Thursday, 10 December 2015

Landlord's Own Use: Delaying the takeover.

Tenants in Ontario are fairly secure in their tenancy during the course of a fixed term.  The only legal grounds to terminate a tenancy during a fixed term (the typical fixed term is the one year lease that people sign at the beginning of the tenancy), is for cause.  "Cause" includes termination for non-payment of rent, willful or negligent damage, illegal act, impaired safety, and a few other specified grounds in the Residential Tenancies Act (RTA).  The security of a tenancy is almost as strong after a fixed term ends.  Unless a renewed fixed term is entered into, after the expiry of a fixed term a tenancy continues on a month to month basis.  This is automatic, there is nothing that either party needs to do.  A landlord can not object or refuse the continuation of a tenancy on a month to month basis.

As in fixed term tenancy, a month to month tenant can be evicted for "cause".  The cause grounds are largely the same in the month to month context as they are during the fixed term of a tenancy.   What is a bit different is that in a month to month context the landlord has the ability to terminate a tenancy at random times and unexpected times so long as notice is given under the RTA.   The type of notice I'm talking about in this article is termination for landlord's own use and for the purpose of this article I'm assuming that the N12 Notice of Termination is given in good faith and that the landlord is entitled to termination. 

A notice of termination for landlord's own use requires that a landlord give a tenant 60 days notice with the final day of the notice ending on the last day of the term (usually the day before rent is paid).   In a fixed term tenancy the Notice of Termination can not specify a termination date that is sooner than the end of the fixed term.  Hence, if a tenant has a one year or multiple year lease the tenant is protected from being evicted for landlord's own use before the expiry of the fixed term.  The end date of a fixed term tenancy is known and hence the tenant has the comfort of knowing that their tenancy is "safe" from termination until at least the end of the fixed term for landlord's own use.

In the case of a month to month tenancy, a landlord can serve a Notice of Termination any time; and so long as 60 days notice is provided the tenancy can be terminated at any time of the year.  For some tenant's this can be quite unsettling.

Consider for a moment the impact of receiving a Notice of Termination for Landlord's Own Use (Form N12) and only having 60 days to find a new place to live.  Certainly, if a tenant is young, footloose and fancy free, healthy, with minimal responsibilities, a termination in 60 days may indeed be reasonable.  However, imagine a tenant who has lived in the same unit for a great number of years, may be suffering from health problems, may have a lot of stuff in their unit, may be going on a trip, may have kids in a local school, may be financially unstable and may have dependents or responsibilities that make finding a new place in 60 days an impossibility.  What happens to the tenant who can't move or can't find a place within 60 days?  Does that tenant become homeless?

The fact is that 60 days notice in the Form N12 is only a minimum notice period.  One would hope that a landlord would take into account the circumstances of a tenant when serving the N12.  Unfortunately, it is my experience that many landlords read the 60 day notice provision as creating an inviolable right to evict without regard to a tenant's personal circumstances.  Thankfully, we have section 83 of the Residential Tenancies Act that allows the Landlord and Tenant Board to consider an appropriate termination date based on all of the circumstances.  The Landlord and Tenant Board can indeed recognize the hardship that 60 days notice causes and the adjudicator can delay the termination for longer or even deny it.

Here is an example of an actual case.  In the case of Tarsitano v. Duff, the landlord of a small apartment building established that he (age 66) did indeed require the apartment of the tenants (age 78).  The landlord was living in a 3 bedroom apartment with his wife, and three other people.  The pictures of the unit showed that the landlord's living space was very cramped and that he clearly needed more room. Hence, taking over the apartment of the tenants was considered to be something that the landlord needed to do. 

The tenants on the other hand had been in possession of their apartment, on a month to month basis, for over 15 years.  The tenants were elderly, on a fixed income, and the husband was undergoing cancer treatment and was terminally ill.   There was a recognized shortage of affordable housing (this case was in Toronto) and there was no doubt that finding a new place to move to would impose hardship on the tenants.

The Judge in this case considered the landlord's need (recognized as legitimate) and considered the circumstances of the tenants (very sympathetic).   In considering the respective positions of the parties the Judge was free to disregard the 60 day notice of termination.  He had the authority under the law of that time to exercise his discretion and do what would be considered fair.

In this case the Judge decided that the tenants should be given more time to find a new place to live.  He delayed the eviction of the tenants by 5 months thereby giving the tenants more time to make reasonable arrangements to move.  Whether 5 months is enough, not enough, or too much, is not the point.  The point is that the Judge has discretion to decide based on the circumstances of the parties.

If you are facing eviction for landlord's own use, or if you are a landlord planning to evict for own use, it is important to recognize that the Landlord and Tenant Board has the authority and jurisdiction to delay or deny eviction for landlord's own use.   It is not automatic nor guaranteed.  Hence, if you are a landlord I recommend that you meet with the tenants, deliver an N12 based on 60 days of Notice, but at the same time discuss with the tenants or invite the tenants to propose a satisfactory timeline that works.  If you can agree to a termination date sign off on a Form N11 that is available from the Landlord and Tenant Board website.

