Is it the law that a tenant can not be evicted in the wintertime in Ontario? There is a well ingrained urban myth that the Landlord and Tenant Act (more precisely the Residential Tenancies Act), prevents a landlord from evicting a person in the winter. The thought is that it is fairly cruel to make someone homeless in the dead of winter with freezing temperatures. This belief is so pervasive that notwithstanding clear guidance on the Ontario Landlord and Tenant Board website and the advice of lawyers and paralegals to the contrary people still think there is some kind of legal prohibition to a winter eviction.
The fact is that there is absolutely no bar or prohibition against a winter eviction. The law allows a landlord to serve any of the available Notices of Termination at all times of the year. Of course, the Notice of Termination must be valid.
Will the Ontario Landlord and Tenant Board refuse to evict in the winter? As you may know, if a tenant refuses to move out after being served with a Notice of Termination, a landlord must apply to the Ontario Landlord and Tenant Board for an order evicting the tenant. The adjudicator may exercise some discretion to delay or deny eviction under section 83 of the Residential Tenancies Act. The mere fact that it is "winter time" is not a recognized ground for refusing or delaying eviction. Of course, if there are other extenuating circumstances that high-light a particular hardship and the fact of it being winter time is relevant to that hardship, then an adjudicator may indeed refuse or delay an eviction taking into account that it is "winter time".Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario
I appreciate all of the information that you have shared. Thank you for the hard work!
ReplyDelete- eviction lawyer cambridge
Wow. VERY impressed on elawyer praises another in such a formal and public way! I’d hire both of you if I ever needed an attorney! Thank you both for showing us respect and common courtesy like you both just showed the world! ��
DeleteNice Bloh..Thank you for sharing such informative posts..
ReplyDeleteeviction notice
My dads daughter is trying to kick us out after my adopter father died Dad died and the next dad she tells me I have to leave with my horses, how can I stop this as she gave only 3 days for us to be out,, its only cause she is jealous of me I was extreamly close to her dad I worked and lived with for him for 34 years a and his home was my home, what can I do also I have not been Payed for the last five years of his life?
ReplyDeleteMy friend was told that she is being kicked out of her apartment when she hasn't been making any noise and it's been from the other tenants. What legal rights does she have in this case? Any help would be greatly appreciated.
ReplyDeleteHi:
DeleteYour friend should wait to receive the formal Notice of Termination. She can then require the landlord to file an application to the Landlord and Tenant Board and she can fight the eviction at the Board. The landlord has the burden of proof to establish the allegations against her. Your friend may require the landlord to provide all of the evidence in advance and all of the details of the allegations in advance of the hearing so that there are no surprises at the hearing. With that information, your friend can build her defence--including an alibi defences (maybe she was out of town on some of the dates etc.).
The landlord is not allowed to make your friend move without getting an eviction order from the landlord and tenant board.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
If a landlord decides the unit you are living needs a complete reno,can they terminate your tenancy? If so are they required to provide another unit at the same rent?
ReplyDeleteHi: If a landlord determines that the rental unit needs a complete renovation and that renovation requires a building permit then the landlord may serve a Notice of Termination in Form N13. That form has a lengthy notice period, compensation may have to be paid to the tenant, and the tenant may have the right to re-occupy the premises at the same rent and on the same terms after the renovations are done. If the tenant suspects that the renovations are an "excuse" to terminate the tenancy the tenant can fight the N13, require a hearing, raise the issues before an adjudicator, and force the landlord to be rather specific about the timeline and plan for completing the renovations. You can use that hearing process to get an order effectively supervising the renovation.
DeleteAll that being said, a landlord is not required to provide a temporary unit pending the renovation or a replacement unit at the same rent.
Michael K. E. Thiele
www.ottawalawyers.com
My landlord is trying to kick my family out, as we are having trouble paying rent. If we have a baby and its is the middle of winter, may that be a liable reason for an adjudicator to delay an eviction? (PLEASE HELP)
ReplyDeleteHi: Under section 83 the Landlord and Tenant Board is required to take into consideration all relevant facts that would impact whether a termination of a tenancy should be refused, delayed, or even denied. Winter and having a baby is certainly a relevant factor. However, it is not significant enough to prevent eviction. A typical termination for non-payment of rent in Ontario has the following timing: at the hearing the adjudicator will give the tenant 11 days to pay the rent and void the eviction order. If the rent is not paid within that time the landlord can go and file the order with the sheriff. The sheriff in Ottawa typically gives the tenant another 7 days notice of eviction and posts a Notice to Vacate on the door indicating when the sheriff will return to enforce the eviction. The timing from the sheriff is different in throughout the province, often based on workload. I don't think there is any Court Enforcement office in the province that gives less than 7 days notice unless specifically directed by the Board in which case the notice is usually in the range of 3 days.
DeleteThe point is that eviction is not instantaneous. Even after the termination date specified in your notice of termination it will still take a few weeks to get a hearing from the Landlord and Tenant Board.
The adjudicator has discretion to delay the eviction beyond the timelines set out above. But it is unlikely that there will be much additional delay beyond the timelines above based on solely on inability to pay, having a baby, and it being winter. If you can come up with a payment plan, or have some other way of showing how the rent will be paid the chances are better. If you need a few days simply to move or move into a new place that might be granted. But an extended delay for the reasons you describe is unlikely.
Good luck to you. Please consider seeing a social worker or a local community legal clinic. There are community resources available and obviously you will need shelter if evicted. There are options in all communities and being homeless is not one of them in Ontario. If you can't find any resources at all please call my office to chat with me and I will find you someone in your community that can assist in finding housing and a place for you until that happens.
Michael K. E. Thiele
www.ottawalawyers.com
I already have a court order to evacuate tenant after 11 days , i was actually talking to police and the officer told me that although you do have the order , but Sharif are unwilling to execute the orders in winters , and this may result in a longer unpaid occupancy of your property. My tenant , also mocked and taunted me that no matter what , i will not be able to evacuate him in winters .. My Tenant's confidence and a police officer's statement has made me worry a lot .. what course do i have in this situation ?
