of the tenant policy (most tenant policies contain terms that provide for temporary alternate housing in cases of emergency, repair, etc.).

All of this being said, if you have the experience of your unit not being ready you may wish to consider  in the future to provide for this possibility when signing a new lease.  There is nothing that prevents you from clearly setting out the consequences for the landlord if he, she, or it fails to deliver the unit.  Of course, the landlord would have to agree to such conditions.  Alternatively, maybe you plan to move to the new place a few days after the first of the month.  This will allow the landlord to do some work, but also give you the comfort of getting the keys, looking around, and then move when you know that you are in possession of the unit and are satisfied with its condition.

Michael K. E. Thiele
Ottawa Lawyer
QTMG LLP

18 comments:

  1. Hey!
    Thanks so much for taking the time to make a post about this. In my particular situation our lease states move in date as april 1st. We were told a team of people would be cleaning/painting etc. at 9am that morning. We showed up at 2 to move our things in and nothing had been done/no one was there. We called the landlord who stated she went in at 9am and saw it would be a few days worth of work and asked us if we could move in 3 days. We were pretty disappointed she didn't call us at 9am when she figured this out as we were now at the apartment with organized help. So we moved in our stuff(boxes and bags) and left it in piles in the middle of the floors. We had gone with a property management company because they told us there wold be around the clock care. They have had 1, single man working 5 hours a day who works very slowly painting over dirty walls that haven't been cleaned. The apartment is filthy but they've had no one in to clean it yet. The smoke detector isn't working and that is the first thing that should have been replaced at 9am April 1st. We asked nicely to be reimbursed for the days we can't really move in or live there (ie: have it off of next month's rent) and the only reply after more than 24 hours was that we could end our lease so they could rent it to someone else. As students in our 20's we kind of feel taken advantage of.

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  2. I wrote this blog as a response to a specific request and comment from a reader. The comment section of this blog program doesn't allow me to respond privately to you. Given that your comment contains specific information about your personal situation I will not publish the comment without your specific consent. That being said, if you would like to discuss your situation in a private forum please feel free to contact me at ontariolandlordandtenantlawyer@gmail.com or my office email at mthiele@pqtlaw.com

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  3. This is a really good read for me, Must admit that you are one of the best bloggers I ever saw. Thanks for posting this informative article.

    Move In Move Out Cleaning

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  4. Hi Michael,
    I am a landlord and I have rented out my house to a tenant for the last 5 years. We have always been in excellent terms. In December last year I emailed him to notify him that I intended to terminate the lease by April 30 as I planned to take my house back and sell it. I did not use the N12 form, thinking it would be rude to communicate with such a form, and that giving 4 months notice is plenty and a good courtesy. That was a mistake. Now he refuses to move. Question: Is the N12 absolutely necessary?

    Thanks

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    Replies
    1. Hi: There are two issues in your comment to me that need to be addressed. The first is your ability to terminate the tenant's lease. A tenant has security of tenure. This means that the tenant does not have to move unless there are specific grounds under the Residential Tenancies Act that allow you to terminate the lease and require the tenant to give vacant possession. Even if there is a basis for termination the Landlord and Tenant Board retains a discretion under section 83 of the RTA to refuse termination. The law tends towards preserving tenancies and not evicting people so you can expect that the Board will not terminate if the tenancy can be maintained.

      You describe the basis for obtaining possession of the house for the purpose of selling it. This is not a lawful reason to terminate a tenancy. You would never be successful in terminating the tenancy on this basis whether or not you used the N12 form.

      The sections of the RTA, from which the N12 form is derived is section 48 (Landlord's Own Use) and section 49 (Purchasers Own Use). You can only obtain vacant possession for a purchaser if you have entered into an agreement of purchase and sale and the purchaser in good faith wants vacant possession for his residential occupation of the unit.

      You are probably thinking what a great many landlords are thinking. I want to sell the property and I want to make a good return on my investment in the property. To get that great return you need vacant possession so that you can do some repairs, perhaps a few cosmetic renovations, paint, and spruce the place up. This seems like a very reasonable thing to want to do. The short answer is that the Residential Tenancies Act does NOT allow you to evict a tenant for this purpose. There is no form of any kind that allows this to happen.

      If the applicable circumstances that would allow for the service of an N12 exist then to answer your last question; yes you must use the N12 Form. Similar notice in an email is not going to be good enough. If you email contained all of the information that the N12 Form contains then you might have a substantial compliance argument but that is such a long shot that I wouldn't bother to try. The likelihood of your email containing all of the information of an N12 is extremely unlikely (cause if you were typing all of that information you would have just used the form).

      Hope that clarifies things for you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Michael, thanks for the detailed reply. That's exactly the information I am looking for. Much appreciated!
      Another follow-up question: If my reason for taking the house back is for myself to live in, is there a required period that I have to live there before I am allowed to sell it?