If you are a tenant and your landlord is being entirely inflexible with respect to the termination date go ahead and prepare for a hearing.  Be ready to show the Board why moving within 60 days is simply not possible.  Have copies of medical records, school reports, travel documents, pictures, and whatever else you have the establishes the reasonableness of the delay of eviction that you are asking for.  If a child is in a school district with a special program and termination and moving would deny the child continued access to the program collect that evidence and be prepared to present it.  Don't assume that simply saying it will be enough.   Be prepared to tell the Board what your plan is, the timing, and the reasons.  If your reasons are compelling the adjudicator certainly has the power to grant you the time you need to leave.

[Note that this article was in relation to landlord's who served an N12 in good faith and there are no issues respecting a substantial breach of obligations under the RTA.  If there is reason to challenge the landlord's desire to occupy the premises then there are a whole other set of considerations and defences.]

Michael K. E. Thiele
www.ottawalawyers.com


 

36 comments:

  1. Hi Michael,
    Thank you so much for your amazing blog. This has helped me tremendously as a first time small landlord. My husband and I live apart due to our jobs, but while I was on mat leave, I chose to rent out my house for the year and a half I was gone. The tenant went in knowing it was a short term stay. He asked to have the lease extended from Jan to July to accommodate his two children so they could stay in school. I said that was fine, but for this to happen, I had to rent a one bedroom back where my work is. I have told my tenant that I will be filing an N12 to take back possession of my house as of August 1st. Giving over a 7 month notice. He seems very reluctant to move. Non the less, the N12 is being served in good faith. If this tenant happens to move before the end of his tenancy, I am unable to break my lease until July 31st. So I was wondering, is it okay that my house sits vacant for the time being? Or can this tenant come after me because he had to move and the house is vacant until his original end of lease.
    What are the rules? Can I have someone supervise the house until the original lease is up?

    If he does end the lease early, and I have to break my lease early and face financial fees from my rental place, am I allowed to move back into my house earyl and have a friend stay with me and help me pay bills if I am there full time in my house, to help me with the cost.

    Let me know,
    Thank you

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    Replies
    1. HI:

      You have an interesting dilemma which is arising from giving early notice in a Form N12. As you may see from the N12 form, once it is served a tenant may terminate the lease earlier than the date in the N12 by simply giving a landlord 10 days notice.

      I think that an option to avoid this problem is to not serve the N12 form right away. You can inform the tenant orally or via email that you will very likely be serving an N12 form with a termination date of July 31 (remember termination date has to be last day of term--which is usually the last day of the month if rent is being paid on the first), which N12 you will serve at the beginning of May. You can state that it is presently your intention to re-occupy the premises but that you will confirm your intention to do so when you serve the N12.

      Does providing this kind of information trigger the right to terminate early. Technically speaking I think not. Is there any value in giving so much notice? If there is value I think it is only with regard to arguing against a section 83 discretion pitch by the tenant who claims to have been taken by surprise and who is unable to find alternate housing within the short time allowed by the Notice under the N12.

      If you have already served the N12 with a termination date for the last day of the term then you may consider filing an application based on the N12. 7 months in advance of the termination date is certainly much much sooner than normal but I don't think that there is any prohibition in doing so. The Order may terminate the tenancy for July 31 and it may recognize the tenant's right to terminate earlier. The value in proceeding soon is that it gets all of the issues heard and forces the tenant to either agree or disclose his intentions now if he doesn't plan to vacate. Filing early allows you to get any reviews and/or appeals out of the way before you plan to move in. If the appeal should go longer at least you will have lots of notice of it and be able to plan accordingly.

      If the tenant serves a notice to terminate early then certainly you may do the things you describe. Your notice is a clear indication that you plan to occupy the premises for residential purposes as of July 31. If the tenant gives you back possession 7,6,5,4,3, months early then it would not be surprising if you did something with the place on an interim basis.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hi Michael,
      Thank you for your amazing response to my first question. After verbally telling my tenant that I would like to move back into the house at the end of his lease,after continous late payments and two months of non payment (which she has now paid)
      She has written me a letter staying she coming after me for rent increase money. We had an agreement on rent increase, which was above the guidelines. She agreed (considering the house is still 500 below rent in the area) she signed a new lease with the new rent. Now that I have indicated that I am moving back into my house she wrote me an extensive letter of money that I owe her from to much increased rent, and that I owe her interest on her laat months rent, saying 2% on 1200 every month for over a yea, equally iver 130 dollars. I thought it was only 2% over the entire year, not 2% every month.
      This tenant has been fine with the rent until I said I was moving back.

