LOOKING FOR QUESTIONS RESPECTING LANDLORD AND TENANT MATTERS
If you have a particular question, are not in a tremendous rush, and the question is likely to be of general interest to landlords or tenants (in Ontario), feel free to send me an email or post a comment. I'd be pleased to consider the question and write a little something about it. Note that these blogs are for information purposes only and do not constitute legal advice. For legal advice you should actually retain a lawyer to provide advice based on your specific facts. Lastly, as this is a general information blog, please do not provide identifying details, street addresses etc..
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
LAWYERS
310 O'Connor Street, Ottawa, ON K2P 1V8
Tel: 613-563-1131
www.pqtlaw.com
mthiele@pqtlaw.com
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Tuesday 23 October 2012
123 comments:
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.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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I am a tenant that is currently living in a hotel because of the lack of maintenance in my unit. There have been multiple orders issued against the landlord by property standards, esa, and public health city departments. These issues have been on going for a year. Can I request reimbursement for all of my expenses and a full rent abatement from the LTB? Is it true there is a limit of $25,000? When is a good time to decide it might be better to take things to civil court?
ReplyDeleteHello and thanks for the question. It sounds like you are having a terrible experience with your landlord and your current rental unit. When you fill out the T2 (Tenant's Rights) and T6 (Maintenance) applications you will see from the questions on the forms that there is jurisdiction (power) in the Board to award compensation for expenses that flow from the Landlord's breaches of his obligations under the RTA. It doesn't mean the expenses are unlimited or that the Board will guaranteed order a reimbursement for any particular expenses that you incur. Reasonableness is a factor as is your general duty to minimize the extent of your damages (the concept is "mitigation" and applies to everyone). You mention that this has been ongoing for about a year, please be aware that there is a time limit to file applications at the Board and it is a year. The Board will not go back more than 12 months from the date of application as this is prohibited under the RTA. Hence it is important to file an application(s) in a timely manner.
ReplyDeleteThe monetary jurisdiction of the Landlord and Tenant Board mirrors that of the small claims court in your area. As far as I know, the Small Claims Court jurisdiction throughout Ontario is $25,000 and therefore that is the jurisdictional financial cap of the Landlord and Tenant Board. For claims in excess of this amount, or for relief that is not within the Board's power, a claim would have to be initiated in the Superior Court of Justice. It is unusual for landlord and tenant cases to get to the $25K limit but the circumstances you are describing certainly sound like yours may be such a case. I presume the monthly rent is high and that you're still paying it? To your question of a full rent abatement, it is not usual to get 100% as the Board typically presumes that there is some value in a rental unit. However, you, having been driven out of the unit and not able to live there have a very strong argument for a full rent abatement.
The question of when is civil court better really depends on many factors. In my view, you should only consider civil court as an option if you are in a position to retain a lawyer to represent you. The process in the Superior Court of Justice is not typically people friendly and you are required to comply with the Rules of Civil Procedure which are quite detailed. This stands in contrast to the Landlord and Tenant Board procedures that are designed to accommodate non-lawyers. Aside from this, the Board processes are much faster and evidence is easier to submit. My last comment would be to consider whether your claim would indeed be successful for more than $25,000 as there are potential cost consequences if you do not win more than $25,000 in that a Court may order you to pay the landlord's legal costs if the Court determines that you sued in the wrong court (i.e. for more than $25,000 when you should have sued for $25,000 or less).
Hope that helps and good luck to you.
Michael K. E. Thiele
Hi Michael, I'm so glad to have found your blog! There is a question which has been making sick with worry. We have recently moved into a wonderful co-op, great location etc. The concern is that after a long day when the wife and kid have gone to bed I like to to smoke a little bit of Marijuana. The Co-op specifically that there is no smoking in the building, no problem there, I always go outside. The lease also says that it does not illegal activity on the premises so I take a walk and go away from the building and off the property. My concern is this, what if someone smells it on me, can they assume that I have some in the unit and since possession is technically illegal could just having some pot in the unit, but never smoking in the building or even on the co-op's property be grounds for eviction?
DeleteThank you,
Concerned in Ottawa
Hi: As this is Co-op housing the Rules are a bit different than if this was Landlord and Tenant Law under the RTA. If your Co-op however, is proceeding with eviction/termination/enforcement under the RTA (as it now can) then I think you would get the benefit of the RTA laws in relation to illegal acts--and hence you would have nothing, in my opinion, to worry about. Under the RTA, eviction is possible for an illegal act-committed on the residential complex--but that illegal act must also affect the character of the premises to be of sufficient seriousness to warrant termination and eviction. What you describe yourself as doing does not rise to that level under the RTA rules notwithstanding that it is "illegal".
DeleteCo-op's, as you know, run a little differently and the membership has a far greater input the running of the Co-op. Given how discrete you are being I would be surprised if anyone said anything and I would be surprised if anyone had sufficient proof to convince the Board or the membership on an appeal to the membership to terminate your membership and occupancy rights. Let's imagine the worst and the Board and the membership terminated you, they would have to apply to the Court and I think (presuming the facts are as you describe) that the Court would exercise its discretion and perhaps endorse the "affecting the character of the premises" test that is used in RTA cases (that being said, it may be doing that already as the logic of that approach is compelling).
Michael K. E. Thiele
Hi Michael. I'm hoping you can help me. I have two issues on two separate apartments. My daughter and I lived in a 2 bedroom apartment in a house. Without going into great detail, this house was a major problem...biggest being so much mold - toxic, that a company had attempted to clean,.but removed only a small amount, about 50 large bags and then were either ordered off the job or left for other reasons. 5 men in ffull hazard suits were there for about 5 days cleaning, left the job leaving us in the house with no explanation. My daughter and I have been very ill for as long as we can remember. I have pictures of warning signs on the door telling people not to enter because of the danger. There were many other problems with this landlord and house and we were forced to emergency vacate.
ReplyDeleteSecond. We found what we believed to be an amazing two bedroom in a small building for much more than we could afford but found a way to work the added rent into our budget. On the very first day after moved in, the neighbours below us as well as below ( they're related) started drinking parties. I believe they're on welfare but not entirely proven. They smoke, drink and smoke pot constantly. We've spoken to them as well as the Landlady on several occasions as well as have a running feud by text message. The landlady appears to like us but isn't believing us on much of what we say because these other tenants being family, stick together like glue. The other day, I advised the landlady that the situation had become so inttolerable that I wanted out of my lease. She said fine...my problem is, I'm now broke. We just lost 1300.00 because my daughter is suffering massive migraines due to fragrance or incense the tenants are using to cover up their smoke and she had to drop 2 university courses...plus only being 4 months in this new place, I have yet to 'recoup or save for another move. Plus, we love the actual apartment...just can't deal with the trailer park partying that goes as often as 3 times a week.
I'm not entirely sure what to do. Our health is suffering but I feel forced to move from apartment 2.
In order to record what's going on, do you think I can open file with the police department? Nothing else is working and these people make me nervous as hell. As said the landlady is Choosing to side with them because as of now, it's their family word against ours. I'm at wits end.
Hi Kate: You are in a truly unfortunate situation with limited practical options. Lots of theoretical options---but who needs theory at a time like this! I'll comment only on your current situation and say nothing about the mold and recourse that you may have had there (remember claims have time limits). With respect to your current situation I can tell you that the landlord and tenant board would advise you of your right to file a T2 application (tenant's rights) and T6 (maintenance/repair), seek an abatement of rent as well as general orders requiring the landlord to get the problems stopped. Alternatively, you could use such an application to get moving costs paid for (though as a reimbursement (if you're lucky)) and not in advance. You clearly are tuned in to the problem of proving your complaints and therefore a police file is great if you can get the police to take it seriously. In larger centres, noise is a by-law job most of the time and police don't typically respond quickly enough for it to be of any use. That being said, maybe you can find police who are interested in the pot smoking. Regular cigarette smoke will not interest the police from a law enforcement perspective. In any event, see what kind of attention you can get. It might be interesting to try contact with a Property Standards department or Public Health Department and see if you can get the rental unit looked at. From the extent of the smoke exposure I'm presuming that you are sharing duct work and you have second hand smoke entering your unit. Perhaps Public Health or Property Standards can confirm it in a report and depending on what the rules are where you are--perhaps they can make an order that would require the landlord to seal off your unit in a better way that it currently is. Filtering smoke and scents is very difficult but perhaps the landlord could be required to provide an air cleaner--or better yet exchange the inside air for outside air through forced air exchange.
DeleteThat you have applications that you can bring (T2 and T6) is clear. Your reasonable and quiet enjoyment of the premises is being interfered with. For that you should get a remedy. The idea that you will have to move as an answer to the problem is probably realistic as the landlord (of a small building) is unlikely to look at you favourably if you start legal proceedings and start getting expensive orders against the landlord. Legally you are right--but in the end unpopular!
I do think that the landlord should be made to pay for what you are going through. The value of your apartment, as a home, is far less than what your rent suggests it is worth. The Landlord and Tenant Board does not countenance "self help" in the form taking your own rent abatement and I have often enough heard adjudicator say that the law doesn't recognize a tenant as having the right to create their own set off from rent. The Board would have you pay your rent and apply for your rebates, damages, or abatement. Does that mean that this is the only way to do it? For the purposes of this blog and response to your query--I say yes, that's all you can do. However, desperate times lead to desperate measures and you do have options when it comes to self help so long as you understand the implications of the choices you might make. In this regard, you need to meet with an experienced landlord and tenant lawyer or paralegal and they can give you some suggestions on how to bring your issues to a head with the landlord in such a way that you can have an orderly end to your tenancy without losing too much money (some you will lose for sure). I'm limited in my comments in this blog to the more traditional answers that the RTA contemplates for these kinds of problems.
DeleteAs you have indicated that you like the apartment--perhaps you are prepared to have an unhappy landlord and are content to force change in the building. There are cases that hold that second hand smoke is an interference with your enjoyment of the unit. With air testing (I presume you don't smoke) you could prove the presence of second hand smoke in your unit. Smoke and other pollutants in a test result can be measured/compared against normal air and that would be fairly good evidence of what you are putting up with. Some medical records, a report from the doctor, explaining the impact and you have a case for damages. Some of this will cost money of course, but there is a basis to ask for these costs from the Board (though note the Board is notoriously cheap when it comes to awarding costs).
Anyway, I hope that helps you out somewhat. Unfortunately, there is no fantastic--hassle free way of proceeding in dealing with your problems in this building.
Michael K. E. Thiele
ottawalawyers.com
Hi Michael. I have a quick question for you. My roommate and I have a rental lease on a unit until August 31, 2014. However, we just got word from our landlord today that he wants to sell the place. Is it possible for the landlord to be able to terminate our lease early if he were to find a buyer and the buyer wants to move in before out current lease is up?
ReplyDeleteThank you in advance!
Hi Anna: One of the few benefits of being in a fixed term lease is that the lease may not be terminated before the end of term on "no fault" grounds. Termination and eviction for purchasers own use is a "no fault" ground. So short answer to your question is "no" the landlord may not terminate early for a purchaser.
DeleteMichael Thiele
Hi Michael,
ReplyDeleteI recently returned to my apartment after a 3 week vacation, and was surprised to have received a N5 - Notice to Terminate a Tenancy Early dropped through my mail slot. I am very confused as to why I am receiving this notice and would like to understand how best to respond. Some background:
- The N5 indicated that I am receiving the notice due to Reason 2 (interfering with reasonable enjoyment or another lawful right)
- Part B - Details About the Reasons for the Notice simply state "See attached schedule", and includes an attachment with 15 terms (garbage, smoke detectors, pests, etc.). I have reviewed all of the terms and am not aware of me being in conflict of any of the items.
- I received a note on my door approximately 2 months ago from another tenant stating I was making unnecessary noise. I did not follow up on this comment, as it did not indicate who it was from, and could not have been noise from my unit as I was away from my apartment travelling for 2 weeks over the period when the note was left.
- I have lived in my building for 10 years and use my apartment very little, as I travel for work on a weekly basis, and am very quiet when I am home on the weekends.
As this is my first notice, I would like to provide a response to property management indicating the justification for the notice is insufficent and I would like it to be cancelled. In the event noise is being made by other units, I also want to ensure it is not attributed to coming from my suite. What do you recommend?
Hi Jeffrey:
DeleteI think it is worthwhile to inform that landlord that the allegations made in the N5 are not attributable to your unit. State that you travel frequently and that for the date ranges contained in the Notice that your unit has been unoccupied and hence could not be the source of any complaints. While the N5 notice voids itself through compliance, there is no "formal" cancelling procedure of such a notice. If the Notice (1st N5) were ever to be used in a Board hearing the Landlord would need to prove the truth of the allegations contained in the notice. To that end, you should keep as evidence various hotel receipts, tickets, car rental, purchase receipts, photos that prove that you were somewhere else during the time frames set out in the Notice of Termination. This will be your evidence in support of the denial of the allegations at any hearing.
It wouldn't hurt to speak with the landlord as well and try to get a sense of what is actually going on. If the landlord is decent he/she/they might appreciate a conversation where you explain your side of what is going on. Ultimately, if the landlord is not receptive that too will be handy to know.
M. Thiele
I am a tenant living on a month-to-month lease. I have been having problems with my landloard and need to move asap. Is the landlord required to give me back my last month rent if they are the reason I have to move without adequate notice?
ReplyDeleteHi: If the landlord agrees he may certainly give you your LMR back. However, the landlord may object to your short notice and insist on getting the full 60 days to end of term. If you can not agree on a termination date with the landlord then the only way to get back your LMR is to file an application with the Landlord and Tenant Board and seek an order terminating your tenancy early and a return of the prepaid rent.
DeleteMichael K. E. Thiele
Hi Michael if I am on a month-to-month lease can I request an assignment of my lease? Does the new tenant continue on my month-to-month lease paying the same rent as I did or are they required to sign a new lease for a year and be subjected to a rent increase?
ReplyDeleteHi Michael, please we need your help. W are landlords in Ontario and need to sell our place. The problem is tenants are not cooperating because its not the end of their lease. What rights do we have to go ahead and list the property. Also, is it possible to do some cosmetic work to the unit with the existing tenants? The place is dated and we would like to do the flooring and painting to make it look more appealing to buyers. Do we have the right to do this, as in give the tenants notice to have the cosmetic work done. They have indicated they have no interest in leaving the unit and have also threatened to file a hearing. What can we do? Is it possible to have them stay in a different accommodation for 1week to get the work done and have them deduct it from the rent? Please what rights do we have as landlords concerning cosmetic repairs and selling the house?
ReplyDeleteOR can we give them notice for us to move back in and then do the repairs or can we have the repairs done while they are still currently living in the house and list for sale? Please we would appreciate your advice.
Thanks
Alexander:
DeleteAs the landlord you do have the right to list and sell your property. You indicate that the tenants are not at the end of their lease meaning they are still in a fixed term. What this means for you is that any buyer of the property would have to take the property with the tenants living in it. The buyers would become the tenants' new landlord. The tenants have no say over this and can not object.
If the tenants are interfering with the sale of the premises and are doing things to discourage the sale it is possible that these actions could be grounds for eviction using a Form N5. They would get a couple of chances to correct their behaviour--but if indeed their failure to cooperate impairs your ability to sell the house you could seek to evict them for it. This is something that you should hire a lawyer or paralegal for as the legal theory of how to evict for failing to cooperate in the sale of a property and putting together enough evidence can be tricky.
You are entiteld to do renovations and improvements. You should coordinate with the tenants and provide them with 24 hour written notice before entering to do the work. You can ask the tenants to move out for a week but you can not legally require them to do it. The only form that you can use is a Form N13--conversion demolition or repair---but the Notice period is very long and a precondition is the need for a building permit (likely not applicable to your situation). Again, if the tenants fail to cooperate, are unreasonable, then you could serve them with a Notice of Termination in Form N5--and then follow through on that process. It is not easy nor intuitive so you will want to have an experienced lawyer.
That you wish to make cosmetic upgrades is understandable and permissible. Getting the tenants to cooperate and try to sell up the house to prospective purchasers can be much more difficult.
Using an N12 (Landlord's own use) to get vacant possession so you can do renovations to list the property for sale would be illegal. The N12 is to be used when you in good faith wish to occupy the premises for residential purposes. What you describe does not satisfy this test. That being said I have certainly seen the N12 used in this way--even though it is contrary to the RTA.
Best of luck.
Michael K. E. Thiele
Thank you very much!
