Monday, 9 June 2014

Options when you can't pay your rent to your landlord.

Being short on the rent can happen.  This article speaks to options that Ontario tenants have when they are unable to pay their rent in full or on time.

When I have tenant clients who are facing an application for termination for non-payment of rent there are a series of questions that have to be asked before becoming too concerned about dealing with the eviction.  It is worthwhile for anyone who is having trouble paying the rent to answer these questions:

1) Why is the rent late?  Is it because there is not enough income, unexpected bills, poor spending control, the rent is too high, roommate moved out, illness, loss of job, hours at work cut, on strike?

2) Can the reason that the rent is late be fixed so that the tenant is able to pay the future rents in full and on time?  If not, is there a period of time over which the problem can be fixed?  What is the timeline?

3) Is there enough income coming in that the rent can be paid in full on an ongoing basis and a small amount can be paid towards the arrears?

4) Is there a family member, friend, or someone who can and who is willing to help out?

5) How long is/was the tenancy and are there any special circumstances.

RENT ARREARS: NOT THE END OF THE WORLD

Being in arrears of rent is not a tragic situation.  Getting evicted is not the obvious outcome and the likelihood is that you can indeed preserve your tenancy---i.e. you won't be evicted--depending on how you answered the questions above.

The Residential Tenancies Act is the law that governs landlord and tenant relationships in Ontario.  As a provincial statute it is a law that takes precedence over any contract or lease document that a tenant may have signed.  In fact, it doesn't matter what a tenant agrees to, in writing or not, if that agreement violates the provisions of the RTA then the agreement is void.  The law does not allow a residential landlord and tenant to make just any deal that they wish.  This includes agreements or terms that appear to be reasonable and fair to both parties.  If the deal breaches the RTA--it is void---regardless of the perceived fairness of the arrangment.

The structure of the RTA matters--and its precedence over lease terms matters--as the RTA itself gives tenants many many chances to pay rent arrears, to make deals, and to seek relief from eviction from the landlord and tenant board.  In fact, the structure of the RTA is such that the tenant gets the chances--whether the landlord likes it or not---and the hearing process is such that the law requires the adjudicator (judge at the Landlord and Tenant Board) to consider alternatives to eviction (called section 83 relief).  As a tenant in a rent arrears situation you can access these chances and alternatives to eviction simply by participating in the process that the Landlord needs to follow.  At some point in going through the process you will find yourself standing in front of an adjudicator--and depending on the answers to the questions I've set out above--you can likely save your tenancy. 

At this point, I should make it clear to tenants that a landlord is NOT allowed to simply change the locks.  A landlord is not allowed to enter your unit and evict you.  A landlord is not permitted to demand that you move by a certain time and date and enforce that demand himself or through friends or acquaintances.   A landlord does not have the right to remove a tenant who is covered by the Residential Tenancies Act from the rental unit.  In Ontario, the only person who can physically evict a tenant from a rental unit is a Court Enforcement Officer--known as the Sheriff---and the Sheriff will only do that based on a valid Order from the Ontario Landlord and Tenant Board or the Superior Court of Justice.  Landlord's have no self help right to kick out a tenant who has not paid the rent (regardless of what any lease or agreement to the contrary might say).

WHAT IS THE LEGAL PROCESS and how should a tenant respond to the steps?

When a tenant is in arrears of rent they should expect that a landlord might call to ask for the rent.  In my experience it is best to be honest and straightforward with the landlord and advise truthfully about the reason for late payment.  Often enough, a landlord will accept the explanation and make a deal to take care of the rent arrears.  If this can be done an awful lot of anxiety and stress can be avoided.  Note that you can only make a deal if you take the landlord's call---don't dodge the landlord or avoid him in the hopes that he will "forget" about the rent that you owe.

If the landlord does not call to talk to the tenant about the rent arrears or is unwilling to make a deal on acceptable terms, then the landlord will have to proceed with the legal way of terminating the tenancy and evicting the tenant.  This process will take a fairly long time and the tenant will indeed get several opportunities to pay the rent and maintain the tenancy.

The first legal document that a tenant will get is a form N4 (Notice of Termination for Non-Payment of Rent).  Note I said "legal document".  Letters, notes, texts, emails demanding the rent and threatening eviction if the rent is not paid are not "legal" documents.  The Form N4 is a form from the Ontario Landlord and Tenant Board and only that form can be used to terminate and evict a tenant for non-payment of rent.

As a tenant, when you receive a Notice of Termination (like the N4) take a look at the notes that are at the end of the form.  The print is small but the notes explain your rights very clearly and demonstrate that the big bold letters and boxes on the form don't mean exactly what you think they mean.  The biggest example of this is the box that says "TERMINATION DATE".  When you see the date in this box you will think that you need to move out by that date.  In fact, that is not true.  If you pay the rent by that date then the Notice of Termination is void.  That date is a minimum of 14 days after you receive the Notice of Termination (and if the time period is shorter the notice is invalid). 

If you are unable to pay the rent by the Termination date then you still do not have to move out.  You can require the landlord to file an application with the Landlord and Tenant Board.  You do this by not moving out of the apartment.  If you refuse to move out then the only legal way for the Landlord to get the unit back is to apply for a hearing date with the Board. 

Applying to the landlord and tenant board will take another week or two or three before the case comes on for hearing.  If at any time before the hearing you come up with all of the rent arrears (plus the $170 application fee) then it is guaranteed that at the hearing the adjudicator will dismiss the application and allow your tenancy to continue (because you have paid all of the rent and the costs).  Sometimes this works out because the passage of time between getting the N4 (waiting 14 days) and then another week or two passing before the hearing allows the tenant enough time to come up with the rent arrears.

If the tenant is unable to come up with all of the rent arrears before the hearing then it is worthwhile for the tenant to attend the hearing.  At the hearing, the adjudicator will ask what the rent arrears are and establish what amounts are owing.  Often enough the tenant is in a position to agree what is owed.  The adjudicator, after determining what is owed, will begin to ask the tenant questions very similar to the ones I've set out above.  The adjudicator will want to know whether the tenant wishes to continue the tenancy, the reason for the rent arrears, whether the reason for the arrears arising has been fixed, whether ongoing rent can be paid in full and on time, whether the tenant can offer a repayment plan on a reasonable time line, and whether there are circumstances that exist that should result in the adjudicator exercising his or her discretion to impose a deal on the landlord that allows the tenant to maintain the tenancy while still protecting the landlord's ongoing right to rent.

Even if the tenant has no decent explanation--no acceptable plan---and can't possibly ever pay the rent arrears and is unlikely to be able to pay future rent as it becomes due--the Landlord and Tenant Board will still issue an order giving the tenant 11 days to pay all of the rent arrears plus the $170 application fee and thereby void the eviction order.  If the tenant does not pay the rent within those 11 days, then on the 12th day the landlord may go to the sheriff to file the eviction order.  The Sheriff will give the tenant a minimum of 7 more days before returning to evict.  If during the period that the sheriff has given notice to the tenant the tenant pays the rent arrears and costs then the eviction order is voided again and the tenant can stay (this can only be done once during a tenancy).

