It always comes as a great surprise to me that many tenants pay their rent in cash. They pay the rent in cash, often forget to get a receipt, lose the receipt, or don't even ask for one. These are very trusting tenants.
I'm often confronted with the cash paying tenant at the Ontario Landlord and Tenant Board. Most often when I am representing that tenant. We are usually defending an application for termination of the tenancy for non-payment of rent. As is my usual practice, we go through each month of claimed rent arrears, line by line. It is in doing so that the tenant swears to me that the rent is paid---paid in cash. That's when I ask the tenant if they have a receipt or any proof that the cash was delivered to the landlord. The answer is often naive and the tenant tells me that the landlord knows the rent is paid. Sometimes the tenants can show a withdrawal of the exact amount of cash from their bank account and we try to infer that the rent must have been paid from this withdrawal. Most often though, there is no proof of payment.
The burden of proof in any application at the Ontario Landlord and Tenant Board is on a balance of probabilities. In a non-payment of rent case, the burden is easily discharged by the landlord who only has to say " I didn't get the rent for X month(s)". The burden then shifts to the tenant to prove that the rent has been paid. How do you do that without a receipt?
The simple answer is that most of the time you can't The Landlord and Tenant Board imposes the proof of payment on the tenant. Without a receipt, cancelled cheque, direct deposit slip, there simply isn't any evidence of proof of payment. Of course, a tenant's own testimony is evidence, and perhaps there is a circumstance in which the adjudicator would prefer the tenant's oral evidence that the rent was paid over the landlord's oral evidence that the rent was not paid. However, those instances are very few and far between.
Tenants who pay cash, and who don't keep their receipts, risk having to pay the rent twice should the landlord deny receiving the rent in cash. This is profoundly upsetting and quite expensive for tenants who are often paying the rent in cash because they can't afford a bank account or because the landlord insists on getting the rent in cash.
Tenants should be aware that a landlord can not insist on getting rent in cash. Even if a tenant gets a receipt, it is better to pay the rent in a form that is traceable. Direct deposit, cheque (get copy of cancelled cheque), money order, all of these are better than paying in cash. A lost receipt for cash is as bad as never getting a receipt in the first place.
Wednesday 7 November 2012
33 comments:
IMPORTANT NOTICE
Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.
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Is there any law or LTB cases that indicate what forms of payment a landlord is required to accept? For instance, is a landlord required to accept direct deposit?
ReplyDeleteThank you!
Hi: No there isn't. The Landlord is not allowed to require post-date dates cheques or specific forms of negotiable instruments. But I'm not aware of anything requiring the landlord to accept direct deposit.
DeleteMichael K. E. Thiele
Hi Michael, thank you for your great blog, super INTERESTING to read, and very useful. I am a small-scale landlord (live in the same house as my tenants) in Brampton ON.
ReplyDeleteFrom my Landlord's perspective I also do not want to take cash. While it might seems easier to take cash, but then I am required to give a receipt, then if they lost it, I am required to give the receipt again. On top of it while tenants have track of them giving me payments, I do not have any traceable evidence showing when and how much they paid (with their signature or other confirmation). I also don't feel quite safe taking cash from certain people, and I find it important to have a trail of tenants consistently paying late if this is the case.
My actual question is - can I legally require my tenants to pay in traceable payments? E.g. money order, personal cheque, certified cheques, even e-mail transfer? Or do I have obligation to accept their cash payment if they insist?
Hi:
DeleteThere is nothing it the RTA that I am aware of that forces a landlord to accept cash for the payment of rent. Certainly, I am aware of a great many landlords who refuse to accept cash for payment of rent--for many of the same reasons that you cite. The requirements with respect to the method of payment of rent are set out in section 108. This is the section that prohibits a landlord or tenancy agreement from requiring a tenant to provide post-dated cheques or other negotiable instruments. Further, this section prohibits a landlord from requiring a tenant to allow automatic payments from bank accounts, credit cards etc..
