Before you get to the standard answers of subletting and assigning it is worthwhile to approach the landlord and set out the problem and the need to vacate the rental unit. A landlord's reaction may indeed be helpful and the landlord might agree to let you out of your lease early. Some reasons why they might agree: 1) A higher rent could be obtained from a new tenant, 2) Renovation plans, 3) Getting a new longer lease committment from a new tenant, 4) and just possibly--the landlord is kind hearted and willing to help out.
How might a landlord agree to early termination? The terms of negotiating a termination will need to address the interests of both Landlord and Tenant. The Landlord's interests include not losing rental income and having a quality tenant in the unit (and not some crazy subletter that upsets the whole building etc.). The Tenant's interests include ending the lease as soon as possible, identifiying the extent of the future rent liability, and avoiding litigation with the landlord.These interests can often be adequately addressed by working out a notice period notwithstanding the fixed term nature of the lease. A landlord may very well agree to let a tenant out of a fixed term lease on 60 days notice with the proviso that if the unit is re-rented early then the rent obligation would cease. A tenant may agree to 60 days--more or less--in exchange for liability being capped at that amount. Whether the time period agreed to is 60 days, 30 days, or any period more or less, will be informed by the ease with which the rental unit can be re-rented. If there are lots of prospective tenants looking the notice period will be shorter and if the rental market is weak then one could expect the time period to be longer.
The main point that I'm making here is that there is nothing in the Residential Tenancies Act that prevents a landlord and tenant from agreeing to terminate a fixed term lease sooner and on terms that are satisfactory to them. Perhaps the only caveat would be that the agreement could not be more severe than the lease obligation being terminated.
If a landlord and tenant agree to terminate a fixed term tenancy sooner, or indeed if they agree to terminate any tenancy, including a month to month tenancy, on terms that are less than those required by the Residential Tenancies Act, that agreement should be done in writinng. The Ontario Landlord and Tenant Board provides landlords and tenants with a Form to record the agreement. That Form is Form N11. While it is not an absolute requirement that this Form is used, it is highly recommended that parties make use of the Form as this form incorporates the necessary elements of an agreement and the form represents a clear expression of the intentions of the parties.
Michael K. E. Thiele
Lawyer
QTMG LLP
Ottawa, Ontario, Canada
I read else where that the agreement to end tenancy still needs to be 60 days(as set out by the LTB) otherwise the tenant could breach the agreement to leave at a different date and still stay in the unit even though the landlord expected them gone and the anew tenant is expected to move in.
ReplyDeleteThanks for the comment. In fact, an agreement to terminate (Form N11), may be for any length of time. 60 days is not required. What you may have read, or perhaps what was meant by the person you read, was that a tenant's notice to vacate (Form N9) needs to be a minimum 60 days to the end of term. This arises from the fact that the Court's have held that a tenant's Notice to Terminate must be just as accurate and precise as a Landlord's Notice of Termination. The mischief that sometimes arises with a Form N9 is that a landlord receives an invalid N9 (less than legal notice), but accepts it and is in agreement with the tenant leaving. The tenant then does not move out in accordance with the N9 Notice of Termination and the landlord tries to bring an application to the Board seeking termination and eviction. The landlord can fail in its application because the N9 Notice is declared void for not having the requisite notice in it. This can be solved by simply using a Form N11--and instead of the termination of the tenancy being based on Notice the landlord and tenant agree that the tenancy is terminated by Agreement (which waives the Notice requirement altogether).
DeleteI am interested in a specific situation. If a tenant has already received a termination of tenancy due to the sale of the unit and the new owners want to occupy the unit. Can the tenant submit an early termination notice as per the Residential Tenancies act (Subsection 49.4)? I just got off the phone with someone at the Landlord and Tenant Board and he said that I can "leave" the unit but I still owe the landlord the rent until the end of my term. This makes no sense since there would be no reason for an "Early Termination Notice" if I still pay until the end. Also, How do you account for the fact that the notice could make the tenancy end halfway through a month?
ReplyDeleteHI Patrice: I can't imagine what the Board meant to say when you were speaking with them. Did you point out section 49(4) & 49(5) and ask them what it meant? In any event, these two sections do mean what they say and presuming you received a valid Notice to Terminate (N12) you are entitled to terminate earlier in accordance with s. 49. Because the tenancy is being terminated at the end of term--by the landlord's notice, and it is without fault, the Act allows the tenant to terminate earlier and not at the end of term as a matter of accommodating a tenant who is being required to move within 60 days.
DeleteHi there,
ReplyDeleteI am looking to end my lease early as well, and was wondering since my landlord is the reason that I am leaving (she lives above my dwelling), if simply giving her 60 days notice (Form N9) is acceptable? It would be difficult to make an agreement with her since she is the (for lack of a better word) "problem".
Thank you for your comment and question. I have to presume certain facts that you have not provided in your email. Specifically, that the unit is covered by the Residential Tenancies Act, that your unit is not exempt from the RTA, and that you are on a month to month tenancy or you are approaching the end of the term of your lease. An N9 may only be used to terminate your lease with valid notice. If you are still in a fixed term (i.e. longer than 60 days to the end of term), then the N9 will not be useful for you. You will need to try to make a deal with the landlord or assign the tenancy. A further alternative is to consider bringing an application to the landlord and tenant board in form T2 (Tenant's Rights) and see as a remedy the termination of your tenancy. In order for such an application to be successful you will need to prove that the landlord has done those things which are prohibited under the Act. You can see what they are by simply reviewing the T2 form. Best of Luck.
ReplyDeleteHi,
ReplyDeleteWe are students at the university of toronto and we recently rented an apartment. As luck would have it our osap money went down and we needed it for our apartment rent. We want to get out of our lease and move back home however its a one year lease. What can we do to get out of it?
Thank you
Hi Guys: The answer that the Landlord and Tenant Board will give you is 1) sublet, or 2) assign, or 3) talk to your landlord and see if you can make a deal. The reality in not having the money to pay for the apartment may ultimately result in a termination of your tenancy for non-payment of rent or alternatively, you return possession of the unit to the landlord and require the landlord to mitigate his/her/its losses by re-renting to new tenants. Subletting is the least attractive option as you remain liable for the unit (rent & damage) that your sub-letters may cause to the unit. Assigning is good--but depending on the rental market can be difficult to find someone who wants to go through the hassle of an "assignment" as it will seem a little odd to people. Subletting & Assigning are very technical and depending on what the landlord does or does not do you can end up with some technical outs to terminate your tenancy (that sometimes are an unintended consequence). Take a look at the Subletting and Assigning provisions of the RTA. Doing a deal with the landlord--being straight up and direct--may be the best bet. If your landlord is reasonable he/she/it may appreciate not being jerked around. In a deal situation you should expect to pay a bit for unit turn-over--maybe some advertising, maybe a commission--perhaps a month's rent. The landlord will argue that if he does a deal it shouldn't end up costing him anything as he has the security of a one year lease. If the landlord won't do a deal, won't even talk to you about it, then you may wish to consider returning possession of the unit to the landlord and requiring the landlord to mitigate losses (you do this by simply returning the unit to the landlord). The landlord is required to re-rent the unit and take active steps to do so. If you are in a desirable property it should re-rent fairly quickly. You would be liable for the time it takes the landlord to re-rent the unit. If the landlord does a poor job of marketing the unit, doesn't seek to re-rent it, then a court would deny him any judgment against you on the basis that he didn't take reasonable steps to reduce his damages. Hence it is important to follow up with the landlord and document his efforts at re-renting your unit. Generally speaking, a Court will look at a rental unit and find that a reasonable period for a landlord to re-rent a unit is two months. After two months a Court is going to wonder what is going on with the landlord.
ReplyDeleteI hope the foregoing helps you out. Please note that this isn't legal advice but just information. As I don't have a full history from you there could be aspects of your situation that are significant to any decision that you may take. As students at a University with a law school you often have access to a student run legal clinic. You should get advice there, it is free, and they can guide you based on the specifics of your situation. Good luck.
Michael Thiele
Thanks for you help Michael! One last question I was looking through my lease and it states that our lease doesn't start until October 1 2013. We paid a pro rate for the month of September. Can this help us terminate the lease faster?
DeleteI'm glad you find my blog useful. The date that your lease started will not help you as the term of the lease is determined by the end date in the lease. There is nothing in the Residential Tenancies Act that says a fixed term lease must be an exact year or a particular number of months nor is there an automatic right to terminate after a certain number of months. Hence the end date in your lease will be the end of the term. You would give 60 days notice prior to the end date in the lease. Your notice would be for the last day of the term--i.e the last day in your lease. Good luck, I hope it works out for you.
DeleteMichael Thiele
Hey Michael,
DeleteI don't mean to be a bother to you, however we tried to deal with the landlord and see if we can make a deal to end the lease, and they aren't even open to making a deal with us. The apartments are in high demand and they are reluctant in letting us terminate the lease, we have tried everything they have not come to our side! We have absolutely no money for the next months rent and we have no idea what to do? What can we do? We are really desperate and we have no money to pay for rent! we are so stressed and have no idea as to what to do for the next months rent. please help us!
Hi there: It's difficult to answer your questions in this forum as you're clearly looking for me to cross the line from general information (on a blog) to legal advice. I can't give you legal advice in this forum as I haven't done an interview and don't have all the facts that may impact on what you should do. So, hopefully you can form an opinion from this general information about rentals in Ontario. Then, if you still have questions, consider contacting a community legal clinic or it you're in Ottawa call me and make an appointment.
DeleteSo generally speaking, when a tenant has no money, is unable to pay the ongoing rent, and that's not going to change, it may be wise to write the landlord a letter advising that you have no money to pay the rent (i.e. are broke). That continued occupation of the unit by you would be without paying rent and likely lead to the landlord seeking to evict you under an N4 (Notice of Termination for Non Payment of Rent). Accordingly, advise the landlord of the date you are moving out of the unit. Advise the landlord that they should advertise the unit for rent immediately and mitigate their rent losses by finding a new tenant immediately. Advise that the landlord is permitted show the unit to prospective tenants so that it may be re-rented as soon as possible. Then, you move out in accordance with your notice, take note of the landlord's attempts to re-rent, if it looks like they're stalling or messing around perhaps make a rental inquiry yourself to get evidence of the nature of the mitigation.
If, as you say, the units are very desirable, the landlord should be able to re-rent very quickly and the extent of the landlord's losses will be minimized. You would be liable for the rent differential but that should be minimal. Note that if you continue to occupy the premises without paying rent the extent of the liability will continue until the landlord regains possession and re-rents the unit. Basically, you need to move on.
The above information is the preferred option if subletting or assigning are just not realistic.
Hope this helps and please let me know how it goes.
Mike Thiele
Hi there,
ReplyDeleteI am in a difficult situation. My boyfriend and I leased an apartment for a 1 year fixed term. The problem is is that we have broken up and both of us are moving back home. We had given a month verbal notice but i herd something about having to do a written notice. We are trying to sublet our place. Our landlord will not agree to an early termination.
Thank you for your time
Audree
What are the laws with the 60 day notice? Does it work for a fixed lease term?
Hi there,
ReplyDeleteI am in a difficult situation. My boyfriend and I leased an apartment for a 1 year fixed term. The problem is is that we have broken up and both of us are moving back home. We had given a month verbal notice but i herd something about having to do a written notice. We are trying to sublet our place. Our landlord will not agree to an early termination.
Thank you
Audree
Thank you for your time
Audree
What are the laws with the 60 day notice? Does it work for a fixed lease term?
Hi and thanks for your question/comment. The fact is that the law in Ontario does NOT allow you to terminate a fixed term lease by giving notice of 60 days (unless of course the 60 days takes you to the end of the term of the fixed lease). The concept of 60 days notice needs to be understood as a minimum number of days to the end of the (or a term). So when you are on a month to month lease the term is a month at a time. You can't terminate at the end any one month as you must give 60 days of notice which effectively is two terms---to the end a term. This means that when you are in a position to give 60 days notice that it can't be to the middle of a month or just any random day 60 days after you give the notice. The last day of your notice must be the last day of the term---that day is normally the day before rent is due. Rent is usually due on the first of a month so the last day of the term, in a month to month tenancy, where the rent is paid on the first---is the last day of the month.
DeleteIn your comment you mention trying to sublet. Given your intentions (I.e. leave and never come back) what you are actually trying to do is :"assign" the tenancy. In an assignment you are trying to get a new tenant to take over your lease and you never have anything to do with the unit again--nor are you responsible for what the new tenant does in the unit. In a sublet, you are stating that you are coming back at some point and you remain responsible for everything that the subtenant does in the rental unit (i.e. damage, noise, non-payment of rent). Subletting carries a fair amount of risk--especially if you are subletting to complete strangers.
Hope that helps you out a bit. Remember this is general information, for specific advice you should contact a lawyer to discuss your matter. If you're in eastern Ontario feel free to give me a call.
Mike Thiele
www.ottawalawyers.com
Thank you Michael. I appreciate your time in responding. Subletting sounds super risky however we have no choice at this point. I just hope to god that things work out and a nice responsible couple sublets. So when we sign over the lease to someone else, we still have to do with the apartment? What would happen if lets say th people are late in their payments and it goes to collections, would that affect us? Im just a little confused as to why we would still be responsible when the new tenants have signed the lease to them. I apologize for asking more questions. Im just stressed out with this apartment.
ReplyDeleteThank you again for your time.
The key thing you have to understand is the difference between a "sublet" and an "assignment". A sublet by its definition means that you are moving out, finding a replacement tenant for a short portion of the lease, and that you intend to return to the rental unit before the end of the term. An assignment is a situation where you are moving out, you have found a replacement tenant who is taking over your entire lease and you never intend to return to the unit.
DeleteWhen you are subletting you are becoming a landlord to your subtenant. This means that you remain responsible for all of the rent, any damage to the unit, any late payments of rent and all of the responsibilities of a tenant in the unit to the landlord. Your sub-tenant is responsible to you for all of the same things. So, imagine a situation where your subtenant does not pay the rent. The landlord would sue you (or take you to the landlord and tenant board) for the rent. You would then pursue the sub-tenant for the exact same relief as is being sought against you. If the rent did not get paid, the landlord would get a judgment against you and you would get a judgment against your subtenant. The risk of course is that the landlord gets the money out of you but you (for whatever reason) are unable to get the money out of your sub-tenant.
In an assignment, you find a tenant who is prepared to take over the lease from you--this is done with the landlord's consent. If the assignment is accepted, your responsibility for any new liabilities under the lease terminates on the day that the assignee (new tenant) takes over. You never go back to the unit, the new tenant is not your tenant, you are not a landlord.
The difference between these two concepts really is huge and significant. If you are looking for a new tenant to replace you anyway, and you don't intend to ever return to the unit, then make sure to treat this as an assignment. Check out the assignment rules and statutory provisions starting at section 95 of the Residential Tenancies Act. You can find the details of how assignments work there.
Good luck
Hi Michael,
ReplyDeleteThank you again so much for taking the time in responding to my question. This means a lot to me. I now understand very well the difference and will talk to my landlord. I don't want a sublet, I want a assignment. what you have explained to me helped me SO much.
Take Care Michael and Thank you
Audree
Hi Michael,
ReplyDeleteA slightly different line of questioning. It is in regards to a tenant who broke his lease early, and for whom we did manage to find a new tenant to take over, with the added benefit that it would return to him his last month's rent, owing to an earlier start date for the new tenant. Also, we did not charge any fees associated with finding a new tenant.
1. When is the last month's rent for the "old" tenant due back to him: when he moves out, or now? All rent is up to date.
2. Do we need to pay interest on this, given he was there for only six months, not one year?
3. He owes utilities. Can we deduct the cost of the utilities from the rent, to ensure that we get them paid? Or is this not done?
Thank. you.
Hi and thanks for the interesting question. Your question invites two answers---one that reflects what the law would technically require and allow and the other about what is practical and realistic in the circumstances. The answers are not always the same.
DeleteThe first answer reflects that you managed to mitigate your losses by re-renting and hence all rent is paid up. Accordingly, the LMR is due back to the tenant if it was not applied to the tenant's last month rent. It does not appear that there would be any reason to hold it if it can't be applied to any future rent. To see the use to which a Last Month's Rent deposit may be put regard should be had to section 105 and section 106 of the RTA. Of course, all of this presumes that the sitting tenant (old tenant), will actually move out when he said that he would move out. Until he is actually gone you can not be certain that you will not need the LMR for his last month. How confident are you that the tenant is actually moving? If you have absolutely no doubt--then you might as well return the LMR--but otherwise, what's the rush?!
Interest on the LMR is governed by section 106(6) and is payable annually. There is nothing that says the interest is only payable if the LMR is held for 12 months. Hence, interest for less than a year is payable, though perhaps not until a whole year goes by (i.e. from the date the LMR was collected). There is never interest on interest (i.e. it is simple interest not compound).
The utilities are in his name? If so, they should follow his name and not yours and hence not be your problem. Are you asking this because the utilities are in your name and you get reimbursed from your tenants? If so, the charge theoretically has to be paid to you separately from any LMR deposit as the purpose of the deposit is for rent only.
If you deduct the utilities from the LMR the tenant could complain and file an application to the Landlord and Tenant Board. If sufficiently obtuse, the tenant could try to avoid the liability for the utilities. While the tenant applied to the Board--you would be precluded from applying to the Board as the tenant would no longer be in possession. Accordingly, you would sue the tenant in small claims court for the utilities. The tenant would then "win" at the Landlord and Tenant Board and try to enforce the order through the small claims court at which time you bring a motion to pay the money into Court but for it to stay there pending the determination of your claim for payment of the utilities. The end result of this circus would be that you would owe him the LMR, he would owe you the utilities, the Court would order the set off of the amounts and you would pay him the LMR less the utilities. NORMAL people would simply agree to do this notwithstanding that technically you can't unilaterally deduct utilities from an LMR. I can't suggest that deducting utilities from an LMR is okay---as technically it isn't. However, if you are prepared to jump through the hoops you see how it would likely play out if the tenant forces you to sue him in small claims court etc..
Best of luck.
Michael K. E. Thiele
Hello,
ReplyDeleteI am only three months into my one-year tenancy agreement. I am very unhappy and uncomfortable here. I posted and found a person who is willing to take over my lease as an assignment. I asked the landlord for permission to assign my lease and they said absolutley not and that I am in a binding agreement. I have done some reading on the Landlord and Tenants Board website and I believe that I can now give them a Form N9 with 30 days notice because they are unwilling to even meet with the person who wants to take over my lease. Do I have this correct? What comes next? Do I have to go in front of the Board to prove my case? In the meantime, if I move out, will I be responsible for the following months' rent?