ReplyDeleteHow how can someone expedite the process to evict a tenant. the building has been declared unsafe and the tenant refuse to leave despite notices. Visits from police and forms filed with landlord tennent board
ReplyDeleteMy landlord is selling the house that me and my friends rent out. We just signed a 1 year lease agreement and he is possibly going to kick us out before the 1 year lease is even up. He is also doing this during the winter. Is this at all legal? What should I do?
ReplyDeleteHi: In Ontario, if you have a one year lease for your home your landlord is not permitted to terminate your lease and evict you just because he is selling. You have the right to occupy the home for at least the length of your lease subject to you doing things that are contrary to the lease (example: not paying rent, committing illegal acts, impairing safety etc.). Eviction for landlord's own use or for purchasers own use is not possible during the term of a lease. The earliest that you could be evicted for a purchaser's own use is at the end of your lease.
DeleteIf you landlord insists that you vacate or takes other steps give a call to the Investigations branch of the Ministry of Housing. They will communicate with your landlord and make it clear what he is and isn't allowed to do. If he continues they can lay charges against him. Aside from that, you can also file a Tenant's Rights application against your landlord through the Ontario Landlord and Tenant Board.
Hope this helps
Michael K. E. Thiele
www.ottawalawyers.com
My landlord recently decided after us living here for over 2 years ; that we need to move so that they can move in . I am currently 5 mths pregnant and have 2 kids. I have been given 60 days notice. Meaning I would need to be out January 1st. Is this legal ?
ReplyDeleteHi: There is nothing inherently illegal about such a notice. If you are on a month to month tenancy then Ontario law allows the landlord to serve an N12 (Notice of Termination for Landlord's own use). The minimum notice period is 60 days to the end of term. While it may be legal to serve such a notice there are a number of defences. You don't say whether the notice is in good faith or not. Even presuming that the notice is in good faith, the Landlord and Tenant Board has discretion with respect to the termination date--this means the Board can make the date longer if it finds that the Notice is otherwise proper. Take a look around this blog, I have other articles that talk about the N12 notice and the considerations that apply.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael Thiele. I am a grade 9 student, and am currently working on a project regarding these issues between landlords and tenants, and your help would be appreciated. My group and I would like to get in contact with you through email so we can talk. We only need to know about the most important laws a tenant should know, and the most common illegal acts among these types of situations. We are working to help people who are vulnerable to being illegally evicted because they do not know their rights. Could you leave us an email to contact you, or anything of that sort? Thank you your help will be appreciated.
ReplyDeleteHi: I would be more than pleased to be helpful to you and your group. You may email me at my office email ( mthiele@pqtlaw.com ).
DeleteMichael K. E. Thiele
www.ottawalawyers.com
I was given a onder to pay on the 1st of every month based on "consistent late payments". I defaulted only once, last month on Feb 1. My bank said they would allow me have overdraft protection, but then did not allow the payment to go through. The 1st fell on the 1st. My bank did not reflect the payment coming out until the 2nd. But by the Saturday (4th) the payment defaulted. I let my property management know and begged her not to penalize me, but she went and filed the order anyway. I filed a request to stay the order and served the Sheriffs office and now have a date for a hearing. I am not in default and March has been paid on the 1st. What are the chances that a adjudicator will cancel the stay and proceed with the eviction order?
ReplyDeleteTired and weary,
JJ
Hi Jennifer:
DeleteI feel really bad for you as the "tired and weary" is coming through loud and clear in your comment to me. Hopefully this answer can help you get a better perspective on this process.
I presume the following. At some point the landlord served you with an N8 form for persistent late payment of rent. That went to a hearing and you either agreed through mediation or it was imposed by an order that you would not be evicted if you paid the rent in full and on time for a 12 months period. This is a fairly typical order for this type of application.
The Order will have provided that if you breach the landlord may file an application under section 78 for eviction. This application is done without notice to you and you simply get an eviction order from the Board in the mail and possibly a Notice to Vacate on the door from the sheriff.
Your next step then is to file a Motion to Set Aside. You must do this within 10 days of the date of the order. It sounds like you have already done this if you have a hearing date scheduled and a stay is in place.
So what is likely to happen at the hearing?
Good things can happen and I can assure you that I have won a great many second and third chances for tenants at the type of hearing you have just scheduled. The reason is that "discretion" and "fairness" are still a part of the system and decision making process. It is not just about whether the breach happened or not.
The power for the adjudicator to give you a further chance is contained in section 78(11)(b). That section provides that the Board is to consider and be satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6);
As you can see from the wording of this section--the adjudicator has the power to give you another chance--you just need to convince him or her that you should be given that chance. If you don't convince the adjudicator of that, well then there are sections that allow the adjudicator to dismiss your motion, lift the stay, and allow the sheriff to come and evict.
So, how do you convince the adjudicator? Be creative and think about your best arguments. I can suggest the following--but because I don't know all of your facts there may be more things you could argue or evidence you could present. So, don't rely on just what I say here---use it as a guideline.
To think about what to present consider the whole point of the N8 order that was made. The Landlord clearly wanted his rent on time. The Board agreed that rent should be paid on time. It is critical for you to recognize this and accept that this is the goal. You should therefore gather proof that you did every reasonable thing to put into place a system that would allow the rent to be paid on time. You did this by arranging an overdraft protection with your bank. This is a reasonable and responsible thing to do to ensure that your rent would be paid. You need to collect evidence from the bank--copies of the forms that you filled out to arrange over-draft protection from the bank. You need to demonstrate that it should have been in place and available for the February rent. Then you need to show that the bank messed up by not allowing the charge to clear--or you need to show that the bank misled you--or show whatever it is that reflects the over-draft screw up. You can prove this by--especially if it is the banks fault--by asking the bank manager to write you a letter confirming what happened. Demonstrate that you did every reasonable thing to arrange for your rent to be paid on time.