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    3. Hi: If you have been charging an illegal rent then there is a risk that you will have to repay the difference. What exactly constitutes an illegal rent is not as simple to figure out as you might think. Above guideline increases are permissible for many rental units now as a great many units are exempt from rent control. In addition, there is a section of the RTA that deems otherwise illegal rents legal--see section 136 (RENT DEEMED LAWFUL). Unfortunately, section 136 does not mean what it appears to say as the Court of Appeal has nuanced the language of the section. So, it is necessary to read a case called Price v. Turnbull's Grove Inc., to understand section 136. The case further opens the door on another defence to a claim for a refund of "illegal" rent. All this to say that whether your tenant has a claim for a rebate of rent that was charged above guideline is not a simple yes or no.

      With respect to interest on the Last Month's Rent deposit. The rate of interest varies year to year and it follows the guideline interest amount. The interest is an annual amount, not monthly, and it is simple interest. This means that interest does not earn interest year to year. There are also provisions allowing the LMR interest to be applied to the LMR to increase it so that the LMR on deposit is enough to cover a full month of rent. If you want to read about that you should start at section 106 of the RTA and read through the subsections. The key point, in response to your question, is that the interest is an annual amount--not monthly as suggested by your tenant.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  2. What if I choose to just give back the money. But two months worth were paid by a housing company. Am I still obligated to give back him that money? Even though the two months iant actually his money

    ReplyDelete
  3. A more specific question actually to the following two other questions. THe renter who is going back on our increase agreement, fine, I am providing back his money. But two months worth were paid by housing support, so does the money go back to the renter or to the housing support? And for those two months that housing support paid, do I provide him with the rent cheques for those two months because it wasnt his money?

    ReplyDelete
    Replies
    1. Hi: How the tenant caused his rent to be paid--whether from a friend, housing support, OW, ODSP, Salvation Army, Emergency Housing Support from local government, doesn't matter. The rent was paid on behalf of the tenant for the tenant's rent. The focus will be on a potential illegal charge of rent--that may or may not have led to the tenant's eviction--arguably because the landlord charged an illegal rent.

      In my view the rent should be refunded to the tenant. Your legal relationship is with the tenant. You have no idea what relationship the tenant had with any third party funder and it is none of your business. If you send the funds to the third party funder your tenant could still go after you for a refund of the illegal rent. It will be no excuse that you paid some other entity the money because you felt that the tenant wasn't entitled to it. Of course I am assuming that you have no legal relationship with housing support (no contract, lease, subsidy agreement etc.).

      Michael K. E. Thiele
      www.ottawalawyers.com

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  4. Hi Michael,
    This is an amazing blog. I wish I had found this earlier.
    Questio , If I have served an N12, and would like to have a N11 signed. If yhe tenent signs the N11. Does that over ride the N12? I am not sure how they work.

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    Replies
    1. Hi: The N11 is an agreement to terminate whereas the N12 is a Notice to Terminate a Tenancy for Landlord's Own Use/ Purchaser's Own use. It is perfectly normal to sign an N11 after the service of an N12 or frankly any of the other Notices of Termination. The service of the N12 or other Notice of Termination brings to a head the issues that need to be resolved. Quite possibly, the N12 contains a termination date that isn't convenient for the tenant. Therefore the tenant proposes another termination date that, for the sake of argument, is acceptable to the landlord. You record the agreement to terminate the tenancy on this other date (other than the date in the N12), in the N11 Form. The reason to use an N11 as opposed to a handshake or an email is that you want to clearly record the agreement to terminate the tenancy. It is then easy to apply to the Board based on the N11 form for an order terminating the tenancy and evicting the tenant if they do not leave by the agreed upon date.

      Note that the N11 and the N12 are just between the landlord and tenant. To give effect to the N12 or to the N11 (i.e. the tenant does not move out in accordance with the N12 or does not move out in accordance with the agreement to termination (N11)) you will need to apply to the Landlord and Tenant Board for an Order. The application form that you will use is a Form L2 (Landlord application number 2). You will see boxes to tick off on this form indicating whether you are applying based on an N12 or N11, or any of the other Notices of Termination (other than non-payment of rent (N4) which uses an L1 Notice of Application).

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Sorry I misspoke, the application to the Board based on the N11 is in Form L3. The N12 is in Form L2.

      Delete
  5. Good evening,

    I am a landlord and have served an N12. I am moving back into my home because of work and am seperating from my partner. I have fallen in finacial hardship and will need assistance. If I am there full time, all my bills and paycheques go to my house. Am I allowed to have a friend come and live with me to help pay bills and help me with my kids? Or can the tenent come after me for bad faith?

    ReplyDelete
    Replies
    1. Hello: It is perfectly fine for you to have a friend come and live with you in the house. The "good faith" part of serving an N12 is whether there is a good faith intention to occupy the rental unit for residential purposes by the person who is indicated on the form N12 as being the person who will occupy the premises. As you likely indicated yourself on the form that is all that is needed. You do not have to indicate who all of the other occupants in the home are going to be.