Hello and thanks for raising this question. The law surrounding assignment and subletting under the RTA is probably about as complicated as anything gets under the RTA. The operative section of the Act is Part VI (Assignment and Subletting) beginning at section 95. It is worthwhile to read these sections for the precise language of what you are allowed to do and when you are allowed to do it. The sections read pretty much as a flow chart of "if this then that". So, you really should work through section 95 with the facts you have in your head to see what you can do.
ReplyDeleteThat being said, your question reflects a fairly strong understanding of how the assignment process works. It sounds like you have, from the landlord a general refusal to allow an assignment (not a refusal to a specific assignee). Hopefully you have documented the assignment request so that you can indeed prove that you have for the right to assign. The language of the act uses the word "ask" which suggests and oral request--which in my view is unfortunate. Ideally, there is an Assignment request form that provides the same 'notes" at the end of the form as are on other notices (for example the Form N9). I mention this, and it is relevant for your purposes, because Landlords often feel ambushed by the use of section 95. Your Landlord will be no different as your description of their response suggests that they have a profound ignorance of the law. They want to hold you to your lease and the one year commitment and do not realize that their refusal to assign just terminated the lease they are demanding compliance with. This will likely result in some hard feelings and possibly a "fight". Hence, it is important to be able to prove that you requested permission to assign the lease (generally or specifically). Getting the response documented is also very important--whether recorded or witnessed (perhaps the potential assignee would help you out?). A written refusal is ideal but you can't always get a landlord to put the refusal in writing and then you end up arguing about what the Landlord's response was. The basic point here is that it is critically important to gather evidence that proves the elements required under section 95. Imagine terminating, moving out, and then finding your landlord lying about "refusing" to assign the tenancy--and heave forbid, an Adjudicator believing the landlord.
The form you serve to terminate is indeed the N9, you seem to have that in hand. If this refusal is because of a specific assignee then you would have to apply to the Board. If it is a general refusal then you do not. The facts as you provide them are a little unclear about the basis for refusal--though I suspect, on what you've said, that it is a general refusal to allow an assignment. Please work through section 95 and use the decision tree structure of that section to be sure.
Rent will be due to the end of term and don't forget your Last Month's Rent deposit.
Hope this has helped somewhat. Let me know what your experience is please in working through the section. I've never had a case where aspects of the assignment process weren't a "surprise" to at least one of the parties. And in that context again, I urge you to read the actual sections under Part VI of the RTA as there are a few more requirements that can catch you off guard (i.e. time within which to give notice).
Good luck to you--this is another example of why it is frustrating to have Landlords who are unaware of the requirements of the law.
Michael K. E. Thiele
Ottawa Lawyer
Hi Michael,
ReplyDeleteThis post and its resulting questions/comments have been highly informative and I am glad I came across it today.
I have a question of my own.
I submitted a 60 day notice (ahead of schedule) to our previous landlord terminating our month to month effective Nov. 30th. He found a new tenant right away to take over December 1st. As we had purchased a home and closing mid month, the new tenant asked us if we were planning on moving into the new house early as they were in a difficult transitional period, where they had to vacate their old apartment before Dec 1st and would love to move in earlier. They were willing to reimburse us any rent that we had paid, but I chose to go through the landlord to permit it and deal with the transaction. The landlord agreed to reimburse us the difference (I imagine he was happy to comply as he was charging the new tenant more rent than we were paying), and so we moved out on November 18th and had advised our landlord of that date prior. However, the landlord misplaced the new tenants number and was not able to advise them of the date (as he stated to us by phone). Last week, my husband went by to drop off keys to the apartment and found that the new tenants were already in residence, and they advised that they had been there for a week.
Is the landlord not obligated to reimburse our rent from the date that he allowed the new tenant into the apartment? When we requested a rebate, there was some reluctance from him to comply.
Your input is greatly appreciated!
Andrea
Hi Andrea: How interesting! Going to the landlord to allow the new tenants early occupancy and then seeking a rent differential is not the process contemplated by the Residential Tenancies Act. However, what you did--is what I and I think every lawyer would have recommended to you--which is to go and make a deal with the landlord and only go "legal" if he fails to cooperate or is unreasonable. The "going legal" would have been to sublet or assign the balance of your tenancy and then have the tenants remain in possession pursuant to their new lease with the landlord. On the sublet you would have charged the tenants your rent amount which effectively would have been a reimbursement. On an assignment, the new tenants would have been liable to your landlord for ONLY the amount of your rent until their new lease kicked in. Hence, the new tenants would have paid a little less in rent than what the landlord likely charged.
DeleteThe landlord in your situation is collecting rent for the same unit from two different tenants. You had the absolute right to possession of the premises to the end of your paid up term. For the landlord to keep both rents is, in my opinion, not permissible. Given that you had not yet returned the keys to the landlord you had not returned possession of the unit to the landlord. The whole thing could be characterized as an illegal entry by the landlord. Hopefully the landlord will see that the right thing is to return the money. He is not entitled to a double dip and he should recognize that if you had done a sublet or assignment that he would never have been entitled to what seems like a bit of a windfall.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, thank you so much for your answer. It helped to solidify what we already thought was fair. After discussing it with the landlord at length he agreed to fulfill the terms that had been previously discussed prior to this whole interaction. I got the impression that he didn't anticipate us returning to the unit before the end of the month and coming across the new tenants. He didn't act in good faith, but the end result is favorable and that is what matters. But it is too bad that it came to this. Thank you for your blog and your input to our question, and your willingness to answer others. We really appreciate the time you took to answer us.
DeleteAndrea
Hi there: I stumbled across this blog and it is great! A question if I may - not sure if there's a simple answer.
ReplyDeleteMy tenant's one-year lease expires on March 4. He has just informed me that he needs to move back in with family, and has made plans to vacate the unit and return the keys to me on Dec 14. He understands that he needs to give 60 days notice, and (says) he is willing to forego those two months' rent (the Jan rent cheque, and the Feb LMR already collected), acknowledging that it will be very difficult to find a replacement tenant over the holidays.
I would like to document this somehow, and am contemplating asking him to sign a Form N9 with March 4th as the date (I think this means that I can't find a new tenant until after this date), or a Form N11 with the Dec 11 date (but I think I would have to return the LMR and not cash the Jan cheque, even if I can't find a new tenant over the next few months). Am I going about this the wrong way? What is the most practical way to handle this situation? Any tips would be greatly appreciated!
Thank you!
Thanks for the question. It is interesting that you have a lease that doesn't run the calendar month but instead goes from the 5th to the 4th of every month. While unusual, there certainly is nothing wrong with setting up a lease this way--other than it throws you off for automatic day counting etc., for notices and terminations of tenancies. Anyway, if the fourth is the last day of the term, on a fixed term lease (i.e. not month to month) then you are correct that the earliest the tenant can give a proper legal notice is for the last day of the term. If the tenant gives you an N9 for March 4 then it is arguable that you have no duty to mitigate (i.e. re-rent the unit) as rent is paid up and the tenant by their Notice indicates that they are retaining possession until that date. In the interim, the tenant could seek to sublet or assign the balance of the lease with an assignment running into a month to month tenancy after the expiration of the term.
ReplyDeleteSigning an N11, for any date other than the end of term, has the effect of ending the lease as of that date. Do you have to pay back the LMR if you sign an N11 for a much earlier date? The answer can be an "it depends" answer. Certainly there are situations where Landlords and Tenants agree to buy out the remainder of the term--so it becomes a charge to end an obligation early. I think that this "works" in an RTA context though some view the payment to terminate the lease early as a penalty and hence as a charge that is illegal under the RTA. I'm not aware of any appellate authority that settles the question authoritatively.
To put another option out there, and you may not find it to your liking, but your tenant should really terminate the tenancy now and return possession to you. That would trigger your duty to mitigate losses, meaning the legal imposition of a requirement to try to re-rent the unit. The tenant's notice, being short, would be considered an invalid notice thereby making the notice legally valid to the first date that it would have been valid (i.e. the RTA cures the Notice by extending it to the first valid date of termination). However, in the mean time, as you are in possession of the rental unit you now have an obligation to mitigate your loss--which means if you re-rent the unit within the notice period the tenant gets the benefit of not having to pay the rent for that particular time period.
The other way to look at it, without getting legal, is to simply agree that the tenancy is terminated for the end of term and that in the interim you will look for a new tenant. If you find someone early, great, you'll give the old tenant a credit and perhaps you can agree that the old tenant contributes to the advertising cost. It is like an expense for finding a sub-letter or assignee.
Hope that helps a bit.
Michael K. E. Thiele
"is to simply agree that the tenancy is terminated for the end of term and that in the interim you will look for a new tenant. If you find someone early, great, you'll give the old tenant a credit and perhaps you can agree that the old tenant contributes to the advertising cost. It is like an expense for finding a sub-letter or assignee."
DeleteThanks so much Michael. The last observation seems the most practical as the tenant appears to be willing to return possession to me on Dec 14 (he is returning the keys and says he has no intention of returning). If we agree to give the tenant a credit if we find a new tenant before March 4, perhaps with some allowance for advertising, is it best to put that in writing somehow (in a manner other than having them sign the N11)?
It sounds like you and your tenant will be able to be practical without being hyper-technical. Your interest is to legally receive vacant possession and your tenant wants to make sure that the tenancy does not extend beyond the first possible legal termination date. I think it would be fair to document these two points in an email exchange, letter, or agreement, and then add that you are going to try to re-rent the premises within the two months, if there is success then the tenant gets a refund etc. it strikes me that the deal is inherently reasonable and defensible under the RTA.
DeleteGood luck.
Mike Thiele
Thank you so much!
DeleteHi Michael
ReplyDeleteThank you for doing this blog, there's a lot of great stuff on here. I saw a similar question above, and I was hoping if you could confirm my take on the issue. I recently gave my landlord my 60 day notice to terminate my lease early for personal reasons (originally until June 2014). They agreed to let me go provided they suffer no loss in rental income, but are refusing to return my LMR deposit because they don't believe that my reason for trying to terminate the lease early is a "valid reason". However, as they will incur no losses (the new tenant would move in right after I move out, and I am paying for the realtor fees / MLS posting fees), I feel that they wouldn't be permitted to collect double rent on the last month of my original contract regardless of whether or not they believed my reason for moving out was justified. Would you be able to opine on whether or not I'm right in asking for my LMR back?
Thank you
Hi and thanks for reading my blog. This labour of love seems to be addressing a need that many people have so I am happy to do it. You have in your comment the correct view of the situation. I wouldn't characterize the requirement to return the LMR as having anything at all to do with the reason for your termination. Frankly, your reason for needing to leave is not determinative of the obligations. Of course, the "reason" may motivate the landlord to be more or less cooperative in resolving the matter without court applications and lawsuits. That being said, I think it might be worthwhile to take a look at the actual sections of the RTA that I have been structuring the information in this blog around. The two sections are RTA 88 and 16, both of which are reproduced below. Neither of these sections grant permission for early termination or somehow absolve a person from liability. However, these sections set out the rules for determining an entitlement to rent arrears when a tenant fails to provide notice or when a tenant gives notice that is short (and therefore not valid notice). You will note that the sections are silent on the landlord's expenses in re-renting the unit and the cost of mitigation of damages. Section 16 is the "mitigation" section meaning a landlord or tenant are required to reduce the extent of their loss when the other of them breaches the lease. In the context of a tenant leaving early this means re-renting the unit to a new tenant.
DeleteUntil the apartment is re-rented to a new tenant, rent arrears accumulate. To mitigate, a landlord will have to advertise, perhaps pay a rental fee to a real estate agent, and pay for clean up and unit preparation. How do these costs factor into these sections--frankly not at all. This does not mean that the costs of mitigation are unrecoverable, it just means that section 88 concerns itself with only arrears of rent.
The cost of mitigation is perhaps the angle that your landlord is pursuing in refusing to return the LMR? If not, it is hard to see a lawful reason to retain the money. If he is not out of pocket, then he can't just keep the money as a little bonus or hassle fee. When you think about fees for assisting a tenant in transferring a unit to either a sub letter or assignee the act provides that the landlord may only charge actual out of pocket expenses---and not any notional for your trouble fees.
So based on what you've said here, and with the usual caveats that this is just legal information, not legal advice, and that for a proper legal opinion and advice you should retain a lawyer or licences paralegal, I think your situation suggests that you should indeed demand your LMR back and apply to the Board if he refuses. I think you would win it.
SECTIONS FROM RESIDENTIAL TENANCIES ACT BELOW
DeleteArrears of rent when tenant abandons or vacates without notice
88. (1) If a tenant abandons or vacates a rental unit without giving notice of termination in accordance with this Act and no agreement to terminate has been made or the landlord has not given notice to terminate the tenancy, a determination of the amount of arrears of rent owing by the tenant shall be made in accordance with the following rules:
1. If the tenant vacated the rental unit after giving notice that was not in accordance with this Act, arrears of rent are owing for the period that ends on the earliest termination date that could have been specified in the notice, had the notice been given in accordance with section 47, 96 or 145, as the case may be.
2. If the tenant abandoned or vacated the rental unit without giving any notice, arrears of rent are owing for the period that ends on the earliest termination date that could have been specified in a notice of termination had the tenant, on the date that the landlord knew or ought to have known that the tenant had abandoned or vacated the rental unit, given notice of termination in accordance with section 47, 96 or 145, as the case may be. 2006, c. 17, s. 88 (1).
Where landlord has given notice under s. 48, 49 or 50
(2) If a notice of termination has been given by the landlord under section 48, 49 or 50 and the tenant vacates the rental unit before the termination date set out in the notice without giving a notice of earlier termination or after giving a notice of earlier termination that is not in accordance with subsection 48 (3), 49 (4) or 50 (4), as the case may be, a determination of the amount of arrears of rent owing by the tenant shall be made as if arrears of rent are owing for the period that ends on the earlier of the following dates:
1. The date that is 10 days after,
i. the date the tenant gave notice of earlier termination, if the tenant vacated the rental unit after giving a notice of earlier termination that was not in accordance with subsection 48 (3), 49 (4) or 50 (4), as the case may be, or
ii. the date the landlord knew or ought to have known that the tenant had vacated the rental unit, if the tenant vacated the rental unit without giving a notice of earlier termination.
2. The termination date set out in the landlord’s notice of termination. 2006, c. 17, s. 88 (2).
New tenancy
(3) Despite subsections (1) and (2), if the landlord enters into a new tenancy agreement with a new tenant with respect to the rental unit, the tenant who abandoned or vacated the rental unit is not liable to pay an amount of arrears of rent that exceeds the lesser of the following amounts:
1. The amount of arrears of rent determined under subsection (1) or (2).
2. The amount of arrears of rent owing for the period that ends on the date the new tenant is entitled to occupy the rental unit. 2006, c. 17, s. 88 (3).
Minimization of losses
(4) In determining the amount of arrears of rent owing under subsections (1), (2) and (3), consideration shall be given to whether or not the landlord has taken reasonable steps to minimize losses in accordance with section 16. 2006, c. 17, s. 88 (4).
AND OF COURSE, SECTION 16
Minimize losses
16. When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses. 2006, c. 17, s. 16
Thank you so much for your detailed reply
DeleteHello Michael. My landlord has given me permission to assign my lease. There are several different forms available on line. Is there one in particular you would recommend for use in Ontario?
ReplyDeleteWallace
Hi Wallace:
DeleteAn interesting question and one that you would think has an obvious answer. In fact, as far as I know that Landlord and Tenant Board does not have an Assignment Form that you would use to transfer your lease to the new tenant. Certainly as I think about it a form like that would be handy and that might be one for a suggestion box if there was one.
As your tenancy will be transferred to a new tenant, your landlord will have the right to accept or reject the particular tenant. Having been given the right to assign the lease does not mean that you can assign it to whomever you wish. Because all of the rights and liabilities of the lease transfer to the new tenant and you are completely absolved from any new liability from the lease upon the assignment, your landlord will (or at least normally wants) want to do the normal checks that they do in processing tenant applications (credit check, police check, references check). On that basis I would expect the landlord to have "forms" for you to use which may very well just be the forms they use for regular applications. The landlord would then process the application and decide if the person is acceptable or not. If accepted, you should get some kind of confirmation that the tenant is accepted and that effective a certain date that the tenancy is assigned. Larger landlords will have more formal processes while smaller ones might do this all on the fly. The key for you is to get written confirmation that your lease is assigned effective a specific date. Implied in the statement that your lease is assigned is that your ongoing liability under the lease ends as of that specific date.
Hope that helps.
Michael K. E Thiele
Ottawa Lawyer
Yes, very helpful. I'll ask my landlord how she wants to proceed. Do you also know if the tenant assuming the lease is required to sign another fixed-term (ie. 1 year) lease once they get to the end of the assignment period or is that at the discretion of the landlord? And just to clarify: I continue to pay rent to the landlord until the end of the original lease while the assignee pays me, correct?
DeleteMe again. I just re-read the info on the LTB web site about assignment vs. sub-let and realized they answered one of my questions: the assignee pays the landlord directly which means I can request that the landlord return the post-dated rent cheques I provided for the period of the assignment, correct? That includes LMR as the assignee will now be paying for that month?
DeleteHi Wallace: You have it right about the ongoing rent--i.e. the assigness takes over paying as your obligation is terminated. What can be a little tricky is if you have a Last Month's rent on deposit. You don't get to use it for your last month as it isn't the last month of the term. You will be transferring the LMR deposit to the credit of the assignee so, somehow, the assignee needs to pay you the equivalent amount (unless you're just giving it to the tenant).
DeleteThe assignee, having taken over your lease has all of the same rights as you would have had. Hence, at the end of term the assigness may simply go month to month (automatically by law), sign a new lease, or give valid legal notice to terminate.
Mike Thiele
www.ottawalawyers.com
Hi:
ReplyDeleteWe have a tenant who signed a one year lease with us beginning in October 2013. The tenant is now 6 days behind paying January rent and has decided that they will be moving out February 1. The rental agreement states 60 days written notice to break the lease and when reminded of this, the tenant did not respond. As a Landlord, what are our rights to ensure that the rent is paid and that the 60 day termination is upheld or compensated?
Thank you for your input.
D. Dysart
Hi:
ReplyDeleteYou would think that the scenario you are describing would have a rather straightforward answer as this kind of thing happens all the time. In fact, the answer is a bit more complicated than you would expect and requires a bit of back and forth on the underlying facts.
To decide how to proceed you need to know if the tenant has assets, a good job, or assets of some kind. If the answer is yes, then the non-payment of rent could be an intentional tactic to try to get you to serve an N4--Notice of Termination for non-payment of rent. The service of the N4 has the effect of starting an eviction proceeding that terminates the tenancy and caps the rent obligation to the date that the tenant vacates the unit in accordance with the N4 or the Board's order once you apply. There is some case law that stands for the proposition that the termination of the tenancy via N4 does not absolve the tenant from liability for ongoing rent under a terminated lease on the theory that a tenant can not benefit from their own breach of the lease. However, there is another more recent line of cases that stands for the proposition that the N4 terminates the lease and all ongoing obligations under a lease. I personally think the latter cases are correct and in accordance with the structure of the Residential Tenancies Act meaning the rent obligation ends with the termination of the tenancy throughout the N4 process.