DeleteHi I'm a tenant with the worst possible landlord ever (multiple property standards orders, esa, health unit orders, none that he's complied with). I have a hearing next week finally for my T2 and T6 applications. It was filed in February, the landlord requested adjournment, the board ran out of time to hear our case, and here we are 4 hearing dates and 4 months later... guess thats one of the joys of being in a rotation area without a full time office.
ReplyDeleteAnyways here's my question... The landlord was told of each maintenance issue as it occurred over the past year (email documented, however he's refused to fix pretty much anything) And has had my application for 4 months now detailing the maintenance issues I raised since February. I received an email today for notice of entry Friday wanting for me to show him issues I raised in the application. This is 4 months after he's had the application!! The two areas he suddenly wants to see issues with the leaking roof and flooding basement. Of course he is asking after all the snow melt/spring rains have passed. Short of running the hose against the house for who knows how long so he can see these issues himself. It's not like he's going to clean up either mess after he's seen it. Short of doing a rain dance, I can't make it rain. Can I tell him to wait until Tuesday at the hearing? Do I have any legal obligation to do this days before the hearing? I have pictures of everything but don't really want to give him any more heads up about my case other than the application (can we say way too much info in the claims, I could read it for my testimony). Oh and he's been into the house since the ceiling has collapsed in the kitchen and into the basement while it was wet (puddles on concrete floors/sump pump working hard). I've been trying to find anything online or in the act to tell me what I have to do legally with this, but can't find anything. Please help!
Hi: If the landlord has served you with a 24 hour notice to enter and it stipulates the reason as per the RTA then the landlord has the right to enter. In fact, he should enter and he should take steps to fix the rental unit. That it has been four months since the application has been filed and he still hasn't fixed the place is astounding. Often enough, it is the filing of the T2 and T6 that spurs a landlord into action and gets the work done before the hearing date (which is a good thing!).
DeleteI appreciate that you may have a sense that you don't want the evidence destroyed prior to hearing, or that there is a "too little too late" notion. That the landlord wants to see the problem is something that he is entitled to do. It is possible that the inspection is not to actually do the work but only to learn about your case or to gather evidence. That would be unfortunate but ultimately it does't actually help the landlord. Make sure you have your evidence (it sounds like you are prepared) and good luck in finally getting your case resolved.
Michael K. E. Thiele
Hi! Living a never ending nightmare! I moved into an apartment july 1st 2014 and there was no written lease agreement.the apartment didn't have a fridge and the promised I would have one on moving day. They put in a fridge that didn't even worked. When I told them about it, they told me to use the fridge in another vacant apartment across. I ask them multiple times and they never did anything about it. The new occupant of vacant apartment has started to move in for august 1st which is making things uncomfortable. They had to install power outlets in living room because there were none and they never did. The landlords forgot the water running in the garage which flooded a a part of my apartment. I travel for work which took me a couple days before it was discovered. When I told them about it, they didn't even want to come see the severity of damages. I am now sleeping on my sofa because the room that got most wall mold and floor damaged is my bedroom. On several occasions, they gave me short to no notification of water shut off, cable, internet and no valid explanation and when they did give me notice, it was in the middle of the night or at unreasonable hours, unreasonable ways. I have had visitors twice. The landlord's wife kept spying on us and she came on both occasion to ask me who were these people and they better not stay overnight otherwise she would charge me 500$ deposit for damages. This is beyond my worst experience ever. All I want is to move out. I have paid first and last. Since we are on month to month and the apartment is not even in living conditions, I wanted to know if I am allowed to give them a notice of termination for august, in the hope to move out for september 1st. I would like to count july for my 1st and august for my last. This place doesn't deserve 2 months notice and I don't know why I should pay them for anything, as I have no power outlet in living space, no fridge and no bedroom to sleep in because of mold and floor damages. All I want is to be out as soon as possible. Since I paid my last month and I am sure they won't pay me back, I want to stay and give me enough time to plan my next move. Am I doing the right thing?!
ReplyDeleteThanks
Hi Nadine: It is very likely that the landlord will never admit to the things you allege. Hence, it is very important to collect evidence about the situation. If you are in an urban area you might have luck in getting the property standards department to come and inspect the unit. They would make a report, likely an Order, and then you would have an excellent record (evidence) of the poor condition of your place. You should also take photographs and try to get a reputable person who would be prepared to testify at a hearing to see the place. If you can't get property standards from your local municipality to inspect then consider hiring a home inspector to do a report.
DeleteYour position is that the premises are not fit for habitation and that your rights are being seriously violated (illegal entry, breach of privacy and threats and harassment (no overnight guests)). These things are all very serious but ultimately it comes down to proof. My opinion is that termination in the circumstances, without notice, is indeed reasonable. However, will the landlord agree? If not, you might find that they sue you after you move out without notice and then they try to sue you for "damage" to the unit as well. I suspect, that unless you get the landlords to sign off on the tenancy and agree that it is in good shape and sign a form N11 (see landlord and tenant board website) which is an agreement to terminate, you are running a risk. Without agreement I think you should collect this evidence and then file a T2 application with the Landlord and Tenant Board and have the Board terminate your tenancy by order. If you look at the T2 form you will see where you can ask for this. At the same time, while you're at the Board anyway, you might as well as for a rent abatement for the the misery you've had to put up with and you'll also see a spot on the form to ask the Board to fine the landlord. These last things may be great for negotiation as there is an opportunity for mediation before the hearing that you are encouraged to pursue.
Best of luck.
Michael K. E. Thiele
Our landlord is selling the building and the sale is conditional on the building being empty. Our landlord has given us a N-13 form with 120 days to leave. However, the buyer would be doing the repairs. I know that a landlord and buyer can work together to evict someone with a N12 if the building has 3 or fewer units, but can they do so with a N13?
ReplyDeleteThe buyer has also asked us to sign a piece of paper guaranteeing that we'd be moving at the end of the 120 days, or he'd give us a N12. Would he be able to do this considering that he does not yet own the place and that our building has 4 units?
Hi. This is an interesting question that is new to me and one that I have not had to deal with before. I've taken a quick look at section 50 RTA (Notice for Conversion, Demolition, Repairs--Form N13), and section 49 RTA (Notice Purchaser Requires Unit--Form N12). One way to characterize your question is to ask whether a landlord is permitted to serve an N13 on behalf of a purchaser, or another way is to query whether a landlord who has served an N13 with the intention to do the work (lets say repairs) and then decides to and does sell during the notice period before work has begun can transfer the building to the new owner with enforceable N13's in place.
DeleteThe direct answer to your question is that I don't know the answer with any certainty. Reviewing my annotated 2014 RTA from Fleming there is a reference to one case called Willroy Mines Ltd. v. Cameron [1982] O.J. No. 2961, 41 O.R. (2d) 109 (Ont. Div Ctr.)--the summary in Fleming says this:
Notice cannot be given for termination based on an intention to sell the property: sale itself is not conversionto another use. However, note that notice could be given under the LTA where an identified purchaser had a sincere intention to convert to non-residential use: Avro Management v. Nefsky, [1987] O.J. No. 2677, 59 O.R. (2d) 474 (Ont. Div Crt). It is not clear whether that is still the case under the RTA.
Aside from the foregoing caselaw (which was not decided under the RTA---so the applicability is in doubt) I can't see anything else that provides a definitive answer to your question. I would guess that Fleming's last sentence in the case above is premised on the wording of the RTA--comparing section 49 and 50. Section 49 (N12) goes to the trouble of specifically authorizing a landlord to serve an N12 on behalf of a purchaser. Section 50 does not. If there is a general right to serve a Notice of Termination at the instigation of a purchaser then one would not expect the wording of section 49. Is the corollary then true? I think this is the doubt that it will take a hearing and possible appeal decision to resolve.
With respect to your service of N12--the wording of section 49 provides the circumstances under which an N12 may be served for a purchaser. The N12 may be served (for a purchaser) in a complex that has no more than 3 residential units. If your residential complex has 4 units then no valid notice may be served under section 49.
The buyer may not require you sign a piece of paper confirming that you will vacate. You are entitled to rely on your rights under the RTA and you may always seek remedies at the Board. An N13 gives you rights to compensation and to re-occupy and an N12 can be delayed by the Board under section 83. Notwithstanding the demands of a purchaser or landlord it is entirely reasonable to insist on your rights under the RTA.
Hope that helps you out a bit
Good luck
Michael K. E. Thiele
Thanks a lot Michael for this thoughtful response. Would you happen to know if a landlord could succeed in an N12 eviction for one unit if there is a another comparable, vacant unit in the building?
DeleteHI again: A landlord does not have to take a vacant unit and may indeed seek possession of an occupied unit even if there is a vacant unit. However, the fact of a vacant unit can be a relevant consideration in determining whether the application should be granted or delayed. Michael K. E. Thiele
DeleteHello Michael, today the sale was finalized and the new owner issued us with an N12. I think he decided not to pursue the N13 route for two reasons. First, he didn't issue the N13 (the previous owner did on his behalf, and as you noted above it is unclear whether an N13 is transferable), and second he cannot get a building permit for the work that he wants to do. We have various recordings of him outlining his plan, which is to take part of our unit and part of another unit to create a new, fifth unit in the building. Since our building is already an illegal fourplex, he is unable to get a permit to do this work. His plan is to create this fifth unit then live in what is left of our unit. My question is twofold: can we argue bad faith on the basis that he wants to use part of our unit to create an illegal unit, even if he plans on living in what is left of our unit afterwards? If he is found not to be acting in bad faith, do we have a shot at postponing our move out date? I am pregnant, and the move out date given by the N12 is one month from my due date. We also have a 2 year old child who goes to daycare within walking distance of our apartment, and we are across the street from the hospital which I frequent regularly for various health issues. Other facts which may be important: the 3 other tenants have vacated their units so 3 units in the fourplex are currently empty (the upstairs unit is very similar to ours). The new owner has his own place but says he wants to move to our unit because he likes the neighbourhood and because his girlfriend wants more space (the above unit, currently empty, has the same square footage as our unit). Thanks you for your help.
DeleteHi Michael,
ReplyDeleteI am wondering at which point is a N1 form deemed inaccurate and cannot be used as a rental increase. How would I report this to my landlord? Would he then have to fill out a new form to have a rental increase three months from now?
Thanks
Hi:
DeleteThere is nothing in the RTA that requires you to point out the inaccuracy in the N1 form. How it often happens is that the landlord will ask for and expect the increased rent as per the N1. The tenant will refuse to pay the increase and simply pay the old rent. The landlord may then serve an N4 (Notice of Termination for Non-Payment of Rent), the tenant will still do nothing, and eventually the landlord will serve an L1 (Application to Terminate the Tenancy for Non-Payment of Rent), and it is only then, at the hearing that the tenant makes the point that the N1 wasn't proper. The Board would then rule on what constitutes the lawful rent which necessarily adjudicates the validity of the N1. If the N1 was indeed wrong the application would be dismissed. If the N1 was correct then the tenant will be ordered to pay the rent differential plus the $170 application fee that the landlord paid to file the application.
In my experience, whether or not tenants say anything about mistakes that the landlord has made in the N1 depends on the nature of the relationship. Saying something helps the landlord serve a proper notice and it increases the rent sooner. Waiting it out delays any rent increase.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteA while back shortly after we had given notice to end our tenancy on Dec. 31, 2014 our Landlord sent us an email saying that he had a prospective tenant who might like to move in during the first week of December. The Landlord asked us if we might consider earlier. We responded by saying that might be possible and asked if we would get our last month's rent prorated. He replied that we would as long as it was at his request. As it turns out, moving out in the first week of December actually works out for us and we've made arrangements to do so. The Landlord is aware that we're moving out early. If the Landlord rents out the unit before the official end of our term (Dec. 31), are we still eligible for a partial refund of our last month's rent?
Thank you very much in advance for your time!
Hi: In my opinion yes. Even after you have moved out, as long as your rent is paid up the rental unit is yours. If the landlord wants to put a new tenant into possession he needs to make sure that your right to possession is terminated. Otherwise he risks having two tenants for one unit. If he goes to re-rent the unit after you have moved out he should return the "double" rented portion of the rent to you.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMe and my boyfriend moved into a basement apartment in April 2014, we're now having some issues with our landlord (as well as an issue that occurred soon after we moved in).
On our lease it states that we are to pay 40% of utilities. The other 60% comes from the upstairs tenant.
The first issue we had was that the landlord wanted us to pay for both April and Mays utilities which were on the same bill. There was no way to tell how much was from each month and he reasoned that no one was here (except that he was here painting, flooring etc.). It's hard to tell if he understood what the issue was with us paying it or just didn't want to pay it himself because its very hard to understand his thick accent. After it turned to raised voices we decided to just pay the extra 100$ and basically told him we don't want to hear another word about it.
The upstairs tenant moved in 6 days after us, and after that initial bill the landlord put the utilities in his name. He then told us to pay our 40% directly to the upstairs tenant. This was fine until October when hydro came to shut off our utilities for non-payment. We've been paying our %, but it turned out that the upstairs guy wasn't paying the bills at all. It didn't help that we noticed on an original copy of a bill back in July or so that there was already a ~1200 charge on the account... so the landlord must not have been paying either before this. Luckily the guy paid the hydro and it was only shut off for 5 minutes.
The real issue now though is that the upstairs tenant moved out on Nov 8th, and though we specifically paid our % up until the 8th (which the utilities were then to be transferred back to the landlord), there is still an outstanding unpaid balance. We're standing our ground and have proof of payment (cheques that say for utilities and an email from the tenant stating that yes we paid him), the landlord has tried to come to us to pay the water bill and might for other bills as well. Also when the new bills come we may not be able to tell on them whats for that month and whats from the last bill which we paid for already. It's very hard to reason with him, and when we think we got the message across he phones back a week later to talk about it. We think he's panicking about having these expenses as his responsibility and trying to get someone to cover them.
Unfortunately we know that the previous tenant will not pay them due to him and the landlord having a feud over a bunch of different stuff (he worked for him which didn't go well, and the landlord had some friends of his subletting from the guy while his family was gone who then turned out to be illegal immigrants, plus other costs that the landlord might owe him for pool supplies). We also believe that the landlord will not want to take legal action against him because of his own unscrupulous doings (including that we are almost sure our apartment is not registered).
We're worried that the bills won't get paid and that our utilities will be shut off. Also we suspect that since no one is living upstairs at the moment, that he will try to get us to pay 100% of the next utilities.
Hi Michael,
ReplyDeleteMy mother is 93 and moving into a senior's residence. She has occupied her current apartment for 22 years and previously was in another apartment in the same building for five years. She has never received any interest for her deposit cheque. The landlord has post-dated cheques until the end of April and she has given her 60-day notice, effective that date. Does she need to pay the April rent or should that be covered by her previous rent deposit? She cannot remember how much she paid in 1988 and I cannot find a receipt in her files for this payment. Thanks, Bonnie
Hi Bonnie:
DeleteYou should put a stop payment on the April cheque and you should advise the landlord that the LMR (Last Month's Rent) deposit should be applied to the month of April. You should advise the landlord as well that there is interest owing to your mother on her last month's deposit that was never paid to her. There is potentially 27 years worth of interest coming to your mother--if the lease from the first unit was simply transferred to the second unit. The interest payable on the deposit today, under the Residential Tenancies Act is the same as the annual guideline increase amount. This means that unpaid interest simply is added to the deposit to make it equal the new monthly rent presuming that the landlord increased the rent in accordance with the guideline. However, your mother's tenancy is old enough that she will have earned interest on the deposit at the rate of 6% for several years. Hence, I suspect that she will indeed be owed some interest money. Note that last month's rent interest is simple interest as opposed to compound interest. This means you calculate the annual interest not the deposit and just add up the annual amounts. You do not add the interest from the prior year to the deposit and then do the interest calculation and so on.
Presumably your mother's landlord will have the records about the Last Month's Rent interest. If it is a large landlord you could simply ask at the office for them to print out her rent ledger. It should show on there if they have a last month's rent deposit noted. Hopefully they do and this won't be a contentious issue. If they deny having an LMR on deposit then you will have to dig a little harder to find the proof you need.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteThank you for your time. My family ( my partner and our 2 children) and I find ourselves in a difficult and confusing situation.
We are currently in a signed lease which terminates November 1st 2015. This residence which we rent for $2000./mo is considered a "single family" dwelling as per our lease. The landlord has reserved a room in the basement which is locked, for personal storage. This property also has the potential to be 2 units; main and basement lower apartment and 1st and 2nd floors upper apartment. There is 1 entry way for both apartments, via the front door. As I have said, our lease defines the entire property as a Single Family dwelling.
