Friday, 21 February 2014

Tenant: How to terminate your apartment lease legally


I'm pleased to publish today an Article written by my assistant Heather.  As you have seen in prior Articles, Heather has developed a keen interest in Landlord and Tenant Law issues.  I'm pleased that she has written about how a tenant terminates a tenancy, legally, as far too many tenants still think that their tenancy automatically ends after a fixed term expires or that a simple phone call will do the trick.  As Heather discusses, termination of a tenancy, by a tenant, engages a formal process under the Residential Tenancies Act and a tenant is required to comply strictly with the law just as a landlord is required to do.  Thank you Heather for your interesting piece.  Michael K. E. Thiele
 
No-Fault Termination: A Tenant’s Notice of Termination by Heather Campbell
 
When you think of providing a “Notice of Termination,” there is distinct undertone of negativity, or if you’re in the least bit nerdy like me, you think of Arnold Schwarzener as a half-man half-robot. However, unlike Arnold, when a tenant gives a landlord a Notice of Termination, they are not planning on coming back. 

Life has a way of taking us to places that we never thought we’d go, especially at times when we are not at all prepared for such a substantial shift. Recently, a friend of mine gave me a call with just this type of situation.  After completing a university degree in English at Carleton and a college degree in the Library Technician program at Algonquin, she had been accepted to a Masters Program in Library Science at the University of British Columbia. The catch, she would be starting in the winter semester, meaning she had to be out of Ottawa and in Vancouver in less than three months.  As a result, she would need to give her landlord notice that she was leaving and she needed some guidance on what needed to happen and how to do it. So, I figured I would write a blog to share with you, in general terms, what I was able to share with her about tenants giving a Notice of Termination.

First things first, when a tenant is considering giving their landlord a Notice of Termination of Tenancy, you’ll need to know what type of tenancy you have. For the sake of this blog, there are two general types, a fixed term tenancy or a month-to-month tenancy. A fixed term tenancy generally occurs for example when you begin a new tenancy and sign a lease for let’s say a one year term.  If you have signed a lease agreement and the original term in the agreement has not passed or if it was formally renewed, then you would likely have a fixed term tenancy. In the alternative, if the original term in your lease has passed and no steps were taken to renew the lease, you’re likely on a month-to-month tenancy.

Now for the big question, why does it matter what type of tenancy I have? For the answer, we look at Section 47 of the Residential Tenancies Act (RTA) which deals with tenants giving Notice to Terminate. Under the RTA, a tenant can give the landlord notice to terminate the tenancy at the end of the period or term of the tenancy (Sec 47). This means, if you’re in a fixed term tenancy, if you’re giving your landlord notice you’re leaving, you would have to wait until the end of your rental term to actually move out. For example, if you’re 9 months into a 12 month tenancy, you would have to give notice for the end of the 12 months. In the alternative, if you’re currently living on a month-to-month tenancy, then your end of term is considered to the end of the current month. If you need to terminate a fixed-term tenancy before the term ends, there is a process of that, however that is a whole other blog.

In the case of my friend, thankfully her tenancy was month-to-month so she was able to give notice right away. However there is a distinction between the date for notice and the date for termination. For an explanation we turn yet again to the RTA but this time we look at Section 44. Section 44 (1) looks at notice and termination periods for daily or weekly tenancies, under that section a landlord or tenant must be given at least 28 days notice before their tenancy is terminated under a Notice of Termination. In other words at least 28 days have to pass between the termination date on your Notice to Terminate and the day the landlord is given the notice for daily or weekly tenancies. Section 44 (2) looks at notice and termination periods of monthly or month-to-month tenancies, under this section a tenant wishing to terminate their tenancy would have to provide a landlord with at least 60 days notice. 

To go back to my friend, her flight to Vancouver was set for December 28, 2013. Up to that date, she would need access to her apartment. Given that she was on a month to month tenancy, the best termination date for her was December 31, 2013, as a termination date has to be at the end of term in this case the end of the month (Section 47). So now she had her termination date, she needed to know when she would have to give her landlord notice and how to do it. After looking at Section 44, she now knew she needed give her landlord at least 60 days notice, so now all she had to do count backwards. As a side note, the RTA and Landlord and Tenant Board have specific requirements when it comes to giving/ serving Notices, so you need consult the relevant sections to make sure you are counting any extra days that may be required based on your form of service.

My friend had a really good relationship with her landlord and wanted to give them as much notice as possible so she decided to give more than the 60 days notice required. Now all she needed now was to know how to give the notice. Section 43 of the RTA deals with what must be included in a Notice of Termination. The Landlord and Tenant Board has a form specifically for Tenant’s to use when giving landlords notice of their intention to move out, it is the N9-Tenant’s Notice to Terminate the Tenancy form. It is available from the Landlord and Tenant Board or can be downloaded from the LLTB website.

Section 43 states that all Notices of Termination shall be in a form approved by the Board. There are cases with other types of form have been accepted, however, save yourself a headache and just use the N9 if you are a tenant looking to end their tenancy. Again, giving the notice to the landlord (also known as service or serving) must be done in accordance with the RTA and Rules of the Landlord and Tenant Board, so please consult the relevant documents depending on your individual situation. Regardless of how you choose to serve the Notice, it is always prudent to complete a Certificate of Service, which is provided by the Landlord and Tenant Board. The Certificate of Service is used to prove that you have provided the landlord with the Notice should any issues come up and the matter proceeds before the Landlord and Tenant Board. This should be done right after serving the N9.
If you look at the N9 Form, Section 43, 44 and 47 of the RTA, there are many more issues that relate to tenants giving notice and situations and consequences of giving a landlord a Notice of Termination of Tenancy.  All of which, are unfortunately more than can be dealt with and explained in a blog. So if you have specific questions, please feel free to leave comments or to seek legal advice. I hope this blog has shed a little light on tenants giving notice to end their tenancy, and useful should you ever find life leading you on to new adventures.

