Friday, 4 November 2016

Form N5 technicalities: terminating a tenancy for noise and other anti-social behaviour

THE FORM N5: Technical requirements when a terminating a tenancy for substantial interference with reasonable enjoyment
One of the most complicated processes under the Ontario Residential Tenancies Act is to terminate a tenancy for substantial interference with reasonable enjoyment of the premises by the landlord or another tenant. What I’m talking about is noise, shouting, loud stereo’s, name calling, offensive conduct, anti-social behaviour, dogs barking, pets causing problems (smells), being messy, taking up common area space without authority, and all of the countless things that a tenant or occupant of the unit might do to substantially interfere with the reasonable enjoyment of the premises by other tenants or the landlord.
The Ontario Residential Tenancies Act makes behaviour, like that described above, the basis for terminating and evicting a tenant. If a tenant does the kinds of things described above the landlord (only the landlord and not another tenant), may serve the tenant with a Notice of Termination in Form N5. The "N" stands for "Notice" and the "5" just represents that it is the 5th notice available under the RTA. The N5 form can be filled out or downloaded from the Ontario Landlord and Tenant Board website.
The form N5 is deceiving in its simplicity. When you download the form you will see that it is all of 3 pages long. It provides some boxes to fill in and some boxes and circles to check off. On the second page it provides a little 6 box grid where you are directed to include the details of the allegations. There is not a lot of space in this grid leaving you with the impression that not very much is required to complete this form. The remainder of the form is completed by signing your name and providing contact details. How difficult can that be?
In fact, the Form N5 that you have just reviewed contains pitfalls that will cause your application to be dismissed if you don’t "get it right". In Residential Landlord and Tenant law, "near enough" is not in fact "good enough". While the standard for notices may not be perfection, the standard is not far off from that. Ontario appellate authority makes it clear that Notices of Termination must be correct in order to be valid. If the requirements of the Notice are not met the form is void (even if the error appears "obvious" and what was intended is clear). A notice that is void can not be amended or be fixed by the Board in a hearing. The landlord must simply start again if the notice is void.
With this in mind, it is important to get all of the essential elements of the Form N5 correct otherwise you will be starting the process all over again when the Board refuses the application or the adjudicator finds that the Notice contains a mistake or is lacking information.
This article does not address the entire N5 notice and all of the technical requirements of the N5 and the application process.  Instead, I’m directing my comments to the second page (reproduced here) and the 6 grid box under the heading "Details about the reasons for this Notice".
Firstly, this little box grid is very frustrating to use and given the propensity of the forms not to save the inserted information when you try to save the electronic version I always recommend that the only thing you put in this grid box is "see attached –Schedule A". Start your "Details about the reasons for this Notice" in a separate word processor document. Start with a title about what the document is and then in sequentially numbered paragraphs write out the supporting details.
The key (and point of this article) is to address the legal requirements of the "details" that you intend to provide. It is these legal requirements that mess up and profoundly frustrate a great many landlords. These legal requirements result in the dismissal of numerous applications to the Landlord and Tenant Board based on an N5. You lose the $170 application fee and usually several months of effort because of legal errors in the "details" portion of your notice. The effort is lost because you have to start from scratch–as if all of the work you have done counts for nothing. This is especially frustrating if you have corralled tenant witnesses to take a day off of work to come testify and the hopes are high to finally deal with and evict a problem tenant.
So, what does the Ontario Residential Tenancies Act say about the "details" section of the Notice of Termination (N5)? That is set out in section 64 (2)(b) RTA where the required contents of the N5 is set out. This section directs that the N5 shall "set out the grounds for termination".
Is it possible to be more vague than what this direction requires? I think it would be difficult to give a landlord less guidance. Fortunately, (or unfortunately if you’re not aware of the decision), the Ontario Divisional Court has, in a short but clearly written decision, explained what the "details" must contain in order to make a Form N5 valid.
The decision from the Court is a case called Ball v. Metro Capital. It is a difficult decision to find online so I will reproduce it at the end of this article so that you can read it. Given the importance of the case there is really no excuse not to read the case. This decision of the Court is probably responsible for more dismissals of applications than any other single case that I can think of in the Residential Landlord and Tenant context.
What is the thrust of Ball v. Metro? It is in essence the who, what, where, why, when, and how case. This is the case that defines what section 64(2)(b) means when you are directed to "set out the grounds for termination" in that little 6 grid box on page two of the N5 Form.
To understand what is meant by "who, what, where, why, when, and how", you have to understand how an N5 Notice of Termination works. An N5 is a voidable notice of termination. This means that a tenant, once they receive an N5, have the legal right to void the notice by changing their behaviour or paying for the damage (another ground of termination in the N5). Because the N5 purports to terminate their tenancy and evict them from their home, the Court has held that the tenant’s right to void the N5 is an exceptionally important right. Accordingly, the Court has held that a landlord must provide clear and unequivocal details about the alleged misbehaviour (i.e. who, what, where, why, when, and how) so that a tenant may exercise their right to void the N5.
The details are necessary in order to allow the tenant a full and complete opportunity to know what behaviours to stop or change in exercising their legal right to void the N5 notice. Without details, a tenant can not know what the alleged behaviours are that they must stop to enjoy the right to void the N5 Notice of Termination. If the allegations are vague, or over broad, a tenant is potentially left guessing about the reasons for the Notice of Termination.  Given that the failure to void the N5 may result in eviction, the Court has held that knowing exactly what conduct is being complained about is mandatory aspect of a validly drafted N5.   Accordingly, if you have drafted an N5 that seems vague or leaves a tenant guessing—then it will be a void notice and useless. A void N5 will result in the dismissal of your application to the Ontario Landlord and Tenant Board and you will not be able to get any order against the tenant.
EXAMPLES are always useful in trying to explain these concepts. Below, I will give you three examples of grounds that would be insufficient, vague, and hence result in an N5 containing them to be void. Further below,  I will give you the same three examples except with sufficient information to make the N5 valid and not technically void.  It is to be noted that just because an N5 is technically valid this does not mean that eviction is guaranteed.
IMPROPER DETAILS