What does this mean for you? If you serve an N4 (termination for non-payment of rent), you are taking the first steps to terminating the tenancy. If the tenant does not pay and void the N4 then you will apply to the Board and get an eviction Order. That Order will have a termination date on it and the tenant will have to move out by then and be liable for the rent up to only that date. Your one year lease, quite arguably, is then meaningless and your 60 days irrelevant. This will be the way to go if your tenant has few assets, is flighty and basically doesn't have anything monetarily to lose. Getting a judgment against someone with nothing is fairly unsatisfying.
The alternative, that holds up your lease is to proceed against the tenant for money only and not for termination of the tenancy. Take a look at the application form L9 from the Landlord and Tenant Board which is an application for an Order for rent that the tenant owes. This application does not terminate the tenancy and is akin to suing the tenant for the money. This is a good way to go if you know that you can enforce the Order (i.e. garnish wages, seize assets through the court process). This works if the tenant has assets.
The risk of proceeding in the L9 manner is that the tenant has nothing, you can't collect the money, and then you can't evict for the rent arrears because the claim in relation to the rent has been resolved by the L9 order and you can't go back to the Board to seek eviction for the same arrears.
Lastly, I note your comment that you have a one year lease with a 60 day notice period. Your fixed term lease is effectively a month to month tenancy. I'm curious why you would have a 60 day notice provision in an otherwise fixed term lease. Was this negotiated by the tenant?
Good luck with this. You may wish to consider getting legal advice and having a lawyer or paralegal take you through the process described above. Legal representation for non-payment of rent cases is generally cost effective and given that you are trying to preserve a right of action for compensation after the tenant leaves you may want to consider the help of a lawyer or licences paralegal who does this all the time.
Good Luck.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteI have a fix term tenancy ends in September this year, rent is paid per month. I want to move out early at the end of April. The landlord agrees to let us sublet or assign the tenancy to a new tenant. However, due to the poor condition of the house, I am unable to find someone who is willing to take over the contract. I have read your comments, it seems I could't simply give the landlord a N9 form and just leave in April since I am in a fix term tenancy and I don't make a deal with my landlord because I fail to find a new tenant. I wonder is there still a solution if I want to move out at the end of April?
Also, as the contract mentioned, no one is allowed to smoke in this house. However, another tenant is always smoking there and sometimes the fire alarm rings. My landlord also knows this situation but she fails to stop the tenant from smoking. Can I regard it as a valid reason to move out early? If yes, how do I get some evidence that some one is smoking in the house, just in case my landlord will sue me due to the early move-out.
Thank you very much for your time.
R. Cao
Hi R. Cao: Thank you for your comment and question. Whether "smoking" in the residential complex is enough to terminate a lease is an interesting question. I have certainly seen and handled cases where "smoking" in contravention of a non-smoking clause has resulted in termination of a tenancy and the eviction of a smoker. Presumably you are bothered by the cigarette smoke, have informed the landlord of the situation, and nothing is being done? I also presume that you moved into the residential complex in part because of the no smoking policy. If this is accurate then I think you have a fair chance of getting the Board to terminate your tenancy--especially if you are feeling the effects of the second hand smoke. The form you will use is a form T2 and you will be asking for termination of the tenancy in the form.
DeleteGathering evidence of the smoking can be difficult and not knowing the layout of your apartment (house, apartment building, duplex etc.) it is difficult to make suggestions. Is the smoke visible smoke? If so, pictures or video can be handy. If the smoke smell is continuous then perhaps you can get witnesses who would be willing to come to the Board to testify to come and smell the smoke. Pick witnesses who would be inherently credible. You should of course document your concerns to the Landlord in a way that you can prove that you have complained about the problem (fax, email, text). Ultimately, you could always have an air test done but that is an expensive way to gather evidence.
With respect to the smoker, is it unlikely that the smoker will testify or give you a letter in which he/she admits to smoking in the unit? Perhaps the smoker believes it is his or her right to smoke and therefore won't hide the fact. Perhaps the smokers lease doesn't say that the property is "non-smoking". Consider approaching the smoker for evidence if you think this can be done safely. If by chance you are living in a rooming house and ashtrays and cigarette butts are visible--then of course photographs are easily taken and you should be able to get statements from co-tenants.
With respect to terminating earlier than the end of term but not sub-letting or assigning you should consider some of the other articles in this blog. It is unlikely that you could make a clean break, but certainly the legal process in the event that you terminate early requires the Landlord to re-rent and mitigate losses. The damages you would pay could be limited and you would always be able to argue the breach by the landlord of the non-smoking covenant.
Good luck.
Michael K. E. Thiele
Ottawa Lawyer
This is a great blog.
ReplyDeleteHi Michael,
I have a rental agreement and every year I get a renewal tenancy agreement. It only gives me two choices 1) sign for another year 2) terminate and give a specific date. So I sign it every year, but originally my landlord told me I could break the lease at any time, and it was month to month...so this is now making no sense to me. My fiance and I found a new place, and are moving in April. The place I am in is just too small, and not ideal. I gave my current place 60 days notice. Any advice on this? I can't find any info on what a month to month is, and why I am signing an agreement every year... Thanks
Hi Adam: At one time it was very common for landlords to modify a Landlord and Tenant Board form (N1--Notice of Rent Increase) to require the tenant to renew the lease for a term of 1 years or terminate the tenancy. It sounds like this has happened to you--though I'd like to see what document is being given to you annually. If it isn't a modified Board form it certainly is misleading as it should, in fairness, include a statement (and third option) that if you do not sign a lease renewal that your tenancy would continue on a month to month basis. The reality is that you had more choices than what the landlord advised you about.
DeleteWhile the landlord's conduct appears it be in bad faith it is always possible that they are clueless about the legal affect of what they are doing. Perhaps they really will allow you to terminate on 60 days Notice as if you are on a month to month tenancy. If so, the only way to protect yourself on a legally "clean" basis is to enter into an agreement to terminate. This is form N11 and you can get it on the Landlord and Tenant Board website. Both you and the landlord sign this form and it operates to over-ride a fixed term lease. Anything less than an N11--or otherwise evidenced agreement to terminate the tenancy---exposes you to a small claims court action for breaching your lease--i.e. moving out before the end of term.
If your landlord turns out to be devious and his tactic is not innocent then you may consider filing a T2--Tenant's Rights Application--at the Landlord and Tenant Board seeking an Order terminating the tenancy. It is not an easy application, but if you can demonstrate the landlord's calculated deceit then the Board should grant you relief as well as perhaps fine the landlord.
If you go the T2 route, consider hiring legal counsel or at a minimum consult with duty counsel at the Board for structuring your application.
Best of luck.
Michael K. E. Thiele
Hi Michael,
ReplyDeleteMy roomate and I are on a lease that ends October 1st 2014. We went to our landlord to end the tenancy early as we are no longer comfortable living there. There landlord signed the N11 form ending our tenancy April 30th. If she does not find a tenant by this time, are we liable for the rent?
Thanks,
Hi Katelynn: If the N11 was signed unconditionally and there are no addendums or "understandings" otherwise, then the N11 speaks for itself. This means that the tenancy is terminated by agreement as of April 30 and you obligations are terminated with respect to the tenancy as of that date--meaning your liability extend up to April 30 but not after. So if the landlord does not find a new tenant for May onwards the risk of that resides with the landlord and not with you. Well done in using the N11 form, this was the correct way to proceed.
DeleteMichael K. E. Thiele
hello, i'll keep this short and sweet. i signed a lease termination with my rental company in ottawa ontario (minto), me and my roomate (really just my roomate but w.e) could not pay rent. we went to eviction court, and he came to an agreement for a payment plan, but just couldnt keep up. we ended up talking to our agent or rep or whatever you wanna call it, the person who is responsible for our tenancy at minto, and we came to the agreement we will sign a lease termination. we agreed to terminate right away and get out. We signed to terminate april 30 2013. now a year later we get a letter from collections saying we owe for may and june rent cause minto didnt move anyone in those 2 months. And it says on the page we were EVICTED.
ReplyDeleteWhen we signed the agreement we were put under the impression we were done. we owed what we owed but were out of the lease. No mention of you guys are responsible to find a new tenant. Nothing said about hey even though you guys are signing this you still gotta pay us for next months until we find someone. Had we been evicted were were told we would be responsible for rent until minto re rented, and the main reason we did the termination in the first place is so we wouldn't have to deal with that. Minto even cashed my security deposit as my last months rent so i was squared up with them.
Is minto trying to screw me or did i miss the fine print ??
Hi there: Your facts are more complicated than it would seem from your comment/question. I can only reply generally without seeing the actual documents you signed. The nature of the documents matters---a Form N11 (Agreement to Terminate) or was it in a mediated agreement? Or if you were at the Landlord and Tenant Board then the extent of your liability was likely determined by the Board in the Order. Too many questions to be able to give you a definitive answer. One thing I can tell you for certain is that collections agencies often make demand for payment when there is absolutely no basis for that demand in law. In effect they convince you that you owe money when in fact you don't. If your tenancy was terminated through a Board process (order or mediated agreement) then your landlord's continued demand for payment for rent in the months following termination of the tenancy is highly suspect. Certainly there is some law to support the notion that termination of a tenancy through a tenant's default does not absolve the tenant from liability for a landlord's ongoing rent shortfall--however, that law is old and I don't think it is well reasoned in light of the current legislation (the current law is different from when the case was decided). There is a recent case from the small claims court that I think correctly reflects the law--which is that a landlord loses the right to pursue rent losses when they terminate a tenancy--i.e. serve an N4. Their rent losses end upon regaining possession of the rental unit. This view is consistent with the RTA--and frankly, I think is consistent with Commercial Tenancies law as well.
DeleteIn short, I can't comment specifically, but if you think the collection agency is playing fast and loose with what you understood was agreed to, they probably are. The only amounts I can imagine you are liable for are the amounts you agreed to pay (i.e. the arrears). After that it sounds like the tenancy was terminated and your liability ended. To get a thorough answer you would need to see a lawyer or paralegal and bring your documents to them for review. If money is an issue, and you are near a community legal clinic, consider making an appointment and going to see them for legal advice. If you're in Ottawa I'd be pleased to see you if you would like to hire me or I'm happy to give you referrals to legal clinics or paralegals who could review your documents and give you some advice.
best of luck.
Michael K. E. Thiele
Good Morning Michael. My girlfriend and I entered into a 1 year rental agreement for a condominium in Mississauga Ontario. Our rental agreement ends September 30th. Something has come up, and we need to move by June 1st. Our agreement is with a real estate office in Toronto. We had a leak with the refrigerator, and I had contacted the office to have it fixed. Someone did come to look at the fridge, but didn't have the parts needed to make the fix, and has not come back since (this was over a month ago). I emailed the realtor office advising of our impending early move out date. The response was "If we can find someone to move in by June 1st, then you will only be responsible for the listing fee (half a months rent). If we can NOT find someone to move in by June 1st, YOU WILL BE RESPONSIBLE".
ReplyDeleteMy question to you Michael, is what will I "be responsible for"? Can they pursue me legally for the remaining months payments? Will I lose my last months rent that was given to them at time of signing via certified funds?
You response will be greatly appreciated.
Regards.
In a Pickle...
HI there and thanks for the question. Because you are on a fixed term lease (one year) that expires on September 30, 2014, you are not permitted to terminate the lease with Notice before that date. Generally speaking, if you need to move out, you may try to find someone to assign the lease to with the landlord's permission. It sounds like the landlord is indeed trying to find someone for you who would take over your lease--like an assignment. You can look for someone as well to take over. If you do look for someone to assign your lease to make sure to follow the provisions of the RTA for "assignments".
DeleteIf you just move out on June 1, 2014 and there is no new tenant to take over your lease the landlord will have an obligation to try to find someone to re-rent the unit. The landlord must take reasonable steps to re-rent. However, until that happens, the landlord can look to you for the ongoing rent for the vacant apartment (until the end of your lease term). This is potentially 4 months--though this is unlikely if the unit is "typical" and the landlord takes reasonable steps to re-rent the unit.
With respect to your last month's rent. That should be applied to the month of May with the hope and expectation that the Landlord finds someone to rent the unit for June 1. You don't forfeit the Last Month's Rent deposit just because you are leaving early.
Hope that helps you out.
Michael K. E. Thiele
Quick question Michael:
ReplyDeleteIf I am assigning my lease to someone else (with landlord's approval) is it up to the landlord to reimburse me for my LMR? I read above it is up to me to get it from the assignee. Why is this? Is this statutorily based?
Nick
Hi Nick: The mechanics of how this happens is not provided for in the statute. Most of my Landlord clients facilitate an assignment by doing the "money" and wrapping up the old ledger and starting a new one for the new tenant. That being said, there is no "right" way it is just convenience. It would not be strange to have the new tenant reimburse you the LMR because it is a credit towards the lease end. It doesn't matter so much anymore but at one time the LMR interest caused additional problems in balancing out the ledger when LMR interest was 6%.
DeleteSorry that there isn't a "clean" answer but it really works itself out on a case by case basis.
Michael Thiele
Hi Michael, Thank you for providing answers in this blog. I am renting an apartment that I signed a lease for one year. I have 8 months left on the lease. I have just been informed that I have a place with housing(which I have been on the list for 2 years). How can I get out of the lease. Money is very tight and getting housing makes life a little bit easier. Any suggestions? Thanks
ReplyDeleteMarie
Hi Marie: This is a difficult position to be in given that the apartment with Housing (I presume you mean social housing) is a tremendous benefit to you if the rent is supplemented or geared to income. In effect, given the benefit of the new housing you pretty much have to take it even if that means breaching your current lease. There are many ways to approach getting out of your current lease. How you choose to proceed depends on your landlord and what kind of person he/she is or if it is a corporation what the corporate mentality is. The options, in no particular order 1) contact the landlord and ask permission to terminate the lease on short notice, 2) negotiate a termination date with the landlord and agree to a fixed amount of money to get out of the lease, 3) seek to assign the lease to someone else, 4) advise the landlord that you are moving out (even if there is no consent), put the landlord to the task of re-renting and require the landlord to mitigate his losses by finding a new tenant. Once the landlord has a new tenant you can figure out what is owed to the landlord and make a deal (taking into account whether the landlord did everything reasonable to re-rent in a timely way).
DeleteThese are the standard ways to deal with a fixed term tenancy that you want to end. Even if you were on a month to month you would have to give 60 days notice. Is there any chance that you can get a delay in taking the new unit--how long will they hold it for you? Perhaps you can get a bit of a delay in taking the new unit to get you closer to the end of your lease?
Best of luck.
Michael K. E. Thiele
My daughter and 2 other girls rent bedrooms in a house where the landlord lives as well. When she moved in before the other 2 girls she asked the landlord if she needed to bring anything other than her bedroom stuff, like pot, pans, dishes. He told her all common are items where provided. What was provided was left overs the old owner of the house left behind. So the girls had to purchase their own items (fine).
ReplyDeleteThe chq's are made out to the landlord that stays in the house but the receipts come from his parents. (?) The landlord is gone sometimes for 2 months at a time (fine) but now the girls are dealing with mice. He has wanted them to get an exterminator and he would reimburse them later (students can't afford that). He had bought traps for mice before Christmas and put them in the basement (where he stays). Now he is telling the girls they are leaving stuff around and have too much trash that is the reason for the mice. Another key point is that the parents of the landlord just use their key an walk in without notice. The lock on the main door was broken and he was too busy(even though he was at the house) to get it fixed so they went without a main door lock for a week.
Can these girls break their lease to find other accommodations?
Hi there. The first question to answer is whether this leasing arrangement is covered by the Ontario Residential Tenancies Act (RTA). Given the arrangement you describe, it sounds like this tenancy may be exempt from the RTA (see section 5(i)) as the landlord or landlord's child lives in the house and shares a kitchen and/or bath with your daughter? The usual protections (rights and obligations) do not apply if the tenancy is exempt from the RTA. Accordingly, the arrangement with respect to terminating the lease will be set out in the agreement/contract with the Landlord. If there is no written agreement then "reasonableness" will apply to the situation. If the relationship is governed by the RTA it is doubtful that what you describe is enough to terminate the lease. The landlord is certainly in breach of his obligations under the RTA (presuming it applies) and you could indeed get an order requiring the landlord to deal with the infestation problem. You could also ask the Board to terminate the tenancy though you may have less chance at getting such an order.
DeleteMichael K. E. Thiele
HI Michael - great blog.
ReplyDeleteWe're in a situation that seems to be a bit unusual. We're a few months into a 2-year lease and the landlords wish to break the lease. They acknowledge that their is no legal basis for them to do this, so are looking for our agreement. We're not too keen on this for a number of reasons - 1) We will be incurring extra expenses (one extra move), 2) The place is ideal for our family at this time and 3) any other option for us appears to be hundreds of dollars a month more.
The reason they want to do this is employment-related (they have to move back to town). One of the landlords is checking with his employer (the Gov't of Canada) as he believes they may pay reasonable costs to break the lease. What is reasonable in this case? I'm thinking moving costs plus $200 x the number of months left on the lease.
Thanks
Hi. It seems clear that you understand that you are not required to terminate your lease and move. The two year fixed term gives you security of tenure for the duration of the term--meaning you could only be evicted for cause. Beyond that, determining the terms to terminate your lease is not really a legal question. What seems fair to you, what covers your costs, is there something for inconvenience etc.. All of these are factors in deciding what is fair for you--which you are measuring in the context of not having to move at all.
DeleteGood luck with this.
Michael K. E. Thiele
My partner was renting an apartment, the lease was signed in September, but we reconciled and he has moved back home. He notified the landlord at the beginning of October of his intentions and asked that the landlord try to rent the apartment or allow him to find a renter. He has continued to pay the rent and hydro to date (April) but the landlord has not accepted any of the proposed new renters and has made little effort to rent the apartment. Is he legally obligated to continue to pay the rent and hydro until the end of lease in September or is there another recourse as the landlord is not attempting to fill the lease.
ReplyDeleteIn your experience, if a landlord is willing to assign the lease to a new tenant, what would be considered to be a reasonable expense for finding new tenants in Ontario? I understand that some landlords who use a realtor as a leasing agent would want the realtor's commission paid. Would any additional fee or penalty beyond the commission be considered to be standard and/or reasonable?
