tag:blogger.com,1999:blog-6703393754400182307.post7311871973469992563..comments2024-03-23T06:26:04.205-04:00Comments on Ontario Landlord and Tenant Law: Landlord's Own Use: Delaying the takeover.Michael K. E. Thielehttp://www.blogger.com/profile/10247495615982921581noreply@blogger.comBlogger87125tag:blogger.com,1999:blog-6703393754400182307.post-9091483006275419552023-08-09T16:44:25.150-04:002023-08-09T16:44:25.150-04:00Medical records proving the health conditions (ast...Medical records proving the health conditions (asthma) also available. Perhaps you spoke with your doctor to ask if it would be a good idea to move into a house like this--or perhaps you have had that conversation in the past and the doctor can confirm that any exposure to second hand smoke--even stale smoke in a house is something you need to avoid. The point is that there may be useful medical evidence to explain your changing mind and reasoning for not moving in.<br /><br />Then of course, there is the damage to the premises, the cost of repairs etc.. You say that you can't afford to fix it. I presume that also means you are not paying to fix the place up to sell it? There is evidence in what you do--selling, fixing, etc., that reveals the changing intent. Presumably your real estate agent will be able to testify that s/he was only contacted to list the place for sale well after the tenants moved out and when you discovered the condition of the place. The real estate agent could also testify as to the condition of the place and your explanation of why you decided to sell.<br /><br />The foregoing are just top of mind kinds of evidence that you can lead. Your obligation to live in the place for residential purposes for 1 year or more is not absolute---the presumption of bad faith (by selling) is rebuttable. However, if the tenants do bother to file an application against you for bad faith you will need to take it seriously. Consider retaining a lawyer or paralegal to at least outline the claim against the tenants. It could, indeed, be worthwhile to sue the tenants for the damages caused and the losses you will presumably sustain in selling the property for less than what a non-smoked in property would have been worth. At least such a claim for damages would provide some insulation against any claim that the tenants might assert against you. Be aware, a tenant application to the Landlord and Tenant Board for bad faith damages will take about a year to be heard (once filed).Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-49963715883706986802023-08-09T16:44:09.934-04:002023-08-09T16:44:09.934-04:00It is an unfortunate reality that some tenants abu...It is an unfortunate reality that some tenants abuse the property and have no regard for their legal obligations. <br /><br />Your question turns on the issue of "good faith" and what is the consequence of not moving into the home further to an N12 notice of landlord's own use. The failure to move in would, presumptively, given rise to a prima facie "bad faith" use of the N12. The presumption of "bad faith" is a rebuttable presumption--but it is most definitely up to you to prove that there was no "bad faith" in serving the N12 and in fact the corollary is true--the N12 was served in "good faith".<br /><br />There are exceptions to having to move in to a unit even after an N12 has been served. The requirement to occupy is not "absolute". The law is not so inflexible. The key is to establish that at the time the N12 was served--that it was served in good faith. From your timeline that would be March 31.<br /><br />What evidence exists--on March 31 and in the weeks leading up to that date--that you intended to move into the rental unit? If you think about it there are bound to be text messages, emails, letters, contracts, that would prove your intention. For example--did you make inquiries for movers and get estimates to move you back into the unit? Such an estimate, email, would be evidence of what your plans were. Did you speak with other people--what did you tell them? Would other people testify about your intentions to move back in? Was there a particular reason that you needed to move back into the rental unit? Perhaps you needed to reduce your expenses?, perhaps you moved out of a place that you sold?, perhaps your own landlord gave notice to terminate?---the point is that you were clearly living somewhere else when the N12 was served--what were the circumstances that required you to serve the N12? These circumstances will be provable with documents and witness evidence.<br /><br />The fact of the destruction of the rental unit--the fact that it is uninhabitable for you due to health--these are provable. I know nicotine and how badly smoked in houses will stink of it for a very long time. Painters can quote you for cleaning walls (washing) and then sealing the walls with a special and very expensive paint to keep the smoke smell from coming out of the walls. Such evidence would be useful.<br /><br /><br /><br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-23265818052641623412023-08-02T21:47:35.800-04:002023-08-02T21:47:35.800-04:001 - Landlord - sent N12 to the tenant - for person...1 - Landlord - sent N12 to the tenant - for personal use – March 31st.<br /><br />2 - Tenant needed to move out by May 31st as per the notice.<br /><br />3 - Tenant requested a one-month extension – said will move by Jul 1, which I accommodated.<br /><br />4 - Tenant paid the rent for May and used the last month rent for June.<br /><br />5 - I, Landlord, paid the one month rent compensation as per the N12<br /><br />6 - Did not receive the keys on the 1st of July.<br /><br />7 - Tenant kept playing games (saying that they need an additional day to clean up) and I finally got the keys on the 11th of July and the tenant left behind bunch of stuff for me clean up.<br /><br />8 - Tenant left the property in such a bad state – I had to call 1-800-Junk to remove everything from the unit. Tenant agreed to cover part of the costs for that removal and has yet to pay me.<br /><br />9 - Entire unit needs to be cleaned and ducts have to be cleaned as they had 2 dogs despite a no pets allowed policy.<br /><br />10 - They changed the paint colours for all the rooms in my house without my permission – clearly against the agreement.<br /><br />11 - Backyard ruined by the dogs as they dug numerous holes.<br /><br /> <br /><br />The state of the unit is currently not liveable – smoke smell pervasive all through the house. We are asthmatic and I don’t think we can live there with our 5 year old now unless we get rid of that smoke. Despite having a no smoking rule as part of the agreement – they violated this. The house damage alone is going to cost over 10,000$ to make it liveable. I do not have that much money. What circumstances can change for me to change my mind so I can just sell the place. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-54223927887655493012020-02-06T20:23:06.597-05:002020-02-06T20:23:06.597-05:00Dear Michael
thank you so much for your reply!
