Monday, 30 September 2013

What can the landlord really do?

It is not infrequent that I have tenants asking me what the landlord can actually do them.  The question usually arises because a landlord has said one thing or another to a tenant that has frightened them, made them feel uncertain of their rights, and left them feeling concerned that they, the tenant, are about to be evicted.   There is no shortage of misinformation, mistaken information, threats, and ignorant commentary about the power of a landlord.  This article speaks to what a landlord can actually do if they comply with the law.

If I were ever asked what is the most significant or important aspect of landlord and tenant law in Ontario I would say, unequivocally, "security of tenure".   Security of tenure is a legal concept that informs every aspect of the Residential Tenancies Act.  I dare say, every operative section of the RTA is drafted from the perspective of maintaining tenancies and making it a burdensome process to evict someone from their home.  "Security of Tenure" as a feature of our law, mandates that landlords must follow a technical procedure that complies with the Residential Tenancies Act in everything from entering the apartment, to inspecting the unit, to showing the unit, to choosing prospective tenants, to setting the rent, to raising the rent, to terminating the tenancy (voluntarily or involuntarily) and in evicting the tenants.  The law even provides for the "rules" in the event a tenant passes away.

The point of the foregoing is to emphasize that the landlord has very little leeway with respect to the important features of a tenancy (i.e. rent, entry, repair, maintenance, eviction).  The ability for a landlord to be arbitrary with respect to important things is severely constrained by the provisions of the Residential Tenancies Act.  This is important to know as tenants often find themselves facing heavy demands from their landlords.  On the flip side, many landlords think that they should be able to enter into a reasonable bargain with their tenants that the law should reccognise and enforce.  The reality is that many of the private "agreements" that landlords make with tenants are in fact illegal.   Because they are illegal, they are unenforceable and the Residential Tenancies Act provides that any clauses in a lease, or any agreement (oral or implied) that are contrary to the Residential Tenancies Act are void.

Some examples might be useful:  A landlord may not require a tenant to do the repairs or maintenance on a property as a condition of the lease.  This means that you can not require your tenant to shovel the walkway as a condition of the lease.  Further, the law doesn't allow a tenant and a landlord to agree to rent a property for a set period of time----even if a one year lease is signed it will continue on a month to month whether or not the landlord likes it unless the landlord can identify a ground of termination in the Residential Tenancies Act.  Further, a landlord and a tenant may not agree to terminate a lease at the same time as a lease is entered in to.   There are almost countless limitations on the nature of the agreements that tenants and landlords can make.  The lesson for tenants is that you should always get legal advice to see if the clause you don't like is legal.  The lesson for the landlord is that you should be careful about clauses that are important to you and get legal advice to ensure that what "seems" reasonable is in fact legal.

So, what can the landlord do?  In relation to terminating a tenancy and evicting a tenant, it must be remembered that the only person who can enforce and eviction is the Court Enforcement Officer.  The police can't evict anyone under the Residential Tenancies Act nor can the landlord.  The person who attends, to change the locks and physically remove a person is the Court Enforcement Officer (also often called the Sheriff).

The Sheriff, can only enforce an eviction Order from the Ontario Landlord and Tenant Board.  Hence, the Sheriff, will not take a direction from a landlord to evict based on any piece of paper or notice of termination that the landlord drafts up.  The only valid direction to evict comes from a properly issued Order of the Landlord and Tenant Board.

The Landlord and Tenant Board does not make Orders in secret.  If the Landlord wants to get an eviction Order, the Landlord must apply to the Board and the tenant must be given notice of the proceeding.  The tenant will always have the right to dispute the application and to lead evidence to refute what the landlord is saying.  If the tenant did not get notice, or did not have a reasonable opportunity to participate in the hearing, an Order can be reviewed and set aside.