      Ben

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  5. My questions is about exception on Annual Rent Increase Guideline in Ontario. I am renting a detached 2 storey house which was build in December 2011. I read in the Web that "The provisions of the RTA that deal with the maximum amount by which rents can be increased do not apply with respect to a rental unit if it was not occupied for any purpose before June 17, 1998"
    Does it mean my unit which was build in December 2011 is exempted from this rent increase guideline?
    Thanks

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    Replies
    1. HI: Yes, that is correct. The landlord must still comply with the other requirements pertaining to rent--i.e.no more than once every 12 months, provide proper Notice on the proper form. But with respect to the annual guideline increase amount your rental unit is exempt from the cap that the annual guideline increase amount represents due to it being newer construction.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. Hi Michael, super helpful information here! I am in a similar spot at the moment in that we signed a lease, and the current tenant has not moved out. We had to go into a hotel (we are homeless) and cancel the movers. We could easily just walk away to a different rental, but the current landlord has our 1st and last months deposit. Can he refuse to give it back? And who is responsible to pay our pricey hotel bill for those days we were homeless?
    Thanks!

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  7. We recently discovered that our bedroom door lock requires a key to open. All the other doors do not require a key. Our landlord never gave us the key and it accidentally locked. We tried everything to open it, however at the end needed to call a locksmith, who had to cut the lock, because he was unable to pick it.

    Our landlord refused to pay the locksmith and also did not have the key for the lock. We called and asked for the key when it got locked. Whose responsibility is it to pay?

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    Replies
    1. Hi: This is a matter of argument as there is no specific section of the RTA that speaks to the locking of internal doors in a rental unit. In my view the landlord is responsible for the cost of the locksmith. It is, in my view, a maintenance issue.

      Good luck
      Michael K. E. Thiele

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  8. Hi! I just came across this wonderful blog and I am hoping you can help.

    I was given a form N8 to end my tenancy because of late payments. I was late regardless of the reasons. The termination date was for March 10/16, which would be very difficult in Northern Ontario to move at that time...for both the weather situation and the fact that it is extremely difficult to find available apartments....nobody moves in the winter!! I talked with my landlords (a couple and their son) and they agreed to give me more time. We signed a form N11...I would move out by May 31st/16. My question is this....

    -Am I allowed to move sooner than the N11 date and not have to pay rent past the date that I move?(March 15th) Why should I have to pay rent when I no longer live there? Especially when they are evicting me.

    -Because technically I am still being evicted, do I have to give 2 mths notice if I have found a place? It is them giving me notice isn't it?? That I have until May 31st "or before" to move. I have found a place and am moving March 15th. I found the apt and gave notice both on Feb 13/16(don't ask me how that happened because I was not expecting it. The apartment pretty much fell into my lap).

    -Before the N11 was signed(Jan 14th), my landlord's son "suggested" that if I pre-paid rent one or 2 mths at a time, they "might" be conviced to change their minds and let me stay - I know - stupid, but I was desperate and gave them March's rent in advance. I do have this in voice recordings.

    Because I am moving on March 15th and gave notice on Feb 13th, can I get any of that rent money back (I also have my last mths rent in that mix as well). I feel that they owe me back 1 1/2 mths rent....they are evicting me, so as long as I leave "on or before" the termination date, I shouldn't have to give any notice. Right?

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    Replies
    1. Hi: What a mess. Unless your tenancy runs from the 11th of one month to the 10th of the following month the N8 that you were served was never a valid Notice of Termination. In order to be valid it needs to provide you with a minimum of 60 days notice and be for the end of term. In the vast majority of tenancies that means the last day of a month. I'll assume that you are on a monthly term and that your N8 was void.

      A void Notice of Termination is not a legal Notice of Termination and is unenforceable. It is possible to argue that you relied on a void Notice of Termination but that is certainly not a given. It is a fair comment to say that you were not subject to eviction based on this notice. If your landlord had applied to the Landlord and Tenant Board on this Notice of Termination the application would have been dismissed.

      If the Notice of Termination was not void, the chance of being evicted was still quite slim. The normal Board Order, based on an N8 for termination for persistent late payment of rent is an order requiring you to pay in full and on time for 12 months. Eviction would only happen if you breached. At that hearing (presuming a valid Notice of Termination) you could have asked for an extended termination date and could have asked for the ability to give short notice.

      However, none of that happened. Instead you signed an N11. This is an agreement to terminate as of a specific date. The N11 is premised on its own section under the Residential Tenancies Act. It isn't linked to the N8--even though you got to the N11 because of the N8 (maybe your landlord figured out that the N8 was void and hence offered an N11 to you).