We ...Dear Michael<br />thank you so much for your reply!<br />We did serve N12 back in November and applied to LBT immediately. The hearing was beginning of February but was adjourned prior to getting to our case.<br />It is very devastating that landlords are not protected as well as tenants are... We gave them a notice and helped them when they asked to delay rental pay withour servicing notices. We tried not to serve N5 for pleasurable environment and still getting troubles..<br />Your answer is really helpful! Thank you!!!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-65348440238246817312020-02-06T20:00:23.316-05:002020-02-06T20:00:23.316-05:00Thank you Michael!
we served N12 on Novemeber 10 a...Thank you Michael!<br />we served N12 on Novemeber 10 and immediately filed LBT. We were given Feb 3rd as a hearing date but were adjourned before hearing and now waiting to be rescheduled. I am really upset on how I cant get my own apartment for my inlaws when I need it. This is in spite of us being nice to tenants: they asked for late rental payment sometimes 2 weeks after appropriate date and never served them a notice. They interfered with pleasurable environment and we let it go without a notice and now they doing it to us.<br />But I really appreciate your payment clarification as I was under impression that you pay only after they move out... Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-26393407835744449452020-02-06T13:07:18.211-05:002020-02-06T13:07:18.211-05:00If you get a hearing before April 15 the LTB would...<br />If you get a hearing before April 15 the LTB would still consider the personal circumstances of the tenants (section 83 RTA) to decide whether termination of the tenancy should be delayed. It depends on the reasons offered by the tenants. The N12 is a no-fault termination process hence the tenants are not culpable for any kind of bad behaviour or misconduct. In my experience this weighs in their favour in setting a termination date. While you may argue that you gave lots of notice the implied question will be why you waited so long to apply to the LTB. The tenants could also assert that they made it clear that they at least wanted to finish the school year and presumed that your failure to apply indicated your consent to their request.<br /><br />In the best of circumstances you are pushing a very tight time-crunch. With the lack of resources at the LTB to schedule and hear cases you are, I think, in an impossible position to get heard and the tenants evicted before April 15 (from today's date of February 6).<br /><br />If you can't have them out by April 15 you indicate that you then don't need them out at all. Have you approached the tenants about this? There is no way to "withdraw" an N12 officially but you could let the N12 be voided with the passage of time (30 days past the termination date--section 46 RTA). Once voided the tenancy then remains in force. The tenant's ability to terminate the tenancy based on the N12 is also not possible once you are past the lawful termination date in the N12 (section 48(3) RTA).<br /><br />Does allowing the N12 to void (by not filing with the LTB) affect your liability to pay the one month's rent compensation to the tenants. I haven't seen much caselaw on this question nor have I had the opportunity to argue the point. However, my interpretation of section 48.1 RTA is that your obligation to pay compensation of 1 month's rent is absolute and required upon serving the N12. In my view, it doesn't matter if the N12 is allowed to void, or if your application is dismissed, or if the tenant is successful in getting a delayed eviction from the LTB. In my opinion, the service of the N12 requires compensation to be paid regardless of what happens after the service of the N12.<br /><br /><br />My opinion about the compensation being due, regardless, is likely to be a controversial opinion. However, I think my opinion is supported by the clear wording of section 48.1 which makes the compensation payable "if the landlord gives the tenant a notice of termination under section 48". Nothing in the section says that the N12 needs to be successful or that the landlord must recover possession or that the compensation isn't payable if the N12 voids. There are no exemptions to the compensation requirement in section 48.1. Given the history of the section and the context in which it was made law, I think that this is quite intentional. Section 48.1 was made into law at a time when landlords were using the N12 process to regain possession of rental units for purposes other than what the N12 was intended for. Requiring the payment of compensation was seen as a way to defray tenant costs and to perhaps slow the improper use of the N12s and further I think the compensation being payable is a penalty for serving an N12 that is perhaps proven to have been served in bad faith. <br /><br />All that being said, my opinion is that the compensation is payable as soon as the N12 was served and you can't get out of it even if the N12 is allowed to void or you simply let the tenants stay until they are ready to leave.<br /><br />Good luck<br />Michael K. E. Thiele<br />www.ottawalawyers.comMichael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-346103092511475862020-02-06T13:07:07.144-05:002020-02-06T13:07:07.144-05:00Hi: I'll work with the facts you've provi...Hi: I'll work with the facts you've provided here but there are clearly some important ones missing. You say that you provided 165 days of notice. Was that notice in a Form N12? I question it because a 165 day notice period in an N12 would be rather unusual. If it was just a letter, email, text, phone-call, or in some way other than through an N12 then you have proceeded incorrectly. You will need to become familiar with section 48 of the Residential Tenancies Act. This is the section that sets out that a human landlord (as opposed to a corporation) is 1) permitted to give a Notice of Termination for landlord's own use (including for family), and then 2) how that notice is given with the required timelines. Subsequent sections (i.e. 48.1) spells out the compensation that you must pay the tenants. <br /><br />If you have not complied with the basic requirements of section 48 then you are well behind and need to start again. Note that an N12, once served, is not valid indefinitely. You have 30 days from the termination date in the N12 to apply to the LTB. If you haven't done it within time then you need to start again.