The point of the foregoing timeline is highlight how many opportunities a tenant is given to pay the rent arrears and maintain the tenancy---even when it is clear that payment is unlikely or impossible.

EXERCISE OF DISCRETION (section 83)

Let us presume for a moment that the answers to the questions I laid out were such that it was clear that the reason for the rent arrears was a one time event--an unfortunate occurrence.  For example--the cash rent was stolen before it was handed over to the landlord.  Or, a roommate moved out.  Or, the tenant lost a month's pay because they broke a bone and couldn't work.   All of these explanations result in a temporary inability to pay the rent.  The rent arrears happened because the tenant lost the ability to pay the rent for a short period of time.  However, the tenant earns new money to replace the stolen cash, the tenant gets a new roommate, the bone healed and the tenant returned to work, and therefore the things that caused the rent arrears are fixed. 

The "fix"  allows the tenant to pay future rent in full or on time.  Or, the "fix" allows the tenant to pay most of the future rent in full and all of the rent in full in a month or two.  The point is that the "fix" sets out a plan that shows how a tenant can get into a position to pay all of the ongoing rent in the future.

An adjudicator needs to see--or have it explained to him or her by the tenant, how the future rent is going to be paid.  Once the adjudicator is satisfied that future rent is going to be paid and that the "fix" or the "plan" is a reasonable one--then the adjudicator will turn their minds to the rent arrears that built up while the tenant was having the problem (i.e. while the bone was broken, when the roommate left, when the cash was stolen).

The adjudicator will not forgive the rent arrears and will indeed expect these arrears to be paid to the landlord.  However, the adjudicator will be very open to the idea of an affordable payment plan whereby the tenant pays off the arrears over time.  It is certainly true that this "payment plan" often makes landlords very upset.  However, the "payment plan" is indeed a very logical thing to allow.  The landlord is already out the money.  Nothing can force a tenant to pay the money any faster than in a way that they can afford.  Nothing that the Board can order will force a repayment if the tenant doesn't have the money.  Evicting the tenant--for the rent arrears---will not result in the landlord getting the money any faster.  Therefore, and so long as the tenant is in a position to pay ongoing rent in full, and on time, then it makes sense to grant the tenant a reasonable repayment plan for any sum of rent arrears.  The repayment plan can be anything that makes sense within the tenant's budget.

To propose a payment plan, a tenant should be ready to put the details of their financial life on the table.  Show paystubs, benefit stubs, and the sources of income.  Show expenses and the things that the income is necessarily spent on.  Show what the surplus is, or if there is no surplus of income show where you could cut back in the budget to pay the landlord an amount towards the rent arrears.  Where a tenant produces a clear picture of their income, provides confirmation of income sources, and demonstrates what amount can reasonably be paid from the budget, it is my experience that for the most part, the Board will allow the tenancy to be maintained so long as the payment plan is followed.

Most payment plans of rent arrears are conditional on future rents being paid in full and on time.  It is most important to pay ongoing rent--in full.  The reason for this is that the Board, in exercising its discretion to maintain your tenancy and allowing you to remain in your apartment, will impose a section 78 condition on your tenancy.  Section 78 allows the landlord to apply to the Board in the event that you breach the conditional order, without notice to you and obtain a without notice eviction order.

If a tenant has failed to make a payment towards the arrears as required by the discretionary order not all is lost.  Even though a landlord may apply under section 78 for an eviction order, a tenant may set aside that eviction order on motion and again seek the exercise of discretion depending on the reasons for the breach of the eviction Order.  Note however, that getting the exercise of discretion (relief) repeatedly becomes increasingly difficult as the failure to comply with an order arouses a suspicion that the tenant simply can not afford the rental unit.

THE THEME OF THE LEGISLATION

If you are a tenant who is in rent arrears, I hope that you have taken from this article the notion that being in arrears of rent is not a catastrophe.  Losing your home, being evicted, is not the automatic consequence of falling behind in the rent.  If the rent arrears are the result of an unexpected event, a tragedy, an illness, a problem of some kind, the RTA has built in chances and opportunities for tenants to recover from these problems.  Ultimately, the RTA builds in compassion and understanding from adjudicators who are directed by law to consider alternatives to termination and eviction.  Falling behind in the rent is not an insurmountable problem if the issues that lead to the arrears can be fixed and a viable plan is created that demonstrates that future rent can be paid and that arrears will be paid in a structured manner.

HOPELESS CASES

Sometimes, the reason for the rent arrears arises from a problem that can not be fixed.  Sometimes a tenant's income will fall, or the circumstances are such that paying the future rent is simply not realistic.  As indicated earlier in this article, the Board will still grant time to pay and the process of going to the sheriff will add more time to the ultimate eviction.  Even in these circumstances, though, if the reasons are sufficient, it is worthwhile to participate in the proceeding and explain what is going on to the adjudicator.  A tenant can ask for more time, or delayed eviction, or try to make a deal premised on partial payments or an indication of an honourable intention to pay the debt at a future time.  Many landlords will agree, sometimes with the urging of an adjudicator to agree to a timeline that is least traumatic to the tenant--or the tenant's children---and allow an orderly end to a tenancy that simply can not continue.

Michael K. E. Thiele
QTMG LLP
Ottawa Lawyers  

61 comments:

  1. How about considering the landlord - I'm not talking about a corporation, but someone who has a duplex, triplex, etc. The landlord is dealing in good faith and the tenant is taking advantage of the rent review laws. Not all landlords are slum lords running flop houses and trying to blackmail the tenant into paying the rent that is due. Most small landlords have to pay mortgages (banks are none to forgiving of excuses) and pay the upkeep and bills. Please take all situations into consideration before you assume that all landlords are out to get their tenants and that maybe the landlord is the one who is being used.

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    1. Hi: I hear your frustration--and I've heard a great many landlord's express that same frustration in less polite terms than you just did. This blog article was written for the tenant who is in a tough spot and unable to pay rent or who is behind in rent. If you are a landlord or know a small landlord then I'd urge you to read this article again and see the options that are open to a tenant who is behind in rent. Whether you agree with it or not--this is the current law in Ontario and landlord's need to adjust their business model to take into account what a tenant can do or ask the Landlord and Tenant Board to do for them.

      My role as a lawyer is not to be an apologist for the law. It is what it is. I represent both tenants and landlords and it is knowing how to apply the facts to the law--regardless of one's own philosophical leaning--that leads to success. Take a look at the article just before this one titled " Small Landlords: What to do when the rent is late". You might find the thrust of that article more to your liking.