That, however, appears to be the extent of the statutory rules on payment of rent. Refusing to accept cash seems like a reasonable thing to me. While you can't tell a tenant "how" to pay the RTA seems to allow you to state how you will not accept payments. It would be worthwhile to put this condition (no cash) in your tenancy agreements.
Michael K. E. Thiele
www.ottawalawyers.com
If you are a landlord and you communicate and coordinate via text with your tenant when/how much money she or he will give you in cash, are your text messages sufficient to hold up in court if need be? I'm a landlord, and my tenant is promising he will pay his arrears soon, but is insisting in cash only and not cheque. Is this something I should be worried about?
DeleteFantastic blog by the way! Learned a whole lot reading though your posts then I ever did searching though the internet!
great story, however, I was under the impression that no one can refuse coin of the realm. I realise it may not be safe, but I do not have a chq book, and I do not feel that I should have to pay 5$ for a money order. thank you for this blog however, very helpful
ReplyDeleteI've been making the mistake of paying cash without receiving my receipts, and I only ask for receipts when I need them. I recently asked for receipts for the whole year and she hasn't given them yet.
ReplyDeleteMy question is, if I want to change my payments from cash to cheque, which she'll dislike, how can I do so efficiently and within my rights?
Hi Ahmed: Get your receipts for the cash and don't give any further cash unless you get a receipt for that cash immediately. Once you have all of your receipts then simply give the landlord a cheque the next time. The landlord may be upset but they are not entitled to be paid in cash. You have every right to pay the rent by cheque. It is safer and is traceable as it's own receipt if necessary.
DeleteGood luck
Michael K. E. Thiele
Dear Michael,
ReplyDeleteI have learned a lot through your blog site and have something similar to the question provided to you back on November 15, 2015 regarding rental payment.
We've been at this location for over 11yrs. Since the last 5 years we've paid cash, no lease, as of Dec 2015 we asked for a receipt and feel it was purposely ignored even though the landlord that lives directly across the street did not follow up. We have had a good relationship but feel we are more and more being ignored or treated disrespectfully in a way that they are getting away with too much and we are just too nice. I have no idea if they are claiming it or not. Either way that's their business but truly feel we have a right to get a receipt every month or at least for the entire year by end of year for proof.
When we inform them of a matter that could eventually lead to a serious one, they consider it as an issue from us when instead its a "request" that should be looked into as we are being in my view responsible tenants. After 2 years of informing them that the way the furnace was running did not seem right and was running inconsistently with heat due to the possibility that it was reaching its longevity of over 15yrs.
Thanks to the new tenants upstairs that notice the same thing and went over quick time in 48hrs the issue was looked into. While our new furnace was being installed I informed them in person of our bathroom sink having an egg smell and can it be looked into. This has happened just recently once in Jan. 2016 and now several times during Feb. while using the sink late at night or early mornings. Sometimes during the day it won't happen.
The landlord verbally confirmed "one thing at a time and that he'll get a friend (plumber to look at it) It's been over 48hrs since our furnace was looked at and the egg smell was mentioned and still have not received any confirmation that the sink will be looked at.
Can you please provide guidance at your best knowledge to the following:
i) getting the receipts
ii) having the sink looked at and would this be considered a health related issue if a another step needs to be approached if our request continues to be avoided or ignored? Do they have the right to be paid rent for March if the matter is not looked at sooner than later and continue to ignore us after a verbal reminder?
iii) Would it be appropriate to have an excel file created for the above with the length of time when these requests are being looked at as proof?
Thank you and really appreciate your time and effort in advising what the next step should be. Your blog is fantastic and I'm looking forward to hearing from you.
All the best!
Hi: The obligation to give receipts is set out in section 109 of the RTA. If you search my blog in the search box you will find an article written specifically on the obligation to provide a receipt and the tenant's rights if one is not provided.