<br /><br />We are now in early February 2020. You're wondering if you can get possession by April 15. If you haven't yet applied to the Landlord and Tenant Board the chance of getting a hearing (in the current circumstance of the LTB) is, I think, simply impossible. If you were in Ottawa and applied today I don't think that you would even have a hearing date scheduled until after April 15 (such is the backlog at the LTB). I don't know what the backlog is like (wherever you are in Ontario), but the backlog is notorious throughout the province. Therefore, if you don't have the tenant's agreement to vacate I don't imagine that there is any realistic chance of even getting a hearing before April 15 (if you have already applied).<br /><br />Let's assume that you do get a hearing before April 15. The chance of the LTB terminating the tenancy and giving you vacant possession for April 15 is, I think, unlikely. The LTB will not terminate the tenancy any sooner than the termination date in the N12 and that termination date needs to be lawful. Presumably your rental period runs from the first of the month to the last of the month (i.e. rent is due on the first of every month)? If so, the termination date in the N12 needs to be the last day of a month and not mid-month. If your rental periods do run mid-month to mid-month it seems unlikely that the last day of the rental period would be the 15th. Please check to ensure that you have a valid termination date because if you do not---regardless of how much actual notice you have given--the N12 is void if it does not specify the last day of the rental period/term as the termination date.<br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-63573096146188200072020-02-05T21:09:00.686-05:002020-02-05T21:09:00.686-05:00HEllo Michael
our Tenants live on main floor and w...HEllo Michael<br />our Tenants live on main floor and we need that house for our in-laws: we gave them 165 days of notice but its middle of the school year so they dont want to move out. questions:<br />what can we do so Judge favour our need for our parents to move in ( they need to land no later then April 15 so we need a place by then)<br />if judge decide that they can wait till year end we would need to find a rental place for them so in that case we dont need tenants to move out. can we then tell at the cort that we decided to withdraw N12 AND THEY CAN MOVE AT THEIR CONVENIENCE but we are not going to compensate them unless we decide to serve a new N12? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-50066125560604597062019-12-02T17:45:16.556-05:002019-12-02T17:45:16.556-05:00Thanks for your feedback and advice. You've ma...Thanks for your feedback and advice. You've made me prepared for the worst, I cant think if it can get worse than that. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-14415755453111796312019-10-16T11:49:40.128-04:002019-10-16T11:49:40.128-04:00Hi:
The process you describe as following is corr...Hi:<br /><br />The process you describe as following is correct, although without actually reviewing the actual forms you filled out and served I can not determine if they were completed correctly.<br /><br />These days the LTB is severely delayed and backlogged. The Landlord Tenant Board is severely understaffed and they are missing adjudicators. This is the reason for the long delay between filing and the hearing date that you received. This was not always the case but there has been a long decline in the efficiency of the LTB over the last several years. Your request to shorten time is unlikely to result in anything useful. This form is used to shorten the notice periods that are required to be given to parties---the form does not expedite hearing dates. In Ottawa (Eastern Ontario broadly), the filing date to hearing date is about 3 months now--less for Non-Payment of Rent cases but even these are stretching out now. <br /><br />Note that just because you have a hearing date you should not assume that you will get heard that day or that you will get a decision that day. In this region we have had several hearing days cancelled on the day of the hearing due to adjudicator shortages. These cases then simply get rescheduled to several more months down the road.<br /><br />In the face of profound delays in getting cases heard I do encourage you to have all of your paperwork looked at by an experienced paralegal or lawyer. You do not want to imagine the stress and upset if there is a technical deficiency in your paperwork that results in the application being dismissed and having to start all over again. <br /><br />As for the damage to the property the question is whether it will be worthwhile to chase the tenant for the damage. Does the tenant have assets? Does the tenant have a job? One asks these questions because getting a Judgment against someone who has no assets results in an uncollectable Judgment--i.e. it isn't worth the paper it is written on. If you are satisfied that the tenant does have assets and is worth pursuing for the damage you can consider serving an N5 Form and applying on it or perhaps waiting to file at the LTB or Small Claims Court after your hearing on the N12 is resolved or after the tenant is evicted (for the Small Claims route).