1. You are always being loud and annoying to your neighbours and they are complaining to me about noise.
.2 There is a banging sound in your apartment and it is waking your neighbours.
3. Your dog barks too much, makes a mess, and scares the neighbour’s kids.

SAME DETAILS WITH PROPER INFORMATION

1. On or about October 5, 2016, at 11:45 p.m. you were shouting at someone in your unit. The shouting continued for about 30 minutes. You sounded angry and upset. This was concerning to your neighbours and woke your downstairs neighbour up. The shouting continues regularly and was heard on October 6, 11, and 13th, at approximately the same time of the night. This shouting is interfering with the reasonable enjoyment of the premises by your neighbours and it must stop.
2. Between the hours of 7 and 8 a.m., on an almost daily basis (the last reported time was June 2, 2016), your neighbours are complaining about a heavy banging and clanging sound coming from your unit. The floor shakes with this noise. Your neighbours report that it sounds like a heavy weight being set down similar to that on a gym set. The banging/clanging sound stops after about an hour and it is clearly something that you are doing in your unit. This sound is waking your neighbours early in the morning and interfering with their reasonable enjoyment of the rental unit. It must stop.
3. On July 3, 2016, between 8 and 11 p.m., and on July 4, 5, 6, and 7th, roughly between the same hours, your dog was barking almost continuously. Your neighbours knocked on your door on July 3 and 4th and there was no answer. A note was left on your door by your neighbour on July 5 requesting that you do something about your dog barking. The incessant barking is very disturbing to your neighbours. While investigating the barking sound I (the landlord) heard the barking on the 7th at 9:30 p.m. as well. I knocked on your door but you were not home. On July 8, 2016, I was in the building and noticed you coming into the building with your dog. Your dog was not on a leash and it ran up to several people in the hallways jumping on them. While your dog seems friendly and happy to see people I have received complaints that this jumping is scaring some of your neighbours. Further, while investigating the complaints, I noticed that you are not stooping and scooping after your dog in the back yard. There are numerous piles of feces in the yard and I have been told by the superintendent that he has witnessed your dog doing its business, off leash, and you not cleaning up the mess. You are required to prevent your dog from barking incessantly, required to keep your dog on a leash, and to stoop and scoop after your dog in order to void this notice.

If you compare the foregoing (#1 to #1, #2 to #2, etc.), you will see the obvious difference between the them. The details in the second set allow the tenant to know with much greater precision what is being complained about and what needs to be done. The information in the second set of details does not make the tenant guess about what the concerns are and therefore the tenant’s right to void the notice by compliance or stopping the alleged behaviour is preserved for them.
With respect to the examples in the first set, that do not provide much detail, you will hear many landlords argue that the details are unnecessary because the tenant knows what the problems are. This argument of course presumes that the allegations are valid and real and that the tenant is the source of the problem. The details of date and time are important because the noise or other behaviour may be the result of a another occupant in the rental unit or that of a guest or a service provider. The tenant may not know what the other occupant, co-tenant, or service provider is doing and as such the details will allow the tenant to make specific inquiries as to what is going on in their unit at that particular time of day.
Is it possible to "overkill" the details in the sense that you provide too much information? In my view the answer to this is yes. I have seen some landlords react to a dismissal of an N5/L2 application due to a lack of detail by serving a new N5 with dozens of pages of evidence, letters, and photographs attached to the new N5 Notice of Termination with the belief that providing all of this evidence will erase any doubt about what the problem is.
In my view, providing too much information and all of the supporting evidence invites more confusion and misunderstanding. The key, I think, is to find the balance between "material facts" and "evidence". The "material facts" are the who, what, where, why, when, and how of the allegations. The material facts are NOT all of the intricate details of the allegations along with the opinion and judgment of the complainants against the tenant.
An example of going over the top and providing too much detail is as follows—using the example from #1 above imagine the details as follows:

1. You were seen coming home from the bar by your neighbour drunk every night for the last several weeks and specifically on October 5, 6, 11 and 13, around midnight. Attached is a picture of you from the security footage and it is clear that you have been drinking and that you look unhappy and upset. Your neighbours don’t want to see you looking like this and you shouldn’t dress like this at your age. Your neighbour recorded you shouting on her cell phone and it seems you were on the phone yelling at your ex-spouse about his/her failure to pay spousal support. Given what you make you should not be yelling at her/him about these things and especially not so loud that everyone in the neighbourhood can hear about your problems. Your neighbour thinks that you are yelling because you have been unlucky at the bar and are just a lonely person. Shouting does not solve these problems. We received a fax from another tenant complaining about the shouting and it is clear that she thinks you have mental health problems but that this does not excuse your uncivil behaviour. You should see a doctor if you need help or maybe you should get some medication because this needs to stop otherwise you will be evicted.

Hopefully the foregoing "details" clearly demonstrate an inappropriate and unnecessary commentary about the problems in the tenant’s unit. While these details do set out the "problem" you can see that the level of detail is simply inflammatory and they do nothing to allow the tenant to identify the issues and stop the behaviour in order to void the notice. It is not necessary to provide a commentary about the tenant’s life and it is unnecessary and inappropriate to engage the tenant at this level.
A further problem with these details is that they beg the tenant to dispute the assertions of drunkenness, manner of dress, promiscuity, success at the bar, family law problems, and their mental health. These allegations will most certainly inflame the tenant’s passion and it is likely that they will lose sight of the actual point of the Notice of Termination (N5) which is that the shouting is disturbing others and to please stop it. In my view, an N5 that gets too personal and contains too much inflammatory language and information is just as bad as a Notice of Termination that contains too little information. Both are void, in my view, because they deprive or interfere with the tenant’s right to void the N5.
FURTHER IMPORTANCE OF MATERIAL FACTS
Focusing closely on the allegations in the N5 is important for another reason aside from letting the tenant know what needs to be done or stopped to void the N5. The allegations in the N5 set out the scope of the eventual hearing at the Landlord and Tenant Board.
What do I mean by this? If you are drafting an N5 the specific details in the N5 become the allegations that you have to prove at the Hearing in order to secure an eviction Order. Hence, if you look back to section 64 of the RTA you will see that the N5 may be served where the " conduct of the tenant ... is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant ... .
Your details allegations should reflect the section 64 grounds to terminate a tenancy. From a tenant perspective, the details are important in this respect because it lets the tenant know exactly what allegations need to be refuted or denied in order to "beat" the application at the Landlord and Tenant Board. This is an important aspect of the "details" as recognized by the Divisional Court and it complements the requirement at section 183 of the RTA that directs the Board to adopt a procedure that affords all persons affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
While this is very useful for the tenants, and it is their right to know these details for this purpose, I find that spending time on drafting the material facts with an eye to the section 64 requirements ensures that, as a landlord, you lead evidence that actually has a chance of evicting the tenant. A failure to thoroughly consider the allegation in the context of section 64 and failing to think about how you are going to prove the allegation is likely to end up with vague and unclear evidence that will not be sufficient to evict the tenant (i.e. the adjudicator will not be satisfied that you, as landlord, have met your burden).

If you give careful thought to the specificity of your allegations you will also likely come to realize that your knowledge of the exact nature of the complaints against the tenant may be lacking (especially if you are serving an N5 based on reported misconduct as opposed to misconduct that you have witnessed).  This should lead you to make better inquiries failing which you might be surprised by unhelpful evidence from your complainants at the hearing.  Further, as a bit of a "cheat" to try to capture complaints that are not specifically described in the N5--but which flow from the conduct complained about--you may wish to consider lightly blending in general allegations with the specific allegations (details) so that unexpected evidence from witnesses that are a legitimate ground for eviction can "count" for the purposes of the hearing.  Tenants--you will want to object to any of the generalized "cheats" that only become meaningful with the oral evidence of witnesses--i.e. as a tenant you want to limit the scope of the hearing to the specific allegations only and allow no room for generalized comments being the grounds for termination.
CONCLUSION
The Form N5 and the statutory requirements around the first and second N5 notices and the details are complicated. Having worked with these forms for many years it is readily apparent that how the N5/L2 case unfolds is sometimes confusing to adjudicators, lawyers, tenants, and landlords. To that end, if you find yourself trying to evict a tenant on an N5–and the resistance is fierce–you are likely best served by retaining an experience paralegal or lawyer to fight the application for you. Likewise, if you are tenant reading this blog you should take away from this that there are a number of serious and significant legal defences available to you. However, these technical and legal defences can be lost if you do not exercise your legal rights–hence a tenant who wants to fight an N5/L2 application is also best served by hiring experienced counsel or a licenced paralegal.