ReplyDeleteHello:
DeleteThank you for the question. I'm pleased to address what is chargeable to a tenant in an assignment context but from your question I must question your assumption that the "commission" is chargeable. In an assignment context it is the tenant who normally brings the prospective assignee to the landlord and seeks consent to assign to that tenant. It is unlikely that a real estate agent is involved--or if there is---that real estate agent is working for the tenant (who is looking for an assignee) and therefore the fee would be paid by the tenant to the real estate agent. I'd be interested in learning about a fact scenario where the landlord is asking for a real estate commission to approve an assignment as I don't think that such a commission is chargeable to the tenant in an assignment context.
With respect to other charges in the assignment context we need to look at the operative section which is s.95(7) RTA. It states: " A landlord may charge a tenant only for the landlord's reasonable out-of-pocket expenses incurred in giving consent to an assignment to a potential assignee".
The wording of this section speaks to actual out of pocket expenses and not internal charges or a "fee" for the landlord to consider the request. There are a fair number of cases--some on the Landlord and Tenant Board website--that highlight what is considered a proper charge. Flat rate fees, internal fees, are generally not approved. Costs for credit checks, police background checks, or a fee paid to a third party to assess a prospective tenant (i.e. paying a rental agent to call references, and do the work to approve the prospective assignee) seem to be approved. In some instances, the out of pocket expense may indeed be incurred but that expense is not deemed "reasonable" and hence is disallowed.
Hope that this answers your question.
Michael K. E. Thiele
Hey there,
ReplyDeleteOdd question - if someone signed a sublease agreement for an apartment that should have started May 3rd but as of May 5th the subleasee still doesn't have keys, is it possible to void the agreement? Also, if the subleasee finds out after signing the subleasing agreement with the original tenant that the original tenant was in arrears with rent payments, can the subleasee get out of the agreement? Friends of mine signed an agreement before doing some homework and now they would rather just get out of the whole thing.
Thanks.
Hi: The context in which this question is normally asked is that the person paid a deposit and then was not allowed to move in . In such a circumstance you would use the T1 form (check box #3). You treat the tenant who is renting you the apartment as the "landlord". Given the rent arrears is it fair to assume that the actual landlord is not very pleased with the actual tenant? I would be suprised, if in the face of rent arrears, the landlord consented to a sublet of the unit. The landlord's consent is required in order for the sublet to be legal--otherwise your friends could be evicted by the landlord in short order.
DeleteWithout more facts about the circumstances and information to the contrary, I'd guess that this "sublet" is going no where.
Michael K. E. Thiele
Firs I just want to say thank you very much for your blog, as a new triplex owner it has been very valuable to me.
ReplyDeleteI have a unique situation on my hands currently. I just purchased a property (Closed April 30th) and I was told that one of the units (referred to as Unit 1 from now on) lease was ending at the end of August 2014. I used my first time home buyers incentive from my RRSP and only put down 10% as the down payment as I intended to move into Unit 1 in September. On closing day I received a lease (signed only by the tenant, not the owner) for Unit 1 that is a 3 year lease starting in September 2014. I have been reading the RTA and I see there is a clause that a landlord can end a tenancy early, but if it is a fixed term then it must be at the end of the term. I have also talked with someone at the Landlord and Tenant Board and they said that if in fact there is no copy of this new lease for Unit 1 signed by both parties, then it is not a binding lease and I would be able to give 60 days notice to them starting September 1st. Do I have any other options to prevent this new lease on Unit 1 from being valid so that I can move in? If I do not move in I fear that I may be penalized for the property not being my primary residence, when the mortgage and my RRSP first time home buyer both require it to be.
Thank you very much for your time.
Side note: I have been told by a lawyer that the offer put together by my realtor was very poor and considered to be extremely negligent as it did not have any conditions regarding any of the tenants or their leases or anything related to that. It was essentially an offer that should be used on a single family home, that is why I was not aware of this new lease for Unit 1 prior to the closing. I was told that I could sue the realtor for negligence and most likely win, but it would not be financially feasible.
Hello: I won't comment in this reply about what your realtor or lawyer should have done. If you believe that you have a claim you should actively pursue it as with the passage of time you may lose your right of action. With respect to the landlord's use you may give the tenant a Form N12 that provides 60 days notice to the end of term. Presumably you will assert that the end of term is the end of August. You should serve this notice immediately ( more than 60 days is fine). Then you should apply to the Board--don't wait to the end of term. There will presumably be a fight over the term. If what you were told is true then it would appear that the tenant is prepared to create a false document to defeat your intentions. If the tenants document is real--then possibly you were lied to by the vendor, vendors agent, etc. whether or not there is a three year lease is a question of fact that will be a matter for the hearing. Even though the lease is not signed by the landlord this is by no means conclusive of the issue. The Board may accept the tenants explanation of why it isn't signed and order that indeed there is a three year term. Given what is at stake for you I highly recommend that you proceed with experienced counsel to the hearing. Given that the key will be a finding of fact by the adjudicator you will have few appeal options if it doesn't go the way you need it to go the first time.
DeleteMichael Thiele
Hi Michael,
ReplyDeleteI am in a strange situation which has made me very stressful. I signed up for a one year lease through a leasing agent on a condo. I started living there with an intention to be tension free for one year. I've been diligently paying the rent, hydro bills and the insurance every month. Never missed a payment. 3 months after my stay a Realtor assigned by the landlord called me and said that the landlord has a financial problem and would like to sell the unit. He told me worst comes, he will pay for my movement expenses and find another condo in the same neighborhood with the same rent and asked me when can he come to take the pictures. All this was too overwhelming and I told them to come on a sunday to talk. I emailed the landlord directly stating that I would have never signed such a lease in the first place if I had known about his intention to sell. Its really annoying and a botheration if I cant have a reasonable enjoyment in the property I am living in. I did agree to his showing schedule when possible and have been cooperative but its too stressful to plan to be out when the showings happen especially because I am a dog owner. I told him after a few days that I am looking for another condo to move into as all this nothing giving me any mental peace. I spoke to him about it and I told him that I would give him 60 day notice paying 2 months rent and also I do not wish to collect my last month's rent (which I seriously shouldn't have said it). I also sent him an email of what we spoke but he didnt reply. I sent him texts and he didn't answer. He replied stating that he's waiting for his lawyer's reply. I am shocked and concerned now . Please help me out with any advice. To me its irresponsible if my landlord is even communicating with me but happily collects the rent.
I have no mental peace and need advise as soon as possible.
Hello:
DeleteYou should be aware that a landlord is not entitled to require you to move just because he wishes to sell the unit. You are in a fixed term lease of one year and therefore, whether or not he wishes to sell the unit, you can not be required to move for this purpose. If your rent is paid, and there are not other grounds for termination, then you do have the security of tenure that you were looking for when you signed the lease. With respect to entry by real estate agents they do have to give a minimum of 24 hours notice and specify a time of entry between 8 and 8. You do not have to leave during a visit and can remain in the unit. Reasonableness will be a relevant measure. You may refuse the notice of entry if it is truly inconvenient--though this is not specified in the RTA and adjudicator in my experience will require reasonable cooperation from both tenant and landlord with respect to each other's schedules.
Based on what you say in your comment, I don't think you have committed to anything. You should not give up your rent and you need not worry about an untimely move. You have at least the year you bargained for. Even if someone purchases the unit this does not mean that they will want to move in. They may very well be pleased to have you for a tenant and simply contine the tenancy with you.
Hope this helps you.
Michael K .E. Thiele
www.ottawalawyers.com
Hey, just a question::: I have a very difficult roommate, who has become friends with the super.
ReplyDeleteAnd they have both decided that i will not be able to sublet or assign the place. Now the roommate expects that i should pay my portion of the rent for her (and that she shouldnt have to live with a sublet). And I am not be allowed to sublet my portion of the apartment. (We are both on the lease).
As this is now the landlord/her saying that i cannot sublet/assign and that this would be unreasonable refusment.
My only option is a N9???
Hi: The difference between a sublet and an assignment is significant--and hence the reply to your question would vary greatly depending on what you are seeking to do. Also, are you still within a fixed term lease (i.e. a one year term) or are you on a month to month lease? If you are outside the term (i.e. on a month to month) and it is your intention to move and never come back (i.e. termination of the tenancy) then an N9 does seem the way to go. Your position would be that you are terminating the entire lease and that your roommate is required to vacate as well or alternatively negotiate a new lease with landlord for just herself. If your goal is to go and come back (i.e. sublet) you and your roommate have a bit of a problem. As you are both tenants the wishes of both matter and both of you have control over the rental property. It is difficult to sublet (in fact impossible if the tenant (i.e. both of you) do not vacate the premises as the definition of subletting requires the sitting tenants to vacate the unit. The dispute between you and your roommate--then dragging the Super into it--makes the situation messy. You need to come to an arrangement with your roommate, document the situation with the roommate--i.e. set out clearly what it is you want to do, why you want to do it, what would be involved, that you would give the roommate some say over the proposed temporary roommate, and see what she says. If you do not get a reasonable reply you may need to consider drastic options to bring the situation to a legal boil--i.e. termination proceedings and legal proceedings between you and your roommate.
DeleteAs I said at the beginning, what your intentions are--specifically---impact how to proceed. In your circumstances sitting down with a landlord and tenant lawyer for an hour to get some advice based on all the facts would be worthwhile.
Good luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteI have a question regarding lease assignments.
I need to move to another city and will have 4 months remaining on my lease once I move. I asked my landlord if I would be able to end my lease early or assign it. They responded saying I could end my lease early only if I were to find a new tenant to sign a 1 year lease. They did not address the question regarding assignment.
We later met in person and I was under the impression she was agreeable to the idea of assigning. In writing I later inquired if an 8 month lease would be possible and the landlord replied saying only a 4 or 12 month lease.
I then found a potential tenant, whom the landlord refused because they do not have full time employment (not sure if this is a valid reason). The landlord then also strongly suggested that a property management firm be hired to find a tenant but then stated that if they find a tenant for a 1-year lease I would be out of my lease but if a tenant was only found for 4 months then the new tenant would pay me, which is subletting. This is when I realized I had received no clear response regarding assigning the lease in writing or verbally. I then sent an email to the landlord asking whether or not they agree to the idea of assigning the unit. It has now been over a week with no response, am I in a situation to fill out form N9?
Hello: You ask a difficult question as the answer turns on an interpretation of what has transpired factually. Certainly you have the correct idea about the law. If you have asked the direct question of whether you may assign (generally and not to a specific person) and there is no response as required then you are in a position to to serve the N9. The section in play is section 95 RTA and the time for response is 7 days after which (presuming no response) you may terminate.
DeleteThere is likely to be some dispute about whether you received permission or not. It will be important to save all of the emails (print them out an keep them in a folder). From what you describe it sounds like the landlord does not have a firm grasp on the concept of "assignment" and confuses it with a "sublet". I think you would argue that a landlord needs to be correct about these things and know what they are saying when communicating with the tenant. Your conclusion that you never had proper consent to assign seems to be reasonable under the circumstances. I hope that your last request to assign was a clear and unequivocal question. If it was, then I think you are likely to be in a strong position to terminate without further obligation.
Michael K. E. Thiele
Hello Michael,
ReplyDeleteYou are to be commended for your efforts here and I do hope they return value to you and your practice. Thanking you in advance for consideration of my question.
My daughter signed a fixed term one year lease for tenancy here in Ontario. She is named on the lease as are three additional girls, all university students. It has come to be that she will not be returning to school this year nor in a position to take up the tenancy. We understand she has a legal commitment to pay the rent regardless. Having said that, would you please comment on the implications of multiple peoples names on the lease. At this time, she will be the only tenant not wishing to continue tenancy.
Does the N9 form get submitted with her name only with respect to ensuring proper 60 day notice of termination at contemplated year end?
If her financial situation dictates a failure to pay her portion of the monthly rent, what are the implications for the others who remain?
Implications with respect to the N11 (although I would see that as unlikely to be accepted in any case)?
Would formal sub-lease or assignment require all agree and a new agreement put in place? Related implications?
Just in terms of background, the lease started May 1 but she has not moved in. Never intended to move in until the fall. Another student from her 1st year dorm is living there during summer school on an informal discounted rent to my daughter basis currently.
Thank you,
Chris.
Hi Chris: The unfortunate thing about the situation you describe is that there isn't a handy rule book that sets out in black and white what the respective parties must do. Much of what needs to happen all depends on what the individuals want.
DeletePresumably the 3 co-tenants of your daughter do intend to take up the rental unit in the fall. They've signed the lease with the intention of moving in, taking possession, and living there for at least the term of the lease. If this is the case, your daughter should immediately inform the co-tenants that she will not be moving in. They should advertise your daughter's spot for rent and find someone they find acceptable. Once that person is found--hopefully soon--they and your daughter should contact the landlord and seek to replace your daughter on the lease with the new tenant. Ideally, a replacement is quickly found and the landlord agrees to take your daughters name off the lease by replacing it with the name of the new person.
If the ideal situation does not present--and lets say the co-tenants all become irrationally aggressive--and simply refuse to do anything. Your daughter as one of 4 tenants does not have the power to terminate the lease--at least not during the course of a fixed term--neither by N9 nor N11. Arguably, after the expiry of the term, your daughter could serve an N9 on behalf of the group--though this is by no means settled law. In the mean time (during the term and basically now) your daughter should advise the landlord that she will not be moving into the premises and that she is asking her co-tenants to find a replacement for her. The landlord may reply with a statement that he failure to move in does not affect her liability for the rent.
When your daughter does not move in she remains liable to the landlord and to a degree to her roommates. If your daughter does not pay the rent then the weight of that unpaid rent will fall on her co-tenants. The landlord could serve a Notice of Termination for non-payment of rent (form N4) and the co-tenants would be the only ones who could be named on the Landlord and Tenant Board application (your daughter--not being in possession--can not be named in a Board application). The effect is that the landlord would get a judgment against the co-tenants for your daughter's unpaid portion of the rent.
The roommates could sue your daughter in small claims court for her unpaid portion of the rent. The issue in that lawsuit will be to determine the extent of your daughter's liability--and this is where it will get messy. If the 3 remaining tenants actively seek a new replacement co-tenant--and they try in good faith and it just doesn't pan out--then it is easier to argue that your daughter should be liable for the full amount of her share of the rent. However, if the roommates take no steps and do nothing to reduce the damages (i.e. your daughters share of the rent) by re-renting--and instead turn your daughters room into a study room, den etc., then I'm fairly confident that a court would look at that and conclude that the remaining girls decided to take over your daughter's space for their own use and hence at their own cost.
Sub-leasing and assignment does not really come into play in this situation. For both an assignment and a sublease all of the tenants must vacate the rental unit (for a sub-lease) or turn over the premises to new tenants on an assignment. Your daughter can not really sublease her portion of the rental unit (her interest is undivided).
With multiple names on the lease everyone has the right of a tenant and everyone has the liability of all of the tenants. The landlord does not have to pursue any particular tenant for rent or anything else. The landlord can pursue the tenant with the most money and leave it to that tenant to chase the co-tenants for their share of the rent.
I hope that answers your questions in a general sense. If anything is unclear please ask for clarification.
Michael K. E. Thiele
Crystal clear and confirmed my expectations, thank you.
ReplyDeleteOne point of clarification please. Are you suggesting she has no way to get out from underneath her lease obligations if the other 3 were to continue occupancy after the initial 1st year contemplated? If they were to continue tenancy throughout their next 3 years of school? Yikes.
The lease simply specifies a single value for payment each month without reference to an amount for each name. I get that the landlord does not care who pays and ultimately will follow the money with respect to collection of default. He'll get it where he can. Nevertheless, if my daughter were to notify she's not taking tenancy and then not forward any payments might the landlord terminate for lack of payment and pursue any and all for payment, if the others do not step up? Or is he likely to take some other course.
Thank you, Chris.
Chris: Indeed, what happens if the co-tenants continue the lease on a month to month basis after the expiry of the term. Your daughter's name being on the lease, and the tenancy not being terminated by notice, does liability continue to follow your daughter? All is solved if the landlord agrees to remove your daughter from the lease (with the co-tenants agreeing). Absent such cooperation, there is no clear consensus on what a tenant can do to be removed from a lease after the expiry of a fixed term. I subscribe to a view that is in "old" case law that binds together co-tenants for the term they agreed to take when they signed the lease. After the expiry of the term, any tenant (in my view) may serve a Notice of Termination in Form N9 and in effect unilaterally terminate the lease of all tenants. This is premised on the notion that when a tenant signs a lease with a co-tenant for a fixed term that they have not agreed to live together forever or until the whole group decides to give up the place. If the tenants who do not wish to terminate still want to live in the premises there is nothing stopping them from signing a new lease with the landlord. If the landlord refuses, well then they have to move and the original agreement amongst the tenants to live in a place for a fixed period of time has been satisfied. Alternate views to this position include the proposition that as all of the tenants signed the lease all of the tenants must sign the N9 (a silly notion in my view but one that you hear often enough). Another view is that the tenant who wishes to leave is entitled to do so with the N9 but that this only severs their responsibility--the lease continues between the landlord and the remaining tenant---which I also think is impractical as it allows a financially weaker tenant to get control of a rental unit that they may not be able to afford and remove the landlord's security (i.e. a financially qualified tenant). In the face of all of this uncertainty my view is that a tenant serves a Form N9 for the end of the fixed term, save a copy and proof of delivery to the landlord. If the tenancy continues (i.e. the co-tenants don't move and the landlord does nothing)--I'd be inclined to take the view that the remaining tenants become unauthorized occupants with the deemed creation of a new lease after 60 days (this idea premised on sections of the RTA dealing with transfers of occupancy). Other benefits of serving the N9 include the ability to argue that the landlord accepted a transfer of liability to the remaining tenants, an assumption of liability by the remaining tenants because they did not move out. The point is that official notice of termination needs to be served on the landlord (and the co-tenants) upon the expiry of the term or at any time after the expiry of the term.
DeleteIn my opinion, prior to the expiry of the term, no tenant has the right to unilaterally terminate the tenancy (which fits with the RTA), nor do they have the right to sub-let or assign. When you agree to be together for a fixed term that is a commitment. However, behaviour amongst tenants during a fixed term is relevant to apportionment of responsibility for the rent and the other tenant obligations (as described in my first response to you).
DeleteAs to your last point--certainly, if your daughter does not pay the rent, and the co-tenants don't pay the rent, then the landlord could indeed serve a Notice of Termination for Non-Payment of Rent (N4) and the entire tenancy could be terminated early. The landlord would be entitled to possession of the unit, the lease would be over, and the landlord would have a judgment against the tenants named in the Order. Alternatives? The Landlord could look at the credit quality of the tenants (or their parents if they have co-signed) and decide that getting the rent arrears will not be too difficult as the tenants have money, the parents have money. In that case, the landlord could proceed to the Board or the small claims court just for a judgment for rent arrears. He would never be allowed to terminate the tenancy for those rent arrears--but he would have a judgment. If the tenants have assets then he could enforce through garnishment etc. while still maintaining the tenancy. Proceeding this way is not common--but also not entirely unusual if the landlord gets the sense that the tenants are trying to get out of a tenancy (but in reality could pay the rent). Landlords will also sometimes proceed in this way if there is a high vacancy rate and replacing the sitting tenants could be difficult.