      Be aware that if you have served an N12 there is no guarantee that the tenant will vacate in accordance with that notice. To be sure about getting possession of the home I recommend that you file an application to the Landlord and Tenant Board immediately after serving the N12. If the tenant has no problem with the N12 and intends to vacate in accordance with it you will easily get the Order for the date stipulated in the N12. If the tenant does have an issue with the N12, or wants more time, or there is a technical issue, or wishes to challenge the good faith then at least you will now that, sooner than later. If you do not apply to the Board after serving the N12 you can find yourself waiting for the tenant to leave or worse, expecting the tenant to leave, only to discover at the 11th hour that the tenant has no intention of vacating the house.

      Good luck to you, Merry Christmas and season's greetings.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  6. Hello,

    I have been living back in my home now for about 6 months after having evicted my tenent with an N12. An unexpected job opportunity has come up for me in another town, and I would like to sell and move. But how will this effect me in regards to good faith?

    ReplyDelete
    Replies
    1. Hi: If you are able to prove that the facts are as you state in your comment then there should be no issue with "good faith". The key to the "good faith" issue is whether you served the tenant the N12, in good faith, at the time that the notice was served. The question is therefore whether you had a good faith intention to occupy the premises for residential purposes when you served the N12. If the answer to that question is yes, then it doesn't matter that your plans changed or that a new opportunity arose after the fact. Incidentally, there is caselaw on this point dealing with situations where a landlord's plans change after the tenant moves out but before the landlord ever occupies the premises for residential purposes. Even in those cases there has been no issue with the "good faith" of the notice.

      What will be important for you is to maintain an evidentiary trail of how this unexpected opportunity arose. If your tenant does try to pursue a claim it would be very helpful to you to have emails, letters, etc., that demonstrate that your opportunity arose well after the N12 was served and you took possession of the premises.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  7. Happy New Year Mr. Thiele
    Thank you for this blog. I find it more resourceful then calling the LTB, as I find I often get contradicting responses depending on who I am talking to.

    I have a question for you, but I am not sure if this is more of a legal matter then advice.
    I have handed an N12 as I was thinking I was going to be returning to work as of Sept 2016, but now have the opportunity to return in December 2016. Am I allowed to resubmit an N12 form with the later date, or will this come back as bad faith? I don't have any paper work to say I was going back to work in Sept, other then that I thought I had to but now have the opportunity to return in Dec.
    If it is considered bad faith, I can return in Sept no problem.

    I just would like to know if it is wrong to resubmit an N12 with a different date, or whether it is opening a can of worms.

    ReplyDelete
  8. Hi Michael,

    I just found your blog and I am sure I will be following it from now on.

    I am the landlord of a small building. I talked to my tenant of wanting to move in and they responded that they are also thinking about moving out. I told them that I will need the place in two months but they are thinking about 4 months. Eventually they signed N11 with a vacancy date of 4 months later and asked me not to use form N12 with a 2 month vacancy date. I agreed and signed the form N11. Now my problem is because I agreed to the 4 month delay and my renovation was a mess because the tenant left the place in such a poor condition, my wife had already gave birth (for 4 months) already and do not want to move into the new place at this moment. Am I still required to move into this new place since they signed form N11?

    ReplyDelete
  9. Hi Michael,
    I have been served with a bad faith accusation because the tenent is arguing that I am not there.
    I am gone every weekend because of child care situation, but my drivers licence has been switched to the gouse I served the N12 on, all the bills are in my name, and I have proof of payment on those bills every month.
    What other evidence do I need to prove I live there?

    ReplyDelete
    Replies
    1. Hi: As I read your comment/question I see you are asserting that you do in fact live in the rental unit. Presumably when you served the N12 form on the tenant you had a good faith intention to occupy the rental unit for residential purposes. Once the tenant vacated I trust that you moved into the rental unit within a reasonable time period and this house is now the place where you live? If those are the facts then you should have no problem defeating the former tenants application. The issue will be to simply prove that you live there.

      Your driver's licence is a good government document that proves where you live. Other bills are useful, not because they prove you live there, but because they should help prove that no one else does. On top of that I would take pictures of the house, room by room, showing how you are occupying the space and living in it. Pictures of your bedroom--your bed, your dressers, your clothes hanging up in the closet, toiletries, pictures on the walls. Pictures of the kitchen, pots and pans, cutlery drawer, food in fridge and pantry, kitchen table, pictures, etc.. You get the idea, same kinds of pictures for other rooms. If you have immediate neighbours who know you consider getting them to sign a document confirming that they know you moved in, that they see you around and that they believe you live in the house. While the document is technically hearsay, it is admissible and will have some weight for the adjudicator hearing the case.