DeleteThe issue with the sink should be something that the landlord looks into quickly and without question. Especially for long term tenants like yourself. An egg smell is concerning as it suggests to me sewer gas smells which you shouldn't be getting. However, as something new after 11 years that doesn't make sense to me either as I would have expected the smell to be present long ago if the sink was not properly installed. You are right to ask the landlord to look at it. If he takes too long or refuses there is always the avenue of calling your city/town/township in to have the property inspected. If that isn't realistic you could also file an application with the landlord and tenant board--even though it seems extreme for a sink that apparently is still working but just has an egg smell to it.
Your last point is a good one. Whether it is an excel file or a simple folder. You should keep track of all of your requests, copies of emails, text messages, letters, or make a note of the date and time of phone calls and what was said with the landlord. This is useful and necessary evidence if you should ever need to proceed to the Landlord and Tenant Board. Keeping this evidence also protects you from allegations that you did not inform the landlord of necessary maintenance that could have avoided significant damage.
Good luck to you
Michael K. E. Thiele
www.ottawalawyers.com
Good morning, thank you for sharing your knowledge here. Our issue is that we rented an apartment from a mother and daughter couple... Unbeknownst to us, the daughter doesn't not reside upstairs but the mentally ill mother does, on her own. Slowly but surely we learned of our landlord's disruptive behaviours. We've asked her daughter to intervene but to no avail. My question is, can we ask for our full security (first and last) back as we were swindled into taking this place with no knowledge of our mentally ill landlady? Best regards to you
ReplyDeleteHi: IN order to offer an answer I need to infer that you are seeking to terminate your tenancy and move out? If the living arrangement is intolerable then you can seek to terminate your tenancy and move. If the landlord does not agree, then you would have to apply to the Board to request an order terminating the tenancy (presumably you are on a written fixed term lease?). If you are applying to terminate your lease you could ask the Board to refund rent paid, or provide an abatement, and/or provide you with compensation for moving costs etc.. Whether this is successful or not will depend entirely on the circumstances. Of course, the fact that your landlord is mentally ill does not justify termination in and of itself. You will need to demonstrate how the landlord's behaviours are making it impossible to continue to live in the premises. As terminating a tenancy is often considered a remedy of last resort you will want to make sure to have made every reasonable overture and attempt to solve the problems that you are facing. If the Board feels that this has not been done you may indeed be denied termination of the tenancy. If I were you, I would not highlight in the case against the landlord that any of the behaviours arise from mental illness or any other disability. You should focus only on the disturbing conduct and if it is serious enough then that may be the basis to terminate the tenancy. If the landlord, via her daughter, wishes to argue that the complained of activity arises from a disability etc., then that is her argument to make.
DeleteGood luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, my tenant sends rent via etransfer and has started shorting rent to cover the cost of the etransfer fee. I can't find any law regarding this, but I feel like they should be paying the transfer fee.
ReplyDeleteHi: You are correct. The tenant owes you the entire rent and reducing the rent for the fee means that the rent is not paid up. I presume of course that you haven't required the mode of payment to be etransfer? If the tenant does not wish to incur etranfer fees they should use a different method of payment.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael. My landlord sent out a notice that effective Dec 1 they will not be taking cash payments. Now considering cash is legal Canadian tender, can they do this?
ReplyDeleteSecondly, I do not trust direct withdrawal from any source, nor will I incur any extra fees from etransfer or cheques.
What are my options?
Thanks
Jeff
Hi Jeff: An interesting question. There is a general legal proposition, with respect to the payment of rent, that "neither party can unilaterally change the accepted method of payment". Your landlord simply announcing that they will no longer take cash is a unilateral decision changing the accepted method of paying rent. You could argue, and I think successfully, that the landlord can't do this.
DeleteA second way of looking at this is in relation to the Post Dated Cheques section of the Residential Tenancies Act (RTA) specifically section 108 (b). This section is most commonly referred to when talking about landlord's wanting post dated cheques or automatic charging of rent to a bank account, credit card, etc.. This section clearly makes that illegal.
However, for your situation, section 108(a) is more interesting. It provides: Neither a landlord nor a tenancy agreement shall require a tenant or prospective tenant to, (a) provide post-dated cheques or other negotiable instruments for payment of rent; or ".