A week ago our landlord informed us that her situation has changed and she will need to move back into the lower portion of this residence as of August 15th 2015. After careful deliberation we informed her that this is a request our family is unable to accommodate. Regardless, she replied that she will be taking over the basement as her residence, as the basement is not included in our lease, and she will be paying a portion of the utilities. Actually, the basement is not mentioned anywhere on the lease, nor is the fact that she uses a room for her personal storage - this was a verbal agreement. The basement does not have a washroom, so she would need to use the washroom that is part of our living space, as well as enter our living area and walk through the ground floor foyer to access the basement.
I have read and am familiar with eviction protocols as per the Landlord Tenant Act should she choose to go that route, but am unclear as to our rights in this situation. Can she arbitrarily assume tenancy in her property at any time and redefine the terms of the lease? Are we not protected from this by our signed lease?! Is she allowed to give 24 notice day after day to re-enter the property whenever she pleases? Is there any action that we should be taking? We have provided her with post-dated rent cheques to the end of our year term.
Any and all advice you can offer would be gratefully received, as this sudden upheaval to our living situation has us extremely concerned. We want to make sure we are on solid legal ground for how best to handle it.
Thank you very much, Michael.
Michael and Leslie
Hi Michael and Leslie:
DeleteBased on the facts as you have recounted them here to me, there is nothing legal about anything that the landlord is intending to do. This is odd enough that I need to make sure you are in Ontario (Canada)? This does not fly in Ontario.
I think it is fair to say that the basement is included in your lease. The lack of a bathroom in the basement speaks against it being a separate unit. The Board will also consider actual use of the premises and the use to date reflects the fact that you have rented the entire house including the basement. The reserved storage room is irrelevant to the issues.
Given the landlord's threat--consider an immediate application to the Landlord and Tenant Board in Form T2--ask the Board for an Order directing the landlord not to move in. For your trouble, ask for a rent abatement and a fine as well. The landlord's stated intention is a threat to illegally enter the rental unit (which is contrary to the Residential Tenancies Act). The landlord is not allowed to unilaterally change the terms of the lease and just move in.
You may wish to also consider calling the police, or attending at the local police station. The reason you are there is to advise them that the landlord has threatened to move into your basement (that you are renting from the landlord). Advise the police that if the landlord tries to force her way into the property that you will be calling the police for assistance as you will be resisting her attempts. There is a risk of violence if she tries to move in (it will be rather heated I presume) so you want the police to be ready to step in to keep the peace. If you do this in advance, the police who respond to the call for service will be able to read about the issue before they arrive. This should have them getting out of the car on your side already. Perhaps, depending on the police service, they will give the landlord a call and warn her not to try it without first getting a Court order. Suggest to the police that before the status quo changes that the landlord needs to get a Court order.
While it is illegal to change locks, under the RTA, given what the threat is, I would consider also changing the locks to the rental unit without giving the landlord a replacement key. It is a temporary measure until the Board makes an Order dealing with the issue. Perhaps, given the threat, you can also ask the Board to authorize you to not give the landlord a key to the rental unit.
With respect to your specific questions. The landlord has no eviction options for her own use, during the fixed term part of your lease (i.e. you can not be evicted before your lease expires (for landlord's own use) before November 1, 2015). The landlord may not arbitrarily assume tenancy in her property and she may not redefine the terms of the lease. Your signed lease does indeed protect you (presuming it doesn't say anything strange---though clauses that are contrary to the RTA are voided by the RTA--so even if there is a crazy clause that goes against you there is a chance that it is void). The landlord can not give successive 24 hour notices whenever she pleases. Entry into the rental unit is governed by section 26 and 27 RTA. Find the sections online at www.canlii.org . The entry provisions of the RTA are constrained.
Good luck.
Let me know how this turns out.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much, Michael. This information is very helpful. Yes, we are in Ontario (Toronto). We'll keep you posted on this - going to print the T2 now.
Deletebest,
Michael and Leslie
Hello Michael,
DeleteSubsequent to our last communication we have realized that behind the locked door in the basement, which the landlord is using for personal storage, are 2 rooms; one kitchen and another living space. We asked the Landlord if she needed to use our main floor washroom to which her response was " the basement has nothing to do with the rest of the house, it is a separate unit". Would this new knowledge impact our filing of the T2? We also asked what length of time she would be staying and received no response.
Leslie runs a music studio with a small voice over recording studio from one of the rooms on the main floor. This is her livelihood. It would make it impossible to do any recording if someone were living in the basement and making noise - even something as simple as running a facet.
The Landlord advised us she has also consulted the Landlord Tenant Board and was told she is within her rights to take up occupancy.
We also tried once more as per the Boards suggestion to resolve this amicably.
Is there any other information we should provide to the board along with the application that would strengthen our case?
As the Landlord has advised she will take up tenancy on or about the 15th of August, we have plans to file the T2 along with a "Request to Extend to Shorten Time" form, in person tomorrow.
Your time and advice are greatly appreciated.
best,
Michael and Leslie
Hi so hopefully I can be helped here. My family moved into a rental semi detached home May 1st 2015, We signed a 1 year lease with a rental agency. The house was owned by private owners and they are pretty much using the rental agency just as a middleman. Anyway not long after my family moved in..about a month. The Landlord (Private owner) came by and said that the town told him that he needs to repair a wall and he would be having a contractor come by to check it out, After observation the Contractor and landlord told me that my family and I couldn't live in the house for a minimum of 4 weeks. and that the project would be starting in 3 weeks. So what rights do I have here? I have a wife, 9 year old autistic son, a 7 year old son, a dog and a cat. We have no family we can stay with, we can't travel from town both our jobs are here and so are the kids school which will be starting while they work on the project. We cant goto a hotel room due to it being too small, and most not accepting pets, and also my son with autism has very loud outbursts quite frequently and the change of routine for him is going to be very damaging for quite some time. What should I do? Does the Landlord have to get us a house? does he pay for costs? I am truly worried for my family and am not sure what I am going to do for them.
ReplyDeleteHi Michael,
ReplyDeleteI have a question regarding liability for damages. I'm a student and renting a room in a shared house with 4 other girls, one of which is my landlord's daughter (with whom I share a kitchen), so I understand that the Residential Tenancies Act no longer applies to me. I have lived there for 3 years, I have a good relationship with my landlord and have been an excellent tenant thus far, cleaning and caring for the fully furnished house.
Last year (October 2014), I burnt an iron mark in our common-area living room carpet. I informed my landlord right away and apologized, said I would pay for the repair. Nothing was done until April 2015 when my landlord asked for $1000 to replace the carpet with brand-new hardwood flooring (note that he has a $500 security deposit carried over from the first year I moved in). At that point, I didn't know my rights, and was intimidated and felt guilty for the damage, so I gave him the money which he used to buy the flooring. A few months later I began having second thoughts on my liability, and did some research on carpet damages. The carpet that I burned was around 8-10 years old and was already showing signs of wear and tear (bald patches under couch and ottoman). I've seen online (rules/regulations for various States in the USA, but not for Ontario) that a carpets lifespan is around 10 years and depreciates at around 10% per year. Following these rules, I would only be liable for around $300 maximum. Now knowing this, I'm in contact with my landlord, trying to recover some of the money and also inquiring about my security deposit (I'm assuming I'll get that back even if I don't recover any of the $1000). I don't think that I'm responsible for paying for brand-new flooring, when the carpet was already close to the end of its lifespan but I don't know the best way to try and recover money, if I can at all.
So my questions are:
What are the prorating carpet damage rules/law in Ontario?
What cost of carpet replacement am I really liable? Is it realistic for me to be paying for brand new flooring?
Should I get my security deposit back, whether or not I recover some of the $1000?
Is it realistic for me to try and recover some of the $1000 or is this just a harsh lesson learned?
Thanks for your help,
S
Hi: Regulation 516/06 to the Residential Tenancies Act contains a schedule setting out the useful life of things in a rental property. The schedule is not absolute but it speaks to the prorating issue that you raise. In Ontario, carpets are considered to have a useful life of 10 years. It is a reasonable argument to make that after 10 years the carpet doesn't owe you much at all. Certainly a tenant would not be replacing a 10 year old carpet with a new one and pay the entire cost of the new one. Take note, of course, that this schedule is in the law governing rental units under the RTA. It is not a general law about the useful life of carpets in Ontario (there is no such law that I know of).
DeleteYour security deposit is a matter of contract and given that the RTA does not apply (sharing with child of landlord), the security deposit is not illegal. Whether you get it back or not really depends on the terms of the contract. If it is not returned, and it should be returned, then you can consider suing.
Getting the $1000 back is likely a pretty big hassle as you will need to proceed to small claims court. That being said, if I was your judge, you would win. The landlord had some nerve taking this money from you and certainly on the facts as you recount them he took advantage of you. If he doesn't have a very good rebuttal to your version of the story I think the Court gives you your money back.
Good luck. If you do sue, please let me know how it turns out.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI recently discovered that my landlord charges my neighbour 945 a month for rent. They have been living here for roughly 7 years. I moved here 3 months ago and only pay 795. Is it legal for my landlord to charge them more than what the new tenants pay? Is there any way for them to get their rent lowered?
Hi: From your comment I presume that the rental units are identical and that there isn't something inherently better about your neighbours unit than your own. Even if they are exactly the same the rent does not have to be the same. If your neighbour's rent was lawfully charged at the time that the lease started (it can be set at any amount when the lease starts) then it is legal. There is no right to have the rent reduced just because the rental market softens and other people in the building start to get their rental units a little cheaper. If this $150 a month difference doesn't represent any difference in "value" of the unit (nicer view, bigger, higher floor, parking, storage--i.e. nothing that justifies the cost) then your neighbour could talk to the landlord and see if a deal can be made. I wouldn't expect much though. Unless it is a very soft rental market and there is nothing special about your building, it might not be possible for your neighbour to move to a new place with a much better rent. The costs of moving are high and the unit probably has certain advantages for the neighbour (close to work, doctors, groceries, pharmacy) so moving for the $150 per month difference may not be worth it.
DeleteIf the neighbour is valued by the landlord perhaps he'll give them a break or offer not to raise the rent for a while. In the end though, this is not something to insist on with a stick--it has to be all carrot as the law doesn't entitle your neighbour to a break.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael;
ReplyDeleteThank you for your time.
I rent an apartment in a 3-storey building, and on the 3rd floor. Recently, the landlord began replacing the (flat) roof on the building (along with 2 or 3 adjacent buildings as well. The roofs are flat and need the old roofing material replaced and new material installed. The building is old, so I can hear all the work that is going on, on the roof. The landlord estimates work will take a couple/few weeks till completion, maybe up to 4 weeks. Also, notification of the work was given one day before it commenced.
As the tenant, would I be entitled to a rent reduction during this period as compensation for the (ongoing and constant) noise due to the roof replacement? If so, how would I go about initiating a compensation claim?
As well, once the roofers start laying the new roof after they have removed the old material (this should be commencing shortly), I suspect the roofers will be using torches/heat/tar to seal the roofing sheets, etc...and thus make a burning tar smell (I do not believe they are re-tarring the roof, per se, but rather laying sheets of rubber/tar membrane which need to be heated at the seams/joints by heat). If the smell gets out of hand, what recourse would I have?
Lastly, does the landlord require a city permit (I am in Ontario) to re-roof a unit, and if so, can I request to see the permit?
Thanks...
Hi Michael,
ReplyDeleteI have a quick question regarding renting in Ontario. This is the first official Tenant-Landlord relationship I will be undertaking and I was confused as to what all the rules were. Inside the unit, there is a number of large pieces of furniture. The unit was advertised as coming furnished or unfurnished. We have already signed the lease, but have decided we do not wish to keep the rather large dining table in the unit and would much prefer a smaller table so we can better utilize the space. Our landlord is telling us that this may not be possible and the table may have to stay in the unit. Is he required by law to clear out the unit at our request? If we do not want to table, do we have to find storage and pay for said storage for the duration of our lease? Just looking for some insight on this. Thank you so much for your time, your blog has been tremendously helpful so far!
Hi Michael,
ReplyDeleteI have an interesting case that I'd really appreciate some help with. I was living in a 3 bedroom basement apartment that was technically the basement to the house above it before it got sectioned off into a separate unit. One of my roommates caused a small fire at one point, so eventually the fire department came in to inspect the place. Shortly after they inspected the place my lanlord told me that I was being evicted because it was an illegal unit due to the following reason:
1) The main exit leading outside is at the top of the stairs, that lead down into the unit, and above the level of the kitchen and stove, like 7 feet above. I could definately see someone getting trapped in the smoke attempting to escape cause there wouldn't be a smoke ceiling to crawl under.
2) The ceiling at certain locations is as low as 5'10". There are at least 4 locations that the ceiling is lower than 6'0" which I've hit my head on numerous times, in particularly parts of the ceiling going down the stairs (you really have to be careful going down the stairs or you can hit your hear pretty hard).
3) The egress windows are about 1.5-2 sq. ft. of openable exit space, in all the bedrooms and there are no other windows in the unit but there is an outdoor exhaust fan in the washroom and living room. Not sure the exact measurements but I think the dimensions of openable egress window space is about 10"x20". I lost my keys once and tried to get in through the windows but I couldn't fit through.
4) Not sure if this is mandatory but none of the bedroom doors are solid wood. They're made of a hard cardboard like material and hollow inside with support pieces inside so the door isn't flimsy and has a more solid structure. If you knock on them they echo a little. All other doors that aren't bedroom doors are solid wood.
There may have been a few other minor things but I can't remember.
I'm wondering what my roommates and I are legally entitled too as far as compensation goes for the landlord having rented us out an illegal unit and essentially breaking the lease agreement the moment it was signed? I've done some research but can't find any definitive answers. Is rent abatement something we can go after him for? If so how much of a percentage of the total rent we've given him can we get back? Does the extensive safety hazards he allowed us to live in effect that percentage, ie. bad windows only = x% vs bad windows + bad main exit + bad ceilings + other reasons = greater than x %. I feel like rent abatement is the laws way of making sure a landlord doesn't profit off an illegal unit to deter other landlords from repeating the same behaviour. Either he knew and hoped no one would find out or he failed to do the proper due diligence prior to first renting the unit out, and getting his profits taken away is his punishment for carelessness.
Are all the past tenants that have lived there entitled to rent abatement as well? Only me and the 2 other tenants know that the unit is illegal. Would all the past tenants who didn't know it was illegal when they rented it out, be entitled to rent abatement if they were informed (possibly 6 years worth of tenants)? I'm pretty sure the statute of limitations doesn't start until the day the act occured or until the day the plaintiff first discovered the act occured. I think they should be entitled to something as they had no idea and still don't.
Also, can we go after him for moving expenses and for increased rent at our new locations? Is he required to offer any vacant units he has in the building (he has one empty unit and he refused to rent it out to single renters (ie. me) cause he wants to rent it out to a group)? Do you know the legal codes for rent abatement, ie. RTA 2006, c.21, s.17, I can't find them anywhere?
Thanks in advance for all the help.
Hi: A very interesting issue. Unfortunately I will not be giving you the definitive guide to this issue as I don't think it has been written yet--by anyone. Your description of your rental unit leaves not doubt in my mind that it is not a legal unit simply from the perspective of fire safety. The details of those regulations can be looked up but it sounds to me that your unit fails even just from the lack of a second exit. So, let us assume that the basement rental unit is utterly illegal.
DeleteThe unit being illegal does not create a right to terminate the lease under the RTA. Merely being an illegal unit is not grounds for termination. The case law that I am aware of makes that clear. Just because the unit is illegal does not mean that you have to move or that you are doing something illegal. You are not.
What may be distressing to you, or to others in your situation, is to find out just how illegal your rental unit is. If the illegality were a technical one such as a zoning infraction of 3 units in a building limited to 2 units you might not care so much if the unit you were in were perfectly safe. That however, is not your issue, your illegal unit represents an endangerment to your life and to those of your friends and family in the event of a fire. Now that you know, continuing to live there is a risk that you are aware of and is a risk that you impose on your friends and guests when they visit you.