      The last bit is dealing with the fact that you are gone every weekend. The first point to make is that serving the N12 and taking over the rental unit does not require you to occupy the premises on every day of the week. You are allowed to go other places and you don't need to occupy the space on a constant basis. However, there is a bit of nuance in this. There is caselaw about landlord's terminating tenancies for own use for the purpose of occupying the rental unit as a pit stop between business trips or as a place to stay a few times a month when in town. There are other cases about the landlord wanting to make the rental unit available for their kids during summer holidays. There are cases about home based businesses. The thrust of these cases is to demonstrate that the intended occupation of the premises was not as a full time home. The nature of the occupation was transient or not for the purpose of residential occupation in the sense of this is where the landlord would call home.

      Being away every weekend for a child care situation is not necessarily a problem. The issue will be how you explain this situation and whether you can still maintain that the house is your full time home and that when you are away on the weekends that you are visiting somewhere. If, on the weekends, you are going to your real house/home then there could be a problem as that would begin to suggest that your occupation of the rental unit is not as a home but for some other reason. I presume this is not the case given your changed driver's licence address.

      If there is more to this story and the child care situation is factually complex you may wish to consult with a lawyer or paralegal and give them the details. There are other defences to this kind of application and the approach that you are "living there" is not the only defence you have available (the other defences depend on certain facts being true which information is not available from your comment---hence the value of a lawyer consult).

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  10. Hi Michael.
    It is infact my primary residence. Its the only house I own. Is there anyway to prove it is my only house I own??
    If I can prove it, will that hold any defense for me?

    ReplyDelete
  11. Hi Michael,

    Thanks for taking the time to consider my question:

    I am a tenant and after my year contract an opportunity came up for a great place. We weren’t even looking and had the expectation of staying in our unit another 2 years and even previously communicated that to the landlord. When I inquired with the landlord how they felt about it they offered us a rent reduction if we stayed and committed for at least another year. We decided that we were not willing to move and agreed to their offer and have been paying the reduced rent for a few months. Two months later we get a N12 form by email with errors on it. We didn’t sign a contract, it was just a verbal agreement. What are my rights? Can the landlord actually evict us when there is a verbal agreement in place?

    ReplyDelete
  12. Hi Michael

    Thank you for this site. I have learned so much.
    I was served a n 12 the landlord wants to have a family member live in his apartment. However. He gave it to me on jan 2 and said I have until March 3 I told him that the form is not valid as it goes into another term which means I would have to leave at the end of March ... That being said he got very upset and it has been horrible living there since.
    I want to just leave however my question is
    If I use my 10 day end tendency which is on the n 12 form to leave feb 1. Could I be liable for outstanding rent as in reality the form he gave me is void as it was given to me on the wrong day..
    Thank you

    ReplyDelete
    Replies
    1. Hi: This is a great question. I don't have a definitive answer for you as I am unaware of any appellate authority on the issue (which would be a binding authority). I have had this very issue at the Landlord and Tenant Board and I argued reliance by my client on the Notice of Termination--even though it was void. The adjudicator agreed and terminated the tenancy, again by order, based on the date that my client moved out in reliance on the void notice. That being said, I've read at least one summary where the tenant relying on a notice was penalized because the Notice of Termination was void. That outcome certainly seems unjust especially when he tenant does not know that the Notice of Termination was void. In your situation I wonder in the equities would not go against you. You are aware that you are dealing with a void Notice of Termination and have expressed that to the landlord already. You would not be an innocent tenant relying on the Notice in good faith.

      Perhaps you should consider approaching your landlord with an N11 Form, put in the date in accordance with he N12 rule. Point out that the N12 gives you the right to terminate earlier and ask to confirm the termination in a Form N11 because of the apparent deficiencies in the notice. If the landlord balks you can always point out that whenever he does serve you with a proper N12 you can give the same short notice. If that simply goes nowhere consider an application to the Landlord and Tenant Board in Form T2, seek termination due to treatment and circumstances since the N12 service.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  13. Thank you Michael for the response above

    I talked to the landlord and he said that the n 12 notice to vacate due to him having a family member move in is valid even tho he gave gave it to me on feb 2. He said it is valid because he has text messages between the two of us trying to connect to pay rent on the 1 and the 2 So because he was and I was unable to meet on the 1 to pay rent he was not able to give the form to me on time. With that I decided that he was telling the truth and that the form was in deed valid. So I ended up finding another aparent and have already paid my last month rent to secure. I plan on moving into the apartment on feb 1. He wanted me to leave at the end of March as he has a family member moving in.
    My concern is that he will take me to court for the last month or possibly even for more as I have already stated to him that the form is not valid but then I conversation he assured me that it is due to the text messages.

    I also owe him 150.00 from my current month but I have had to shovel five times now to move my car. He is suppose to shovel as it is the law and he agreed it will be part of rent.

