In Ontario, the residential landlord and tenant laws provide tenants with security of tenure. This means, that a tenant, even after the expiry of a lease, is automatically entitled to continue living in the apartment/rental unit on the same terms and conditions as under the expired written lease. The tenancy becomes a month to month tenancy and the tenant has the legal right to continue the tenancy indefinitely. This means that the landlord is not entitled at law to regain possession of the apartment just because the lease ended. It also means that a landlord has no absolute right to possession of the apartment. Once the tenant is granted a leasehold interest in the property it is intended by the law for a landlord to have limited options to regain possession.
Most people understand that a landlord can seek to terminate a tenancy and evict a tenant where the tenant is breaching the terms of the lease or the Residential Tenancies Act. Things like non-payment of rent, interference with reasonable enjoyment (music, cleanliness, etc.), illegal act, are all fault grounds for termination of the tenancy. The tenant's security of tenure is terminated by the tenant's conduct.
What though, about the model tenant? The tenant who always pays the rent, doesn't cause a problem, and in fact looks after the landlord's property as if it were their own. Can such a tenant ever be evicted?
The idea in the Residential Tenancies Act is that the model tenant should be able to live in a rental unit indefinitely. There are only a few "non-fault" grounds for termination of the tenancy.
The one I'm writing about today is Termination For Landlord's Own Use. Where a tenant is at the end of a term, or on a month to month, the Residential Tenancies Act does allow a landlord to serve the tenant with a Notice of Termination based on the landlord's good faith requirement to use the rental unit for residential purposes (for himself, his spouse, parent, spouse's parent, or person providing personal care services to these individuals. For those interested in the technical wording see section 48 of the Residential Tenancies Act.
The form that a landlord serves on a tenant to terminate the tenancy for own use is Form N12. This form must be served at least 60 days prior to the proposed terminate date. The termination date must be the last day of a term (usually the last day of a month as this is the day before rent for the next term is due). The 60 days of notice is a minimum notice and certainly the landlord may provide much more time to a tenant.
Sometimes, the N12 is used to terminate a tenancy--not because the landlord actually intends to occupy the premises but for other alterior motives. What are some examples of those motives? Well, perhaps the rent is really low and the landlord would like to kick out the sitting tenant so that the unit can be re-rented for a much higher market rent. Perhaps the sitting tenant makes complaints to property standards thereby costing the landlord money in having to comply with property standards orders. Or maybe, the landlord and the tenant have had a falling out about something that is not grounds for termination of the tenancy but which nevertheless results in the landlord wanting to get rid of the tenant.
When the N12 is used in this way, a tenant has the option to force a landlord to prove the good faith of their application. This is done by refusing to move out and insisting that the landlord bring an application to the Ontario Landlord and Tenant Board to prove the good faith of their intention. If the tenant can cast serious doubt on the landlord's "good faith" intention then the application will be dismissed. Further, if the tenant can show that the N12 was served in retribution for the tenant enforcing her rights under the Residential Tenancies Act, complaining to a government body, for organizing a tenant association, or because the unit is occupied by children--then the Landlord and Tenant Board must refuse the application to terminate the tenancy (see section 83(3) of the Residential Tenancies Act).
A word of caution, while a tenant may certainly put the landlord to the test of proving his good faith, my experience is that it is often difficult to disprove the landlord's sworn evidence that he has a good faith intention to occupy the premises for residential purposes. If the only contradictory evidence that a tenant has is a "theory" then they are unlikely to be successful. To that end, if there are messages, statements, notes, letters, witnesses who heard the landlord express a contrary intention, then it is critically important for that evidence to be brought to the hearing. Great evidence, to disprove good faith, that I have used in cases includes: real estate listings showing the property has been put up for sale by the landlord, photos of the Landlord's actual house to show that the apartment he is moving into is smaller than his current garage. I've had phone messages from landlord's that demonstrate how angry the landlord is with the tenant for complaints, and I've had client's who have surreptitiously recorded landlords admitting that the only purpose of the N12 is to get the unit back to get higher rent from a new tenant.
What about the situations where the landlord does indeed intend to occupy the apartment in good faith? Let's assume that there is nothing nefarious. Does the tenant have any options other than to move out?
In fact, the tenant does have a way of resisting the termination of the tenancy and in my experience they tend to have a fair amount of success in at least delaying the eviction to for an extended period of time. To understand why the Board would refuse to terminate a tenancy you have to consider the circumstances of a tenant. Imagine a family with children in school. The N12, if enforced, would result in the children not being able to finish the last month in their current school (assuming that the family couldn't rent in the same area). What of a tenant who has severe disabilities, has been living the apartment for 10 years, and simply can't pack and find an accessible unit and move in 60 days. I think you get the point. There are circumstances where an N12, served in strict compliance with the law, imposes profound hardship on the tenant if the tenant is required to move out by the date stipulated in the notice.
I suppose it is only fair, if we're considering hardship stories, to also realize that a landlord serving an N12 may be serving it because of difficult circumstances as well. Perhaps the landlord needs the apartment due to a marital breakdown. Maybe the apartment is for a child who is returning home due to injury, disability, etc.. My point, is that hardship does not rest only with a tenant.
The hardship angles, and whether 60 days is enough, may be considered by an adjudicator under section 83 of the Residential Tenancies Act. This section gives the Landlord and Tenant Board the discretion to extend the time or even refuse eviction depending on the circumstances. In my representation of tenants in N12 cases I have had the Board extend the termination date by more than a year as well as outright refusals. And this has been in cases where the good faith of the landlord has not been in question. Depending on the circumstances, an adjudicator has the power to ignore the 60 days and do "justice" as between the parties.
Doing "justice" is often a subjective concept and open to critcism depending on one's views. Certainly, with respect to N12's, there is a camp that focuses the argument on property rights and that the landlord, as owner of the land, should not have to tolerate the presence of the tenant any longer than the 60 days set out in the Residential Tenancies Act. To open the 60 days to the discretion of the adjudicator is an affront to the rights of property owners. The flip side, of course, is that the tenant did nothing wrong, pays the rent, and is of lesser means than the Land Baron (landlord) and therefore the landlord is in a better position to deal with the problem of not getting the unit back than the tenant is in dealing with the problem of having to move in short order.
For me, I have argued both sides of this position depending on who my client is. To that end, my personal view does not come into it very often. If asked, I would offer the following framework to determine what is appropriate when faced with two compelling and truthful parties. I would look at the landlord and tenant relationship from the position of who is more innocent in the face of the application. In this context of an N12, I would favour a hardship argument from a tenant (and try to ameliorate that hardship) on the basis that the tenant has a legal right of security of tenure and the landlord knew that when he rented the unit to the tenant. While the tenant is deemed to know that an N12 could be served, this was only a contingent possibility whereas the notion of security of tenure attaches from the moment the tenancy commences.
So, in summary, the N12 is a fairly potent method of termination that is normally effective. The Landlord and Tenant Board does recognize the legislature's intention to allow property owners to recover their apartments for this reason and hence it is difficult for a tenant to defeat such an application. Mere inconvenience is not enough to deny the landlord its legal right to regain possession of the unit. However, in appropriate circumstances, the Landlord and Tenant Board retains sufficient discretion to delay or deny such a application where to grant the landlord's request would be fundamentally unfair.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario, Canada
Great article.
ReplyDeleteThis article just explains why fewer people are willing to rent their basements or ground floor units to long term tenants. As a landlord, I swear I will never ever again sign a one year lease with a family of 3 or more. Besides, I can make quadruple the amount I would be making with a lease if I rent short term through AirBnB or Kijiji. You, the lawyers protecting the tenants, made this housing crisis possible by ignoring the fact that most people choose to rent just so that they could afford paying their mortgages. Now, enjoy the consequences: fewer quality rentals with much higher prices - mission accomplished.
DeleteIt is funny. Has it ever occurred to you that most people who rent out a part of their homes to be able to afford mortgage payments simply do not have the luxury of starting the eviction procedure? Once they default on their mortgage payment they are kinda screwed.
DeleteAnother scenario: the damages to the unit combined with the bizzare Hydro bills while renting out all-inclusive unit. I have had that scenario in action in my house. I HAD to get rid of the tenants because I could no longer afford their presence on my property. I HAD to keep their last month deposit to pay for the restoration of the unit after they had moved out, as while they were loving there they would not let me into the unit. Sure thing the tenants has sued me and won. Sure thing I will make it as difficult as possible for them to collect on court orders.
One more thing: I will never ever sign another tenancy lease for as long as I own a property. I would rather go through the hustle of short term renting than helping out some poor bastards to have a roof over their heads. If the idea of the new tenancy legislation was to make prospective of renting out a part of your home as unbearable as it has been in my case, then the government has succeeded: there way fewer good private units available for a lease in 2015 than it used to be in 2002.
Hi Tim: I can certainly see that you are frustrated with the landlord and tenant laws in Ontario and being sued (and losing) is no fun. I hope that this blog helps people understand the law in Ontario. If you read my articles and the various responses I give to comments I hope that it is apparent that I'm not on one side or the other and I don't intend to be an apologist for the law (which is fine because the Law doesn't need me to do that). When I come out strongly in an article or in response to a comment it is when I seen a clear violation of the law in the described facts.
DeleteThat you are not renting out your place in an RTA context is certainly within your rights and choice. You have gone the way of an Innkeeper with the Airbnb which is also regulated. The short term rentals you describe through kijiji ads are quite possibly giving rise to Residential Tenancies Act protected tenancies. Just because it is short term does not mean that it is exempted from the RTA.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
What if the property is being sold and the new owner wants to live in the rental unit (my property has two residential units and one commercial unit). Since it is part of the agreement of purchase and sale how do you provide vacant possession if the tenants don't have to get out (assuming 60 days or more notice is given)?
DeleteHi: A vendor may give an N12 on behalf of a purchaser. Once the N12 is served, the vendor would file an application to the LTB for an eviction Order. Often, the closing of the purchase is delayed until vacant possession can be provided. If eviction the tenant is refused then it is possible that the purchaser will walk away from the deal.
DeleteMichael Thiele
Hi Michael,
DeleteI have a student rental property. The lease term with this student is 8 months. september 2015 to april 30th 2016. The tenant has always paid her rent on time and is overall a good tenant. she pays $400/month all inclusive for her room. After her lease ends in april, she may want to stay longer perhaps another year. However, I would like to increase the rent to $450/month for the new lease if she decides to stay longer. This is mainly due to increased costs. What is the best approach here?
Hi: To consider this question some additional facts are needed. You say it is a student rental property. Is it a student property because you choose to rent to students or is it because you have entered into an agreement with an educational institution? If it is an educational institution agreement see section 37 of the RTA. I think you are out of luck increasing the rent more than guideline. If the property is not subject to an agreement with an educational institution and she is just a normal tenant, covered by the RTA, then the tenant will have security of tenure and may continue her tenancy at the same rent subject only to a legal notice of rent increase.
DeleteMichael K. E. Thiele
If after proper notice is given to the tenant with an N12 if the tenant does not move and the purchase and sale agreement falls through because of it can I sue the tenants for preventing my sale of the building?
DeleteHello Ms. Wright: The question is not whether you can sue but whether you can sue successfully. I've certainly had landlords threaten to sue tenants and I've read a great number of lawyers' demand letters against tenants who have not moved out in accordance with an N12. I have yet to see a successful claim and I don't think that I ever will. My personal view is that the tenant can not be liable for refusing to move out in accordance with an N12. I say this for a great many reasons. The main one being that the N12 form itself tells the tenant that they do not have to move out if they disagree with the Notice. A tenant is entitled to challenge the good faith of an N12 and they are entitled to ask for relief and an extension of the termination date in the N12. Nothing in the law guarantees a landlord possession of a rental unit on 60 days notice. This is only a minimum number of days. So while I understand the frustration that landlords have, I don't think that there is any chance of success against a tenant for refusing to move out in accordance with an N12.
DeleteI do think it is possible though, to find liability in the advice of real estate agents and other advisors in the sale process. In my experience there are a great number of professional advisors who do not under the rights of tenants or the N12 procedure. If you were selling, with professional advice, I would expect that your advisor or the brokerage would have told you about the requirements to evict, the importance of immediately filing an L2 application based on the N12 and the importance of drafting clauses in the Agreement of Purchase and Sale to recognize the uncertainty of delivering vacant possession when there is a sitting tenant.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
DeleteThis is a very interesting post and thank you so much for taking the time to write about this important issue.
I am currently a graduate student in Ontario, renting from a landlord for the past 2 years. Initially, I signed a 1 year lease to rent a room within a 5 bedroom house with other students. After that one year lease ended she forced me into signing another lease (even though I expressed that I wanted to go month to month). So after my second lease ended, I again expressed that I wanted to go month to month because I defend my thesis soon but do not know exactly how long I will still be in town after that. She said that was ok, and a week later served me with an N12 and she said her and her partner are splitting up (she is a real estate agent - and has no where else to go). She is also advertising the room online (I see it as available for rent).
I plan on staying here, I am not going anywhere and I plan to seek more legal advice from the lawyer at the university. Can you offer any advice on my current situation? I would like to take her to court - there is no way I am moving in the middle of writing up a biochemistry thesis and defending in a few months. I hate when people think you are young and stupid and this situation has made me consider law as a career. I'm seriously being taken advantage of and I don't have time for this.
Thank you so much,
J.
Hi Joey: Make sure to print and keep copies of the advertisements for the room. If it is a kijijij type ad then perhaps you communicate with her anonymously to get details over price etc.. Eventually, if she follows through on the N12, she will have to file an application to the Landlord and Tenant Board. The advertisement and communication over the details (negotiations) will be strong evidence that the N12 was served in bad faith (and hence is void). All of that being said, even if she demonstrates good faith, don't forget that the Board has discretion to extend termination dates taking into account the issues of the tenant--i.e. defending thesis shortly.
DeleteI think you are absolutely correct to get legal advice and hopefully representation from the lawyers at the university (student legal aid?). While sitting back and waiting to defend an application by your landlord is one approach, you may be proactive and send a letter, especially if from a lawyer (or student legal clinic) which will make it clear to your landlord to be careful and not take liberties with you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much! You are amazing!
DeleteHi, if i just give a reason that i need more time to move, will i be granted? 60 days not enough for me, and i have explained it to my landlord, but instead of giving me more time(e.g. extending a notice period), landlord has filed an application to evict.
ReplyDeleteHi and thanks for the comment.
DeleteThe 60 day period provided by your landlord is only the minimum legal amount of notice that is required to be provided to you. Often enough, 60 days is not enough time and tenants will make deals with landlords to pick a different date that works for both parties. Unfortunately, your landlord isn't one of those people. To get a date that works for you, you will be asking the Board to extend the termination date to a different date. The authority is section 83 of the Residential Tenancies Act---it is the discretion section---that lets the adjudicator do "justice" between the landlord and tenant. As there doesn't seem to be any dispute on the merits of your case (i.e. the landlord does actually intend to occupy your unit) the inquiry in the hearing will be around the circumstances of the landlords need, your needs, and general notions of fairness. You should be prepared to outline the length of your tenancy, the nature of your tenancy, and specifically outline why you can't be out by the 60 days. Compelling reasons include finishing a course in school, a house purchase not closing for another month or two, a new apartment not being available for a month or two, having a disable child, being disabled and therefore needing more time to find a proper unit, medical reasons, poverty issues, etc.. The landlord will have his/her own reasons and it will be important to see if the landlord could indeed have provided more than 60 days notice and simply chose not to (because they didn't want you to move out sooner?). Motives are relevant.
At the Landlord and Tenant Board hearing, you will be given an opportunity to mediate. In the mediation you can push your landlord to agree to the date that works for you. Sometimes, depending on your location, you can get duty counsel to assist you. If mediation fails (i.e. no deal), you will be going in front of the adjudicator. Many adjudicators approach these cases as presumptively favouring the landlord--it will be important to quickly make it clear to the adjudicator that you are not challenging the good faith of the notice (i.e. you accept that the landlord intends to occupy the premises for residential purposes). Say clearly to the adjudicator that you are looking for more time--specifically to XXX date and that you want the adjudicator to exercise discretion under section 83 because of the following reasons (write down the reasons if you have to).
The good news is that the extension of time, especially for valid reasons, tends to favour the tenant. Remember, the 60 days in the N12 is only a minimum notice period.
Good Luck
Mike Thiele
Hello,
ReplyDeleteI have been renting out my house for about 2 years as my husband was laid off and I could not afford the home. Tenants have been paying their rent but for the past two months, they have not paid the rent. They keep making false promises and have only paid a very small portion towards their first arrears rent. Prior to the late payments, we advised the tenants that we would be moving back in the summer as my husband finally got a job. Since our Tenants have not paid their rent, we are becoming financially strained with the cost of the mortgage plus our current rent. We are now thinking we should move back into the property as we will not have enough money to pay our current rent plus the mortgage. Would we be able to move back into our home sooner so that we don't incur more debt?
Hello and thank you for writing me. Presuming that this is all occurring in Ontario and the rental property is in Ontario, I can tell you the following. You have two distinct and separate issues in the scenario you describe. Non-payment of rent is one and Landlord's own use is the second. In my view you should deal with the issues separately and not try to solve the non-payment of rent issue through the process of taking over the property for your own use.
DeleteTo deal with the non-payment of rent you should immediately prepare and serve the tenants a Termination for Non-Payment of rent in form N4. Take care to complete the form properly and serve it as soon as you can. This will give the tenants 14 days to pay the rent arrears and if they fail to pay within that time you can file an application with the Landlord and Tenant Board to terminate the tenancy and evict them. Depending on where you are in Ontario, the termination for non-payment of rent process, presuming the tenants don't pay, could take upwards of 2 to 3 months (from serving the N4 to the day the Sheriff shows up to enforce the eviction). The tenants will have lots of opportunity to be difficult and even get payment plans. Your hardship in not getting the rent you need is only a very small consideration for the Landlord and Tenant Board in deciding what kind of Order to make.
An alternative to evicting for non-payment of rent is to proceed to the Board only for an Order for rent arrears but allowing the tenancy to continue. It is rare for landlords to proceed in this way, however, it is a viable option if the tenant has a good job, you have a strong guarantor, or you are otherwise satisfied that you can "force" the tenant to pay the judgment through garnishment or asset seizures. Be aware, if you proceed in this way, without getting a termination Order, you will never again be permitted to get an eviction order for these same arrears.
With respect to your desire to move back into the home. I presume you are on a month to month lease from the fact that they have been in the unit for 2 years. If it is a monthly tenancy then you must give them 60 days Notice to the end of a term--meaning the N12 Notice of Termination Form that you serve must contain a termination date that is the last day of the monthly term (usually the last day of the month which is the day before rent is due).
The N12 Form is a longer process and the tenant's ability to resist it are different than the grounds to resist the application for non-payment of rent. On the N12 (Landlord's own use), the tenants can challenge whether the N12 has been given in good faith and they can also seek to extend the termination for whatever reason they think the adjudicator will accept (i.e. for a child's schooling, medical appointment, delay for a surgery, or any other thing that would make moving a hardship for the tenants).
Once you serve the N12 you should apply to the Landlord and Tenant Board right away to get the hearing process started and over with. I do not recommend waiting to see if your tenants move out and only applying after they refuse to move. It can take a long time to have a hearing completed and any plans that you wish to make will always have a cloud of uncertainty hanging over them. It is best to get the Board to make the termination Order and force the tenants to either accept the termination for Landlord's own use or step up and fight it.
I hope this helps you in deciding what to do. For legal advice and a thorough review of all of your issues you should consider hiring a lawyer or paralegal to take you through the nuance of the RTA and these issues. While the Landlord and Tenant Board gives the impression through its advertised processes that it is "user friendly" you will quickly discover that in a contested hearing having an experienced lawyer or licenced paralegal can make the difference between winning and losing.
Good luck.
Michael K. E. Thiele
Ottawa Lawyer
Thanks for your post. It was very informative.
ReplyDeleteOur landlords have served us with the N12 form and provided us with evidence to show that their current living conditions are undesirable (i.e., they are currently living in a home that is under renovation, and it is taking longer than they expected). They said they would move into the house for two months while some of the renovations are being completed. We believe that they will indeed do this. However, the landlord had written to us about their concerns about the “regular” noise of our young children over the past few weeks culminating in declarations that they would end our tenancy due to excessive noise and impact on the reasonable enjoyment of other tenants (there is a basement apartment). They stopped short of sending us a notice (N5). Throughout, we maintained we did not intend to leave and instead wished to try abating the noise. They offered us a monetary incentive to leave the apartment, and when we declined, they announced that they had decided to move back in.
While we don’t question that they would move in, we believe that part of their intent is to end our tenancy because of the noise of our children. Is it sufficient to demonstrate this intent to cast doubt about their good faith intentions, and would the Board refuse the application to evict on these grounds?
Hi there: You seem to have a handle on the Board's decision making process in the N12 as you ask the right questions. Unfortunately, you can't know how an adjudicator will Rule until you have the hearing and demonstrate the things you mention. Certainly, the points you raise all tend to show that the N12 was not served in good faith and that it is about "something" else--i.e. the noise made by the children. Another argument you have--which is quite strong--is over the landlord's occupancy intentions in your unit. They have said they will move in for "two" months? If you can document that, or get them to write it or give you evidence of that intention--i.e. two months---then you have an exceptionally strong case to argue against the termination of your tenancy. There is a whole line of case law that highlights that the N12 can not or should not be used to displace tenants for a short period of time or for occasional use of the unit. Combine the "noise" issues with the fact that the Landlord has no intention of occupying the premises for more than two months and you should have a strong argument to win.
DeleteThe trick to these cases--especially in arguing "good faith" is to not telegraph your arguments to the landlord prior to the hearing. If they know your angle they may change their evidence. It is rare to be able to nail down the landlord's evidence in advance of the hearing meaning they can change it for the hearing if you go them now and say "you can't take over the unit for only two months as the law doesn't support that use of the N12".
Human nature is to explain a position. Your landlord will be asking you to leave and it will be tempting to "argue" the point. Resist the urge and simply say that you don't think you have to go until the Board makes an order requiring you to leave. Get them to explain to you, preferably in an email, why they think you have to go. Engage them in that way and you have your evidence as to the basis for their intentions--in writing. Do not demonstrate to them the knowledge you have gained about the legal burden to terminate a tenancy on an N12.
Will the Board refuse---maybe, maybe not. The N12 is like a silver bullet--generally it kills a tenancy with great efficiency. A landlord really needs to screw up to give the tenant enough ammunition to defeat the application. Many adjudicators are inclined to grant the N12 on the basis that the RTA provides a remedy (though a pitiful one) if the landlord doesn't follow through on their stated intention. All that being said, the termination date in the N12 is not cast in stone. If you require a hearing, and it goes against you, the adjudicator will set a new termination date and you can argue for a reasonable time to move. In most cases (in my experience all cases), the adjudicator sets a new timeline for moving out that is similar to the original 60 day period set out in the N12. The point and idea being that you are not prejudiced for refusing to move and insisting on a hearing.
While you appear to be ready to argue this one on your own, consider having a lawyer or paralegal on stand-by for this case. The direction of the hearing can change unexpectedly and while you are prepared to argue in one direction an experience landlord and tenant lawyer (or paralegal) can perhaps exploit other defences as the case changes---for instance section 83 mandatory refusal directives.
Best of luck
Mcihael K. E. Thiele
Thank you for responding so quickly. Your insight and advice is greatly appreciated!
DeleteHi Michael, thank you for the explanation its really very clear and informative.
ReplyDeleteJust want to inquire my situation hope you can advice me on this. My landlord wrote me a notice and send it via mail a notice March 3, 2014, that I need to vacate his unit at the end of April. It is in a form letter not in the N12 form. I've been living in his unit for almost 2 years now and I signed a contract with him. Our contract specify that both parties will give 2 months notice if ever he needs the unit or I want to move out. He's reason for the notice is that he sold his house and going to move in by May 1, but I doubt it because he is leaving in a big beautiful house which he himself do the interior and he's office is at the basement where he conducts his business as an insurance consultants. He is a retiree and living alone. There are 2 things that I'm thinking either he will rent the unit in a much higher price or going to sell it, because the location is a prime area. We have a good relationship and I paid my rent on time for the last 2 years and he even gave me reference letter. I was in a panic mode when I received his letter because we are just new here in Canada and its my first time to rent. Luckily last week I've found an apartment which is close by but it will be available on April 1 so I have to make a reservation for it. I've talk to my landlord If I can move out 1 month earlier and get my April months rent (the rent for my 1 month downpayment). so I can used it for my first and last payment to the apartment thet I'm moving in. He just refused it and told me that I had to abide what was in the contract. I even write an email to him asking for his understanding and my situation shelling out 3 months rent payment.
When I read your article and do some searching regarding rights of tenants I arrange a meeting with my landlord to explained again my situation but he refused to return my downpayment and that its the time that I gave him a copies of your Blog and the residential tenancies act specifying the tenants right. He said he's going to read and study it. Last Friday he called me and he agreed to return my one month rent provided that I will show him my signed rent lease to him and said that he will give me the money. The following day Saturday I signed the least and emailed it to him. I don't know what he's planning now because up to now he just told me that we will drop by at the unit. I told him that I need to pay the 2 months by Friday.
My question is just in case he don't give me my Aprils month rent and I vacate the unit by end of this month, do I still have a case on him? If I do what should I do
Thanks
Hello:
DeleteI'm thinking about your comment and wondering how I can possibly give you a clear answer. Unfortunately, there are a number of different ways that this can play out and some of those ways are fact dependent. You have proceeded in a way that relies on the integrity of a person--meaning that the person is honourable and won't lie or distort what you agreed on. Had you been receiving legal advice during the negotiation process you would have documented your "agreement" with the landlord. The shortest and easiest way to have protected yourself would have been to sign an N11 (Agreement to Terminate) as of a particular date. The landlord would not be entitled to keep any rent for after the termination date set out in the N11.