      The N11 stands independently and you are not being evicted because of it. You have agreed to terminate your tenancy. There is no right to terminate earlier. To terminate earlier you would need to give legal notice. Perhaps if you have something that says, or a recording that says, the N11 was executed on the basis that this would be the latest date you would leave you could make the argument. However, the N11 form will not support that argument--you will need something aside from the form if the facts support this argument.

      I appreciate your perspective and how you are seeing this. Unfortunately, I don't believe that the law is with you on this. You jumped the gun by not reading the notes not the N8 form and by signing an N11 form. Your best bet is to negotiate with the landlord and get an agreed termination that is earlier than May 31 to move.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hello there, when I went to look at the Unit. My landlord showed me a model unit. It looked very nice and up to date. (I am a carpenter so I know what is up to date in housing.) So I put down an initial deposit to lock in for the year. I got to my Unit on the first day of my lease and it was like stepping into the 60's old interior,chips everywhere, holes in the walls and in the doors, nails and screws sticking out of the walls, holes in the window screens. the trim wasn't anywhere near the same. it was old and popping off the walls. basically a nightmare rental. My wife cried. I just want my initial deposit back and I will leave. How can I get it back?

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    3. Hi: This sounds like a bait and switch scam on the part of your landlord. If you are in a position to leave then you have a choice to make. Do you just leave and fight it out in Court/Landlord and Tenant Board or do you stay in the unit until you get the tenancy terminated or win a Court Judgment? A question you have to ask yourself is whether you are prepared to stay in the unit under any circumstances. If the answer is no, then go ahead and leave and it will be a matter of letting the chips fall as they may. Before leaving though you should make sure to take a great many photographs of this "1960's" unit and all of the damages, holes in walls etc.. The landlord will certainly not admit to this condition in any proceedings. Make sure to take close up photos as well as far away photos that give a sense of the entire unit and all of the walls and spaces in context. Video is also very useful. Don't just focus on the damage spots because that fails to give context to the condition of the entire unit.

      The quicker way to proceed is to file an application to the Landlord and Tenant Board. This of course assumes that the landlord refuses to give you your money back. An application to the Landlord and Tenant Board would ask for money back plus an award of all of your expenses. The theory of the case is that the landlord did not rent you the type of unit that you visited. You were renting Nice Unit and instead the Landlord rented you Rotten Unit. The Landlord signed a lease with you for Rotten Unit while you thought you were signing a lease of Nice Unit (based on landlord's representations). There are a few ways how to characterize the misrepresentation as either a negligent or fraudulent misrepresentation or even to characterize it is as a lack of the "meeting of the minds" (the latin phrase is "consensus ad idem") which is essentially to contract formation. A meeting of the minds occurs when the contracting parties (in the view of an objective bystander) understand the essential terms of their contract. It would seem that you and the landlord certainly had a different view of the kind of unit that was being rented.

      Of course, this is all subject to proof and you might find that the landlord vehemently denies that there was any misunderstanding at all.

      While I am quite sure that the Landlord and Tenant Board would adjudicate this issue another question is whether the Small Claims Court would entertain the claim. As the argument is that no valid contract was entered into there would be no tenancy agreement in these circumstances. The Small Claims Court might then entertain the claim. The Small Claims Court is a better Court to be in if you want to be able to retain a lawyer or paralegal to assist you as the "winner" in the lawsuit will also get a contribution towards legal costs (whereas at the Board you get no legal costs even if you win). If you are thinking about hiring a paralegal or lawyer consider asking them about going to Small Claims as opposed to the Landlord and Tenant Board.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  9. Hello, my landlord decided against a lease because he doesn't want me to claim the full rent amount, this happens a lot in my area, so I had him sign a receipt staying that I paid my first & lasts months rent & planned to move in on June 30, 2016. The landlord called me over on June 29, 2016 and I had assumed it was to get the keys but instead they told me a pipe had burst a few days ago and now there is mold so they will not let me move in. I already gave the proper notice to the current landlord that I would be leaving by July 1, 2016 but now there is no apartment for me to move into and they won't give me a move in date. They offered to return my deposit but I still have nowhere to go & I still want this apartment. What can I do to find out when I can move in and what I can do about being homeless until then? Is there a deadline for them to tell me when I can move in? I have no idea what just happened.

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  10. Hello
    I only have one question I can't seem to find the answer to on my own.
    What is the proper amount of time a landlord should give a future tenant a heads up that the unit isnt ready prior to move in?

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    Replies
    1. Hi: In my opinion the answer is asap. If you know that the unit will not be ready then it is incumbent on you to inform the future tenant. Your lease/agreement to lease will be very important if you have contracted to provide vacant possession of a unit to the tenant as of a certain date. If the lease does not address the possibility of vacant possession not being provided (i.e. current tenant does not move out), you may find yourself (if you are the landlord) liable for damages to the future tenant.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

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

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About Michael Thiele

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