<br /><br />I would be cautious about starting a separate application or causing your current application (L2/N12) to bring in a claim for damage to the unit (you can see that as an option on the L2 Form). I would be cautious and reluctant to do that because joining multiple issues to an application will result in the need for more hearing time. The requirement for more hearing time means that you case will either be adjourned or the case will start and then be adjourned to continue on another date. You should be aware that LTB hearings do not continue until they are finished (i.e. if the case starts on a Monday it does not continue the next day). If your case starts but does not finish then the case will be adjourned to a time in the next several months in the hearing block of the adjudicator who has heard your case up to that point. This can be a brutal delay as the case must be heard by the same adjudicator (because they are what is called "seized"), and time must be found in that adjudicator's likely full docket to reschedule the hearing.<br /><br />Lastly, I'll simply comment that you should be ready for continued stress and further hearings. Just because you get a hearing date that does not mean that you will win. There are new technicalities around N12's and explicit requirements. Beyond that adjudicator's have discretion to extend termination dates and even if you ultimately win at the LTB there is the possibility of an appeal which stays the entire process until the Appeal is resolved (which can take 6 to 24 months---as a worst case scenario).<br /><br />Good luck<br />Michael K. E. Thiele<br />www.ottawalawyers.com <br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-80783741258838119132019-10-15T16:51:52.157-04:002019-10-15T16:51:52.157-04:00Dear Michael,
I like your blog, very informative ...Dear Michael,<br /><br />I like your blog, very informative and helpful. Looking for your suggestion as I am a landlord in following situation.<br />• Rented my house with 2 yr. lease in 03/2016 so rental is on a month to month term now<br />• Reason for renting the house –> Move to a different country with family due to work and did not wanted to sell the house<br />• Have returned back to Canada since 08/2019 and living in hotels/AirBnB since then, we don’t have any place to live as our rented house is our sole primary residence<br />• Have hand delivered N12 to the tenant on Aug 15th 2019 with end date as Oct 31st 2019 and took tenants signature on the N12 itself. <br />• Have completed certificate of service<br />• Have filed for L2 online form for tenant eviction<br />• Hearing date given is end of January 2020<br />• Have submitted “Request to extend or shorten time” form to shorten the hearing time and waiting for feedback<br />• Tenant has kept the house in very bad condition, broken door, broken window latches, heavy stained carpet, broken garage door, broken kitchen sink and custom cabinets, damages caused by water leakage in the house<br /><br />Process-wise could you please comment or guide if I’ve missed anything. Is there anything we can do to expedite our case and can get OLTB’s attention. Please suggest. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-21492191374570814312019-09-12T17:04:13.287-04:002019-09-12T17:04:13.287-04:00Hi Lisa:
You should probably apply to the LTB as ...Hi Lisa:<br /><br />You should probably apply to the LTB as soon as possible based on the N12. You will need an L2 application to do that along with a Certificate of Service for the N12. Download at the same time the affidavit that you will need to file (short statement) indicating the good faith intention to occupy the space for residential purposes for 1 year or more. Truly, don't delay in filing as the Landlord and Tenant Board is seriously backlogged. You are unlikely to get a hearing date for months.<br /><br />Without an Order from the LTB it will not be possible to evict the tenant. I presume she is covered by the RTA given that you are serving an N12. Is there a chance that there is an exemption--do you share a kitchen and/or bath with the tenant? See the exemptions in section 5 of the RTA. Whether the RTA applies or not is obviously an important question as it goes to whether the Board has jurisdiction to grant you an eviction Order. If this is an "exempted" tenancy then the Board application process will not get you an enforceable Order.<br /><br />With respect to moving costs in addition to the one month's compensation. Certainly, you are required to pay one month's compensation as this is now required under the RTA (presuming it applies). You will see a reference to the compensation requirement in the notes to the N12 and you can see the statutory provision at section 48.1 RTA that sets out the compensation requirement.<br /><br />There is no requirement that you pay moving expenses. However, you may want to consider it if it gets the tenant out of your basement asap. Query though, if she can't find a place how paying moving expenses gets her to a place she doesn't have. Perhaps she is just trying to get some extra cash? Perhaps she can't find a place and is trying to stall? Whatever it is, I doubt you're being told the whole story.<br /><br />Being willing to pay a little more money with a guarantee of getting the unit back is probably worth it. Perhaps in exchange for the key, her stuff on a truck, you can agree to give her a sum of cash. You can document that agreement--there is nothing illegal about it. Perhaps the payment of extra cash is just enough to pay first and last elsewhere and move--who knows. Maybe you could offer to pay Last Month's Rent to the new landlord directly? The trick is to make the payment with a guarantee of the unit being turned back to you. You wouldn't want her to take you money and still not move out.<br /><br />The reason to consider paying is that the LTB process at the moment is severely delayed. An application filed today (in Ottawa) will get you a hearing around the beginning of December (this was the timing being offered here in Ottawa yesterday). Even when the date comes up, the tenant could seek to adjourn, ask for more time, argue the case, appeal the decision, or if luck doesn't go your way--win.<br /><br />Depending on how important it is for you to get the unit for the end of September you may want to consider being a bit more flexible as the system isn't going to help you very quickly.<br /><br />Good luck<br />Michael K. E. Thiele<br />www.ottawalawyers.com<br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-78810938350703955182019-09-11T12:16:26.642-04:002019-09-11T12:16:26.642-04:00Hi:
You are on the right track. Please cut and p...Hi:<br /><br />You are on the right track. Please cut and paste this link into your browser (sorry, but this platform doesn't allow me to make links live in these replies). <br /><br />https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=resid&autocompletePos=1#sec48subsec1<br /><br />If you're reluctant to cut and paste ( I get it), go to www.canlii.org, search Ontario, then search Residential Tenancies Act, then look at section 48(5) [this is where the link above takes you]. <br /><br />Subsection 5 is the authority that a corporate landlord can not serve an N12. The wording of the section is a bit more nuanced so take a look. Then, if you are resisting the application, you may want to consider doing a title search and getting an abstract of title. That title search will tell you the name of the registered owner. Also, on that abstract you will see any other documents/instruments registered on title--and if they are interesting you can order those as well. If a little digging into the corporate identity is worthwhile you can also Order a corporate profile report. If you think about section 48(5) and the information you get from the title documents, the payee on the cheques you send, and the corporate profile report, you may very well have a complete defence to the landlord's application. A couple of hundred dollars---maximum--gets you the title search, corporate search, and any documents on title that you might also order (ex. mortgage documents, transfer documents). If you are going to order the title search yourself--consider asking them to also print out a copy with the deleted instruments showing and a version without the deleted instruments. You might come across some transfers that are useful for your position.<br /><br />I will offer up, and you likely know this already, but you are arguing a case that is by its nature a legal argument. While you can give it your best shot--you best chance comes with an experienced lawyer or experienced paralegal. While you may "only" see a slam dunk in your favour there is always an argument or a set of facts that can derail your slam dunk. Hence, experienced help is great to have if you can afford it. As you are protecting a below market rent it might be worthwhile to spend a little to increase the chance of continuing the savings.<br /><br />Michael K. E. Thiele<br />www.ottawalawyers.com<br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-22728106802145100472019-09-10T15:56:17.687-04:002019-09-10T15:56:17.687-04:00Hello Michael
I am very happy to have stumbled acr...Hello Michael<br />I am very happy to have stumbled across your blog!Hopefully you can provide some advice...<br />I have been living in my townhouse for 7 years now, when I rented initially, things were very casual, as the landlord has a very strong accent, and very hard to understand, so the rental was actually done by the current tenant at the time, also i never signed a lease, just have dropped chq''s off at landlords house when needed. About 2 years ago, i learned from my neighbours (I live in a 4plex)that the landlord's son and daughter would be taking over the building, as the landlord is quite elderly. I was then instructed to make cheques out to all 3 names (son, daughter and father). About a year after that, i was then instructed by the daughter to begin making the cheques out to an incorporated company number, approx. 2 years ago from now. In early July, i received an N12 to vacate the unit so the daughter could move in, (by registered mail, and the return address was that of the numbered company, with the son being the director of said company. I should mention my rent is well below market value, and increases began only when the son and daughter took over. As i will NOT find anything even remotely close to the very low rent i'm paying, i am trying to fight this, based on the fact that i've read that an N12 cannot be considered served in good faith if the landlord in incorporated? I'm hoping this to be true, but if you could kindly provide some much needed advice, I would be very appreciativeAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-31156103031985706572019-09-09T09:50:24.142-04:002019-09-09T09:50:24.142-04:00Hi Michael
My tenants lease is ending September 30...Hi Michael<br />My tenants lease is ending September 30. In early June, I informed the tenant that I would need the basement space for my son once her lease is up. I served her an N12 so things were clear. Now she tells me that she can't find a place and I need to give her one months rent and moving expenses too! What course of action to I have now?<br />Thank you for any advice. <br />LisaLisahttps://www.blogger.com/profile/12276461930367519816noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-91309976644165021292019-09-02T14:56:27.996-04:002019-09-02T14:56:27.996-04:00Hi: I don't know why you would have been aske...Hi: I don't know why you would have been asked to sign the second page of an N12 form. The N12 is a Notice of Termination for Landlord's Own use. The landlord signs and serves. There is no spot for the tenant to sign. Is it possible that this is an N11 Form? That is an agreement to terminate? Is it possible that the form has been slip sheeted (i.e. a page from a different form inserted to get a signature which will then be put into another different form that you haven't seen at all)? The issues your question raises are odd enough that I'd go looking for advice from an experienced paralegal/lawyer--experience being the key---so that you can figure out what kind of game may be being played here. Ultimately, an old N12 in my view will not be valid. The legislative changes are significant enough that the required information has not been communicated to you with an old form. Whether the LTB would allow the use of this form on a substantial compliance basis is likely the question at hearing.