      Michael K. E. Thiele

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  2. This is a really good article. Sometimes the tenants are not able to pay the rent because of some genuine reason. I have been a lawyer at a litigation law firm for years and I have seen landlords coming to file cases against their tenants just because they failed to pay the rent for a month. I always advise them to give the tenants some time and wait for at least 3 months before they file a case.

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  3. Hi, what if the tenant lost their job, and is currently looking for work but has no income? Thanks

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    1. Hi Daniel: It is not unusual for a tenant to lose their job and hence have the ability to pay rent taken away. What hopefully happens is that the tenant finds a job, receives EI, borrows money from family while looking for a new job. The landlord and tenant Board, once a hearing is scheduled for eviction for non-payment of rent, would likely give the tenant a reasonable payment plan for rent arrears so long as the tenant is able to pay ongoing rent as it becomes due. If the tenant is unable to pay ongoing rent as it comes due it is likely that the tenancy will be terminated and the tenant evicted.

      Good luck

      Michael K. E. Thiele

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    2. Hello: Following Daniel's query and your response, if the tenant is evicted, can rent arrears still be collected? Is there any way to enforce payment of rent arrears?

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  4. I was ordered to pay my rent, to the LTB. How do I do this???

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    1. Hi: It has been a few years since I've had to do this so my procedures may be a little out of date. It will be worthwhile for you to head over to the Landlord and Tenant Board. Bring the amount you have been ordered to pay into the Board in a guaranteed form (cash is best if you've comfortable carrying that amount). In the past, the process has been that the Board fills out a deposit slip for you and you take that deposit slip to a bank they direct you to. You deposit the cash or certified cheque (the funds need to be in a guaranteed form). The bank stamps the slip and you then return the slip to the Board office. That's the way it worked for the longest time. Perhaps procedures have been updated so either go to the Board and ask or call the 1-888 number on the LTB website and ask them there. If you live in a smaller centre, without an LTB office you can ask them how to make the deposit happen.

      Good luck

      Michael K. E. Thiele

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  5. After missing two monthly rent payments, I contacted my tenant who informed me that he had a reduction in work hours and was having financial difficulty that was expected to be temporary. He advised he would pay all arrears in a series of small payments over a three month period. He paid the next two month's rental fees in full, but did not make any payment towards the arrears. Then, despite having regained full time employment, he stopped paying rent all together. I have not been able to reach him by phone, email, text or in person.
    After six months, and $14,000 more in debt, I cannot afford to continue carrying this tenant's costs. I plan to apply to the LTB for eviction and payment of arrears; however, am a new landlord (who tried to give the tenant the benefit of doubt and be understanding to circumstance) and unsure of the process. Specifically, if an order is made to repay arrears with or without eviction, how is the order enforced? If the tenant does not pay, what options are available to recoup amounts owed?
    Also, do I need to submit my application to the LTB in the city in which the rental property is located?
    Grateful for any information to assist.

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    1. Hi: You should follow the process that flows from serving a Form N4 (Notice of Termination for Non-Payment of Rent). That has a very specific timeline to follow. The tenant will get another two weeks out of you before you can file with the Board. The form you use with the Board is the L1 Form. As you are a new landlord I can't emphasize enough the importance of being exceedingly meticulous in your forms---very small mistakes--seemingly very minor, can be fatal to your application. There is zero flexibility in the Form N4--if there is an error it is void.

      Proceed via the N4 as this is the only way to get eviction. If you apply only for the arrears, which is possible in a Form L9, you will not be able to evict the tenant for the arrears covered by the L9.

      You enforce the eviction part of the order through the Court Enforcement Office at the Courthouse in the area in which the rental unit is located. The financial part of the Order may be enforced in the jurisdiction in which the debtor has assets or a job (in Ontario). If the tenant works in a jurisdiction different from where the Order is from you will have to work with the Court Enforcement Office where the debtor's assets or employment is. You can explore all of the details with the staff at the Small Claims Court after you get your Landlord and Tenant Board Order.

      You can file your application by fax and online filing is also becoming a reality--hence you do not have to travel specifically to the Landlord and Tenant Board office where the rental unit is located. I've never tried, but presumably any Board office could accept your application.

      Good luck

      Michael K. E. Thiele

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  6. Hi, I'm just wondering if this applies to ontario but in the states they give the tenant up to 5 days to pay the rent after the 1st. Does this apply here as well?

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    1. Hi: For the most part the answer is no. If rent is due on the first, then it is due on the first and there is no grace period for that payment to be made. Landlord's and tenants could agree to a grace period but that would have to be consensual. While there is no right to a grace period, there is effectively a grace period if a landlord decides that the late payment is something they are prepared to take action about. A landlord may serve a tenant with a Notice of Termination for Non-Payment of Rent starting the day after rent is due. That Notice of Termination gives the tenant a 14 day grace period (from the date that it is served) to pay the rent. The landlord may not do anything during this time period to evict. If the tenant pays the rent within the 14 days the Notice of Termination is void.

      This is very useful and relieving for tenants who run into money problems from time to time. It also causes some serious upset for some smaller landlords who need the cashflow of the rent to pay bills. Take note that if a tenant does pay rent late persistently (in my view that means 5 or more times in 12 months), the landlord may serve a Notice of Termination for Persistent Late Payment of Rent. This terminates the tenancy at the end of term or on 60 days notice. The Landlord and Tenant Board, in response to an application like this will typically preserve the tenancy on the condition that the tenant pay the rent, in full and on time for the next 12 months.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Hello there....I always pay my rent and on time. But this month I messed up ...I was not hurt or loss my job I just made a poor judgment. I played most but not all. See I'm on odsp and 1500 gets sent to my landlords from my odsp then when I get my govement cheuq letter in the month I pay the 800 to my landlords making my rent 2300 a month. I did not pay the 800 this month. What is going to happen since I didn't pay cut my poor judgment?? I will pay them back it will just take a while since I don't make a lot. Thanks

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    1. Hi: Be upfront with your landlord and don't dodge the issue. Advise the landlord that you are unable to pay the extra $800. Then propose a payment plan to the landlord. The landlord may choose to accept the payment plan--or not. However, make the payments you propose in any event. If the landlord applies to the Landlord and Tenant Board to evict you you can ask the adjudicator to give you time to pay in accordance with your payment plan. If the payment plan you propose is reasonable and the adjudicator orders you to pay in accordance with the plan that you have been already following then you can argue that you should not have to pay the landlord's $170 filing fee as it was not reasonable for the landlord to incur that expense.

      Base you proposed payment plan on your budget and be forthcoming with the landlord about your ability to pay. If you can get the $800 paid off within 12 months that would be considered a reasonable payment plan--while all the time paying the future rent in full and on time.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  8. Someone told me that if I pay most of what I owe to my landlord then it should void the sheriff from coming to change my locks. I jus need to know if this is true?