37 comments:

  1. Very informative and well written. I don't think Heather is going to be an assistant for long.

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  2. Very interesting and motivating blog. Helped me a lot. Thanks for sharing !

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  3. Hi hope this finds it's way to you because I am in need of some big help.
    What are my rights of a tenant who resides in Ottawa? Here is what has happened.
    About 6 months ago my husbands work that he was at for many years was going bankrupt..prior to us knowing his paychecks were becoming less and less with promises that it would be in next week...next week went on...so we fell behind in rent. None the less my Husbands other employer said instead of us getting evicted would the property management okay the idea that he pays the rent and in turn we pay him until we get on our feet. They agreed to this. Now what has happened it...the other employer who was paying rent has said to property management..they are okay now and on their feet as my husband has a good new job etc..so I turn it over to him. Just starting this month we were told that rent is paid in full nothing owing...so we just figured that the boss paid it in turn we will pay him...so then we wanted to pay for May 3 weeks early and sign a lease...they said...well we can't take payment until the lease is signed and that has to be agreed with the Landlord that she will let you sign one. So this has gone on waiting on her decision....then we found out that actually Aprils rent was paid with our last month rent. For three weeks we kept getting the run around about a lease and then we started to get scared because their attitude started to change saying well...maybe you should look for a place as owner doesn't seem she wants you to live here due to that last time you were late on rent. So I went over their heads and contacted her....she was a bit confused asking what I was talking about and if I paid the rent for April..I said...yes...they said all is paid in full. After she contacts the management she tells me...well if you find a co signer and you are in charge of the rent not your husband because the property management doesn't anything to do with your husband...... Now this got me thinking....is there something up? I figure they want me gone in a week without notice...never told me it was the last month rent...not excepting money for May...saying I didn't even pay Aprils rent...as the landlord stated they said I didn't pay April that is why they took the last months...how is that possible when all we have been trying to do is give them money and they do not except? What should I do? I can't just pack up a family of 4 with no where to go.
    Please help ASAP.

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    1. Hi there. The information you provide is a bit confusing. What I understand is that you fell behind in rent because your husband was having difficulty with getting paid by one of his employers. Your husband's other employer (a second job) said that they would cover your rent so you would not be evicted. The deal is that you repay your husbands second employer--which has nothing to do with the landlord. The last you are told, all the rent is paid up. Which sounds like it is to the end of April 2014. What you were not told is that your husband's second employer did not pay the April rent but instead the landlord was applying the Last Month's Rent deposit to the month of April 2014. Without being told that, you have tried to pay the May rent but have been refused. From your comment I infer that you have a written lease that ends April 30, 2014. You have tried to negotiate a new lease for May 2014 but have had no success as the landlord and the property management company are imposing odd conditions.

      Hopefully the above is an accurate summary of you situation and what you have told me in your comment. If so, I think that you are operating under a serious misunderstanding about the law---and it sounds like your landlord is taking advantage of your misunderstanding. In Ontario, a fixed term lease--AUTOMATICALLY RENEWS--upon the expiry of the term. You DO NOT have to negotiate a new lease. The landlord is NOT ALLOWED to ask you to leave because the lease has expired.

      The issues with paying the rent and the problems you have had are quite frankly your business and not the landlords. The landlord has received its rent and that is all it may require. The landlord can not now ask for co-signers or impose additional terms on you. You are in possession, you have a lease, your lease continues automatically on a month to month (without the need to sign anything), and the terms of your month to month lease are exactly the same as the terms in your fixed term lease. This means the rent stays the same (unless you received a legal N1--Notice of Rent Increase).

      The landlord's refusal to accept your rent is unfortunate. I hope that you are able to save the rent money as eventually you will have to pay it. If you can, go ahead and buy a money order for the rent amount. It will be handy to have proof that the money order for rent was bought before the rent was due. Also, be ready for having to pay the April rent (as the Last Month's Rent deposit should not have been applied yet). Eventually the landlord will have to file legal paperwork to try to evict you and the only way the landlord can do that (on these facts) is to try to evict you for non payment of rent. As long as you have the rent money--the law will always give you an opportunity to pay the rent that is owing and allow you to stay in the apartment.

      As I said, I think your misunderstanding about the law is causing you a great deal of stress. Please understand that Ontario law, and any tenancy subject to the Residential Tenancies Act, provides you with a great deal of security of tenure (meaning the legal right to stay in your rented home).

      Given that your landlord is actively misleading you (seems that way to me), please consider getting legal advice from a local legal aid clinic, lawyer, or paralegal experienced in this area of the law.

      Best of luck.

      Michael K. E. Thiele

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  4. I failed to mention..for further detail...the sheriff did come and lock us out. At that point the third party gentle men offered to pay the balance that was owing in full as long as we can stay in the unit. They agreed. He signed a lease and he paid the rent in turn we paid him. Due to other commitments he was no longer able to do this and his lease was canceled. He felt that since his new job was stable and there was no issue with pays we were able to look at this on our own. My husband then called the first week of April to go down to pay the rent. They informed him there was no money owing. There was no mention at that time that it was last months rent being applied so we offered to pay Mays rent 3 plus weeks in advance. To show them good faith. At that point they refused and said the owner of the property would have to okay a new lease. Several weeks went by we were told by one of the property managers that it looked like the owner wanted a brand new start and we should possibly look for another place. Do to my panic I went above the property management and contacted the owner myself and pleaded to her if we can stay I will try to get a co signer as I felt I was being thrown out by next week. I even pleaded that I will continue the removal of snow in winter and do the landscaping in the summer..without looking for anything in return. She was unaware any of this was happening. Over a period of a few days she told them to accept a lease on our behalf with April payment as well as My payment due on the first of May. We were then told a co signer will be require. She told me that The owner of the property company is furious with her for allowing us to sign a lease because he does not trust my husband and feels a lot of anger towards him. I do not work at the moment yet they want me to be the one to sign the lease. Is a co signer still allowed.