Michael K. E. Thiele
Thank you Michael,
ReplyDeleteFinally, our plan is to notify the landlord (and co-tenants separately) that my daughter will not be taking occupancy. If we serve an N9 now at the same time, recognizing there may be issues with respect to her unilateral approach, we at a minimum state our intent. For that matter, other than the fact serving an N9 early possibly removes an option to continue tenancy after stated term, is there any reason not to serve now? Meaning is there anything that states when and when it cannot be served? I'm assuming it needs to be filled out with the appropriate dates relative to the stated period in the existing lease, not a current desired date for termination, to be valid. Is this the case?
The co-tenants intent was to find accommodation for a single school year. Not to say that if they are happy with the housing and all continue school that they would not have pursued continuing in the same house. Nevertheless, that has never been discussed or contemplated.
Thank you, Chris.
Chris: I wouldn't serve an N9 now--but instead would inform the landlord, in writing, that your daughter is not taking possession of the unit. There is no legal time limit for serving an N9--you could do it now. The RTA has an interesting provision relating to making an improperly served Notice of Termination valid for the first legal date (from a rent liability calculation perspective). If you fill out an N9 now, with a termination date for the end of term, you are also representing that you intend to maintain the tenancy to that date. Better to simply advise the landlord that you are not taking possession or alternatively provide an N9 with a current date on it. My inclination is the former. This will allow the roommates an opportunity to find someone else and it won't purport to terminate their tenancy as well. If truly nothing happens--ie. the roommates don't find a replacement tenancy, and your daughter is not taken off the lease then re-visit the notion of serving the N9.
DeleteMichael K. E. Thiele
Hi Michael. My roommates and I are on a similar situation as this. We have lived in the same apartment for 2 year and signed another 2 year lease on Sept 2014. The lease stated that "lease is cancellable with effective date August 27 2015 by providing written notice anytime between day after lease signing and December 28 2014". My roommates and I have decided that we now want to move to a new place in September and notified our landlord on June 27 2015 stating we want to terminate the lease. Our landlord won't let us leave unless we find new tenants come august 27 2015. Are we allowed to cancel the lease or do we have to find new tenants?
DeleteThanks
Adam
Hey Micheal,
ReplyDeleteAs a landlord whose tenants are trying to get out of a one year lease after one month due to finding new jobs outside of area - can I ask for 2 or more months worth of rent to terminate the agreement? This would approx cover the costs in terms of advertising, scheduling viewing, credite checks, etc. property is 2 hours away for me so there is gas involved in viewings, etc. Please advise if you recommend asking tenant for this and if it is legal?
Thanks
Hi Ray: There should be a perfectly straight-forward answer to this simple question. What you propose is inherently reasonable as the tenant has certainty with respect to terminating an ongoing liability and you are fairly compensated for lost rent and the effort that goes into re-renting the unit. So, why is it not straightforward? The section of the RTA that gives you a problem is section 134. It states as follows:
Delete134. (1) Unless otherwise prescribed, no landlord shall, directly or indirectly, with respect to any rental unit,
(a) collect or require or attempt to collect or require from a tenant or prospective tenant of the rental unit a fee, premium, commission, bonus, penalty, key deposit or other like amount of money whether or not the money is refundable;
(b) require or attempt to require a tenant or prospective tenant to pay any consideration for goods or services as a condition for granting the tenancy or continuing to permit occupancy of a rental unit if that consideration is in addition to the rent the tenant is lawfully required to pay to the landlord; or
(c) rent any portion of the rental unit for a rent which, together with all other rents payable for all other portions of the rental unit, is a sum that is greater than the rent the landlord may lawfully charge for the rental unit. 2006, c. 17, s. 134 (1).
Same
(2) No superintendent, property manager or other person who acts on behalf of a landlord with respect to a rental unit shall, directly or indirectly, with or without the authority of the landlord, do any of the things mentioned in clause (1) (a), (b) or (c) with respect to that rental unit. 2006, c. 17, s. 134 (2)
As you can see, the wording is intentionally broad and it is not much of a stretch to characterize the payment you describe as fitting into the definition of section 134. Does section 134 prevent what you propose? Perhaps, but I haven't seen it as tenants who have agreed to such deals (I've seen many like you describe) have been pleased with the deal and they don't try to get the money back. What I imagine could happen is if you manage to re-rent the unit for the day after the tenants move out and your existing tenants see your 2 month charge as an excessive windfall.
DeleteSo, that is one way to look at it. The other is to see if there is any direct authorization for the type of deal you are talking about. Is it possible for a landlord and tenant to enter into an "agreement to terminate" and if so, is there any guidance in relation to what may be included in an agreement to terminate? The RTA is oddly silent with respect to the Agreement to Terminate. Yes there is a form (Form N11) and you can indeed find references to "agreement to terminate" in the Act--but as far as I can see no specific section of the Act states that the landlord and tenant may enter into an agreement to terminate a tenancy and include such terms in that agreement that they think is fair/just. It would be a handy section to have. I do think that this notion (that the parties can make their own deal on what is fair to terminate a tenancy) is implied in the RTA--specifically in section 88 that speaks to compensation owing when a tenancy isn't terminated properly. Note that the framework of what is due only applies if there is no agreement to terminate. On this rationale, the deal you propose to do with the tenant is fair and legal. I would add to the argument that an agreement to terminate actually needs some benefit to flow from the landlord to the tenant in order to be enforceable. If the landlord gets nothing in exchange for signing an N11 it is a contract to end a contract without consideration (meaning, in my view, that it isn't a contract at all).
All that being said, I have no problem with the notion of a tenant basically paying a break fee to get out of a fixed term tenancy. I think that arguably it is authorized under the Act as Agreement's to Termination are clearly contemplated. However, there are arguments against it--specifically under section 134--that could cause you trouble should your tenant decide to challenge it. If you were challenged by the tenant and you've made the agreement to terminate conditional on the payment--arguably the result of the challenge is that the tenants tenancy is no longer terminated. You could then sue in small claims court for all of your costs--and in the end you may indeed be in the exact same position as you were with the agreement to terminate.
Hope that helps you out a bit.
Michael K. E. Thiele
hey Michael i just gave my landlord a 60 day notice, basically he got mad and told me that he will take me to court if i leave. The basement apartment is not legal , he did not want to claim it. he gives me receipts as john when my name is jonnathan and he won't put my name as we have on the lease. i don't have a second exit door and he comes down when I'm not home to reset the electrical breaker since he was an "electrician" he must of made a mistake while wiring the basement apartment. Can you please guide me to do the right procedures to end my lease early. do i go to the city and tell them I'm living in an illegal apartment. Basically how legal is my lease and what can he do if u leave. i started to set a camera when i leave so i can catch him on camera coming down.thanks my name is jonnathan when you reply
ReplyDeleteHi Jonnathan: To terminate a tenancy you should take a look at the N9 Form which is available on the Landlord and Tenant Board website. This is the "legal" form that a tenant should use to terminate their own tenancy. Take a look a the form, specifically note number 1 on the form as it tells you the circumstances under which you may terminate your tenancy on notice. If you are still within a fixed term lease then you will not be able to terminate the tenancy on 60 days notice. The earliest that you could terminate your tenancy on Notice would be at the end of the term of the lease. You would still use the N9 form. If you wish to get out early, then of course you could ask the Landlord and Tenant Board to terminate your tenancy on the basis that your rental unit is not fit for habitation, is an illegal unit, does not meet minimum fire code protections etc. I say you can ask on this basis as your question to me states that it is illegal and has fire code issues (no second exit). When attending the Board to ask to have your tenancy terminated you need to be in a position to prove these assertions. The form you should use to ask the Board to terminate your tenancy is form T2.
DeleteBest of luck.
Michael K. E. Thiele
Hello Michael.
ReplyDeleteMy landlord provided me with a notice to terminate the tenancy on the 31/08/2014. The reason for doing so was because he had sold the rental unit . i have finally found a place to move in for August 1st. I told my landlord about my intention of moving out early. This is because the Act allows the tenancy to give at least 10 calender days notice, if the unit has been sold and the purchaser wants to move in .I have done some research and even spoke with an agent at the board. I would like to confirm with you, as a subject matter expert if I am doing the right thing of giving my landlord this notice. Thank you.
Hi: Thank you for elevating my status to "subject matter expert", I appreciate the compliment but in the end I'm just a lawyer who happens to practice a fair amount of Landlord and Tenant law. So, on to your facts. I suspect you will have been served with an N12 for purchasers own use and you are satisfied that the N12 has been served in good faith and accordingly you have chosen not to fight the termination of your tenancy. That notice, if you are interested, is based on section 49 of the Residential Tenancies Act. Your right to terminate the tenancy earlier than the termination date set out in the Notice of Termination (N12) arises under section 49(4) which provides for earlier termination by tenant. Section 49(5) provides that the earlier termination date by the tenant must be at least 10 days after the date of the tenant's notice.
DeleteSo, what you are proposing to do is legal and permissible under the circumstances of having received an N12. Of course you want to terminate earlier because you do not wish to be liable for rent to the date specified in the Landlord's N12 (served for the benefit of the purchaser). If this is an accurate reflection of the facts then you are indeed doing the "right thing" if you have a new place and are ready to move on the date you set out. If you are concerned about what date you can give notice for (i.e. the end of term) you need not worry, the section allows you to terminate for any earlier date so long as the landlord has 10 days notice. While what you are doing is fine from a legal perspective, you may wish to give yourself an over-lap day or two between getting into the new place and moving out of your old place. Especially at the end of a month it can be expensive to get a moving truck, movers, and sometimes getting an elevator scheduled if moving into an apartment building can be difficult. If you can move in the first few days of a month (which you have the luxury of doing) you may be able to save some money (even though you would be paying rent on two places for a couple of days).
Good luck with your move!
Michael K. E. Thiele
Hi Michael,
ReplyDeleteFantastic blog, kudos to you.
I have a tenant that has not signed a lease agreement and is for all intents and purposes month-to-month at the present time. I am looking to have this person's tenancy terminated for a number of different reasons. Without going through a lot of the trouble with the Landlord and Tenant Board, is there any reason why I could not offer the tenant a sum of money to agree to move out and then have them sign a Form N11?
Thanks!
Hi: My view is that paying a tenant to agree to terminate a tenancy is perfectly reasonable and acceptable so long as the tenant knows that they have a choice in the matter. In fact, I think that without some exchange of consideration the legal basis of an N11 is questionable. Be aware of the implications of such an offer if the tenant refuses and you are then required to proceed with formal proceedings.
DeleteGood luck.
Michael K. E. Thiele
Hello Michael.
ReplyDeleteMy landlord provided me with a notice to terminate the tenancy on the 31/08/2014. The reason for doing so was because he had sold the rental unit . i have finally found a place to move in for August 1st. I told my landlord about my intention of moving out early. This is because the Act allows the tenancy to give at least 10 calender days notice, if the unit has been sold and the purchaser wants to move in .I have done some research and even spoke with an agent at the board. I would like to confirm with you, as a subject matter expert if I am doing the right thing of giving my landlord this notice. Thank you.
hi: look up two comments. mike
DeleteHello Michael,
ReplyDeleteThank you for putting so much time and effort into trying to help folks like myself sort through the complexities of RTA.
We had rented a property for a term of 12 months from February 2014 to February 2015. Due to the circumstances beyond our control, we would very much need to move to a different province as soon as possible. The lease agreement that we signed specifically states that “Unless otherwise notified in writing, all communications should be sent to the Landlord (left unchecked) Agent (checked)”. This is because the owners of the property live in a different province also and had delegated all of our dealings to the agent who had originally facilitated rent of this property. Since then we've happily dealt with the agent when we needed his help with anything related to the property. When the possibility of needing to move came up in early July, I contacted the agent and he'd suggested that the owners would very much like to sell the property anyway, and promptly listed it on the market. At the same time, I learned about my right to assign the property to another person as per subsection 95(1), and had sent a letter to the agent on July 6 requesting general consent to an assignment as per 95(2). I had received no consent in writing or otherwise from the agent after 8 days had passed and submitted a notice of termination N9 on July 14, 2014 as per 95(4)(b) and 96(1) with the termination date of August 31, well in excess of required 30 days as per 96(2). I had also asked LMR to be applied to the month of August and the remaining post-dated cheques returned to me.
The agent is now trying to claim that I should have been requesting consent from the landlord, for whom I have had zero contact information up until the agent suddenly decided to share their email and phone number (no mailing address) with me on July 14, AFTER I had sent him the N9.
I believe I am fully within my rights to terminate as per the Act's provisions and 2 paralegals seem to agree, but your expertise and experience on this subject would make your opinion of this situation far more valuable to me.
Thank you.
-John
John: You seem to have dotted the i's and crossed the t's. The key to terminating a tenancy on these grounds is to be in strict compliance with the Act and specifically the sections you cite. I say this because I have often enough seen the Landlord and Tenant Board reject terminations or intended terminations under these sections where there is some ambiguity in the facts. I think this happens because a great number of tenants catch "amateur" landlords who are unaware of the import of the sections. These sections impose what can be seen as an unfairness on the landlord especially given that there is no "notice" of the implications of a failure to respond. Almost every other action under the RTA happens on "official" notice forms and there are notes at the bottom of each Notice giving guidance and warning to the recipient of the Notice. The process you have described, and appear to have followed, does not give such a warning. I suspect you have caught the "agent" off guard and now the agent is trying to get out of the problem created by the failure to respond in time.
DeleteI do think you are likely to be successful on the facts as you have described them. However, you should not presume success. There are arguments to make against your position and certainly, if an adjudicator determines that the entire point of asking for the right to assign was to catch the unsophisticated landlord (i.e. it was a set up) then you might find that the outcome is not what you hoped it would be.
Michael K. E. Thiele
Michael, thank you! The point of asking for the right to assign was certainly not to catch anyone off guard, but rather to follow the rules and ensure that assignment was permitted in principle by the agent/landlord given their expressed desire to sell the property, before I went and spent my own money on advertising etc. Is there anything I should be doing right now other than waiting for something to happen? Should I be making an application to the LTB myself?
DeleteJohn: It is an odd situation to be in at this stage. I'm not familiar with any specific application that deals with your exact situation. I do think you can "fit it in" to an A2 application on the basis that the right to assign was withheld arbitrarily and seek termination of the tenancy if you are inclined to seek an Order from the Board. Filing an application might invite a determination--on the wording of the A2 form that the landlord did not intend to arbitrarily withhold consent to assign and that determination may have the adjudicator decide the matter in a way that you do not wish. While getting the right to assign may seem like a "win" the fact is that assigning a lease is difficult and an expensive process that in my experience really only works in a tight rental market where people are prepared to take extraordinary steps to get apartments. When apartments are readily available the "assignment" process tends to be a hassle that people don't want to deal with.
DeleteAt this stage, I'd recommend that you start a communication with the landlord---as you have been directed to do by the agent. Ask the landlord to confirm a move out inspection, where to put the keys when moving out, confirm the move out date, ask for confirmation that LMR will be applied to August, ask them if there is anything specific that they would like you to do given that they are out of the country when you are moving out (i.e. turn off the water?). Ask about utilities, whose name they should be put into and who the contact should be--landlord or agent. The point of this is to of course get the answers, but also to get confirmation from the landlord that he is accepting your termination. His response to your contact will give you a better indication of his intention. If he responds by saying that the termination is not accepted you might then wish to consider an application to the Board (maybe the A2 or perhaps the T2).
Best of luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteA tenant recently signed a lease for a rental unit that I own with a lease start date of 6-Aug. However, today he informed me that he would like to terminate the lease before the move in. At the time of signing the lease, I took the last months rent and a $200 refundable security deposit. I am planning to sign a N11 form (Agreement to end the lease) with a termination date of 6-Aug (date the lease begins) and return the $200 security deposit, but I will keep the last months rent since I am not going to find a tenant at such a short notice. Please advise if signing the N11 form is the right approach so I can start looking for other tenants right away and also advise if I can hold the last months rent.
Thank you
Ravi
Hi Ravi: The security deposit is illegal and you should return that regardless of how you proceed. Terminating the tenancy now is fine and an N11 may indeed be okay to sign though I would want you to sign the N11 pursuant to a written agreement where the signing of the N11 is term of your settlement. The concern with the last month's rent is retaining it---and what do you call it? The concern is that terminating the tenancy means that no rent is payable from the date of termination. You are holding a deposit for a period after the termination of the tenancy. This may be a problem especially if you use words like forfeit or penalty to describe the money or why it isn't being repaid. I'd be inclined to document the agreement in such a way that the tenancy ends at the end of the first month and use the LMR to pay for that month. Then agree that the tenant is returning exclusive possession of the rental unit to you so that you can try to re-rent it to another tenant. Further, you should agree to repay the LMR or such portion of it to the tenant if you re-rent the unit before the end of the month. That would be my preferred way of proceeding.
DeleteHowever, what you have done is not necessarily wrong and you could argue that the consideration for the N11 was one month's rent, that it isn't a penalty or charge for the tenancy but instead is a fee for the right to terminate the tenancy before the end of the term of the lease. I don't have any philosophical objection to this but I've had cases where there have been disputes about the landlord's right to retain an LMR when the tenancy is terminated (this comes up in rental application cases where the tenant applies, is accepted, and then doesn't want the unit as well but wants their deposit back and the landlord refuses).
Michael K. E. Thiele
Thank you for the guidance and for replying back so quickly Michael. On the lease agreement that I and the tenant signed - it clearly states that in the event that the tenant decides not to move in or we mutually decide to cancel the agreement then the last months rent will not be refundable. So, I think the lease agreement and N11 form together should be sufficient to hold the LMR.
DeleteAppreciate it.
Ravi
Hello,
ReplyDeleteI have a follow up question to the one listed above. I have a similar situation to that of Ravi's. I had a room-mate who said she wanted the room and signed a one-year lease but then called and said she does not want the room anymore (2 weeks laters). She had provided one month's rent. In the mean time I had said no to other potential room-mates and took down my ads for the unit.
Do I also have to fill out the N11 form? Or would a written agreement to cancel tendency have to be signed? She had sent me an e-mail saying I can go ahead and look for another person and that she wanted the one month rent she had given me.