Because I have not researched the issue I am unaware if there are any specific cases stating otherwise. However, in my view, I don't think that you have a claim for damages or rent abatement for having lived in the unit. While the unit is illegal you have not actually suffered any damages as consequence of that illegality--unless you want to count the head bumping. Under the RTA you may file an application based on the landlords breach of the landlord's obligations under the Act. Once of those obligations (see section 20) is to comply with health, safety, housing and maintenance standards. I think you can easily demonstrate that your unit has been in breach of these requirements. That being said though, what have a you suffered as a result of the breach? Had there been a fire and had you suffered an injury because of it then the basis for your claim for damages would be evident. However, you haven't been hurt, injured, or suffered any loss attributable to the breach. Abstract, notional, would have, could have, should have, does not result in compensation---at least in my view. Perhaps there is some case law otherwise but I am not aware of it.
Your suggestion that there should be a rent abatement as of right for the illegal unit is an interesting thought and I could see a good policy argument providing an automatic rent abatement for any percentage a legislature might pick as a way to prevent the proliferation of illegal rental units. That, however, is not the law.
DeleteOn a going forward basis I think you now do have a claim. Knowing of the breach and the fire safety risk is probably disquieting. That is impacting your reasonable and quiet enjoyment of the premises. Rent between now and when you move out should be abated significantly. I think you could seek an order requiring the landlord to bring the rental unit into compliance with the law and his obligations under the RTA. However, that is likely an impossible thing to require as the unit is not ever likely to be 'legal". Going a the landlord in this was would likely result in the landlord getting legal advice and then serving you with an N13 Notice of Termination to demolish the rental unit. You would likely respond with a section 83(3) RTA argument of the landlord being in substantial breach and hence no termination, which I think would result in the Court following precedent allowing the termination where the repair is simply too onerous/impossible.
I think your remedy lies in your moving costs and expenses associated with getting set up elsewhere. That you are moving is directly attributable to the failure to comply with housing standards and I think it is reasonable to hold the landlord liable for all of the costs of getting set up elsewhere--and perhaps for any rent differential that you have to pay to move quickly.
In your application to the Board I think it would be reasonable to ask for an award of damages for breach of contract of lease. I think those damages will relate to the period of time that you become aware of what the landlord has allowed you to do (i.e. live in a fire trap). Being able to prove knowledge on the part of the landlord i.e. that the unit wasn't legal, would be important to prove. What the impact of learning this would also be significant in putting a number on the value of this claim. The authority for such an award is s.30(1)(9) with the case of Mejia v. Cargini, [2007] O.J. No 437 (Ont. Div. Ct.) interpreting the section to allow awards of damages.
Personally, I don't see a claim for past tenants. There is no requirement in the RTA for him to give you a different unit. It would be an odd section indeed that stipulated that a landlord who rents an illegal unit to a tenant must offer up a legal vacant one. The RTA doesn't have such precise remedies. Though, you may wish to look at the remedies sections under the RTA--s. 30 & s. 31 for the remedial powers of the Landlord and Tenant Board.
Hope that helps guide you somewhat. Good luck and let me know how it goes please.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI have an interesting case that I'd really appreciate some help with. I was living in a 3 bedroom basement apartment that was technically the basement to the house above it before it got sectioned off into a separate unit. One of my roommates caused a small fire at one point, so eventually the fire department came in to inspect the place. Shortly after they inspected the place my lanlord told me that I was being evicted because it was an illegal unit due to the following reason:
1) The main exit leading outside is at the top of the stairs, that lead down into the unit, and above the level of the kitchen and stove, like 7 feet above. I could definately see someone getting trapped in the smoke attempting to escape cause there wouldn't be a smoke ceiling to crawl under.
2) The ceiling at certain locations is as low as 5'10". There are at least 4 locations that the ceiling is lower than 6'0" which I've hit my head on numerous times, in particularly parts of the ceiling going down the stairs (you really have to be careful going down the stairs or you can hit your hear pretty hard).
3) The egress windows are about 1.5-2 sq. ft. of openable exit space, in all the bedrooms and there are no other windows in the unit but there is an outdoor exhaust fan in the washroom and living room. Not sure the exact measurements but I think the dimensions of openable egress window space is about 10"x20". I lost my keys once and tried to get in through the windows but I couldn't fit through.
4) Not sure if this is mandatory but none of the bedroom doors are solid wood. They're made of a hard cardboard like material and hollow inside with support pieces inside so the door isn't flimsy and has a more solid structure. If you knock on them they echo a little. All other doors that aren't bedroom doors are solid wood.
There may have been a few other minor things but I can't remember.
I'm wondering what my roommates and I are legally entitled too as far as compensation goes for the landlord having rented us out an illegal unit and essentially breaking the lease agreement the moment it was signed? I've done some research but can't find any definitive answers. Is rent abatement something we can go after him for? If so how much of a percentage of the total rent we've given him can we get back? Does the extensive safety hazards he allowed us to live in effect that percentage, ie. bad windows only = x% vs bad windows + bad main exit + bad ceilings + other reasons = greater than x %. I feel like rent abatement is the laws way of making sure a landlord doesn't profit off an illegal unit to deter other landlords from repeating the same behaviour. Either he knew and hoped no one would find out or he failed to do the proper due diligence prior to first renting the unit out, and getting his profits taken away is his punishment for carelessness.
Are all the past tenants that have lived there entitled to rent abatement as well? Only me and the 2 other tenants know that the unit is illegal. Would all the past tenants who didn't know it was illegal when they rented it out, be entitled to rent abatement if they were informed (possibly 6 years worth of tenants)? I'm pretty sure the statute of limitations doesn't start until the day the act occured or until the day the plaintiff first discovered the act occured. I think they should be entitled to something as they had no idea and still don't.
Also, can we go after him for moving expenses and for increased rent at our new locations? Is he required to offer any vacant units he has in the building (he has one empty unit and he refused to rent it out to single renters (ie. me) cause he wants to rent it out to a group)? Do you know the legal codes for rent abatement, ie. RTA 20xx, c.xx, s.xx, I can't find them anywhere?
Thanks in advance for all your help.
Hi Michael, you just created such an informative blog that already answered so many questions I used to have. Thanks so much!
ReplyDeleteStill, as being a landlord, I still have one question without coming up with a sound solution as follows:
I have a single house that is used for rent for a family. Based on my past experience, almost all tenants in the past tended to run away without paying the last month's utilities when the tenancy terminates! So I am always end up paying the last month utility for them! I know I shall pursue them for the owing via small claims court but I just do not have such time to entertain it as I do have my full time job to do everyday. Also, most of them do not leave any valid address for me to serve them with my applications.
I looked up RTA and find it forbids the landlord to auto-debit the tenant's account for any charges including rent or utilities.
So my question is if my proactive plan as below will be legal in order to cope with the above problem: I want to set up a co-op account in the hydro supplying company with the tenant, and put a term in the lease agreement to force the tenant to provide credit card information or banking information to the hydro company. By doing so, the hydro company shall be able to automatically charge the tenant for their monthly usage in time. Since I am co-op owner of the account, I will also be able to monitor the usage of the utility every month especially for the last month of the tenancy. Also, I can prompt the hydro company to charge the credit-card holder a little bit earlier than normal time as it is the last month of his tenancy.
Since I will not auto-debit the tenant's banking account, I should not be considered any contravention to RTA or any other applicable law, am I right?
Really look forward to receiving your reply!
Best regards,
Ryan
Hi Ryan: I think the best answer would be to require the tenant to put the hydro in his or her name. As far as I am aware, no where in Ontario anymore is a landlord liable for the unpaid hydro accounts of their tenants.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI am a tenant I am renting a house with my 2 children and there is a workshop/garage that the landlord rents to other tenants. When I moved in I had a backyard with grass that I took care of as it was for my use. I cut all the grass and do the snow removal as well as the landlord told me I had to. The landlord took the backyard away by covering it with crushed stone to create more parking so the tenants in the garage could get use of it for more parking. These tenants in the garage also use the same single driveway to gain access to the garage and I also pay 100% of the utilities.
Is this right and fair and is there something I can do?
I have tried to negotiate and stay calm as I did not want to start conflict with the landlord but now I just feel bullied and discriminated against because im a woman and grossly taken advantage of. I hear that the landlord is responsible for grass cutting and snow removal and that I should be entitled to a rent abatement for the use of the backyard being taken away. is this true? How do I go about getting reimbursed or compensated for part of the utilities? Also how do I get my landlord to start taking responsibility for the grass cutting or snow removal?
My landlord is also refusing to replace a central vacuum that was in the house when I moved in. What do I do?
Also there are repairs such as cracks in the ceilings from a water leak that he says are fine but I am concerned about mold and he refuses to address this either. Also the carpet is badly worn down and in fact is bald in some places and the nails are exposed. What can be done?
I have spoken to my landlord and emailed him about all these issues. He just ignores me or comes back at me with accusations that I mistreat the property, got a dog with out his permission and that I refused to give in to a 100$ rent increase in year 2 and since then he has served me with annual rent increases.
I would like to try one more time with printed landlord and tenant laws that I can actually show him but I am finding it difficult to find.
Thank you
Hi: Well, in reading what you've written it is clear that you understand the things that the landlord is doing wrong. You are entitled to an abatement for losing your backyard. The landlord is responsible for repair and maintenance including snow removal etc.. If you're paying power to the garage I'd being inclined to make that stop for sure. The broken things in the house could be inspected by the City/Town/Township under the applicable Property Standards Bylaw. Orders for repair could be made. You could also file a T2 and T6 application to the landlord and tenant board for an order requiring the landlord to repair these things and also for a rent abatement (which you might want to do along with your application to reduce the rent for losing your backyard.).
DeleteYou have an awful lot of issues in your short 3 paragraph comment. You might want to consider sitting down with an experienced lawyer or paralegal (experienced is the key). Tell the issue and get them to write a demand letter for you to the landlord. That, I think, will have more impact than you trying to show the landlord pieces of the legislation.
Good luck
Michael K. E. Thiele
Dear Michael,
ReplyDeleteThanks so much for your efforts in maintaining such an informative blog beneficial to everybody!
I read quite a few of your posts and it helped me a lot. But still being a tenant, I was completely a dope in the beginning of my tenancy, and did not notice there was a term in the lease saying "the tenant shall have the rental unit PROFESSIONALLY cleaned at the expiry of the lease ". Now is the last day I need to move out and the landlord refuses to return my key deposit and he said he would use the money to deep clean my rental unit 'cause I smoke. But I did an extensive cleaning work already and I just do not have money to hire some cleaning people to do it again.
I was told by my friend that a tenant is only required by the tenancy law to maintain a basic cleaning standard when he returns the unit to the landlord. So I wonder if the "professionally cleaning" term should be void and I can ask my key deposit back.
Thanks so much again for any input from you as u r my life saver!
Jimmy R.
Hi Jimmy: The only legal deposit that your landlord may hold is a last month's rent deposit and certain other deposits that must be refunded (i.e. for key fobs). Hence if your landlord is holding any other kind of deposit--i.e. a key deposit that is non-refundable, a damage deposit, etc., then you have a simple application to the Board that will result in a refund being ordered.
DeleteWith respect to professionally cleaning the apartment. This is not a legal requirement. The tenant's obligation respecting cleanliness is set out in section 33 of the Residential Tenancies Act and it is described as a standard of ordinary cleanliness. Imposing something more than what the RTA applies would be considered a void clause. If you can establish that the condition of your place reflects "a standard of ordinary cleanliness" then the landlord would have no claim against you and would certainly not be entitled to withhold a deposit. Regardless, the landlord is not permitted to withhold a refundable deposit but could sue you in small claims court if your unit does not meet the standard of ordinary cleanliness set out in the RTA or if there is willful or negligent damage beyond ordinary wear and tear in the unit.
Good luck
Michael K. E. Thiele
Thanks so much for your priceless help! I will let you know how the case develops if you are interested.
DeleteSincerely wish you a bright business prospect, too!
Jimmy R.
Thanks so much Michael! You are absolutely amazing legal professional! I just settled with the landlord last Friday by following your advice. Plus, as my friend told, I demanded interest of my rental deposit + key deposit. And the landlord only agreed to pay me the interest for the last month rent and told me the interest rate was 1.9%. I was told by my friend the rate should be primary rate 2.7%. Would you kindly again let me know which rate shall be adopted for calculating the interest? Thanks so much in advance!
ReplyDeleteBest regards,
Jimmy R.
Hi Jimmy: The interest rates payable on the deposit change with the year and follow the annual guideline amount. For 2015 it is 1.6%, for 2014 it is 0.8%, for 2013 it is 2.5%, for 2012 it is 3.1%. If you are calculating multi-year interest you calculate simple interest--not compound interest--meaning you do not charge interest on the interest.
DeleteGlad it worked out for you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, this blog has been a huge help to me during a stressful time. I can't thank you enough. I have searched extensively for an answer to my particular question without success. My landlord sold our house (a triplex) quite unexpectedly, and we were all immediately issued an N12 because the new owner (one person) intends to live in all three apartments. Naturally, I am skeptical, and distressed to have only until Dec 31 to vacate as moving over the holidays would be difficult. My solution is to move out quickly providing a 10 day notice back to the N12, recover my last month's rent deposit and seek remedy with a T5 if I can assemble evidence of bad faith with the N12. The most obvious form of bad faith would if the apartments are immediately re-rented. But what if the intention of the new owner is to renovate the property back to a single family dwelling and occupy that? This would require permits from the city, so should the owner have issued an N13 rather than an N12? If they used the N12 when an N13 would be more appropriate, can I use the T5 for recourse because I should have been given more notice?
ReplyDeleteHi Michael: This blog is so informative, I have a question .. about my son situation, my 22 yr old son, living with us and working partime (was charging him $300mth). We found out in Aug, that he and a school buddy signed a year lease to a 2 bedroom apartment, splitting the rent of $450 each. Sept 1, was the move in date, but my son could not even come up total amount of the 1st month rent, and he finally sat down and talk to us.... he is in financially trouble and I am not sure why he thought it was possible. He never moved into the apartment, and stayed at home with us, (we have taken over his fiances, paying his bills and talking to creditors, trying get him out of this hole, now his rent money+ is going to this apartment. He has been paying to the roommate his share of the rent, but has never move in. We are trying to find another roommate to take over his portion of the lease, there has been 1 interested party that was willing to fully take over his portion of the lease, but after filling out the application and credit check was been turned down. Can this interested party, still moved into the apartment as a sublet,(or does he still have to be approved by the landlord), we can write in the sublet agreement that the my son will be moving back into the apartment after 6months, (end of June) leaving him only July and Aug to the end of lease(better to save 6 months of $450) ... assuming that the sublet party pays the rent, this will relieve a lot of stress and help paid down some bill, so we are hoping that my son will be in better shape financially in June.
ReplyDeleteHi: My understanding from your description of how the apartment was rented takes this matter out of "subletting" or "assignment" under the Residential Tenancies Act. I understand that your son signed one lease with a co-tenant and that they were to take possession of the rental unit together as co-tenants. With the co-tenant in possession it isn't possible to create an actual sub-let or assignment of the lease. Permission is not required from the landlord to move in any other person as the other tenant is remaining in possession of the rental unit.
DeleteThe landlord's agreement is required to get the landlord to agree to take your son's name off of the lease and replace his name with that of a new tenant. The existing tenant would also need to consent and want this new person to be his co-tenant. Replacing your son with another stranger would impact the other tenant as well and create liability for him. Hence simply finding a new person is not enough---you need to find a new person who the other tenant also likes and agrees to live with.
If the person you found is acceptable to your son and to the other tenant then you could move him into the rental unit. However, until or unless you get your son's name off of the lease he will be responsible for the rent and for any damage caused to the rental unit by this new person.
Hope that helps.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael: it is my luck to find this forum to post my questions. Thanks so much in advance for your kind and priceless help to so many of us!
ReplyDeleteI just wonder if you could kindly advise me how to report to the credit bureau about a bad tenant's record in which he owes me 4 months' rent.I told him I was gonna report his owing to credit bureau and he said go ahead. Now it is my turn to figure how to proceed.
Really appreciate any advice or input you would like to offer with respect of this issue.
Best regards,
Larry M.
Hi Larry: The credit bureau process is a bit of a mystery to me as I have never had much use for it. There are two major credit bureau's that I am aware of. They are Equifax and Transunion. You can find them by internet search. My understanding is that you would have to become a member (likely a fee) and then you could make a report on the debtor which would then find its way to his credit profile presuming you have enough information to link it to him. Contact the credit agencies for more information.
DeleteThe alternative, and perhaps this is what you meant, is to retain a collection agency to pursue the debt for you. There are a great many collection agencies. They tend to work on percentage of the collection basis. Depending on a variety of factors, if you sign on with the collection agency to chase this debt owed to you (best if it is a judgment) the collection agency may indeed make the report that you were inquiring about in the fist place. Proceeding with a collection agency is preferable than a report to a credit bureau as the collection agency may actually get you some money.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks so much for your help!