<br /><br />Good luck<br />Michael K. E. Thiele<br />www.otttawalawyers.comMichael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-70255676178300459812019-09-01T23:10:23.965-04:002019-09-01T23:10:23.965-04:00I just received an N12 I was asked to sign the sec...I just received an N12 I was asked to sign the second page, which I did, but a day later I realized that the N12 form I was given is outdated 2007 the new form has the date of 2017 and has been updated with different rules now I am not sure if the N12 Form I received and sign is legal? Anonymoushttps://www.blogger.com/profile/06296702436658888956noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-7788342434612033972019-08-23T10:58:55.864-04:002019-08-23T10:58:55.864-04:00Hi Lee:
Thank you for this question as it highlig...Hi Lee:<br /><br />Thank you for this question as it highlights the more complicated nature of N12's (termination for landlord's own use). The new layers, imposed by recent amendments to the Residential Tenancies Act, of having an intention to occupy the premises for 1 year or more for residential purposes and the compensation requirement of 1 month's rent, are complicating features that have not yet been fully explored in caselaw nor appellate authority. The best I can do is give you my opinion.<br /><br />I'll start with the compensation requirement. In my view, the service of the N12 triggers the requirement to pay compensation. Once triggered, the obligation is enforceable by the tenant whether or not the landlord seeks to withdraw the N12. I have this opinion because of the wording of section 48.1 RTA which states: " A landlord shall compensate a tenant in an amount equal to one month's rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48". To me, the language of the section creates an absolute obligation and this makes sense to me as the service of the N12 is intended to cause the tenant(s) to move out and immediately make alternate arrangements for their housing. The tenants, I think, are entitled and are intended to be able to rely on this compensation given how the legislature drafted this section.<br /><br />As for cancelling the N12. You do not have a right to cancel or withdraw the N12. Of course, if you do reconcile with your spouse and you don't need to move into your rental, then you can approach your former tenants to see if they would be interested in reinstating their tenancy. They may or may not be interested depending on whether they have already committed to move elsewhere or whatever other arrangements they've made.<br /><br />Are there repercussions for serving an N12 and then changing your mind about moving into the rental unit? Yes, and no. Whether there will be a problem for you (or not), will depend firstly on whether the former tenants take action against you. If they do not, then no problem. However, the tenants could decide to file an application against you to assert that you served the N12 in bad faith. If there is a finding of bad faith then you could be ordered to pay damages to the tenants. If you're interested in knowing the kinds of damages the LTB considers take a look at section 57 RTA.<br /><br />If you can prove that you had a good faith intention to live in the rental unit for a year or more at the time of serving the N12 then your failure to follow through is not technically a breach of the Act. The former tenants would not be entitled to damages. Note, however, that proving you served the N12 in "good faith" is your burden to establish. The RTA builds in a presumption of bad faith (i.e. you will pay damages) in section 57(5) if you attempt to re-rent, enter into a new lease, advertise the unit for rent (see section for full list).<br /><br />It is certainly possible to change your mind and it is possible that there will be no liability for this. However, you need to be willing and able to prove to the Board (if your tenants claim against you), the circumstances of serving the N12 and how your change of position came about.<br /><br />Good luck<br /><br />Michael K. E. Thiele<br />www.ottawalawyers.com <br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-85393027595256451072019-08-22T16:35:17.329-04:002019-08-22T16:35:17.329-04:00Hi Michael
I'm a landlord and gave my tenants ...Hi Michael<br />I'm a landlord and gave my tenants the N12 because of marriage difficulties and I will be moving back into the rental house. The tenants did not agree to moving out for July 31st in which they were given 60 days notice so now it's been pushed to September 30th. I'm in a bad predicament staying with my husband because I've had to wait to have this conversation with him or it would have been a nightmare to stay with him all this time. Now that I've told my husband that I want to move out of our house he wants to work things out desperately. I know you're not a relationship expert but I just need to know if I have a change of heart as this is not an easy decision can I cancel my N12 to my tenants and what repercussions should I expect? Would I still owe them compensation equivalent to 1 month's rent? LeeGhttps://www.blogger.com/profile/09680409815027588890noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-16184579622136600822019-07-31T08:12:02.523-04:002019-07-31T08:12:02.523-04:00Hi Alice:
The N11 form is an agreement to termina...Hi Alice:<br /><br />The N11 form is an agreement to terminate. You were not obliged to sign it. Now that your signature is on it the landlord will take the position that you have agreed to terminate your tenancy and move. The landlord may choose to apply to the Landlord and Tenant Board for an order based on this N11 Form. If he does, you will simply receive an Order in the mail terminating your tenancy. No hearing will be scheduled. Your option then is to file a motion to set aside the Order. The process is simple and the form is on the LTB website. Once you file the Motion to Set Aside the Ex Parte Order (an order made without notice), the Board will issue a Notice of Hearing and the eviction Order will be "stayed" until the hearing is concluded.<br /><br />When a landlord wants to terminate a tenancy for his own use, or for a purchaser's own use, the proper way to proceed is to serve an N12. The N12, in my view, should be served as a precondition to any N11 agreement as the Form contains very useful information for a tenant. If you reviewed the N12, and then became familiar with the RTA on which the N12 is based, you would discover that you have a right to a minimum 60 days notice to the end of term. You are entitled to compensation if the landlord is taking over. You do not have to move if you disagree with the the termination and can seek more time or accommodation from the Landlord and Tenant Board if the notice period is insufficient. And perhaps most importantly, you would learn that a purchaser, if they seek to terminate your tenancy, would need to state that they intend to occupy the premises for residential purposes for 1 year or more.<br /><br />By presenting you with an N11--the landlord deprives you of the rights you have, and further, denies you the recourse you have if the "purchasers own use" turns out to be a fiction (i.e. not true).<br /><br />As you put your comment I would have no difficulty challenging the N11 and I do think the LTB should set it aside and require the purchaser to either cause the landlord to serve an N12 or serve an N12 themselves when they purchase the property. The N12 process will require them to swear an affidavit setting out their intentions (if you force it to a hearing), which also gives you the comfort to know that your tenancy is being terminated for legal reasons.<br /><br />Good luck<br /><br />Michael K. E. Thiele<br />www.ottawalawyers.comMichael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-16851775925539648352019-07-30T22:46:55.939-04:002019-07-30T22:46:55.939-04:00Hi Michael,
I am a tenant who recently was notifi...Hi Michael,<br /><br />I am a tenant who recently was notified, by email, that my landlord has sold my unit. I was under the impression I could continue to live in the unit. My landlord said that indeed, the new purchasers want to live in my unit, by email.<br /><br />I have not receieved formal notice that the unit has been sold via the N12. I have asked my landlord for this. I was only asked to sign the N11. <br /><br />Is the landlord obligated to provide the correct, more accurate, end of tenancy form N12? I do not want to end the tenancy but my landlord requested I sign the N11 so that the purchase of the unit could be completed. I signed the N11 assuming good faith on my landlord's part, but do not have actual proof, except by email (according to my landlord) that the purchaser plans to live in my unit.I feel I have been given information in bad faith since the N12 was not provided upon request now. I am still waiting, and my landlord is not responding to my request.<br /><br />Thank you for your help. Any assistance would be helpful.Alicehttps://www.blogger.com/profile/02807908047448625322noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-90995200647313497072019-07-08T08:39:50.201-04:002019-07-08T08:39:50.201-04:00Hi:
The serving of the N12 for landlord's own...Hi:<br /><br />The serving of the N12 for landlord's own use triggers the obligation to pay compensation. In addition to this obligation, both landlord and tenant have additional rights and obligations when the tenancy is terminated on this ground (landlord's own use). The "right" you are focused on is the right to terminate earlier than the termination date in the N12. This "right" is found at section 48(3) & (4) of the Residential Tenancies Act. You may terminate earlier, on 10 days notice. This is not an application, simply notice given in the Form N9. See the very top of page 2 (of 3) in the Form N9 that is available on the Landlord and Tenant Board website. I do recommend that you serve the N9 (and keep a copy) in a way that you can prove having delivered it to the Landlord.<br /><br />Terminating the tenancy earlier than the date in the N12 does not waive the compensation. You are still entitled to receive it, and you are still entitled to keep it if it has already been paid.<br /><br />As for your second question. Let us presume that you serve the N9 for July 31, 2019 (it can be any date so long as there is 10 days notice). This means that your tenancy ends for July 31 along with any obligation to pay rent. Because you have already paid July rent you will have a credit for another month of rent in the form of the Last Month's Rent deposit. This deposit must now be returned to you because there is no rent obligation to which it can be applied. A LMR deposit is legally only allowed to be applied to rent (nothing else including damage).<br /><br />On top of the LMR deposit being returned to you, you may be entitled to interest on the deposit as well. It is likely a small amount but nevertheless you are entitled to it. To calculate it there is an article in this blog on the topic.<br /><br />Good luck, I hope that this has helped you.<br /><br />Michael K. E. Thiele<br />www.ottawalawyers.comMichael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-26314929998801318092019-07-06T13:51:39.474-04:002019-07-06T13:51:39.474-04:00Hello there, thank you for this blog!