As promised, below is the case of Ball v. Metro Capital.  This is a must read for any landlord and tenant in Ontario.




17 comments:

  1. Michael....

    Somewhat off topic, because we have not gotten to this stage yet, and I've never seen my issue specifically addressed in your fantastic blog...

    I rent a 4 bedroom house.. the title is apparently in the name of Mother and Daughter, since both of them were on the lease....

    Daughter lives in the basement and is a real sweetheart type of person... Mother comes to visit often.

    Every time Mother comes to visit, she has a problem to address... maybe we have the lawn mower out in the back driveway, or we are putting out too much garbage or recycling, or we're washing our clothes before 7 pm (daughter pays 1/7 of the hydro and water bill).... seems there is always something.

    Daughter is seldom around - she works wierd and very long hours... shares laundry facilities with us (washer and dryer are in my kitchen area for some reason). We do NOT share washrooms and kitchen.

    So, what's the legal perspective.... since Mother is visiting Daughter, she is, of course on the property.... but can she constantly knock on our door with her 'issues' about things? How do we prevent this constant communication, or can we?

    Thanks!!!!

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    1. Hi Robert: From the info you provide it does sound like there are separate rental units here hence the exemptions that might apply do not appear to do so. Presuming a tenancy covered by the Residential Tenancies Act (RTA) you have all of the rights of a tenant as provided under the Act. Hence, you have the right to 24 hours written notice of entry. The landlord is not permitted to harass, intimidate, etc.. You may be assertive about these rights and perhaps suggest to the landlord that she back off. Ultimately, if you are being bothered too much you can file an application to the Landlord and Tenant Board in form T2. You have a right to quiet enjoyment of the rental unit.

      That being said, note that a fight with the landlord can lead to silliness. If the landlord takes offence to you asserting your rights you might then find that she reacts badly. Perhaps she tries to terminate your tenancy, perhaps she tries to take over the entire rental unit for her and her daughter, perhaps she seeks to raise the rent (which can be a problem if your unit is exempted from rent control).

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  2. Hi Michael,

    Your blog has been incredibly helpful and I don't even know if you still respond to comments anymore on here but I pray you get this because my roommates and myself really need some advice.

    I am renting a house in Waterloo, along with 3 other random roommates (found by the landlord). Each of our leases is a separate 4 month agreement with the landlord, for each of our rooms and then shared use of the common areas. The landlord is a past student and the house is owned by his family who have just rented out these rooms for 4 months and are planning to sell the house in May.

    From the beginning 1 roommate has consistently caused problems. Examples are noise at unreasonable hours (between 1AM-7AM), leaving the kitchen a mess (has left rotting raw meats on the counter, a health concern in my mind), instead of cleaning dishes he puts them out on the front porch, etc. In the past, when we approach him to have him clean up after himself or politely ask him to quiet down at night, he has responded saying our reactions are rude and disrespectful and he continues his poor behaviour. Things have now escalated though. One roommate approached him about cleaning the dirty dishes off the front porch (1. we don't want to attract animals and 2. its disgusting) and he first ignored the roommate's request. Within half an hour the bad roommate then went down to other roommates room to confront him and actually said verbal threats and got physical by forcing the roommate's door open when he tried to close it on him to return to studying, then slamming that door and the house door when yelling in another language.

    The good roommate was extremely scared in the situation feeling like the individual was going to jump at him or something and now it has left all 3 of us very scared to be in the house around this individual. After this situation occurred the good roommate actually tried to speak with him again on several occasions and be civil to make the relationship ok again (even though he is clearly not in the wrong). But the bad roommate either ignores him, doesn't come to his door, or tells him to leave him alone.

    Both the bad roommate and the good roommate have cars and share the driveway so before this they were in communication about moving cars to allow each other to leave, go to the class, etc. The bad roommate has now begun blocking the good roommates use of the driveway (parking at the end so he cannot access it).