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    1. Hi Chantel: Sorry, this is not true. If there is an order from the Ontario Landlord and Tenant Board then look closely at the paragraphs in the Order. The order very clearly states what is needed to void the eviction order. There is no other short-cut that legally stops the sheriff.

      Good luck

      Michael K. E. Thiele

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  9. What about cases outside of the RTA? Like a student residence? Can the manager of the building simply change locks and cut off your Internet for late rent?

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    1. Hi: If a tenancy is not covered by the Residential Tenancies Act then you would need to find what law applies to that relationship. In most cases you will find that the relationship is governed by the contract. The contract will normally contemplate non-payment issues, behavior issues etc., and will set out what either party may do in various contemplated scenarios. If you are asking about a specific tenancy take a look at the rental agreement for guidance as to what the parties agreed to.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  10. What happens if a tenant does not pay rent but then moves out? What happens to the due rent? what can the landlord due? what is the process?

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    1. Hi: A landlord may only commence an application against a tenant at the Landlord and Tenant Board if the tenant is in occupation of the rental unit. If the tenant has moved out before an application to the landlord and tenant board has been started then the landlord's only option to get an order/judgment is to file a claim through the small claims court (if the amount is for $25,000 or less). The Small Claims Court rules and the process for pursuing a claim is set out on the Ontario Small Claims Court website (http://www.ontariocourtforms.on.ca/english/scc)

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  11. Hello,
    I'm on a 5 year contract with the current warehouse that I'm renting. We're in our second year, and up until december we never missed a payment, some stuff got mixed up, we agreed to pay december and january together on january. Though there was sufficient money for both rents, they were able to take out one payment and not the one for january. I left a msg to my landlord the next day, advised her that she can take out january's payment as well, or if she likes i can get a money order. Just found out this morning that my landlord changed the locks for the warehouse(private/commercial) and is now asking for 3 month's payment in advance. Even though initially we paid 4 months deposit. I just cant wrap my mind around the fact that she can change the locks just like that

    ReplyDelete
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    1. Hi Aydan: Your question relates to a commercial tenancy agreement. The rules for commercial tenancies are entirely and 100% different than they are for residential tenancies. The law governing these different types of tenancies is not at all similar. Hence, you will need to consult with a commercial tenancies lawyer--usually a corporate commercial lawyer. There is no time to waste in these situations, please do consult with a corporate commercial lawyer as soon as possible. You can get a referral from the Law Society of Upper Canada.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  12. Hello I'm on odsp and my girlfriend moved in with me last year. I notified my odsp case worker. My case worker told me in December 2015 that she needed my girlfriends bank statements and my bank statements but I became sick and couldn't hand anything in by the end of December. I found out my check is being held when I called my case worker January 29th. She told me why my check was being held I told her why I didn't hand in the bank statements. I brought them in that morning. It's been four days counting today. I've been leaving my case worker messages every day. I didn't hear back from her at all. My rent is late it's due on the first of each month. Landlord is bugging for his rent every day I told him why it's late but he still comes to my door sometimes more than once a day. I called one of the managers at my local odsp office and sent an email to her and my MP this morning. I got a call back from her this afternoon she told me my case worker is going to review the bank statements tomorrow morning and give me a call. My case worker I believe her personal/religious beliefs are effecting her judgment towards me. I'm in a lesbian relationship plus she's always cold and quick to get off the phone or rush me out the door. I also found out my odsp might get cut off because my girlfriend gets cpp disability income. If I get cut off what do i do because I won't have the rent money from odsp. My lease says my rent is due on the first of every month. My girlfriend gets paid on the 22nd of each month and at the end of each month. We have no friends or family to help us out. Can we be evicted because we can't pay the rent by the first of each month?

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    1. Hi Maddie: I can't really speak to the issues surrounding ODSP, entitlement, and reduction of your ODSP benefit based on the household income you have with your girlfriend. There are many issues involved in that and policies that I am not entirely up to speed on. Your comment that you feel that your caseworker is prejudiced against you is of course problematic. You are entitled to be assessed in accordance with the rules and not based on the ideals of any particular employee administering your file. That being said, suspicions and the treatment you describe do not in my view scream discrimination on the basis of sexual orientation etc., as your explanation of how you are being treated is something that I hear not infrequently from ODSP recipients. That doesn't make it right, it just reflects bad service over all.

      With respect to eviction for non-payment of rent. You will find several articles on my blog explaining the termination for non-payment of rent process, how to delay it, how to get extra time, and an outline of what can be done and when. You should read those articles to get a sense of what might happen. Ultimately, you can be edited for non-payment of rent and if your rent is always late you can also be evicted for persistent late payment of rent. It will not happen right away, it takes time, and you will be given several chances to get the rent payment process in order. However, if nothing is done to fix the rent issue then in time you can indeed be evicted.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  13. Hi,
    My husband and I moved in to our house in August. By the end of October it came to our attention that we had bed bugs. Because of this by the end of November we had to pay out $3000 to have our house fumigated. Once again because of this Your savings were depleted and we were late laying January's rent,but it was paid by the 7th. Our landlord made us pay a $150 nsf fee with the payment. We have been trying to play catch up since. We were not able to pay Feb 1. We contcted the landlord and told him. He doesn't care. We told him that we would be able to do a payment plan with him. He refused. We are able to pay rent every month. It was a one time thing that has made us late. Question; is he able to charge us the $150 nsf and also when we moved I. He made us pay a $1450 damage deposit. Is he allowed to charge us that deposit? Of not what can we do to get that money back because that will cover the late rent!

    Thank you

    ReplyDelete
    Replies
    1. Hi: To be clear, we are talking about a rental unit in Ontario? You describe renting a house from your landlord. I take it that this is a single family dwelling? I ask this because it raises a question of where the bedbugs came from. The timing that you describe--August to October, suggests to me that you may have moved into a rental that already had bedbugs in it. If you research bedbugs you will discover that the things can live for a long time without feeding. They will hide in the smallest of cracks, in electrical sockets, behind baseboards, and in places you would never thing of. I would inquire of an expert pest control technician, but I think a period of two months to go from zero to infested seems about right. The point is that the bedbugs you have may have already been there. Is there any way to talk to the previous tenants, any way to find out from neighbours if they had a bed bug problem. It makes for a strong case that the landlord is responsible for the treatment and you can chase him for the $3K that you spend dealing with the infestation. Is there anything in what you did that you can pinpoint as the source of the bedbugs--i.e. do you believe that you somehow brought them in or is it a mystery?

      The $150 nsf fee is illegal and unenforceable. The legal maximum is $20 (section 17(5) O. Reg. 516/06) for the landlord's fee. He can also charge the exact amount that his bank charges him.

      The $1450 damage deposit is illegal. The only deposit that a landlord in Ontario is allowed to take is a last month's rent deposit that is less than or equal to a regular month of rent. Anything else is illegal and must be returned. You can direct the landlord to apply the deposit to ongoing rent if you wish. If he wants to proceed to the Landlord and Tenant Board on this issue he will lose.