You can also show the hardship of eviction--and demonstrate if you can, that you have taken even further or additional steps to ensure that rent will be paid on time in the future. If you're in a financial spot to pay a month ahead (I know a very tough proposition), you could do that even. You need to be showing the steps you are taking to solve this issue of persistent late payment of rent.
DeleteIf you are successful, and the landlord has gone to the sheriff, then you might hear that the landlord wants you to pay the sheriff fee (around $300). If the facts really are that the bank screwed up and it is very clear and this is what you told the landlord when you begged them not to seek an eviction order based on the Feb 1 late payment then I don't think you should be responsible for the sheriff fee. You have a strong argument as I don't think the landlord was reasonable in seeking your eviction. The landlord, if they doubted you, could always have asked for proof that your bank screwed up before incurring the significant eviction expense.
I hope that help somewhat, good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
I rent out my house and my last Tennant that I gave a eviction notice to because he moved in September 1 and I never received a dime. The court said I couldn't remove him because his girlfriend was pregnant and they had four kids. They moved out in the end of February and I had to pay all the past utilities. It almost broke me financially. That was a few years back. I just retired and was thinking about moving into my house because it's cheaper than rentals. I was living with my sister and we split her mortgage, but she just remarried. My biggest fear is when I tell my Tennant he will do the same thing, live out the winter rent free whilst I have to check into a cheap motel. I can't afford to hir legal representation
ReplyDeleteHi: It's difficult to advise you in this. Unfortunately, it seems to me that your inability to hire a lawyer or paralegal has left you with some punitive decisions against you. The outcome you describe in the case you had is unlikely to have occurred had you had an experienced lawyer or paralegal (experience being the key). To move back into your unit there is a process. It will now cost you a month's rent in compensation (by law). You need to follow the process precisely as the law allows and move diligently. I can't tell you that the tenant won't fight you but if you follow through as the law allows it should not be too bad. This is best served with an experience lawyer or paralegal. Perhaps see if you can find an experienced paralegal in your area who will do the work for you on a block fee.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
A very good friend of mine is very sick with cancer and very shortly will be doing chemo and radiation treatments. He has always paid his mortgage payments on time with the bank except since he's been ill. He is in arrears for approximately 4000.00 A couple of weeks ago he was told he had to vacate on December 3,2018. There may be some help through ODSP but that could take some time. Is there anything he can do?
ReplyDeleteHi: I'm very sorry for your friend's circumstances. Unfortunately, this blog doesn't address "home ownership" issues nor mortgage issues. Please suggest to your friend that he go to see his lawyer. I'd be looking into whether his mortgage was insured for disability etc.. This is worth looking into.
DeleteBest wishes to your friend.
Michael K. E. Thiele
www.ottawalawyers.com
Just wondering if a landlord serves you an N12 to evict you from a house that you have rented for 8 years (in the winter) and you have property frozen into the ground/snow/ice, how long do you legally have to remove said items from rental property?
ReplyDeleteHi: The Residential Tenancies Act does not contemplate this problem and there is no solution in it. As such, I would write to the landlord and ask the landlord to agree to allow you to attend at the property to get the items when the spring thaw allows the items to be removed. I would be inclined, if possible, to take pictures of the items now--as they are frozen to the ground--and include photos of them to the landlord. I would want to have written confirmation from the landlord that you can attend to get the items in the spring and that he will make them available. If the N12 is for a purchaser to occupy the premises (as opposed to the landlord) you will want to get that same written confirmation from the purchaser (and the current landlord)---i.e. both of them agreeing. I'd go so far as to put in writing that if you can't get your property back when the ground thaws that they are liable for the replacement costs of the items.
DeleteIf the landlord (and purchaser if there is one) won't agree or give you the comfort you need about the stuff frozen to the ground you could then advise that you will not move until they file an application to the landlord and tenant board. You could then make a section 83 submission that your tenancy is not terminated until the spring or that a condition of termination is that the landlord (and purchaser) allow you to access your property in the spring.
The alternative, of course, is if the items have little or no sentimental value and you can put a dollar figure on it--just have the landlord buy the items from you. While they may not want the items the hassle of protecting them and making them available to you and being liable by contract for them might make it easier for them to just pay you for the items.
good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there I'm due to have my baby in less than 7 weeks and I have been waiting for the judges word in the mail on whether or not I'm getting evicted or if the eviction is getting thrown out. It's been very stressful for me as I haven't been able to relax or have a baby room set up since I do not know if I will be kicked out of my home or not. Are they even allowed to kick out a 34 week pregnant woman with a 6 year old daughter who goes to school just down the street in Toronto? I need to know if they're allowed to do this to me or not. Thank you
ReplyDeleteHi: It certainly is stressful not knowing the outcome of a hearing. The law does not prohibit eviction of pregnant women, women with children, or any other identifiable group based on that identity. There is also no prohibition to evicting in winter or any other time of year. Presuming the application is properly filed, the evidence supports termination and eviction and the adjudicator decides against giving the tenant a break, then the adjudicator can Order eviction at virtually any time.
DeleteTo avoid the stress of waiting for the mail--consider googling the words: landlord and tenant board status. The first search result should be the Ontario Landlord and Tenant Board. Click that link and have your file number and postal code ready. If you enter this information you can see whether a decision has been made or not. It is IMPOSSIBLE to see what the decision is--this website will simply tell you that a decision has been made. If no Order has been made the site will say that the application is "open" and it will likely show your last hearing date as the last activity. Once a decision has been made the file will be noted closed and you will see when the Order was written.
You could then 1) wait for the mail knowing a decision is coming, 2) go to the Landlord and Tenant Board and ask for a copy, 3) call the LTB and see if the Customer Service Representative will read you the Order---or at least tell you the important part --tenancy terminated (yes or no), eviction date if tenancy is terminated.