It's not that you do not have a case, you certainly do and I expect in the end you would succeed. However, in failing to document you've made recourse to the law more difficult. All that being said, if the landlord does not return the money as agreed you may file with the Board or the Small Claims Court. Given your story, I expect that you would ultimately be successful but there is a risk that the landlord will not admit what you agreed to with him.
By the way, I presume from your comment that you figured out that your landlord was not entitled to demand what he did.
Best of luck.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteWe have been handed an N12 form from our landlord with 60 days notice to leave the dwelling. In our case, we live in a triplex where our landlord currently lives on the top unit. (we live on the bottom one with other tenants living on the top of us, inbetween the two apartments). My landlord has said that they are interested in using my apartment as additional space (i.e. they won't be moving out of their current apartment, only using ours as additional space). We've lived there for many years, and moving now is going to be very difficult for us (both financially and time wise). We've never had any issues (I would say we're model tenants). My question is this. Can a Landlord occupy two units in the same building? Would he just have to put some furniture into the apartment to fulfil this obligation?
Hi: Your are right to raise this as an issue. The applicable section of the Residential Tenancies Act is section 48. It states: "A Landlord may, by notice, temrinate a tenancy if the landlord in good faith requires vacant possession of the rental unit for the purpose of residential occupation by, ...". You should should take note of the requirement for "residential" occupation. Simply moving some furniture into the unit is not sufficient. In fact, there are a fair number of cases that deal with the degree and type of use to which a landlord wishes to use a rental unit for. Temporary full time use, leaving it vacant, for business, occasional use by landlord or child, use only a portion of the unit--all of these reasons were deemed in caselaw not to be sufficient for the purpose of terminating and evicting. Therefore the reason for the eviction (good faith) and the use to which the unit will be put are very relevant to the question of whether the landlord will be successful with the N12. Aside from also challenging the good faith of the sevice of the Notice, you can also ask the Board to exercise its discretion under section 83 to refuse or delay a termination for landlord's own use.
DeleteHope that helps
Michael K. E. Thiele
Thanks Michael. To add, I asked if a delay was possible, and they said that they need to book contractors who will be renovating the space so need me out. Would this not also fall into the N13? (i.e. if there is a scheduled renovation, and the owner intends to use the space, is the N12 sufficient)? Ultimately, the reasoning they have given me is that their daughter is now 11 and they need some extra space for her to hang with her friends, etc.
DeleteHi: That there will be renovations to the unit is not surprising and in fact is quite common. An N13 (conversion, demolition, repair) is the appropriate notice if vacant possession is required to affect repairs after which the unit will be rented again. The N12 is appropriate so long as one of the eligible persons under section 48 intends to occupy the premises for residential purposes--even if there will first be renovations. Note that just because there are renovations does not mean that the renovations would have been enough to require the service of an N13. The N13 may only be served--for repairs--if a building permit is required in addition to vacant possession. The focus in your situation I think is still on whether this is in good faith for residential occupation or whether it is a way to get you out so that they can renovate and re-rent at a higher rent to someone else.
DeleteMichael K. E. Thiele
Hi Michael,
ReplyDeleteYou mentioned twice in this page's thread that case law has shown that a landlord's occasional or temporary occupancy of the repossessed unit was deemed insufficient for an N12 to succeed.
Would it be possible to point in the direction of this case law?
Hi Thomas: A couple of quick ones from Fleming's text Ontario Landlord and Tenant Law Practice 2014. Lackner v. Smith, [2001] O.R.H.T.D. No. 69 (O.R.H.T.)---The summary from Fleming says "The landlord was not entitled to evict tenants so that his son could have a place to stay occasionally when he did not want to drive home". Next case: MacDonald v. Richard, 2008 CarswellOnt 638 (Ont. Div. Ct.). The summary from Fleming says "Temporary full-time occupancy for four months dies not constitute the purpose of residential occupation int he RTA. The decision sites Wiazek v. Armstron. [1994] O.J.; No 2737 (Ont. Gen. Div.) for the supporting proposition that a landlord cannot evict a tenant to provide accommodation for his daughter during summer break from school, although it incorrectly identifies Wiazek as a Divisional Court decision". And one more: Re File No EAL-06988, [1999] O.R.H.T.D. No. 10 (O.R.H.T.)--Flemings summary of the case "The landlord applied to evict the tenant, as the landlord's own residence had to be vacant for six months to effect repairs and he required the tenant's unit for his own accommodation. A six moth full-time temporary occupancy did not meet the requirement of the Act. Application dismissed." And why, not---another one is MCDonald v. Smith, [1993] O.J. No 1680 (Ont. Gen. Div.) Fleming summary: "The landlord wanted to use the property occasionally, when travelling that way for her work, for weekend visits, and for use by friends or family. The application was dismissed as the rental unit was not intended to be the main residence of the landlord."
DeleteThere are several other cases mentioned in Fleming's text. If you are inclined, you could also search on www.canlii.org . It is a free Canadian caselaw site.
Michael K. E. Thiele
Thanks Michael.
DeleteKeep up the good work.
Hi,
ReplyDeleteIf I have left my apartment because of the "personal use" clause but now feel that the personal use hasn't been fulfilled do I have any recourse or am I stuck since I have vacated the apartment?
Hello: You may file an application against the Landlord. The appropriate form to look at is Form T5. You can access the form online by going to the Landlord and Tenant Board website--search for the forms. There is a guide that you can review as well. Whether it is worth it depends on your specific facts so it is difficult to comment on whether you should do it. The applicable section of the RTA is section 57 [Former Tenant's Application where notice given in bad faith]. Read the whole thing but look specifically at section 57(3) which sets out the kind of orders that you can get.
DeleteGood luck.
Michael K. E. Thiele
Ottawa Lawyer
Ok and if I file the application what good does it do me? I'm already out?
DeleteThat's why I referred you to section 57(3) RTA. It says what kind of remedies you can get---it comes down to money.
DeleteAhhh ok. If you would indulge me, my landlord said it doesn't matter. Something about being out for 72 hours and thus it's abandonment. Any situation that works with a notice like this?
DeleteSorry, "something about being out for 72 hours" doesn't mean anything in relation to abandonment of a rental unit. It does with respect to picking up property after an eviction by the sheriff---but we're not talking about that? If your landlord served you with an N12--eviction for landlord's own use--and then it appears to you that the N12 was served in bad faith--then the application to bring is in form T5. Abandonment doesn't factor into this. If you left your property behind when you moved out then the issue may be about what landlord does with a tenant's property. If that is the issue let me know. Otherwise, what I said at the beginning stands.
DeleteBest
Michael K .E. Thiele
you've been super helpful, thanks!
DeleteMichael, thank you for the very informative blog. My tenant is dragging his feet on paying rent after I served him the N12 back in May with a termination date of July 31. Looks like he's taking advantage of the situation and wants to play hard ball. I suspect the N4 is not applicable in this situation. What can I do to collect the June rental from him?
ReplyDeleteHi: You may still serve an N4. Serving an N12 does not prevent the service of any of the other Notices of Termination. Alternatively, if your tenant is not judgment proof (i.e. has a job, assets) and would in fact be bothered by a judgment, consider simply filing an L9 application to the Board. The L9 avoids the use of a Notice of Termination which means that for the particular rent arrears you apply for that you can never get termination of the tenancy. However, you will get an Order for the rent arrears that you may garnish or enforce like other judgments through the small claims court. Note that this is really only an option if your tenant has assets--this is not a good idea for tenants who are in receipt of any kind of government assistance as they are judgment proof.
DeleteLastly, as you have served the N12 you should consider filing the L2, based on the N12, so that you can get a hearing date and have the issue determined (i.e. whether the Board will enforce your N12). You may combine the L2 & L9 into one application for one fee of $170.
Michael K. E. Thiele
I must say I love Alberta and never will own/ rent property in Ontario. In Ontario paying rent is optional. It is common suggestion to bribe tenants.
ReplyDeleteIn Alberta if you don't pay rent after two weeks you get evicted - it takes a bit for the sheriff to come and throw you out. There is NO recourse. There is no appeal. You pay or you go. Man I love it. Tenants love it. Honest people love it. In Ontario you have professional tenants that don't pay for up to a year.
Hi: Thanks for the comment. I've heard this opinion many times before and of course I've heard the view expressed that landlord's have all the rights as well. I'd be surprised if Alberta is the panacea you describe--even honest people fall on hard times or have unexpected and unfortunate things happen to them. To celebrate the idea that such tenants can be evicted after two weeks without any recourse is to blindly ignore that what happens to them could happen to you, to your friends, and to your family. Justice has many faces and in my opinion the best legal systems allow the exercise of judgment by impartial arbiters to essentially do what is fair. I'm not an apologist for the Ontario system. The totality of the articles in this blog should demonstrate that the biggest failures in the application of the law arises when either the landlord or the tenant fail to learn the law or to follow it. Often enough I meet with landlords who think that mere ownership of land makes them some kind of feudal lord with dominion over their tenants. It is simply absurd that people invest tremendous sums of capital into rental properties, rent them out, and simply don't bother to learn what the law actually says (as opposed to what they think it should say).
DeleteAnyway, you may be right that Alberta's system is better, but in the end a lot of people live in Ontario, a great many of them rent, and landlord's do make money in this province. The successful ones do it by knowing and following the law.
Michael K. E. Thiele
Wow, thanks for the detail and quick response. One more question. The N12 was served via return registered mail. However, my key means of communication with the tenants had been via email. Wonder if I can use these channels to serve official notices...
ReplyDelete1. via email?
2. slip it underneath the entry door?
Hi: For the legal ways to serve a Notice or Application take a look at section 191 of the RTA--it sets out all of the "legal" ways. Further, Rule 5 of the Landlord and Tenant Board rules gives more guidance. The RTA and the Rules can be found on the Landlord and Tenant Board website. Sometimes, if service has been made in an unauthorized way you can validate that service if you can prove that the tenant did get notice of the document through the otherwise unauthorized method of service.
DeleteServing by registered mail is not a great idea. Regular mail is deemed served 5 days after mailing. Registered mail is never served--unless picked up by the tenant--and it is not a recognized method of service. Via email may be compelling evidence of service but it isn't officially recognized. You can solve this problem with a regular stamp, hand delivery, or sliding under the door. By all means feel free to serve a duplicate copy by email--there is nothing wrong with making sure the tenant has the notice. On top of service issues take into account the computation of time rule. Serving by mail deems the notice served 5 days after mailing--the method of service can therefore affect the validity of the Notice of Termination if you don't allow enough time for the serve to be affected and enough days for the termination date.
Good luck.
Michael K. E. Thiele
Hi: I had a flood in my apartment on April 4, 2014 (Basement Suite). This flood resulted in the flooring and walls having to be immediately torn out of the master bedroom. The repairs were not completed until July 4, 2014. I paid my full rent during this period despite the musty dirty smell and being without one of the two bedrooms (stupid me felt sorry for the landlord) After the repairs were completed, I have 4 documented unauthorized entries into my unit by the landlord. Today I received an N12 notice from the owner stating that they had sold the house and the purchaser wants the space for their personal use. I have a couple of issues with this.
ReplyDelete1. There was never any notice given that they would be showing the unit and I find it very hard to beleive that someone would buy a house without seeing the basement.
2. I discussed with the landlord waiving September's rent in compensation for having to move and for the 3 months in which the apartment was only minimally habitable. The landlord has refused to entertain my request.
At this point I would like to file a complaint with the Landlord Tenant board but want to be sure that it is worth my while.
I do plan to be out on the date required October 31, 2014 is what the notice says but they keep saying November 1.
The question is: Is it worth my time to go before the tribunal?
Hi: It is impossible for me to say whether it is worth your time to go to the Tribunal/Board. The illegal entries, if proven, give you a right to a remedy. The financial remedy varies depending entirely on the circumstances and impact on you. The N12--if you doubt it--can be challenged and you have the right to challenge the good faith of the Notice. If you refuse to move the landlord would have to apply to the Board and there would have to be an affidavit from the person who intends to occupy the premises setting out that intention. You could challenge the N12 and make the landlord prove the intentions of the purchaser. From your comment you seem to doubt the existence of a purchaser because no one looked at your unit. Refusing to move and requiring the landlord to file an application should result in greater certainty that this is not a "fiction".
DeleteWith respect to the interference with your quiet enjoyment arising from the flood you could indeed make an application in Form T2 and/or T6. You could ask for an abatement of rent and perhaps damages for loss of property arising from the flood. However, before going down one would need to assess how the flood occurred. Were you responsible for it? If so, you may not only get no damages you could be sued by the landlord's insurer for the costs of repair (if you were responsible). My point is that how the flood happened is significant in determining whether you are entitled to any relief. If the flood was caused by the negligence of another tenant you might also have recourse against that tenant. Again, the point is that "how" the flood occurred matters in law.
You will see in most standard leases that the landlord excludes damages caused by water infiltration into a rental unit. For the damages contemplated by this exclusion it is expected that a tenant would have insurance. So, all that being said, you just might have a claim for the lack of use of your premises during the repairs--but the circumstances matter.
I hope that helps frame the issues for you a bit and that you may more easily decide whether to take this to the Board.
Michael K. E. Thiele
Hello, I was wondering if the same laws apply if the unit is not self contained. I have heard that room rentals have different rules.
ReplyDeleteI share the kitchen and bathroom with the landlords who are upstairs. I have my own living space and bedroom.
They want to evict due to wanting to use the space for themselves. As well as doing extensive renovations. I don't believe they plan to re-rent the unit or sell.
There has never been a lease. I've always paid month to month. How much notice do they have to give me? I don't believe I can find anything affordable in 60 days, there isn't much available. Thank you
Hi: The law applicable to rooming houses is the same law that applies to apartments generally. The Residential Tenancies Act provides the same kind of protection to roomers in rooming houses as it does to tenants in self contained apartments. However, your situation is likely not covered by the RTA--but that is not because you are in a rooming situation. There is an exemption from the RTA if a tenant is required to share a kitchen and/or bathroom with the landlord and this situation existed at the time of the commencement of the tenancy. A tenancy is that is exempt from the RTA will generally be governed by the terms of the written contract. There are no statutory notice periods because there is no statute that applies to these kinds of exempted relationships. If the agreement between you and the landlord does not adequately address the issues (i,e, length of notice of termination), then a Court (if a lawsuit followed) would likely consider the issues from a perspective of fairness and and what a reasonable person would expect. To be clear, you are not in a strong position if your relationship with your landlord is exempt from the RTA and the written agreement with the landlord is vague or non-existent. The landlord in such circumstances holds virtually all of the cards. While finding something affordable may be difficult, please note that you may not even get the 60 days that you are assuming would be allowed to you.
DeleteGood luck.
Michael K. E. Thiele
I have a problem. i gave my tenants the form N12 because my daughter who is forty needs the premises. she moved in with us after her divorce but is now ready to forward with life. the tennnats then became beligerent and stopped paying rent. I gave them a form for late rent. In one day it will be sixty days they have not moved. what is my next course of action?
ReplyDeleteHi:
DeleteI will presume that you completed the Form N12 correctly and that you served it in accordance with the requirements under the N12. As you will see from the notes at the bottom of the Form N12 (pre-printed on form) the notice advises the tenants that if they disagree with the Notice that they do not have to move out. When the tenants don't move out--like yours have not moved out--or at any time that you suspect they might not move our you can file an application to the Landlord and Tenant Board based on the N12 notice that you served on the tenants. To apply to the Board you will need a Form L2 as well as a blank certificate of service as well as a blank affidavit. What you need to fill out on the form makes sense just from the form itself. The Certificate of Service needs to be completed and signed by the person who served the N12. The affiavit needs to be sworn by our daughter. She needs to certify in the affidavit that she in good faith requires the rental unit for her own personal use (section 72 RTA). As the document needs to be commissioned you may wish to have your daughter attend at the Landlord and Tenant Board with you as they can commission her affiavit there (she shoudl not sign it until she is in front of the commissioner--the commissioner will be the clerk behind the counter). The Board will issue the application and return an issued application and Notice of Hearing to you (two copies). You will need to serve the Notice of Hearing on the tenants. The cost will be $170 to issue the application. On the scheduled hearing date you should turn up to explain your case and ideally, if your daughter is available, have her attend as well. The Board will decide after the hearing whether you require the rental unit (in good faith) and they will make an order terminating the tenancy and evicting the tenants. The time-line of this Order can be many more weeks away or even denied if the Board does not believe you. As this is an important Hearing-given that you need the place for your daughter, you may wish to consider hiring a lawyer or paralegal for this hearing as it can get a bit tricky.
With respect to the non-payment of rent--you should serve a Form N4 (Notice of Termination for Non-Payment of Rent). 14 days need to pass before you can do anything with this notice but presuming that the tenants don't pay and your L2 application based on the N12 has not been resolved and the tenants have not moved out, you would file an L1 application on the day after the termination date set out in the N4 Notice.
All of these notices must be absolutely correct otherwise you will have to start over. Starting over costs money and of course time. Note that if the tenants move out before you are able to file your L1 application you would need to sue them in the small claims court for the rent arrears. To avoid this, and if you are confident enough that your L2/N12 will be successful you could avoid serving the N4 and just file an L9 along with the L2 form. This would give you an order for termination and eviction on the N12 as well as a Judgment for the rent arrears. The risk of proceeding with an L9 and not an N4/L1 is that if your L2/N12 is denied you would never be able to evict the tenants for the rent arrears covered by the L9 application.
For more notes and guidance take a look at the Guides that are available on the Board website where the forms are located. That being said, these processes are complicated and tricky for people who have not done them before. Consider hiring a lawyer or paralegal to take you through the process the cost of representation will be well worth it if you avoid the frustration and aggravation that so many landlords complain about after appearing at the Landlord and Tenant and losing a case they thought they were guaranteed to win.
Best of luck.,
Michael K. E. Thiele
Ottawalawyers.com
Hi there, what happens if the n12 form was not completed correectly?
DeleteHi: If an N12 is not completed correctly and the error is with respect to one of the mandatory statutory requirements then it is void and unenforceable. The Landlord and Tenant Board has no power to overlook or correct a fundamental error in an N12.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael
ReplyDeleteI've been living in this apartment for almost two years and my landlord and I have had an amicable business relationship until July 1st.
On July 1st, at around 6pm, we got into an verbal altercation over a cable box. Cable is included in the rent and I have been asking her for several months for a cable box because channels are progressively chipping out. Some time in May, she finally provided with a cable box that she wasn't using. On July 1st, she texted me asking for it back because her own stopped working. I said to her whether it was possible to wait until tomorrow to get another one. She texted me back saying that she just wanted it back. I responded by saying whether we can discuss it over the phone instead of simply texting. She immediately text me back saying that she will call the police if she doesn't get back her box. I finally called her and when she answered she told me that she was coming to my front door right now and she expects to have the box back. Because I was really surprised at her outlandish response to call the police on me, I decided to record the conversation that I had with her at the door. When we spoke, she seemed quite calm. When I finally told her that I was very upset at her for threatening to call the cops on me over something so trivial and pathetic, she walked away and I slammed the door. I was angry.
Later, when I went online to search of a new cable box, I realized that I needed a particular model number. Over the span of about 2 hours. I tried contacting her. I sent her a couple text messages asking her which model number it is. No response. I called her a couple of times. Again, no response. I realized that she was ignoring me.
ReplyDeleteAt around 8:45pm, I finally sent her a text saying that I find it quite immature and ineffective that she's ignoring me and also said that I reckon that she wouldn't like it if I did that to her.
Two hours later, at approximately, 10:54pm, I hear a very loud knocking at my front door. I didn't answer it because the knocking was inordinately loud and I simply didn't know who it was. About a minute later, my landlord calls me saying to come downstairs because she has eviction papers to give me. In all honestly, Michael, I wasn't even surprised. As a matter of fact, I was on the Landlord and Tenant Board website a couple hours earlier researching valid grounds for evicting a tenant.
It's part of the reason I decided to record the conversation between my landlord and myself earlier. The same person whose willing to call the police over a cable box is probably the same person who is going to try and evict me for a foolish reason.
When she gave me the N12 papers, I told her that I knew she was going to do this and that I have absolutely no interest in moving out. I also told her that her n12 form was invalid because it was set for the first of the month. Termination date on an n12 should be issued for the end of the month. I told her to reissue me another one. As you can tell, I was definitely trivializing this eviction. I found it funny and I was being quite sarcastic in our texts. She finally reissued me another n12 putting the eviction to the end of August, not September 1st. After receiving the amended n12, I made it clear to her that I don't need to move out and that the next time you contact me will be when we serve me to appear before the board.
Part 3
ReplyDeleteOn August 28th, my landlord then served me with papers to appear before a hearing. When I called the Landlord and Tenant Board, they told me that the landlords reason for evicting me is because "the basement has become unlivable."
I don't believe this.
After she served me the first n12, at almost 11 o'clock at night, I started to text her, making it aware to her that you can't evict a person out of malice. Not ONE time did she ever debunk any of these assumptions that I've had by telling me that she needed it because the basement is no longer livable. If this were the honest reason, I would move out. No problem. I'm very easy going.
I think that given the circumstantial evidence that I have i.e- text messages, call logs, etc, I want like to know what my chances are to beat this. Is it true that all she has to prove is that she will be occupying the residence? Because I think it's quite obvious that she's trying to evict me out of malice. I think this is a common sense case. But I could me wrong.
Please help.
Thank you
Hi: There are a couple of things that you should do to get ready for a hearing. Firstly, take a look at the applicable sections of the RTA. That is, section 48, 72, and possibly 83. Further, the Board's comment to you (on the phone) that the reason given is that the unit has become unlivable is a statement that has to come from somewhere as the person on the phone from the Board would not just make this up. I presume that the landlord wrote this statement in an affidavit that was filed with the application. This affidavit is the document required by section 72 to be filed with the Board. Note that it would be unusual if you were given a copy of the affidavit--normally it only stays on file at the Board. You should attend the Board office and get a copy.
DeleteWhen you read section 48 in conjunction with 72 it will be very clear that the purpose of the N12 is to allow the landlord to occupy the residential unit for residential purposes for her own personal use and that this is a good faith requirement. Compare the requirements of these sections to the evidence that you have and it seems that you have a strong argument to refute the 'good faith" component of the statutory requirement. Once you get her affidavit it will be interesting to see what she wrote in it and to compare the statements in it to the statutory requirements as well.
Your chances are good, especially if your version of the events is believed. However, if you should lose or the adjudicator does appear to be inclined to grant termination you may have recourse to section 83 to extend the termination date to a reasonable date for you to find a new home and move.
On how you describe the facts I do believe that you should win. However, it is worthwhile to consider the spin that the landlord would put on the facts and let us presume for a moment that the landlord will testify truthfully at the hearing--but from her own perspective. What happens if she recounts the story about the cable tv box in more or less the same way and that she believes that you had no right to the box. She testifies that she believes that your refusal to return the box was theft and hence she was within her rights to call the police. What if she testifies that she thought he confrontation at your door was out of control and that she felt you were being aggressive and she feared that the situation would escalate to the point of you doing something foolish (i.e. violent). If she states all of this and then says, I've decided that "I don't want to be a landlord any more" and that it is her intention to incorporate your living space into her own home (I'm presuming you live in her basement?). If she testifies in this way, acknowledging the confrontation with you, then your anticipated defence to her application by proving the motivating reason for the N12 will fall flat. Her credibility will remain intact and the question will then become whether she may evict you to incorporate your unit into her living space (as presumably she does not intend to move into the unit). That would make relevant what her intentions are with respect to your unit. Will she say that she intends to just leave it vacant? Will she say that she will look for a different tenant? What will she say about her intentions relative to the unit? Consider those possible responses to the test in section 48 and 72. The wrong answer, relative to the test, mandates a dismissal of her application.
DeleteLastly, consider section 83(3)(c) of the RTA. This section requires the Board (through the use of the word "shall") to refuse to grant an application where satisfied that (c) "the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights" . If she testifies truthfully about the cable box incident, and you testify that you were getting her to do what she is required to do under your lease (remember bring a copy) in providing a cable box then were you not trying to enforce your legal rights? If this incident of your trying to enforce your legal rights is the basis for her deciding to terminate your lease via an N12 does the RTA not mandate a refusal of the termination under section 83(3)(c)?
Overall, I can't tell you whether you will win or lose. I hope that I've conveyed to you that the answer to your question really depends on the evidence and how it comes out. A good understanding of the relevant sections is imperative as you should really think about your own evidence and the questions you will ask her (through cross examination) that speak to the legal tests imposed by the statute (i.e. get her to testify about intending to occupy the premises for personal use, that the Notice was served in good faith, that she decided to serve it after you became a nuisance about the cable box). It is how you elicit answers and evidence from her, that either supports or contravenes the requirements of the RTA that determine whether you will win or lose.
Good luck
Michael K .E. Thiele
Thank you so much for responding to my message, Michael. I really appreciate it.
ReplyDeleteI just have several follow-up questions.
With regards to the cable box, I don't think that she would have evicted me on the basis of me being a nuisance about the cable box. In the recording, she told me that I should start purchasing my own cable, which implies that she had no intention wanting me to leave. I think my landlord wanted to evict after I sent her a text saying that I found it immature of her to ignore me as I was asking her for a particular model number. Two hours later, I get eviction papers.