    We've brought the situation to the landlord and he says there's not much he can do about him, that he would speak to him but it's a "sticky" situation. I'm wondering if there is a way we can either get him evicted or a way we can legally break out of our leases because we are all feeling extremely unsafe and uneasy around the individual and I wonder if that falls under the RTAs act 64? Obviously we would prefer the individual just speaks with us and the situation is resolved but as time goes on its not seeming like this will be the case. Also would there be a way to get our last 2 months rent back if we were to break the lease and leave because of the unsafe living environment and the landlord not trying to fix the situation?

    I am just very scared, worried about what the individual may do next and feeling helpless in this situation, so hopefully you can this and can provide some advice! It would be greatly appreciated!

    THANK YOU

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  3. Hello and I love your blog. I'm a tenant in Ontario. No lease, month to month renter. 5 unit rental house with no landlord. The building started running out of hot water intermittently. Way below 43 degrees. I wrote him letter to fix, texts etc.. he became very mad and keeps saying everything is working. He has called plumbers etc.. but still intermittent cold water. He recently installed water meters on everyone's lines and said he is watching the meters and will evict. He has served me an n5 form. Its poorly filled out with no particulars. It basically says I'm using to much water. He takes pics of the meter and texts me them saying it to much water. My question is: how much water can a tenant use? And how can I fight back? Thanks so much.

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    1. Hi: This question can get a bit tricky. The answer ultimately is "a reasonable amount". Included water in a lease includes an implied term of reasonable use. The opposite of reasonable use is to waste the utility and a landlord has a right to not have utilities wasted. I have had some strange water cases over the years but a not uncommon situation is where tenants are running water almost constantly in a rental unit. Taps are left open and on for hours on end. The purpose of doing this is not always clear but certainly some tenants are trying to 1) drive up landlord's costs, 2) deprive other tenants of hot water by emptying hot water tank, or 3) the inordinate use is caused by mental health problems.

      If you are in the category of "reasonable use" then there isn't much else to do. Perhaps monitor your main water using activities---to see if there is something unreasonable there. It would be interesting to determine, as well, if all the water on your meter is being used by you and not other persons---perhaps an outside tap--for gardens, car washing, etc?

      Michael K. E. Thiele
      www.ottawalawyers.com

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  4. Dear Michael,

    Your blog is a livesaver!

    I and another person (total 2 people) rent a studio apartment (about 400 square feet) in Toronto. Received N5 from my landlord. We still have 4 working days until this form remains voidable. We really want to stay in this place due to personal and financial reasons. Have some questions about it and your response would be appreciated.

    To give some background, we have been living here for the last 12-13 years, the unit has not been repainted since then. The building is about 50 years old. I believe that there is centralized ventilation fan that has small opening in bathroom and kitchen.

    There are 2 issues that the landlord has indicated and both issues are different from each other.

    (a) Bathroom: washing of cloths inside bathroom and not keeping bathroom door open for long resulted in mold getting formed, and painting getting damaged. It has also resulted in leaking of water to the unit below.

    (b) Bedroom: The tenant in unit above us has dome some drilling in her unit and that resulted in some damage in our bedroom also. We have informed the landlord 2 weeks later than the issue started happening.

    I have posted the copy of landlord’s exact letter at the end of my message.

    My questions:

    (1) What could be the best course of action that you would suggest?

    (2) If we pay $3500, then what precautions should we take from legal point of view (in addition to making relevant changes that the landlord said) to avoid eviction in the future (specifically within the next 6 months)?

    (3) At the time of payment, should we give any letter (explaining our situation that helps us legally now or later, or any other thing in the letter) to the landlord?

    (4) What defense people like me have under this situation?

    We are good people, have never been to any court or have gone through such legal matters, and this is our first rental apartment so we only have a basic understanding of rental laws etc.

    Thank you for your time and help.

    Letter by the landlord (this is attached with the N5 form).

    On "date", the superintendent and the property manager entered your unit to look at the damage on the ceiling from the unit above as well as check your washroom because of the leak into the tuck shop.

    At that time you informed that the ceiling had been leaking for a couple of weeks and when asked why it took you so long to report it, you said that you thought it was from the windows. You signed a letter dated xxxx (date given in the N5 notice by the landlord) stating that if there were any issues from the windows then you would report it to the superintendent immediately. We do in fact have a signed copy from you.

    When inspecting the bathroom, wet clothing was hanging in the shower. We have noticed that you never use the laundry room in the building. The bathroom was extremely humid and condensation was forming along the curtain rod. As you were reminded previously, the washroom door should always be left open for proper ventilation when not in use. This was discussed with the property manager at the inspection and you told her that you do leave it open for 2 to 3 hours a day. With all the wet clothing hanging in the bathroom, this has caused black mold to form all over the ceiling and walls of the washroom. Chunks and paint and plaster have peeled away because of the humidity. Water from the humidity is seeping down the washroom and causing damage to the store below.

    Because of your failure to keep the door open as told multiple times by management, we feel you are responsible for the damages.