It is important to realize that a landlord may only terminate a tenancy if there are grounds in the Residential Tenancies Act for that termination.  To this end, there are many "urban myths" out there about what is in the Law.  People have heard so many things, for so many years, that many people presume the law to be a certain way when in fact the law is completely different.  Two common examples:  1) a landlord is NOT NOT NOT allowed to terminate a tenancy on 60 days notice just because they want their rental unit back.  The only person who can give a 60 day notice, after the expiry of any fixed term, is a tenant.  A landlord can only terminate a tenancy for reasons set out in the law and the law DOES NOT provide that the end of a lease is a reason to terminate a tenancy nor does it provide that a landlord can ask for their property back because they "want it" back.  2) Another enduring urban myth is that a tenant can not be evicted in winter.  There is absolutely no basis to this myth---and in fact the Landlord and Tenant Board evicts people in winter all of the time.

So, the answer to what can the landlord really do, is that the landlord must follow the strict requirements of the Residential Tenancies Act.  That procedure will afford the tenant an opportunity to present their side of the story to a Judge/Adjudicator.   From experience I can tell you that there isn't a single case where a landlord can say that they have the absolute right to terminate a tenancy and regain possession of a rental unit.  I have seen numerous examples of each of the different kinds of Landlord applications being refused---sometimes because the application isn't proven and sometimes because the Adjudicator decides to exercise his or her discretion to maintain the tenancy.

The laws respecting Landlord and Tenant relations are fairly complex.  It is a mistake to assume that the landlord knows the law or that the answer to the issue is "everyone knows that".  The only way to truly know what a landlord can really do is to get legal advice from someone who practices residential landlord and tenant law.

Michael K. E. Thiele
Ottawa, Ontario

Tuesday, 17 September 2013

Residential Tenants and the Covenant of Quiet Enjoyment

If you have some experience in landlord and tenant matters, or are of a certain age, you will be familiar with the phrase "covenant for quiet enjoyment" and you will operate under the assumption that a tenant, in a residential lease, has the right to quiet enjoyment of his or her property as a term of the lease.   The word "covenant" means a contract, an agreement, or a serious promise.  Hence, a tenant has the benefit of a an agreement to quiet enjoyment of their rental unit.

The words "quiet enjoyment" do not refer to the noise level in a rental unit.  Instead, the "quiet enjoyment" was traditionally understood to mean that the tenant would not be physically interferred with in the rental unit--though under some circumstances loud noise could indeed affect the tenant's physical use of the premises and hence amount to a breach of the covenant for quiet enjoyment.

So what is the point of this article today?  It is to highlight the fact that the phrase "covenant for quiet enjoyment" does not in fact appear anywhere in the Residential Tenancies Act.  What we understand as the tenant's right, is in fact a term that is only implied into rental agreements through the common law, the Conveyancing and Law of Property Act, or sometimes through the written lease document.

Does it matter that this phrase does not appear in the Residential Tenancies Act?  I think the answer is both yes and no.  The "no" part of the answer is because the RTA does provide a tenant with the protection that a landlord shall not at any time during the course of a tenancy "substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it i slocated for all usual purposes by a tenant or members of his or her household" (section 22 RTA).   You can see that the protection of section 22 is similar in nature to the protection afforded by the phrase "covenant for quiet enjoyment" and arguably section 22 is an expression of the phrase that is clearer in meaning.

However, on the "yes" side of the argument, I do find that the phrase covenant for quiet enjoyment has a connotation that is broader and different than the current wording of section 22.  While section 22 is being read and interpreted broadly by the Board; I think it is still fair to say that the phrase "covenant for quiet enjoyment" has a historical and judicial interpretation that is more favourable to tenants and more absolute and what section 22 RTA implies.  

The section 22 RTA obligation focuses on what the landlord does, while the "covenant for quiet enjoyment" was interpreted more as a guarantee that operated regardless of what the landlord did.  In this sense, relying on the authorities that express an opinion about what the covenant for quiet enjoyment means can be useful, still today, in Landlord and Tenant Board matters.

Michael K. E Thiele
Ottawa Lawyer

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