      Consider seeing a lawyer or paralegal in your area who is familiar with Landlord and Tenant matters. You have a decent claim for the $3000 fumigation costs, plus a refund of the damage deposit and the $150 NSF fee. Don't sit on your rights though, most claims by tenants under the Residential Tenancies Act need to be made within 1 year of the event having happened. It is best to bring the claim as soon as possible.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  14. Hi Michael,
    Our Landlord did not supply the Water/sewer bill for over a year then dropped an invoice for over a thousand dollars, we responded with a payment plan that we can afford and he is insiting ...demanding we pay in full , even thought he initially did not respond to out payment plan but accempted the first three email money transfers payments and after the third demanded the remainder in full..... what can we do?

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    Replies
    1. HI: I would be interested to know whether you are responsible for water and sewer under your lease agreement or whether you have just assumed that you are responsible for these costs. Water and sewer are often included and not separately charged.

      If you are satisfied that you do indeed owe the charges that the landlord is submitting to you then what you have proposed and what you are doing is entirely reasonable. It is the landlord who will have to take a step or some kind of legal action. Given the amount in question the landlord's options are limited. I suppose he could try the Landlord and Tenant Board or alternatively, and more likely, the small claims court. The more likely route of the small claims court would in most areas in Ontario take longer than your payment plan. Further, your explanation of the landlord's delay, your dealing with it, proposing a payment plan and making payments, is very favourable to the Court making an order in accordance with your proposal. I would guess that a Court would even deny the landlord his court fees/costs because your position was reasonable and proper from the outset.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  15. My exes landlord gave me a notice today about taking us to small claims court for my ex not paying his rent for a couple months . This issue was 4 years ago and from my understanding there was no definite payment plan . He paid rent after the couple months of hardship .I was never notified when moving in with him that they had this issue ,we also haven't lived there for over a year and we're only notified now about it.

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    1. Hi: Your comment raises a few immediate issues to consider. The first is that any claim for rent arrears, four years after the fact, is likely statute barred. Claims for these types of debts typically need to be made within 2 years of them becoming due. The key is to not acknowledge the debt in any way nor to make any payments on the alleged debt. You can by accident waive the limitation period and re-start the 2 year period by making a payment on the debt.

      Secondly, it is difficult to understand why you would be liable for the debt if it was incurred before you moved in with your ex. This too is a defence for you.

      Other than that, if your ex paid the rent and can establish that from his records that of course is another great defence.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Thanks so much for replying. I forgot to mention the issue ofthat the months not payed for in 2012 he back dated all receipts . So let's say we payed November 2014, payment shows for that month but he writes that the month of June . So he wrote up the claim like we didn't pay the last four months , when really the missing months were back in 2012. He also made the claim last year , may 2015 and only delivered papers to me yesterday, and only to me , as he can't find my ex. May was 6 months after we moved out .
      I'm just really frustrated as I think he's taking advantage of the fact that I work in the public and have the money to pay it .
      I'm not sure he's even aware that I'm no longer with my ex , not sure if I should talk to him . I was never told when leaving that there was money owed from 2012.
      I pretty much didn't sleep last night and been researching everything on this , and it's been a frustrating day as my biggest option is to go to court and let a judge tell him he can't charge me for these issues . And I'm not happy that he just dropped it off when I was with a client.

      Delete
    3. Hi: The change in facts is rather important and significant. Under these circumstances I'd recommend that you retain a lawyer or paralegal---even if just for an hour, to sit with you to review the available documents and perhaps steer you in the right direction for a defence.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  16. Hi Michael, thanks for your excellent article. I'm a renter in Ottawa and I recently received an eviction notice telling me I had 10 days to vacate. Apparently my landlord had failed to make his mortgage payments and the lender intends to take possession of the house. I had no idea my landlord was in such financial trouble and now he's ducking my calls and emails. Do I have any rights here? Is there any chance I'll even get my security deposit back, what do you think?

    ReplyDelete
    Replies
    1. HI: It is worth getting legal advice from a lawyer on this issue. As a tenant you still have rights against the mortgagee. The mortgagee steps into the shoes of the landlord and becomes your landlord--at least for a period of time. Sale of the property leads to further complications. If you want to take a look at the obligations start in the Mortgages Act Part V--Mortgagees in Possession of Rental Residential Premises (look it up on www.canlii.org ). You can still bring an application to the Landlord and Tenant Board and even name the mortgagee as the landlord.

      Again, this is complicated landlord and tenant law and you really should be sitting in front of a lawyer with your paperwork for clear guidance on what to do. There are simply too many permutations and "what ifs" to anticipate on this blog.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  17. What if you miss your hearing date what is the time frame before a landlord can have you out

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    Replies
    1. Hi: The timeframes are all different and may not even happen. By not showing up for your hearing (and presuming the landlord did show up), the landlord would have had to prove to the satisfaction of the adjudicator that eviction was something that the facts of the case warranted. Presuming that the landlord could prove his case the date that you are "out" is set out in the Order. For non-payment of rent, the adjudicator would give you at least 11 days to pay and void the eviction. For other grounds of eviction the adjudicator can pick the date--which is usually not less than a week and certainly no sooner than the termination date in the Notice of Termination you received.

      The way to know is to look at the Board's order when it is mailed to you. You can also call the Landlord and Tenant Board and see if a clerk will read the order to you. The landlord is required to get the local sheriff to enforce the order and you will be given some notice of that happening as well with a Notice to Vacate being posted on your door.

      Lastly, you say that you missed your hearing. If there is a reason for missing it you have the right to seek a review of the hearing and getting a new hearing. You have to provide a reason that supports the contention that you were not reasonably able to participate in the hearing of the case. If the Board accepts that then you would get a new hearing. You must seek this review within 30 days of the date of the Order--or certainly before any eviction takes effect. It is not a guarantee that you would get a new hearing, but it is a chance.

      Good luck

      Michael K. E. Thiele
      www.topaccidentlawyers.ca

      Delete
  18. What if your being kicked out because u have no job even tho your paying rent

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    Replies
    1. Hi: Being unemployed is not a grounds of termination under the Residential Tenancies Act. If your tenancy is covered by the Ontario Residential Tenancies Act you do not have to move for the reason of not having a job.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. I would like to ask how lenient a board will be in allowing a tenant to remain when issued an n4
      I have paid my rent late 8 months out of 13 and have always paid a portion on the first and the remaining balance before the due date on the n4

      Delete
    3. Hi Kate: You will have voided all of the N4's by payment of the rent arrears. Hence you will not face eviction on those N4's. If you have a current N4 that you haven't paid off and a hearing is scheduled the Board will absolutely give you another chance to pay off the arrears and it will even order a payment plan. On an N4/L1 application to the Board the Board will not be concerned about your payment history. In fact, you payment history is favourable in that you did indeed pay your rent---late...but paid (which is better than the alternative ...late and not paid).