She may say that the our conversation was aggressive and she feared that it may escalate to something violent which prompted her to serve me with an N12, but if anyone were to listen to the recording, they would realize that our conversation was cordial and calm until I told her that I was very offended that she would want to call the cops. I never cussed at her. I didn't raise my voice. When she walked away, I slammed the door.
I think it would be difficult for her to even think that I was stealing the cable box. It would be a premature conclusion to jump to. As indicated in the text messages, I asked her if we could simply talk about it over the phone instead of texting. I don't think that demonstrates theft. When I asked her that, she then threatened to call the cops.
My court date is in 2 weeks and I'm not even sure if I should go. My reasons are, 1) I plan to be moving anyway but I'm not sure of the date 2) there is a chance that I may lose. She may get a friend to testify that she has been living with them because of the unlivable conditions of the basement. She may gather false evidence; 3) because I know that she will be advertising this place for rent in the imminent future, I reckon that I should just wait until I find the advertisement, gather up relevant evidence, then take her court.
Also, this a three story home. She occupies the main floor and basement and I live upstairs on the third floor.
Her grounds for evicting me is that the basement is now unlivable and she wants to occupy the upstairs.
In fact you simply cannot use the recorded conversation in place of an evidence considering other party involved being unaware of the conversation being recorded by you. Period.
DeleteSo you are easy going enough to move out ofsome old ladies basement, but not easy going enough to return the cable box she probably needs way more than you? Yeah, right....
Hi: I'm not sure about allowing people the opportunity to comment on other comments and I normally don't allow them to be published on this blog. The reason is that many of the comments are judgmental about the activity and not focused on the legal part of the relationship which is the point of this blog. In this particular instance I've allowed the comment to post because of the pervasive belief reflected in the comment that "recorded conversations" can't be used as evidence. In fact this is untrue. The recorded conversation that is described in the earlier comments and the manner in which it was recorded can certainly be introduced into evidence at a hearing. That the landlord did not know she was being recorded is irrelevant. In fact, all sorts of evidence that would not be admissible in a criminal court or even in a Superior Court of Justice in a civil context are admissible in evidence at the Landlord and Tenant Board. The Landlord and Tenant Board, as an administrative tribunal has far greater latitude in the kinds of evidence it will accept. Hearsay, for example, is admissible in evidence at the LTB and in many other administrative law tribunals. Recordings of conversations are admissible in evidence whether or not the recorded party knows of the recording.
DeleteAs with all kinds of evidence, the question is how is that evidence introduced and entered in the proceeding. In the example of a recording, what is the use of it and what is it intended to prove? While an adjudicator may let you just play a recording it would not be surprising if an adjudicator required you to first put the subject matter of the conversations to the person. Only if the person denied the incident that the recording proves would it be proper, in my view, to enter the recording as evidence. A recorded person has the right to explain the context of there recording and testify generally about the circumstances and to refute or challenge the recording.
Michael K. E. Thiele
www.ottawalawyers.com
Hello, our tenants filed a T2 after being served an N8and N12....we were recently in court and it was ruled that it was not in good faith, we were told by the member that we could file again, which we did. The tenant informed us that they filed a T2 claiming harrasment.
ReplyDeleteHi: There isn't much I can comment about. I presume that the dismissal for "not in good faith" is in relation to your N12. The N12 is for landlord's own use--basically meaning that you or any of the other permitted members intended in good faith to occupy the premises for residential purposes. If the Board dismissed this application on the basis that there was no "good faith" the Board is essentially saying that they don't believe that at the time of serving the N12 that you (or any of the permitted members in the N12 form) had any intention of living in the unit. Without having the facts from you it is impossible to comment. Certainly though, just because an N12 is dismissed does not mean that you can't serve another one in the future (but it also doesn't mean that a future one will be successful).
DeleteAs for a T2 application. Certainly a tenant can file an application but that does not mean that it will be successful. The tenant will have the burden of proof and will need to provide evidence to the Board.
Good luck
Michael K. E. Thiele
I moved into the house I'm living in now in August, 2010. My rent was $1600 per month plus utilities.
ReplyDeleteThe lease expired in 2011 and so transformed into a month to month tenancy.
The original landlords have sold the house to new landlords who took ownership of the house on July 31st, 2014.
The new landlord asked to meet with me in July where he presented me with a lease agreement. The agreement specified a monthly rent of $2 300.
In an email I received July 21, he said "I will be more than happy if you do decide to stay". In a reply email on the same day, I asked for clarification if he was intended to move his family into the unit. In his response, he said "obviously my goal is that I want you to stay". He gave me a deadline of July 29th to reply to his email.
In an email I received July 28, the landlord repeated his demand that tell him "what you intend to do?" He also stated "If I do not hear from you by the end of tomorrow, I will formally file to have the house taken back for my own family's uses."
In his email on July 29, he once again repeated his demand:
“At this point I still do not have a decision from you whether you want to stay under our new arrangement or you want to find another alternatives? Today is the last day before I serve the papers to the tenant board and have the property taken back for my family’s own personal use.
So if you can help me shed some light into these outstanding questions, that will be much appreciated. If I do not hear back from by the end of today, I will file the paperwork with the Tenant Board and you will have 60 days to find another accommodations.”
And finally, in another email on July 30, after having dropped off a ‘Notice to Terminate a Tenancy at the End of Term for Landlord’s or Purchaser’s Own Use’ he escalated his threats to say (capitalisation his own):
“From today onward, you will have approximately 60 days to find another accommodation, you MUST MOVE OUT OF THE RENTAL UNIT BY SEPTEMBER 30TH 2014. If by than you still have not vacate the property, than a formal EVICTION NOTICE WILL BE FILES and I really hope that we will not have to come to that stage. Because by having a formal eviction notice register on your profile, it will damage you credit rating and also your renters profile permanently. These days when a tenant applies to rent a property, not only will the landlord be looking at their employment, credit scores, references etc..., the first thing they will look for is “has the tenant ever been evicted from a property” if they discover that the tenant has a eviction history, than the likelihood for them to find a meaningful rental will be extremely compromised.”
I filed a T2 against him on the 1st of August (the first day he actually became my landlord) and he served me with a N12 notice the same day. In early September, we had the tribunal hearing for my T2 and he agreed to have his hearing at the same time.
The tribunal member looked at the two applications, noticed that the landlord had made a clerical error and dismissed his case. Given that the landlord’s application was dismissed, I withdrew my application.
Here we are a week later and the landlord has filed again on the same grounds (but fixing his clerical error)!
In the meantime, I have found out that the landlord lives in a very fancy house. MLS lists houses on his street for sale at over $2 million. Compare that to my house which is a double attached townhouse with four lanes of train traffic directly behind the house. He told me that he bought the house for approximately $600 000. I don't believe that he will move into my house.
I’d like to have a better sense of my chances of winning. Does the above communication show enough bad faith that his application would be dismissed, in your estimation? I want to keep living in the house paying the same rent (with a nominal increase if need be). Should I bother with this application or am I tilting at windmills?
Hi Mr Clarke: The facts you describe are tremendously in your favour. If this is the full story it is difficult to see how the landlord can ever meet the requirements of section 48 and 72 of the RTA. Further, his statements to you about destroying your credit etc. etc. amount to harassment and I see the N12 being served as punishment for refusing to agree to what I presume is an illegal rent increase (I presume that it's illegal (some rental units are exempted from the guideline) because the landlord could otherwise have just served you with an N1 to increase the rent to whatever amount he wanted).
DeleteI would consider the argument that refusing to pay the increased rent was you insisting on your legal rights. The consequence for enforcing your legal rights (not to pay an illegal rent) was the n12 and the threats that came with it. If you feel you can make this argument on a factual basis then take a look at section 83(3)(c) RTA. Under this section it is mandatory for the Board to refuse the application if you make out facts that support the criteria in this section.
I can't say whether you should bother or not or whether fighting with this landlord is ultimately worth it to you. The most I can say is that based on the facts you provide you have a good case and it is reasonable to expect that you would have success at the hearing. That being said, every case is 50/50 and it all depends on how the evidence comes out and how the adjudicator perceives the evidence on the day of the hearing.
Michael K. E. Thiele
Here's an update to my case!
DeleteI won! I argued my case, presented all the emails and the Tribunal ruled in my favour. I'm still in the house and the landlord has adopted a much less aggressive posture.
I think everyone faced with this situation should at least try to stand up for their rights. Get your landlord to say their threats in writing if at all possible. That really was the key to my case.
Thanks Michael for the encouragement.
Congratulations---I am very pleased for you.
DeleteMichael Thiele
You are absolutely right, Michael, but ignoring the fact that landlords are also people who fall into being subjects to political games (one of which is to substitute the affordable subsidised housing with forcing landlords to provide such housing at their own expense), this would be just as incorrect as feudal approach some owners may take towards their tenants. Have you ever tried finding out how many people have lost their condos and bungalows to the banhs after their tenants failed to pay their rent? I have. The answer is terrifying: thousands. Now explain to me, why should I care about other falling onto hard time while experiencing those hard time for the past 20 years, since I have moved to Canada and sold everything I had back in my home country. Would you kindly explain toe whose hard times are harder, mine or some Korean family that hasn't bother to learn English after loving here for 15 years, but educated themselves very well in terms of their rights as tenants?
DeleteHello,
ReplyDeleteGreat article.
I am hoping to get some feedback as I have never been evicted nor been to a hearing before.
Three days ago my landlord gives me a letter asking me to move, giving only 45 days to leave and saying the reason was for renovations after afterwards his sister would be using the apartment.
I got in contact with him and explained that 45 days was not legal, his sister was not immediate family and that if he wants me evicted he should do it legally, by filing a N13 for the renovations.
Today, he gives me a N12 stating that the reason is because his son wants the apartment, and has given 60 days notice. My hearing is set for next month.
I have never missed a rent payment, have the letter he gave me 3 days prior saying reno's and sister, but not much else. No lease, no rent receipts (never gave) though I do have a years worth of cheques (double sided).
I do want to keep the apartment as rent is very low, it is spacious and well situated, nothing else in the area is near its price range.
So what can I expect?
And in your opinion do I have a shot at winning?
Thank you
Hi: A landlord may only serve an N12 if he (or the person named in the N12) in good faith requires the rental unit for residential purposes and personal use. Take a look at section 48 and 72 of the RTA. The question you then have to ask yourself is whether the landlord can meet the legal test imposed by these sections in the context of the facts as you have described them. Does he have a brilliant answer to explain why his sister no longer needs the place but his son does? The renovation angle is interesting and I trust you suspect that he intends to renovate so that the unit can demand a higher rent and then not have his son move in? While the son does not have to appear at the Board, you could question the landlord about the son's intentions and see if he intends to occupy the unit in a manner consistent with the requirements under the Act--for example, if the son is enrolled in university in a far away City maybe he will testify that he intends to occupy the unit only when he is home for the summer. Occupation on a full time temporary basis is a basis for the Board to dismiss the application. There are many other examples and fact circumstances where the Board simply refuses the eviction. The grounds range from simply not believing the landlord to the exercise of discretion when continued occupation of the rental unit is more important to the tenant than it is to the landlord.
DeleteAs far as what you may expect at a hearing. Presumptively, the Board will be looking to terminate your tenancy. Without hearing anything the Board will lean in favour of the landlord because the law allows for termination for these reasons even though it is unpleasant for a tenant. This is a no fault eviction meaning how good you are as a tenant is irrelevant. You can turn this leaning of the Board by cross examining and showing the Board evidence of bad faith. You may also have success in calling into doubt the landlord's intentions through cross examination.
Do you have a shot at winning? Absolutely. Tenants win these cases all the time. However, they also lose these cases all the time. Whether you win or lose just depends on how the evidence comes out and how the adjudicator views the case.
Best of luck to you.
Michael K. E. Thiele
Thank you for answering the previous question. The Rent is due today and I asked the Tenant for the rent and he advised me to refer to the T2 form filed. Michael as the tenant filed a T2, does that mean they do not have to pay the rent?
ReplyDeleteWhat can I do to get the rent paid?.
In regards to the harassment claim, we have been very understanding with the tenants giving us partial payments for 6 months, and now they are claiming harassment. I showed up at the home, and I did not enter the premise, The tenant was verbally abusive and I refused to speak to him. we have been very patient, what can I do to protect my family.
Thank you,
Kathy Lewis
Hi Kathy: The T2 application does not allow the tenant to not pay the rent. It is possible that as a result of the T2 hearing that the tenant might win a rent abatement but that is something for the adjudicator to decide. In the interim, the tenant remains responsible to pay the rent. Given that the tenant has not paid, you should proceed with serving an N4 Notice of Termination for Non-Payment of Rent. Note that the timelines on this notice are very strict and you must fill out this form precisely otherwise you risk it being void and having to start all over again. The N4 will allow the tenant a certain period of time to pay (typically 14 days) and if they do not pay then you may apply to terminate and evict starting on the 15th day. To start that application you will need a form L1.
DeleteGood luck. Don't wait to serve the N4 or to proceed with the L1 once you have waited the required 14 days.
Michael K. E. Thiele
Michael you are Wonderful, God bless you for taking the time to help. I just read over the T2 and I am in disbelief at the lies written about me, due to fact that the tenant is experiencing financial difficulties, and this is causing stress on his family, he is now claiming that it is based on me harassing him and his family, that is why his spouse is not doing well in school and his daughter is unable to sleep. Is there nothing I can do to fight this, or will I just show proof on the day of the hearing. It is truly sad because I have been nothing but understanding with the tenants, and this is how they chose to repay me.
DeleteKathy Lewis
Sorry Michael, it's me again lol. I just received an email from the tenant stating that Rent has been suspended because we did not provide him with a copy of the lease agreement which he signed on Oct 2013 to renew the lease. he quoted. "sec 12(2)(4) of the Renters Act 2006"
DeleteHi:
DeleteThe section that your tenant cites provides as follows (note there is no "Renters Act" it is the Residential Tenancies Act):
Tenancy agreement
Name and address in written agreement
12. (1) Every written tenancy agreement entered into on or after June 17, 1998 shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act. 2006, c. 17, s. 12 (1).
Copy of tenancy agreement
(2) If a tenancy agreement entered into on or after June 17, 1998 is in writing, the landlord shall give a copy of the agreement, signed by the landlord and the tenant, to the tenant within 21 days after the tenant signs it and gives it to the landlord. 2006, c. 17, s. 12 (2).
Notice if agreement not in writing
(3) If a tenancy agreement entered into on or after June 17, 1998 is not in writing, the landlord shall, within 21 days after the tenancy begins, give to the tenant written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act. 2006, c. 17, s. 12 (3).
Failure to comply
(4) Until a landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be,
(a) the tenant’s obligation to pay rent is suspended; and
(b) the landlord shall not require the tenant to pay rent. 2006, c. 17, s. 12 (4).
After compliance
(5) After the landlord has complied with subsections (1) and (2), or with subsection (3), as the case may be, the landlord may require the tenant to pay any rent withheld by the tenant under subsection (4). 2006, c. 17, s. 12 (5).
Whether your tenant is being a silly twit or if he has a strong legal argument is something that I won't comment on given the circumstances of this blog, not having seen your documents, and having no understanding of your situation other than the comments you've left here. However, as a general statement, my experience with this section, with the adjudicators in Ottawa, is that it goes no where and the tenants are soundly chastised for asserting this section when they have been in occupation for a long period of time, have phone numbers, email addresses, and ways to contact the landlord, and have indeed contacted the landlord and have indeed done the things that the point of the information in section 12 would allow the tenants to do.
Michael K. E. Thiele
YOU ARE WONDERFUL!!!!!!!!!!!!!
ReplyDeleteKathy Lewis
In July I called the city of mississauga because my landlord was not maintaining the house. Such as electrical breaker jumping all the time ect.ect..The reports were all made in July. The inspector realized that my landlord had two illegal basement appartment and advised him to complete the list of repairs and to get his license. At the end of July, my landlord gave me my 60 days notice based that his parents needed the unit.because of their financial situation.We went to the board had a hearing with his mother present who said they will be paying 850 a month rent to their son ( the landlord) the landlord never argued it. The hearing was reschedule due to lack of time. At the second hearing, the landlord told the board that his parents will not be paying rent every month, only when they could and said that his parents were currently living with him until my unit became available. He said he never received the city of mississauga report, yet told the board that he was working on getting the license for the basement units, Which was indicated on the report he claimed he didn't know about. The board didn't catch on. At the end of the day, they voted in his favor, disregarded that I'm a single mom of one, that my daughter will have to change school, the worst is her day care is in her school and I have to move out of my unit December 1, right before Christmas. They disregarded any previous problem that I had with the landlord, even that he tried to evict me last February based on my 4 year old Making noise, this week I found out that his parents owns a house in brampton, and they live in the house and not with him as he told the board. I went to the board today, to file a request for review but the council told me that I still don't have enough evidence even if he lied about his parents living with him. I have his parents property title, proof from a real estate that their house is not for sale but I'm being evicted, clearly in bad faith. My landlord when in there and lied, and I'm being put out of my rental unit. I texted my landlord today about it and his response to me know is well my parents also have health issue, but that's not what my eviction was about, it was about the financial situation of his parents. The board never even took into consideration all the repairs and the report with the city of mississauga which corresponds to the same month he gave me my eviction. All I can say is, their are alot of incompetent people working at the board. I've tried everything to be able to stay, at least until my daughter finishes school in the summer, but their is clearly NO RIGHT FOR GOOD TENANTS and I am only left with packing, and moving on December and I can't find a place in my area that is close to what I pay now.... It's a shame!
ReplyDeleteHi: I'm very sorry that this hearing process did not go well for you. Certainly the facts as you describe them in your comment above clearly demonstrate that the landlord is evicting you improperly. I can't imagine how you were evicted if the above facts became known to the Board and were "proven". There are always two sides to a story and perhaps there is something in the landlord's case that you missed or failed to understand? It is also possible that you are not a very strong advocate, were ineffective in cross examination, and simply didn't manage to get the facts out that are reflected in what you have written above.
DeleteI'm glad that you spoke with duty counsel as it is good to get guidance and assistance in legal matters from lawyers. Unfortunately, it sounds like they are simply sending you away and doing nothing for you? I would think that being able to demonstrate an outright lie about your landlord's parents would call into question every aspect of the N12--i.e. the legitimacy of its service as well as the exercise of discretion under section 83. If you transcribed the parts of the original hearing and then provided proof of the contradictory evidence (like the title search) that you obtained post hearing I would think that you would have a good shot at getting a review hearing. However, as you perhaps know, you only get one chance at a review so you need to make it your best argument.
If you can afford retaining counsel then I think it would be best for you to hire an experienced landlord and tenant lawyer or an experienced paralegal. Experience is the key. If that simply isn't possible, then I think it's reasonable for you to file the review yourself and try it on your own. You have nothing to really lose. The remedies against a landlord for an improper eviction on an N12--after the fact--are not very useful and in fact are pitiful when compared to the hassle and disruption caused by the improper eviction.
Best of luck.
Michael K. E. Thiele
The board stated on my eviction that I did not have enough evidence to proof that the landlord was evicting me in bad faith. They completely disregarded the retaliation and we're more focused on mother verses son paying rent or not. Even though they provided all the by law reports from the city, and their was even pictures that the inspector took of a notice that was left from the city in the basement tenants doors in regards to the license he was talking about In February when he gave me a verbal notice, which i also have by text messages, the problem started on Feb 2 when i text my landlord and told him that the basement tenant had their music on until 1am and woke up my daughter, 2 days later my landlord texted me at 4 pm and told me that the basement tenant could not sleep because my daughter was noisy. A few days later he gave me a verbal notice but when he called the board they told him he couldn't evict me based on my daughter noise, so we never went to trial he started frustrated me about the backyard.He has lied in the past in regards to me having sole access to the backyard when I moved in. In May we went to a hearing because he told me after 2 years of living here that I now had to share the backyard with the basement tenants. I had text messages from him asking me my permission for the basement tenants to store some stuff in the backyard, but when the board read my lease and asked him if he had given me exclusive used of the backyard he lied and said No. I asked the board why would someone asked me my permission to store stuff in the backyard if he hadn't given me exclusive use. The board told me it was to keep peace. Lol. At this point I have to laugh and I honestly wonder where they get some of those members from. The board then argued the fact that it was not on my lease but yet the RTA says that a verbal agreement is just as good as a written agreement but again I lost that case and they went in his favor. And now this. Hopefully they accept the request to review, he lied to the board about his parent financial problems and about them living with him. I'm prepared to argue my evidence if they have another hearing, the problem with the board they don't let you talk much and they do not let me address him directly. If their is a hearing I know that he will now use his parents health as an excuse, but 1. That was not what he originally said, the parents health was never mentioned at the hearing the only time he mentioned it, his when I argued that he has a 2 bedroom basement appartment and another house that he rents out. Why would an elderly couple require a 3 bedroom house. His argument was the other house is too big for them, and that his father suffers claustrophobia so he can not live in a basement. I asked the board why he would take a loss on his property when he can keep renting to me and get a one bedroom appartement for his parents that's suits their budget. His excuse was they want to stay in the same area. On the hearing of Sept 2 his mother herself never made mention to health but said that they were having financial issues. I believe I have a strong enough argument if they agree to a review and another hearing. The fact alone that he lied to board about where his parents are currently living should be enough, and from the text he sent me yesterday he is not denying that his parents have a house nor did he deny that they live there, he said they need to move out and move into your unit due to health issues, but with the board you never know. I even have print out of their information from 411 showing their phone number and address along with pictures of their house and vehicle and the title search. Like you said a n 12 is only after I moved out and went trough the stress of moving not to talk of the time and expenses and the stress for my daughter to change school. All that is priceless. I was advised that my other option is divisional court, Which i'am looking into right now. I
ReplyDeleteI must add that the repairs requested by the city of mississauga were only done once he received my eviction from the board. And that the board said that none of those repairs were serious to health or safety issues, but last week I fell Down the front steps and cut my leg and I was on muscle relaxant and now going for an MRI for my arm shoulder and neck. Their is a rip in the green carpet on the steps and my heel caught in it. I sent him pictures of my legs and the steps, when he came to change the railing on the porch he glued one of the holes, never changed the carpet and left the hole unrepaired.
ReplyDeleteGood luck to you. It's interesting reading your comments as the comments lend themselves to various arguments under the RTA. For example, your comment that the Board did not consider the retaliation in its decision is a classic error of law. Consider looking at section 83(3) of the RTA. The Board is required to consider section 83--which is not only discretionary relief but he mandatory refusal provisions as well.
DeleteYour comment that you are unable to speak or have sufficient time to speak suggests to me that you have trouble communicating your own case clearly. Having a representative would be helpful to you. You have a few other excellent points in your comments as well that I am surprised did not gain more attention from the Board. Without having met you and not having read your materials I'm going to guess that it is a presentation issue. Also, in your comments you make reference to some points that I don't think help you--so perhaps the Member is being distracted by some things which may indeed be red herrings.
I note your comments about the Board and the Members. I don't think the insinuation is fair. The landlord and tenant board is an incredibly busy admiinistrative tribunal and the dockets are very big. The RTA directs adjudicators to adopt expeditious procedures that allow the parties to be heard. Landlord and Tenant law in Ontario has a long standing tradition of "summary" procedure being used in the hearing process--even before the Superior Court of Justice. HIgh case loads and the direction to be quick about adjudicating them can result in people not getting to say what they intended to say. This is especially truee of people who are not assertive by nature and who are inclined to wait for an invitation to set out their case. The reality is that adjudicators, like most people, make certain assumptions about cases and form ideas of the likely disposition of those cases as they are reading application materials in preparation for the hearings. The usual outcome of these cases also creates an expectation of how future cases will turn out. This problem is compounded by the fact that there is no "reply' or "defence" filed to any application. The adjudicator will have read the application materials for the hearing but has no idea at all what the answer will be to the application. The adjudicator will have to absorb the defence, on the fly, in the face of a busy hearing room and lots of things going on with the likelihood that another hearing block is starting in 4 or 5 hours. I don't say this to excuse what may be perceived as an unfair hearing process. I say it to highlight the importance of being assertive and prepared. Assertive in the sense of making sure that the adjudicator knows you have argument to make. Prepared in the sense that you can summarize the top 1, 2, 3, arguments that you intend to make, cite the section numbers of the RTA on which you rely and that you are able to state what the outcome of the hearing must be (i.e. what you are seeking). Expecting the adjudicator to cull all of the best arguments from the facts as you present them (which are likely contradicted by the opposing side) without a party pointing them out is, I fear, simply too much to ask. Adjudicators, like judges, are entitled to rely on the parties before them to raise the legal arguments that they intend to rely on.
Please don't take the foregoing as criticism of you. In fact, you sound very well spoken to me as well as tenacious given that you keep pushing your side of this case---many would have just given up. Why I set out the foregoing is with the hope that you try to understand the context of the Board and the limitations on its structure. If you can work better within the system then I think you have a better chance of having your very good points heard.
Michael K. E. Thiele
Thank you Michael.
ReplyDeleteMy review will be on November 17th. They said that the eviction was stayed. My eviction date is on November 30th. Does this mean that the eviction will change if I loose or will it remain the same date of November 30th? At this point I'm not sure if I should pay my first and last somewhere else for November 30th or if I should wait until the hearing November 17th. I don't want a suprise and only have 2 weeks to pack, find a place and move.
Hi:
DeleteThere is no rule per se about how this plays out. In theory, if you lose the Board member could simply lift the stay and the original order could be enforced--meaning you only have two weeks. Alternatively, you could ask the adjudicator, even if you lose, to delay lifting the stay for a period of time that is reasonable to allow you to find a new place to move to. I've never had an adjudicator refuse to delay the lifting of the stay if the issue has been raised with them. However, there is no rule that requires them to delay the lifting of the stay. Of course, if you win, presumably the order is set aside and you get to stay. Given that that is the entire point of doing the Request to Review it only seems reasonable that you would not arrange alternate housing in the mean time.