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    1. Thank you for writing again. Your situation certainly is unique. The fact of having your tenancy terminated and being evicted by the sheriff certainly puts a different spin to the case. In fact it changes things completely. If I understand correctly now, after your eviction it was your husband's boss that signed a new lease and you lived in the place and paid him? If this is correct, it raises an interesting question about whether your original lease was in fact terminated. All that being said, I think your situation is a little beyond my general comments in a blog like this.---i.e. your circumstances don't lend to a simple solution. Given the risks to you it would be ideal if you could meet with a lawyer or licenced paralegal to discuss your situation. Best of luck.

      Michael K E. Thiele

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  5. Hi Michael, thanks for this blog and the opportunity to ask questions. I have a scenario for you. I had signed a one year lease until September 30th 2014 but have a new job opportunity that requires me to leave my lease early. I presented the landlord with this by email and they agreed to let me out of my lease for June 30th asking that I pay a fee for the advertising of the apartment. I thanked them and wrote back to ask if they would like a cheque for the advertising amount and to clarify if June would be considered my last month's rent deposit; they then said they would keep June's rent cheque to cover their costs of re-renting the apartment including the advertising fee. They then returned my cheques for June, July and August. I emailed inquiring if June was given in error, and they did not respond; however June 2nd they emailed saying they had mistakenly given back June's rent and requested a new cheque be issued. Do they have a right to ask for this given I paid a deposit for last month's rent and they have successfully rented the apartment for July 1st? Thanks very much for your help.

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    1. Hi J. Vaughan: In one sense, the deal you made with them respecting early termination of your lease constitutes a "contract". That deal visited the risk of not re-renting on the landlord. The upside to the landlord was re-renting for July 1 in which case they got a bonus for the risk they took. Some people and some judges would have absolutely no problem in enforcing the deal for you to pay the June rent as the amount for terminating your lease. The alternate view is that the landlord may only recover the lost rent going forward. As they are not out of pocket they should not be entitled to a double recovery. In effect, they are prohibited from recovering the June rent from you because they have mitigated their loss by re-renting to a new tenant. Of course, their advertising costs and expenses would be extra. Perhaps cleaning and preparation costs of the unit would also be extra.

      In short, if this matter proceeded at the Landlord and Tenant Board --the board being a creature of statute--I think you would win and not be required to pay the June rent. However, if the case proceeded in small claims court, or if the landlord sued on the contract in the small claims court or if the landlord sought damages for advertising, clean up, preparation of unit, and some administrative fees, I think a small claims court judge would be fairly sympathetic to such a claim.

      Hope that helps--a bit of a wishy washy answer but I don't think the answer is entirely clear cut.

      Michael K. E. Thiele

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    2. Thanks so much Michael, this helps clarify my options. Have a great day.

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  6. There is a ton of useful and helpful information mentioned within this post! Thanks for sharing!

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  7. I need to give 2 months notice to terminate my month to month lease. However, I want to give a 30 days notice and move out on Oct 1st as there are multiple neighbors in my floor who are taking and may be even selling drugs and I don't want to expose my young family to this any longer. Is there any law which will support me?

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    1. Hi: The law with respect to giving Notice to Terminate is fairly inflexible--meaning 60 days to the end of term on a month to month tenancy is the minimum that you must indeed give to the landlord to lawfully terminate your tenancy. That being said, if you were in a position to prove that you have brought the problems (drug dealing) in the premises to the landlord's attention and the landlord has failed to take steps to deal with it, then you could seek an earlier termination of the tenancy from the Landlord and Tenant Board using a form T2 (Tenant's Rights Application). Otherwise, you may wish to simply speak to the landlord and advise why you are moving and ask the landlord to consent to earlier termination (use Form N11--Agreement to Terminate). If the landlord will not agree and sign off on an N11, and you decide that you're moving anyway, you could inform the landlord that he has a duty to mitigate (i.e. try to re-rent to minimize losses) and that if the landlord fails to re-rent and decides to sue you for the 30 days of short notice that you will defend on the basis that the landlord interfered with your quiet enjoyment of the premises by allowing the building to have drug dealing in the premises. One thing to consider doing is to give notice for October 1--even though it is short notice. Under the RTA, on sections dealing with what rent is owing when Notice is short the amount is capped to the legal termination date that could have been given. Hence your maximum exposure should be, or what you would aim for it to be, is one additional month of rent.

      Best of luck

      Michael K. E. Thiele

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  8. Sir, I am in need of some advice...could you help me sort out the following.

    I co-signed on a Tenancy Lease for a young single mom of 1 in September of 2013. Everything was going well until May of this year when she started with late rental payments, partial payments, and then not paying July's rent. I had a voice mail message left on my cell (only contact with Landlord regarding rent issues since start of lease) on July 28th, 2014 stating that I needed to contact the Tenant and get her to pay her outstanding rent. This was the first I had heard (from Tenant or Landlord) that there was outstanding rent, and the message was from a Private number and no phone number was left for a return call.

    The landlord filed with the Landlord Tenant Board (I found out from the Tenant after confronting her about the outstanding rent), and I was not named on the paperwork, nor provided with any request to appear. The Tenant and her then live-in boyfriend were named on the documents, and I was not kept 'in the loop' as to what the outcome of the Board's decision was. Neither the Tenant or her boyfriend appeared at the Board hearing, so the Landlord was awarded a decision against the Tenant and her boyfriend for the outstanding rent plus the court costs.