    I would like to know one can I be liable and two I only took pictures of shovelling one time. Will the court take my word on the fact that I have had to shovel more the. 150.00

    Also in regards to finding out after I have already signed another lease and having to move. Could I possibly take him to court for expenses due to having to move from a n 12 that I thought was valid later to find out it was void

    Thank you
    Sincerely

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    Replies
    1. Hi Sheenah: The explanation in relation to text messages, picking up the rent, and therefore not being able to deliver the notice is in my view pure nonsense. The N12 is still, in my opinion, not a valid N12. That being said, your landlord appears to maintain that it is a valid N12 and that he is relying on it to require you to vacate the property. Hopefully these assertions are documented in text messages or emails and you can point to them if you ever need to do so. As you have committed to moving I think that at this stage you strongly assert the early termination rights you have in the N12. You should rely on the early termination rights and give notice accordingly.

      The landlord may indeed try to get more rent from you as it seems to me that he has a very poor understanding of the Residential Tenancies Act. You may always defend such a claim based first o the N12 being valid (and hence having an early termination right) and second, if the N12 is deemed invalid and you thereby not having an early termination right, that the discussion about the validity of the N12 lead to an agreement that you could terminate early based on terms of an N12 or based on the representations of validity even after you pointed out the problems to the Landlord. It seemed to me that the Board would be very sympathetic to your position.

      Charging for snow shovelling and reducing rent is entirely self help on your part. If it works, great, if not you will be liable for that rent subject only to you proving a claim for the work you had to do.

      As for pursuing the landlord for expenses arising from a void N12 there is a theoretical possibility of that but I don't see it being successful. That the N12 was void is apparent from the form itself and the notes. I don't see an adjudicator granting damages for you relying on a Notice that you could have easily discovered is void. That being said, the only opinion that really matters it that of the adjudicator.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  14. Thank you so much

    I gave him my notice for 10 days and also sent a text to confirm.

    He acknowledged tha the received it and that I will be leaving in 10 days. So I now have a agreement in text that we both know that I will be leaving in 10 days. I believe that the both of us will now be covered in terms of trying to collect more money after I leave !!

    Thank you so much for you time This is an amazing and much needed site for both tenents and landlords
    Much appreciated

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  15. Hi Michael,

    My husband and I are in a unique scenario where due to unfortunate circumstances we had to move across Canada for good in which I immediately informed my landlord in Toronto on Dec 14th and he agreed to early termination with 60 days notice. We vacated the place on Dec 21st. While we fully paid for the month of Dec and our deposit was kept for the January rent, both parties agreed that he is going to try to re-rent the place and if so we might get part of that deposit back and worst case scenario if he doesn't find anyone for the month of Feb, we owe him half the rent with respect to our 60 days early termination notice. last night (Jan 26th) he informed us that his intentions to rent the place changed early Jan and he deiced to sell the place instead of renting and that a selling agreement was firmed up as of last night with his possession date set for mid Feb and he is requesting us to pay for half Feb rent until his place is sold. I looked up the Ontario Act last night and I'm wondering if lack of reasonable effort to mitigate damages clause would apply here or not and if we are responsible for the rent for time in which the landlord was not making the unit available to prospective renters.

    Thank you in advance
    Tera

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    Replies
    1. Hi Tera:

      I presume that your landlord let you out of a fixed term lease for which you could not have given 60 days notice. In "trial" this will be an important fact for a judge in deciding what is fair.

      In negotiating the 60 day termination you appear to have gotten the landlord to agree to refund any prepaid rent should the unit be rented sooner. That certainly is more than fair especially if there is nothing said about the re-renting costs of prepping the unit, advertising the unit, showing the unit, paying a commission, etc.. Is it safe to presume that the landlord expects a significantly higher rent? Just trying to figure out why he is being so generous as he did not have to be.

      The landlord changing his mind on re-renting and deciding to sell clearly is a change of plans. It doesn't necessarily "fit" within the scope of your deal. However, there is still a question of whether suitable replacement tenants would have been found sooner than the 60 day window. I think it is entirely possible that a Judge would conclude that the early termination of a fixed term lease, in your favour, gives the landlord a little leeway to decide how to go forward. Adjusting his plans within the notice period is a reasonable thing to do and the law generally does not require a landlord to re-rent within a notice period even if the tenant gives up possession early. The landlord may indeed use the notice period to fix the place up and get it ready if the tenant's decide to return possession early. To my mind this does not fall within the mitigation of damages provisions of the RTA. That being said, you seem to have reached terms that include having the landlord look for a new tenant right away. This becomes a compelling argument if you can show a hot rental market (easy to re-rent) and that the landlord gets an advantage by terminating your lease and getting a potentially higher rent from new tenant or selling into a hot real estate market and being able to give vacant possession to a new purchaser (which he couldn't do during your fixed term lease).

      All this to say, it really depends on how you look at what happened here. Ultimately, the landlord is not double dipping and not getting two rents for the same time period. Deciding to take the 60 days notice to sell I think is reasonable. You would have been stuck with 60 days notice in any event and I don't think a Judge would look as the landlord's decision to sell as unreasonable.