    The cost to treat, plaster, and paint your apartment as well as fix the unit below is $3500.




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    Replies
    1. Hi:

      Notwithstanding your lengthy question I think the ultimate answer, in relation to the bathroom, requires an investigation by a contractor or someone with experience in the building trades. Any answer to your questions relies on a certain set of facts to be proven. Change the facts, or the understanding of the facts, and the answer changes. On that basis, take my comments as an impression based on what you've said in the question. The ultimate answer could be very different depending on the facts as determined by a Judge or adjudicator.

      I start the analysis of the bathroom issue taking into account your comment that you have lived in the unit for 12-13 years and no painting has been done in that time. For me, that pretty much negates any responsibility you have for the condition of the walls in the bathroom. After that much time, the landlord should have been in to determine that the walls needed painting and protecting and should have done the work. Bathrooms are a high humidity environment--naturally so by the function of what goes on in them. One could expect humidity problems, or problems incidental to humidity, surfacing after a period of time. 12-13 years is certainly a reasonable period of time for humidity related problems to surface.

      There is a difference between "mold" and "mildew". In my view, it is reasonable to expect a tenant to wash walls, spray cleaner with either clorox or vinegar to kill mildew, and air out the bathroom as much as possible to prevent mildew growth. However, with the passage of time, paint wears thin (and out) and rooms need to be renovated. That is a wear and tear issue and the responsibility rests entirely with the landlord.

      I'm sympathetic to the fact that different people live differently. A bathroom is used differently and some uses may be more intense than other uses and some people may use bathrooms differently. Shower duration, temperature of water, frequency, hand washing clothing (because it's cheaper than washing machines), etc. etc., all impact how people would use a bathroom. These wide range of uses are not inherently right or wrong and these uses, I don't think, visit liability onto the tenants who act in these different ways. It simply means that landlords will, for some tenants, have faster "wear and tear" than for other tenants and this is all within the range of "normal use" for which the landlord is paid rent.

      That being said, the range of behaviours can venture outside the range of what is objectively reasonable. If a tenant's behaviour so unreasonable that it is not within the contemplation of reasonable use then I think the resulting wear and tear can be characterized as damage and the tenant would be responsible for that damage. From what you describe I don't know if your behaviour and the resulting mold constitutes damage. Certainly, a bathroom that has seen no maintenance (i.e. painting) in 12-13 years, suggests to me that a refresh is in order at the landlord's sole expense. Plaster damage or dry wall damage seems more likely to have occurred due to the landlord's lack of painting and therefore also the sole responsibility of the landlord.

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    2. I'd be interested too in whether the ventilation for the bathroom is functioning or not. You mention a fan, or what seems like a fan. Why is this not dealing properly with the humidity? Perhaps the fan is broken, perhaps it is undersized, perhaps the design is insufficient. That, in my view, is the landlord's problem. Certainly, a landlord should expect humidity damage if there is no fan. If the ventilation relies on opening a window, then the landlord should expect humidity damage. If the landlord's answer is "keep the door open", then you know the bathroom is not properly ventilated. There is no mystery to how to solve the humidity problem---in a proper manner. The landlord could choose to install a proper bathroom fan with a sufficiently high air movement (measured in cfm) and the humidity would be vented to the outside automatically. There are wonderful bathroom fans from Panasonic (Whisper series), that turn on automatically, measure humidity and turn off automatically. A landlord could choose to install proper fans like this and not rely on the tenant "keeping the door open". If the landlord chooses not to deal with humidity, in a reasonable manner, then they will be liable (solely in my view), for the repairs needed every 12-13 years (as in your case).


      The second issue, (the damage from the unit above), I don't see how you can be responsible for anything. You do have a responsibility to report problems in your unit to the landlord but that supposes that you have an understanding of the existence of problems. Even with delayed reporting, the primary cause is the upstairs tenant. The upstairs tenant is, in my view, liable. You have no responsibility for the damage caused by the upstairs neighbour. I don't really know what you mean by saying you "thought it was the windows", but I will presume that you thought there was nothing to be done or you didn't understand what was happening. Nothing in this, in my view, makes you liable for anything.

      It seems to me that your landlord is trying to get you to pay for an update and upgrade to your rental unit. The useful life of many of the things in your unit (i.e. paint job, walls, flooring etc.) has simply passed. The useful life of these things is actually set out in a regulation to the Residential Tenancies Act (if you search this blog you will find links to it). The landlord is trying to get you to pay for the renovation cost and absorbing nothing. That is profoundly unfair and I think is a bit of a scam by your landlord.

      It is possible that you contributed somewhat to early decay, or perhaps your housekeeping is not great, and perhaps you can be responsible for some amount. However, you would certainly not be responsible for paying to renovate the entire unit for the $3500 you landlord is claiming.