Hope that helps
Michael K. E. Thiele
Hi Michael,
ReplyDeleteWhat a wonderful service you are doing for everyone, we thank you very much!
Here is my situation, my landlord and I were always on good terms and I have never been late paying the rent. However, two days ago he sent me an email saying that this was my official 60 days notice to move out (he wants the house for personal use). I responded saying that this was quite a shock and would be a big problem in terms of my daughter's shool year. It would be very difficult to find another house in the neighbourhood on such short notice. He insisted that we would have to leave.
We then realised that we woud be away for most of December anyways, so why not ask if we could leave earlier. I also sent over the N9 which states that we have the right to give him 10 days notice if he's already asked us to leave. However, he is refusng to allow us the earlier departure date and says he will not return our last month rent deposit even if we hand over the keys before December 1st. I called the Board and they told me that since he did not actually issue a N12, there is nothing that they can do. Isn't our email exchange and all my bank transfers sufficient evidence? Since he is the one kicking us out, isn't it our right to leave when it is more convenient to us? I am pretty sure we will not be able to solve this amicably, so I wonder what action I can take against him without havign that more official N12 form.
Any advice would be soooo amazing. Thank you in advance,
Hi: Is it safe to presume that you plan to leave regardless? If the sort of N12 is invalid then your N9 will also be invalid as it would be on short notice as a regular notice of termination. You could stay and simply continue your tenancy. If the Landlord served you with an N12 today the earliest effective date would be January 31, 2015, at this point. You will know, based on reading my articles here that the 60 days in an N12 is simply a minimum notice period. You can always ask the Board to give you more time. In the present circumstance I think the Board would be mighty sympathetic if you showed the history and your attempt to leave an the landlord's refusal to let you leave in accordance with the law.
DeleteIf you need to go because you have now made alternate arrangements then you can ask the Board to terminate your tenancy in accordance with your notice and further for an Order returning the Last Month's Rent Deposit. I would use a Form T2 and alleged that the landlord is interfering with your reasonable enjoyment of the unit. His representation for termination in the non-technically correct form and your reliance on that form should be recognized by the Board and they should order termination. At least, if I were the adjudicator you would win hands down. I think most adjudicators will see it this way as what you want to do accords with basic fairness. That being said, when it comes to law, hearings, and orders, never count on anything until it is signed, sealed and delivered (and not appealed!).
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so very much for your answer. Yes, I think at this point, with all the hurtful email exchanges, we would rather just leave. If this had not happened we would have defintiely continued to live there, so still quite distressing. However, I think that it's in our right to choose the most convenient move out date for us (with a 10 day notice) and we shouldn't be liable to pay until the date that suits him. He obviously picked the date to coincide with his own plans. I would simply follow up with the Board but I am discouraged by them saying that I dont' have a case since the notice to terminate tenancy is just an email. My landlord now wont return my emails and said "not to contact him again about this again" so I think he just thinks that he can cruise back in when he wants and there's nothing I can do about getting my deposit and other rent money back. Quite distressing really...I wish there was some type of letter or something that I could issue explaining that I am within my legal rights and I will continue to fight if necessary. That might get him to at least come to an agreement with me.
ReplyDeleteThanks again for your time,
Hi Michael,
ReplyDeleteHow long could the parties in a T5 application expect to wait before receiving the Member's final order?
It has been six and half weeks since the final hearing, and we have not heard anything.
This application involved three hearings, the third of which lasted an entire day. The landlord has also been denied a request for review and abandoned a Divisional Court appeal prior to the final hearing.
It is safe to say that this application has been ugly, the evidence entered was extensive, and the Member has a lot to think about.
Having said that, would it be normal to expect to wait almost seven weeks for a decision in a complicated T5?
This saga was further complicated by the landlord's absurd Small Claims suit against me which has since failed miserably and was dismissed.
I am beginning to become concerned that the former landlord has found another way to cause a delay or interfere with this process. It is worth mentioning that he works in the same office building as the LTB office.
Many thanks,
Tom
Hi Tom: Waiting seven weeks for a decision is nowhere near a record and not unheard of. Granted, it is a longer wait than most cases but from what you describe the case was complicated. With so much evidence the adjudicator may be listening to hearing tapes again or simply may be trying to find the time to sit, decide, and write the Order. As you will have seen the Landlord and Tenant Board is an incredibly busy Tribunal and the adjudicators carry a very big caseload--which in some circumstances creates a backlog.
DeleteWith respect to your last comment/concern. I am pleased to say that during the entire time that I have practiced before the Board (in its various incarnations), that I have absolutely never had to doubt the integrity of the adjudicators. My experience is that adjudicators are careful to declare conflicts and their decisions are based on how they assess the evidence and there are absolutely no "favours" being done. You can trust that you have an impartial adjudicator who isn't being improperly influenced by your landlord. Given that you are in a T5 application I appreciate that this is all about "bad faith" but I am confident that the "bad faith" (if any) stops with your landlord.
Some cases get decisions on an expedited basis because there is an inherent urgency. You haven't said, but I am presuming that you are out of possession and are just seeking compensation from the landlord. If this is accurate then the case will not be considered "urgent" to decide and you will be in the regular line for a decision when time allows.
If a whole lot more time passes without a decision and you begin to worry that the adjudicator has forgotten about your case you could write a brief letter setting out the time line in the matter to the Vice-Chair of the Board. Ask the vice-chair if she would simply confirm that the matter is still being considered and if there is anticipated time when a decision could be expected---and leave it at that. You should not write to the adjudicator directly as such contact is considered improper.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteVery good blog with lots of help, i am a first time landlord going to the board with an N12. I delivered the N12 on August 25 with an eviction date of November 1st. The board has contacted me and asked that i start over because the date should be October 31st. I contacted the board and asked why and what the difference is, all i received was because answers and one girl said "yes that does seem kind of dumb but there's nothing i can do. i find it hard to believe that the whole process has to start over because in fact i am giving the tenant an extra day. Also in the original lease there is nothing specific on due date for rent ie. 1st of ever month, does that matter. i am paying storage for my son's belongings while we wait to get the unit back, after finishing paying for his schooling i am not a rich landlord.
Thank you in advance for any help you can provide.
Hi Flyers123
DeleteThe short answer is that you will very likely have to start over again.
The longer answer includes why--so I will try to give you that here. An N12, as you know, is a Notice of Termination for Landlord's own use, Purshaser's Own use or their designates own use depending on which box on the Notice if checked off. In your case, as it is your son moving into the rental unit, the N12 is served pursuant to section 48 of the Residential Tenancies Act. The authority to terminate for your son to occupy the unit is in section 48(c).
When you filled out the N12 you will have seen the availability of a Guide to filling it out. If you did not see the Guide then at the bottom of the Form under the hearing of IMPORTANT INFORMATION you will see that paragraph 1 gives you specific instructions about the termination date that you must use in the form. That paragraph advises that the termination date must be at least 60 days and the date must be the end of the term--i.e. the last day of the rental period. The last day, on a fixed term lease (of say one year) is the end of that one year so long as the Notice of Termination is provided at least 60 days before the end of that year. If the lease is on a month to month--say after the expiry of the one year term---then the last day of the term is normally the end of the month--i.e. the day before rent is due for the following term/month.
This paragraph, under the heading of Important Information, is based on section 48(2) RTA---and therefore the required date is a statutory requirement. This section reads as follows: (2) SAME--The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.
The law with respect to the requirement is quite clear and frankly it is a very long standing requirement that Notices of Termination must be correct. The person at the Board who told you that it "seems dumb" is doing the public a real disservice by not at least trying to explain the legal reason for the technicality. While understanding it may not result in you liking the answer any more you would at least understand that the requirement is not arbitrary and that there is a reason for it (even if you don't like the affect of it).
The deeper answer to your question takes us to section 43 RTA. That section speaks to Notices of Termination generally and the requirements of Notices of Termination. This section, combined with section 48, speak to the mandatory and technical requirements of a Notice of Termination. The caselaw (Judge made law), as it developed under these sections provides the insight into the reason for the technical requirements.
DeleteThere is a Divisional Court Case called Re Bianchi and Aguanno, [1983] O.J. No. 3053 (you can look it up by searching a free legal database at www.canlii.org). The summary of that decision in my casebook (Ontario Landlord and Tenant Practice 2014 Fleming) explains the requirements as follows:
"Notices of termination must be precise and accurate or they are void. this is a long-standing requirement of the law, in existence before the LTA. This is more than a mere technical objection: a notice of termination is a unilateral, non-consensual document which brings a tenancy to an end. If a notice is inaccurate in any respect, that error cannot be corrected. the court held (at para 29):
It is important to both landlords and tenant that notices be certain, definite and in accordance with the terms of the tenancy and existing legislation. The tenant must know the date he or she is required to pack and to seek alternative accommodation. It is equally significant that a landlord be certain of the day the premises can be rented.
The foregoing is the answer as to why the RTA does not give you the latitude to give even an extra day in the Notice of Termination.
From your comment I see that you are exploring the notice of what constitutes the "term". Does the term run from the first of the month to the last day of the month or does it run from mid month to mid month etc.. The law does not require that the term of a tenancy run on the calendar month. That being said, the vast majority (and by this I would guess in excess of 99%) of tenancies use the calendar month as the term of the tenancy. In my opinion, in an instance where the lease does not provide for the start date of the term and does not provide a rent due date, then the presumption that a Board member is going to go with is that the lease runs on a calendar month. If you can't prove that there is a different term, agreed upon with the tenant, or if you can't show that the facts demonstrate a different term, then the presumption will be that you are on a calendar month to month. Did your tenant normally pay rent on the first of the month? Did you ever have discussions with your tenant about late rent as of the second of the month? Will your tenant be able to show cashed cheques for rent all dated the first of the month? I would be very surprised if the objective facts point to a term running from the 2nd of the month to the first of the following month. And lastly, on this point, an adjudicator will not be motivated to help you to avoid the consequences of your mistake as you are the one terminating a tenancy on non-fault grounds and as such are ending the tenant's security of tenure. I mention this as you should not presume that you would get a sympathetic hearing if you insisted on the matter proceeding before the member given that you have "filed" it already and the Board has taken your money for the application.
Insisting that the matter proceed anyway is something to consider. I don't know your timeline exactly, but lets presume that you have a hearing scheduled for sometime in November. We are now November 11. You know your N12 is most likely void and therefore you must serve another N12. The earliest that the new N12 can be effective, is with at least 60 days notice to the end of term--which likely is January 31, 2015. The latest that you can serve this new N12 is at least 60 days before the termination date--to be safe, serve it personally before the end of November.
DeleteIf your hearing is sometime before the date that you must serve the new N12, insist that the case proceed. Perhaps the tenant will show up for the hearing (hopefully as you can not win on a default). Mediation services are available prior to the hearing being held. See if you can engage the tenant in a discussion and see if you can get an agreement to termination the tenancy for some time prior to the end of January. If you get an agreement for sooner than the next legal termination date on your new notice of termination you are ahead. Maybe the tenant would agreement to move for the end of December--maybe you offer him the storage fee that you are paying as an incentive to leave. Getting a deal with the tenant would be a good thing. If you make a deal the Board could order the tenancy terminated, under your filed application, based on an Agreement to Terminate the Tenancy and it would be enforceable.
You haven't said much about your tenant and whether they are agreeable to moving. Note that there is a whole other issue that you have not yet discovered. Just because you give a legal notice of termination with the proper termination date does not mean that the tenant needs to move out for that date. A tenant may always ask the Board for extra time or for the Board to exercise its discretion and refuse termination altogether. The power to alter the termination date, delay it, or refuse it, is in section 83 of the RTA. It is my experience that discretion is exercised regularly and freely by Board members (and on an objective basis I think fairly). Accordingly, reaching a consent deal with your tenant that is enforceable by Board Order is preferable to going into a hearing and putting the entire matter in the hands of an adjudicator. You can not know, with certainty, what the outcome will be.
Good Luck
Michael K. E. Thiele
www.ottawalawyers.com
Michael,
DeleteThank you very much for taking the time to answer my questions, you are correct I don't like the answer but didn't realize how far back these rules dated and were made mostly with case law. I can understand and agree with the outcome now, it is unfortunate like you said that the people (not all I'm sure) at the board aren't educated enough to give good advice and save some headaches. The relationship with the tenant is good he just doesn't want to move out, i will follow your advice and try to mediate with him at the hearing.
Thanks again,
Hi Michael,
ReplyDeleteMy husband owns a unit in which he has had a tenant for two years. We wish to use the unit for our own use. We served the current tenant an N12 in late November, with a termination date of February 28th, 2015. They pay on a bi-weekly basis, and so the 28th will coincide as their normal payment date (just turned out that way) as well as the end of the calendar month. There was no written lease, simply a verbal understanding at the time of the tenant moving in. I feel safe that this was the correct termination date to provide. We also made a point to provide the tenant with more than 60 days notice. We went into the unit to do an inspection - the tenant was given more than 24 hours notice - and we left the N12 on the kitchen counter. To be on the safe side, we took a photo of the N12 to prove that we had served it this way.
1) Was this the correct termination date to give, based on the tenant's payment terms?
2) Was this an acceptable form of delivering the N12 to the tenant?
3) Should we be filing the L2 application with the board ASAP?
4) If the rent amount was set too low at the time of the tenant moving in, can this be an acceptable factor for why we now need to move in for our own use, as this is now a loss to us and we're not in a position to pay a rent and half a mortgage (for example)?
Thanks!
Hi: You are asking some tricky questions. I will preface my answer with the proviso that what I say here is not legal advice but is for education purposes only. We lawyers tend to say that when the answer is not entirely clear cut or when there are a number of different possible answers depending on how the trier of fact views the facts and finds them to be. So, don't hold me these answers but I'll explain what I think about your questions.
DeleteWith respect to number 1. I think it is a correct termination date as you served it well in advance of the minimum 60 day requirement. I think that you are likely on a monthly tenancy and not on a bi-weekly tenancy as a bi-weekly period is not a period that I think the RTA recognizes. Presuming that the original oral agreement that set up this bi-weekly payment also established a periodic two week tenancy as opposed to a month to month tenancy, I think it likely that at the end to the original period of two weeks--absent an expression of renewal of a further two week period, the tenancy is deemed renewed on a monthly basis with payment of the monthly rent payable over two week periods of time. Sounds a little crazy--but the section of the RTA that I'm drawing this from is section 38(3) which speaks to renewal of periodic tenancies on a monthly basis. All that being said, perhaps it doesn't matter given that the termination date appears to coincide with the end of the month in any event---i.e. it works for a monthly tenancy as well as a periodic two week tenancy.
With respect to number 2. This was not valid or legal service. To correct this you should serve the same N12 again. Fortunately, you have plenty of time. Serve it by personal service or in the mailbox or in accordance with the explicitly permitted other methods of service as set out in the RTA or the Rules of the LTB. See the LTB website for these methods.
With respect to number 3. After you effect proper service of the N12 you should file the application right away. If the tenant does not intend to resist the application then you will get your order and all it will have cost you $170. If the tenant does resist the application then at least you can plan accordingly and get the process of adjudication under way.
With respect to number 4. You are walking a knife's edge with this explanation--in the one sense it is fine but in another way it arguably violates the spirit of section 48 (Landlord's own use). The section starts like this:
48. A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by ...
What I find problematic in how you say it are the words " rent amount was set too low"--how this is expressed I think is problematic and could lead to a dismissal of the application. I think a better way to put it--if you must or insist on providing a reason (which I never recommend--but some landlords insist on doing), is to say that you want to move in (not "need" to move in), because your financial circumstances are such that using the property for your own residential purposes makes the most sense for you.
Good luck. Please let me know how it goes.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your advice! We will be serving the N12 appropriately this week.
DeleteHello,
ReplyDeleteMy landlord decided to raise our rent by 7.7% ($100) and after doing my research I realized that this is well above the legal limits and he didn't provide a 3 month written notice. He told me since my lease was up, that he would evict us if we didn't agree to pay this amount. He told me he would talk to his lawyer and call me back. He then called me back to say, we had the choice of paying the increased amount he was asking for, or his daughter would move in. I told him I would think about it because I didn't want to lose this condo and move out. I also wanted to research more to see if this was legal or not.
The following day he comes over with an eviction notice claiming that his daughter is moving in. This is a hand written notice. He refused to admit our conversation the day prior, and just says that he needs the unit back. I refused this eviction letter and told him that I'd like him to take me to a hearing.
I know the only reason why he is trying to evict me is because he wants more money for rent. He fully stated that the maintenance fees went up significantly, and he needs this to help him out. Since the only way for him to get his unit back is saying his immediate family is moving in, this was his only loophole to get this unit back.
My question is, was it wrong of me to refused this eviction letter? Does he have grounds to evict us? What if his daughter signs the affidavit, would the courts follow up to confirm she is actually the tenant if she actually moves in? (I know she isn't moving in, she's a 19 year old student). Does his threat of raising the rent, or else he will evict us, help me in court? Approximately how long until a hearing? And he did not file an N12 for the eviction notice, just a hand written letter, is this N12 documented, would the landlord tenants act be aware that he never filled one out?
Lastly, last year he raised the rent $50 per month randomly out of the blue. At this time I did not do any investigation, and was not aware of the legalities of this either. Would I be able to get reimbursed for the amount that I overpaid? (I did sign a new lease with the new amount listed on the lease).
I hope you can help me and make some suggestions if you can.
Thank you!!
Hi: There are a great many questions here! I will answer generally and hopefully you will get what you need from what I say. A proper N12 form may only be served if the Landlord in good faith requires the rental unit for residential occupation (including for his daughter). Where a landlord tries to increase the rent or impose some other condition, which is successfully resisted, the landlord is not allowed to simply use the power of an N12 (Landlord's Own Use). Serving an N12 in these circumstances is the very essence of "bad faith". However, it is also a matter of degrees. The N12 doesn't forever remain unavailable to the Landlord and if done cleverly the landlord could probably get to a point where service the N12 would be considered legitimate even after your refusal to pay the rent increase that was demanded.
DeleteThe Landlord's handwritten note is not a valid N12. Should you have taken it. Yes, it would have been better to have it. Taking it would not commit you to moving out and in fact would be evidence to support what you are saying happened.
When an N12 is served the landlord may apply to the Board right away, or he may wait until after the termination date in the Notice. If your landlord filed anything with the Board he would likely be stopped at the counter when he produced only a copy of his handwritten note. The counter staff would likely tell him this Notice is invalid and to start again. If he successfully files an application at the Board you should go to the Board and ask to see the file. He will likely have filled out an N12 that he did not serve.
You may of course challenge any application by the landlord. As he is the applicant he has the burden of proof and must establish, on a balance of probabilities, that he in good faith requires the rental unit for residential occupation. You may cross-examine and challenge his evidence with your own explanation of what happened. However, just because what you say is true, does not mean that the Board member will find that your version of events is what actually happened. To tilt the odds in your favour it is important to collect evidence (like the note he tried to give you). Messages, emails, etc., are indeed helpful. Try to think strategically to imagine what evidence might be useful in proving that he is only pursuing an N12 because you are refusing to pay an illegal rent increase. The better your evidence the better the chance that you will be able to defeat his application.
With respect to the rent increase amount and the increase that you have already paid. I am making the assumption that the guideline increase amount is the lawful increase amount that can be taken with respect to your unit. Note that there are exemptions from the guideline amount and some units can have the rent raised by any amount that the landlord wishes to charge.
Presuming that your rent is subject to the Guideline Increase amount, then I think you could indeed ask for the illegal rent increase money back (the $50 increase) assuming of course that it was taken without proper notice or documentation. If there was no N1 Form served, I do think you have a decent chance to recover the past increase amount as it will not be saved by the "deemed legal" provisions of the RTA. The new lease you signed does not, in my opinion, give a legal basis to change the rent to the higher amount.
I hope that helps somewhat. Do consider getting help from a lawyer, paralegal or community legal clinic. The legal issues in your case are indeed sophisticated legal issues that you can't expect to master on your own.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much for your answers! You've helped a lot. Let's see what happens next. Now I'm just waiting to see if he takes me to a hearing.
ReplyDeleteHello again,
ReplyDeleteSo, yesterday I received a registered letter which I actually did sign for rather than rejecting. And sure enough it is the eviction notice stating that we had until 03/31 to move out since his family member is moving in. (The same letter that I rejected when he was over). This is a typed up letter that is photocopied (his signature is not even in pen, I'm sure this doesn't matter, but I just wanted to mention this). And is not the proper N12 document that you mentioned he is supposed to provide.
I did gather all of my evidence of this, and this letter will now be a part of it. I have emails that I've sent, text messages, even voice recordings.
Since this is not a valid document, can I just ignore this letter? I did tell him that if he wanted to evict me, he would have to take me to a hearing since I do not believe this is in good faith.
What steps can he take when 03/31 comes around and I have not moved out of the unit?
Thanks!!
Hi:
DeleteYou may ignore this letter as it is not a valid Notice of Termination. Even if it was a valid Notice of Termination you could ignore it (the notes at the bottom of the form explain why). If a tenant ignores a Notice of Termination the landlord must then file an application with the Landlord and Tenant Board to try and get an Order terminating the tenancy. It is at that hearing that you would lead your case to defend. It is quite unlikely that the Landlord and Tenant Board will accept your landlord's letter as a proper Notice. Accordingly, I suspect that the landlord will be serving you with an N12 shortly after he goes to the Landlord and Tenant Board and learns of his mistake.
What is difficult to explain in a short note like this is that there are numerous issues that can come up, numerous strategies to defeating the application, and lots and lots of technicalities. If you can retain a lawyer with experience in Landlord and Tenant law you can be sure that all of the angles are covered. Otherwise, what you are doing is good, but there is a risk that you will miss some important issues that could be the difference between winning and losing. Right now though, it all looks very good for you based on what you have written here.
Good luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteMy landlord has provided us with our notice as he is selling the condo we rent from him. I was wondering do we as tenants have the right to move out earlier than the 60 days should we find a new place, or are we tied to honouring the 60 days?
Also we are now currently on periodic tenancy agreement, month to month, as our years lease expired in December. Should the date of termination be on the date we pay rent each month rather than the 1st day of the month. Basically I would like to vacate the apartment at the end of this month rental period as we have found a replacement rental already but I do not want to be in a situation where I am forced to pay rent on two properties.
Looking forward to your response.
Best,
Mike
Toronto ON
Hi Mike:
DeleteA landlord, in the circumstances of a sale of the property to a purchaser who intends to occupy the premises themselves must use a Form N12. The N12 form (available on Landlord and Tenant Board website) sets out what is required. The termination date in the form must be the last day of the term. In a month to month tenancy the last day of the term is typically the last day of the month because rent is paid for a calendar month. However, it is possible to have a term that does not follow the calendar month--though this would be unusual especially after a fixed term.
The termination for a purchasers own use is set out in section 49 of the RTA. The termination date is at least 60 days with the date being the last day of the term (s.49(3)). If in receipt of an N12 on these grounds, a tenant may terminate the tenancy earlier (s. 49(4)) and that the tenant shall provide at least 10 days notice to the landlord (s. 49(5) RTA).
So, the answer to your question---making one big assumption---is that you may indeed terminate your tenancy early as set out in section 49 of the RTA and you could indeed manage it for the end of this month.
However, the very big assumption is that your landlord has properly terminated your tenancy under section 49. The right you are given to terminate early is contingent on the landlord serving a proper Notice of Termination under section 49. If the landlord does not use the correct form, or the landlord is seeking to terminate the tenancy simply because he wants to sell the unit but does not have a purchaser who wishes to occupy the unit, then it is likely that the landlord's Notice of Termination is void/illegal. I fear this is the situation in your case because you wouldn't necessarily have these questions if the landlord had served you with the proper form to begin with---i.e. I suspect you're not holding an N12 form.
What is unfair about all of this is that the landlord could benefit from his improper notice of termination. Because his notice to you does not comply with the law it would be deemed to be void, or a nullity. This may be the case even though you have relied on his defective Notice of Termination. If his defective notice of termination is a nullity then you, arguably, do not have the right to terminate early---meaning you could end up owing rent on two places which is exactly what you are seeking to avoid.
The circumstance of you relying on a defective notice from your landlord and prejudicing your position screams out for an exercise of judicious judicial action. Perhaps an estoppel argument, or something to deny the landlord the right to pursue you for rent should you exercise your purported early termination right pursuant to a defective notice of termination. That, however, is a legal argument that you might just not want to be forced to make.
The solution I think is for you to print the section number (49) from the RTA (you can find it on www.canlii.org) and highlight the early termination right. Have that ready to show your landlord. Then go meet your landlord and have in hand a Form N11 (get it on Landlord and Tenant Board website). This form is an Agreement to Terminate. As long as the tenants sign and the landlord signs you can pick any day that you want and simply terminate. You can tell your landlord that there isn't any choice for him (you have the right to terminate early--see s. 49--you just need to give him at least 10 days notice. The Form N11 is proof of that Notice and clearly and nicely terminates the tenancy. It also side-steps the silliness with any defective notice under section 49 as an N11 is premised on an Agreement to Terminate that is enforced through section 77 of the RTA. The N11 gives you the comfort of knowing that your tenancy is terminated as of the date set out in the notice and no further rent is due.
Hope that helps and good luck.