      Where you might get a bit more of a headache is if the landlord serves you with an N8. That form is a termination for persistent late payment of rent. The form itself is a 60 day notice to the end of term and when you read it there doesn't appear to be any chance to void the termination. In reality what happens is that the Board will exercise its discretion to not evict you on this notice. The Board tends to order that you are allowed to stay so long that you pay the ongoing rent in full and on time for a period of time (usually 1 year). Getting this discretion is virtually automatic as the Board is more about preserving tenancies than evicting people.

      I note that you say you have a history of a partial on time payment and payment within the notice period of the N4. I would be very curious why this is the case. I presume it has something to do with when you get money etc.. Note that the Board's discretionary power is quite broad. If you can make an argument that payment of rent in two parts like this is necessary and there is a history of doing so and an acceptance by the landlord of this OR you can base the need to pay this way on a peculiar circumstance you could actually ask the Board to allow you to pay this way indefinitely. Though to make this argument you might want find an experienced lawyer to make the pitch for you.

      Hope that answers your questions.

      Michael K. E. Thiele
      Quinn Thiele
      www.ottawalawyers.com

      Delete
  19. I would like to ask if a landlord filed an n8 against me, how likely is the board to show leniency in giving me a chance to start paying in full on time
    I have paid it late 8 months out of 13 months and always paid a portion on the first and the balance before the date on the n4

    ReplyDelete
    Replies
    1. See above Kate---here you reference the N8--the answer above applies. Cheers Mike

      Delete
    2. Should I communicate with the landlord or just not sign the application to end the tenancy and wait for them to request an eviction and then attend the hearing?
      I have put together a package with my budget to show that I can remedy the situation in the future but will be 120 late for July rent until July 7th
      Thereafter I am fine
      Would this affect the boards decision to not grant the option of signing an agreement to pay the rent on time in the future?
      I really appreciate the time you take to provide advice
      Thank you

      Delete
    3. Hi Kate: If you wish to remain in the unit then certainly don't sign anything that terminates your tenancy. Simply wait to see if they apply to the Landlord and Tenant Board to terminate your tenancy based on the N8. If your landlord has not yet applied to the Board then it is unlikely that they will get a hearing date by July 7, 2016--hence, your payment problems are resolved by that date and your rent will be paid up. If by chance the landlord does get a hearing date before July 7, 2016, I am confident that by you showing the Board a clear plan of how you are able to pay in full and on time into the future that the Board will indulge your late payment of July rent to the 7th of the month.

      Good luck. When at the hearing consider speaking with Duty Counsel for advice on how to present and what to say to the particular adjudicator hearing the cases that day.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  20. Thank you so much
    You have really eased my mind :)

    ReplyDelete
  21. Hi!

    My boyfriend and I recently received an L1 exactly 10 days before the hearing. We didn't receive an N4 at all. We asked the Board for help and they sent us a copy of the N4 our landlord filed - supposedly under our door in April. Would they need to prove service or will the Board just believe them when they claim this?

    Thanks very much in advance!

    ReplyDelete
  22. Hi I'm not sure you'll see this in time or be able to respond in time as my hearing is tomorrow. I have had issues with my rent due to being robbed of both my savings and a month's worth of rent money (which was never recovered) around 2 years ago. I have had difficulty paying my rent in full on time each month. Though it has always been paid within the month it was due, and my landlord has never taken us to tribunal, (though we have taken them for maintenance, and other issues which we agreed to settle out of "court" prior to the hearing date) I had hoped that with this years tax refund I could get it caught up back in Early March. However due to changes in credits received by families this year I did not get the amount I anticipated and therefore was unable to pay my rent with it (I ended up owing tax rather than receiving a refund). I had advised my landlord that i "hoped" to be caught up and pay on time after I got my refund (did not however make any promises as it was based on if I got what I anticipated). I do not have family to borrow from, nor good enough credit to obtain a loan, and I don't make enough in a regular month to pay 2 full months of rent plus feed my 2 children. My landlord was patient and did not file against my family until May. When I received their notice saying they were going to apply to the board, I wrote my landlord a letter again, explaining that even though I was unable to secure the funds prior, I could make installment payments over the next 6 weeks and due to having an extra pay-cheque in June, I would be able to be completely caught up with arrears and Pay July rent on time and continue to pay on time going forward. I also enclosed post dated cheques for each payment and July's rent. My landlord responded with a letter saying they did not agree to that payment schedule and I must pay my arrears immediately and pay on time going forward. They also re-enclosed my post dated cheques stating they did not want the appearance of agreeing my my arrangement. I have a hearing Tomorrow (July 27) morning with 2 applications - Arrears and a Persistent late payment form (I don't remember the form numbers exactly). My final arrears payment would be June 30 when I get paid and is for less than $200. July's rent will be paid July 1st. Herein lies my question for you. I don't feel that I should have to pay for my landlord's $170 filing fee as my payment schedule was not unreasonable. I have always paid my arrears within the month of the rent they are from and don't have a history of bounced cheques. Had my landlord been a little bit understanding and willing to work with us for a few more weeks, within 3 days of the hearing we'd be caught up and on time going forward. What do you think the odds of us being evicted for persistent late payment and also the odds of us being able to fight the fee should we not be evicted are?

    ReplyDelete
    Replies
    1. Hi: Good luck this morning! If I understand correctly, all of your rent arrears are paid off as of 3 days from now? The facts are a little confusing to me as you are talking about 2 months of rent arrears--which of course means that all arrears are not paid within the month they are due. I must be missing something. Anyway, it does seem clear that you will be paid up in all arrears in 3 days.

      Being fully paid up will indeed void the eviction order for non-payment of rent. The Board will give you 11 days to pay all arrears plus anything that becomes due in that time plus the $170 application fee. If you are paid up before the end of the month or after the end of the month plus the July rent (plus costs) then no eviction.

      The N8--persistent late payment of rent--is likely a proven application in that you have been persistently late paying your rent (i.e. late more often than not). Nothing in what you say suggests that your landlord condoned the late payment (i.e., he was not okay with it). Instead, your landlord seems to have exercised some restraint and acknowledged your position of hardship. Condonation is sometimes a defence to a persistent late payment of rent application. On the facts your describe I don't see it.

      Hence, on the persistent late payment of rent the landlord is, initially, going to be successful. The Board will then consider whether termination of your tenancy is the appropriate remedy. It is at this stage that you are likely to be successful. The Board will exercise its discretion (as it normally does) and allow you to remain in the apartment if you pay your rent in full and on time for the next 12 months. That is a fairly typical order. If you breach, and are late, the landlord will have the right to file an L4 application to evict you for breaching the order.