ReplyDeleteBest regards,
Larry M.
Hi Michael,
ReplyDeleteGreat to find this blog and hoping you can advise best direction with my problem. I own a 2 unit rental and my tenants are feuding. Tenants are actually family, at the request of my one tenant, I rented a vacated unit to her daughter and her partner. Something went south and now both sides are hounding me with complaints against the other. It`s a `she says - she says` situation for which neither seems to be able to offer any proof of their complaints and it`s frankly just a bothersome hassle to me to be constantly having to listen to them complain about each other. Frankly, I let the daughter move in because the original tenant has had repeated conflicts with previous tenants and I had hoped this would solve it but now she`s on the outs with her own daughter too. I`d like to get rid of both of them but wondering how or if there are any grounds to do so based on them harassing each other. At this point I`d really like to just sell the place but as I had both sign new leases end of August, I believe a new buyer would have to take over their leases if they intended to continue renting and I`m concerned their behaviour will sabotage my attempts to sell the place. Do you have any suggestions. Could I take each sides (unsubstantiated) complaints and serve both sides with eviction notices due to their interference with each others fair use of the property.
Hi: I can sympathize as you are in a tough spot. While these people may be family they are indeed separate legal tenants of yours and you have an obligation to them--separately. Given the feuding and numerous complaints I think that all you can do is demand confirmation of the complaints in writing from both sides. Then use the complaints from both to serve Notices of Termination to both---likely an N5. See if that shakes things up or delivers peace in the valley. If not, you have recourse to applying to the Board to terminate. Unfortunately, the burden of proof will remain yours against both parties and without corroboration you will be relying on either or both of the parties making admissions. If you proceed to the Board, on the allegations, you have at least taken action in the face of complaints which mitigates against any claim against you.
DeleteAs for terminating the tenancies that may be a matter of discussion with both of them. You have a better sense of how to approach them and what reasoning you could use. If one or both sign the Form N11 then you have an agreement to terminate that effectively shortens the fixed term lease(s).
Good luck
Michael K. E. Thiele
is it wise to inform the landlord that you are filing a T2 and T6 against them-they kepp harrassing me
ReplyDeleteHi: If you don't expect the landlord to change their behaviour then there is little point in giving advance notice. However, as soon as the applications are filed the Board will serve the landlord with the application so they will have notice fairly quickly.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi-my name is Gary-I am 64-never been through such a hassle with a landlord in my life-he is being sued by the city for non compliance of a maintenance form to clean up backyard-dead cats long grass old snow rusty machines etc-a dilapidated part of the house and we had flood from second floor-I was afraid and still of mould-he wasn't going to replace them-they are not aware of the tenant act-so many mistakes and I've bent backwards to help them-frige went on bum-no landlord-on holidays -lost food -had to buy frige out of own money -I am on odsp I make $13,500 a year I cleaned their couch and carpet after dirty laundry flood-she said throw baking soda on it vacuum then sprinkle fragrance oil-it stunk -like I daid bad landlord -gave me n4 to pay others half of rent (I signed a lease-tenant-didn't know what I was infor-it started off as 3 guys in a house -2 have left-1 1/2 years -now he wants me out and do all repairs-like painting house,cleaning beigecarpet in high traffic stoop and landing -normal wear and tear -A BIG QUESTION-I have been told to go ahead with T2 and T6-i see you can ask for $25,000 plus other things -I could not live downstairs for 3 months waiting for tiles to be repaired and water damage repaired -can you ball park what I should ask for -I haven't a clue -$5000 or $20,000 -and 12 months of equivalent rent elsewhere-I would just leave but there is 1.5 % rent space available -nothing ever available sault ste marie Ontario -I am lost -I have tons of things theys did wrong-they took my $500 deposit and used it for something else that is illegal-now they say-I forgered her name to get adt-thats an out right lie and I can prove it-the list goes on and on -please help thank you so much I am deeply indebted to you for your kind help
ReplyDeletegaryf
Dear sir, I get a question for my current tenancy situation. My landlord served me an eviction notice yesterday which was not using the prescribed Form the LTB requires, in which he states his brother needs to move into my rental unit by the end of March and along with this reason he also mentioned he is not getting along with me and my rent this month was submitted late so he wants me to move out by then.
ReplyDeleteMy friend suggested me to file a T5 application with LTB for the landlord's bad faith as the landlord is not supposed to evict me using the excuse that his brother needs my space. He may only evict me because he or his spouse or parents or kids need the space.
I am not sure if his suggestion is valid as my landlord did not use the prescribed form so my understanding is that he is not deemed to serve me an N12 eviction notice.
Thanks so much in advance for any of your kind advice.
Hi: Had your landlord used the proper form you would have information in the notes on the standard form indicating that if you disagreed with the Notice that you could simply stay in the rental unit and not move out. When you refuse to move out the landlord must file an application with the Landlord and Tenant Board and the case will then be argued at the Board. You will have an opportunity to resist the application, the landlord will have an opportunity to make his pitch, and the adjudicator will decide.
DeleteA landlord is not allowed to by-pass the legal process of the Landlord and Tenant Board. Self help eviction (i.e. he tosses you out), or changing the locks, or turning off the power, all of these things are completely illegal. In fact the landlord can get charged under the Provincial Offences Act for doing any of these things and pay a fine up to $50,000.00.
If your landlord seems like he will take unilateral action and not respect your rights you can always do the following: 1) call the investigations branch of the ministry of housing. They can file charges and often call landlords to warn them about their illegal behaviour, 2) call police, 3) file an application to the Landlord and Tenant Board in Form T2 seeking an Order requiring the landlord to cease his behaviour.
The T5--application based on landlord's bad faith is premature for you. You would file this application if you actually moved out pursuant to the Notice and you found out it wasn't legitimate. As you haven't moved out there is nothing to file.
Hope that answers your question.
Michael K. E. Thiele
www.ottawalawyers.com
Hi I'm being evicted for April 30 ,,, this is for persistant late rent, ,,, but the problem is on on a yearly lease that doesn't expires till Nov 30/16,,,,, is this eviction date valid. My hearing is for april 1. First I received N4's then a n8,,,, then my hearing date. II'm not or ever been in arrears, ,,,, this is only for persistant late rent. If this should be void what happens now at the hearing.
ReplyDeleteHi Michelle: If I understand you correctly. You have received N4's in the past for termination for non-payment of rent. You dispute that those N4's were valid? Certainly, if they were not valid because you were not in arrears of rent then the whole idea of being persistently late in the payment of your rent is impossible. Bring your paperwork and proof of payment of rent on time and be ready to demonstrate to the Board how it is that your rent was always paid on time.
DeleteIf, I understand incorrectly, and the N4's were valid but you have voided them then you are not in arrears of rent presently, but have been in arrears in the past. This can justify the serving of an N8 for termination for persistent late payment of rent.
Note the word "persistent". The Landlord will need to show that you have been late repeatedly. The Board likes to see about 6 times or more in a 12 month period. Context of the late payments matters too.
If the landlord demonstrates that there is persistent late payment of rent then the Landlord and Tenant Board will tend to make an order requiring you to pay the rent in full and on time for 12 months, failing which the landlord can apply to have you evicted. This is an exercise of discretion.
Your situation is unlikely to get this far if I understand correctly that you are on a written fixed term lease ending November 30, 2016. The termination date in the N8 can not be earlier than the end of term--i.e. November 30, 2016. If they have used a shorter/earlier termination date for persistent late payment of rent then the N8 is void and unenforceable.
Bring a copy of your lease with you to the hearing and be prepared to show the lease to the adjudicator. This will be proof of the end of your term.
The hearing will likely result in a dismissal of the application. The landlord can start again if he wishes and you can defend it then again.
Good luck
Michael K E Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteSo in luck to have found your blog. I am a landord who never gets an reponse or a call back from the tenant. I text, email and send letters for all issues. They play games and ignore me. What can i do? And who can i go to for assistance?
Thanks kindly!
Hi Michael,
ReplyDeletePlease help, my tenant started operating a unlicense day in the rented property with out my knowledge and consent. I found out after an inspection and their refusal of inspection on certain dates due to their operation. What are my rights as a landord in ontario?
Hi Tammi: I will answer both your posts in this reply. The short answer for legal help, for landlords, is that you really have no choice other than to retain a paralegal or lawyer. The trick in hiring either a paralegal or lawyer is to find one that has lots of Landlord and Tenant law experience and who has good reputation. Depending on where you live that can be difficult to do. You can call the Law Society of Upper Canada to get a referral, or you can ask friends or other landlords you may know who they use, there is advertising of course, or you could even go to the Landlord and Tenant Board and sit through some hearings and see if there are any good paralegals or lawyers there who impress you. Ultimately though, for landlords, the only real legal advice that you're going to get is by hiring a professional.
DeleteIf your tenants are committing an illegal act on the property--which may indeed include an unlicenced daycare, you can serve a Notice of Termination for Illegal Act. You can get the form on the Landlord and Tenant Board website. "Illegal" under the Residential Tenancies Act does not mean only criminal. It includes all things that are contrary to law, even regulatory offences. The only condition is that the "illegal act" must have the ability to affect the character of the premises in order to be serious enough to warrant an eviction.
If you are a new landlord, or one that is inexperienced in legal matters, you may want to find a lawyer or paralegal who will do the work but also show you how to fill out and serve notices and how to prepare a legal case and present it. Over time you might learn enough to be able to handle the simpler matters yourself.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, I just have a question regarding the home I'm leasing. I'm a university student and I have recently signed a lease with 4 of my friends. There is a garage on the property and our landlord says that we won't be given a key to access it since his experience with students and garages is not a good one. I was just wondering if we have a right as tenants to this garage? Thank you.
ReplyDeleteHi: Your right to access the garage is something that should be spelled out in the lease. If the lease excludes the use of the garage then you are likely unable to use the garage. However, if the lease is silent on the issue and you viewed the property for rent with the use of the garage in mind then you should indeed have a right to use the garage. The landlord can not remove the right to use the garage if it is determined to be a part of the original "rental unit". What constitutes the rental unit is normally described in the lease. If there is no lease, then the rental unit is generally considered to be the rental complex generally. Hence, if it is a house, you are the only tenants and there is a garage on the property--one would reasonably expect the garage to be a part of the rental unit (unless specifically excluded).
DeleteGood luck
Michael K. E. Thiele
Hello Michael, I am wondering if you can help me out with a couple questions I have. My problem is that I am renting a 2 bedroom house and the previous owners had sold the property about 2 months ago . Since the time the new owners have been our landlords we have been told we will not be receiving our $500 deposit back when we leave the property even tho we paid our last month's rent in full as well as he was doing work to the other rntal homes on the property and he managed to bust our water lines so now we have no running water or toilet plumbing. I would like to know what his obligation is to us tenants now that we don'thave any running water. He has said it will be June 1st before he can fix anything. That's when our lease is up.
ReplyDeleteHi: Water is a vital service as defined under the RTA. The RTA in section 21 makes it illegal for a landlord to interfere with that vital service. Breaking the water lines interferes with the provision of a vital service and the refusal to restore the service in a timely manner is illegal and contrary to the RTA. You can call the City and ask for an inspector to come out and make an Order. You can file an application with the Landlord and Tenant Board (Form T2 & T6) asking for a repair order and full abatement of rent for the period without water. You might also want to consider calling the enforcement branch of the Ministry of Housing (you can find number on Landlord and Tenant Board website).
DeleteWith respect to the deposit--I assume that is the Last Month's rent deposit? If so, you use that deposit as your rent for the last month that you intend to stay there--i.e. don't pay rent for the last month. If you intend to continue your tenancy after the expiry of the fixed term it will automatically continue on a month to month basis without the landlord agreeing or having any say about it. Your deposit will continue to be held over into the month to month portion of the tenancy and will be applied to the last month that you are there (because you will not pay the rent for that month).
In Ontario, your lease "being up" doesn't mean you have to move out at the end of the lease.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteAs a result of an argument, my landlord has cut off my internet, cable and wont give me access to laundry. Is there anything I can do since these are not a vital service?
Hi: What an odd thing to do. It makes me wonder whether you are in a proper landlord and tenant relationship covered by the Residential Tenancies Act or whether this is a rooming situation not covered by the RTA. If you are covered by the RTA then you can file a T2 application with the Landlord and Tenant Board. Of course you need to be able to prove that the services cut off were included in your lease. If you are able to do that you can ask for the services to be restored and a rent abatement.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Very interesting blog!
ReplyDeleteI have a question about obligation to pay utilities...as a tenant who has given 60 days notice but no longer living there (although have not given back keys and still have some boxes there), am I obligated to pay utilities. The apartment is in Ontario, and I have cleaned and unplugged fridge; nothing else is on. The landlord says that I must turn the utilities back on, but I don't care if there is electricity or not.
Thanks,
Leslie
Hi Leslie: A fun question--well as fun as things get in landlord and tenant law. The significance of the question is highlighted when you consider a rental unit without electricity in the winter. Without electricity there is unlikely to be heat. Smoke detectors, carbon monoxide, may be hardwired into the electrical system (and won't work with extended power termination). An unheated house or a home without power may not have HVAC systems operating and hence the structure may be at risk of damage. Many apartment buildings and other homes are not designed to be without power. Water damage and pipes freezing is the biggest concern in winter.
DeleteSo, in the context of your rental unit are there any serious concerns about the types of things just mentioned. After that, does your lease say anything about having to maintain power to the rental unit? If you have contracted to that requirement then you are stuck with it. If your lease is silent and your action in terminating the power does not pose an identifiable risk to the structure or other tenants etc., then it is difficult to see how the landlord suffers any loss and hence how the landlord has a claim against you.
Good luck
Michael K.E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
Hi Michael, thanks for helping so many people with your blog! I really love what your doing here. My question is: Is it okay for my landlord to start Airbnbing one of the rooms in my place without my permission or even notifying me at all? I don't really like the idea of randoms I don't know frequently poping in and out of my home, as it affects my privacy and is a potential for theft. Do I have any say over this as a tenant? Please let me know your thoughts. Thanks Michael.
ReplyDeleteMy basement keeps flooding from rain, even just moderate rain, and my landlord just shrugs and says it's a blockage in the city storm drain. Like didn't he need to do something about this?
ReplyDeleteHi: A flooded basement is not normal and it is not something to just shrug off. Water, heat, and oxygen are the conditions needed for mold growth and I don't doubt that regular flooding is contributing to a health hazard in your home. That being said, I grew up in a house where the foundation was stone and every spring the water would run through the wall on one side of the house to the other side and out again. The floor was even dirt in places. But just because there were houses like this, and it didn't seem to cause us any harm, doesn't mean that flooding houses is an ideal to aim for. I don't accept the excuse being offered by your landlord. You can call the property standards department of your city/town/township and ask them to come inspect. Take some photos of the flooding next time, make sure you complain, and then go ahead and file a T6 & T2 application with the landlord and tenant board. You can ask for an order requiring the flooding to be fixed (i.e. clean the drains--and if required force the landlord to deal with the City to get the storm drain unblocked). You are likely entitled to a rent abatement and compensation for loss of use of the basement as well compensation for loss of any property in the basement that occurred after you told the landlord about the problem.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Our landlord has put in the rental agreement that the tenants are responsible for keeping vermin/mice off the premises. We live in a townhouse, and I have read that it's the landlord's responsibility if there are any issues to deal with the vermin/mice. The landlord says because it's in the rental agreement it's not the landlord's issue. Which is it? (Ontario)
ReplyDeleteThe Residential Tenancies Act (section 4) makes it impossible for a landlord to shift anything that is a landlord's responsibility onto a tenant. Section 4 makes the kind of lease clause you are talking about void. Hence it is unenforceable. The landlord is responsible for vermin/mice.
DeleteMichael K.E. Thiele
www.ottawalawyers.com
Hi Michael, I was wondering if you could please help me in regards to my issue with my landlord. Over the course of the summer my landlord has tried on a by weekly basis to come inspect my unit for cleanliness. Unfortunate Unfortunately I have a mental disability that is further complicated by stress. They have sent me an eviction notice which has made my disability worse to the point of becoming agoraphobic. I have no issue with the hearing due to the fact that I understand the laws but I need to understand what the Landlord Tenant Board allows for compensation in regards to not making any accommodations for my disability. If you know of any cases where a landlord interfered with a tenants enjoyment of the property which further degraded a tenants health I would appreciate the information so I might be able to to file my T2 application with what an adjudicator would find reasonable. Would be better to ask for the limit of $25000 or a reduced amount based on my functionality
ReplyDeleteThank you
Hi Allan:
DeleteThe claim you wish to pursue is one that I hope you can get some help with from a lawyer, paralegal, or legal clinic. It is quite a reasonable application to make but in order for it to be successful you want to have dotted the i's etc..