      If you had simply moved out, without making a deal, the landlord would have had a duty to mitigate losses by trying to re-rent. If this were the scenario, my experience is that a Judge would give the landlord the 60 days without question. The mitigation inquiry would be focused on what happened after the 60 days and be less focused on the 60 day time period. Of course, if the unit were re-rented sooner then the damages would be reduced.

      Sorry that there isn't a definitive answer to your question. I think it really depends on how the story is told and who the Judge is.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Hi Michael,

      Just to quickly add to this, based on our initial agreement with the landlord, chances of the unit remaining empty for the month of Feb was near zero due to its location, amenities, and etc. we weren't asked to leave a deposit for the month of Feb (later he also admitted he turned away potential interested tenants as he "changed his mind" (vs. initial agreement) in early Jan to sell instead in an email). Is there a chance to argue that this decision that we were fully unaware of when we agreed on the early termination terms back in Dec changed the chance of the unit being vacated drastically from near zero to 100% which is major change of the terms in the initial agreement that could potentially nullify it? Since we were under the impression that the unit will rent, we rented a place in the new province as of Feb 1st, had we known from early Jan when he changed his mind and as a result of a new agreement between the parties, we could have stayed with a family member and not get hit with double rent. Since my husband and I are not looking for trouble, we offered him to split the difference. I understand you can't give legal advice. I just want to know if he decides to take us to a small claims court, do we have a case or I'm just plain wrong?

      Thank you again

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  16. Thank you very much for this Michael. This helped a lot. the reason he didn't charge us for the re-listing and showing costs was that our lease was coming up on Feb 2016. so he would have had to pay that shortly anyways and yes he did list it at a higher price and he did have interested parties who he turned away. We also got professional cleaners do a great job where he even admitted the place looked better than when we took possession so no time was wasted on maintenance or cleaning. Thank you so much again for your response and help! greatly appreciated!

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  17. Hi Michael, I have recently given my tenants 80 days notice and they have come back to me requesting an additional month or two, but they also indicated that they would prefer not to move at all. As such is there something I can do prevent a pattern of delays? I understand the N11 form would indicate a clearly agreed upon termination date, however how binding is that? Would it be better to maintain my original date and then, if I were to grant them an extension, could I do that under a new short term lease (ie a fixed term on two months)? Would this remove them from a month to month contract which is what the current lease terms are, they have been in my house for more than 2 years. There prolonged residency at my house may cause me out of pocket expenses, is there a way to integrate those into the new lease? Any advice would be greatly appreciated!

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  18. Hi!

    We recently received an N12 with 80-day notice, with the landlord repossessing for personal use. I have a few questions about this ...

    Our landlord, who lives and works in another province, had this to say about the reasons for the N12: "My company has recently gone through significant organizational changes which has led to my role requiring that I spend more time in [Ontario]. With this in mind, I have determined that it makes sense for me to have the house available for my personal use in order to meet the new demands of my job."

    1. Are there any minimum standards of occupancy that must be met for a landlord to claim "personal use"? Does it need to be their primary residence?

    2. For a number of reasons we strongly suspect (but can't prove until it's too late and we've moved out) that the landlord intends to have another tenant occupy the house full-time, and then possibly the landlord will occupy it occasionally it for personal use while visiting the city or on business. Would this be legal?

    3. Since we can't prove that #2 is happening until after we have already moved, if we could prove (after the fact) that this had happened, would we have any legal rights to recourse? What could that compensation look like?

    4. Assuming we do have to move, we want to withhold our rent, and apply our last month's rent to the upcoming month (the first of our two months allowed). Then, if we want to use the 10-day clause to terminate before the 80-day period the landlord set, we would be able to do so without needing to ask for our money to be refunded (we have reason to believe this would be an arduous process that the landlord would fight). If we ended up staying for the second month, we would pay for that. We would prefer this option because WE are honest, and we know that we will pay whatever we owe, but we do not trust the same about our landlord. Would this get us into any trouble?

    5. If we use our 10-day notice to terminate in the middle of a month, is the rent then pro-rated for that month?

    6. When calculating what we owe, is it fair to consider the interest owing on our last month's deposit, which the landlord has never paid?

    I know this is a lot! Thanks in advance for any information.

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  19. Hi Michael.

    I am having a situation with my current Basment apartment, and it's actually really upsetting me

    I live in a Basment and the old owner sold the house with me in the Basment. This was 60 days ago. The new owners took possession on July 1, they have not moved in as they are doing renovations on the upstairs where they will live.