    I found out all of the information about the decision when the Landlord again contacted me on August 25th via cell to advise that the apartment was a mess, and that she could not get a straight answer from the Tenant about paying the outstanding rent. She then stated to me the amounts owing, and that I would be responsible if the Tenant did not pay up. I contacted the Tenant who said she would pay up at the end of the month when she got her cheque (assistance). I advised the Landlord what I had been told by the Tenant (as the Tenant was not returning the Landlords calls), and she again stated I would be responsible for the outstanding amounts.

    On August 28th I contacted the Landlord and Tenant Board. While I did not have a case number, and I was not named on any documents, including the decision by the Board from the hearing, they could not discuss this particular case with me. So I asked some general questions regarding my particular position, providing them with the information that I had co-signed the lease, but had not been named on the application or order with the Board, and was advised that the Landlord could not hold me to the lease since she had an order against the Tenant and her boyfriend for the outstanding amounts. I asked about the pressure I was being put under by the Landlord for payment, and it was stated that the Landlord could not proceed with any legal action against me because of the existing Order from the Board.

    Could you please confirm with me that this Landlord cannot persue me for the outstanding amount (close to $2500.00 at this point). I am not in a position to come up with this amount, not have this impact my credit rating.

    As of this writing, the Sherriff has taken possession of the apartment and all of the remaining contents.

    Any assistance / advice you could provide would be greatly appreciated.

    Kathryn

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    1. Hi Kathryn: Providing you guidance is difficult without seeing the paperwork. It sounds like you signed the lease as a guarantor or at least that is how the landlord is treating you. That you were not named in the Board proceedings does not help you and I don't agree with the comment made to you by Board staff. The landlord could not name you in the Board proceeding because you were not in possession of the unit at the time the application was filed. This is a quirky jurisdictional issue and the landlord proceeded correctly by not naming you and in my opinion this does not automatically absolve you from liability. The question remains, what is the legal implication of what you signed and hence the need to look at that document closely. The law of guarantee is fairly complex and not at all straightforward. There are plenty of cases where the enforceability of the guarantee or the co-signors liability is put in issue and often enough the case turns on technical interpretations of the words on the guarantee. Further, what your intentions were at the time of signing the documents along with a reasonable person interpretation of what was intended will be relevant. Then also there will be a question of whether you guaranteed the rent or the rent plus indemnity for damage and cleaning costs. Ultimately, if the landlord has no success against the tenant the landlord will demand the money from you and if you do not pay the landlord may choose to sue you in the small claims court (because the claim is worth less than $25,000). You will be entitled to defend the action and challenge the amounts and you should consider suing the tenant for any amount that you have to pay the landlord. If it comes to this (being sued ) it would be in your best interest to retain a lawyer for at least a consultation to review your paperwork and to send you in the right direction ( presuming the amount of the claim will not justify the expense of a lawyer for the whole case).

      Sorry that this response is not the "good news" you were seeking but it affirms that people have to be very careful and sure of the creditworthiness of the people they sign for.

      Good luck
      Michael K E Thiele

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    2. Michael, thank you for your quick response.

      I am not in possession of a copy of the Lease agreement, as it was never provided to me by the Landlord or the Tenant. This leaves me in the position of being in the dark regarding the specific wording. At the time of signing, and in previous conversations with the Landlord, she indicated to me that my information was being taken so that they had a firm 'alternative contact' should there be an issue with the apartment.

      I signed the agreement, and am at fault for not reading thoroughly what I was signing. However I should have been provided with a copy.

      I will be seeking in-person legal advice today to determine where I stand in this matter.

      Thanks again. Kathryn

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  9. Hi Heather and Michael,

    We recently gave notice to our landlord that we wish to terminate our month-to-month residency. I followed the guidelines on the landlord tenant board website with regards to noting the right dates but I sent the notice via e-mail because my partner was in Europe and wasn't available to sign a written letter. Our landlord accepted the notice and wished us well.

    I've been worried about whether this notice was legally given because recently she has been quite intrusive - she is selling the house and has asked us to pack up our things, has threatened that pictures of our personal items will be posted on the internet, leaves our apartment covered in dust from repairs that she does - and we would like to appeal to her to be more respectful of our space but she can be quite unreasonable and I don't want to provoke her if we might be at risk of paying another month's rent because we failed to give written notice.

    What are our options here?

    Thanks,

    Melanie

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    1. Hi Melanie:

      In my opinion you have nothing to worry about. Let me explain first the bad news, then the good news. The bad news is that serving the document (Notice of Termination) on the landlord via email is not a valid form of service for documents under the Residential Tenancies Act. Acceptable methods of service are set out in section 191 RTA and Rule 5 of the Landlord and Tenant Board Rules of Practice. Going through both of these you will find that service via email is not an accepted form of service. The accepted methods include: in person, to an employee of landlord, leaving in mailbox where mail ordinarily delivered, if no mailbox then in the place where mail is normally delivered, mailing it to last known address, courier, fax, under the door or mail slot (for tenants), xpresspost.

      The good news for you is that section 191 (2) of the RTA will make your email valid service because receipt of it has been acknowledged. The section provides as follows:

      (2) WHEN NOTICE DEEMED VALID--A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period.

      Hence, on the strength of section 191(2), I don't think you have anything to worry about with respect to the service of your notice of termination via email.