The first question I'd consider is whether to file the claim at the Landlord and Tenant Board or the Ontario Human Rights Tribunal. Both are under the same umbrella ministry (SJTO) and both have a similar administrative tribunal process. A significant difference is that the HRT will take longer, but it has a better handle on applying the Human Rights Code and they are better at fashioning appropriate remedies and they are more generous than the landlord and tenant board when it comes to financial awards. The LTB, on the other hand, is much faster and it "feels" like the right place to bring the application because it is about the your landlord and tenant relationship. I will leave you to research that and consider how you wish to proceed. I mention it so you can think about it and perhaps make some inquiries about the way to go.
If you proceed at the LTB I would work through the T2 closely and be creative on the remedies you are seeking. For sure, seek $25,000, there is no harm in doing so.
As you (and anyone considering an application based on refusal to accommodate a disability), you should have evidence of the following in your quiver:
1) Evidence of your disability, confirmed by doctor report or other medical expert;
2) Report from doctor opining on the impact of certain behaviour on you or the impact of the Landlord's behaviour on you
3) Medical report explaining what accommodations you need and how these accommodations are necessary for you to deal with your disability.
4) Evidence that you communicated your disability to the landlord and requested accommodation of the landlord of your disability;
5) offering the landlord to work with them to set up a system of accommodation that works for both of you;
6) evidence of the landlord disregarding your request for accommodation (your oral testimony is good, but objective evidence from 3rd parties, photos, video, letters, etc., is important;
7) evidence of the impact of the failure to accommodate you;
8) evidence of the ways the landlord could have accommodated you.
9) evidence of financial loss or other damage you have suffered (i.e. proof of the health impact and the connection of that impact to the landlord's failure to accommodate).
If you have the foregoing then you are going to be able to ask for financial compensation but also for an order directing the landlord to accommodate etc.. Don't be surprised if you feel a strong push from the LTB to get into mediation and there will likely be a case management hearing and hearing management conference which will all seek to get a settlement. Financial compensation, at the LTB, is likely to be minimal (at least compared to the Human Rights Tribunal).
For legal research and caselaw dealing with a failure to accommodate take a look on www.canlii.org and search for caselaw--limite scope to Ontario--and see what comes up. There are some great annotated books from LexisNexis and Thomson Reuters that make finding precedents much easier. If you have some free cash to buy these resources you can order them online---I would look for the Annotated Ontario Human Rights Code as the most useful purchase. Perhaps you can find it at a local library as well.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI love your posts and have been using as a guide since I became a landlord. Please keep up the good work. You helped many of us to be more informative about the renting business.
I do have a question regarding what I called as "annoying" tenant and I'm not sure what to do about it legally. I have a tenant (M) renting one of the unit in a 4-plex. He keep finding ways to complain about his lower neighbor. The complaints comes in one a week. Everytime M complains, I do my duty as a landlord and communicate to the lower tenant and investigate. First is about noise, through investigation I found the lower tenant doesn't disobey the law. The city law in Windsor, On allows noise within certain time frame and with in the 'normal' range. They obeyed this law. Then it's about M's parking situation and snow shovel. I contracted the lower tenant to cut the grass and shovel the snow in the winter. Anytime the lower tenant cut grass, M says that there are scratches to his car. I talked to M and the lower tenant together and we agreed that no cutting grass or shovel the snow around to avoid any 'damages'. M now complains that I don't do my duty as landlord and don't shovel the snow for him to get out in the winter. The gravel driveway is shoveled enough for all cars to come out, but with some snow around M car, he find this a problem and held me responsible. He also held me responsible for any scratches the lower tenant might make since I contracted them to do the yard work. Then there is an issue about smoking. The lower tenant does smoke, but in their unit which I cannot forbidden them to not do. I called the Landlord Board and they let me know as long as I prevent smoke coming from M's unit then that is all I can do. M asked for an air purifier I reimbursed him but then afterwards he returned for money. I offer to give him some towels in addition to the guard already under the door so that no smoke can come in. I checked with regulations and smoke doesn't go through the hardwood flooring. Basically all smoke entries to M apartment has been dealt with. I offer to give him another air purifier but he complains he has to pay to for the electricity, so he refused. Every week M insisted me to come talk to lower tenant to turn on the air purifier. He now raised the concern about his health problems and that it might affect his psychological state. This month he starts to take pictures of the lower tenant whenever they park their car (within) their designated spot but near the border line to his parking space and telling me as landlord I have to do about all these annoyances. I gave him 2 parking spaces just so he have enough room and leave matter alone but that doesn't work out.
Am I responsible for this individual health issue, if there is one? Am I reliable for damages, if there are scratches on his car from the lower tenant while cutting grass or shovel snow? I find I do my duty as a landlord by hearing his complain and addressed it. M wants me to evict the lower tenant and give him the contract to maintain the property. I find the lower tenant doesn't break any law and I am frustrated at all these complains coming every week. What can I do about in this situation? Is there a way I evict him? I tried to tell him that if he is too concern about his welfare and that he is unhappy here, then please move. Of course he refused because the rent is cheap and I don't raise up his rent in the past 4 years..
Please advise. Thank you.
Hi: Thank you for this difficult and nuanced question. The circumstances your describe are not uncommon and what you are saying highlights the difficulty in being a landlord. The answer is not easily "yes" or "no" and there is no obviously clear course of action. In what you describe there are aspects that favour the position of both tenants on different issues.
DeleteI think my focus in dealing with this situation would be to seriously consider the complaints you are receiving from M. Are these complaints made in good faith or are they bogus complaints made simply to annoy and harass the downstairs tenant? For instance---are there scratches from the grass cutting? That should be a yes or no answer. How does the tenant cut the grass---is the chute ever aimed at M's car? Certainly grass clippings won't scratch the car so is there any way that stones and grit are being shot at M's car? You conclusion about the noise complaint, I suppose is supported by some evidence. The returning of the air purifier for the cash shows bad faith too. The snow shovelling complaint too sounds bogus and is something you can refute with pictures of the shovelled and cleaned driveway.
The point of the above--is to consider serving M with a notice of termination in Form N5 for making complaints that interfere with your lawful right interests and privilege and which complaints have the effect of harassing the downstairs neighbour because as you have indicated complaints force you to investigate which in effect forces a confrontation/conversation with the downstairs neighbour. I'm sure that M's neighbour finds the complaints to be a nuisance and bothersome.
So, an N5 to M pointing out that his vexatious complaints must stop or he could be evicted might slow him down and give you some peace. If he continues, file an application to the LTB to evict. Keep up with the evidence of all of the complaints and how all of the complaints are unfounded and unreasonable. You may not get an eviction right away but the Board won't let this continue indefinitely. The key is to show and have the evidence that clearly reveals that the complaints are not made in good faith. No every complaint, all the time, needs to be well founded but I do think every complaint needs to be made in good faith.
I think, on the facts you have provided, that you can establish that the smoking is not actually bothering M. That being said, you can indeed terminate a tenant if their second hand smoke is bothering another tenant. In this sense, the private space of a tenant does not allow them to do anything that is legal if that "anything" causes a substantial interference with reasonable enjoyment of other tenants.
It remains important to investigate complaints and take them seriously. Allow, also, for the possibility that some complaints might be legitimate and for those you must deal with them properly. It will be impossible to evict M if he can show that he has legitimate complaints that you did not take seriously.
Best
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteI, together with 3 roommates, rent a 4 bedroom apartment in a multi-building, low-rise complex in southern Ontario. The complex changed ownership in September 2018. Our lease with the original owners expires Apr. 30th. The new management company had each of us sign separate leases for, what we thought, was our apartment renewal from May 2019 to April 2020 back in December 2018. We have since found that these leases did not specify an apartment number. They only contain the property's street address. This property is adjacent to a university and all the residents are students. According to the property manager, the reason the leases didn't have apartment numbers on them is that it is illegal to put apartment numbers on leases belonging to student housing. This complex is not affiliated with the university in any way. (Please Note: The university is renovating one of their residences and have contracted with the property owner to takeover the use of one of the apartment buildings as a residence for the next 2 years.)
On March 25th we received an email stating that we will be required to move from our current unit to another one in another building in the same complex between Apr. 26-28 because the property owner is in the process of converting our building to furnished apartments. (We all have our own furniture and cannot afford to pay an extra $120 per month for furniture we don't want or need.) Are we legally required to move? (The property manager has said that he is trying to get approval for a moving company to come in to move our belongings, but if he can't get that approval, we are on our own to move our belongings.)
My next question is that we've been told by the same property manager that starting in May 2020, all units in all buildings in this complex will be furnished and that if we don't take the furniture package, we will have to vacate the property. I was under the impression that once our lease comes to an end, we can choose to go onto a month-to-month lease (without having to sign any paperwork), and by doing this, the landlord cannot change the use of our unit or raise the rent by anymore than the legally allowed amount.
The changeover from the original owners to the new owners has been an absolute nightmare (new parking fees, change of utility submetering causing a massive increase in utilities cost, maintenance requests not being compelted, rents being charged twice in one day). We believe that a lot of this has been done with the intent of driving away as many current renters as possible so the new company can increase their profit margin by implementing the changes I've outlined above.
Any advice would be welcomed.
Thank you.
Hi: What a crazy story! The paperwork will matter a great deal of course and I recommend that you seek out a lawyer or paralegal now. Does you school have a student legal aid? Perhaps speak with them. The lease you have renews on a month to month. It sounds like you have signed some document for some other space somewhere that is undefined. Is there anything where you have agreed to terminate the lease on your existing unit?
DeleteFrankly, it sounds like you are running up against a rather strategic organization. Your individual rights may be considered a little to inconvenient by them. There isn't enough space in this blog, nor do I have enough information to consider your circumstances fully. That being said, based only on what you've said here, I'd be inclined to immediately file a T2 application against the landlord (old owners and new owners). Basically lay out the story and it will be immediately apparent to the LTB that what is happening to you is not permitted. With respect to new charges etc., be aware that your lease renews on the same terms as the old lease. Take a read through the RTA for your rights on sub metering (s. 137).
Good luck
Thank you for your reply Mr. Thiele.
ReplyDeleteOur school does have a legal clinic, but it is closed until September 2019 because we are near the end of the school year. I am going to try and contact the lawyer the clinic uses to see if they have a recommendation of someone we can talk to in our area.
We are worried that if we file a T2, the owners will try and evict us and leave us with nowhere to live as most of the rentals in the area are already spoken for.
We do have a few questions. Hope you don't mind. Is the original lease we signed still valid or does the new lease we signed with the new owners replace the original? Can we say that we want to stay on as a month-to-month tenant based on the old lease even though we've signed the new one? Is it legal for the new owners to have had us sign leases without unit numbers. They seem to be under the impression that they are "student housing" and that gives them a different set of rules to follow. Is that true?
Also, attached to the new lease is an indemnity agreement that we signed that states that our parents will guarantee our rent payments. Can they legally do that without having our parents' signatures as well? We're students, away from home for the first time, and signing all these things is really intimidating. All we want is to stay where we are until we're done our schooling.
Hi: The circumstances you describe are too complicated to adequately reply in this small space. I will state a few things, but you need to understand that in the context of law the facts can represent or lead to different outcomes depending on how the facts are understood and represented to a decision maker (tribunal or Judge). I know this reads terribly---as it is like saying 2+2 doesn't necessarily equal 4--nevertheless, you have a wide range of events here that can be interpreted differently which then affect other parts of what happened--with the ultimately LEGAL answer being dependent on those subtle differences.
DeleteI did hint in my first response to you that possibly your lease in your existing space continues. You haven't pointed out any facts supporting an exemption from the Residential Tenancies Act (RTA), so until the lease is terminated by you on Notice, the lease continues month to month. The landlord is only permitted to terminate your lease for "cause" or for very limited not for cause grounds (none of which you have described). The one major not for cause ground they could use (N13) likely has great benefits for you if they followed the process properly.
So, I am greatly disturbed by what you describe. It sounds to me in how you describe the events that you are being tricked out of your unit in a sneaky and misleading way. This is why it would be very much in your interests to get a lawyer as soon as possible.
Filing a T2 application, with respect to a company like this, is unlikely to be the basis for termination or eviction. This company, it seems, expects you to do as you're told and if you object in any way they intend to run you over. Hence, a T2 application and a Board order is probably the only thing that has a chance of stopping this company. That being said, once you engage the T2 process you need to be ready with your legal argument and be ready for that fight---hence, again a reason to have a lawyer/paralegal.
To your specific questions:
Original lease still valid? Arguably "yes". New lease: perhaps you have two places to live. Perhaps the new lease is void based on the circumstances of how it was signed--seems like a reasonable argument that the LTB could accept. Yes, it is legal to sign leases without unit numbers because that is how the "student residences" companies do it so that they can move people around to create communities of students within their buildings. This is somewhat unique to student residences and a bit odd when it comes to the Residential Tenancies Act for RTA covered units (i.e. without student exemption apply to the RTA).
Are there unique student housing rules? Yes. Are these rules what this new landlord of yours is saying they are? Possibly, but not necessarily. Is your original lease in the exempted or partially exempted categories---from what you are saying in your first post I think not. Hence, originally you are just regulate tenants with RTA protection.
If you want a quick scan of what the "student" provisions in the law are, go to www.canlii.org. Limit the search to Ontario, then search Residential Tenancies Act. That search will open up the legislation. Then in the search bar, enter "student". You will find 8 results--i.e. 8 instances of the word student appearing in the RTA. Take a read--what I think you will be most interested in is the legal relationship between the landlord and the university with respect to the provision of housing. The exemptions hinge on that.
Thats about all I can say. Do please find a lawyer or paralegal. Check locally for a Community Legal Clinic or call the Law Society of Ontario (they have a lawyer referral service), and get someone who knows what they're doing to help you out.
Good luck
Michael Thiele
www.ottawalawyers.com
Quick question Michael,
ReplyDeleteI was served with an N12. I found a unit and, using the N9 wish to leave earlier than the N12 date. The date I wish to leave is not the end of the month (which is fine) - do I have to pay the full months rent, or just the balance based on when I move out?
Hi: As indicated in the N12 form, you may terminate the tenancy sooner--on 10 days written notice. Your tenancy terminates as of the date you indicate and the rent obligation stops there. If you have an LMR still on deposit you get a refund of the LMR, plus a refund of the rent paid for the month, plus the N12 compensation of a month's rent if applicable (i.e. landlord versus purchaser).
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI sent a money order to pay my rent to my landlord via registered mail. The same day my landlord received the registered mail containing the money order I came home to find a notice of eviction for non payment of rent. I believe my landlord is not cashing the money order and trying to evict me anyway. What course of action do I take? And can my landlord get away with what they are trying to do?
Thanks in advance for your advice
Teddy
Hi Teddy:
DeleteHopefully this is just one hand not knowing what the other hand is doing. I would send an email to the landlord asking/confirming that they received payment of the rent. I presume the registered mail must have arrived after the rent was due? A Notice of Termination for non-payment of rent (Form N4) can't be served until after the rent is due. Otherwise it is void. If this is a game of the landlord not cashing your rent--even though it is sent by registered mail---you should make sure to have emails to the landlord confirming delivery of the rent and asking for confirmation of payment. You should also ask for a receipt for the rent paid (you are legally entitled to that). In the future, can you change the manner of payment to perhaps sending e-transfers? You get a great traceable record and the bonus is that it is cheaper than a registered letter.
Good luck to you
Michael K. E. Thiele
Hi...
ReplyDeleteSo I have some questions and any help would be much appreciated. Also, I must say that I am a graduate student so I do not have much money so any knowledge would be great.
I will explain my situation (sorry in advance if it is long)...
Last August I needed to find a place to rent and found a room in an apartment going for $750. I was told that there were going to be cleaning expenses of $45 about every three or four weeks. Then a week before I was to move in, I was told the rent was now $800. I was very naive in thinking it was for the cleaning expenses. To be honest I was in panic mode since if I didn't pay the extra $50 I would have to restart the renting a place process over again. I was told verbally that rent was to be paid on the first of the month by e-transfer; I was not requested to pay last month's rent up front. Also, I did NOT sign anything, that is either a lease, or any type of agreement. Is a craigslist ad a legal binding contract? and does it matter if the ad got deleted? And there was nothing written.