Once you have the Order (and in case you lose), you can take it to a local legal clinic or to a lawyer and ask about filing a Request to Review or an Appeal (i.e. see if there is merit to doing so.).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Can my landlord evict us for non payment of rent even though the month isn't over yet an it's an illegal basement apartment with no heat
ReplyDeleteHi: Whether the rental unit is "legal" or not doesn't have any bearing on whether you can be evicted or not. The RTA applies to legal and illegal rental units. With respect to Non-payment of Rent you need to be aware that there is a process. It is effectively impossible to evict someone within the same month that rent is due. If your rent is late the landlord needs to serve you a Notice of Termination. That notice is a Form N4. That Notice gives you 14 days to pay the rent. If you don't pay then on the 15th day after serving the N4 on you the landlord can apply to the Landlord and Tenant Board. It will take 2 to 3 weeks to get a hearing date and longer in some of the more rural areas or small towns in Ontario. Until there is a hearing the landlord can not evict you---not legally. At the hearing, you will be asked whether you agree with the amount of rent arrears. If you agree then the Board will normally order that you have 11 days to pay the rent plus the application fee. If you pay, then the eviction Order is void and you get to stay. If you don't pay, then on the 12th day after the Eviction Order is written, the landlord can apply to the Sheriff for eviction. That will take at least another week. The Sheriff will give you notice of eviction. Once in a tenancy you can void that eviction if you pay the rent owing and file a Motion to Void with the LTB.
DeleteAs you can see, the above steps make eviction inside of a month impossible.
On top of that, in your question you mention not having heat. Heat is a vital service. If you can prove that you have no heat in your unit--then at the hearing you can indicate this to the adjudicator. If you can prove that you have no heat and that your unit is therefore very cold--as of the date of the hearing--then the Landlord and Tenant Board is NOT ALLOWED to terminate your tenancy regardless of how much rent you owe. This is based on section 83(3) RTA.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi, after living in the same place for the past 5 years my landlord served me an eviction notice in August due to selling the condo unit. We had a hearing at the TLB in September and the Board member ruled in the favor of the landlord and gave me 3 weeks to evict the unit on November 30, 2019. I asked for a review and got denied. Today is December 7th, 2019 and I am waiting for the sheriff to come and evict me, my wife, and kids. I'm on ODSP and not able to find a place to stay because I cannot provide job letter and paytubs. I contacted the legal clinic and they told me there is nothing they can do. Please help, how I can apeal to the divisional court.
ReplyDeleteHi: I'm sorry for the difficult spot you're in, especially at this time of year. From what you've described I can't tell if there is an error in law that could be appealed. That being said, I'd be curious if section 83 was properly explored and if it wasn't this would certainly be an error in law and hence be appealable. Timing will also be an issue as you typically must appeal an Order within 30 days after receiving the decision. Your timelines may be tight or passed. You may of course request an extension of time in the appeal. Whether the Divisional Court Registrar will sign a Certificate of Stay if the appeal is outside the 30 day window notwithstanding that an extension of time is requested is something you would have to determine as you go along.
DeleteAs far as the process of appealing--that is technical and rather confusing if you haven't done it before. I have a few other articles in this blog--this one has live links to the "Rules of Civil Procedure"--you will need to cut and paste the link below as I can't make them live in responses to comments.
http://ontariolandlordandtenantlaw.blogspot.com/2012/11/ontario-landlord-and-tenant-board.html
Another way to get help in drafting the required documents is to attend at the Courthouse and see if there is a Pro Bono Ontario office there. I'm not sure what resources are available at all the Courthouses in Ontario but some (like Ottawa), have an office of volunteer lawyers who can help with basic legal drafting and advice. The office here, in Ottawa, has been rather prolific with Notices of Appeal, Certificates Respecting Evidence, and Certificate of Stay, on behalf of tenants over the last year or so. Perhaps your local Courthouse (and hopefully so for your sake) also has a Pro Bono Ontario service.
The alternative of course is to retain a lawyer to assist you. The issue will be cost and in your situation even a quick block fee just to draft materials will be difficult as the timing of your appeal (perhaps outside the 30 day window) will necessitate a motion to a Judge if the Court will not issue the automatic Stay of the eviction Order due to the timing of the filing. The cost is impacted because not only will you need the Notice of Appeal (and related documents), but also a Notice of Motion, Motion Record and Factum. That being said, this sounds more complicated or weighty than it actually is if you've done it before. Pro Bono Ontario or any lawyer with experience in the Divisional Court should be able to generate these documents in fairly short order. This will be fairly straightforward if the error of law in the Order is glaring.
DeleteYou may have noticed that I've said "error in law" a few times. This is because an appeal to the Divisional Court is confined to an "error in law" as opposed to an error in fact. This is set out in section 210 of the Residential Tenancies Act. An appeal to the Divisional Court, to be successful, must turn on an error in law. The Court will not interfere with findings of fact or simply pick a different outcome because they would have done it differently.
The error in law in relation to section 83 is that this section must be considered by the adjudicator in deciding the case. The mandatory consideration of section 83 is required by appellate authority and the failure to consider section 83 is therefore an error in law. Given the very high volume of cases before the Landlord and Tenant Board the active consideration of section 83 is somewhat perfunctory. There isn't the level of inquiry as one might expect. Being aware of the obligation to consider section 83, and further being aware that not a lot (or any evidence was led on the discretionary factors that are relevant to section 83 consideration), I've seen many adjudicators adopting the language "I've considered the section 83 factors disclosed during the hearing" or something similar. When I see this I wonder if the hearing ever had section 83 explicitly addressed? Often enough I see hearings conclude that have been contentious on many issues without the Board, landlord, or tenant raising section 83 factors. Depending on how the record reads, I do think that this may constitute an error in law that should likely result in the Order being set aside and being sent back to the LTB for a new hearing.