      Michael K. E. Thiele
      www.Ottawalawyers.com

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  10. Hi Michael.
    I just have a quick question I was hoping you could help me with. I've been searching online everywhere and can't seem to come up with a firm answer. My girlfriend signed a lease for an apartment and in the lease it stated that when moving out, we would need to be out by noon on the day of termination (she lost her copy of the lease before we moved in together, so this information is just what I have gathered from the superintendent, and from when a friend was moving out of the same apartment building and they yelled at them and threatened to call the police as they weren't out before noon). We are now just on a month-to-month basis, as our lease has expired.
    My question is, is the clause in the lease of moving out before noon binding? Everywhere I look online, all I can find referencing this is that you have to be out before midnight and I have never heard of a clause stating that you have to leave early.
    Thank you for your time

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  11. Hi Mr Michael,
    I have a problem with my tenants that we rented our basement to this month ie. November and they are becoming a headache already, They smoke which they lied about wen we rented them and said we smoke outside when I caught them but we have smelled it inside quite a few times and I am allergic to it, secondly they are extremely loud and fighting, and yelling 80% of the time and that's becoming a nuisance for us, they are a young couple with a four years old son, the lady said she's on social assistance as she moved from other province and later I found out she's also on therapy for some drug allegations and unfortunately we do notice abnormalities in her behavior wen she's shouting at her partner and even her son and we also suspect we heard her hitting him, though its none of our business but it definitely is ruining our peace and calm in the house, I am studying and unable to do so because of this at times and my mom who's home as she recently had a surgery cannot rest . we signed a month to month lease with them and 60 days notice either side if we need them to vacate or they want to leave. We have their IDs and man's job letter and also did reference check but still landed into this situation, I hope you get my message and help us if we want to just let them go with 30 day notice and what would b the right approach since its winters now.

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    1. Hello:

      I'm sorry for the experience that you are having with these tenants. From your comment it is clear that you have very little experience as landlords. The agreement you have that either side can give 60 days notice is not legal. Only the tenant has the right to give 60 days notice to terminate a month to month tenancy. The law does not let you make a deal to have the same right of termination. You may only terminate the tenancy for the reasons set out in the Residential Tenancies Act.

      The good news is that the things you are mentioning are grounds to terminate the tenancy. The smoking alone is grounds for termination. You could use an N5 or possibly an N7 Notice of Termination Form. The shouting is also grounds for serving a notice of termination. The hitting could be an illegal act for which you could serve an N6 Form---though that is a much harder case to make. If the hitting is of her four year old son (it isn't clear from your comment if she is hitting her spouse or child) you should report what you are hearing to the Children's Aid Society and to the police.

      The fact that it is winter is irrelevant to the legality of evicting. They do not get extra time because of this.

      Please do consider hiring a lawyer to help you. For people who are going through this for the first time it is very confusing and frankly tricky. If you plan to be a landlord for a while you could perhaps learn from this experience and see how the lawyer prepares the forms and proceeds to the Landlord and Tenant Board. Your tenants will likely be represented at the Landlord and Tenant Board as they will be provided a lawyer through Legal Aid Ontario---and hence they will have an advantage over you.

      Best of luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thanks so much for replying this quickly Sir! We actually belong to low income group so will we be eligible to get help from legal aid as landlords? And as an update with the situation they had a huge fight today and it was so loud we could hear everything so we went right away and told them verbally that we have had enough and if this continues we will have to call the police and also u will have to find another place. The did apologize and text saying they respect our decision if we give the notice, I don't if it actually goes in our favor but we have to let them go regardless, so if you can guide us once again I would highly appreciate so...

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  12. please help! I am desperately trying to move out of the house I'm co-renting with an acquaintance of mine (I feel that living here is causing me mental and emotional duress). I am planning on giving an official N9 60 days notice thing to landlord the end of this month. I have already given the landlord and co-renter more than 90 days notice via email as a courtesy, (written notice of a sort at least). 10 months ago we had signed a simple monthly agreement form with the landlord, there was no fixed term, it was month to month. My co-renter, and whoever answered the phone at the LTB hotline, says that I am not allowed to give 60 days notice and leave on my own, it has to be both of us or no-one. But unfortunately I want to leave and they do not see themselves leaving for the forseeable future.. So I feel I am being held to an indefinite term decided by another person against my will - When I originally signed the monthly rental agreement, I did not know this (the form was not that detailed), and I assumed I could get out after 60 days if I wanted. Also, my landlord is insisting he needs 2 names on the "lease", and cant rent the place without that. I was quite relieved in reading one of your other blog posts (2013/04) where you stated that "..in a month to month tenancy either or any of the co-tenants are permitted to give the requisite Notice of Termination of the Tenancy to the landlord to terminate the tenancy" but as I read some other stuff it seems that things are not that cut and dry. I realize that you cannot give official legal advice, but wondering if you could verify this wether this is indeed that case, if Im going in the right direction, and what the usual course of action is. Thanks so much for all your efforts in this area, Jeremy, Ottawa ON

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    1. Jeremy:

      You are citing my opinion correctly but I must make it clear that it is only my opinion--though supported by a line of caselaw. The author Jack Fleming indicates in his text Residential Tenancies in Ontario 2nd Edition, the following (at page 301), "If there is a tenancy in common, one tenant may terminate a tenancy without affecting the tenancies of other tenants. For joint tenants, the case law is split on whether: 1) termination by one joint tenant terminates the tenancy for all; or 2) the tenancy of one joint tenant can be terminate without affecting the tenancies of other joint tenants. As well, one can make an argument that the concepts of joint tenancies and tenancies in common are property law concepts no longer application to residential tenancies, and that therefore co-tenants can terminate their tenancies without affecting the tenancies of other co-tenants."

      Mr. Fleming as additional discussion in his text and seems to favour the view that a joint tenant may terminate a tenancy for only that tenant while leaving the remaining joint tenant in possession with a valid tenancy.