The housing situation was an apartment in a highrise. The person I rented from was renting/leasing it. According to the property management company, someone leasing is not allowed to sublet. So... does subletting mean the entire apartment or any part of the apartment (just a room)? Was it illegal for them to rent out the room in the first place? If I wanted to 'rent' it, would my name need to be placed on the lease?
Also we shared the kitchen, does that mean that the Landlord-tenant act/law does not apply? Am I considered a boarder or long term guest, not a tenant? Is there a separate set of laws for boarders that I can read somewhere?
Should I get back receipts for rent paid to be claimed on my taxes? I'm a grad student and any possible credit helps. By not issuing receipts, does that not make him a landlord?
I don't want to get into too many details but I moved out last week. The individual created a toxic and stressful environment. He was partially racist (didn't hate all races but the few that he did, he did extremely well). There was a tremendous amount of yelling at the television when certain topics were on, and twice I was personally yelled at. He often 'heated' the apartment by either cranking up the stove elements or turning up the oven. This was a daily occurance in the winter months and when I turned it off I was initially told that he knew what he was doing and it was a normal occurrence; needless to say I felt very unsafe with this. I could go on and on with other similar stories. Towards the end of the month he told me that I am very dirty and I disgust him (with my laundry habits; well grad school is tough and I was behind on laundry). He felt that I cheated him not paying the cleaning fee. Also, he wanted me to pay last month's rent now since he initially waived it since he felt sorry for me, and now it 'seems that I have money'. Finally, he said that I would have to move out if I continued being so dirty (has anyone worn clothes from the store without washing them? is that a crime? is it worth threatening somebody's housing over?) There were a few racial slurs thrown in for emphasis (at least they were original). I would stay super late in the school library just to avoid him because I didn't want any possible abuse or ridiculous discussions. I couldn't take it anymore, the final 'discussion' was the last straw and I moved out.
So he has written me a few messages threatening me legal action. Basically he wants money... either one, two, or four months rent. I have to admit that I returned the keys a couple days late (apparently homelessness eats up far more time that one would expect). Does being a boarder with a verb agreement allow him to sue me for future/potential rent payments? Is any possible legal action null and void to begin with since his lease does not allow subletting? Do I need a lawyer? Where should I turn to?
Thanks.
Hi:
DeleteThis is quite the story! At various points in your recounting of the facts you say things that trigger specific legal issues. Responding to them all is not really practical here and I would be writing a text book if I started. What I will do is cut to the end bit and things develop otherwise you can then get a "legal answer" with respect to the other issues.
In short, you are not a tenant nor a subtenant. You rented a room inside a rented apartment from the tenant of that apartment. You have no legal title in the premises. At most, you are a roommate. As a roommate the Residential Tenancies Act does not give you a lot of rights. You have effectively no rights under the RTA vis a vis your roommate. As against the landlord you have some protection as a member of the household but you don't have security of tenure nor any obligation to the landlord directly. Your roommate is not a landlord to you as defined in the RTA.
Your relationship with your roommate is contractual. Your contract can be oral or written or even implied from the circumstances. Absent explicit terms of the contract a Court would look at this from the perspective of an objectively reasonable person and gauge behaviour and terms from that position.
You moved out. Ostensibly without notice and because your roommate made continuing to live there intolerable. If the behaviour was bad enough you can imagine that a Judge would find it perfectly reasonable to move out on the spot without notice. With less good grounds to terminate a Judge might say you owe reasonable notice. In a formal tenancy where you have your own space and control the entirety of that space you would owe 60 days notice to terminate to the end of term. Certainly I would not expect a Judge to ever impose "notice" of more than 60 days on you. When I say "notice" this means the equivalent in rent. I would guess, based on the disclosed facts, that your absolute worst risk is 60 days.
If your roommate is provably as bad as you describe then I don't doubt for a second that a Judge would excuse you entirely and perhaps even congratulate you on moving out without notice. Your roommate sounds unstable and his berating you is likely enough to justify immediate termination--for the simple reason that you had to share space with him. I don't doubt that you would not feel safe in that environment and getting out would be absolutely necessary. Depending on the details of the specific facts (i.e. fuller story), you might even argue (if sued) that your roommate breached implied terms of civility and quiet enjoyment and as such he owes you money. Was his behaviour so bad that he forced you to leave before you were ready to leave? Did you incur expenses because of it? Again, depending on the circumstances you might consider suing him--or filing a defendant's claim against him if he sues you. I presume this would all be in Ontario Small Claims Court (the Landlord and Tenant Board would have no jurisdiction).
At this stage, it would not be unreasonable to put your former roommate on ignore. If he wants to take legal action then so be it. However, that is doubtful and under the circumstances you describe I don't see him having much success. If legal proceedings start then consider hiring a lawyer or paralegal or get a formal consult know and have the lawyer or paralegal on standby in case something happens. My guess is that nothing will happen as it is expensive to go to Court and it takes a long time for cases to get heard. Your roommate doesn't sound like the type who will go through the trouble.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy landlord (actually his real state) called me 2 weeks ago and ask me for more than 400 dollars more per month. I live in my unit from 2017 June and my lease agreement is finishing next June 25th. I told him on February (face to face) that we want to stay here more time (My wife and I).
When he called me, he told me that if I do not agree to pay that amount of money, the daughter's landlord is going to come to Toronto to live in my unit but... If I pay I can stay other year... I think that they are making up the story about the daughter's landlord to pushing me and forcing me to pay such amount of money.
I do not agree of course. I know our rights and I told him that it is too much money. He went crazy and he finished the call very angry. After 5 minutes he texted me and sent me and email saying that I have to move out. I answered the email saying that I do not agree to move out, I offered him 100 dollars more per month (6% increase). He has not answered me yet.
The thing is that he is sending me text message asking me to talk with daughter's landlord and I do not want to talk to her. I am not answering him this kind of text message.
What should I do? I do not want to find other unit. This is so unfair! :(
Thanks so much for your answer.
Hi Javier: You are clearly aware of the law (perhaps from reading this blog!). You know that the RTA protects you but also that the RTA has ways to evict tenants for no fault reasons. This is the "daughter moving in" which is the Landlord's own use application (Form N12). Now the N12 needs to be served in good faith. Also, when served, there must be a good faith intention to occupy the premises for 1 year or more for residential purposes. For daughter's occupation, you are likely also entitled to compensation of 1 month's rent (see the notes on the N12 Form).
DeleteOf course, you know that the daughter moving in is not a good faith move in. You know this because the landlord told you that he wants more rent money. If you pay it, you get to stay. This fact, if you can prove it, makes a very strong case for fighting and resisting any application that the landlord might bring to the Landlord and Tenant Board.
So how do you gather the evidence?
While your landlord is in a chatty mood, perhaps you start texting with him, with the daughter, with the daughter's landlord etc.. See what you can get them to admit in text messages. Be conversational, see what he writes. Perhaps he will actually say that you can stay if you agree to a rent increase of $400 per month. Perhaps you can get him to confirm that the daughter moving in is only something he is thinking about because he needs more rent money etc.. This discussion, in writing, is likely to be very helpful to you at any hearing. Other than that, the law is in your favour you just have to protect against wrongful eviction techniques--like using the N12 to leverage higher rents from tenants.
Good luck
Michael K. E. Thiele
Hi Michael, thanks a lot for your answer. Yesterday the guy (real state's landlord) was at my unit and he agreed with my offer BUT they want to sign a new rental contract adding a clause where they say that I have to leave in June 25th 2020.
DeleteDo you think that is is legal clause? If I sign, I must move next year even if I change my mind, right?
Thanks a lot!
Hi Javier: This is a fun question. If there wasn't already a tenancy agreement (i.e. an existing tenancy), there would be no doubt that the clause is void due to section 37(5) RTA. That section makes an agreement to terminate void when it is entered into at the time of signing the lease or as a condition of entering the lease. Does s 37 apply on your current facts? You have an existing tenancy and are signing a new lease for a fixed term is that captured by section 37(5). I think it is, and hence I think the clause is void. Any question about whether it is or not I think is resolved in the tenants favour given the purpose of the RTA and also the circumstances under which you have come to sign it. Also, given the "agreed" offer about the 6% rent increase, I think the document may not be worth the paper it is written on--though I do think it gives you the security of a fixed term for a year. The $100 per month increase, while acceptable to you, is still illegal and it seems to me that you're paying it only to avoid the N12 and daughter moving in. In the future I imagine you could actually apply for a return of rent illegally collected---I'm not saying you'd win that for certain--but I think it more likely than not.
DeleteIf you don't move next year the landlord would likely file an application to terminate based on an agreement to terminate. That they would attach a lease to the application for an order to evict you (to prove the agreement to terminate) would likely set of alarm bells at the LTB. I don't think that the Board would issue the usual ex parte Order. The Board would either refuse outright or require a hearing on the issue. I think the outcome of that hearing would be a dismissal of the application (i.e. agreement to terminate is unenforceable) and if you sought a refund of the extra rent you'd likely get it. Your tenancy would continue. Of course, your relationship with the landlord would be rather sour and I'm sure he would do what he could to make your life miserable if the tenancy continues and he has to pay you money back. But technically, the RTA protects you from that kind of behaviour too.
Michael K. E. Thiele
Michael, thanks you so much for your help. I really appreciate it. All the best!
DeleteHi Michael,
Deletehere we go again... My landlord is not showing up to take the rental cheques. I have to pay every 25th. I sent a text, mail and call him and I do not know anything from him. I sent a picture of the cheque for this month. I call him, email him and his wife, everything and he is not answering me.
What can I do? this situation is creating a lot of stress in my life, I cannot concentrate in my work, I am really tired of this. Should I open a file in the Landlord and tenant board?
Thanks again for your help.
Javier: The fact of the landlord not showing up to pick up rent is obviously concerning. What possible reason could the landlord have for not picking up his rent? That being said, if you have no issue with saving the money, then simply wait until the landlord ultimately asks for it. Sending him a picture of the cheque and asking him to pick it up is great evidence if he is planning any kind of silly legal action. If you have challenges with not spending the rent money on other things you could buy a money order to get the money out of your account. Or maybe, transferring the money to a savings account that is more difficult to access (i.e. and spend) would be helpful.
DeleteShould you start an LTB case? I don't think so. It would take up a lot of time and effort and ultimately you would get little out of it. Just hold onto the rent and eventually the landlord will try to pick it up. As long as you've showed a readiness and willingness to pay you will have little to zero trouble at the LTB (should it come to that).
Michael K. E. Thiele
www.ottawalawyers.com
Michael thanks a lot from myself and my wife. Have a great weekend.
Delete
ReplyDeleteRecently over the last 8 months we have received several attempts by our landlord to evict us from our residence. she has issued me 4 different notices of eviction. The first last October she stated for late payment of rent, when I verified with her she agreed to those dates as per emails and Texts I have. she then changed her mind and said we could stay. Then advised they would sell us the house in January of 2019 For $350,000.00. To once again be Reneged on February 2, followed by a second eviction notice, for the reason as the first one in Oct with the exact dates, that once again I have email and text confirmation of it being ok due to payroll dates.
Come March I was fed up and saw a lawyer he sent the landlord a letter stating to do the multiple attempts to evict without following proper process and determining none of the orders were registered with the tribunal we would not be leaving the residence till this happens. This letter was issue to the landlord via registered mail with our rent enclosed as a certified money order as proof of payment. This was sent in April , at this point she claimed to have thrown out the money order with the envelope. A new Money order had to be acquired and the first cancelled. At this point she issued and n9? Or n8? For non -payment of rent? We had proof she received it by signing for the registered letter. Needless to say Come May 15th we received another eviction order this time from their lawyer advising there son will be moving in , as of July 31.2019, due to a separation from his wife. Which doesn’t seem right since he has multiple properties himself. Can someone please assist in this situation.
Hi:
DeleteI'm pleased to read that you have or had a lawyer assist you in dealing with the landlord. You should return to him with this new Notice of Termination to determine your strategy.
A landlord may serve a Notice of Termination for landlord's own use (or for use by a child of the landlord) where the landlord in good faith requires possession of the rental unit for residential occupation for at least one year (take a look at section 48 Residential Tenancies Act). This part of the law has changed somewhat recently. Is your landlord an individual as opposed to a company? You of course are dealing with a person--but who is the owner of the property on title? You may wish to have your lawyer check to see if the property is held by a corporation. If so, the N12 (Notice of Termination for Landlord's Own Use) is likely unavailable to the landlord (see section 48(5) RTA).
Then also, when the landlord files the application with the LTB (presuming you don't move out), take note of the requirement for the person occupying the apartment to file an affidavit (section 72). This affidavit is not required to be served on you and in fact the LTB will often accept an application to the Board without requiring the Affidavit to be filed (a gross error in my view--but common). You will want to obtain a copy of this affidavit in advance of the hearing because it may give you grounds to attack or resist the application.
In the context of this application be aware of your entitlement to compensation of a month's rent. Oddly enough, in situations where the N12 is a fraud, I've seen landlord's resist paying this compensation and I've heard a whole slew of nonsense explanations why they are "exempt" from the payment obligation (see section 48.1 and 55.1 RTA for the compensation obligations).
The point in recapping the basis for this kind of notice of termination is to understand where you have to focus your challenge to it. Given the history of recent notices of termination you perhaps doubt that this N12 is given in good faith. The history of recent attempts to terminate, your lawyer's letter, at a minimum raises a concern about the good faith. Beyond that, you should double check to see if there is technical compliance (because of there is not then you may get a dismissal of the application), and further you should see what kind of information you can dig up on the son moving in etc.. They have provided you with some information "separation from his wife", which gives your lawyer something to work with in cross examination etc. as there are typical inferences on grounds like this that would be contrary to the RTA requirement of residing in the unit for one year.
The son does not have to be present at the hearing of the application. If you want him there, to ask questions, you might consider summonsing him to the hearing.
I hope this is a useful starting point for you. Putting a plan together for an eventual hearing is definitely worthwhile. While the landlord has the burden of proof, this burden is rather easily discharged with a simple "say so". Hence, if you are going to defeat the N12 application it will be down to you to prove a lack of good faith in the application or other technical non-compliance (i.e. search title).
Good luck
Michael K. E. Thiele
www.otttawalawyers.com
Hi Michael,
ReplyDeleteI have a question regarding whether my landlord is able to drop by the house unannounced, and enter the backyard (which is fenced and gated) with zero notice. We have asked several times now for notice prior to her coming by, but she disagrees and feels that she can be in the backyard and the outside of the house without needing our permission. We have been told several times by our neighbour that she has dropped by to look at things, yet we don't hear about these visits from her.
Who is right here?
Thanks!
Hi:
DeleteFrom your question I infer that the rental property (house) is a single family home and that you rent the entire property--meaning you rent the house, backyard, driveway etc.. If so, then I think the entire property constitutes the "rental unit". In accordance with section 27 RTA a landlord must give 24 hours notice before entering the rental unit, provide a time and acceptable reason for entry. "Snooping" is not an acceptable reason to enter. There are exceptions to the 24 hour notice requirement but they are what you would expect (i.e. emergency), and again, "snooping" is not an exception.
The situation is not so clear if the "rental unit" does not clearly include the space of the backyard. If this was a multi-unit residential complex and the backyard and area was a "common area" then it is not so clear (and I think doubtful) that the landlord would have to serve a 24 hour notice of entry. "Common area" space forms part of the "residential complex" by definition (see section 2 RTA). However, there is no notice requirement for entry into a "residential complex"---just for entry into a "rental unit" as can be seen from section 27.
So, based on what you've written and that you rent the entire space exclusively, then I think you are correct. To bring the point home to the landlord you can file a T2 application with the LTB. It is the first ground of application (entered my rental unit illegally).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there and thank you for your time. I have a brutal landlord that if I tried to describe the incredibly bizarre behavior it would take me an hour or so...