      The exercise of discretion by the Landlord and Tenant Board is an interesting power. I know that you are keen and convinced right now that ongoing rent can be paid on time and in full---which is good given that this is the likely order that the Board is going to make. However, when you get to the Board, speak with duty counsel and try to get a lay of the land--i.e the inclinations of the particular adjudicator that you will face. If the lay of the land is somewhat favourable I would suggest trying to get a shorter compliance timeframe (less than 12 months), or pitch something that would allow you to be late but paid within the same month perhaps once or twice in the next year. If I were arguing this (presuming certain supporting background facts arising from the robbery), I would encourage the adjudicator to dismiss the N8 (persistent late application) entirely on the grounds that the basis that the persistent lateness arises from crime with you as a victim. I'd argue that it is only this month that you have recovered from the crime and rent is finally caught up and ongoing rent will be paid on time. To put you under a conditional order, at this time, is to simply re-victimize you for being a victim of crime. Regular tenants get the benefit of the pay and stay provisions and regular tenants can be late a few times a year without consequence as late a few times does not constitute persistent late payment of rent.

      Delete

    2. I'd argue that I don't think you should be deprived of the benefit of the RTA in granting some leeway to tenants a few times a year in late rent. Not that the RTA encourages it, it certainly doesn't. However, the concept of "security of tenure" reveals a bias in favour of maintaining tenancies and I think you should continue to enjoy the benefit of that bias.

      I'd further argue that you are on the margins, without a family support network, and you have the responsibility for two children. You are a family on the edge---losing the stability of your housing could be catastrophic. To give the landlord a conditional order because you were robbed and hence couldn't pay properly seems manifestly unjust.

      With respect to the costs---I'm afraid you are likely to get stuck with them. However, you make a good point about offering the landlord a deal that would have solved the problem. Was it reasonable for the landlord to apply? The $170 is a lot of money to you. You have the makings of a good argument against the $170 but note that you are making a pitch that goes contrary to the standard protocol of the Board---the Board (virtually) always orders the $170.

      If you make the pitch about dismissing the persistent late application (and that wins), then you would still be stuck for the $170 in relation to the N4. I think you are going to have to pay it. I'd try to spin it/argue that the $170 is your penalty for being a victim of crime but you acknowledge that the landlord is innocent too. Hence you accept that you will pay it. However, ask that it only be a judgment for money (not a basis for eviction), let interest accrue on it, and ask for XX number of months to pay it.

      Good luck to you this morning. Please let me know how it goes this morning.

      Michael K. E. Thiele
      www.ottawalawyers.com
      Quinn Thiele Mineault Grodzki LLP

      Delete
  23. If you pay cash each month , and now the landlord is claiming rent arrears. A receipt was never issued.How can they prove there claim for arrears.Also I have received a eviction notice.

    ReplyDelete
    Replies
    1. Hi: The very unfortunate thing about paying rent with cash is that a tenant risks not being able to prove that they paid the rent. Getting a receipt is great--losing the receipt is not. Not getting a receipt puts a tenant entirely at the mercy of the landlord and basically gambling that the landlord is honest or that the landlord doesn't make an honest mistake in their records about receipt of rent.

      Note that a landlord can very easily prove that rent was not paid. All that a landlord has to do is say "the rent was not paid". The burden then shifts to the tenant to prove that rent was paid. If the tenant doesn't have a receipt or anything else that proves payment then there is a real risk that the tenant will be ordered to pay rent again. It is not impossible to prove that rent was paid without a receipt--but indeed it is very difficult. It would take a clever cross examination of the landlord to win this but it is not impossible.

      Good luck
      Michael K. E. Thiele
      Quinn Thiele Mineault Grodzki LLP
      www.ottawalawyers.com

      Delete
    2. Hi Michael,
      Thank you for this. Can a land lord still levy the 170 application fee if you have paid late rent in full with certified funds within 13 days of it being due? Caveat being that the tenant (me) has already have 60 days notice to leave? Thank you

      Delete
    3. Hi Robert: Presumably you received a Form N4 (Notice of Termination for Non-Payment of Rent). That form gives you 14 days to pay--which is the number of days before the "termination date" set out on the form. If you pay all of the rent arrears before the termination date then the landlord may not charge you the $170 application fee. The landlord is not allowed to apply to the Board based on the N4 if you have paid off the rent arrears before the termination date--or frankly, at any time before the landlord applies to the Board.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  24. Hi Michael,
    Great article, thanks for this. I had a quick question regarding my situation at the moment. I am paying $950/month here in Toronto and my landlord tried to evict me for July 1st giving me notice in writing before May 1st,saying that a family member was moving in. He however did not fill out the N12 and so it was not official notice. When June rolled around, I did not have to pay rent because when i moved in here 3 years ago i had given him first and last months rent, so he was using my last months rent deposit for June. I talked to the LTB and they said indeed, i did not have to move out for July 1st because he had not given me official notice. I told my landlord towards the end of June I was not moving out because he had not given me legal notice. He finally gave me legal notice to move out by August 31st. So I paid rent for July and now August is about to roll around. The new place that I have rented is $1800/month and I don't have enough money to pay rent for August at my current apt because I had to give a deposit. My question is, if I cant pay rent here this month and then I have to come up with another $1800 for my new place for September 1st and may not be able to pay my current landlord rent of $950 for August for a month or two, what do you think will happen? I will obviously speak to him and tell him my situation but he won't be able to evict me before September 1st, right? Thanks for your time!

    ReplyDelete
    Replies
    1. Hi: I am a big fan of being upfront and talking with the opposing side to see if a big dispute can be avoided. Adopting this approach with your landlord will give him the heads up that August rent is not forthcoming when due. As you've gone "legal" on him with respect to the N12 I wouldn't be surprised if isn't entirely pleased with you. Hence, I'm not sure how fruitful a conversation with your landlord will be.

      Interestingly enough, your landlord has been in a position to serve you with an N4 for quite a while now. As your tenancy was not lawfully terminated your use of the last month deposit for June was not legal. The last month deposit can only be used for the last month. Hence, your landlord could have demanded payment for June quite some time ago. Why the landlord isn't doing so is something I can only guess about.

      For the moment, let's forget about the June rent. With respect to the August rent the landlord will become aware that it hasn't been paid sometime on the first of August which is a holiday this year. While he serve an N4 (Notice of Termination for Non-Payment of Rent) on August 2? He will be entitled to. In fact he is entitled to do that right now for June rent--which is actually July rent because your July rent payment would be attributed to June.

      If you speak with the landlord you may convince him to hold on and wait for payment. Perhaps he would be understanding? Alternatively, the landlord may think about it and decide that legal action should be taken right away to protect his interests. Any lawyer or paralegal will tell him to immediately serve an N4 on you.