My family w...Hello there, thank you for this blog!<br /><br />My family was served with an N12. Originally we were told to move via email, then when we looked into whether he could hold us accountable for rent if we just moved like that, we were informed about the N12. We passed this information on to him. He originally asked us to move for Oct 1st, then changed his mind for the N12 and chose Aug 31st. <br /><br />He has compensated us with a month’s rent as per the N12. <br /><br />We have some how managed to secure a new home for Aug 1st. <br /><br />My questions are this: <br /><br />If we apply to end the tenancy early now as we’ll be moving for Aug 1st, will we have to return the 1 months compensation? And does this filing also excuse him from having to live here for the 12 months before renting it again? <br /><br />My 2nd question is: Since August is on our last months rent to which we paid 6yrs ago, we won’t be living here as we’ll be moving to get away from this toxic mess without much of a fight... however, can we request through the courts for that money be returned to us since we won’t be living here? (This would be our only reason to end the tenancy early) <br /><br />Thank you for your assistance. <br />I appreciate your time very much. Zuhttps://www.blogger.com/profile/04075912883130460805noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-16404039565619005432019-06-04T17:37:15.588-04:002019-06-04T17:37:15.588-04:00Hi: You don't say in your question from what ...Hi: You don't say in your question from what perspective you are coming at this from. Do you want to try to save the notice in letter form or do you want to knock it out? The easier answer I think goes to knocking out the letter notice and forcing the landlord to start afresh with a proper N12 Form. The dates would run from the new and proper form because the letter notice is likely to be determined invalid.<br /><br />The requirement to use an LTB approved form is set out in section 43 RTA. The sentence is "Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall, ...". I think it is clear that the letter version you are talking about does not meet the "shall" requirements of section 43.<br /><br />The argument that someone might turn to in trying to save the "letter" as a valid notice is to rely on section 212 RTA which provides: "Substantial compliance with the Act respecting the contents of forms, notices, or documents is sufficient". Can section 212 satisfy the Notice requirement and perhaps over-ride the specific direction of section 43?<br /><br />Aside from the RTA, it might be worth looking at section 84 of the Legislation Act. That section speaks about deviations from a mandated form not invalidating the form. However, it also says the substance must not be affected and those deviations must be unlikely to mislead---and perhaps fatally, the form (i.e. letter) must be organized in the same or substantially the same way as the form whose use if required.<br /><br />I don't see an easy way for a landlord to save the "letter" notice and I'd be inclined to advise a landlord using a letter to simply start afresh with a proper N12 Notice. Even if you successfully convinced an adjudicator to use the "letter", the decision would be ripe for review and ripe for appeal. Any time you might win initially I think would be lost in the process of Reviewing and Appealing.<br /><br />Hope that answers your questions.<br /><br />Michael K. E. Thiele<br />www.ottawalawyers.com<br />Michael K. E. Thielehttps://www.blogger.com/profile/10247495615982921581noreply@blogger.comtag:blogger.com,1999:blog-6703393754400182307.post-45690447561150094312019-06-02T01:14:01.108-04:002019-06-02T01:14:01.108-04:00If a landlord writes a letter (i.e., not using the...If a landlord writes a letter (i.e., not using the N12 form) that contains the information that would normally be contained on the N12 form, does this satisfy the legal requirements of the N12 form? For example, could this letter be used to file an application the LTB for eviction? Or would the landlord be required to serve the same information using an N12 form in order to file an application for eviction? And if so, would the original dates from the letter be valid or would the 60-day minimum be counted from the date the N12 form was served and not the original letter?Anonymousnoreply@blogger.com