The reason I wonder about section 83 for you---without knowing any specifics about what was argued in your case--is that you had barely the minimum legally required notice (60 days legal required, 90 days given). N12's for purchaser's own use are not "fault" based applications and you being on ODSP, having children, being a longer term tenant at 5 years, your disability perhaps impacting your ability to find a new place, and then the reality of the housing market in Ontario, all of these factors say to me that you should have been given significantly more time to move and find a new place than the minimum time specified in the RTA. You effectively got "zero" discretion. I wonder if the landlord even explored a delayed closing date, whether the landlord took into account your ability to move or even spoke to you when putting the unit not the market. While the landlord is not required to work with a tenant when selling a rental unit it seems to me that the failure to do so should factor into a proper section 83 analysis.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much for your reply, actually my eviction order states that and I quote "it would not be unfair to delay the eviction until Nov 30,2019 pursuant to subsection 83(1)(b) in making this determination I have considered (the board member) the tenant's personal circumstances and the fact that the hearing occurred on September 30,2019, so as of the date of this order the tenant has already had one month to find alternative accommodations." End of quote.
DeleteBut the order was signed on Nov 7, 2019 and I received it in the mail on Friday Nov 15, 2019. So technically I had 2 weeks since I've been informed till the date of the eviction on Nov 30.
Hi: I suppose that the date that the Order is signed especially problematic if you were waiting to hear what the decision was. Typically, the Board simply advises that they are reserving the decision and you don't know one way or the other until the decision arrives in the mail. Sometimes (and I saw it just this week), an adjudicator did indicate at the end of the case what her decision would be and advised that written reasons would be following--it was an eviction for landlord's own use and she was granting the eviction. I don't know what you pitched at the hearing (longer delay, refusal, technical defence?) and whether the delay in the decision catches you by surprise. From what you're saying here the decision was not written for 5 weeks, it then took a week to get to you, and then you have two weeks to move. That seems rather unreasonable if you thought there was a chance that you were going to win or you were asking for a longer delay etc..
DeleteAnyway, I can't comment further on how, what, or if to appeal, as I don't know the full story. However, if you feel that you have grounds then note that your 30 days is likely up tomorrow--it extends over a holiday to the first business day--typically you don't count the day the Order is written--so start counting November 8 (that brings us to today December 8), you appeal deadline for which the automatic stay should issue is tomorrow, December 9. If there is any hassle about the timing of the appeal and whether it is timely--note the wording of section 210:
Appeal rights
210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law. 2006, c. 17, s. 210 (1).
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
HI Michael; I am a landlord and our tenant, who moved in last year with a medium sized dog, now has a 110lbs dog who is barking a lot, using the backyard as their bathroom, destroying the property and intimidating the neighbourhood kids. The neighbours have expressed their concern in letting their little kids play in their backyard out of fear of the dog breaking the fence and attacking them. On top of that, our tenant has very loud parties one of which lead to a fist fight in the backyard and the police were called. Today, I find out that one of the tenant's guest vehicles was damaged and again, the police are involved. What can we do to ensure that the tenant moves out asap?
ReplyDeleteHi: Thank you for this question. It seems clear from your question that the behaviour of your tenant is rather surprising to you and that you are not used to dealing with a person who causes this kind of trouble. You must be thinking that this kind of behaviour must make it easy to get rid of the tenant. To the extent that you think it will be quick or straightforward to deal with the tenant you should be ready to be disappointed. While the behaviour you describe is unacceptable, that mere fact is not enough to make the eviction process simple or straightforward.
DeleteAs you learn what to do you might want to consider hiring an experienced paralegal or lawyer to take you through the process--step by step. Watch and learn on the first one and then later you can try it with the next tenant who is a problem. The legal steps are tricky and complicated and you will have a much better experience if you have an experienced lawyer or paralegal taking you through the system. If you have friends who are landlords--ask them who they use, and get a
referral to a good paralegal or lawyer.
DeleteIf you are inclined to try to do this yourself then I'll refer you to the Landlord and Tenant Board website. Look under the tab for Forms. You will most likely want to start with a Form N5--which is termination for substantial interference with reasonable enjoyment. This is a voidable notice of termination and you will need to read the Guide that comes along with the Notice to properly fill it out. I also have other articles in this blog explaining the steps.
To take any action against a tenant to terminate their tenancy and evict you need to find a legal Notice of Termination. From the LTB website you will find several different Notices. All are "N" forms with a number. The typical eviction for cause notices are the N4 (rent arrears) N5 (substantial interference or damage), N6 (Illegal Act), N7 (impairing safety). These are the typical notices that landlord's use to terminate a tenancy for cause. Each Notice has its own peculiar rules and conditions. You need to understand the Guide that goes with each Notice. It is critical that you make no mistakes with the Notice of Termination (regardless of which one you choose) as a simple mistake will likely make the notice void and require you to start all over again (which is expensive and time consuming).
Once you have a valid Notice of Termination served and that Notice is enforceable (i.e. it hasn't voided), you will need to apply to the Landlord and Tenant Board for a hearing date. You use an "L" Form to apply to the LTB. For most of the Notices you will use a Form L2. That Form also has a guide and an explanation of what you need to do to file the application with the Board.
Once you have filed the application the Board will issue a Notice of Hearing--which is like a "trial". On the scheduled day you will need to attend at the hearing and be fully ready to prove your case. As the applicant (person bringing the application) you have the burden of proof on a balance of probabilities. You will need to establish that the things you have alleged are true. You may need documentary evidence, witnesses, and even your own testimony. It is up to you to decide what evidence you will call to prove your case.
The tenant can challenge your evidence, cross examine your witnesses and even you. The tenant can lead her own evidence and call her own witnesses. You may cross examine her witnesses and her as well.
Even if you prove your case against the tenant the tenant can ask the adjudicator to exercise discretion to allow the tenant to stay. This is done under section 83 of the Residential Tenancies Act and it is a mandatory consideration.