You end up asking yourself what are "negotiable instruments". I can't find a definition in the RTA so you would look elsewhere for what is commonly understood to be a "negotiable instrument". For sure this includes "cheques" and I imagine it would include a money order, postal money order, or anything else that is the equivalent of money or which can be traded in for money.
While I don't see that you have the right to pay rent in cash I don't see how the landlord can demand that you pay rent in anything but cash based on the wording of section 108(a).
The foregoing is at least an argument. I haven't looked up the caselaw on section 108 and I don't know if the Board or a Court has dealt with this question of a tenant insisting on paying in cash and whether there is a legal right to do so OR alternatively whether the landlord has the legal right to demand payment in any for other than cash.
Good luck with this. Interesting issue.
Michael K. E. Thiele
www.ottawalawyers.com
answer provided please,
ReplyDeleteMe and my friend paid deposit to a landlord upon seeing the house.we signed the lease papers but paid deposit in cash i have the cash receipt and bank statement to match the date and time. now the landlord doesnt want to rent us the appartment when asked for deposit he refused to pay and asked us to go in court. what can be done now? please guide us i m am immigrant as a work permit not a resident
Hi: While you might think you need to sue in Court the better place to go is the Ontario Landlord and Tenant Board. Take a look on the website of the Ontario Landlord and Tenant Board and look at the Forms for tenants. You should open and read the T1 application and look at reason number 4. I think that describes exactly what has happened to you. Applying to the Landlord and Tenant Board will be much faster than going through the small claims court process.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
I don't want to pay in cash since i wont receive a receipt, but if i do pay in cash, i can just buy one of those receipts packs that are sold at the supermarket so the landlord can sign them right? Or is it better to just do etransfer if they dont want to sign anything?
ReplyDeleteHi: I strongly encourage tenant's to pay rent in a traceable form regardless of whether they receive a receipt or not. E-transfer is the way to go!
DeleteMichael K. E. Thiele
Hello! Thank you for this blog! Hers a question that arose the other day: as I tenant I wish to pay for the rent; however, is it the landlord's responsibilty to collect the cheque/cash, or is it the tenants responsibility to deliver the cheque/cash?
ReplyDeleteHi: The Residential Tenancies Act does not specifically state how rent is to be paid. There are restrictions on how rent may be demanded to be paid. For instance, a landlord may not require post-dated cheques or pre-authorized debit. It is fine for a tenant to voluntarily give post-dated cheques or pre-authorized debit but it is not required.
DeleteBeyond the restrictions, the practice has become that the manner of paying rent is set out in the lease agreement. If the lease agreement is silent on the question then the manner of payment becomes whatever practice is first used. Hence, if the landlord has picked up the rent for a long time then the established method of paying the rent is the landlord picking up the rent. This then becomes an implied term of the lease and is considered part of the contract. What we do see in the caselaw is that either party is not entitled to unilaterally change the way that rent is paid after there is an established practice.
If there is no established method of paying the rent (I suppose that is possible?), then it will be a question of what is objectively reasonable. Imagine a landlord who says to a tenant, "you must pay the rent at the office", but the office is in a nearby city but not anywhere reasonably close. If the tenant says in response to this demand: " I need an alternative way to pay as I can not travel so far just to pay rent" and the landlord refuses then it will be up to the Landlord and Tenant Board to decide how rent will be paid. Presumably the tenant will offer to mail a cheque, make an e-transfer, put check in a drop box at the rental property, or some other manner of payment. If the landlord sticks, quite unreasonably, to a very difficult method of payment then I don't think the Landlord and Tenant Board will rule in the landlord's favour when the tenant refuses to pay rent in that way. The same will be the situation if a tenant demands to pay rent, only in cash, and only at the doorway of their apartment. Presumably, the tenant wants to require the landlord to come to the unit (sometimes repeatedly if the tenant is not home), to pick up the rent. If the landlord agrees, this is fine. But such a manner of rent payment is unwise and unlikely to be enforced if the landlord objects. Receiving large sums of cash invites crime, creates book-keeping headaches, and meeting every month means that the landlord and tenant are going to have to coordinate meetings. Hence, if a landlord says, I will not accept cash from you at the door, but here is my bank account number you can go to any branch of my bank and deposit the cash to my account--that would, I think be a reasonable proposition to a tenant who wants to pay in cash (as opposed to cheque, e-transfer, etc.).