Michael K. E. Thiele
Mr. Theile, first of all, thank you very much for delivering such a nice balanced approach to the Act. I have a simple situation that I cannot find any guidance on. In may of last year, I, my 4 yr old boy and my sons mom were was evicted in bad faith via N13 wherein the landlord said he intended to demolish the building. He did try to get us to leave voluntarily. He refused to negotiate as I said we were governed by the act and that if he wanted us out had have to file the appropriate documentation with the Board. He filed and we did not fight the n13. But he changed his mind and rented the place out. Our suspicion is that he could not afford to do the demo and rebuild and, conveniently, he had friends who wanted the place - it was quite a nice home nice in a cherished school district. The building remains standing and he has has rented it out. I filed a T5 recently and the hearing is in 2 weeks. Incidentally, Im certain he did have all the permits filed but I doubt he could pull off the tear down and rebuild as he was very short of cash and knew that before giving us the N13... bottom line is he wanted us out and his pals in.
ReplyDeleteIm certain the facts are on my side and I will prevail. I prefer to settle in mediation... which Id prefer obviously. My question is that assuming I am in the prevalent position I believe I am, what are the factors the adjudicator would consider in determining a settlement amount? Rent and utilities were paid. We weren't able to find a place in the area and had to move out of the school district and we have suffered tremendously as we ultimately had to pull our son from the new school and put him in private school some distance away. In the move my 55" TV was broken and the mover were so broke I really could force them to replace the $2000 TV. Anyway Im certain you get my point. We were VERY happy in the place and the whole move and school fiasco should have been avoided.
I asked for 2 months + $2000 on the T5... the more i think about the trauma we went through because this guys lied to us, the more I feel I may be asking too little.
Curtiss,
Toronto
Hi Curtiss:
DeleteYou have clearly done some research so I will not go over all of the essential elements of this type of case. I will draw your attention to section 57 of the RTA and ask that you take the time to read through the entirety of the provisions. It is important that you understand the statutory basis of your application and the remedies that the section prescribes. At the same time, you should look closely at section 50 of the RTA which is the basis for the N13 that you originally received. Be well versed in the grounds for the original termination and the documents that would have supported the application. It is a mistake to think that just because the property was not demolished that you will win the application. While it seems that eviction for demolition and then no demolition and new tenants necessarily means "bad faith" you will find that there are cases where this set of facts does not in the end result in a finding of bad faith. The key to the N13 is that the Notice of Termination needed to be "true" and served in good faith at the time that it was delivered to you. If the landlord can successfully assert that at the time of serving the N13 it was done in good faith then you could lose the application. Facts, circumstances change with the passage of time and then there are unexpected events like disease diagnoses, death, job loss, investment market crash, divorce. All kinds of things can happen and do happen. The termination date in the N13 has a long lead time. If the landlord got demolition permits and behaved in a manner consistent with the N13, sourced a demolition contractor, did work and spend money then that goes a long way to supporting the "good faith" of the N13. If there is a supervening event that prevents the demolition that does not make the original service of the N13 a "bad faith" service. There is caselaw where landlords have changed the plans completely, not demolished buildings, repaired them, moved into them and this has not been found to be bad faith. No bad faith means no compensation.
I mention the foregoing because I see an awful lot of cases where tenants believe the failure to demolish or move in (N12) is proof of bad faith. Those cases are often dismissed fairly quickly to the surprise of tenants who thought the first part of the application was a slam dunk.
I'm not sure what kind of evidence you were going to be relying on to prove the bad faith but if it was just the fact that the property was not demolished I encourage you to think a little more creatively about the kind of evidence you could lead or elicit by summonsing witnesses (perhaps the people who moved in?).
With respect to the damages. Note that the scope of damages is set out in section 57. My personal view is that the explicitly described compensable damages in that section are woefully inadequate. Consider section 57 and then consider the extent of the damages caused to you by a "bad faith" eviction that you describe. This section of the RTA does very little to encourage awards that recognize the actual damage caused to tenants who move because of a "bad faith" N13.
Section 57 does contain a "basket clause" for relief--that being secton 57(3)(4) which states: "Any other order that the Board considers appropriate". That provision is fairly wide open and invites the kind of compensation that you are describing. Unfortunately, it is my experience that the Board is very reluctant to start making sweeping damages awards in the way that a Court is quite comfortable doing.
DeleteTo give some teeth to section 57(3)(4), for an explanation of what the phrase means and to expound on what kind of power that gives the Board you should review the case of Mejia v. Cargini [2007] O.J. No 437 (Ont. Div. Crt). I can't make a live link to the case in this response (blogger won't let me) but you can search and find the case for free on www.canlii.org in the Ontario section. You should make sure to print this case and bring it with you and be prepared to argue the rationale. Make sure to bring with you the evidence of the impact of the bad faith---invoices, receipts, repair bills, movers bills, school fees, new lease. Do not presume "understanding" from the adjudicator. You have the burden to prove your damages and it would be a mistake to presume that a finding of "bad faith" will get you a generous award from a disgusted adjudicator. It really doesn't work that way.
With respect to the amounts claimed. If you decide that you are not claiming enough you may amend your application. To do so, you should make the amendments, go to the board and file the amended application (presuming they let you). If not, write a letter to the Board advising that you will be seeking to amend the application to increase the damages claimed to whatever you are seeking. Provide the landlord with notice of that amendment immediately. Doing so may result in the hearing actually proceeding on the scheduled date. If you wait until the hearing date to try to amend your application you may find that request to be refused or perhaps allowed with an adjournment to the landlord for him to "prepare".
There are strategic considerations about disclosure of documentation in advance of the hearing. The Board likes you to disclose in advance and you can choose to that. I tend to hold back on disclosure unless I get an agreement from the other side that they too will fully disclose everything in advance by a specific date. Otherwise you end up having disclosed your evidence and then getting ambushed with paper that the other side has created in response to your evidence.
Anyway, I hope that has highlighted some useful points for you. I'd be really interested to hear how this turned out for you. Please let me know.
Michael K. E. Thiele
www.ottawalawyers.com
Good afternoon, I am a landlord that owns a house that is rented out. The lease started August 15 2014, for 12 mos. My situation has changed and I need to take the house back and move into it myself. My question is, do I have to wait until the end of the lease term, is there a way to give them 60 days notice before the lease ends? I'm willing to work with them, but I do not want to wait until August to make tis happen - do I have ANY options? Thank you in advance.
ReplyDeleteHi: The form that a landlord in Ontario uses to regain possession of a rental unit for Landlord's own use is the Form N12 (see Ontario Landlord and Tenant Board website). The section of the law under which the N12 Form is used is section 48. Relevant to you is section 48(2) which provides:
DeleteThe date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.
The problem for you is the last part of that sentence, "...where the tenancy is for a fixed term, the end of the term." Is it fair to assume that you very clearly are in a fixed term lease for 12 months? You indicate a term that begins mid-month and hence ends mid-month---this will be significant when you do serve an N12 form as your termination date in the N12 must be correct in order for the form to be valid--so be very careful in filling out the form when the time comes.
If you are indeed in a 12 month fixed term, I am unaware of any legal way to unilaterally serve a valid Notice of Termination on the tenants. That being said, nothing stops you from approaching the tenants to see if they would agree to an earlier termination. Perhaps they could be convinced to terminate the tenancy earlier than the end of term. If they had an expectation to continue the tenancy past the end of term (i.e. continue as they are legally entitled to do on a month to month basis), they may be dismayed to learn that you will terminate for the end of term. Termination at the end of term may force them to incur moving costs sooner than they had planned or are able to afford. If they have children an August/September termination may also interfere with schooling and force changes in schools or school bus routes. These are the types of things that your tenants may think about as you approach them about early termination or termination at the end of term. Perhaps, the early termination can be made attractive by offering to pay moving costs--perhaps forgiving some rent. It is a matter of negotiation. I don't see any situation where you can unilaterally require them to give up vacant possession and I would be surprised if they would just agree to move out at you request unless the fates have coincided and unknown to you the tenant(s) are trying to figure out how to get out of their fixed term lease because they would like to go elsewhere.
Good luck
Michael K. E. Thiele
Hello...the appartment which I am renting was listed for sale by the landlord a couple of months ago. At that time, I was verbally told by the landlord that the closing would occur at the end of June-15, a month after my lease expires (as I have young school going kids). Two days ago, I was served an N-12 stating that the landlord wanted to recover the property for his own use. On speaking with him, I told him that I would need to continue for 2 more months, to let my kids complete their school term and give me time to move out. He said he would get back to me the next day with his decision. Yesterday, I received a revised N-12 stating that the purchaser wants to move in. The landlord has cancelled the previous N-12, and says that he received a offer for sale and the purchaser wants to move into the unit and hence we have to vacate at the end of the lease. I understand that if I object, the landlord will apply to the Board for an eviction order. I'm just wondering how strong a case I have to get those 2 extra months. I am not 100% confident that the place has been sold or even if the purchaser actually wants to move in.
ReplyDeleteHi:
DeleteThanks for the question. You are aware that you can not be evicted during the course of the term of your lease whether it is for the Landlord's own use (or for the people the landlord is allowed to give notice for), or for a purchaser's own use. After the expiry of the term of your lease you will presumably continue your lease on an automatic month to month basis. A lease continues on a month to month basis in the vast majority of situations where a lease term ends.
There is a difference between an N12 served for a landlord's own use and an N12 served for a purchaser's own use. This is the operative section of the RTA with respect to purchaser's own use:
49. (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse; or
(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1).
How many units are in your apartment building? Is the landlord even allowed to serve the N12 on behalf of the purchaser in your situation? Take a moment to read through section 49 of the RTA--here is a link to the entire section (you will need to cut and paste it into your browser) http://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html#sec49subsec1
Presuming that an N12 may be served I think that it is important to remember that the 60 days provided for in the N12 represents the minimum number of days that a landlord must provide to a tenant. As this is a "no fault" based notice of termination one can reasonably expect the Board to consider the personal circumstances of the parties, and especially that of the tenants very closely. By that, I mean, the personal circumstances of the tenant matter greatly. Jobs, schooling, bus routes, medical appointments, a long planned trip, illness in the family, significant personal obligations that will impact on moving, poverty, ability to afford to move, promises made by the landlord---if factors like this are relevant then the Board will consider them in deciding whether to terminate the tenancy at the time int he notice, on some later date, or perhaps not terminate the tenancy at all.
I have advocated on behalf of tenants and landlords in a great number of N12 applications. I can't recall a single time where the termination date in the N12 was strictly enforced and ordered where the tenant objected to the date on the basis of it not being a reasonable date. Even where the tenant has argued quite unreasonably for delays stretching to years and the Board refused that request, the Board still extended the termination date. I have seen the Board extend the termination date by weeks, months, a year, and outright refused it where the landlord would otherwise have been entitled to terminate. The statutory basis for refusal or extension is in section 83 of the RTA. It is often referred to as the discretion section. Section 83 allows the adjudicator to consider all of the circumstances and decide to make an order that is consistent with fairness. Of course, different people have different conceptions of fairness and not everyone will be happy with the Board's decision nor will they consider it fair. However, my experience is that the adjudicators tend to try balance the interests of parties looking at the facts objectively.
You don't need to say anything to your landlord and you may simply wait for a hearing date. As you get ready to go to the hearing make sure that you organize the basis for your objection and further have proof of why you need extra time. For example, have a school calendar to show the end of school date. Have a medical note explaining why time is needed. Have something from your lawyer if moving requires action in relation to a family law issue (custody and access). Have something to show your efforts in finding something affordable in the same neighbourhood (if that's important). The point is to demonstrate your efforts, the reasonableness of your request for extra time, the hardship that a sooner termination date would impose on you and the tremendous help that additional time would be for you. If you're ready to show these things my experience is that you will get the time you need.
DeleteAs between you and a purchaser or between you and a landlord it is my opinion that the balance favours the tenant. Remember it is a no fault termination and the legislation is premised on the concept of security of tenure (i.e. tenants should not be forced to move easily).
That being said, relying on the exercise of discretion is still relying on the adjudicator's sense of fairness. There are no guarantees when it comes to section 83. Is your request for an extra 2 months reasonable? I certainly think so and can't imagine that you wouldn't get an extra two months if you provide the right evidence as to why you need the time.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI'd like to thank you for the great efforts and elaborated replies you are providing in this blog. It is really great to have such well-versed lawyer extending such much needed support to people who are less fortunate to access expensive legal consultation. Your contribution is highly appreciated! Thanks a lot man!
As for my case, I rented a condo apartment in 32-levels building for one year and signed a lease with xyz inc. I did that through a licensed co-op agent who represented me in the lease. However, I was surprised few days later to see xyz submitting a form to the building management, based on the latter request, in which landlord name was stated differently, one individual name instead of xyz (J for example). Despite this, two individual names (J&k) appeared always being the landlord on communications sent by the building manager who seems to have sufficient records on lawful landlord name and their address maybe from previous tenancies executed before mine.
I will be making the full story in parts due to limited space.
Plz help!
Vevo
Part 2
ReplyDeleteI wasn't comfortable to see such discrepancies in my executed lease, and sought clarifications through my RE Agent and xyz. I understood xyz is owned and managed by the listing agents of the property, and they represent the actual landlord who is working and living out of Canada on permanent basis, hence, xyz takes care of his property.
Since I made rent payments and PDCs to xyz I felt it is necessary to protect my rights by having proper documentation of such claimed representations, and later to rectify the deficient lease agr. However, my requests were ignored.
During the course of first 9 months of lease, I kept writing to xyz via email on a list of maintenance items that was recorded on the day of taking over the property. They attended only to 2 items out of 9 items, and ignored the rest. I later had to complain to the Bylaw Enforcement Unit at the City (EU) to get the maintenance done, noting that it included water leak which needed urgent attendance. Based on EU repair order, they fixed all items as stated in the order. I obtained copy of the order for my records.
Around that time, and before I resorted to EU; relationship grew more tense, as I kept writing on the documentation and the maintenance matters. Reluctantly, xyz shared a one-page of what it seemed to be a management agr between J and xyz (K is dropped also in this agr). It carried only one party signature (J). I had my reservations on the single-page agr being incomplete, and referring to clauses and schedules that were not available, in addition it didn't state whether xyz were authorized to collect rent on behalf of J or not, being my major concern from the beginning.
Vevo
Part 3 Vevo
ReplyDeleteOnce EU made their order to xyz for repair, xyz requested access to the unit and wrote that the landlord is coming also with them. When they came, I was introduced to a man being J the owner, who told me that "he has decided to come back to Canada and wants to live in his unit, and I should leave at the end of the term, and a termination notice will be sent to me on this". I made no objection, but asked him to rectify the deficient lease agr by signing an addendum stating the correct landlord name, or by giving clear authority / or his own consent for xyz to collect rent on his behalf. He was surprised and seemed not aware of such matters. He left refusing to share his contact number. Needless to say he didn't show any ID to confirm his identity.
Shortly, I received by email N12 notice from xyz (stating J&k being landlord, but signed by xyz being representative). I received another N12 also through a legal office on the same manner, i.e. J&K being landlords but signed by the lawyer being their rep.
From my social network, I understand the man who came to my unit was the brother of J. I got this man pics from social network sites, and I'm positive to confirm the one who visited my unit was not named J. I believe these guys impersonated the ID of J to make me believe the story.
Now, the notice of termination is due in days, and I haven't moved out, despite my several and sincere attempts. I have a big family with 4 little kids, and landlords are looking for "different type" of tenants!! I feel securing alternative unit is a real challenge.
Vevo
Part 4 Vevo
ReplyDeleteNow, I have the following questions and looking for your kind support and answers
1- I want to pay next month rent, but do not know to whom shall I pay it. I visited LTB but they couldn't give me an answer. They referred me to a community legal clinic, which I visited twice and provided copies of docs, and still waiting for someone to call me back. It's been 5 days since I visited them first time, and I am getting worried to fail paying rent on time without having a clear answer to whom shall I pay! I intend to pay by cheque, and will ask for a receipt. Can I email xyz asking them to come to collect the cheque against a receipt? What if they do not act on my request? Can I use the Building Manager (security desk / office) to have the cheque left with them for xyz pick-up against a receipt? Are they supposed to do so for tenants? Or shall I go to xyz office to hand the cheque myself? What shall I do?
2- Chances I win my case if there would be LTB hearing for the N12 application. My defense is based on 2 facts, a deficient lease and hence invalid N12 (as per my existing lease agr, J&k are not my landlords), and the timing and circumstances of the N12, being motivated by my request to get my rights (maintenance as supported by EU report).
On this, how can I use the manipulative attempt of impersonating the ID of J? Can I ask for proof whether J is residing in Canada or he is nonresident? What if J didn't appear in the hearing? Is this impersonating a criminal act?
3- My first option was to move out, but sadly I couldn't. I'm still looking, but now I do not know if I should give 2 months notice after lapse of termination due date or I still have the option to use N9 (10-days notice)? My understanding is during the course of N12 notice I have the right to move out before the termination due date, which must be end of a lease period by giving N9 (10-days notice to landlord). Termination due date is followed by 30-days in which landlord may file application for a hearing at LTB. So, before lapse of this 30-days; can I still have the option of using 10-days notice and leave conveniently by end of next month? Or, I must serve 2-months notice? Of course having the flexibility of using N9 would enhance my chances to move out. (N12 would become void if landlord didn't file an application at the LTB during 30 days of termination due date).
4- If I lose the LTB hearing, could I ask for more time to evict the property based on my personal / family circumstances. How? and How long?
Plz help!
Vevo
Hi Vevo:
DeleteI'll do my best to provide you with some guidance about the issues you raise. However, as time goes by you may wish to seek legal advice from a local community legal clinic as they will be able to interact more closely with you and they will also be able to look at your documentation.
Dealing with your numbered paragraphs.
1) The rent should be made payable to the same name that is in the lease agreement and the same name that you previously paid the rent to. It is possible under the Residential Tenancies Act to have more than one landlord. If you look at the definition of landlord in the RTA you will see that it is not narrowly defined. I think it is entirely reasonable to ask the landlord to come and get the rent or to alternatively ask them how to pay the rent. I would not use the building management as giving them the cheque does nothing to confirm that rent has been delivered to the landlord. Make your requests to pay the rent in writing and simply wait. Having proof of a willingness to pay is useful. If the landlord serves you with an N4--Notice of Termination of Non-Payment of Rent you could again ask them to pick up the rent or ask for direction on how to pay it. They will most certainly have to reply. If they do not, you could always raise this at a Board hearing where you will be given the opportunity to pay and stay.
2) I don't believe that you lease is deficient as I am making certain assumptions. If, as I presume, the owner of the condo unit hired a property management company to rent out the unit then nothing "wrong" actually happened here. You don't have a right to know the nature of the deal between the property management company and the owner. There does not seem to be any issue with the property management company having the authority to deal with the property as they have put you in possession of it. What is a bit interesting is that your landlord is a property management company. When you rented you were entirely unaware of a human owner. A reason to rent from a company in the business of renting out units is that you never face an N12 situation. Personally, when I move into retirement and want to rent instead of own to facilitate travel etc., I will try to only rent from corporate entities whose business is renting. The potential for hassle is much lower in my experience.
Anyway, it might be an interesting argument to take the position that your landlord is a corporation and none of the shareholders or principals of the corporation are the ones being proposed as the person who wants to move in. There is caselaw that lets a shareholder of a company move into a unit for their own use (this is an evolving concept in residential Landlord and Tenant Law). I'm not aware of any law allowing the titled owner of the property to serve an N12 when that titled owner has allowed the property to be rented out completely in the name of a management company. My point is that the titled owner is a complete stranger to you and you have no legal relationship with him. How does he get the right to serve you with an N12. Only your landlord can serve it.
The foregoing argument may be deemed to be too cute and maybe the Board would look through it. However, depending on how the facts play out this argument could be the basis for an extended termination date under section 83.
DeleteThe whole issue with the impersonation is difficult to assess. It is an odd thing to do for sure. I think you use it during your evidence when you explain what happened. If you think the N12 flows because of maintenance requests and then the landlord shows up with someone claiming to be an owner who isn't (maybe print pictures of the guy who did show up from your social networks), you can perhaps give the impression that the N12 was not served in good faith and there is no intention to occupy the premises for residential purposes. If the adjudicator is convinced you would defeat the N12. As for asking questions, if the person who claims to be moving in is present you can ask him whatever you want in cross examination (subject to being limited by he adjudicator). He does not have to appear as his affidavit that he must file can be the sole evidence. You will not be serve the affidavit so go to the Board and get it after the application is issued--it will be on file as it is a condition of filing the application that it be put on file. If you decide that having the person present would be worthwhile you could summons him to appear. However, consider the fact that his absence will also not allow him to lead evidence that contradicts any statements you might make.
3) You can see from the N12 that it gives you a right to terminate your tenancy earlier. So long as the N12 is valid there is no problem with using the right the Form grants you.
4) You may always ask fro extra time. The 60 days in an N12 is only a minimum number of days. If you explain to the adjudicator your personal circumstances, the efforts you have made, and what is a reasonable time line to move the adjudicator has the power to extend termination to a future date. In some instances an adjudicator may refuse termination altogether (it all depends on the facts). The power to extend time is a discretionary power in section 83 of the RTA.
Good luck and I hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Good Afternoon Michael, I have enjoyed reading your articles! I was wondering if you could point my family in the right direction. My family has rented the same house for 22 years. My common law wife has severe anxiety and agoraphobia and her mother is disabled so it's been hard to come up with a down payment in order to purchase a house. I moved in with them about 7 years ago; I have complained about the mold in the bathroom, the front door handle is broken off,( I have warned him about the danger's it will cause if my mother in law can't open the door), ducts never been cleaned. Then he told me a couple of years ago that the house was paid off but now all of sudden he is refinancing and can't get a loan. He owns other properties and he needs to sell the house. He told me that he is not going to fix the door because his real estate agent said the new owners will change locks anyway so it would be a waste of money. He came with the agent and went over times so he can show the house. We worked something out but it's difficult as my mother in law going to dialysis a few times a week and had a stroke, so when she comes home she is exhausted. We need to find a house where it's close to her dialysis. The landlord gave us a type written letter saying by law we have 60 days. The letter states upon sale of rental property but verbally the landlord and agent multiple times have said we have to be out by June. I asked them a couple or times and they said by law that's the case. I have a feeling they are trying to take advantage of me and assume I can't read. I did not say anything to them at the time but, I may be wrong but it seems they want to trick us into getting out because the house won't show very well with us in it. Also for the last month his daughter's car insurance mail has been forwarded to our address. I asked him about it and he just she's having some problems and wouldn't elaborate. I don't know what he is up to but I am stressed. My wife is having panic attacks because she is trying to get better in order to be able to leave the house but it's hard for her. She is afraid because she is unable to travel any distance and has to take care of her mother at the same time. Can you point us in the right direction? Thank you so much! I appreciate your time.
ReplyDeleteHi: These are a difficult set of facts. The condition of the house suggests that it may be in need of serious maintenance and repairs and you could indeed force the landlord to do that work. A call to the Property Standards Department in your town/city would likely get an order issued that would require the work to be done. Of course, given the health conditions of the people living in the house, getting an order requiring that work be done might just be incredibly disruptive and perhaps the preference is to simply leave it?
DeleteYour interpretation of the N12 is correct. You do not have to move out until a purchaser is buying the premises and indicates an indication to occupy the premises for residential purposes. There is no general 60 day notice of termination that a landlord can serve to terminate a tenancy.
The other things you describe--daughter's car insurance--are things that raise more questions than answers. Having his daughter's mail delivered to your house does not help him with anything in the realm of Landlord and Tenant law. Perhaps there is a use for it otherwise that you are not aware of.
In general, it sounds to me like your family's tenure in this house is coming to an end. I think it would be quite reasonable for you to look for a new place that meets your criteria. Whether the landlord ultimately gets you out or not you should consider trying to find a place that you would be happy in. If happiness is in the house that you are living in--maybe you could try to buy it in the condition it is in. Perhaps the landlord is desperate and he might just accept a low offer. Consider getting a third party to buy it for you as you might find the landlord is more willing to deal with a stranger than he is with you. If that becomes the plan, go get an experienced local real estate lawyer who can guide you through the process. If buying simply won't work then you should begin to take steps to find a new place.
Ultimately, if you haven't found a new place and you are facing a legitimate eviction application there will be other ways to get extensions of time from the Board. There is nothing absolute about the 60 days notice. However, you should also not presume that you will be given an indefinite period of time to find a new place.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much for your help Michael!
DeleteGood morning Michael,
ReplyDeleteMany thanks for your kind and generous replies. It helps a lot!
I just wrote to xyz and asked them to pick up the cheque against a receipt.
I noted your comments on the lease agr being ok (not deficient despite the fact that landlord name is not the titled landlord). I noted your argument as well that by having a corporation landlord, I am in a better position to defend my case against possible N12 termination. I have learned also that within the 30-days that follow the termination due date; N12 remains valid, and hence, I still can use the 10-days option granted in the N9 form. Additionally, I now understand more accurately that my optional termination based on 10-days-notice should not be necessarily limited to coincide with the end of the lease period (end of the month). I quote below this para from N9 form
"If the tenant is giving this notice because the landlord has given the tenant a notice of
termination for landlord's or purchaser's own use, conversion, demolition, repairs or renovations and
the tenant wishes to leave earlier than the date in the landlord's notice, the tenant must give the
landlord at least 10 calendar days written notice to terminate any type of tenancy. The termination
date does not have to be at the end of a rental period." Unquote
Again, thanks a lot, and have a nice day!
Vevo
Landlord serve me n12 today but I have order to comply for broken septic system which he won't have to fix if I move out
ReplyDeleteIs it clear he is acting in bad faith if I have order to comply?
Can I call you?