      In your situation, I'd recommend that you seek an experienced paralegal---experienced being the absolute key. I'd suggest going on the offensive and consider taking your landlord to the LTB for maintenance issues (T6 application) and seek a rent abatement. You seem a little too trusting and avoiding of conflict as your willingness to pay reveals. Get an experienced advocate who can help you reach a balanced outcome. At the same time, given how you use the bathroom, I'd push hard for the landlord to install a proper bathroom fan.

      If you simply pay the amount demanded I think you would be setting yourself up for more demands from the landlord. At worst, your landlord knows he is taking advantage of you and at best the landlord is ignorant of his own obligations. Either way, this is not a good situation for you. Retain an experienced paralegal (or lawyer) and insist on your rights being respected.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  5. Dear Michael,

    Thank you for taking time to get back. These details are very helpful for me.

    Kindest

    ReplyDelete
  6. Good day, my question is about security cameras outside at my rental townhouse. Am I permitted to have them? I have lived here for 19yrs, my previous landlord had no problems, the new owners came in Sept/2017 to take pics of the inside/outside of our rental., they came back in Oct with our new info regarding payments etc and nothing was said about the cameras, we shook hands and left. Now we get a notice to take them down, stating we put them up without their permission- that is a lie, they have been in place since 2013,do we have to remove the cameras? Thank you.

    ReplyDelete
    Replies
    1. Hi:

      Your question is not a generic "can a tenant install cameras" question. Your circumstances are past that question because you had permission to install them and they have been in place for at least 6 years. As you have permission for cameras from the prior landlord I think the LTB will look at the permission to have cameras as being a term of your lease. (A discussion about the circumstances of the consent will be explored). Presuming a valid consent from the original landlord and that the presence of the cameras does not violate any other law or rule (for example if the rental unit is in a condo and the condo rules prohibit cameras), then in my opinion you have the right to keep the cameras.

      The fact that you have a new owner of your rental unit does not give them the right to change the terms of leases unilaterally. They take your lease (as it was with the original landlord) and they are bound to those terms. If they want to change the terms they need to negotiate with you while at the same time comply with the Residential Tenancies Act.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  7. Hi,

    Today we received an N7 from our landlord who lives in the basement of the bungalow we lease. The eviction date is October 14, 10 days!
    We have lived there for just over 1 year.
    Her reason for this eviction is
    "Dogs were barking non stop for 2 hours starting at 10:10pm till 00:30 (30 minutes after midnight)"
    This is the first time she has ever mentioned or informed us that our dogs barked while we were out.
    She did text me that evening and I apologized and told her that we would come straight home, which of course we did but it was about a 30min drive.
    I am home most of the time as we have a 1 year old and I haven't gone back to work yet. We were only out that late because my 46 year old father in law passed away suddenly 5 days prior and we were at the house of family after the funeral.
    What are our options here? Do we have to leave by October 14th?
    In the past, we have had to call the police for her constant harrassment and accusing us of stealing. Officers did come and have a chat with her. Things have been good between us for the last few months and we thought this type of erratic behaviour was behind us. This has come at a complete surprise.
    We pay our rent on time every month and care for the property as if it was ours. Other than last Friday, we have never given her cause for this sudden eviction.

    Thank you.

    ReplyDelete
    Replies
    1. Hi:

      I am sorry for the loss of your father in law and my condolences to your spouse.

      I presume of course that receiving the N7 has you quite stressed out. Therefore, the first thing I'll say is take a deep breath and relax. The 10 day termination date in the N7 can be safely ignored and you certainly do not need to be finding a new home within 10 days. If you read the Notes on the N7 (part of the standard form), you will see that it tells you that you do not need to move out if you disagree with the Notice.

      Your landlord will, if she is insistent that your tenancy terminate, have to apply to the Ontario Landlord and Tenant Board. Presently, an application like that in Ottawa will take at least two months before the hearing is even scheduled. It is not much better and in fact worse in other parts of the Province. In this instance, the lack of LTB resources plays to your favour.

      There are a number of questions that need to be answered. Firstly, do you believe her? What evidence does she have that your dogs were barking for 2 hours non-stop. If they were barking, was it actually non-stop. Was she egging them on? What was making them bark--if indeed they were barking. This must be unusual behaviour so what caused it?

      To determine if the dogs were barking or not (in the future), I think you should invest in a camera, recorder, noise activated, that you can turn on in your apartment when you leave. It would be good to have proof of what is going on in your unit when you are not there.

      Let us assume for a moment that the dogs were barking and let us assume that it was for 2 hours non-stop even though that is highly unlikely. Is this enough for an eviction? Does this barking constitute a substantial interference with reasonable enjoyment--at such a level as to warrant eviction without further chance to maintain the tenancy. In my view, likely no. I do think that regardless of how the case proceeds--you will get a chance to maintain the tenancy.