Michael K. E. Thiele
www.ottawalawyers.com
Hi,
ReplyDeleteThis blog is fantastic! I have a question. My husband and I have been renting without a lease agreement half of a duplex for many years. Friendly with the owner. He is now wanting to sell and told us that he wanted to sell the duplex vacant. Assuming this is so whoever buys it can charge higher rent for both units. Is he able to legally evict us?
Hi Jenn:
DeleteThere is no possible way to evict you for this purpose. You have the absolute right to remain in your unit (subject to not otherwise breaching your obligations--like paying the rent etc.).
If you landlord wants the place vacant to sell he will need to convince you to agree to terminate your tenancy and move. This kind of agreement usually means he needs to pay you to agree to leave. However, you are under no obligation to make such a deal.
As you assert your "right to stay" be ready that your formerly friendly landlord may all of a sudden be less so. In anticipate of this, you might want to enter into an email exchange with him that would document his request that you vacate so he can sell the unit. Maybe email about the expected listing date, whether he wants you out before listing, whether you can stay until it is sold, etc. etc.. Once his position is confirmed writing you can then assert your legal right to remain. I know it sounds, and perhaps feels a bit sneaky, however I have seen many cases with tenant's in your position where the illegal demands were entirely oral and at a hearing the landlord denies having said what is alleged. This matters because the landlord, not getting what they want, will start serving other termination notices or start being nasty. If you can prove the action is taken as a result of you asserting your lawful rights the Landlord and Tenant Board is actually deprived of jurisdiction to terminate your tenancy (i.e. section 83(3) RTA).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello, my mother is listed as the sole tenant on the lease agreement, however, I have been paying the rent by cheques. My mother isn't able to financially support herself, so I have been paying the rent for her. Recently the landlord returned a cheque back saying that the name on the cheque doesn't match the name of the tenant. This is strange considering that I have been paying my mother's rent for many years using my cheques. Is there a law or rule that says the rent has to be paid directly by the tenant or the landlord should accept payment, regardless who it's coming from? Thanks for your help!
ReplyDeleteHi Alex:
DeleteThe landlord has likely become aware that the payment of rent can make someone a tenant even if they are not named on the lease. The landlord is guarding against you becoming a tenant and therefore you having the right to occupy the premises should your mother pass or move out. At this stage, given how long you have been paying the rent with your own cheque the horse is long out of the barn (if you intended to claim to be a tenant). Does paying rent with your cheque automatically make you a tenant---no, not at all. But it can result in that--hence the landlord's worry.
The landlord is not entitled to refuse your cheque--especially since you have been paying this way for a very long time. No where in the RTA does it say that a cheque needs to be in the name of the tenant.
The solution to this issue is for you to inform the landlord that you are paying the rent on behalf of your mother. The Landlord and Tenant Board has recognized that third parties can pay rent on behalf of a tenant without actually becoming a tenant. Confirm and clarify this with the landlord and you should be able to go back to normal.
Michael K. E. Thiele
www.ottawalawyers.com
Help. My landlord has always picked up the rent from me at my rental unit. She informs me on a Sunday that I must now deliver the rent to her as she is sick and old (her words). I work weekends and I do not drive and she lives in an area unaccessible by transit.
DeleteI have never delivered my rent to her can she enforce this change of payment arrangement.