Hello Michael,
ReplyDeleteI have a delicate situation with my landlord. I signed a one year term lease in Mar2014. Lease commenced on 1st Apr2014, and expired on 31Mar2015. I paid first & last month rents in advance, vide a draft cheque. I got receipt for the same. Cheque was made in favor of brokerage firm. I wrote also 10 PDCs in favor of landlord, and I got receipt from landlord for the same.
In Dec2014, and based on my request for fixing a faulty washing machine (included in the lease) which flooded my suite, landlord served me N12 notice for self use. N12 stated termination to be 31Mar2015. However, I didn't move out because I believe landlord served N12 in bad faith, and did this because I got him repair the washing machine through a bylaw order.
Currently I wanted to pay Apr rent but landlord asks me to pay Mar and Apr rents, claiming that what I paid in advance (being last month rent) is not for Mar2015, it will remain with him as a security till I actually leave, and will be applied towards a future unknown last month. I challenged him to prove his claim, based on any clause in the signed lease that requires me to pay for a deposit, or for him to keep it as a deposit, which he failed to prove. My argument was if my lease required a month rent to be kept as a deposit he should have stated this clearly in the lease before we signed it. The fact that I paid first and last plus 10 PDCs defies his argument. Because if his argument is right, he should have collected 11 (not 10) PDCs, to cover the 12 months rent, and for the last to remain as a security as he now demands.
I tried to read through the regulations of the Tenancy Act, but couldn't find a clear answer on how to treat the "last month rent". Did I pay Mar2015 rent, and I'm now liable to pay Apr rent, as I understand? Or what I paid in advance cannot be applied towards Mar2015 but towards unknown future month, and therefore I've become liable to pay Mar & Apr as he demands? Does the fact of having served with N12 notice affect the case?
Appreciating your valuable clarification to this matter.
Thanks
Linda
Hi Linda:
DeleteThe only deposit that a landlord may legally ask a tenant for is a last month's rent deposit (LMR). The LMR is applied to the last month of the tenancy and not the last month of the term. I'm not sure what your lease says but if it is a standard form lease the reference to the LMR will make it apply to the last month of the tenancy and not to the last month of the 1 year term that you signed in the lease. If your tenancy were indeed ending, at the end of March 2015, then the LMR would properly have been applied to the month of March. However, given that the tenancy is apparently continuing your ongoing monthly rent is due and the landlord will still retain the LMR as a deposit to your eventual last month.
The collection of post dated cheques is nothing but a convenience. The landlord may not legally demand it and you are not required to provide them. That you gave 12 cheques, including the LMR, does not reveal anything about how the LMR is to be used. You could have given a Notice of Termination for the end of the 12 month term in which case the LMR could have been used for March.
The N12 that your landlord served on you will become void 30 days after the termination date in the N12 unless the Landlord applies to the Board to terminate your tenancy and evict you. The landlord only has to apply to the Board within the 30 days after the termination date.
Hope that clarifies some of the issues for you. The section in the Residential Tenancies Act respecting Last Month Rent deposits is in section 105.
Michael Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI have just found this blogspot while researching my issue, so much useful information!
I live in Toronto and have a year long lease ending August 2015. My apartment is on the main floor and the landlord lives on the 2nd & 3rd floor, there is also a basement unit. When I signed the lease, it stipulated the backyard was for the sole use of the occupant of the main floor apartment, save for entry to the basement apartment and landlord access to a shed at the back of the yard.
Much to my surprise I have just received the following email: "I have given this a lot of thought and I wanted to let you know that I would like to make an amendment to the lease at the lease end on Aug 31, 2015 regarding the back yard.
I wanted to speak to you about the change to revoke the rights to the backyard be held solely by the main floor apt. I am planning to do some work on the home in which I will be using the backyard heavily once the permits come in and we find the appropriate contractor, (this most likely will not start until next spring, but it could be as early as late summer). One of the Reno plans is to enclose my back porch and also adding a spiral staircase as another exit from the second floor down to the backyard. I do not plan to have my kids playing in the backyard just to let you know, but would like to add a water feature back there at some point.
I would like the backyard to be an accessible maintained common space for all of us. I wanted to send note this to you before you started investing your own money on planting. I understand that you enjoy gardening, I continue to invite you to work with the space back there if it pleases you to do so. However, I wanted to let you know about my future plans for this home."
My questions are twofold:
One, re the revocation of sole use of the back yard, what are my rights as a tenant? I would not have rented the apartment with shared back yard usage and had made this clear before I signed the lease. As well, the rental amount would be partially based on sole usage of the back yard, if I am to allow usage of the backyard for renovations, should I expect/request compensation?.
Re the renovations, what rights do I have regarding noise and infringement on the enjoyment of my apartment (noise, dust etc) while the renovations go on? I currently work from home and I can imagine the noise factor will not be pleasant. Are there other concerns I should be aware of or request further information (ie, timeline for repairs)?
I greatly appreciate any advice or assistance you can provide.
Mary
Hi Mary:
DeleteYou could assert that the backyard forms part of the rental unit given that it is described in the lease document. You could seek to equate the yard to a room in your apartment and argue that a landlord is not allowed to simply take back part of the rental unit because he suddenly feels like it. Taking back possession of the backyard could be equated to an illegal entry of your rental unit. You could seek to enforce your entitlement to the backyard through a T2 application to the Board.
The other possibility is that the Landlord will look at the backyard as a "service and facility" and that the removal of it at most entitles you to a reduction of your rent. In this regard take a look at section 130 of the RTA and section 39 of O.Reg. 516/06 (all searchable for free on www.canlii.org). Given the definition of "service and facility" in section 2 of the RTA I'm not sure that the landlord would have success in arguing the removal of the backyard from your exclusive use under your lease.
With respect to using the backyard to do repairs/renovations I do believe that you are entitled to compensation for a loss of use of the backyard during that period of time. It is to be noted that this is not a repair or maintenance but just a renovation for the pleasure of the landlord which puts this in the category of a capital improvement. This is significant from a planning perspective as nothing would, presumably, need to be done on an urgent basis.
A good guide for entitlement to compensation during repairs is found in section 8 of O.Reg. 516/06 (again searchable on www.canlii.org). What is good about section 8 is that it sets out a test/framework of how a landlord minimizes the compensation to be paid to a tenant by following certain rules. These rules are designed to give a tenant notice and an opportunity to plan around the project being undertaken. What will be significant for you is the timing of the project as there should be enough flexibility to plan it so that the work is done during a time that the yard would not be used as much as other times of the year.
Good luck and I hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Thank-you so much for the reply Michael, it is very informative and helpful.
DeleteOff to do some research (which I enjoy), with much less stress in my life.
Thanks,
Mary
I am a landlord for 5 yrs now, I have had a situation in oct 2014 and witnessed , of several police forces entering my rental property with a court order to arrest my tenant for a illegal active.
ReplyDeletePrior to this I emailed twice (may 2014 and sept 2014) my tenant the garage needed to be take out, how it was suppose to be disposed and and when, due to health issues and safety issues-mice were present now)
I severed a n6 and n12, did an inspection of my property-$2000 damage and cat pee through out the house.
my tenant moved out with his ex wife do to his bail conditions, I took over possession for 2 and half months, during that time it was not livable.
I was deciding to sell it. then I got into a bad car accident-someone coming out of a gas station did not see me.)I need someone to take care of me. I decided to rent my rental property.
My ex tenant has now put in an application n6 -bad faith, I have been told asking lots of money that is not reasonable. that I feel that is extoration and the police should be involved and I am being stalled at my residences.
pls give me some advice, my lawyer is involved. to
Hello: I am very pleased to read that you have a lawyer and you should continue with having representation for this case against you. For anyone reading this comment, and to confirm that I understand your situation, you served your tenant an N6 (Termination for Illegal Act) and an N12 (Termination for Landlord's Own Use). It sounds like the tenant did not move because of either of these notices---bail conditions instead---but it appears that the tenant is now taking the position that he did move out because of the N12 Notice of Termination.
DeleteThe law provides that if a Notice of Termination, like an N12, is served in bad faith, then the tenant may bring an application against the landlord to recover certain losses. Your lawyer will advise you that the nature of the compensation that the tenant may claim is fairly limited (with exceptions). The standard claims are for moving costs and the increased rent differential for a period of one year. That however, is only the case if the tenant is successful in their application.
From what you describe, the case will be difficult. You served two notices of termination. The N6--illegal act, if successful would have terminated the tenancy and the tenant would have had to move out pursuant to the Notice. If the tenant had not moved out you would have filed on the N6?
The N12 is more problematic in how you describe the facts. You are not allowed to serve an N12 simply because you want to sell the property. If this is what happened, then that is a problem. If you served the N12 with the intention to move in then the N12 is valid. The key to service of the N12 is that there was a good faith intention at the time of serving the notice to occupy the premises for residential purposes. The after the fact (after service of the N12), changes in circumstances are allowed to make you change your mind. The extensive damage, the bad car accident and change in your personal circumstances, allow you to change your intentions and not move into the rental unit without making you liable for a bad faith serve of the N12. The underlying facts are extremely important and determinative of whether there is any basis for the tenant's application. In summary, however, if the N12 was validly served, and you regained possession as a result of the N12, you are not necessarily liable to the tenant because you did not move in and started renting it again. There is caselaw to this effect that your lawyer will have.
Lastly, consider the following. Even if you are liable to the tenant the tenant owes you a significant amount of money. If you haven't already, consider filing a claim in the small claims court for all the damages that the tenant owes you (at least $2000). If you are ordered to pay the tenant anything there will likely be a set off against what the tenant owes you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
ReplyDeleteI have been served an N12. I absolutely do not believe this is given in good faith due to the history I have with my landlord. I can probably win my case with the evidence I have alone but wanted to ask a question. my landlord intends to move in to my building because he is supposedly getting married when I asked him for details about it he was extremely vague. but let's just say he really is getting married. he hasn't been living common law with his boyfriend. his intention is to move his boyfriend's mother into my unit. Surely in this case she cannot be considered immediate family until the actual marriage takes place? in my opinion this would invalidate his claim. your insight would be greatly appreciated. Thank you
Dear Michael,
ReplyDeleteThank you for your prompt reply. I have a follow-up question for you. Since I am confident that there isn't a spouse in this instance and the Landlord either doesn't know the law or is deliberately trying to manipulate me what is the best way forward here?
Do I do nothing and wait for him to force a hearing which he will lose? Do I look bad in such case for refusing to move?
Or is there something I must preemptively do now that I know his N12 is not valid?
Also, I forgot to mention that aside from the spouse issue, the house I live in has a vacant unit available in the basement so it would seem difficult for the Landlord to prove that evicting me is essential.
I'm thinking there is a clear strategy here for someone seasoned in these matters such as yourself.
Many thanks,
Theodore
Theodore: How to proceed is a matter of strategy and different people will have different ways of looking at a situation. Presumably there is no "one right answer" either. That being said, I decide how to proceed based on the facts of each case and based on the history between the landlord and tenant. Sometimes the landlord needs to be taught a lesson and proceeding to a hearing and losing gives the landlord a dose of humility that allows the relationship to continue on less adversarial terms. Hence, often enough, the best thing to do is do nothing until the hearing. Don't warn the landlord about anything and be ready to fight the application that you are facing. If you warn the landlord about the deficiencies in the case you might find that he adjusts his case to avoid those problems and now you are fighting a case that is harder to beat.
DeleteThere is nothing in the Board rules that requires you to advise of technical deficiencies or other problems in a case. You definitely don't "look bad" for refusing to move as you are fully entitled to remain in your home until the landlord serves you with a valid notice of termination.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteVery informative article, for me as both a landlord and a tenant!
Can a lease agreement include a clause that precludes a landlord from moving into the rented apartment or condo, so as to guarantee stability for the tenant for a specified term? I've been burned 3 times with landlord move-ins or house tear downs. And each time I was given a promise of long term stability for me and my boys. I am a model tenant, responsible medical professional, but the houses have been sold or torn down, and there's nothing I can do. (The last situation the owner is re-possessing to die with cancer in the house, having been living in Jamaica and needing Canadian medical attention.) So I'm looking at a condo unit I really like, which will never be torn down, but can't be sure of the owner's intentions since they own a house and bought the condo to move into once the house sold (which I suspect it hasn't yet). Or so I've been told.
Thanks
John
Hi John: What would protect you is to sign a lease for a longer term---i.e. multiple years. A landlord may not terminate a lease for own use during a fixed term. If a landlord is not willing to sign a multi-year lease then consider asking the landlord to sign a new one year lease at the expiry of every fixed term. You would at least know that you are good for another year. If the landlord refuses to sign a new lease then you will proceed on a month to month and you will know that your landlord likely has plans to take back your home.
DeleteAnother option is to look for landlords that are in the commercial business of renting apartments. These landlords will not look to take possession for landlord's own use and arguably it is impossible for them to do so.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteYour article and subsequent comments are great. Thanks so much for this. I'm wondering if there is any possibility of using an email in lieu of an N12. I was emailed by my landlord to say that I needed to vacate within 90 days because they would be using the house for personal use. I've been a great tenant and was sorry to have to go but started looking immediately to make sure I found something suitable. I did and then emailed my landlord to say that I would be leaving by the end of the current month (10 days after receiving notice and 2.5 months before the end of their outlined eviction date). My landlord is now claiming that I am not due a refund of my last month's rent because I didn't give 60 days notice and it seems like without an official N12, I am not entitled to end tenancy with the standard 10-day provision. Can an email stand-in for an N12? Or am I out of luck because I didn't insist on getting an official document to end my tenancy? The entire conversation is in email format.
Thanks for any insight you can provide!
On December 10, 2013, Property Standards Officer (City of Brampton) brought to my knowledge that my basement is illegal. I notified the tenant that occupied the unit but he refuse to move out. Again on April 30, 2014, the Property Standards Officer (City of Brampton) came to my house and said there are several complaints against the unit. Once more, I asked the tenant to move out and he called the police on me saying I “broke into his apartment.” When he moved into the unit there is neither a door nor frame but he altered and constructed illegal structure. Anytime, I booked appointment with the City officers he will remove the door and frame making them believed no one lives in the basement. I was having sleepless night and fearful so I called city officers myself and I explained the situation and how the tenant always threating me Landlord and Tenant rules (he has the book).
ReplyDeleteSince I am a new landlord with little knowledge, I remove the door and frame on November 2014, before I travelled and I begged the man to look else for accommodation but he refuse to vacate the unit because he has a big dog (aggressive and dangerous). On my arrival May 5, 2015, I sent him a text message that I am pregnant and I need the space for family use.
What forms do I need to fill from Landlord and Tenant board? Also, what’s the process like and how long?
Hi: It is not clear to me that you are in fact covered by the Residential Tenancies Act. If the basement had no door or separation from your unit it sounds more like a roommate and space sharing situation than a separate rental unit. Did you share a kitchen and/or bath with the tenant? If so, the legal relationship is clearly not covered by the Residential Tenancies Act.
DeleteNote that the legality of the unit under the City of Brampton Property Standards by-law does not help you. Your tenant, [if indeed this relationship is covered by the Residential Tenancies Act] still has the protection of the RTA regardless of the legality of the rental unit.
If you are satisfied that the Residential Tenancies Act applies (or you can ask the Board in an application in Form A1--if it does or not), then the legal ways to evict the tenant for landlord's own use is by using the Form N12. You can get this Form on the Board website and there is an instructions/guide on the website that will help you fill it out correctly. It is very important to be absolutely correct in filling out this form otherwise the whole process will fail and you will have to start again. The timing on an N12 is 60 days of notice to the end of term-minimum. You may apply to the Board as soon as you have served the N12. Note the grounds for the N12 are a good faith requirement for landlord's own use for residential purposes---NOT because the unit is illegal or you don't get along with the tenant.
Another basis to terminate would be to use the N13 form to demolish the rental unit. If there is indeed a rental unit in the basement and it is illegal then you could indeed "demolish" the rental unit to be in compliance with the City By-law. That process is a minimum of 120 days though again, you can file an application with the Board after you have served the Notice.
I hope that this has helped you. Do consider retaining a lawyer or paralegal to assist you. These issues are complicated and if your tenant is as knowledgeable as you say you might find yourself facing serious consequences (financial) for doing things that you did not realize were illegal.
Good luck
Michael K. E. Thiele
Dear Michael,
ReplyDeleteThanks for setting up this blogspot, it is immensely helpful. Our question is: to legally satisfy the "personal use" provision for a landlord to ask a tenant to move out, does a landlord need to actually move into the house they had formerly been leasing to the tenant, or is it enough to demonstrate good intent to move into the house? The reason this comes up is that we are London, Ontario landlords who thought we needed our tenant's house while our primary residence was being renovated, but a house came up for sale at the last minute (literallly weeks before the demolition on our primary residence was going to start, and after we already had a building permit) which was a better option for us, and which we purchased. Now, we will only need to use our rental property to store things in-between moves, or in the worst case, live for a few weeks in case the closing dates on our old and new primary residence do not line up. If we end up only using the leased house for storage, but can demonstrate in good faith that we intended to live there, are we in violation of the Ontario Tenancy Act?
Thanks,
Thomas
Hi Thomas:
DeleteYou will have served the N12 Notice of Termination for Landlord's Own use. The law requires that this notice be served in good faith and that the landlord, at the time of serving the N12 required possession of the rental unit for the purpose of residential occupation (see section 48 Residential Tenancies Act).
The N12 that you served was served at least 60 days before the termination date in the N12 (it had to have been to be valid). At the time of serving the N12 I will presume that you knew nothing about this last minute house that came up for sale. What happened is that your good faith plans were changed by new circumstances.
Are your plans allowed to change? Yes they are. The analysis of whether you served the N12 in good faith or not is by looking at all of the circumstances at the time that you served the N12. Having the demolition permit, likely a list of emails, contractor quotes, and everything that goes into deciding to do the renovation likely supports the need to get the N12. Presumably the renovation would have been for an extended period of time.
The change in plans is permissible and does not end up violating the RTA so long as you can prove that the change in plans occurred after the N12 was served and was not forseeable. There are a great many cases that deal with similar changes in plans and landlords were not found liable to the tenant for a bad faith N12.
Tenant's can sometimes come back against a landlord if they see that the landlord does not move into the rental unit. Not moving in gives the first impression that the N12 was served in bad faith---but in fact whether or not a landlord moves in is not determinative of whether the N12 was served in bad faith or not.
From what you describe I think you would likely be fine and not be liable for the tenant's expenses etc..
What is perhaps a bit besides the point, but nevertheless a part of all of this is whether you were entitled to serve the N12 at all. There is a fair amount of case law dealing with the circumstances under which a landlord is entitled to serve an N12. Serving the N12 to gain short term use, temporary use, or occasional use of the rental unit has been considered to be an improper use of the N12 and termination and eviction has been denied where tenants have resisted the N12. If your demolition/renovation of your primary residence was planned to take place over a few months, 5 months, etc., it is possible that the Board would have refused your N12 on the basis that you only wanted the rental unit for a short time. Presumably your tenants moved out so this question will not be answered but certainly, if your intention was for short term occupancy your tenants could have refused to vacate.
Hope this clarifies the law somewhat for you.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteLove the blog. It has been a great help for me, as well as just an enjoyment to learn about the law from. Thanks!
I have a question stemming from your discussion on the comment of 2 February 2015 above, which was about the nullity of improper N12 impacting the ten days notice of 49(5).
Does the same logic perhaps apply to tenant applications under s. 57 after moving out based on a bad faith termination for landlord's use? We've been given notice of landlord's use with a letter, not an N12, with termination and notice dates not aligning with the rental term, were told the person moving is a sibling (which I understand isn't allowable), etc. I have some evidence of bad faith and hope to pursue the issue after moving out to avoid living in conflict (landlord lives in a unit in the same house, and has a history of obnoxious conduct). I fear pushing the issue to get a real N12 will reveal to the landlord the deficiencies in their approach, allowing them to strengthen their attack. (Though at this juncture I don't see a lot of avenues they could pursue aside from intimidation and destruction of quiet enjoyment).
My goal isn't so much to resist eviction, because I know there would be retaliation, but the real motives around the eviction (a crying infant born two days before this notice letter was hand-delivered) make me want to extract whatever financial penalties are possible. And there will be real additional costs from moving in this situation of course.
Do you think the board will make orders for payments under section 57 in this circumstance of a non-N12 and error-ridden letter of notice? Or does the same logic as in the 2 Feb. discussion apply? If so and I do request and get an N12 and still it has technical errors re: dates of term or the like, for instance, could it, too, be possibly null and prevent a section 57 application?
Any advice you can provide, or other avenues to pursue re: child-related evictions and redress, are much appreciated. And I don't know if you can recommend someone as skilled as yourself in the GTA or if you practice here, but if so I'm all ears.
Hi:
DeleteIt is an interesting question that you pose but one that in your circumstances must remain theoretical. Your actual knowledge that the termination demand on N12 like grounds in a letter for a person who does not qualify (s. 48) makes the kind of application you are contemplating under section 57 very difficult as you in fact know that the landlord's notice can not lawfully require you to vacate the premises [s.57(1)(a) ... in bad faith, the former tenant vacated the rental unit as a result of the notice ...] and you would not be moving out because of a belief that the Notice from the landlord is legally binding.
The difficulty with the landlord's letter, as a Notice of Termination under section 48 (Landlord's Own Use) is that you need to connect the landlord's demand to that section (48) under the RTA. Did the landlord, in his letter say something along the lines of: I am terminating your tenancy under the Residential Tenancies Act to move in my own family member and this is a permitted ground for termination for landlord's own use? I don't expect that the letter would say it so explicitly, but you need something to link the landlord's letter to section 48. Otherwise, a curious defence to your section 57 application is that the landlord would say--"my letter couldn't possibly be a valid notice under section 48 and I purposely did not use the N12 Form as I knew I could not give valid notice under this section". The landlord might say," I told the tenant I wanted to terminate her tenancy so my sibling could move in and she agreed to move. This wasn't termination based on section 48, instead it was a simple agreement to terminate (s. 77)". To avoid a defence like that you need to link the contents of the letter to an equivalent Notice under section 48.
In a broad sense, I do believe that if a tenant receives a Notice of Termination, in letter form, that references the landlord's right to terminate a tenancy for Landlord's Own Use and the tenant relies on that notice and then it becomes clear that the letter was not served in good faith, that a tenant would have the right to file an application under section 57. It is not ideal that the landlord did not use the N12 Form but I see an estoppel argument being raised against a landlord who tries to avoid the thrust of the section 57 argument on the basis that they didn't use the correct form or that the form was void.
Good luck with this landlord I hope it works out for you.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks Michael, you raise a lot of interesting issues that I wouldn't have recognized. The letter does refer to family but not in the tightly-linked way you very wisely discern. I will ask them for the "official form" once the current month term expires, and see if I can get an N12 out of them.
DeleteIf I might return to the original aspect re: nullity, it seems like you are implying that if they give me an actual N12 (or s. 48-referencing letter), even if it is "void" in terms of having a technical error like incorrect termination dates or misspelled names, it would still be a valid notice of termination for the purposes of s. 49(5) and s. 57. Assuming that the recipient, of course, believed it to be legally binding despite its deficiencies. If you have the time, any further thoughts on whether a fully valid N12 is needed to access those sections' remedies? Is there case law around this issue?
Hi Michael,
ReplyDeleteLet me try this again. I'm not sure my first comment was submitted, if this a repeat, my apologies.
First let me thank you so much for providing this blog. It has been extremely educating to read all previous comments.
My questions are as follows. We took possession of an occupied lakefront property on May 1st, 2015, that is 130' wide by 288' deep with the intent of eventually demolishing the home and building our dream home. The existing tenants have lived in the home for exactly one month before we took possession.Upon request by our lawyer and our bank for a written agreement, the previous owner told us there was only a verbal month to month agreement. Our lawyer then drew up a legal document, that the tenant signed on April 24th, that stated that we are now the owners and that the agreement was a verbal month to month agreement. They had the option of circling whether it was a written agreement or a verbal one and they chose the verbal one. We also verbally agreed that we would be doing the yard maintenance at our convenience and that we would be using the 60 foot dock for our personal use, and that we would be accessing the dock by using 50 feet of the property to the far right of the house. They have since made uncomfortable comments about our usage of the dock and the 50 feet of property. Our lawyer recommended that we have them sign a written agreement clarifying our intents and restrictions of the property for the tenants and us, as landlords. We presented them with this agreement on June 4th, 2015, which they refused to sign, as I understand is their right. They in turn present us with a written agreement, that was signed on March 4th, 2015, between them and the previous owner (remember, we were told that no written agreement existed). They are telling us that this agreement supersedes the agreement that they signed with us on April 24th and that we must abide by that agreement. Which agreement takes effect in this case?
If in fact the verbal agreement is in effect, can we put specifications on the property, such as prohibiting usage of the dock and the 50 feet of property to the far right of the house? When I spoke to the LTB, (when I thought I had a verbal agreement) the agent told me it was our right as landlords and that it could be inforced by putting up a no trespassing sign. When I called back for clarifications, the second agent was all over the map about my rights. What are my rights concerning this?
And lastly, we had always intended to use this property as a summer cottage until we build. Can we serve them an N12 for this purpose?
Thanks so much again. Any advice would be greatly appreciated.
Hi Michael
ReplyDeleteI was scheduled to move into my girlfriend's house. I rented my place with s one year lease. 6 weeks before the lease start date, and scheduled move in date the relationship ended.