ReplyDeleteI wont waste your time with the specifics and just ask my first of many questions. I live in a flat in the Annex with two other guys. We have just about had enough with this mans complete ignorance and his total disregard for our right to privacy. He enters at will, he even just goes into my bedroom and the others too. He does not call to even give us a heads up which I have asked over and over with no effect. The worst part of this is that he goes a way often and last week while he was away he had obviously met this guy, gave him our key, no introduction or even a simple text to inform us a total stranger will be coming into our place at 11:30 on a sunday night... His behavior is demoralizing at best, on one occassion I was sound asleep when I was awoken by the landlord standing by my door but inside my bedroom, before i could get dressed or even tell him to get out, in walks a group of business people, turns out they are financing his income properties, new financing is obviously in the works... Ok, that's just example of his brutal disregard for our basic rights, the right to privacy.. It's kind of a big one because after they left I truly thought I can't get any lower when a man I help with no compensation, (mainly due to my need to have order, I even buy and set up a plants for the summer to make the front porch just a little nicer when you sit out to read and have a coffee or tea.. Never any thanks but i have become used to his dreadful character. Ok, now the big question.... there is a room off the kitchen that has no window, no ventilation and with only one escape rout if it was ever needed, the chances of him getting out is remote at best.The door doesn't fit so when we cook it fills the room with smoke and cooking odors. It also brings a forth into this small flat and it's impossible for four grown men to share the fridge, it's just enough with three people. I am no exaggerating one bit. Im concerned if anything were to happen he could be trapped in the room with little other choice but to try and kick through a wall...Can you imagine.. Kitchen does not have a vent over the stove so it gets quite warm in that room... and it's so bad I feel terrible turning on my blender when I make my protein shake, so i now take it out the back steps to run it so it isn't such a wake up. What are our rights, what can we do about the illegal room?
Thank you so very much,
Sgt Major S.G. Gerhardt (ret.) 647 550 9939
Hi: So, housing in Toronto like the rest of the province is in very short supply. I'm presuming that the Residential Tenancies Act applies to your rental unit. The housing shortage reality is a consideration when deciding how to deal with a bad landlord and potentially escalating the situation. That being said, here is a list (in no particular order) of the things you could consider doing in response to the issues you raise: 1) file a T2 application with the landlord and tenant board alleging illegal entry. Have the dates and times handy. 2) set up a security video system in the apartment to catch your landlord's entries--these are dirt cheap now--see Bestbuy for lots of choices in store. 3) Contact the Rental Housing Enforcement Unit (google it), they are empowered to press charges under the RTA and Provincial Offences Act against your landlord. 4) Be creative about the remedies you seek in the T2 application--I'd include i) an Order that the landlord enter only on 24 hours notice as per the RTA, ii) an Order allowing you to change the locks to the premises without giving the landlord a key if he enters the unit without proper Notice, iii) a fine, iv) a rent abatement of several months of rent deductible from future rent. 5) the fire safety issue on the room, contact the fire marshall's office, ask them to inspect the premises for fire safety concerns. You can advise them about your over-crowding concern and lack of egress in the event of fire. If the unit is not fire safety compliant the Fire Marshall can make Orders (be aware that the Orders may impact your living arrangement--in serious cases the Order can require the landlord to terminate occupation of the premises (i.e. you might get yourself evicted). 6) file a T6 application, note the severe impact of the lack of a vented hood over the stove, seek an Order requiring the landlord to install one (given how he is renting out rooms), seek authority to buy and install such a hood fan and deduct the cost from the rent. 7) consider calling property standards with the City and have the property inspected and have orders made to deal with issues--City might order the installation of fan given the impact on occupants.
DeleteThere are a number of guides that explain your legal rights under the Residential Tenancies Act. However, if you really want a good crack at understanding the law--take the time to actually read the Act. The index and the language of the statute is very accessible---it is in plain English for the most part. Anything that is unclear you can google read the caselaw etc.. But for the most part reading through the statute is easy to do and you'll get a good sense. You can find the statute for free at this link (sorry--I can't make it live so you will have to cut and paste it into your browser) https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=reside&autocompletePos=1
Start at the index (expand it out) and you'll see all of the headings that are of interest to you. Take a look at "landlord's responsibilities" in section 20 for the condition of the unit. Take a look at sections 22, 25, 26, 27 for your privacy rights and the landlord's obligations on entry. While the RTA is 263 sections long, the vast majority don't apply to you as they deal with different kinds of housing or are technical in nature. So the meat of the RTA is in the first several parts that you should be able to review in about 30 to 60 minutes.
Anyway, I hope that helps. If you have questions arising from reading the statute--send me another comment/question--I'm happy to share what I know.
Michael K. E. Thiele
www.ottawalawyers.com
Hello!
ReplyDeleteGreat, great blog!
I have a question about harassment. For over a year, a tenant has been keeping his door open and allows his cat to wander freely down the hallway with no supervision. Many people complained. The superintendent told him to stop but instead he swore at her. The superintendent allowed it to continue until someone almost tripped over the cat one day. She told me she was calling the owner.
In consideration of this guy's wife, who I like, that night I tried to talk to the male tenant - stupidly trying to solve the situation without the owner getting involved. I'm an idiot. I was very calm and polite and he started screaming at me down the hall, calling me a b--ch about 20 times, as well as an a__hole. I walked away but felt fear. I really never knew this man was volatile. So I sent a report in to the owner - I didn't complain about the cat, but I did complain about the loud, screaming verbal abuse down the hallway.
The owner contacted the tenant and told him to keep his cat in the apartment at all times.
Today I came in and he was standing in the hallway talking to another tenant. I had to walk in between them to get by. As soon as I passed by, he called his cat out to see the other tenant now that 'trouble' (meaning me) had walked by. He then - loudly, knowing I can hear him - went on to the other tenant about how I complained about his cat and that I was a real trouble-maker. I usually remain quiet - but truth is truth - so I turned around and said quietly, "I did not complain about your cat. I complained about your verbal abuse." I then walked away as he screamed at me down the hall about how I was causing trouble. He was careful not swear, though.
Anyhow - I won't bore you with all of this - but I have to walk by this tenant's apt. several times a day and in the spring and summer - which is coming up - I will have to walk by his balcony and he sits there all the time. I don't want to deal with him making comments all the time. He is angry because he can't let his cat wander around and doesn't want to leash his cat and walk him. I have a dog who has to go by his balcony to the grassy area.
If this guy continues to yell out stuff - what can I do? I'm a calm person and won't yell back but I don't want to face this. Any suggestions? I was stupid to think I could have had a calm talk with him in the first place. Now he has a letter from the owner that if he continues to let his cat out, he will be evicted.
Thanks
sue
Hi Sue: The kind of anti-social behaviour you describe from this tenant is unacceptable and I'm sure it makes you feel uncomfortable. Getting the landlord to take action might be the biggest obstacle to resolution (if the landlord is unaware of his obligations under the RTA). The first thing that you need to figure out is how to collect evidence of the anti-social behaviour from the neighbour tenant. Your own written explanation of what happened, along with your oral testimony at a hearing is indeed evidence. However, you might expect the tenant to deny your description of the events (i.e. lie), and then it becomes a she said/he said. Hence, if you have witnesses that would be helpful. If you know that walking outside past the balcony where the tenant is sitting will elicit shouting etc., then perhaps turn on your phone video/camera and record the incident of you being accosted (verbally) by this tenant. If the interaction gets a little out of hand you can always call the police as well and ask them to take steps---at a certain level unwanted interaction becomes criminal harassment.
DeleteReport the interactions to the landlord, in writing (preferably by email), or some other way that you can prove that you have notified the landlord of the issues. The landlord is required to take action against the tenant, especially if the evidence is clear. Provide your evidence to the landlord.
The landlord will need to serve a Notice of Termination--there are various grounds--from 1) substantial interference with reasonable enjoyment, 2) impaired safety, 3) illegal act. There are other notices as well--but these are the main ones used for the kind of thing you are describing.
If the landlord fails to take action then the landlord is in breach of his obligations to you. That will entitle you to file an application against the landlord for failing to deal with the neighbour. Elsewhere in this blog there are articles on that topic. If the landlord is unfamiliar with his obligations you might want to follow up and perhaps point out what the landlord needs to do. The landlord might not be keen on the work that this represents but you can perhaps motivate the landlord to act if you mention that his failure to act will result in a substantial claim against him from you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI rent a basement apartment of a bungalow. The upstairs tenant is a woman with her two kids, aged 4 and 1, and her boyfriend. We hear loud footsteps, running, jumping, and banging on the floor to the point that the walls shake. We can hear their TV, music, conversations, and the vacuum multiple times a day. I have spoken to her about the noise a few times, once around 9pm for the loud TV and another time around 7:30am for loud running and jumping, and another time about noise in general. I spoke to the landlord and he said it is up to us to sort it out first then he will get involved but it doesn't seem like he wants to get involved. The other day I was confronted by her boyfriend very aggressively about our complaints (a few hours earlier I was fed up and banged on the ceiling). He threatened me and told me they were good kids and he doesn't want to hear anymore complaints. He also stated that they were friends with the landlord. I contacted the landlord immediately after this altercation and at this point the landlord was basically dismissive. He said he would speak to the female tenant about the situation. I messaged her today and asked if we could communicate and be civil with any further issues. She responded defensively with excuses and it seems like the noise level has gone up just to spite us. I have been told that there is very little to nothing I can do about it, and that it is a basement apartment and I just need to put up with it. What can be done in this situation?
Hi:
DeleteThere are a few ways of approaching this issue. You have already tried the first and most logical approach and that is to contact the landlord and complain. The landlord's unwillingness to do anything is unfortunate. As living under these tenants making this level of noise is unacceptable you will need to adopt a different approach. You've tried what I think most would suggest and that is to speak with the tenant to see if there was a way to deal with the problem. Given the opposite effect (i.e. things getting louder), what can you do?
The first thing I'd suggest is the collection of evidence. You need to be able to prove with little room for interpretation that the noise you are hearing is excessive and unreasonably loud. You will likely have to experiment with how to collect the evidence. Perhaps a phone camera and microphone are very effective in capturing the noise. Perhaps you will need a noise decibel meter. Perhaps a separate microphone system. Perhaps getting reliable third parties in to "hear it" who are willing to swear an affidavit and perhaps even testify. The trick will be to collect the evidence (along with date and time) so that the fact of what you are complaining about is beyond dispute.
The reason you need the evidence demonstrating the severity of the problem is that there is a certain truth to having to put up with noise in apartment living. It isn't reasonable to expect the same level of quiet in apartment living as you would get in a detached home. It is understood that apartment buildings come with certain noises that arise from construction methods and that simply nothing can reasonably be done to eliminate certain noises. Those "noises" simply become something you have to live with.
The goal of the evidence you collect is to demonstrate that the severity of the noise exceeds what can be reasonably expected for you to live with. Your evidence needs to demonstrate, objectively, that the upstairs tenant's behaviour is simply beyond all reason.
Once you have that evidence you have some choices on how to proceed. You could: 1) write to the landlord, provide some of the evidence, and require the landlord to take action. 2) you could investigate a little bit, then write to the landlord and demand action and suggest that you need him to install wall to wall carpeting with thick underlay in the upstairs apartment and to hire a sound engineer to evaluate the building to minimize noise transmission. 3) You can file complaints with the town/city of where you live to the noise by-law and see if they do anything. Show them the evidence--maybe they will lay a charge. 4) you can file a T2 application against the landlord claiming a significant rent abatement and orders requiring the landlord to install whatever is necessary to reduce noise transmission including carpeting (for contact noise), perhaps insulate beneath the flooring between the joists or insulate your ceiling. Further you can request that the Board require the landlord to retain an engineer to generate a report on options to reduce sound transmission.
DeleteGiven that the landlord will likely say that the "noise transmission" is simply a fact of life in this building, you will want to suggest that the landlord's opinion in this respect significantly impairs your legal right to quiet enjoyment and that if you are required to simply accept the nose transference that this is only a reasonable conclusion on the advice of an expert (i.e. engineer).
Along with the evidence you collect about the severity of the noise, you can bolster your position if you happen to know qualified professionals who might be able to suggest solutions from an expert view point. I'm thinking that qualified professionals can include engineers and anyone who has a long experience in the building trades--especially of residential construction of the type you're living in. These "experts", if willing, can generate reports to explain the nature of the sound, the manner of transmission, and what can be done to mitigate the sound. From your explanation of the issue I see that there are different methods of transmission of sound--physical contact to the floor generates noise differently than ambient noise through the air (music and TV). The solutions for noise through the air are different than noise through contact on the floor (jumping). If you've ever had occasion to look (or been to home shows) you will see that there are a ton of products and methods to deal with the issues you are describing. The key, in getting your own expert, is to 1) qualify the expert (through education or experience), 2) get the expert to view your evidence or experience it themselves, 3) get a comment about the severity of the noise (--yes, it is excessive), 4) and proposals for various solutions, 5) costing for solutions on a rough basis.
How you approach the landlord about this is up to you. You could list out all of your options to the landlord and basically warn the landlord about what you are going to do. Demand that he take action otherwise you will take action as you describe. If the landlord still decides to do nothing then you simply proceed with your LTB application. In some circumstances and if you are highly aggressive (though not sanctioned by the RTA), you could decide to withhold rent to get the landlord's attention. That being said, withholding rent is frowned upon by the LTB--so be aware. However, withholding rent does tend to focus the mind of the landlord and while the landlord might start eviction proceedings you have the legal right to answer a non-payment eviction proceeding with your own application (i.e. the T2 for noise) and even if you lose terribly the LTB will always give you a chance to "pay and stay".
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI’ve been living in an upper/lower single detached home for a couple of months. There are new tenants since 4 days ago and immediately I noticed a very HIGH perfume/fragrance smell. I am allergic and extremely sensitive to fragrances, therefore I am more bothered than others. We share vents, the smell is being pushed into my apartment (i’m in the lower level). I approached the new tenants explaining my allergies/ symptoms (very dry throat, nose, migraines) and kindly asked if fragrances usage could seize (except candles) and she said she likes her home to smell nice, she will think about it but its not something she thinks she can do.
With her response I decided to reach out to my landlord in order to have him reach out to the tenants. It seems like the husband of the family will come introduce himself / discuss the issue. He validated his wife does like to use a lot of fragrances.
Unfortunately it has become unbearable living here for me. I am wondering if there’s any type of help I can get from the tenant/landlord board or its a lost cause and I should seek for a different apartment?
Thank you!
I'm sorry that you suffer from sensitivity to fragrances. It can make life very difficult given the prevalence of such scents.
DeleteIn my opinion the use of fragrances can be equated to exposure to second hand smoke when the impact of that exposure has the type of health affect as it has on you. Becoming "ill", quite literally, from exposure to scents is a health condition and can certainly be described as an incident that substantially interferes with your reasonable enjoyment of the premises. To that end, your proper response is to make a complaint to the landlord about the impact of these scents and ask the landlord to "make it stop". The landlord may ask you to explain the basis of your complaint and perhaps provide some kind of proof of your condition and perhaps some explanation or description of what might be a good solution to the problem. Perhaps the "only" answer is that use of scents in the neighbours apartment must cease. But, maybe there are other solutions that would solve your problem. What the solution might be is up to the landlord to ascertain.
The landlord, should, view your complaint through the lens of N5 language (s. 64 RTA). That view would ask whether the tenants using the scents are "substantially interfering" with the "reasonable enjoyment" of the residential complex for all "usual purposes". If this test is answered affirmatively then the Landlord will have to serve your neighbours with a voidable notice of termination (Form N5) requiring them to stop using scents. Failing stopping using scents the landlord may apply to the Landlord and Tenant Board for an Order terminating and evicting your neighbours.
There will be some (I'd guess many) that think a tenant should be able to use scents, air freshners, at will. The argument will be that they too should have reasonable enjoyment of their home and that your demand is infringing on their rights. Sure, one can see the point of that argument. It's the same argument that is made when some parents resist the "no peanuts" rule when a classmate of their child suffers an allergy to peanuts.
For me, the arguments for "right to use scents" fails against your complaint that the scents are interfering with the reasonable enjoyment of the premises. I say that because your neighbour's scents are disturbing you in "your space"--meaning in your rental unit. If you were complaining about the scents in your neighbour's unit I think you'd have a tougher argument. But, the fact is that your neighbour is using scents in a way that they leave their apartment and enter yours. That has their scents escaping into your space and their "Scents" are a nuisance that are causing you damage. These "scents" are not necessary fragrances that "need" to be used. It is not like a "food smell" or other things that are necessarily incidental to living and occupying space. Your neighbours may readily control the use of scents/fragrances and they can choose to affect you or not by virtue of the shared HVAC in the residential complex.
I think that the "shared" air of a single furnace heating and exchanging air through the building and through the units is most unfortunate. However, it is the reality. As such, neither you nor the other tenant can claim "perfect air" as a right and some compromise will always be necessary between the tenants. The "rights" arguments, I think, need to be considered through the lens of a "shared" resource.
Michael Thiele
www.ottawalawyers.com