      On a sliding scale of "barking", one would expect to hear dogs bark from time to time. It isn't reasonable, in my view, to expect dogs not to bark at all. Imposing a "no barking standard" is akin to imposing a no dogs rule which would be contrary to the RTA which prohibits no pet clauses. Adopting a rule that prohibits the noise of barking dogs (while not prohibiting the dogs themselves) is not a clever workaround of the no pets clause.

      The time before a hearing will actually be to your advantage. Collect evidence of the degree of barking. Monitor the sounds in your unit during this time and keep the evidence to be able to disprove any false allegation. If between now and the hearing there is little noise then I don't imagine that an adjudicator would terminate your tenancy. If the severity of the barking as alleged is proven you might get a conditional order requiring you to keep the dogs quiet or to take other steps to ensure they don't make noise that substantially and unreasonably disturbs the landlord.

      For the hearing, the landlord's past actions can be brought up to suggest the complaint is retribution for complaining to police about the landlord. This is especially useful if you suspect the complaint about continuous barking is exaggerated or completely made up.

      For the hearing, do consider retaining an experienced paralegal or lawyer. There are some technicalities that can be used to your advantage and there are other avenues of defence that can be raised (that I haven't mentioned here). Given the expense of moving, the housing shortage, and the likelihood that rent at any new place will be more than what you are paying now, getting experienced legal help would be money well spent.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  8. Hi there. Thank you for writing this informative article.

    I was wondering, does a valid N5 form require a file number or should the section be left blank?

    I received the N5 form for offenses I did not commit (and I have evidence to prove it) but I'm aware of the offenses because they are not 'emanating' from my apartment; I simply never complained about them.

    If it's supposed to be left blank then I have to defend myself. But if it's not, then I think my landlord is trying to harass me.

    What am I supposed to do?

    ReplyDelete
    Replies
    1. Hi: The N5 Form itself does not need to have a file number--in fact it would be odd if it did. You are likely looking at the bottom of page 3 of 3 (of the N5) which refers to a file number but that is for LTB office use and not for the landlord nor the tenant. The official file number that you would normally become aware of is only on the Notice of Hearing after the landlord applies to the LTB. Until then, no file number is assigned.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  9. HI there, I have been served an n5 notice, but when I search for the behaviours to be corrected they only list dates and times I was advised to have tenant insurance which is new and was not required when I initially rented and signed lease. Can failure to buy insurance be used under n5. I went to community legal clinic here and the girl said the wording is vague and can include this as a disruptive behavior but it seems like it shouldn't be thus.thank you

    ReplyDelete
    Replies
    1. Hi: Without being able to see the paperwork I have to guess at what is written in the N5. That being said, my guess is that the wording in the N5 is intended to simply communicate that you do not have tenant insurance and that you are required to have tenant insurance as a term of your lease. If you look at the second bullet in the N5 you will see that the N5 can be served for an interference with a lawful right interest or privilege of the landlord (not just substantial interference with reasonable enjoyment). I presume you are being accused of interfering with the landlord's contractual right for you to have insurance. This breach--is the basis for the landlord seeking your eviction.

      Now, you make a fantastic point. If the landlord never contracted with you (i.e. inserted a condition in the lease that requires you to have insurance) then you are not obligated to have insurance. The landlord is not, in law, allowed to simply impose this condition after the lease has already been entered into. If the landlord wants you to have insurance then he needs to negotiate with you and amend the lease, with your agreement, and give you something for this additional condition being added to the lease.

      There is nothing in the Residential Tenancies Act (RTA) that requires a tenant to have tenant insurance. There is nothing in the RTA that allows a landlord to unilaterally impose an insurance requirement after a tenancy has been entered into.

      That being said, I do strongly urge you to get tenant insurance. It is very affordable. Tenants on ODSP can even get an extra payment from ODSP to cover the tenant insurance cost. Tenant insurance will provide you with a number of benefits--depending on your policy you can expect--protection from theft, protection if event in the building requires you to vacate pending repairs in that insurance will often pay for temporary lodging, protection if you accidentally cause damage to the landlord or anyone in the building (i.e. if you get sued the insurance covers you). Having insurance often also protects you from eviction in case an accident that causes damage does occur. A landlord is much less likely to seek eviction if your insurance company is paying to renovate and fix whatever damage was accidentally caused.

      In your case, if there is no lease clause requirement for insurance, I would expect the application at the LTB to be dismissed. If the landlord does apply to the LTB, on the day of the hearing go and see duty counsel with your paperwork in hand. Bring a copy of your lease with you (if it is written).

      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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