Hi: Your landlord is not entitled to unilaterally change the mode of payment of rent. This is especially true if the change, as proposed, is more onerous on the tenant. Taking the landlord at her word (i.e. it is sincere), then this situation begs for a compromise. Can you suggest an e-transfer, mail a cheque, get her bank account number so that you can deposit cash to her account directly at your convenience? Surely there is a compromise that works. If your landlord is being hard-headed, then it is worthwhile for you to make a series of suggestions, in writing, that represent an acceptable compromise to you. If the landlord does not respond, or simply demands that you have to deliver the rent to her, then you might consider filing an application with the Landlord and Tenant Board (Form T2), or alternatively, simply wait at home to pay rent in the usual fashion. Eventually the landlord will compromise (or just pick up the rent), or alternatively, she will file an application to the Landlord and Tenant Board at which time you can explain what has happened and the Board will make an appropriate Order (likely along the lines of a reasonable compromise).
DeleteMichael K. E. Thiele
www.ottawalawyers.com
I served my tenant a n4 and wondering what I should prep for the hearing.
ReplyDeleteShe seems to be having financial difficulties and so I had my property manager offer her cash for keys...and even to help her find a cheaper apartment - but she didnt bite on any of the offers. We also learned from her that she took in some roommates...some of whom are not paying. We have tried be flexible and I'm even going to suggest a payment plan ahead of the hearing.
I'm wondering if these attempts of good faith on my part as a landlord may strengthen my case as I do not hope to be ordered to give the tenant a payment plan by the board. By the time the hearing rolls around she will be $7500 in arrears. I am hoping for an eviction order the first time. She's not willing to work with us and we have no clue as to who she took in to live with her.
Hi: You can do all of the things you've suggested. To some adjudicators it will matter and to others it won't. Nothing you do prior to the hearing will preclude the adjudicator from considering section 83--which is the discretion section and the authority under which the Board takes into account all of the circumstances. Regardless of what efforts you go to in trying to work with the tenant--the LTB will do the analysis all over again and if the tenant makes a pitch for a payment plan etc., then the Board will consider it.
DeleteWhatever the tenant proposes the adjudicator will turn to you and ask you what you think about the proposal. That will be the time for organized thoughts, evidence, timeline, etc., about why you don't think her payment plan is a reasonable proposal.
Perhaps it is helpful to you if you understand the view that adjudicators often approach payment plans with. The argument goes that a payment plan is actually a favour to a landlord. The reason being that an Order with a payment plan will also be an Order that requires ongoing rent to be paid in full and on time. On top of that amount, the payment plan will whittle down the arrears over time. This is a good thing for landlords because if the tenant were simply evicted it is highly unlikely that the rent arrears would ever be paid. The landlord would have to spend money to enforce the claim elsewhere or alternatively just write it off. Why isn't this a good deal for you? That is what you need to be prepared to answer.
The tenant, to make a compelling argument for a payment plan will need to explain how the arrears arose (job loss, illness, etc.), how the circumstances leading to the arrears have now been changed (i.e., new job, back to work, etc.). And further the tenant will need to show that the rent on the premises is affordable to them based on their income. Throw in some personal facts about the profound hardship that eviction would cause and it becomes a compelling case to maintain the tenancy on conditions.
DeleteYou need to focus on the opposite of the factors that make a payment plan compelling. So, is the unit actually affordable to her. Query the likelihood of her meeting any payment terms. Highlight her lack of cooperation and her unwillingness to work with you to find solutions. Then, focus on the prejudice that you face in getting a conditional Order instead of an eviction Order.
What is the prejudice? It isn't the arrears because those are there regardless. The prejudice is in how the system operates. A conditional Order allowing a payment plan plus ongoing monthly rent gives you the right to apply to the Board under section 78 if the tenant breaches any of the conditions of the Order. Sounds good--except it becomes an issue with "time". A section 78 clause allows you to apply to the Board on an L4 application for an Order terminating the tenancy. An emphasis is made, usually to the tenant, that the breach leads to an eviction Order being made without notice to the tenant--hence very very serious. The reality is somewhat different. While you can apply under section 78 and the Board will issue an eviction Order based on your application the little highlighted part is that the tenant, within 10 days of receiving the s.78 Order can simply file a Motion to Set Aside. That motion, regardless of whatever nonsense is written in it--it could literally say "I didn't pay because I didn't want too" and the Board would issue a Stay of your eviction Order and send the matter to a hearing. That hearing would take a fairly long time to schedule and meanwhile your arrears keep growing. At the Set Aside Hearing you would have to prove the breach (likely easy to do), but then the tenant gets another kick at the can to explain why she should get another break, another payment plan, etc.. Hence, the breach of the first Order can in fact be excused on a discretionary basis again.