    After two weeks of renos and being woken up every morning 7 days a week, I wrote emailed ( as per requested by them for communication). Asking how long the renos will take and if I could be informed when it will Interfer with my reasonable enjoyment.
    They became very defensive saying they do not have to inform me of anything and in fact will be working even earlier and longer to get it done. At that point I snap shot some pictures of rules from the tenent board website and emailed them, my rights as a tenent.
    The emails went back and forth for the entire day, leading to them saying they don't have to tell me anything or have to keep it down. On thier last email of that day, they said they wanted to meet in person to give me a n 12 as they do not want to be landlords anymore and want the apartment for themselves.

    I know that this was done in retaliation to myself asserting my rights as a tenent, and have the entire conversation in email.

    Also they bought the house knowing there is a seperate Basment apartment with a tenent in it and had 60 days and day of purchase to decide that they do want a tenant.

    It is pretty obvious that the one time I speak up for my rights they then decide to use a n 12 for personal use the same day of disagreement. They could have provided this when they took passion or when they bought the house. Clearly this was retaliation.

    My question is , does the board not have to deny the n 12 as they clearly did this because I used my rights and they didn't want to deal with it or reapext that so they kick me out. Even if they do indeed and have decided they want the apartment for themselves ..

    Thank you sincerely.
    Amanda

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    Replies
    1. Hi Amanda:

      The landlord will need to prove that when they served you with the N12 that they did so in good faith with an intention to occupy the premises for residential occupation. Certainly, your defence will turn on the issue of whether this is "good faith" and whether they actually intend to occupy the premises for residential purposes.

      Your question is phrased well. Does the Board have to deny the N12--with the emphasis on the "have to". In fact you have a point. Section 83(3) RTA deals with situations where the Landlord and Tenant Board is required to refuse an application. One of those circumstances is in section 83(3)(c) which provides that an application must be refused if the reason it is being brought is that the tenant has attempted to secure or enforce his or her legal rights. It does seem that the N12 and the application is directly connected to your complaints about the interference with your quiet enjoyment.

      That being said, how the Board rules really depends on how the adjudicator perceives the issues between you and the landlord. How the evidence comes out and what the legal implications of the evidence is is something that you should likely be a bit coy about until the hearing. I can see this application turning out either way as it is entirely conceivable that the landlord could explain the manner of service in a way that is not inconsistent with the Residential Tenancies Act. Then again, if the evidence is damning and you even get the landlord to admit that they served the N12 because they considered you to be a nuisance etc. and therefore decided to just use all the space you then have a good defence. Much turns on how the evidence comes out.

      Good luck to you

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

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  20. Thank you very much michael.

    I feel like the fact that they decided to give it to me and decide to give it to me during a complaint is pretty clear. Considering they bought the house w a tenent in it and had 60 days to provide this to me. They also could have done it on July 1 when they took possession of the house. However they did not and gave it to me when we had a disagreement over my trying to have my rights met as a tenent. Which is in violation.

    On a side note, the n 12 form I think may be void as they put the address as the house and did not put basement, which is where I live. Does this mistake not void the n12?

    You have provided me with some relief over this matter.
    Thank you for your service !!

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  21. Hello Michael! You are just awesome! Wealth of knowledge gained by reading these posts.

    I have 2 questions,

    1. Can I reissue my N12 with corrected end of agreement date (last day of the month) but with the same issue date?

    2. The day I presented my tenant with N12, he got really upset. My place is not registered or zoned for renting. He actually complained the city about the safety of my apartment. Inspector did an inspection and could not find any safety issue. She rather issued me Order to comply, with 2 options, either to apply for registration or to remove the stove from the apartment and not to rent that place. Can the LTB held me liable for renting out an unregistered place when I will go for N12 hearing? What options I have now? Thank you so much and waiting for your valuable reply.

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    Replies
    1. Hi Imran: If your original N12 is somehow defective it is legally "void". You are not able to correct it. You will need to prepare a new N12 and serve it with the appropriate notice (60 days to end of term). Using the original issue date does not work.

      Your second question is more complicated. A rental unit that is "illegal" in the sense that it is contrary to the zoning by-law or otherwise non-compliant with the law does not actually make the lease illegal nor does it permit you to interfere with the rights of the tenant in the unit--even though the rental unit is non-compliant.

      The City Inspectors order does not over-ride the rights of the tenant under the Residential Tenancies Act. Ordering you to remove the stove from the apartment does not over-ride your obligations to the tenant and the Residential Tenancies Act. Taking the inspector up on one of the "options" might actually have you breaching the Residential Tenancies Act. You can only do what the inspector orders--vis a vis the tenant--if you do it in accordance with the Residential Tenancies Act.

      I do not see how you can lawfully remove the stove while the tenancy continues and the tenant is in possession of the unit.

      You could try to terminate the tenancy--which I suspect is what you are doing with the N12. Presumably you are choosing to take back the unit and no longer rent it out?

      Keeping the City at bay while dealing with the landlord and tenant issues might require you to get time extensions from the inspector. Failing agreement you might need to appeal any order to give you the time to deal with the tenancy.

      Good Luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

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.