Thank you,
Priya
Hi Priya: It's not clear to me from your question that the Residential Tenancies Act applies to your situation. You are talking about "room-mates". I presume you mean that you have an apartment, have an extra bedroom, and are looking for a room-mate to share the expense? If this is accurate the RTA does not apply to you and you would not be using any of the Forms under the RTA. Your relationship would be governed entirely by contract. Even if you signed a "lease" you can not make the Residential Tenancies Act apply to your situation if the statute itself excludes its operation.
DeleteFrom what you describe, I see you having a claim against the person who signed the "lease" (which is likely more like a roommate agreement) for breaching your agreement. At a minimum she agreed to rent for one month and you have the money for that. If you manage to find a replacement roommate during the period of time that she paid then perhaps you can refund her that portion of the rent less your expenses for finding the replacement roommate.
Good luck
Michael K.E. Thiele
Hello,
DeleteThank you for the reply. Sorry for the misunderstanding, I should have been a bit more clear. I was planning to rent out one of my rooms in my house. She signed a contract for one-year to rent the place. My understanding is that then when you are renting out a room the person who agrees to take the place is not obligated to fulfil the agreement?
Thanks!
Hi Priya: When renting out a room in your house you are effectively taking in a boarder. As you are sharing a kitchen and/or bathroom with the boarder the Residential Tenancies Act will not apply. The exemption from the legislation is in section 5(i) of the RTA. In such circumstances the relationship with the Boarder is governed by the terms of the contract that you reach with them. There is definitely an obligation to fulfill the terms of the contract and neither you nor the boarder is excused from the terms of the agreement simply because it is not governed by the Residential Tenancies Act.
DeleteThat being said, the problem often is that when a landlord and tenant relationship is not governed by the Residential Tenancies Act the method of dealing with any disputes or non-performance is to file a claim with the Ontario Small Claims Court. That process, while available to you, costs money and takes up a significant amount of time--especially in the bigger urban centres. Unless there is a significant amount of money at stake or it is a matter of principle, many people decide that the Court process is simply not worth the expense and aggravation. You may find yourself in this position if a boarder you have rented to simply disappears and does not pay---are you prepared to go through the effort of suing them in the Small Claims Court?
Hope that clarifies it somewhat for you.
Good luck.
Michael K. E. Thiele
Hi, we are a couple renting a condo in Toronto, Ontario. We signed a 1-yr lease from Mar 2014. Unfortunately there are problems at the building and we are constantly being harassed by building staff. Finally, as of Aug 2014, we have been barred from use of any of the buildings recreational facilities (pool, sauna, shower, BBQ, etc) because of a trivial reason for which they have no substantial proof.
ReplyDeleteBecause of this situation, the constant harassment, and our inability to access the facilities, which I feel is included in the rental fee, we would like to leave the building early.
I have contacted the landlord and he refused to let us leave before the 1-yr term. He did agree to help us resolve the situation, and reinstate our access to the facilities, but as of yet, there has been no resolution.
We are interested in breaking our lease and vacating the building as soon as possible. Please let us know our options and the best course of action to take.
Your input would be greatly appreciated. Many thanks!
Hello, my girl friend and I are renting a condo in Toronto, Ontario. We signed a 1-yr lease from Mar 2014. However, there has been a problem with constant harassment at the building that has escalated to a daily level. Finally, as of Aug, we have been indefinitely banned from use of any of the building amenities (pool, sauna, showers, BBQs, etc) because of a trivial issue which they had no solid proof of.
ReplyDeleteBecause of the deteriorating situation and our inability to use any of the amenities (which is what attracted us to the place first off) which I believe should be included with the rental cost, we would like to terminate the rental as soon as possible.
I have approached the landlord and asked for an early termination to our lease, of course with ample notice time, but he has refused.
What would be our options and/or best course of action? Please let me know.
Your input would be much appreciated. Many thanks, Adrian.
Hi Adrian: Your direct relationship is with your landlord and hence that begs for a resolution at the Landlord and Tenant Board. That being said, the content of your lease is significant and important. Did your landlord incorporate by reference the rules, by-laws, declaration of the Condo Corp. into your lease? If so, by what authority did the condo ban you from using the building amenities. Was it just a random assertion of power? Depending on how the Condominium Act, as well as the by-laws, rules, declaration are incorporated into the Lease you may indeed be looking at an adjudication of the merits of the banning. If this matter did proceed to the Board you may wish to also name the Condo Corp as a "landlord" (the definition is broad), as they clearly are an interested party in this dispute. In an application to the Board you can ask for termination of the tenancy and this may indeed be something that can be worked out in mediation.
DeleteLet me just comment that the interplay between Landlord and Tenant legislation (RTA) and the Condominium laws are less than ideal and there are a few grey areas when it comes to enforcing rights. If you do proceed with legal proceedings you would be best to get counsel to take you through the process.
Michael K. E. Thieel
Hi Michael and thanks for the reply.
DeleteWe have approached the landlord and asked about our options for ending the lease early. He has given us 3 options: we can sublet the unit, assign the lease to another tenant, or leave with a 60-day notification period. We do not want to sublet the unit. We do not mind assigning the unit to another tenant, although it may be a long process and a lot of work for us.
We prefer to leave within 60 days although they have noted that we will lose 1 our last months rent and security. Is this lawful? It is a small loss for us, but I want to know if this is the legal norm in such cases.
Also, they have noted that if they cannot find a new tenant within 60 days, that we will still be responsible for the rent until they find someone. Is this also true?
Please let me know. Your input it greatly appreciated. Many thanks, Adrian.
Hi Adrian: I''ll comment about the options that have been presented to you. 1) Subletting is a situation where you find a person to move into the premises for a defined period of time and then you take back possession at the end of that time. You remain liable to the landlord for rent, damage, and all things under the lease. You effecitively become a landlord to your subletter but remain a tenant to your landlord. The law prohibits you from charging a premium to the subletter. As your goal is to terminate the relationship and never go back this is not an ideal option for you. 2) Assignment is when you find someone to take over your lease. That person, once approved becomes liable for everything under the lease from the date ofg the assignment. You remain liable for everything up to the date of assignment. This isn't a bad option for you, However, my experience is that it is difficult to find assignees for rental units especially when the reason for the assignment is an antagonistic relationship. If you are in a very tight rental market then there will be more tenants than rental units and people will indeed deal with the hassle of an assignment. If you can find a new tenant for the landlord, at the same or better rent, you may wish to see if the landlord would agree to just terminate your lease on an N11 and sign a new lease with the new tenant. The landlord would get a futther 12 month term out of a new lease.
DeleteThe last option is the interesting one because it is not based on the Residential Tenancies Act. During a fixed term lease you have no legal right to give 60 days notice of termination. The earliest that you may terminate a tenancy on notice, during a fixed term, is to the end of that term. The landlord telling you that you can give 60 days notice is a bit of a twist on what happens under the RTA when tenants leave during a fixed term. I don't think that what you are being offered in this option is "legal" as the landlord intends it--although it is entirely possible if you play out this fact scenario that the legal outcome would be the same as what the landlord is offering.
What I disagree with in the landlord's offer is the idea that you are automatically on the hook for the 60 days. Your landlord seems to be demanding the 60 days regardless of whether another tenant takes possession within that period of time. I think what he is saying is that if you move out (say on September 1) you would owe him rent for September and October and he would keep the Last Month's Rent deposit. This is a 3 month charge that he requires regardless of whether you live in the unit. The landlord would keep this money even if he found a tenant for anyttime (pro-rated as necessary) in any of these months. Doing this is contrary to the landlord's mitigation duty and is double dipping. Given that you have a right to occupy the premises for the months that you paid rent he really can't keep your rent and rent it to someone else for the same period of time.
I'd have a different view of this if the landlord was setting a price for an agreement to terminate (form N11). But his offer is no compromise of his position. He is demanding full performance and in fact is adding more to his benefit than he is entitled to (if the unit is re-rented during the notice period and the LMR period). The next twist is that what the landlord is offering may be the ultimate outcome if indeed it is impossible to re-rent the unit notwithstanding proper attempts to re-rent (i.e. advertising, etc.). While in a fixed term lease you can be liable to the balance of the term if the landlrod is unable to re-rent notwithstanding proper mitigation attempts. While the extent of liability in theory extends to the end of the term a Court will normally pick a period of time based on the circumstances of what would have been a reasonable period of time for the landlord to find a new tenant. My experience is that a Court presumes it will take a landlord 60 days to find a new tenant if a sitting tenant abandons during a term--after that amount of time the Court becomes skepttical about the landlord's attempts at mitigation (which he is legally required to do).
DeleteA last comment. The choices the landlord gives you leaves out the possibility of you terminating your lease for cause. You cite a denial of services that was integral to the lease and the reason why you rented there. You don't give the details of what the source of the problem is but if you are not at fault and the landlord made no attempts to provide or reinstate those services then you could take the position that the landlord breached the lease and that you have a right to terminate it. You could file a T2 application at the Landlord and Tenant Board and ask the Board to terminate the lease as well as ask for a partial rebate of rent already paid and perhaps ask for moving costs etc.. I don't know if the denial of service issue supports an attack posture like this but if it does this may be the option you want to pursue. Filing an application in Form T2 may also result in negotiations that are more balanced and fair than what your landlord is currently offering.
Best of luck
Michael K. E. Thiele
Hi Michael and thanks greatly for your responses. We have decided to go with the 60 day option. We do not mind to stay another 2 months at the condo in order to give us time to find and secure a new location for us to move to. I wrote back to the landlord expressing our interest to give 60 days notice and that we understood the penalties involved (loss of last months rent + security deposit). He told us we need to put it into writing and then added the caveat that we would have to “resolve the matter with management” before we gave our 60 day notice. This was on 30 August and I was keen to get the notice in before the end of the month to prevent from us being locked in for an additional month. I wrote back to note that the situation with management has already been resolved as much as possible, that we had given up on using the facilities in the building and had joined another external community centre gym instead. He never replied to my letter so on 31 August I sent another letter noting that we had come to an agreement to terminate the tenancy as of 31 October, that we understood the penalties involved, and the date for last payment. I also attached a Form N11, asked them to review it and sign. If any questions, I asked them to write or call me. There has been no word from them since. What should be our next step? They offered the agreement to terminate the tenancy with 60 days notice with monetary penalties, we accepted, and put the agreement into writing, and they did not follow up on it. I am under the impression that we had an agreement and that we will be leaving as of the end of October.
DeleteHi there,
ReplyDeleteMy boyfriend and I entered into a two year lease one year ago. We have decided we want to move to purchase a house.
We are willing to give 90 days notice to terminate the lease but we have a difficult landlord. How can we terminate it without it coming back at us later being sued by her.
Thank you... K
Hi:
DeleteIt is always possible for someone to sue you and there is nothing you can do to stop it. What you can do is change the odds in your favour so that if you are sued you are more likely to be successful in defending the claim against you.
As you are in a fixed term lease you are liable for the rent to the end of term. If you called the Landlord and Tenant Board they would suggest to you that you consider finding someone to assign the lease to (i.e. find a new tenant). How you go about assigning is set out in section 95 & 96 of the RTA. It is a very technical process and you can see, if you look carefully at the sections, that certain actions under these provisions give you the right to terminate the tenancy early. Aside from an assignment, you could also abandon the property and return possession to the landlord. If you do this you would be liable to the landlord for the rent lost----however, the landlord would have a duty upon getting vacant possession to mitigate her loses---meaning the landlord would have to take active steps to re-rent the premises to someone else. If the landlord sues you, you can challenge the reasonableness of the mitigation and ask the Court to limit damages to a reasonable period of time that it should have taken to find a replacement tenant. Other than being evicted for cause, there really is no other way for a tenancy to be terminated unilaterally. Of course, if you can "make a deal" with the landlord then you could sign an N11 form which is an agreement to terminate which may contain any date that you agree upon.
Michael K. E. Thiele
HI Michael,
ReplyDeleteWe rent a condo in Toronto. Our original lease was up in July and we were asked by Email if we would be staying for an other year. At the time we had every intention to stay and replied saying yes. However, we have found a condo we would like to purchase now and take possession in October. We emailed our landlord to inform them that we would like to break our lease, however they are now wanting to sell the unit and have us pay the rent until the sell closes. As they are selling it we are in a difficult position to assign the unit to a new tenant. Is there anything we can do to still terminate the lease?
Hi: The questions will be whether your lease renewed for a further fixed term of 12 months or whether it continued on a month to month basis. The RTA provides in section 38 that the lease continues on a month to month basis unless it is renewed. Unfortunately, there is very little guidance on what "renewed" means. Does it mean in writing, by email, orally, on a formal lease renewal document? Further, does the act of renewal of a fixed term lease require the landlord to give the tenant notice of their options--i.e. you don't have to renew and may simply continue on a month to month basis. At the time that you said you planned to continue living there did you actually put your mind to the issue of entering into a second fixed term of 12 months or were you simply answering from the perspective of not having any plans to move so you were saying "yes" we're staying as opposed to "we're moving out at the end of the lease. There will be different views on what the email exchange means. For me to have an opinion I'd need more information from you about what you were thinking at the time and I'd need to see the email exchange. I suspect that you probably did not think about it in the terms of a 12 month term or a month to month as most people don't. From you comment, I'm not sure that your landlord gave it much thought either. Their expressed desire may be just that--a "wish". If your landlord wants to sell the condo to a purchaser (who is likely to want to live in it?) then your new fixed term lease is a serious problem for the landlord. Your landlord wants you to live there until the closing date? If you are on a fixed term lease then you can not be required to move for a purchaser betore the end of the fixed term. From what you describe I think that puts you at the end of July 2015 before a purchaser could occupy the unit for their own use. This seems to be at odds with what the landlord wants you to do (live there until it sells).
DeleteThe contradiction to me is an indication that what was intended in the email exchange was not fully thought out by the landlord or by yourselves. This makes me doubt that there is a "renewed" term and I would guess that you are on a month to month. Greater analysis is needed by asking you questions about your intentions and looking at the email exchange and surrounding documents (see a lawyer about this).
If it is fair to conclude that the leased was not "renewed" then you should simply give your 60 days notice of termination to the end of term (use the Board form). If the landlord disagrees you can ask the Board to answer the question of whether or not the lease was renewed for a further 12 months or if it continued on a month to month.
best of luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteI guess I am not alone with my condo problems. Thank you for all the information above. I may have the most unique situation of all though. I am about 2 months into my lease, but have been having problems from day one. The condo I rented came partially furnished, and the landlord used the furniture to cover up several defects, like a hole in the wall, stains on walls, and sticky substances on walls. In addition, the unit was not professionally cleaned as stated in the contract and the landlord left a host of personal effects behind (some not appropriate for this board). In addition, the landlord knew about issues with the door lock in the unit, but played it down when I moved in. In short, this eventually led to me being locked out one night, with the keys, because the lock did not function properly, and the keys would not turn (four different people tried). I got the landlord to call a "locksmith" after she refused to pay for a hotel room, and the landlord told me to meet the locksmith to get in and went to sleep since it was late and she was tired. I met the locksmith, and he had to do damage (minor, not major) to the door after 2 hours in order to get me in because the lock had issues and everything else would not work, and I had no lock for a few days after.
The Condo Association said the door needs to be replaced for aesthetics and now the landlord not only refused to pay the locksmith fees (that she said she would pay for), but is also trying to get me to pay for the door for "negligent conduct." She also said I didn't report issues with the lock to her (after I had just reported a host of other issues with the condo, that she asked me to "look past" and to stop being a perfectionist). She also refuses to agree to terminate the tenancy and was insulting afterward. She even came to my unit and tried to push the door open when there no lock without knocking. I later learned that the previous tenant caused a lot of damage to the condo from the condo association, but since they represent the owner, they could not put it in writing. I have already filed a T2 and T6 to terminate the tenancy and recover my costs, and for damages since I had to miss work dealing with this issue.
I know the landlord is in violation of so many rules in the Residential Tenancies Act and her own Condo By-Laws. I guess my question is how does the board typically rule when it comes to terminating tenancies? I already filed to pay them rent instead of the landlord and they refused my request. What would be the best reason to give the board for wanting to end my lease (because I have a very long list at this point).
Hi: Termination of a tenancy through a T2 and/or T6 application is of course an available remedy as it so indicates in the Form itself (i.e. check off the box). The question is how likely is it that you will be granted this remedy. In my experience, termination of a tenancy is a remedy of last resort that the Board is reluctant to grant. In the face of repair issues, illegal entry, and lack of quiet enjoyment of the premises the first level of recourse for the Board is an abatement of rent, an order for the complained about activity to cease, and perhaps compensation where appropriate. Terminating the tenancy is generally reserved for the most serious cases where it is clear that the tenancy can not continue---threats of violence, threats to personal safety, denial of vital services as defined in the act, failure to provide premises that are fit for habitation or fail to meet health and safety laws. In some way, the legal relationship must suffer a fundamental breach in the performance of obligations under the lease. When you have something that rises to this level then you can expect an order terminating the tenancy. Short of that it is my experience that you are likely to get an order for something less.
DeleteHope that helps frame the issue for you. The facts you describe may indeed result in a terminated tenancy by Board Order. If there is a use in having the evidence of the previous tenant's conduct--and proving that the unit was already damaged when you rented the unit---it might be worthwhile to summons someone from the Condo Board or the property manager.
Good luck
Michael K. E. Thiele
Hi there,
ReplyDeleteThanks for all the great information. My situation I feel is going to get tough. My current tenants on a month to month lease have given their 60 day notice in text messages and email. They stated November 1st as their last day which I agreed to. While showing the house to potential
new tenants, the current tenants said they are having trouble finding a new place.
This made me wonder if they are going to cause trouble leaving on time. Sure enough they've stopped answering my calls and messages and when I stop by to work on exterior no one answers the door and nothing has been packed as of Oct. 27.
My question is come November 1st, if they are still there what is my course of action to get them removed asap. Luckily I don't have a tenant lined up but I would like to get in to the house to perform maintanence and I don't want them living there for free.
Thanks
Hello: Your question raises some interesting legal points. Query whether the tenant's notice to terminate is a valid and legal notice. You mention that they terminated for November 1st, which day would not be the last day of the term of the tenancy if rent is payable on the first of each month (I presume that you didn't enter into a tenancy agreement that runs from the 2nd of every month to the first of the next month). The significance of this is that the tenant's notice may be determined to be a void notice of termination as it does not comply with the provisions of the RTA (see s 44 & 47 RTA for the requirements). It may seem odd that the tenant's can avoid the consequence of their notice to you (which they want), by relying on their own mistake by making the termination date one day too late. That, however, does occur and it s possible outcome if the tenant's resist an application that you might make to the Board on the basis that they provided you with a Notice of Termination.