The section 78 system, in my view, is prejudicial to landlords. It simply takes too long and there is really not bite to the condition in the Orders given how easy it is for tenants to simply file a motion and then argue relief again. The lost time, and the incurring of new and additional rent arrears to what you are already owed is the "prejudice" you face if a payment plan is granted with a section 78. You emphasize this prejudice by challenging the likelihood of the tenant complying. Challenge with the obvious points--why hasn't she made voluntary payments up to now, why weren't these details provided earlier, etc..
Raising money through roommates isn't unusual and to the chagrin of many landlords there is absolutely nothing you can do about it. Tenants are permitted to have roommates--regardless of what the lease says. In your situation, explore the facts about the roommates, funds received, why she hasn't paid you. Get her to say something stupid like---"I'm only going to pay if I get to stay" or a variation on that. This would demonstrate that the tenant has no good faith intention to get you your rent money and she doesnt recognize the legitimacy of your entitlement to be paid the rent owing. With an attitude like that why should she get a payment plan.
I hope that gives you some ideas on how to approach this hearing. Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello, my landlord enters the basement where we live without calling us and asking permission to enter, we have shared laundry but we told landlord that over the weekend it’s ok to come down without notice, but he often enters our space without prior calling or letting us know…it’s one room and den basement and that too without any locks to door…we have reminded landlord many times that please call before entering the basement because it’s our personal space and we are not comfortable with sudden surprise visits
ReplyDeleteWhat can we do in this case…we pay our rent in cash
The first question to ask (and answer) is whether your tenancy is covered by the Residential Tenancies Act (RTA). If you are RTA covered then you have rights that are clearly set out in the law. In your question you mention waiving notice, right to receive notice, and object to entry without notice. Each of these comments you make relate back to the Privacy provisions of the Residential Tenancies Act and the entry rights/requirements into a tenant's unit, specifically sections 26 and 27 (with and without notice entry). My point is that you have a right to complain, and make demands along the lines you ask about if your tenancy is covered by the RTA.
DeleteIf your tenancy is not RTA covered then the concepts of notice of entry, timing, etc., is not an automatic right.
You describe a unit that sounds like it is only "one room and a den". Further that there are no locks on the door, and clearly it sounds like the landlord lives in the same house. This begins to sound like a non-RTA covered arrangement. Do you by chance share a kitchen and/or a bathroom with the landlord? If you do, then your arrangement is clearly not RTA covered as the section 5(i) exemption would apply and you would have none of the RTA rights.
That aside, if you in fact are RTA covered then you have the right to insist on 24 hour notice. The landlord should not enter your space without notice or permission. If he refuses to follow the law then you have a few options. You can file a T2 application at the Ontario Landlord and Tenant Board over the illegal entry (make sure you have good evidence to prove it). You can also file a complaint to the Housing Enforcement Unit and hope that they contact the landlord to inform him of his obligations and threaten charges. Lastly, if the landlord is indeed inside your "house" without permission or notice then he has entered illegally. Consider making a police report and ask the police to speak with him and then charge him if he still does not respect your property. These are the usual legal routes.
You might consider installing a lock as well. Technically the landlord is entitled to a key but while that sorts itself out you can at least protect yourself from him just walking in.
Again, the courses of action described depend on your tenancy being RTA covered. If it isn't, well then you are more or less at the mercy of your landlord.
Good luck
Michael Thiele
www.ottawalawyers.com