Once all of the evidence is heard and the arguments are made the adjudicator is likely to tell you that they will think about the evidence and a decision will be mailed to you. If you win, then the tenant will be required to move out as of a certain date. The tenant can try to Review the Order or even appeal the decision to the Court. If the tenant does not voluntarily move out you will need to attend the Court at the Court Enforcement Office and ask the Sheriff (pay the fee) to enforce the Landlord and Tenant Board's eviction Order.
DeleteYou can expect this entire process to take several months from start to finish. The most adversarial cases can take more than a year to complete. It all depends on how the tenant reacts and how effective you are in presenting your case. Of course, if you make serious mistakes in your Notices you will need to start all over again.
It is certainly not impossible for you to represent yourself. However, I caution you that the "system" is not as easy and user friendly as it may appear or as it may be suggested to you that it is. The system is an adversarial system and while it is designed to be used by laypersons, the advantage goes to people who understand how the system works and to those who understand the intricacies of the law. Some people go to the Landlord and Tenant Board believing that if they just go there and tell their story that it will all work out and that the Adjudicator (same as a Judge) will simply make a "just" decision. While this belief may be true in spirit it is unfortunately naïve. The Adjudicator's at the LTB have a very limited power and they can only decide what is properly before them. Technicalities can indeed knock out an otherwise strong application and there is nothing that an adjudicator can do to help you if the technicalities affect the legal jurisdiction of the adjudicator.
So, it is up to you. Study the Residential Tenancies Act. Then study the Landlord and Tenant Board website, especially the Forms, the Rules of the Landlord and Tenant Board, and the Guidelines. If you get a working knowledge of all of this then it is reasonable to proceed on your own. Absent competence in all of these things you will likely end up feeling frustrated and upset by the outcome. Note also, when the case goes to hearing, the tenant will have access to duty counsel (legal advice) and sometimes even free legal representation.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much, Michael. I greatly appreciate you taking the time to reply. It certainly is very frustrating.
DeleteSo my landlord and I were infront of the board last year. I had an order to pay on time for the next year or he can go to Sheriff and have me removed. I have paid email money transfer since I moved in. This month he turned the auto deposit off and is not answering my phone calls. I don't know what my next step is as I have tried to pay my rent and he won't accept it
ReplyDeleteHi: I will make the following assumptions. You were served with an N8 (Termination for Persistent Late Payment of Rent) and the Landlord applied to the LTB to termination your tenancy because of it. At the LTB hearing the adjudicator accepts that you indeed did pay your rent persistently late and that therefore your tenancy could be terminated. However, the adjudicator also exercised her discretion under section 83 RTA and instead of terminating your tenancy allowed it to continue on the condition that you pay the future rent in full and on time for a period of 12 months. If you breach this condition the landlord is entitled to apply to the LTB for an Order terminating and evicting you under section 78.
DeleteIf the above is accurate, then the key to maintaining your tenancy is paying the rent in full and on time. As you describe, the method of payment is e-transfer. I presume you have checked for the silly things like correct email address, checked your junk mail for the confirmation of deposit, etc.. Presumably, the e-transfer is now hanging there in limbo waiting to be accepted if the landlord turned off auto-deposit. Oddly, I would have expected you to have to give a password if the auto-deposit is turned off?
Whatever it is with the e-transfer, it could be a technology glitch or alternatively it could be the landlord playing games. Unless your landlord is really "dumb" playing games with accepting rent is a silly thing to do that ultimately won't work. I'd go with technology issues.
Make sure that you print out the e-transfer confirmation. Print out your bank account statement showing the money coming out of your account. Print out the screen captures showing the issues (if there is something there to see). Then send your landlord an email explaining that you have paid the rent by e-transfer and that his auto-deposit seems to be off. Ask the landlord if there is a problem and why the auto-deposit isn't working as it always has in the past. Write in the email that you have called him but that he isn't answering his phone.
Then, for good measure, I'd have a friend or someone who would be prepared to testify, call the landlord. Ideally, if you were my client, I'd get my legal assistant to call the landlord to make arrangements about the payment. If he didn't answer I'd put that in an affidavit or if he did answer and then hung up (once he knew what it was about) I'd put that in an affidavit. Hopefully, reaching the landlord would result in the "misunderstanding" being cleared up.
Assuming that it isn't a misunderstanding and the landlord is trying to force you to breach the Order, having another person call the landlord, would be useful evidence. Hence the affidavit.
Here is what will likely happen if this is a scam to force a breach of the order by you. Once the rent due date comes and goes the landlord will apply to the LTB under section 78 for an Order terminating the tenancy. That application will result in an Order being issued to evict you for breaching the Order. The Order will come in the mail. Unfortunately, you can't look up the Order online because it will be a new LTB file number (that you won't know until you get the Order). It is important to get the Order. So, if you think its possible that the landlord will make the Order disappear (interfere with your mail) then perhaps call the LTB every few days to ask if an Order has been issued. This is important because once the Order is issued you will file a Motion to Set Aside and Ex Party Order. This form is available on the LTB website. This motion will automatically "stay" the eviction Order that the landlord gets. Then you will proceed to hearing on your motion. It will be very important for you to bring with you 3 copies of all of your evidence proving that you tried to pay the rent as required. This is also when you want the witness affidavit or that witness with you in person to testify.