I now wish to remain in my house (I never moved out) with my young child. Do I have any options to break the lease and remain in my residence
Hi: The factual background is a bit difficult to understand. You are currently in an apartment on a one year lease. Did you give notice to terminate that tenancy? If not, then the tenancy continues. If you did give notice will your landlord allow you to continue in the tenancy? If so, that problem is solved. If your landlord will not agree to continue your lease (in writing if you gave Notice to Terminate), then your landlord could file an application to the Landlord and Tenant Board to terminate your tenancy and evict you. This is a difficult application to "beat" if you did indeed give a valid notice to terminate your tenancy.
DeleteBreaking the other lease---I presume this is in a different building with a different landlord? You refer to it as your "girlfriend's house". Does this mean that she is the tenant and you were just going to be an occupant? I'm left wondering how it is that your are a legal tenant in this new place. Did you and she sign a lease together or were you just added to the lease? Presumably your former girlfriend is not expecting you to move in with her anymore. Is it possible to work this out with her?
If you provide some more background facts I can try to point you in the right direction. An alternative is to find a local community legal aid clinic. It sounds like you only need a short consultation which would work best if the lawyer you meet with can ask you for the information/details needed to answer your questions.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael.
DeleteI have my own personal residence, my ex girlfriend has her own personal residence. She was going to move in with me August 1st but still resides in her personal residence. In May she entered a less agreement to rent out her house (because she was going to move in with me). We have broken up, and she is claiming she and her son will be on the street. The tenancy is to begin August 1st. Can she get out of her one year lease?
Hello, I have issued the N12 to my tenant because someone purchased the house after the lease agreement ends. I am not sure whether or not they will follow with the agreement. Should I take this further and go for the L2? If so, is the hearing strictly just about the termination date or can I bring up other thing my tenant have given me issues with?
ReplyDeleteHi: If you have any doubt about the tenant moving out it is best to apply to the LTB right away. The benefit of applying to the Board is that you will get certainty sooner. The process will determine the validity of your N12, it will determine whether the purchaser has a good faith intention to occupy the premises for residential purposes (see section 49 RTA), and it will give you an order terminating the tenancy and evicting the tenant (if you are successful). Doing this sooner than later gets appeal and review timelines rolling and if the Board were to exercise discretion to give the tenant some more time to move it is better to get that happening now as opposed to after the time to move in the N12 has come and gone. Note you must apply to the Board within 30 days of the termination date in the N12.
DeleteYou don't say in your question whether the purchaser intends to move into the house. This is a condition of requiring the tenant to move out for a purchasers own use. Just because a lease ends does not mean that the tenant has to leave. In Ontario, tenant's have security of tenure and this means they may continue their lease even after the expiry of a fixed term on a month to month basis.
If you apply to the Board with an L2 based on an N12 those are the only issues you can raise for termination purposes. If the tenant seeks to extend time--asking for discretion--then other factors pertinent to the exercise of discretion would be relevant.
Good luck
Michael K. E. Thiele
Hello Michael: I'm in a bit of a predicament, in that my apartment in a 4 plex that I have lived in for 17 years was sold last summer (2014) and the new landlord is now threatening to evict us because our rents are so low.....he has served my immediate next door neighbours with an N12 eviction notice stating he wants his 75 year old mother to move into their apartment. Needless to say, we all feel this is a sham as these are second floor apartments and totally inappropriate for senior living....be that as it may, I am sure he will present a signed affidavit swearing his intentions to be true: I read documentation that the landlord cannot use the "family" card when it comes to evicting tenants in dwellings with four or more separate apartments, only dwellings with three or less separate apartments. Is this true? Do we have any recourse? My neighbours did not sign the N12, fyi
ReplyDeleteReally appreciate your professional feedback
thank you very much
Hi: The issue that your neighbor is facing is whether the landlord in good faith requires the rental unit for the purpose of residential occupation by his mother. The section that applies is section 48 of the Residential Tenancies Act. There is no restriction in this section on the number of units in the building for which an N12 may be served. You may be thinking about section 49 of the RTA which is an N12 being served on behalf of a purchaser. That section states: A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by, ...
DeleteAs your neighbor is dealing with a landlord and not a landlord on behalf of a purchaser the section 49 restrictions do not apply to your neighbor.
The focus of a defence needs to be challenging the good faith of the service of the N12 and the landlord's true intentions. Also, discretionary relief can be sought depending on the circumstances of the matter under section 83 (usually a delayed eviction).
Good luck to your neighbor.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteWhat do you say in a letter to end tenancy? My tenants has not been paying the rent on time, the husband threaten me a few times the last time, they did not pay the rent for over two months then threaten me if I do not extend the lease until December 2015, they will not pay at the same time owing $3,000.00 in rent. Can you help me out? Just a few months to go the lease ends October 31, 2015 so I am feeling very happy to get rid of them.
Hi: I think I am going to be the bearer of bad news for you. In Ontario, when the lease ends, the lease continues automatically on a month to month basis. The tenant is allowed to give Notice to terminate the lease and move BUT the landlord has NO right to terminate the lease just because the term of the lease is ending.
DeleteIf a landlord wants to terminate a lease you have to find grounds for termination in the Residential Tenancies Act. Each "ground" of termination corresponds to a specific Form (Notice of Termination). You need to fill out the Notice of Termination, serve it, and by following the Rules of the Landlord and Tenant Board you need apply to the Board for a Hearing. At that Hearing the tenants will be allowed to fight the allegations and the Adjudicator (judge) would decide whether to evict or not.
In the brief facts you provide--the late payment of rent (if it is regular) can be the basis for a termination of the tenancy for persistent late payment of rent. You would use a Form N8. The threats, depending on the specifics, could be a substantial interference, impaired safety or illegal act. Sometimes it is a combination of all three. The Forms to use are the N5, N6, & N7---choose the form that fits the facts.
If you can get an agreement with the tenants for them to move out, use a Form N11 (you can get a copy on the Landlord and Tenant Board website). Both the Landlord and the Tenants need to sign the form.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteThanks for your reply. However on July 3, 2015 they were served with the N12 for. I live and working in Niagara Falls area now, I broke up with my fiancé, to who I was living with I need to move back Brampton and resume my job there. So what do I do now? I have already filed an order with the LTD .in which I will peruse, just awaiting a court date
My employer has given me two months August and September to wrap this up, if this is not completed by then I will lose my job. So what is my option now, I have no where else to go, I cannot let people that is not paying rent to remain in my house while I rent to pay. I cannot pay the mortgage and rent at the same time I want them out.
Thanks for your help Michael
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THIS WAS MY FIRST POST TO YOU:
What do you say in a letter to end tenancy? My tenants has not been paying the rent on time, the husband threaten me a few times the last time, they did not pay the rent for over two months then threaten me if I do not extend the lease until December 2015, they will not pay at the same time owing $3,000.00 in rent. Can you help me out? Just a few months to go the lease ends October 31, 2015 so I am feeling very happy to get rid of them.
Hi: You have served the N12 for landlord's own use. The earliest termination date on that N12 has to be for October 31, 2015---because that is when you said the lease ended. You can not terminate the lease for sooner than the end date using an N12 form. If you gave only 60 days--i.e. September 30 then your N12 is likely void.
DeleteHaving applies to the LTB is a good thing. By applying right after serving the N12 you should get an answer about whether the tenants will be evicted when you need the place. They can challenge your good faith or your right to terminate for landlord's own use generally so it is important to not wait. Unfortunately there is no guarantee in law and you can't know for certain what the outcome will be until it is done.
Even though you have served an N12, you can still serve an N4 for non-payment of rent. Follow those steps and apply to the Board again on the N4 using the L1 form. Be very careful to follow the timelines.
Your options are to proceed in accordance with the Residential Tenancies Act. Unfortunately, your immediate financial problems and inability to carry the mortgage without rent money and your personal circumstances are of limited interest or concern of the Landlord and Tenant Board. I know it sounds quite harsh but the general response to landlord complaints about financial issues is that if you can't afford to be a landlord get out of the business.
I urge you to use the processes available to you and file the Notices of Termination that fit your circumstances. If you are owed two months of rent one has to wonder why you did not long ago serve the N4 form. N4's should be served the day after rent is due and unpaid.
Good luck, I hope you come up with a solution.
Michael K. E. THiele
Hi Michael,
ReplyDeleteThe owner of the house my mother lives in is selling and wants her to leave by the end of August. They initially served her with the wrong form (N8, not N12) and hand wrote on it that "the house is being sold to a new owner and will be used as a primary residence". However, the house isn't even for sale and no one has come to view it. They then tried to have her sign an N11 but she refused. My brother also lives in the house, he pays rent and is provided with rent receipts but they didn't provide him with any notice. In addition, they have now emailed her saying the house will be listed for sale in early August and that they'll need to vacate by the closing date. I'm wondering if we have any recourse for: 1) the wrong form; 2) the house not actually being for sale when they gave her the wrong form and no agreement of purchase and sale has been signed; 3) no notice to my brother; 4) lying about it being a primary resident for a buyer that doesn't exist yet.
They also both have disabilities and therefore don't have much income. Moving is very difficult for them and it's hard to find a comparably priced apartment since they've lived in the house for 22 years.
Thanks very much for any advice!
Thanks for your advice Michael. The N4 was served on the correct date, the tenants disregard it, the N12 was served on the correct date, I will continue to served all the document on time until court date. I am fighting for the best result, right now everything is going well I am working with a paralegal hoping I am on the right tack. Thanks for your help you. Will update you with the results, the paralegal should have a court date by July 31, 2015.
ReplyDeleteWonderful service Michael!
ReplyDeleteI have an upcoming termination of occupancy to serve to my tenant and I am nervous as a cat about the prospect. She has lived in my upper 2 floor apartment for 15 years. I live in the lower one bedroom. She is very house proud and clean, lovely decorating and cleaning lady every week. I also have a beautiful unit, altho only 870 sq feet and just one bedroom. Have owned the house for 30 years and bought out a co owner friend
ReplyDeleteand became a landlord in 2000 when the current tenant moved in.
I have never raised the rent, $1450 a month includes everything , garage with remote access as well. I am 63
years old and am now able to afford the time and money to enjoy my entire home. I have never had more than one bedroom and have decided that I no longer want or need to be a landlord, and wish to do some minor renovations ( remove door and drywall at top of stairs to open up the house as a 3 storey, 3 bedroom family
home) and then occupy the entire house myself. The one bedroom in my current unit is in the basement and would easily become a TV room.
My problem is that the tenant will receive this news as a complete shock. She pays hundreds of dollars less per month than a similar unit will cost her when she moves. I have not mentioned my growing desire to have
my home all to myself, as this would be not only inadvisable, but also unkind..as the tenant would be wondering all the time when the other shoe was going to drop. She also believes that I need the rent to pay my mortgage, and has verbalized to a neighbour that she is a great tenant and I don’t have to go through the hassle of finding a new tenant so the bargain rent for a beautiful unit is worth it to me!
In truth, I own the house outright and now wish to have more space. The low rent has been a disservice to her but also to me, as it only raises me to a high tax bracket but offers not a big burden in terms of what would be lost income on my part. My plan is to give her 6 months notice next February that at the end of July, I will be giving her the legal 60 day termination to move by September 30. I will explain that the lengthy notice is in consideration of her loyalty as a good tenant.
Michael, perhaps you could advise on my methods. My legal and real estate friends say I'm crazy to give more than the legally required notice, but I can't blindside her like that, and I don't think it's advisable to start dropping hints. She is a smart, nice woman, but I have to be very strict about setting boundaries all the time. She is house proud and makes suggestions about things she would like done to her unit, such as granite and undermount sinks such as I have in my unit. She has called my contractor who has done work on her unit for me, about certain ways she wants the repair done in her unit (she is very picky about aesthetics) This attention to detail is very admirable and makes for a very neat tenant, but the over stepping of boundaries is constant and the sense of proprietorship has always concerned me.
She is a few years older than I, maybe 68, in good health and money is not an issue that I can see. Nice car, prepared food delivered to the door by a well known caterer...but nevertheless she will never expect this. I feel nervous and empathetic for her, but I LOVE my house and I want my whole house to enjoy.
Please advise????
HI Maggie: I think that I'm going to side with your legal and real estate friends. Sometimes it is simply better to rip off the bandaid. Your comment reflects an expectation that there will be a conflict with the tenant about this termination. While you can hope that it is accepted without too much fuss my experience is that gut feelings such as yours are usually borne out.
DeleteI would suggest proceeding in the following manner. As you are in a fortunate financial position, you should retain a lawyer or paralegal who is experienced in landlord and tenant law. Let that professional be your voice for this process. The fee compared to a great many legal services will seem reasonable.
Have your lawyer/paralegal serve the N12 with the minimum notice of 60 days. Apply immediately to the Landlord and Tenant Board for the eviction Order. As this is a no fault eviction the process is not about proving that the tenant is a bad person or anything like that. You will have to prove that you do intend, in good faith, to occupy the premises for residential purposes. Your explanation of your reasons for wanting the space I think reveals that you understand that your tenant can fight you on this application. This is another good reason to have an experienced paralegal or lawyer drafting the documents for you and taking you through your evidence.
So, why all at once and no extended termination notice? I think it is entirely possible that your overbearing but otherwise "good tenant" could become very difficult. I won't speculate on how she may become "very difficult" but I'm sure you can imagine what a person who wants to make trouble can do. If you provide an extended notice of 6 months you may just be buying yourself 6 months of trouble and nastiness.
Serving an N12 with the statutory notice of 60 days and immediately applying to the Landlord and Tenant Board for an eviction order accomplishes several things. Firstly it rips off the bandaid and makes the tenant deal with the issue right away. Secondly, it compels the tenant to look for a place quickly as the risk is that she will be evicted within a short while and therefore she has less time to focus on fighting you or making you pay for this decision. Thirdly, how the tenant will react will be revealed to you only after starting the process. If she is decent, accepting (though perhaps disappointed), you can mediate a delayed termination date before the hearing. If you feel the need to hold out this hope for the tenant early on, you can have your counsel write a cover letter with the N12 or the L2 application advising that you are prepared to enter into mediation before the Hearing to try to negotiate a mutually satisfactory termination date if the tenant finds the 60 days notice insufficient.
If the tenant behaves reasonably you should negotiate a "fair" date as it is likely that the Board would give her more time anyway. On your facts there is a seeming lack of urgency so it is likely that the tenant would get discretionary relief under section 83 of the RTA (delayed termination). On the other hand, if the tenant behaves irrationally and becomes "very difficult" these facts can be used to argue against section 83 relief. With discretionary orders under section 83 you can also always impose conditions on the extension of time.
One of those conditions might be to adjust the notice that the tenant can give you. After service of an N12 the tenant can leave on a minimum of 10 days notice to you. Perhaps that is okay with you, but perhaps having the tenant move so quickly would be an inconvenience especially if you have given the tenant 6 months notice.
DeleteDo you really have to do the hearing? This is an emphatic yes from my view. While you could just serve the N12 and wait and hope that the tenant moves on or before the termination date, you will have no certainty without starting the official hearing process. That lack of certainty causes its own stress. If you serve the N12 today and apply to the Board tomorrow and schedule a hearing date within the next couple of weeks you will have an order in place that gives you far greater certainty than any hope that the tenant will simply comply with your N12. The Order starts a clock ticking for appeal periods, review periods, and if a consent is reached it is not subject to appeal without leave of the Court. This is much better than waiting to see if the tenant moves and only then to start applying to the Landlord and Tenant Board. A stretched out application to the landlord and tenant board can take months, especially if the tenant is trying to delay, obfuscate, and simply buy more time. Waiting also gives the tenant an opportunity to contrive her own applications against you. While those applications may have no merit (at least from your perspective), you will still be drawn into defending yourself. While applying right away does not prevent a tenant application, such an application being served right after your N12 and L2 shows the application for what it is. Again, it would be helpful to have experienced counsel for any application brought by your tenant.
My experience is that if you proceed firmly and purposefully and be willing to negotiate within the parameters normally used at the Landlord and Tenant Board then you are more likely to get what you need with the least amount of conflict possible. Landlords who try to be nice and accommodating by offering more than what the law requires are often shocked and disappointed when their tenants don't respond positively to this generosity.
Good luck.
Michael K. E. Thiele
Hi Michael - wonderful blog. I've read thru all of it, but have not seen my exact situation described. My lease will be expiring in a little over 60 days. My landlord has informed me that he needs the home for his own use, and that I will need to vacate. I don't doubt his intentions. However, I have a Schedule B clause which state:
ReplyDeleteTenant, if not in default hereunder, shall have the option, by written notice, given to the Landlord at least 60 days before the end of the lease term, to renew the lease for a further year term
My landlord has stated that he may choose not to renew if is for the purpose of his own family living in the home. I argue that because the lease that this particular clause, that the renewal is not subject to his approval. I have given him 60 day notice of my intent to extend the lease.
I have good relations with my landlord, and have also offered to try and work something out. Its just that the timeline he's given me is difficult to meet, given that the move out date is October 1st, I have two children in school, and I'm actually out of the country on travel until September 5th.
Do I have a right to stay, based on the clause in my Schedule B?
Hi Rob: In my view you do have the right to stay based on the the Schedule B clause. Now, I say that without seeing the document, the clause, or the schedule. I assume that you have just finished the first one year term and the renewal clause is the first exercise of that clause and that the number of renewals that you have are clear from the clause.
DeleteHaving lease renewal clauses like this in residential leases is a bit unusual--at least in my practice and in what I have seen. My concern about a clause like this is to be sure that it doesn't interfere with the statutory rights of the landlord. If the wording of the clause is contrary to the Residential Tenancies Act then it is arguable that the clause is void as being contrary to the RTA. The RTA provides that any lease terms or agreements contrary to the RTA are void and unenforceable. If your renewal clause is indefinite as to the number of renewals and hence could continue in perpetuity by simply giving notice the problem arises that you are arguably never at the end of a term (without a new term being created). If this is the case, then it would be impossible for the landlord to serve an N12 (landlord's own use) ever, or even some of the other end of term notices--N8, N13. If the clause is read in a way to prevent the service of any of these notices, ever, then I think the Board could be convinced that renewal clause is void. I think your response should be that your renewal right is subject to termination on proper notice by the landlord at the end of term. Hence, if your landlord has grounds to terminate then he must serve a proper notice of termination to be effective at the end of the term.
Alternatively, depending on the wording of the clause, you could argue it is a single term (or multiple BUT not indefinite right) of renewal that the parties contemplated at the time of signing the lease with the implication being that you (the tenant) had the right to stay for a particular number of fixed terms at your choice. In my view this is no different than a multiple year fixed term lease which would be enforceable.
Sorry that I can't give you the yes or no that you are looking for. Please note that if the landlord does have the right to terminate and that he has served you with a proper N12 that you can always go to the Board to fight it, or alternatively to ask the Board to give you an extended termination. If you go for extended termination (feeling satisfied that the landlord may terminate) you should inform the landlord of that now and ask him to apply to the Landlord and Tenant Board if he is not in agreement to the extended termination.
As you can probably tell from this reply, you would be well served in having an experience landlord and tenant lawyer or paralegal look at this for you.
Good luck
Michael K. E. Thiele
www.ottawlawyers.com
Hi Michael,
ReplyDeleteThe owner of the house my mother lives in is selling and wants her to leave by the end of August. They initially served her with the wrong form (N8, not N12) and hand wrote on it that "the house is being sold to a new owner and will be used as a primary residence". However, the house isn't even for sale and no one has come to view it. They then tried to have her sign an N11 but she refused. My brother also lives in the house, he pays rent and is provided with rent receipts but they didn't provide him with any notice. In addition, they have now emailed her saying the house will be listed for sale in early August and that they'll need to vacate by the closing date. I'm wondering if we have any recourse for: 1) the wrong form; 2) the house not actually being for sale when they gave her the wrong form and no agreement of purchase and sale has been signed; 3) no notice to my brother; 4) lying about it being a primary resident for a buyer that doesn't exist yet.
They also both have disabilities and therefore don't have much income. Moving is very difficult for them and it's hard to find a comparably priced apartment since they've lived in the house for 22 years.
Thanks very much for any advice!
Hi: The notices served by the landlord are a nullity (void, meaningless, unenforceable). There is no need for your mother or brother to move out ( I presume they are still living there?). If the house is listed for sale, and the buyer decides that they want to move in, then it is possible that a form N12 may be served. It is impossible for the landlord to serve a notice for a prospective purchaser at this stage. The N12 can only be served if an agreement of purchase and sale has been entered into and the purchaser wants to occupy the premises for residential purposes.
DeleteGiven the length of their tenancy, your mother and brother will have good grounds to either resist termination or to extend any termination date for a period of time much longer than the 60 day notice in the form N12.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteMy husband and I are currently going through the process of regaining use of a property that has been rented to a woman for 4 years. We had purchased a rural property (75 acres) 10 years ago for recreational weekend use. We built a small camp on the property but it has no hydro or plumbing. The neighbouring property to the camp became available in 2011. It was also a 75 acre parcel of land with a small 2 bedroom home. Finances at the time were a little tight and we decided to rent the little house and 75 acres for a few years. We gave the tenant a timeline of 4-5 years and she signed a one year lease. The first year and a half were fine until she started to run into financial problems and the rent was persistently late or not paid at all. We filed and won an eviction only to have her appeal it and have it overturned based on lies. We do not speak to her. She lied in court and now we know she's been lying to us from the day we met her. My husband has continued to use the neighbouring camp property every weekend until our tenant decided to confront him in the spring of this year. She had gone to the camp unwanted and uninvited to find out how long we were going to rent the house to her. When she didn't get the answer she wanted she started hitting my husband and calling him names. She was told repeatedly to get off the property and stay off the property. She refused. The police were not called as there is often no cell phone service available at the camp. On Monday morning I did call the OPP from our home and they told me to serve her with a notice under the Trespass To Property Act forbidding her to be on our camp property and to have trail cams turned on when we where not there. A week later we had pictures of her at our camp when no one was there. She has been charged under the Trespass to Property Act. The police also advised my husband not to be at the camp alone as she could make any accusation against him and it would be her word against his. Needless to say my husband has not been to the camp much in the last few months. We sent her an N12 in early July as we cannot take any more of this rental drama and involvement with the police (as well as animal control and the SPCA) We want the use of the little house as we had intended when we purchased it four years ago. There only seems to be one problem as explained to me by the LTB when I contacted them by phone. I was told if we were to take over the property for our own use it would have to be our PRIMARY residence. I have not read anywhere in the RTA that the property has to be your primary residence. I understand that the N12 can be voided if the use of the property will be occasional. What defines "occasional"? We plan to use the property every weekend plus hunting seasons plus winter layoff. We bought this property for recreational weekend use just as someone would buy a cottage on a lake but we could be denied getting it back because we have a home somewhere else? (1/3 acre on a busy highway) And now with the ongoing problems with the tenant we are not using either property. We are filing for a hearing but have be told "there are no guarantees that we will get the use of the house back" If we win the eviction we will never EVER rent again.
Hi: The advice you received at the Board is not entirely accurate--though it is not completely wrong either. The applicable section is section 48 of the Residential Tenancies Act. You will not find the word "primary" anywhere in that section. Nothing there says full time occupation and living no where else. So where does this notion of primary residence come from? The cases decided under that section have qualified the section to make more than fleeting occupation necessary for eviction to happen. Occasional weekend use, sleeping there when passing through town, as a place for a child to stay during summer holidays, these have been considered fleeting uses that the N12 was not intended to cover. At least that is the caselaw interpretation. I think you have a good case based on regular weekly use for residential purposes. Are you going to use it increasingly as your main residence?---for some reason I envision you going into retirement and living there full time, though perhaps that is because you're living my dream as I am a displaced country boy. That this was always the plan, shared with the tenant before she took possession is important as well. Turning a rental into a full time recreational property used regularly is not something that should be impossible under the RTA.
DeleteGood luck. Let me know how it goes. This one might be worth a consult.
Michael K. E. Thiele
www.ottawalawyers.com
Wow, you are good! The property was purchased with the intent to use as retirement property and my husband would love to live there full time now. The rental house is only 750 square feet and with two of our adult children still living with us we won't be giving up our family home any time soon. We told our tenant the day she came to see the property that it had been purchased with the intent of us using it a few years in the future. She wanted to sign a 5 year lease (ridiculous) but we told her it would be a 1 year lease and then month to month. We have retained legal council and he's hoping for a hearing late September. I have only had a few short e-mails back and forth with him as he is crazy busy with other cases. Thanks so much for the advice. This is an incredibly helpful blog and I will post again when the case is resolved.
DeleteDear Michael,
ReplyDeleteHere are the facts of my case:
1. The Landlord was very upset when my girlfriend moved in believing he was entitled to DOUBLE the rent.
2. He became negligent and wouldn't do repairs.
3. When the upstairs tenant asked him to change the air filters in the furnace, he deliberately ignored her request.
4. After receiving notice from the upstairs tenant that she was moving out, The Landlord took the opportunity to blame her allergies on my cat (which he had no problem with previously) and served me with a N6 citing her allergies as grounds for eviction.
5. When confronted about the truth of the matter the Landlord threatened that he "can take over the building and move his sister in" and we would be forced to leave.
6. A city building inspector was called to get him to do some maintenance on the property. Work-orders were delivered to the landlord by the city.
7. Landlord's demeanour changes and he informs me that he is getting married and intends on having his father-in law move into my unit. I find this highly suspicious.
8. Landlord serves me an N12 saying he himself intends to move into my unit.
9. During a conversation, landlord tells me he requires me to leave my unit before he can do renovations. He says the city inspector has instructed him to do this.
10. The time expires on the N12. Landlord does not follow up.
11. Landlord moves into the vacant unit upstairs.
12. a new N12 is issued. Landlord claims residential use for himself.
13. a confrontation occurs outside my unit. I am told that I am "holding up the landlord's renovations."