      That N4 is required to give you 14 days to pay. No legal action can be taken before the 14 days is up (i.e. August 16). On August 17 the landlord can file with the Landlord and Tenant Board for a hearing based on Non-Payment of Rent. The speed of getting that hearing date depends on where in the province you are located (you say Toronto--but its big). It will be, at a minimum, more than a week before you get your hearing date. Once at the hearing, even if you don't defend the application, the Board will give you another 11 days to pay and void the Order. Presuming you don't pay, the Landlord could file with the Sheriff to evict you and the Sheriff would give you another 7 days though it may take some time for the Sheriff to actually show up to post a Notice to Vacate.

      If you add up all of the time periods (14 days, 7 days minimum to hearing, 11 days, 7 days) you can see that you are well past the end of August and this presumes that Landlord starts the legal process as soon as he can on August 2.

      Note that a reason for the landlord to start a process at the Board is to confirm eviction and also to get a Judgment against you for the arrears so that he can enforce payment and get a collection agency to chase you should payment not be made. In order to take advantage of the speedy board procedure the landlord needs to start the case while you are still in possession of the unit.

      Good luck to you.

      Michael K. e. Thiele
      www.ottawalawyers.com

      Delete
  25. I had 1 week late payment and received N4 and 60 day notice. I paid by e-transfer to landlord, he want me to move out, for mr its no problem, do I still have to pay the rent until he rent the appartment , what will be happened for my last month that I have already paid?

    ReplyDelete
    Replies
    1. Hi Mark: By paying the rent you have voided the N4 Notice of Termination for Non-Payment of Rent. This means you can not be evicted for non-payment of rent. The Landlord's 60 day notice to ask you to leave is likely no legal. A landlord can not just ask you to move out. For a landlord to evict you he has to have grounds under the Residential Tenancies Act. Simply saying " I would like you to move out" is not legal. Even if the landlord gives a legal notice to move you can force the landlord to apply to the Landlord and Tenant Board and argue that his notice of termination is not valid.

      If you simply don't mind moving out based on the Notice given to you by the landlord then you should fill out a Form N11. This is an agreement to terminate. You can find it on the Landlord and Tenant Board website. Both you and the landlord sign it and each of you should keep a copy. You are only responsible for rent up to the day of termination set out in the Form N11. You should use your last month's deposit for the upcoming month or two. You should not pay rent for the last month of your tenancy because that is what your last month deposit is for.

      Your landlord is not allowed to punish you for late rent payment or make any other money demands.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  26. I am a new landlady of a house that I have rented out to a 4 woman, 3 of them pay the rent on time but the 4th does not she always pays half, when she does pay. For the last 2 months she has not payed any rent at all and yet she is still living in the house. My husband and I have noticed a pattern with her. Every time Rent is due she causes a fight with one of the other girls in the house, she does this I think so we would forget about her paying rent. My husband and I are at the house on a weekly or monthly basis to be mediators in these fights. We had no problems with the other tenants until this 4th woman moved in with her teenage daughter. We talked to her over the phone today again because she and another tenant are fighting over the heat being too high or low. We told her that she needs to sort it out herself and that we are not her parents. We have had pretty much the same discussion though a lot more politely with her in person and over the phone about living with other people. My husband said to her that she has no rights anymore to complain because she owes us 11 hundred dollars in rent. And that until she pays us she has no right to complain about the heat. Last week when we went to go get last Months rent from her, she avoided us or stayed in her room and didn't come out. I don't know what else to do other then say on the phone you have 30 days to move out or pay us in full. When we said this she broke down and cried and said are you really going to kick my daughter and us out on the street... We are at the end of our rope with this tenant and don't know what to do other then to print out the N4 form.

    ReplyDelete
    Replies
    1. Hi: The relationship that you describe between yourself and the women in the house does not contain enough information to determine the "legal" nature of the relationship. It seems likely that the Residential Tenancies Act does apply this relationship as you don't mention any facts that give rise to typical exemptions from the RTA. What is unclear is whether you have one lease with all four women or whether you have 4 leases one with each of the women. The second scenario seems more likely from how you explain the situation which means that you have most likely created a "rooming house" in the premises.

      In a rooming house situation each tenant is responsible only for their own rent. Hence, you may indeed serve an N4 when a tenant is late with rent or in arrears. You should, in fact, serve an N4 the moment a tenant is late as you are about to discover how long the process is even after you have reached your wits end and now want to solve the issues.

      Note, that if you are in a rooming house situation then the other tenants in the house have the right to demand that you deal with a problematic tenant who causes fights, arguments, etc.. Theses tenants need to share common areas--kitchen, bath, living room--and having an anti-social tenant in the mix is upsetting for all of the other tenants who are trying to get along. This is your problem, as landlord, to fix if you have set up a rooming house. If all of the tenants were on one lease then they would be collectively responsible for paying the rent and their social problems would be their own (and not your problem).

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  27. Help!! I'm waaaay behind in rent in the house my 4 kids & I live in because my husband left me last year. The furnace broke down and the landlord keeps telling me to fix it myself because the repair is way less than what I owe him. When I got home yesterday morning the house was freezing and I phoned him up, I got pretty angry with him when he again told me to fix it myself. I shouted I was going to file against him with the LTB over it. He then replied he was going to file for the rent arrears, and take me to Small Claims Court over utility bills he paid because I couldn't. Now today someone here at work said if I'm behind in my rent I can't even go to the LTB until I pay the landlord off. Is that true?

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    Replies
    1. Hi: The short answer to your question is "no, that is not true". You may indeed file and application with the Landlord and Tenant Board. In fact, heat is a "vital service" that the landlord is required to provide and if the furnace is broken down then he could be in serious trouble. Consider call the Investigations branch of the ministry of housing (number on website or call the Landlord and Tenant Board for it), as they may contact your landlord and make his obligations clear to him. Further, consider contacting your city/town--usually Property Standards department. They can make orders as well and in extreme cases they will come in, do the work, and charge it back to the landlord.

      In relation to the vital service of "heat" you are in a strong position to get action.

      Of course, there is problematic side of the story and that is the unpaid rent. Your landlord is in a position to serve you with a Notice of Termination for Non-Payment of Rent in Form N4. This will start the clock on termination and give you 14 days to pay the rent. If you don't pay within that time period the landlord may apply to the Board for an eviction order. Within a couple of weeks he will get a hearing and then you can go to argue for more time or a delay. However, there will come a point at which the Board will order you to pay the rent or move out. How quickly the landlord accesses the Termination for Non-Payment of Rent provisions of the Residential Tenancies Act is up to him. Of course, pursuing him for a new furnace is likely to speed up his interest in getting his house back from you.

      Given that you have four children and eviction would be a great hardship consider making plans now and seeing what kind of resources are available in your town/city. Local legal clinics are a great source of information for things like subsidized housing and for information explaining how to get support services. Lawyers in legal clinics generally have experience in helping people get into subsidized housing after evictions for non-payment of rent like yours. Get that information now so that you are prepared and can make the best out of a bad situation.

      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.