This week has brought some interesting questions about the obligation that a person has towards a roommate or boarder. The rights of a boarder are not likely to be covered by the Residential Tenancies Act. In fact, there are a number of landlord and tenant like relationships that are specifically exempted by the Residential Tenancies Act and those are set out in section 5 of the Act.
The fact scenario that I got this week was from a gentleman, in his 70s, who was renting out the second bedroom in his two bedroom apartment to a roommate. He brought that roommate into the unit to help meet the rent and pay for some of the utilities in the unit. Unfortunately, that roommate has started to abuse him by calling him names, threatening him (verbally) and entering his room without permission even though the understanding is that neither of them would enter each others' room without knocking and permission.
The gentleman who called was increasingly upset by the behaviour of his roommate and he wanted to evict him. What could he do was the question. The fact is, that in this scenario, the roommate is not a protected tenant under the Residential Tenancies Act. This is both good and bad. Because the RTA does not apply the gentleman who called could very quickly demand that the roommate leave the unit on a permanent basis. The "bad" is that there is no framework or established procedure for how you go about getting rid of the non-protected roommate.
Does the gentleman who called me owe the roommate any kind of "fair warning" or notice that he is being kicked out of the apartment? This is a difficult question to answer and unfortunately, the best answer is that "it depends". My analysis of "it depends" turns on the fact that the roommate is entitled to reasonable notice to quit--which means a reasonable notice to get out of the rental unit even though they are not a tenant. This principle has recently been affirmed in a case out of the Small Claims Court called Boudreau v. Landry 2013 CarswellOnt 8895.
The question in non-RTA covered tenancies will be what is "reasonable" notice to quit. How do you define the word "reasonable". When you think about it for a while it becomes clear that a reasonable notice will not be more than the legal notice required to be given to a tenant who is protected by the RTA. Using RTA notice periods as a guide for what is "reasonable" you have 10 days for illegal acts involving drugs, 20 days of other illegal acts, 20 days for interference with reasonable enjoyment, 60 days for landlord's own use--or purchasers own use, 14 days for non payment of rent and 120 days for conversion demolition or repair. Then of course there is also the tenant's notice of 60 days for monthly tenancies.
Notwithstanding the guidance that the RTA provides in its Notice periods; in the circumstances of the situation I've described above I was comfortable recommending to the client that "reasonable notice" was immediate termination and removal from the apartment. In effect, I felt that in the circumstances, zero notice was appropriate. My reasoning was that I could not envision a Court requiring an elderly gentleman to live in circumstances where he was being threatened, verbally abused, and his personal bedroom was being invaded. Presuming of course that the behaviour of the roommate could be proven, I felt that it was reasonable to make the roommate leave immediately without giving him any notice or warning.
You can see that what constitutes a reasonable Notice to Quit is going to be very dependent on the facts of each individual situation. I think the factors that are relevant will include the reason for terminating, the rent that has been paid, the terms of the agreement, whether the manner of termination of the agreement had indeed been contracted for, the behaviour of the roommate, and the prejudice and risk suffered by the actual tenant or landlord owner if the roommate is allowed to continue in possession.
What is clear from Boudreau v. Landry is that the Court will impose significant financial penalties on landowners--who rent out rooms to persons and who have a non-RTA covered tenancy and tenants---if the manner in which they deal with them is not fair, reasonable, and even handed. Just because a tenant does not have the protection of the Residential Tenancies Act does not give the landlord carte blanche to do what they like to that tenant.
If you find yourself needing to evict a non-RTA covered tenant from your property you will find that the Ontario Landlord and Tenant Board is unable to assist you. Your only remedy is to see if the Police will help you in removing the roommate or boarder from the premises and if not, you are left with applying to the Court for a Writ of Possession to be enforced by the Court Enforcement Office (i.e. Sheriff).
Michael K. E. Thiele
Tuesday, 30 July 2013
Kicking out the Boarder or Roommate
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