DeleteWith proof of attempted payment and no good explanation from the landlord the LTB, I expect, would set aside the eviction Order. If these facts (above) are accurate, you chance of success is virtually guaranteed.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I have numerous people call him to try and make contact. He has ignored all calls. I went to his place today again to try and hand the rent directly to him but he lives on a gated property. I have done everything in my power to try and contact him with the password for the transfer. Like I said I have never needed a password before as he had auto deposit on for well over a year. He is willing avoiding me and my attempts to pay rent so that I fault on my court order. So as of tomorrow he can call the sherrif. I do have all the proof printed and the transfer has still not been accepted it's going to the same email for the past 4 years. I believe he's truely trying to have me removed for non payment of rent
ReplyDeleteHi: It would be unusual if he can call the Sheriff. Normally, an Order sets out that if there is a breach the landlord needs to apply under section 78 RTA. Does your Order have this section referred to in it? If there is a section 78 clause this means he would first have to apply to the LTB for an eviction Order and then you could move to set it aside. He would not be allowed to apply directly to the Sheriff for eviction. That being said, I have recently seen some LTB orders bypassing section 78--which I think is because the LTB is short staffed and the adjudicators are "trusting" landlords not to file frivolously. If you don't have a section 78 based Order you could file a Request to Review for the same grounds--setting out the landlord's actions as an abused of process.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
It states that if the tenants fail to make any one of the payments ordeded in paragraph 1 in full and on time, the landlord may apply u see section 78, without notice to the tenants for an order to terminating the Tenancy and evicting the tenants. The landlord must make this application no later then 30days after the failure of payment. I personally don't really understand what that means but that's all it mentions in the one file
ReplyDeleteHi: So this is a good thing for you. This means that the landlord must apply to the Landlord and Tenant Board for an Order terminating your tenancy. The Landlord will have to fill out an L4 application (Landlord Application Number 4) and allege in that application that you breached the conditional Order by not paying your rent in full and on time. The landlord will file the L4 application with the Landlord and Tenant Board (LTB) and the LTB will then issue an eviction Order. This eviction Order will be mailed to you and the landlord.
DeleteAs soon as you get the eviction Order you should be ready to file a Motion to Set Aside Ex Parte Order. This motion needs to be filed within 10 days of the date of the Order. This Motion sounds more complicated than it actually is. The Motion Form is available on the LTB website. Once you file the Motion there is an automatic "stay" of the eviction Order and a hearing is scheduled.
At the hearing you bring with you all of your paperwork and proof that you have been trying to pay the rent in full and on time. If you do that and the story you have shared above is "proven" then I don't see how you wouldn't be successful in permanently setting aside the eviction Order.
If you are indeed correct and the landlord is trying to artificially create a breach of the Order (by you), you may wish to consider filing your own application against the landlord for doing this. The appropriate form will be a FORM T2 (Tenant Application Form Number 2).
Given the seriousness of the issue and the need to maintain housing I strongly urge you to get legal advice and preferably representation at the LTB. Check with your local legal clinic if they can help you. If not, perhaps you qualify for legal aid? Beyond that, depending on where you are you should be able to get help from Duty Counsel at the LTB.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much for your help. I will be calling the legal clinic tomorrow as Friday everything around here was closed due to snow
DeleteHi Michael,
ReplyDeleteI am renting a basement here in north york. My landlord does not live here. Upper floor is rented to a couple with 4 students. this is the problem: when i signed the rent it specify there that i have a parking space in the driveway. The upper floor has 2 car, one park in the driveway one in the garage. I rented for $1800 hydro is inclusive. We dont have a car but we vtold the landlord that we will be getting in the future. I am driving a ebike and I park in the driveway. The problem is now the woman upstair dont want me to use the driveay parking even for my visitors. The other night she we have visitor and she tried to call towing services to tow my sister in law's car (visiting). Are they allowed to do that? Basically the landlord said I dont have parking and he said its his mistake and he advice us to move out. The woman always talkiing to the landlord and the landlord assign her as overall incharge of the house. So now they deprived us of parking even for visitor. SEcond, my rent last year is $1800 for 2019. Last january the landlord increases us of aditional $400 dollars. he said that its because my mom is lving with us and she is not signed on the lease.So he wants us to pay 2,200 for a basement and not allow us to park plus I am the one doing the snow showveling and backyard grass removal etc. so last month I talked to the landloard and agreed that he will not increase us 400 and instead it will be 200. sSo now 2020 I am paying 2000. And they not allow us to use the parking with my ebike or even for the visitor. The woman upstair put her car outside the garage and park at the front.
Can I complain to the landlord and tenant board about this?
1. issue is the parking.
2. rent increase of 200 dollars. because my mom lives with us. we rent it 2019 and my mom is already here as visitor.
3. i do the snow showvel and backyard ( althought in the list it shoulkd be alternate,upstair, me upstair me)
4. my lease last year is with parking nd 1800 dollars. now landloard sent a new lease but no parking. i did not sign it so im in month to month basis now.
5. now i am paying 2000 and they deprived us parking but they still want me to do the snowshowvel and backyard.
what can i do? i feel the landloard is trying to kick us out seemingly because he advice us to move out if we are not happy in the basement for like 10 times or more.
I am afraid to scelate this at the landlord and tenant board but this keep us sleepless everynight. please i need your advice.. thank you.
Hi: It does appear that your landlord is simply making up the rules as he goes along. He seems to think that the law is irrelevant and his contractual obligations are not binding. Based on what you have written here there is absolutely no question that you have a basis to complain and to file with the LTB. The parking is an issue and you are entitled to it. I would focus on the denied parking as "harassment" as opposed to a reduction in service and I would look for an order requiring the landlord to restore access to your spot plus a significant rent abatement for the denied parking to date plus a little extra for the harassment. The rent increase is plainly illegal (whether your mother is there or not--this is none of the landlord's business). I presume that the landlord doesn't believe in N1 Forms (Notice of Rent Increase) so no part of this will ever be deemed legal. You can file an application for a termination of the lawful rent plus a refund. With some legal advice you might want to calculate the amount owing and do a little self help and withhold rent and get the landlord's attention. That, though, I would only do with legal advice and a lawyer or paralegal on standby or better yet with a demand letter drafted by the lawyer or paralegal sent to the landlord. The landlord needs a wakeup call to his legal obligations. The snow shovelling etc., is a maintenance obligation that belongs to the landlord--for that you should seek compensation for having done the work.