DeleteWhat is interesting about your comment is that you indicate that you agreed to the termination for November 1, perhaps implying that you knew that Nov 1 was not a proper end date based on a Notice. It would be interesting to see your email exchange with the tenants on this point. If the emails reflect and "agreement" then the tenancy has been terminated not in accordance with a Notice of Termination but instead pursuant to an Agreement to Termination under section 77 RTA. The magic about section 77 is that the end date of the tenancy can be any date and there is not minimum number of days etc..
If we presume that you have an "agreement" to terminate, and your tenants do not move out, then you may (within 30 days of the agreed upon termination date), bring an application to the Board based on that Agreement to Terminate. To do so, you will use Form L3--which you can get on the Board website. You will need to provide an affidavit setting out the terms of the agreement to terminate--which likely will involve printing emails and attaching them to the affidavit. There is some debate about whether Agreements to Terminate need to be in writing--but if you have a chain of emails that respecting the Notice and your agreement you should have no trouble getting the eviction Order. The Order will normally issue without a hearing being held. The tenants, if they object, could file a motion to set aside and then there would be a hearing to see if there is indeed an agreement to terminate or not and to determine what the appropriate remedy should be.
In the event that you do not have an agreement to terminate you could still bring an application based on the Notice of Termination--still using section 77 (using 77(1)(b) instead of 77(1)(a)). The application form again, is an L3. Note that you may have an issue with the termination date as I presume it was not the last day of the term.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
I am in a difficult situation, my current landlord is renting out rooms in his home and the other tenant in the home (male) has made some inappropriate comments to me (female) on several occasions and I do not feel safe in this place any longer. I did sign a year lease, however I just moved in and have been here maybe 5 weeks. There are some other issues with the home (appliances not working, lock on the front door does not work, animals in the home which I am allergic to). My question is, am I able to vacate the home immediately? I have paid first and last months rent to the landlord, but have not given notice to the landlord yet as the other tenant is a friend of the landlord and I feel that if I come forward and tell him what is going on he might side with the other tenant. I'm a worried that the landlord might sue me for the full years rent and I am not in a good financial situation to be able to afford to pay that.
ReplyDeleteThanks
I have been both a tenant and now a Landlord in various stages of my life. I've experienced the bad as a tenant in university (a/c and furnace not being fixed) and as a Landlord (non payment of rent, tenants who break their leases before the one-year term ends). In all cases, I never resorted to the Landlord and Tenant Act of Ontario. Using any of the remedies or clauses of this Act is really a last resort, either as a Landlord or Tenant. It really is an impediment to common sense, and neither benefits the Tenant or Landlord. When issues arise, just talk to your Landlord of Tenant; most people use common sense, and it looks like one should only use the full sense of this law when something cannot be resolved. Once you try to sue someone, play the 'lega' games, you are out more than money. It wastes your time, and takes a mental drain on you especially when you have things with more priority to take care of. I would advise all readers to talk it out like a normal person would.
ReplyDeleteHi: This is an interesting comment and I don't disagree that landlords and tenants should try to resolve their problems through conversation and compromise. Avoiding litigation and recourse to legal proceedings is something that everyone should try to acheive as the adversarial nature of litigation is time consuming, expensive, and often unsatisfactory.
DeleteThat being said, the comment is also somewhat naïve. Many landlords who try to "work it out" and "talk" to the tenants (use rent arrears as example) find themselves thousands of dollars in arrears with a tenant who is unable to pay with no end in sight because the proper legal steps were never followed. No amount of talking gets the rent money and not having served a Notice of Termination for Non-Payment of Rent (Form N4) means that the landlord can not get vacant possession of the unit.
The same is true for damage cases, impaired safety, illegal act. The RTA provides a system for dealing with problems between landlords and tenants and ultimately, if the parties can not work it out the RTA is what must be used to "solve" the problem. It is important to preserve your legal rights and the advantages that the RTA gives you even if your preference is to try to "work it out".
Hence, I suggest a middle-ground which is taking the steps authorized by the RTA (serving notices etc.) and then engaging the other side in conversation with the goal to mediate a resolution. If the situation can be resolved by discussion then the legal steps taken to preserve rights are not needed. However, if the situation is not resolved by discussion then at least the legal process has been started and it can be followed through on for the Board to impose a resolution of the issues.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy tenant signed N-11 to move out on 14.11.2014 on 03.10.2014. He then signed another mutual agreement that he will pay Nov rent on 15.11.2014 and move out date will be 30.11.2014. If he can not find a place from Dec. 1st then he will pay Dec rent on 1st Dec. and move out date will be 31st Dec. However, agreement has clause that if he does not pay the Nov rent on 15.11.2014 then the termination and move out date will remain as 15.11.2014 and I will file the L3 for eviction order and Tenant will not dispute on such order whatsoever.
As per the mutual agreement, he failed to pay on 15.11.2014 and I am ready to file L3. Please let me know should I enclose the copy of mutual agreement with N-11 or just copy of N-11 would be enough? The mutual agreement on amending termination date would have been valid only if he would have paid the Nov rent as agreed but he failed.
Is that the mutual agreement can be presented to the LTB only at the time when he dispute the LTB eviction order where the agreement says he will not dispute such eviction order whatsoever and in that case, is there any scope for him to dispute the order to file motion set a side and go for hearing? if LTB stays the eviction order until hearing, how many days it takes to schedule such hearing? I fear he will try to kill the time or stay up to Dec..
Thank your for your help.
Rahman
Hello Michael,
ReplyDeleteI am confused about Ontario Tenant and Landlord Act and I want my rights to be protected as a tenant. If you could help me get some clarification. I am a tenant and in Aug 2014 I separated from my husband and decided to rent a basement apartment by myself. Now in Nov this month due to personal circumstances I am back with my husband and he decided to move in with me. My landlord found out and he advised me that I broke the rental agreement by having another occupant in premises. Basically he is concerned about utility use and he wants to leave. However he referred me to speak with his Real Estate Broker to be notified about certain conditions about breaking the agreement. His broker advised that I can give my 2 months notice however I have to continue paying rent till they find another tenant and I would not get back last month rent deposit. Apparently they want us to stay and want us to continue paying till they find someone and not get my last month's rent. It is very frustrating and I dont know if they are playing smart. I want to give my 2 months notice and pay only one more rent and then leave. However I am concerned if they take me to small claims court but is there a chance I win because he is asking me to leave by breaking the contract and at the same time asking me to pay monthly rent while I am not living there.
Please Help
Thanks
Hi: This is one of those questions that it would be great if we could just chat for a minute. The reason is that the answer is different depending on what you want to have happen and I would focus my comments based on your goal. Anyway, I'll comment generally and hopefully this will help you out. Your landlord is not allowed to make an issue out of you having your husband move in with you. Whether it is a husband, boyfriend, girlfriend--whatever, this is none of your landlord's business. So long as the unit is not being "overcrowded" as legally determined, the landlord does not get to dictate who lives with you or who stays with you. My short answer to this is that landlords need to determine their "rent" at the commencement of the tenancy on the assumption that the tenant will do "normal" things in the rental unit. That includes getting into relationships, having people stay over, etc. etc.. It simply isn't within the landlord's purview to restrict or prohibit this fundamental part of being a human being. It insults the dignity of being a person to have these restrictions imposed in one's home. That being said, you won't find any explicit reference to what I have just said in the Residential Tenancies Act. Some will tell you that because it is not explicitly prohibited in the RTA that the landlord may indeed restrict the occupants in the unit. My response to that is that the prohibition is contained within the Ontario Human Rights Code and that the restriction is discrimination based on family status which is a protected ground in the law. There are other more subtle arguments against such restrictions to be made on the wording of the RTA itself but in my opinion the HRC provisions are dispositive of the question of whether a landlord can decide whether you have a spouse, child, friend, live with you in your apartment.
DeleteThat being said, you say in your comment that you just want to leave by paying one more rent. Technically, I suspect, that is not possible because you signed a one year lease starting August 2014 ending July 31, 2015. On a straight notice basis the earliest you could leave without the landlord having a say in it is July 31, 2015. Once you are on a month to month tenancy you have the right to leave on 60 days notice to the end of term (see the Form N9 on the Landlord and Tenant Board website).
I suspect that your landlord and his real estate agent are giving you the impression that what they are imposing is a matter of "law". This is not a fair conclusion. They certainly may allow you to leave--but they can not require it. If they want you to leave and you want to leave then you can sign an N11 Form (see landlord and tenant board website--or google the form and it will get you there). The N11 form will set a date for termination and that will be the end of it. There is no paying rent beyond that date and no requirement to pay the landlord rent until they find another tenant. The landlord and his agents demands in this respect are oppressive and simply wrong. I am offended (for you) because they are not playing fairly with you. Their attitude towards you is premised on you having accepted their assertion that your husband can't live with you. That simply isn't true and in my view makes what they are doing oppressive and wrong.
DeleteIn the circumstances of what you describe you should be aware that you could file a Human Rights Complaint against your landlord. I think, if I'm aware of all of the facts, that you would win that case. You could file a similar case at the LTB using a form T2.
All of that being said, I highly recommend that you get a lawyer if you can afford it who is experienced in landlord and tenant law. If money is an issue, consider going to a local community legal clinic. Hopefully, if resources permit, they will take you on and deal with your landlord on your behalf.
Good luck. I'm pleased for you that you are working on your relationship with your husband and I hope that you both find mutual happiness in your relationship.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteYour blog has indeed been helpful to me in knowing more about my rights as a tenant in Ontario.
However, I would still appreciate if you could help clarify some of my doubts given the following situation:
- I signed a 1 year lease agreement (28 Aug 2014 - 28 Aug 2015)
- I paid 2 months rent in advance (first and last month)
- I also paid the remaining 10 months of rent with post-dated cheques
- Due to personal and family reasons, I need to leave Canada and go back to my home country by end of January 2015.
- If I give a 60 days written notice to terminate the agreement and return the unit to my landlord before I leave the country, am I still liable to pay for the remaining rent after the termination date?
- Can I still cancel my post-dated cheques and leave the country without getting into legal problems?
I just want to leave the country and end the lease agreement without getting into legal problems (I may come back to Canada one day). Any advice or solutions to my situation/concerns would be very much appreciated! Thanks.
Wee
What a great blog! And sound advice.
ReplyDeleteMy question is very simple.
1) We are renting a condo unit from the owners of the condo, in a large condo complex.
2) We signed a one-year lease ending Dec 31, 2014, and paid the first and last month. Recently we found a house and decided to move in December 1st. We were able to give our 60 days notice to our landlord (who were very gracious about our finding a home).
3) Since December is already paid for, our lease is duly paid until its end. Since the only utility we pay is hydro, I put our end date as of Dec 31 with the hydro company.
4) My question is this one: we are moving on Dec 1st and coming back that week to make sure the unit is clean & empty. We have planned (with the landlords) to give them the keys to the condo back on Dec 7. They have planned to have some repairs done to the unit after we have vacated the premises (that will be carried out by the building since it was a building problem). They are looking for tenants (we have had several visits, I don't think they found them yet) - for January. They are particularly good landlords. However our real estate lawyer suggested we both sign a letter waiving our liability to any damage, problems or others that could occur after we give them the keys (from Dec 7 to the end of our lease, Dec 31) - as she says we could be held responsible for not making sure the unit is secure in the meantime. She also mentioned that if they do not agree, we have to either come in regularly or make sure someone comes to check on the unit. Since repairs are to be done after our departure, we don't mind paying for hydro until the end of December but are not comfortable taking responsibility for people coming into the unit during that time. Is there a pre-existing form for that kind of waiver and should we make sure to ask the landlords to sign such a letter? Thank you very much.
Hi:
DeleteAn interesting question and not one that all that uncommon. There are no pre-existing forms for what you describe. So long as your rent is paid up you have the right to occupy the premises and to enter the premises to the end date of your lease which means that you enjoy all of the rights as a tenant to the end of term. I do agree with your real estate lawyer that so long as you are the lawful occupants of the condo then liability could attach to you for any injuries sustained by anyone entering the unit, or for damage caused to the unit or for damage that the unit might sustain.
Presuming you are not looking for any rebate in the event of early rental (within December), then the best thing to do is to draft a document that constitutes a move out inspection and confirmation that you have returned vacant possession of the rental unit to the landlord as of the date specified in the document. The move out inspection is useful to you as the landlord will confirm in that inspection that there is no damage beyond ordinary wear and tear and that the landlord makes has no claim against you. If there were some unusual damage the landlord would note it and you would either be required to pay for the damage or you would have the right to repair the damage yourself to a mutually satisfactory standard. The confirmation that vacant possession is returned to the landlord aims to be the protection that your real estate lawyer is aiming for you to get. Perhaps the simplest way to accomplish this is by writing, in addition to vacant possession is returned to you on X date, that responsibility for the rental unit is no longer with the tenants as we have returned the keys and possession of the unit to you. Accordingly the Landlord may come and go as they please without notice and the unit may be re-rented at any time.
With respect to the "pre-existing form", just in case you are looking or others are reading this response, the N11 Form from the Landlord and Tenant Board does seem like it would fit the bill. It is an agreement to terminate Form and any date can be put in the Notice. That would end your liability as of the date in the N11 and upon possession being returned on that date (i.e. you comply with the Notice and move out by that date). The technical hitch on why I don't suggest the N11 is that signing it for December 7 would then entitle you to a refund for the difference between Dec 7 and Dec 31--which might make a landlord a bit nervous when you say "trust me" I won't make a claim. You could still use the N11 and combine it with a written document waiving the rent difference to the paid up end of term--but again it become more complicated than it should be.
Good luck with your new home.
Michael K. E. Thiele
www.ottawalawyers.com
Hey Michael,
ReplyDeleteMy situation is this. I am living in an apartment in which i have signed a lease for with my roomate. The cost for this 2 bedroom is 1600. Me and my roomate have agreed to pay half each. Suddenly without my knowledge she has moved all of her belongings out of the apartment and left. She is responding to my texts or phone calls. I have emailed the landlords to see what I should do. They told me that even if we both have signed the lease at the end of the day they must still get paid theyre 1600$. My roomates cheque was never deposited with her half of the money therefore I am 800 short on rent which is not my responsibility but on paper it is. So my question is what can I do to get out of this lease, and what legal action can be taken against me. Because I simply cannot afford to pay 1600$ on my own.
Thanks , anything will help
Hi:
DeleteI am presuming an Ontario lease and that you and your roommate signed the lease together and that you are still early in a fixed term so giving a Notice of Termination (60 days) is not an option. As such you are both legal tenants under the RTA. The landlord has the right to pursue you alone, you and your roommate, or only your roommate for the rent. Because you are still there, it is very likely that the landlord will pursue only you. The proceeding at the Landlord and Tenant Board--which the landlord will likely start as you fall behind in rent arrears will name only you as the Landlord and Tenant Board does not have jurisdiction against your roommate because she is out of possession.
What you may wish to consider doing is writing to your roommate and confirming that she does not intend to live in the apartment, that she does not intend to pay rent, and that she wishes to terminate her tenancy in the rental unit. If she confirms that you could offer to try to find a replacement for her, and she should try to do that as well. Your position with her would be that her liability for her share of the rent would not end until a replacement for her is found. If you get all of that, it will be up to your roommate to convince the landlord to let her off of the lease and to replace her name with the new person. You would agree to these changes (if they are agreeable to you).
If your roommate does nothing--and does not confirm that you can get a replacement roommate, that she will facilitate it, and has no intention to return, then you are in a bit of a tough spot. Technically you should try to get a new roommate to help with the rent and the liability caused by your roommate leaving. However, until she confirms no intention to return etc., she is technically still a tenant with rights to return.
The other possibility is that you simply don't pay any rent because you can't afford the place. Don't get a new roommate. Wait for the landlord to serve you with a Notice of Termination for Non-Payment of Rent (Form N4). Don't void the N4, don't pay. Wait for the L1 Application to the Landlord and Tenant Board at which time the Board will terminate the tenancy and enter a judgment against you for unpaid rent plus the costs of the application. Move out in accordance with the Order and once the termination is final and not voidable anymore--pay the landlord the rent if you can afford it or make arrangements to pay off the judgment with the landlord.
Once the total amount of the liability is known and clear sue your roommate for her half of the rent in Small Claims Court.
Another option. If your landlord understands your predicament they may agree to terminate your tenancy pursuant to an Agreement to Terminate (Form N11). If the landlord knows you simply don't have the money they might appreciate you simply moving on, making arrangements to pay the balance owing, and avoiding the N4 & L1 process of terminating and evicting you. If you made an agreement to terminate you would have to move out and find a new place for that date. You would then sue your roommate for her share of the rent up to that date of termination.
Hope that helps a bit. I think you are right to be forthright with the landlord and hopefully they will appreciate that you can't pay because you don't have the money and that it is best to end the relationship sooner than later. Forcing the landlord to go through a termination and eviction process--expensive and time consuming---would be unfortunate given that no process is going to get them the rent money that they are seeking for the remainder of the term.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you s much this has helped a lot!
DeleteHello,
ReplyDeleteI have a rather strange situation. I am currently living with two friends and unfortunately we have had a falling out and I no longer feel comfortable living here. I want to move out and find my own place as soon as possible. How could I go about getting out of my lease? The other two would be staying.
My landlord's wife is a lawyer so she deals with everything for him. I feel as though she may give me a hard time about it.
Thanks,
Shae
Hi Shae:
DeleteI presume that your roommate would be just as happy for you to leave? If so, you could sign an agreement with them that you are moving out, that you are not responsible for anything in relation to the unit, that your share of everything is paid up, that you didn't cause any damage to the unit, and that they agree to be responsible for all of the rent and future liabilities in relation to the rental unit from the date of you leaving the unit. Such an agreement can be perfectly fine if the effective indemnity for liability created by the document is backed up by credit worthy roommates (i.e. your roommates have assets, will pay the rent, won't trash the place, and if they do--and the landlord sues you, they will have assets that you can recover against to pay the landlord).
The problem with making the agreement with your roommates is that the agreement does not include your landlord. Notwithstanding the agreement with the roommates the landlord could still sue you, in small claims court, if there were rent arrears, damages, etc..
Getting out of the lease altogether is more difficult and frankly it engages numerous legal theories that still haven't been ironed out in the Ontario Residential Landlord and Tenant Law context. Some people would talk to you about assignment and subletting--but in my view that is impossible with your roommates staying behind. Ideally, you would get the landlord to sign an N11 (Agreement to Terminate) with you and your roommates and then immediately enter into a new lease agreement with the roommates and perhaps a "replacement" for you. The issue often though is that this simply results in the landlord having less security (i.e. one less tenant to sue) or alternatively, it is a headache for the landlord and they are not motivated to go through all this trouble.
In any event, you should indeed contact the landlord and be forthright about what is going on. If you have an agreement with your roommates that you are moving out (or even if you don't but are indeed moving out), the landlord should be informed of what you are doing and that you are giving up possession of the unit (meaning you can't be pursued at the Landlord and Tenant Board for damages but only in the Courts as you must be in possession to be subject to LTB proceedings).