      I respectfully disagree with Mr. Fleming and the law that leans that way. I think that what Mr. Fleming proposes is fundamentally unfair to landlords and that the position he advocates is centred on the interests of tenants without trying to be fair and balanced to the interests of both tenants and landlords.

      I look at the situation you describe as follows. Before the creation of any tenancy agreement you have a landlord and tenant(s). The unit is vacant and the landlord gets to assess whether he wishes to lease to the applicant tenant(s). Similarly, the applicant tenant(s) get to view the rental premises, decide whether he/they like the premises, and he/they can decide for how long they might like to rent the premises (i.e. for a fixed term).

      The landlord, in assessing the applicant(s) is fundamentally interested in ensuring that rent will be paid and the premises respected (i.e. damage, noise, etc.). The landlord's security for rent being paid, security that damages will be paid for intentional or negligent acts, is the creditworthiness of the applicants. When the landlord signs on a new tenant or tenants, the landlord is choosing that tenant(s) over other applicants for reasons that are consistent with the landlord's interests.




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    2. An applicant tenant, or tenants, decide when applying whether they are prepared to commit to living in the rental unit for a fixed period (for example a one year lease) or whether they don't want to be tied down to a fixed term and instead wish to proceed on a month to month basis. If a group of tenants sign a one year lease I think they are agreeing amongst each other, as well as with the landlord, that they will perform the obligations of the lease and the RTA for that fixed term. If the tenant or group of tenants don't sign a fixed term lease, but instead choose to go on a month to month, I think they are saying to the landlord as well as to each other, that each of them individually agree to perform the obligations of the lease on a month to month basis with the right to terminate the lease in accordance with the law for month to month tenancies--which is 60 days to the end of term. For a fixed term lease (say one year), the tenants are agreeing with each other to meet their share of the obligations of the lease to no sooner than the end of term or until proper notice of termination of the lease is given by any or all of them.

      I think this interpretation is the fairest to all concerned (landlords and tenants) as the landlord gets the security of the applicants and people who are actually leasing for a clear minimum time period as the law clearly sets out (i.e. a fixed term, or 60 days on a month to month). It is fair to tenants as they too know what they are signing up for when the enter into a joint tenancy with another person. The issues between joint tenants--whether to sublet or assign in the event that one of the two needs to leave early in a fixed term is something that can be adjudicated in the context of finding replacement roommates or holding each of the roommates to a objective standard of conduct as between them. It should not be the landlord's problem with two tenants who can't live with each other or are having a dispute.
      In my view, the line of caselaw that allows a joint tenant to terminate the entire tenancy at the end of term, or on 60 days notice, is the most reasonable way for the law look at the situation of multiple tenants in one residential unit (call it joint tenancy, tenants in common, statutory tenants, or a modern tenancy as Mr. Fleming suggests may be appropriate). I don't think that any of multiple tenants should be compelled to continue a tenancy until that tenant can convince the other co-tenants to terminate the tenancy. One tenant should not be forced to assume the risk of continued liability to a landlord while simply moving out and getting on with their lives while the co-tenant remains in the unit. There has to be a way for a co-tenant to unilaterally terminate their responsibility to a landlord once the original obligation of a fixed term has expired on or legal notice (that the law says is 60 days) in a month to month situation. In my view, that "way" must include a unilateral termination of the entire tenancy--even over the objection of the co-tenant who may wish to stay.

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    3. I say this because I think it is entirely unfair to allow one co-tenant to terminate their part of the tenancy, thereby terminating their legal obligation for rent, damages, etc., while leaving the other co-tenant in possession who may have very little credit worthiness. It is unfair to the landlord to effectively allow his/her/its security for ongoing rent and possible damage to be reduced by half or more through the unilaterally act of one of the tenants in a unit.

      To be clear, I don't think that the termination by one tenant automatically means that the other tenant must move out. If the remaining tenant is credit worthy and a decent tenant the landlord may very well wish to enter into a new tenancy agreement with the remaining tenant. The remaining tenant could find a new roommate, new co-tenant, or not. Just because one of the two co-tenants wishes to move out and has the right to terminate the tenancy does not mean that the tenant who wishes to remain in the unit must necessarily move out. If the tenancy was good, respectful between the parties, and there is a clear track record of behavior and compliance with the lease the landlord may be very pleased to keep the remaining tenant in possession and sign a new lease. By keeping the remaining tenant there would be no turn over costs, no missing of rent while trying to re-rent---hence there is a an incentive for a landlord to do a deal with the tenant who wants to stay behind.

      The caselaw that Mr Fleming refers to (which he doesn't seem to favour) is what I think the law should be. It is fair and the scope of what everyone gets is by far best known by adopting this law. So to summarize, I think that during a fixed term lease none of the multiple tenants in a lease are able to terminate the lease unilaterally. None of them can force an assignment or sublet on the other tenants. During the fixed term any of the tenants can meet the obligations of the lease and impose liability for those obligations on the co-tenants (i.e. payment of the rent by one of the co-tenants obliges the other tenants to reimburse the tenant who paid their appropriate share).


      Once a tenancy goes month to month or leading up to the end of the fixed term I think that any of the tenants can unilaterally terminate the lease of the entire group of tenants. This can be done by serving a Form N9 and only the one signature of one of the tenants is required. The other tenants, if they wish to remain, are free to negotiate a new tenancy agreement with the landlord and enter into that tenancy agreement once the existing tenancy is terminated by the properly served N9.

      Proceeding in the way allows the tenant who wishes to leave to clearly delineate their responsibilities for rent and damage to the unit. The tenant who is leaving can require the landlord to do a move out inspection etc..