DeleteI think you likely already know that your rights are being violated and that you have claims. You have clearly identified them and that says to me that you know what the issues are. The real issue, it seems to me, is that you are conflict averse and simply don't want to fight with your landlord. Your aversion to conflict results, in this case, to you being taken advantage of. I appreciate what I perceive to be your personality from the few lines that you have written here. You are inclined to "go along to get along" and are normally willing to carry a little more burden than the next person if that results in peaceful relations. That is a wonderful personality trait and I'd guess that you are a lovely person (quite the assessment from a few lines!). There is a reason for saying this, beyond a compliment, and that is to urge you to take action through an experienced representative (lawyer or paralegal). Your landlord and his now tenant agent (superintendent) are unlikely to back down and probably will be rather displeased at your sudden insistence on your legal rights. You should note, and I presume your lawyer/paralegal would consider it, that you have a claim against the upstairs tenant as well in her capacity as the landlord's agent/super. Whether that claim is successful or not, asserting it is necessary to get the tenant/super to back off and behave herself.
DeleteUndoubtedly you will ask yourself whether the stress of the fight is worth it or not. Only you can determine that. If you decide that putting up with the illegal demands is not something you are prepared to do; but you also want to avoid the conflict and stress of the situation because you still live there and need to interact with the landlord and his superintendent, then perhaps you do consider moving. Perhaps you do take steps to find a new place but prior to moving and giving notice you retain a lawyer/paralegal to advise you on the legal actions you could take against the landlord and you make sure that you have all of the evidence you need to prove your case. Then, with the advice of your counsel, you give notice and move and at the same time file an application to the LTB for a rent abatement, fine, damages, etc.. You are entitled to file an application against the landlord after you are out of possession (this is perfectly normal), though there is a time limit. I'd suggest that prior to actually giving notice that your lawyer/paralegal be consulted on how to recover the overpayment of rent and the statutory issues arising from an application by a tenant for a rebate versus a credit against a landlord's application for rent arrears [that is a technical issue].
I hope that is a bit helpful and assists you in deciding how to move forward.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
My mother recently passed after being in a coma for a month. The landlord (while she was still in hospital) applied for an eviction on the grounds that I am not on the lease and therefore an illegal occupant although I have lived here with my mother for over 2 years. He also refused my attempts to pay rent. I have not dealt with my mother's estate yet and the house is full of her stuff. He states that if I do not leave by Monday he will change the locks and call the police and have me removed. Is this legal and what are my recourses?
ReplyDeleteHi:
DeleteFirstly, I am very sorry for your loss. The issues you mention must be especially hard in your grief.
The landlord's actions are simply despicable. You don't say whether the landlord's application to the LTB resulted in an Order from the LTB already? That application should be defended based on the timeline you outlined. The application is simply wrong and should not result in an order terminating the tenancy on the basis of "unauthorized occupant". Your mother, while in hospital, still remained a tenant and can not reasonably be argued as having transferred the tenancy to you.
The "legal" way I would look at this is that the tenancy continued until your mother passed away. Her death results in the tenancy being terminated 30 days after death subject to any agreement with the landlord to extend the time etc.. The landlord sounds to be a callous piece of work and an agreement for extension seems unlikely. The extension would only be to allow the estate to organize and move out.
Alternatively, you may want to explore whether you are indeed a tenant already. It may not be the case but there could be facts that support such a contention. Not being named on the lease is not conclusive of the question. There are other ways that one can become a tenant. You may wish to consider an application to the LTB to determine that question.
How you proceed, and what needs to be done, is a question you likely need to explore with a lawyer or paralegal experienced in landlord and tenant law. From your question (without additional details) I see the possible need to file a Request to Review (if Order issued) or motion to set aside, possibly to file a T2 application, possibly to file a small claims court action, possibly to file a complaint with the Housing Enforcement Unit (to get charges laid against landlord).
The immediate goal of course is to prevent the locks from being changed and to stop the police from assisting the landlord. The threatened lock change could be dealt with on an application to the LTB and through a complaint to the Housing Enforcement Unit. Accessing the Board will be difficult with it being severely underfunded and understaffed but it is worth a shot anyway. I am unsure how responsive the Housing Enforcement Unit is these days. Call them. You want the HEU to contact the landlord and tell him that it is illegal for him to unilaterally change the locks. He can only regain possession through the Sheriff. You would hope the HEU also advises that landlord that if he follows through on his threat that charges will be laid against him. What he is threatening to do is illegal (simply the threat is illegal) and actually doing it is doubly so.
Will the police do as the landlord asks? Unfortunately, my experience is that there is totally inconsistency across the province. It seems (sometimes) that what happens depends entirely on which officer responds. That being said, I am not unsympathetic to police officers who are called to an address and are presented with contradictory facts from everyone present.
DeleteIn this situation, I would hope that the officer looks at it from a "keep the peace" perspective. The officers should note all of your personal property in the home, all of your mother's personal property in the home, and with the absence of any "safety" issues, the officer should tell the landlord to stay away until the landlord gets a Court Order or LTB Order. That I think, would be the right approach on the facts you describe.
You might be able to sway this to your advantage if you attend the local police station and raise the issue with the police there. They can take a report, can have a discussion, and perhaps enter something into the computer to assist responding officers. Who knows what information they might want but you can provide it in a civilized context as opposed to a stressful situation at the property.
If you can retain a lawyer or paralegal right away that would be your best option. I would be inclined given the landlord's threats to write letters to him, file applications against him, contact HEU, and notify the police of the issue and a threatened illegal eviction.
Ultimately, whether the tenancy is over or whether you are a tenant is a question to be determined by the LTB. Pending that, you should have the right to occupy the premises without the kinds of threats being made against you.
Best of luck in dealing with your landlord.
Michael K. E. Thiele
www.ottawalawyers.com