14. A hearing date is set by the Landlord.
My view is that the N12 was given in good faith. What do you make of my case? How can I argue this effectively?
Hi: Looking strictly at the time line you have provided, I would infer that the landlord first formed his desire to get the unit back when he served you with the N6. He probably thought that serving the N6 would make you pack up and move. He didn't expect you to put up a fight. Since then the landlord has had nothing but antagonizing experiences with the City and likely with you and he has been twisting about trying to figure out how to get you out. The two N12's demonstrate that.
DeleteAs you recount these facts it certainly seems that the landlord has not served the N12 in good faith. In order for the N12 to be valid he must in good faith require possession of the rental unit for the purpose of residential occupation (see section 48 RTA for the precise wording). These facts, as you have recounted them, do not support such finding in my view. So, I think you are correct that the N12 was not given in good faith. The question is how to prove it.
While it is the landlords application, the Board tends to accept the landlord as having met the burden of proof when he swears the requirements of section 48 as being true. The burden then effectively shifts to you to prove it isn't true. How do you do that? If a landlord is clever (in the devious sense), he gives you nothing other than suspicion to use. Your landlord has given you a fair amount more than that. The N6, an N12 with a different person on it, your N12 and now statements that you are delaying his renovations as I presume ordered by the city inspector. Laying out the facts like this I think rebuts the de facto assumptions that his statements of compliance with section 48 are enough to get the Order. He will have to answer those allegations and it is in the answers that he might say silly things--depending of course on how good your cross examination is. The trick in defending these cases is finding the "bad faith" and digging up the evidence proving that the section 48 conditions are not met. There is no easy answer on how to get this information.
Another thing that may apply to you based on the facts you have laid out above. The N6 seems to pre-date the City Inspector and orders (so that would be a rebuttal to the point), but are there any facts that you can present which would demonstrate that the landlord is serving the N12 because you called (I presume you called) the City to have an inspector attend? If you did call the City to have maintenance looked after at the property you were acting in a protected way. Because of this call to the City the landlord is now seeking to terminate using an N12. Link the N12 to your call to the City (again presuming you made the call). If you can do that, then look at section 83(3)(b) & (c) of the RTA. That section provides:
Power of Board, eviction
Delete83. (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).
Mandatory review
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). 2006, c. 17, s. 83 (2).
Circumstances where refusal required
(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding. 2006, c. 17, s. 83 (3).
If you can prove to the Board that the reason for the N12 is your actions as per section 83(3)(b) or (c), then the Board SHALL refuse to grant the application.
Note as well, if the City Orders for repairs are very serious then the landlord may be in breach of his responsibilities under the Act (maintenance, repairs, etc.) and then the Board may be required to refuse to grant the application as well under section 83(3)(a).
Those are my suggestions to you. Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
DeleteMany thanks! I omitted a few pieces of evidence I have. I have an email wherein he states that the apartment will be used by his "soon to be father in law" --this contradicts the N12. He said it was solely for HIS use therein.
Also, I should point out that yes I did call the city inspector. On the timeline he served the first N12 as retaliation for this. Would the above still apply even though we are on a second N12? I don't know how much evidence I have proving the N12 was a retaliation for the city inspector but he did serve the N12 immediately after receiving the work-orders. Also, the repairs that need to be done are for the basement unit downstairs. He is lying about needing my unit needing to be vacant before he can "renovate." This whole situation is a means of jacking up the rent. Only he realized that since he isn't married yet, he had to claim only himself on the N12.
Further, he did not like the looks of the protocols surrounding the N13. Therefore, in my opinion, he is trying to have his cake and eat it too. Once I'm out of there he will make a few small repairs and upgrades and rent the apartment out for a higher rate. Luckily I've been on to him from the start.
Even without all the backstory I fail to see how a twenty-something boy can claim he needs so much space for his own personal use. He has a spacious 2 bedroom upstairs and the basement unit is also vacant for storage. But I digress. Thanks for your tremendous help!
Hello Michael,
ReplyDeletewe bought property where there was verbal agreement from previous owner to assume the tenants in basement. after moving on the same week we ask tenant verbally to vacant the unit as we have no intention to rent the unit as we decided to make it retrofit the unit as this unit is not legal basement. we dint took any rent from the tenants as previous owner gave us the deposit that they received when they rent this basement.
there is no legal contract or any thing legal agreement about this tenancy in purchase and sale agreement.
what would be procedure of evicting tenants we gave them 1 month notice.i know n12 needs 2 month notice.
but there is no legal binding agreement our intention is to get the basement for personal use.
please advise
Hi: The only legal way to get possession of the basement from RTA protected tenants (which you basement tenants likely are), is to serve a valid N12. You must give 60 days notice to the end of term and have a good faith intention to occupy the premises for residential purposes. Seeking possession to retrofit--to make the unit legal---is not permissible with an N12. For those kinds of renovations you are looking at an N13 form--120 days notice with a right to return to the unit by the tenant.
DeleteThere is very little significance to there being no documents/leases. A residential lease in Ontario may be written, oral, or implied. All three forms are equally legal.
Good luck
Michael K.E. Thiele
This comment has been removed by a blog administrator.
ReplyDeleteMichael:
ReplyDeleteThanks so much for your great advice:
I have two questions. I bought a duplex about a year ago within a very small corporate entity of which this house is the only investment and I am the sole corporate owner. My wife and I are both guarantors on the mortgage. I am looking to have my son take over one of the apartments as he now has a job in the city here. I have read however that the N12 provision is not allowed if the house is owned within a corporation. Is this true and is there a way around it if so?
The second question relates to the rent control date of Nov. 01 1991. If I can not find records of whether the house was single family at that time, which is clearly was in the not so distant past, is there any option regarding trying to avoid rent control?
I know that at least one owner lived in one of the units only a few years ago. It has never been fully legalized despite having had the various inspections so there will be no city record to look up.
Many thanks.
Hi: You should read the case found at this link: http://www.canlii.org/en/on/onca/doc/2010/2010onca676/2010onca676.html?resultIndex=1
DeleteIt is not impossible for a corporate landlord to give notice to terminate based on section 48 of the RTA. I wouldn't say it is always possible as the Court in the case cited above requires the context to be analyzed. That being said, the automatic "no" to corporate landlord's serving notices is no longer the law.
With respect to your second question. You are seeking to access an exemption to the application of the Residential Tenancies Act (s. 6(2))--specifically you are asking about the section 6(2)(c) exemption. You have the burden to prove that your rental unit falls within that exemption or one of the others. If you can't prove it, on a balance of probabilities, then you won't get the exemption even if you are reasonably certain that the "real facts" support an exemption. I'm not aware of any court application or Board application that would allow you to access the exemption without proving entitlement to it. For this one I think you will have to think hard about the type of evidence you could locate. Can you prove a date that the unit was built? Surely the City/Town/Township has building permits if it was constructed after 1991? If not building permits, occupancy permits?
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I purchased a property that has been rented for 6 years. I have not taken possession yet. My contract states vacant possession. The tenant who is hostile and aggressive refused entry to all persons wishing to view the property. A firm offer without inspection came from me, but I am worried about the condition he will leave things in. I had hoped to live elsewhere while renovating....can I do that. My contract says I must take possession and occupy the premises and indemnify the vendor of any legal actions the soon to be former tenant takes against her. the tenant was just served the N12. I sold my home to move there, and have only a temporary place to sleep while I renovate. Is it likely he will be out in 60 days? What is the chance he could sue for damages and I inherit that burden? Is it acceptable to live elsewhere while renovating? My lawyer was livid that I signed such a contract inheriting this problem and selling my house with no guarantee of vacant possession. I do not want to close unless he is out, but can he come after me? Would I just re-new the contract if he is granted extra time? I am so stressed about this. Hoping you can offer some peace of mind. Thank you in advance for your help.
ReplyDeleteHi: You have a mix of residential landlord and tenant law and general real estate law in this question. I do not answer questions involving real estate closings. I completely understand why your lawyer is livid as you may have assumed liability that is unusual to assume. I'm not going to answer your questions because there are simply too many variables and the consequences of any one decision will have many potential different outcomes. I do think that you have put yourself in a very difficult spot--legally, and as a result this will not be a clean deal however you choose to proceed now. I'll recommend that you go back to your lawyer, sit down with him or her, and make a plan of how you want to proceed and see if your lawyer, by dealing with the vendor's lawyer, can make an agreement that gets you what you need.
DeleteGood luck with this.
Michael K. E. Thiele
www.ottawalawyers.com
I have sold my home to move to this property so I don't have any options, its the only way I can proceed....I must close on this house eventually ( I would not have sold my home otherwise and would not be able to get a similar home for the same money.) I just want some time to get it inspected and do some cosmetic only ( hopefully), renovations before occupying it. What time frame is reasonable to renovate? I did not have a realtor and the contract I signed was with the vendors realtor...why would he have put that 'indemnify" clause there? I assume it is only if I don't move there, not for other issues they had prior to my purchase? I did have some conditions in the original offer, but with both the vendor and her realtor at my home, I felt pressured to waive the conditions in order for them to present the n12 in time for the 60 days. The vendor had been trying with great stress to evict the tenant for 6 months prior to finally giving up and selling the home. I understand you don't practice real estate law, but is there any insight you can offer with the added details? I am stressed beyond belief and just hoping for the best. The n12 hearing is scheduled for next week. Thank you in advance for any glimmer of peace of mind you can offer.
DeleteHi,
ReplyDeleteCould you please advise about my tenants (two adults and two kids). They are living month to month now, and are consistently late with payments. I wrote numerous emails to them about it, even suggesting they move to a more affordable place. They refuse, stating that they like it there. Finally I started sending N4 notices. I am not expecting the situation to improve, as they have a very bad credit score and their bank accounts are frozen. What would be an easier way to evict them - with N4, or with N12? Given, that I already sent them N4s and they have kids who go to school there? I myself am renting, and my landlord warned me that they are going to sell the apartment I rent from them. Also, how will I be able to recover losses for potential non-payment and damages to my property?
Thank you in advance.
Hi:
DeleteI presume that the N4's you are serving are voided by the eventual late payment of the rent. Hence you can't proceed with eviction because the rent is paid up. Even if the tenant's did not void the N4 by paying the rent arrears, the Board would give them more time to pay the rent even after a hearing (plus the $170 application fee).
You should consider serving an N8--termination for persistent late payment of rent. The Board will be interested in knowing the payment history for the last 12 months. If you can show that rent was paid late for most of those months then you will be entitled to termination of the tenancy. However, instead of evicting the Board will be inclined to give the tenant one more chance by ordering the tenant to pay all future rent on time. If the tenant breaches then you will be entitled to an eviction Order through an L4 application. This is the process of how to deal with a tenant who is not paying rent on time.
Using an N12 as a "way to evict" is problematic. Expressing it in this way attracts the possibility of charges as it is an improper use of the N12 under the RTA. If proven, this could lead to charges under the RTA pursuant to the Provincial Offences Act. A conviction can result in a sizeable fine.
An N12 is to be used if you want to occupy the premises for your own use, or for use by eligible family members or helpers as set out in the RTA. You can also use the N12 for purchasers who want to live in the premises. Certainly it sounds like you are expecting to have to move from your current premises. If you are inclined to move before a sale happens and you would like to live in your own place then you may reasonably serve the N12 against your tenants. At the time of the service of the N12 you need to have a good faith intention to occupy the premises for residential purposes. If the tenants fight you on the N12 they will seek to prove that you did not serve the N12 in good faith and that is what the hearing would be about. Hence it is best to be able to testify truthfully and in a forthright manner about your intentions.
Recovering losses for non-payment of rent and for damage to property first requires a judgment. Either from the Landlord and Tenant Board or from the Small Claims Court. After you have a Judgment you can enforce the Judgment through the various tools of the Small Claims Court--i.e. debtor's examination, garnishment, writ of seizure and sale. Unfortunately for you, if the your tenants have no money nor any decent assets there is very little that you will be able to do. It is the old blood from a stone story.
Good luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteMy partner and I have purchased a triplex building last year, and are renting out 2 of the units and living in the 3rd.
We have had issues with one unit, as they have been confrontational and refuse to abide by rules regarding their dogs feces in the backyard. We have given several notices and have contacted Animal Control.
We are building our family and need more space, and would like to move into the unit in which we have had issues with. (as we are currently in a 2 bedroom and the unit we want is a 3 bedroom)
I know that we need to give an N-12 notice and then immediately file an L2 application to the Board.
My questions are:
Do we need to offer the unit we are currently in to them? ( We would need to take a month for renovations)
And
If we do not have to offer our unit to them and we rent out that unit to someone else, how can we ensure that the current tenants move out in time for us to take the unit we need?
And finally,
Will these prior issues with our tenants be used against us, showing "bad faith" in court?
Financially, we are not able to support a long drawn out process, especially if our tenants decide they don't want to pay rent and are given many months to find a new place and whatnot.
Thank you for your assistance, in advance.
Hi: The N12 form is the correct form to use to evict tenants for a landlord's own use. In order to serve that N12 you need to have a good faith intention to occupy the premises for residential purposes. While you are providing the "why" by indicating that you are building (growing?) your family it is not necessary that you put the reason for wanting to move into the unit into play. That being said, most people when unrepresented will tend to get drawn into a debate about the reason for wanting to occupy the rental unit as that seems the best way to win the argument. In fact, the "reason" is not part of the test. However, if you do give a reason for wishing to occupy the premises then the tenants can challenge the legitimacy of the reason.
DeleteWith respect to your question. No, you do not have to offer your current unit to the outgoing tenants. You will likely be occupying both units during the renovations and coordinating that with the existing tenants is unlikely.
Your second question is fraught with logistical problems. There is no guaranteed way to make people move exactly on time. The closest you are going to get to guaranteed possession is to serve the notice, have the hearing and win, wait out the 30 day appeal and review period, and then direct the sheriff to attend to enforce the eviction. Absent unusual circumstances, the date on the Sheriff's Notice to Vacate is as close as you're going to get to a guaranteed eviction date. The tenant's may move sooner, they may even honour your N12 Notice to Vacate voluntarily, or they may require you to go to a hearing so they can challenge the good faith of your notice or alternatively to argue for more time with the Board. There are a great many variables.
With respect to a long drawn out process and not being able to support it. This may sound harsh but the Landlord and Tenant Board is not actually concerned about that. The refrain goes that you chose to be landlords and you need to be able to meet your obligations and accommodate the rights of the tenants. If the Board decides that your tenants should get extra time then they will order it whether or not it fits your time table. The Board would never excuse the tenants from having to pay rent unless there are legal grounds for an abatement. If your tenants stop paying rent then the avenue is an immediate N4 Notice of Termination for Non-Payment of rent.
Michael K. E. Thiele
www.ottawalawyers.com
It's hard to find model tenants these days, there are more bad tenants than good tenants in the real world. Don't judge me, every landlord would agree this, especially those lucky enough to have had some bad tenants to deal with. It turned out that the law is protecting the bad ones rather than the good ones, consequently landlords sometimes have no choice but have to do something in order to survive in this “law" world.
ReplyDeleteJust one cent from me.
Hi Michael
ReplyDeleteI have a situation with my tenant (I am the landlord):
1) Me and my tenant have had a brief conversation (not documented) back in August that the she will be moving out of the unit by the end of the year, so we told her we have had the intention of selling the place.
2) So I gave her the notice that her last day will be in Nov (granted - it wasn't a formal notice and now I know I have to file the N12 is the only to get her to go), and that has been done with termination date of end of Dec. Me and my wife are now truly intending to move back in as we are currently staying at my parents place.
3) She has claimed to me that she can't move out by Nov cuz she can't find a place within 60 days because her credit is bad and no place want to take her, and she has been late with her rent for the past 2 months.
4) In your opinion, if we do go to a hearing, do you think the board will sympathize with her more (apparently single mother with 3 kids and have had some shady backgrounds which just came into light) or me who just want my unit back.
Thanks,
Robert
Robert: Don't wait, apply to the Board now. You will then get the certainty that you are looking for. If you wait until after the termination date the Board will grant your tenant even more time. If you apply now, the Board will consider the current notice of 60+ days and take that into account in determining what the termination date will be. Your tenant may get some sympathy and perhaps a little more time. She will get less time the sooner you apply to evict her.
DeleteHaving bad credit and a hard time in finding a place is not enough to refuse eviction. Single mother with three kids may give her some sympathy but if you apply soon it won't extend the termination date by very long (unlikely anyway). Ultimately, it all depends on the adjudicator that you have and how good you tell your story and how your tenant tells hers. While it is expensive, you might want to consider hiring a professional story teller (i.e. lawyer). The outcome is more likely to be what you want if you are properly represented. Certainly though, you are entitled to represent yourself.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for this useful information guys really.My and my life was search for apartaments in Canada
ReplyDeleteand this is really hard believe me!
Hi Michael
ReplyDeleteThanks so much for providing these very useful articles and responding to comments. It's a great help.
I am a tenant preparing a T5 application as our landlord evicted us in bad faith. I think we have a decent case. However, I am curious about how much detail we put in the Reasons section of the application.
I know elsewhere on your blog here you have suggested less advance disclosure is better to avoid the other party lawyering up and producing reams of "documentation" after the fact. How little can/should we put on these forms? Or is it best to just lay out all the dates, incidents, details we have?
Hi Michael, I'm currently living in a four bedroom house with four other occupants and shared kitchen/bath facilities. the owner/landlord of the house was living there when I moved in, but has since moved away and continued to rent out the house to various occupants. most of whom I do not know and receive little to no notice about their moving in. my first question is, now that the landlord does not live in the house are our individual bedrooms considered our personal dwelling units? and if so, would this be considered illegal? as there are only two bathrooms in the house and only one has shower/bath facilities. Also now that my landlord no longer lives in the residence are they legally obligated to inform me about new people moving into a shared residence?
ReplyDeleteThanks,
Royce
Hi Michael, We just purchased a 4 season property on the water. It currently has a month to month tenant who just moved in last month. According to the seller the tenant only paid half of the November rent that was due on Nov 1st so far. We take possession Nov 27th. We plan to issue a N12 on closing and file an L2 for a hearing immediately after. We plan to use the property for our own use but will not live there full time. We will be there some weekends and use it as a cottage in the summer. We are acting in good faith but will not reside there full time. Will the adjudicator have any issue with this and not give the eviction order? Thanks for your input.
ReplyDeleteHello Micheal you do a great service here on this blog and I commend you for your tireless work to help people with great advice. I have been to two tribunals this year regarding n13 applications. This is a rooming house with 9 units and both cases were dismissed, one for not having my unit number and the last one was because the landlord did not include another unit for us in the building plans. They are sure to serve us with another application of some kind soon. I have many grievances and proof of them being slumlords and have applied for a T2 and a T6 to follow against them. My question is if I start a civil suite against them will that be enough to adjourn until the civil case is over? Thank you I'll check your answer in a few days.
ReplyDeleteHi: The short answer is "yes", "no", and "perhaps". There is nothing in the RTA that makes the LTB adjourn or "stay" an application to the Board pending the adjudication of an issue in the Superior Court. What the Board will do depends on the circumstances of each particular case. I have indeed had an adjudicator refuse to proceed on a case when there was a pending Divisional Court Appeal in relation to the tenancy. There are a number of interesting things that could happen that would make your question a real dilemma. For instance, if your civil suit dealt with facts and issues that prima facie are serious breaches of the Residential Tenancies Act, and those facts as pled in your civil suit exceed the monetary jurisdiction of the LTB, then arguably you have no choice but to proceed in the Superior Court as proceeding at the LTB would resulting you losing any further right to damages/remedies. If this is the scenario, what does the Board do if you are asserting that the facts asserted in the civil case amount to a breach of section 83 of the RTA? Can the Board make findings in relation to section 83 breaches but not in relation to your "claim"? Should you seek declarations of breaches of the RTA--specifically section 83(3)--in your civil suit? The interaction between the LTB jurisdiction and the Superior Court jurisdiction for claims over $25,000 is, in my view, unclear and yet to be adjudicated.
DeleteIf there is nothing about your Superior Court action (civil suit) that makes proceeding there seem reasonable then I doubt that you will have much success in having the Board refuse to proceed with any application against you by the landlord. Context is everything.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, my wife and I live in a mixed-use home. The landlord does not live on the premises. There is a business on the main level, which the landlord owns. We were served a N12 notice for 60 days but the main purpose to get our unit is to convert it into office space for the business. I am wondering whether this is legal, shouldn't we get a N13, 120 days notice? The landlord had been excellent to us so far.
ReplyDeleteHi: On the assumption that the Residential Tenancies Act applies to your tenancy you are correct about the use of the N13. An N12 may be served by a landlord to gain possession of a rental unit for the landlord's own use but that use must be for residential purposes. If you have proof that the landlord is terminating for the purpose of converting your space into office space (and not for residential use), then the N12 will not succeed on application to the Landlord and Tenant Board.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
My land lord remolded his house .new siding was one update.he began the work in 2011 while other tenants were here .those tenants moved in may of 2014 I moved in .their two youngest boys were very sick after they moved I heard.my land lord dumbed all the Mansfield tiles off his house onto his property .I became aware this year in may .I asked several times about them he refused to speak to me about them .I phoned public health ,Niagara falls for help and they bkatenly lied to me .they spoke with my landlord about the tiles and advised him to clean them up and the at the end of the month he gave me a eviction notice because his daughter is moving in .since then I have not received any help from any one and never seen or heard any thing about the tiles .I have since done my own tests on the tile and soil and to no surprise the tiles are Asbestos and my soil has 1 percent of Asbestos in it .I am waiting to hear from tribunal court in the mail and am very stressed .I can not take any clothing with me or furniture .there is no law to what he has done and me and my family are screwed because the cheap ass wanted to save disposal fees off these hazardous tiles .!!!!
ReplyDeleteHi ,ive been given a paper from my landlord that says termination with out reason....he has a bad reputation and is known to break rental laws. On what type of grounds can I fight this?
ReplyDeleteHi: There is not enough information here for me to comment effectively. A valid Notice of Termination must be on a form approved by the Ontario Landlord and Tenant Board. The grounds need to be set out in the form. If you have received a paper terminating your tenancy without reason then I suspect it is invalid as there are no "without reason" terminations under the RTA.
DeleteIf you can provide further details on what the Form looks like, the form number, and anything else written on it I can try to give a more detailed explanation of the form and what you've received.
Michael K. E. Thiele
www.ottawalawyers.com
Since June of last year I have been renting a room in Ontario and my lease is up the end of April. (the landlord doesn't live in the building) I sent my landlord a message asking about renewing my lease and he tells me one of my other roommates has signed to take over my lease when it is up, but I had no intention of moving, I told him I did not agree to terminate and that I feel I should have been given a chance to renew before he offered my room to someone else.
ReplyDeleteA little while later he messages me back saying because the other person planned to have someone living in the room with them we were back to square one, but this time saying the major issue now is pets because of the management company, who owns the buildings (rows of attached buildings and my landlord is a private owner or something)having rules about pets. He says he doesn't care about the pets (I have a cat), but he would have had the same issue with the other tenant as they have a cat too. On top of that he is saying my rent is to go up by $50 from the $400 I am currently paying, I don't really want to pay that much more but I cant afford to move or go through the stress of it again especially when I have exams in April. At the end of all this he is saying he will let me know in about a week.
I am so confused, as far as I know he shouldn't be able to do this. And as far as I know the unit is not a student rental, as I am fairly sure one of the people I live with hasn't been in school for over a year.
Thanks Michael, I won the case (N12) and the tenant have vacated the house in September even though the judge said August 30, 2015. As a result of the damages made, I can't even use the basement for my newborn or myself. I have pictures to prove it. Can I borrow money to fix the problem and rent it out temporary to cover the expenses? I'm unemployed and my husband is not here as I'm currently sponsoring him. I don't have money to even get pass as I'm not able to take welfare due to immigration sponsorship.
ReplyDeleteThe tenant still come around the house to see his friends. Can he sue me if I rent it out even though I can prove I am not working? Thanks
were behind on rent but the landlord is kicking out my husband and let me and the kids stay in the house - can he do this ??
ReplyDeleteHI: You do not provide enough facts for me to answer your question clearly. On the assumption that you live in a Residential Tenancies Act covered rental unit, in Ontario, then the only way that you can be legally evicted is with an order from the Landlord and Tenant Board. If there is an eviction order from the Landlord and Tenant Board then the only way that the order can be enforced is by way of a notice from the Sheriff (Court Enforcement Office). The landlord is not legally entitled to "self help" evict you from your home. From the very little that you wrote here it sounds like you are likely being taken advantage of. If you can find a local community legal clinic it would be worthwhile for you to get legal help.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
my landlord is trying to evict me and the other lease holder because they allowed the third and fourth tenants to vacate the lease early because they had a child can they evict m on these premises as long as i continue to pay rent?
ReplyDeleteHi: If you continue to pay the rent you get to stay. The question is what do you think the rent is? If you signed a single lease with 3 other people then you are likely jointly and severally liable with the others for the entirety of the rent. This means you are responsible not just for what your share was but for the entire amount of the rent. If you are paying all of the rent due under the lease then you can not be evicted.
DeleteThat being said, consider popping into a community legal clinic and bringing your leasing documents with you. Your landlord letting off two out of four tenants is a strange and odd thing to do. I'd want to see the paperwork to determine how many tenancies there are in this rental unit. Perhaps, based on what was actually done, you are only liable for the rent for your room and your percentage. This would be a strange thing (unusual) but the fact that your landlord is letting individual tenants out suggests that there may be multiple tenancies in the unit and that as long as you pay your portion of the rent then you get to stay (i.e. like a rooming house).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com