      What happens if one of the tenants serves an N9, the remaining tenants disagree and the landlord refuses to recognize the N9 as valid? In my opinion---and I must stress it is my opinion only---the N9 is valid whether or not the remaining tenants recognize it as valid or whether the landlord or the landlord and tenant board (presently) recognizes it as valid. After the termination date in the N9 I argue that the remaining tenants become unauthorized occupants of the rental unit. The landlord MUST file an application to evict the unauthorized occupants within 60 days of becoming aware of their presence (which date will be the day after the termination date in the N9). If the landlord does not file an application to evict the unauthorized occupants before the expiry of 60 days then the remaining tenants who did not move out in accordance with the N9 are deemed to be new tenants or the lease that was terminated by N9 is instead deemed to be assigned. The ideas expressed in this paragraph flow from the structure of existing RTA sections--specifically section 100 to section 104.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    4. Thanks so much for your very thorough reply. I appreciate it. It is very likely that " the remaining tenants disagree and the landlord refuses to recognize the N9 as valid" situation will most likely happen. At this point though I am having a hard time even getting a copy of the lease from the landlord, and I assume he is legally supposed to be able to provide me with that? if he cannot even produce a lease..

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    5. Michael Thiele, So elegantly laid out. Also to note the statue seems to favour this view by not talking about it - which opens the door for case law to fill the void. And of course the Charter argument that right to law needs to be open evenly to all (including those in multiple tenancies).

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  13. Hello!! I have a roommate (co-tenant) who told me she wanted to move out but didn't give written notice to the Landlord. She finally did 6 days before the end of this month and is now refusing to pay September's rent. She is locked in to the lease and is legally required to pay it, however the rent automatically comes out of my account and if we default it affects me too. I want to stay in the apartment so will need to pay the rent in full which I can't afford. Can I sue her in small claims court since she failed to give notice and she's listed on the lease?! She thinks that she shouldn't have to pay and that I should be paying her back her last months rent since she wants to leave now (even thought she's on the lease until October 31st). Also, some of her things are still here and I know that I can't change the apartment locks but can I put all her things in her bedroom and lock that door if she refuses to pay?! Things are getting messy and I just need to know the law is on my side. Thanks so much for your help... Your blog is so informative!!

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  14. Hello,

    I need your advice regarding my lease. In June 2013 we signed a lease for one year.A few months before the end my landlord asked us if we wanted to renew for one more year and we accepted because we didn't know we had the month-to-month option (we are foreigners on a work permit). We thought this was the only way to continue living in the apartment. The second year also ended and we wanted to stay more so we asked for a second renewal (again because we were unaware of the month-to-month option) but we told our landlord that we wanted for a smaller period as my husbands' work permit would be for less than a year. However a little later my husband signed a yearly contract and we contacted our landlord to let her know that we want the apartment for a year that would be the last though as we knew we are leaving from the country. Unfortunately, for family/Health reasons we have to terminate the 2nd renewal three months earlier, that is in March 2016. We have been her tenants for more than 2 1/2 years. We gave her notice 2 months plus a week in advance and she has already listed the unit and so far we have had some showings. Her agent though told us that we will be on the hook for any rent loss. We have been very good tenants without creating problems and we have taken care of the apartment as if it was ours. I have found out in the meantime that they have done some improper things like asking us 100$ deposit in case we leave unpaid electricity, they have never given us back the interest from the last months deposit and they have asked for 10 post dated cheques. I found all these to illegal. Plus there is a term in the lease stating that we are not allowed to assign the unit. I know we can, the Law allows us to assign even though we have signed. I emailed her however asking her permission to assign the unit(pretending I know nothing about my Rights) and her agent replied that my lease Agreement does not allow me to assign. So, I'd like your help as to what our options are. They are taking advantage of the fact the we are foreigners and we don't know the laws here. Do I have the right to cancel the 3 last cheques? I have already paid the last months rent which is from february to March. Please note that we are leaving permanently from the country!

    Thank you in advance

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    1. Hi: You raise a number of issues and I think you have done well to research your legal rights as the facts you relay are exactly the ones needed to terminate your tenancy early. As you likely know, a landlord's refusal to allow an assignment of the lease triggers a right to terminate the lease within the timeframes set out in the RTA. The sections dealing with assignment and the consequence of refusing a general request to assign may be found in section 95 (and onwards) in the Residential Tenancies Act. Note that there are indeed timelines so read the sections carefully. On the basis of the refusal you could indeed terminate the tenancy on notice within the time allowed.

      With respect to the your question about post-dated cheques. You are not required to provide post dated cheques and having given the cheques you may indeed demand that they be returned. However, it is my experience that many landlords disregard the request to return the cheques so it may be that you have to put a stop payment on the cheques. If you do so, you should inform the landlord in writing that the post dated cheques should not be cashed and that there is a stop payment on the cheques.

      With respect to the illegal deposits and the unpaid interest you are clearly entitled to payment or refund of these amounts. Of course, if the payments are not voluntarily made then you would have to bring an application to the Landlord and Tenant Board to get an order. As this is unlikely given your time frame you may wish to deduct these amounts from anything that you owe to the landlord. If all rents remaining due are paid then you will have to simply hope that the landlord pays you.

      Good luck with your move.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  15. Hi there,

    I was looking for some advice regarding my lease agreement. My current fixed term lease ends on February 29th and I notified my landlord via email back in December that I would not be renewing the lease. This month he reached out to me stating he did not receive the email, that it may have got caught in his work email filter, and that because it does not constitute 60 days notice I needed to pay one extra month of rent (March) while he finds someone to rent the apartment. If I did not comply he would pursue one months rent in damages from me.

    I realize now, after your article, that I should have filled an N9 form, however I was not aware the form existed and truly believed that an email could be considered as written notice. I forwarded him the email I had sent when he said he did not receive it. Email and text was also the primary way we communicated.

    I was just curious as to what my options are, and if in fact he could "sue for damages" (his exact words).

    Thanks so much for your help in advance and enlightening me (as a first time renter) on the intricacies of renting in Ontario!

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    1. Michael: Sounds suspicious on the part of the landlord. The Form of notice is not ideal as the N9 is the correct way. However, giving written notice in email, text, letter, is generally sufficient so long as the necessary information is communicated. Hopefully your email said something along the lines of terminating your tenancy. It's possible to get into hair splitting here as not renewing the lease might be interpreted as not signing up for another year and that instead you are going month to month. If you made reference to moving out, returning keys, something like that it would be helpful as evidence of intention to vacate.

      How did your landlord know that there was an email that he did not get? Your comment doesn't indicate you telling him about it. The "I didn't get it" argument is fairly lame and generally regarded with great suspicion by adjudicators and judges. He better be able to prove with his IT department that the email isn't in any of the email logs or is caught in a filter or wasn't delivered. His simply "saying so" is bogus in my view. On top of that you are thinking as I would in relying on the fact that your manner of communication with the landlord was via email and text. This is how he wanted to communicate and this is how you are directed to communicate with him. You can demonstrate a sent email. If he sets up his system in such as way as to block or filter emails that is his problem and his risk.

      Can he sue? Sure he can. Nothing can stop anyone from suing. Can he win? He will first have to prove that your notice is invalid. The form of the notice isn't perfect but it should pass muster with the Court (substantial compliance). The method of delivery was in accordance with the agreed upon method of communication which you can demonstrate from other emails and texts. It is a good argument in my view.

      Note that the landlord implies that your form of notice is acceptable---only late. This leaves you arguing only about the delivery method.

      If you lose on the form of the Notice and method of delivery then the landlord has a chance. The landlord will first have to prove that he took adequate steps to mitigate his damages. Did he advertise etc., take reasonable steps. If he finds someone or the Court feels he should have found someone by the date you moved out then your liability is capped--even short of 60 days. The landlord is not entitled to double dip on rent for the unit.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  16. Hi Michael, I love your blog - it's very informative. I'm hoping you can answer a question for me. A friend has decided she needs to end her tenancy early as she simply cannot afford her apartment, partially because the landlord told her the utilities would be much lower than they actually are. She notified the landlord by email asking if she could break the lease early, and the landlord (property mgmt company) told her she is responsible for finding a new tenant, getting their cheque for first and last, etc. However, they also maintain that she will have to pay them a $300 processing fee to assign a new tenant, and that they will not even consider assigning the lease to a new tenant until this fee is paid. My understanding is that the only fees they can charge her would be the actual out of pocket costs of advertising, credit checks etc for finding a new tenant - and since she will be finding the new tenant, only their credit check fee would be applicable. Is this correct?

    Thanks!!

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    1. Hi: I don't think that you could have packed more issues into that paragraph if you tried! There is a lot wrong with the landlord's position and perhaps issues to explore even in relation to the misrepresentations with respect to utility costs. To deal fully with the issues that you are not technically asking about your friend should find a friendly legal clinic and see if someone will sit down with her to help sort it all out.

      That being said, let me focus on your question and what may ultimately be a pretty good solution for your friend. I would be interested to learn whether the requirement to pay the $300 processing fee as a condition of assignment is in writing or not? If it is not in writing, can you get it in writing? If this is possible to get it in writing (or in some form that you can prove that they require this), then I think your friend can likely just give the landlord a notice of termination and walk away--fully and completely without any further liability.

      The reason I say this is that the RTA does not allow a landlord to charge a fee as a condition of granting permission to assign. Requiring payment of $300 before even considering assignment is directly contrary to the RTA's assignment provisions. Please note, and perhaps go hunting, but there are a couple of articles in this blog on how to assign (and sublet) a unit and the implications of refusing an assignment. The effect of a landlord refusing an assignment is that the tenant may terminate the tenancy. Attaching conditions to an assignment that that RTA does not allow is the same as a refusal. The RTA allows two answers---"yes" or "no" to an assignment request and not a "yes, but" answer. So, please take a look at the assignment provisions and you will see how the RTA gives your friend a termination right upon a refusal to allow an assignment.

      Your friend's position gets a little more interesting than what you have identified. Yes, the $300 fee must be for actual out of pocket expenses and not just an in-house administrative charge that the landlord levies. What is interesting is that the fee is chargeable for an approved assignment to a particular assignee. The fee is not chargeable for vetting prospective assignees. If your friends landlord is planning to charge $300 per potential assignee they have a problem. It would be interesting to confirm this with the landlord (in writing) as that would be contrary to the law on this point.

      Good luck to your friend.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  17. Hi Michael, Wonderful blog here. I wonder how I can delivery a Tenant's Notice of Termination (N9). So, can I delivery that by email or it has to be a delivered method by mail or in person or fax only? I would appreciate your response. Thank you.

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    1. Hi: Technically, you legal methods of service of an N9 are the same as the service of any other document by either landlord or tenant. I will paste section 191 of the RTA at the end of this comment which sets out the ways to deliver notice. That being said, note that notice given not in accordance with the RTA or the Rules can be validated if there is proof that the contents of the notice came to the intention of the intended recipient (see section 191(2) below). Hence, sending something by email is valid--especially if the landlord replies to it which implicitly acknowledges the receipt. You could serve it by email and then ask the landlord a question---such as I need a move out inspection, where do I drop the keys, can I take the flooring and appliances (tongue and cheek--but likely to get an answer from the landlord).

      If you are serving the N9 now--with a valid 60 days--you can serve by email and regular mail and it will be valid (as we are in mid-month June and mail only adds five days until it is deemed delivered).

      Good luck

      Michael K. E. Thiele
      Quinn Thiele Mineault Grodzki LLP
      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.