If your roommates are not straightforward with you and unwilling to commit to the relationship breakdown and a solution in writing be concerned with how that might be characterized in the future. One way to deal with this is to create a record and start writing to the roommates setting out the background and seeking replies and confirmation. If there is nothing satisfactory you could see about hiring a lawyer or paralegal to write the letters to your roommates for you. The point being to get your roommates agree that you moving out is appropriate and that they are assuming responsibility for your "share".
Hope that helps a bit. Roommate situations are poorly dealt with in the Residential Tenancies Act and hence there is no clear set of rules that applies to your situation.
Best of luck
Michael K.E. Thiele
Hi Michael, your blog is amazing! Similar to the above posts, I am breaking my 1 year lease and have a couple of months left in the lease. The landlord has agreed to a reassignment of the lease and I found a tenant who wants to take over the lease. The landlord informed me that I'd be responsible for any rent that is not paid by the new tenant, is this true? Also, when I signed the lease I gave the landlord LMR and a security deposit. Do I get both of these back? Does the new tenant need to now pay the security deposit in the same amount? Your advice would be much appreciated!
ReplyDeleteHi:
DeleteThe legal term is "assignment" and it means that you are transferring your legal obligations, as of the date of the assignment, to the new tenant (assignee). Your liability for things done or rent not paid remains in place up to the date of the assignment. After the date of the assignment you have no liability for anything "new" that happens after the date of the assignment. You do remain liable for anything that happened before the assignment.
The law is not so clear about LMR deposits. Most landlord's will often facilitate the assignment by letting the tenant who is leaving use the LMR towards their personal last month of rent and then they get a new LMR from the incoming tenant/assignee. This is for convenience only as you won't find the authority for this under the RTA nor any useful sections that address how this works. If the landlord won't help then it is up to you to get an equivalent amount of LMR from the new tenant who is taking over--otherwise the new tenant will have a free LMR credit and you will be out of luck.
You mention a security deposit. For the most part, security deposits other than LMR's are illegal. There are some exceptions--like key fob, garage remote deposits--but if it is a straight damage deposit it is illegal and you should indeed get it back. If you have proof of payment of the deposit you may wish to wait until the assignment paperwork is done, and you have your LMR from the new tenant, before raising this issue with the landlord. If security deposit is an illegal one (i.e. not one of the exceptions), you will be able to get an order for it from the Landlord and Tenant Board fairly easily.
Best of luck
Michael K. E. Thiele
Hi again.
ReplyDeleteSo, my situation with my landlord and roommates has worsened. The landlord was trying to make me get rid of my cat from the house because the roommates were complaining and making false allegations against me. My landlord has agreed to let me out of my lease in 60 days only if I bring my cat to stay with a friend until I find my own place. I figured that was reasonable, however, when I first moved in, I paid my first and last month's rent. My landlord is now trying to tell me that I forfeit my last month's rent even though nowhere in my lease does it state that if my lease is terminated prematurely, that I would forfeit it. So, instead of just having to worry about paying February rent and have my last month go towards March, she is telling me that due to the "inconvenience" I must pay another amount of my rent for March and she is going to keep the last month rent that I initially paid her as well. Is this even allowed? I hardly seems fair to me.
Also, my brother noticed that at the very beginning of my lease agreement, there is a typo on the lease term. It says our term is from September 2014 to August 2014. Does that make any difference at all in the lease?
Thanks,
Shae
Hi Shae:
DeleteThe word "forfeit" does not really exist in the Residential Landlord and Tenant law vocabulary in Ontario. In fact, where landlord's have tried to forfeit deposits the Court has been clear that this is not permissible.
I'm left a little unclear by your comment about whether you have your own lease and whether your roommates have their own leases. Is this 3 separate leases or 1 lease with three people on it? Please let me know as it makes a significant difference.
Michael K. E. Thiele
Hi,
ReplyDeleteIn my contract landlord crossed out the sublet allowance section,
can i terminate my tenancy based on that that sublet rejectance.?
Hi: I would not seek to terminate the tenancy solely based on the landlord crossing out a line in your lease. If you wish to sublet then you should write to the landlord and ask him for permission to sublet your rental unit. If he writes back and confirms that he will not allow you sublet your unit under any circumstances then he has indeed breached the requirements under the RTA and you then have a basis to ask the Board to terminate your lease.
DeleteGood luck
Michael K. E. Thiele
This comment has been removed by the author.
Delete1. We have to leave early and I tried to contact my Landlord , but none of their phones is answering , Also I don't have any address of them ,What I have to do ?
ReplyDelete2. For permission to sublet/assign do I have to fill A2 and send that to board or property manager or I can just send them text message and ask? [I can't access them]
Hi:
DeleteIf you have a written lease it should contain the contact details of the landlord and specify an method of communicating with the landlord. Otherwise, you make contact in the way that you have been told to do and the way that you have had success. If the only way is through texting then that will have to be the way it is done. Note that until you are provided with the legal name of the landlord and address for service your obligation to pay rent is suspended (s. 12(3) RTA).
The sublet and assignment processes are each different. If you need to leave and are not planning to ever come back then what you are looking to do is "assign" your lease. In an assignment you transfer your obligations under the lease to a new person and you don't have any more responsibility under the lease after the assignment. In a sublet you remain responsible under the lease even while a replacement tenant is there because you are coming back to the unit.
Presuming you want to "assign" the lease the steps you follow are in Part VI of the RTA section 95 and 96. The request to assign "generally" and "specifically" is made to the landlord. Depending on how the landlord answers (or fails to answer) determines your rights. For example, if a landlord fails to respond to a request to assign or refuses the right to assign then you have the right to terminate your tenancy on Notice (use Form N9). All of this is set out in section 95 & 96 and Part V1 of the RTA. It is not simply set out and you have to read through it line by line to follow the procedures---so, unfortunately, I can't give you tight summary that captures all of the essential points--you have to work through the sections of the Act.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
In continue of previous question:
ReplyDeleteThe contact information is our landlord in the contract is as bellow :
Name is correct ,
Home address: The rented home address,[or my address]
Phone : the realtor phone number and 3 other phone numbers [ realtor have the same numbers and none is responding ]
Fax : the realtor fax [ as mentioned he don't have any contact other than those phone numbers ]
How I can ask for assign permission ?
If I terminate my contract,Do I have to pay one month penalty? [the last month rent that I paid at beginning]
I called the board, and they told me I have to receive Legal Advice and they can't address my problem.
DeleteHi: It seems from the replies that you are posting here that the only way you will be able to move this forward is by hiring a lawyer or paralegal who is familiar with Landlord and Tenant law. As I have indicated to you, the sections of the RTA that you are trying to take advantage of are complicated and take a close reading to use properly.
DeleteIf you are on a month to month tenancy you would have to give the landlord 60 days notice with the last day of the term being the day before rent is due--typically the end of the month. Hence, if you were giving 60 days notice today, February 4, 2015, the earliest your notice could be effective is April 30, 2015.
If you are presently on a fixed term lease then your notice of termination would have to be for the end of that term. If that is a long time away you could seek to assign the lease and follow the process that is set out in the RTA--see section 95. That process, as I've explained, is complicated and you need to take the time to read the sections to do it correctly. That process is not easily summarized in a blog---and it is for that reason that you were likely told by the Board to get legal advice as they can't explain it very simply either. You may wish to see duty counsel at the Landlord and Tenant Board or go to a local community legal clinic. They should be able to help you and the services are free.
Good luck
Michael K. E. Thiele
Good day, Michael,
ReplyDeleteI am in Ontario and have a fixed term lease (1 year) expiring in 6 months. I found an assignee (unversity graduate with a stable job) who provided my landlord with his data for credit check and his IDs and work permits and residence permits.
I requested assignment of my unit in writing from the landlord where I clearly stated it is about assignment not sublet. At the end of my request I asked them to consider it also a sublet consent request (to save time).
They answered per email on 6th day, saying in one sentence, they "cannot sign my form subletting/assignment I provided them with". (there was no form , I gave them only letter with request by the way). And saying I d have to sign their sublet form , and reminding me I will remain the tenant and be responsible until the end of my lease.
I can not afford subletting because of the risks (I am leaving Canada for a long time) and the potential assignee was interested to inherit my lease conditions, so as the landlord disagreed assignee is no longer interested.
My first question is how should I interpret their answer- as a general refusal of assignment or as specific to named assignee? They do not specify. The only one thing they mention about assignment is this one sentence "we cannot sign your form for subletting/assignment you provided us with".
The other question is if I apply to the board wit A2 form (assignments and Subletting) and ask them to terminate the agreement will the landlord have to prove he run a credit check. Because I am almost 100% sure he did not. It is common practice of the landlord is not to allow assignments as I was directly told before requesting consent.
I am also thinking to request the consent for assignment in general, just in case. may be they will miss the deadline or answer directly.
What would happen if they will not give direct answer to general request or answer as if i requested something else?
Thank you very much in advance
Hi: From your comment you appear to have familiarized yourself quite well with the appropriate sections of the Residential Tenancies Act. I could perhaps provide a clearer response if I could see the documents/emails in question however it seems likely that I would look at the reply and see the same lack of clarity that you do. It is unfortunate that you mixed subletting with assignment in your letter to the landlord as that may be adding to the less than clear response from the landlord.
ReplyDeleteGiven that you proposed a potential assignee in your letter to the landlord it would seem that your assignment request must be considered as a specific request to assign to a potential assignee and not a general request to assign. The implication for how to proceed in the face of a refusal I think is clear to you from your comment. Does the landlord's reply email to you amount to a refusal to assign generally (s.95(3)(c)), or is it a refusal of the potential assignee (s.95(3)(b)). The first allows you to terminate the second requires an application.
In my opinion, and I am making certain assumptions about the clarity of your request to the landlord, a landlord has an obligation to respond to a tenant's request to assign in a fulsome manner--i.e. be clear and forthright and communicate fully with the tenant. The rather cryptic reply of your landlord, and what seems to be a simple refusal to do anything without further explanation, I think breaches the landlord's obligation to respond in a fulsome manner (note that this duty to respond fully is only in my opinion the landlord's obligation). Because of the lack of a proper response or further inquiry by the landlord--in the face of a clear request---I would interpret and argue that the vague reply does amount to a refusal to assign and that you are therefore entitled to terminate the tenancy as per section 95 without an application to the Board.
All of that being said, I think you are well aware of the complicated nature of these sections of the RTA and the certainty you are looking for is likely only to come after a hearing before the Board.
There is a certain risk in "asking again" as the landlord may respond in a way that allows you to assign. That, I think, would be unfair to you at this stage as you had an assignee who is now no longer interested in your unit. Perhaps you serve a Notice of Termination based on the refusal and if you are so inclined, apply to the Board for a determination of the issue.
Best of luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much for your reply , Michael
DeleteI appreciate very much your professional opinion,
After their unclear refusal email I have communicated with them over email further.
MY ANSWER to their email.
I wrote that I did not receive a clear answer to the question that I was looking the answer to in the first place if i am allowed to assign to a specific person.
*I asked them therefore to clarify whether we were talking about the same matter- my assignment request from Feb 4th 2015, because they have not referred to my request in their email directly. And besides they were referring to some sublett/assignment form I have never submitted.
***I also asked directly what is there refusal about:
-do they refuse in general OR
-do they refuse to assign it to potential assignee
THEIR ANSWER:
They ignored my first question (did not confirm that it was an answer to my request from Feb 4th 2015)
They ignored and did not answer the second question (about what exactly they are not allowing me regarding assignment)
Instead they wrote: you have consent to assignment. The only thing you need is to sign our subletting form and pay the fee.
MY QUESTION:
Correct me if I am wrong but after reading your answer I just realized that I may have already requested a general assignment in email quoted.It is the part where I ask them to clarify what exactly they are not allowing me regarding assignment. And they did not answer that part. They just keep ignoring the topic in emails and talk about subletting.
Can it be considered as not answering? SInce they do not answer to the important part of the email I mean.
Thank you in advance
Hello again Michael,
DeleteI visited a legal aid clinic, talked with a paralegal and she says that there is one line in my request for assignment that has ruined the whole concept.
Although I made it very clear my request and in later emails that it was about assignment of the unit, I nevertheless put the following line in the end:
"Please consider this request also a request for a sublet consent in general and as a sublet consent to potential asignee". I did this because I was considering both assigning and sublet. and wanted to decide depending on their answerr. I thought this were 3 different requests in one letter: specific assignment, sublet in general and specific sublet request.
But the paralegal means that in this case I gave the landlord a choice.And that because of that choice phrasethe fact that landlord is saying NO to assignment but saying YES to consent does not give me right to terminate my lease earlier. Because i gave landlord a choice and he choose sublet.
Paralegal suggested I make a new request for general assignment.
But I am not quite sure the situation is that bad. I was the opinion that no matter how many different requests about the same candidate I made, a NO answer to assignment part of the request will entitle me to the termination with 30 days notice.
I also believe that no matter how many requests I make they were able to consent to all of them and then it is up to me to choose how I am going to move out because of the assignment or due to the subletting. But paralegal thinks it is wrong.
I would very much appreciate your opinion a s a lawyer
Hi Michael,
ReplyDeleteI asked the landlord about assignment and they reply:
1 You may assign the lease to another person, as long as the new lease is for one year, and that (a) you get a satisfactory credit check (e.g. Equifax), (b) a proof of ....
Because they are adding their limitation.Can I consider this as a refusal?
Hi Michael,
ReplyDeleteI have a question regarding a commercial lease.. Typically in a lease buyout on a net lease is base rent and additional rent factored into the calculation for the remainder of the term??
Hi: Sorry. I only deal with Residential Tenancies on this blog.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
This comment has been removed by a blog administrator.
ReplyDeleteHi Michael,
ReplyDeleteI am a new immigrant and don't know the rules here.The basement rent was $700 for one person my wife and I accepted to increase the rent by $100.Although utilities and the Internet were all included in the contract, I paid $50 for the 3 months internet since I thought I might have huge download that intrigued him to come to us most of the time with a plan to get extra money .He is my countryman and knows all the limitations we had back in home and he is using them for his benefits, the use of internet was one of them(5 Gig usage would consider huge back home) . Seeing him is such a pain.The contract will end on May 16 and we don’t want to extend it.
My question is that if I notice him 8 days less than 60 days that we do not want to extend it ,can he make trouble for us ?
Hi Yousef: There is not enough information in your question to allow me to provide you with an answer. Are you renting by the week? month? fixed term? When you say the contract is ending May 16 that is an unusual mid-month termination which is why I ask the question about how you are renting the place.
DeleteFurther, does the landlord live in the building? Do you share a kitchen and or bathroom with the landlord? Are there any other relatives of the landlord living in the building? I presume when you say basement that it is a house. It is important to try to figure out if the Residential Tenancies Act applies to your situation or not. If the RTA does not apply then your notice obligations are in accordance with your contract and not the Residential Tenancies Act.
Did you agree to raise the rent by $100 after the tenancy started? Did your wife join you after you rented (or did you join your wife after she rented)? I ask this because the landlord is not allowed to raise the rent by $100 for an extra person in the unit--if the tenancy already started when the rent was increased. If this was done improperly you could get a refund of the increased rent charged to you. The extra payment for internet is also problematic.
IF (and it is a big IF), you are a regular month to month tenant, covered by the RTA and your term does indeed end on May 16, then you are required to give 60 days notice to the end of term (use a form N9--available on the landlord and tenant board website). You would indeed be short in the 60 days notice if you served it today. The landlord can take the position that your notice is short and he may demand proper notice. My inclination would be to still serve an N9 with the "short" notice and return possession to the landlord on the day that you want to move out. The RTA provides that where a tenant serves an invalid notice, due to short notice, that the Notice is deemed to be effective on the first legal date for termination. Because of this you don't need to worry about not having given Notice to Terminate at all. By leaving the unit on the date indicated in your "short" notice the landlord will be required to try to re-rent the unit to someone else (this is called mitigating losses). He needs to do this before trying to get the money from you. Given the possibility that he owes you money (increased rent and internet) and the duty to re-rent to reduce his losses the landlord may very well just let you go.
Lastly, I do recommend that you attend a local community legal clinic. If there are no clinics then perhaps speak with a lawyer or paralegal with experience in Landlord and Tenant law. My questions of you are critical to giving you proper information.
Good luck and I hope your next place comes with a better landlord than what you have experienced so far.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteGreat blog, I hope you might have a recommendation for my situation.
I am on a visa and I am not fully aware of the law surrounding tenants and landlords.
We were having difficulties with our apartment and met with our landlords to address the problems. We asked them if we wanted out of our fixed term contract could we do this and they stated we could so long as we give them 60 days notice. We therefore sent notice to our landlord on the March 2 2015 - stating that we would like to end our tenancy on April 30 2015.
They responded and said "If the tenant pays rent on a monthly basis, then the tenant must give at least 60 days notice, and the termination date must be the end of the monthly rental period" therefore our tenancy would end on May 31.
We made the landlords aware that we would not be using the unit for the majority of May as we would be travelling and would like to get another residence confirmed before we go travelling and could we come to an amicable agreement.
They said that we could come to an agreement and that they had already started to advertise the apartment for move in June 1 but could add May 1 as well. If they could find a tenant for May 1 we could move out April 30 but if they could not we would have to retain possession until May 31.
We offered to pay for a viewit.ca to ensure that the apartment received full visibility in the marketplace and increase the likelihood of the apartment being rented for May 1. The Landlords have confirmed that they have a new tenant for June 1 and we will retain possession until then.
We feel slightly aggrieved as we gave 60 days notice in good faith based on the following two sources of information that were provided to us by the landlord:
1. The landlords told us verbally, that we require to give 60 days notice.
2. We also checked our lease were it states that termination of contract "60 days prior to the termination of the Term (12 months commencing 1st September 2014 - 31st of August 2015), the tenant must provide written notice of his or her intention to terminate or extend the agreement for a said period of time".
In further communication with our landlord were we stated our concerns with how we have been treated, we received a response stating;
"On March 2, 2015 we received your email notifying us of your intention to terminate your tenancy early. On March 4, 2015, we agreed to terminate your tenancy early with the proper notice and termination date and asked that you resubmit your notice with the legally correct termination date in order to provide proper notice for terminating your tenancy early. To date, we have not received proper notice from you to terminate your tenancy early".
What options do we have? If our landlord has stated that we did not "submit your notice with the legally correct termination date in order to provide proper notice for terminating your tenancy early" did they act incorrectly and go and find a new tenant for June 1st with our original tenancy still in place?
Have we a right to apply for assignment until the end of our original contract - the end of August, or can we only apply for assignment until the end of May?
In addition,If they refuse assignment, can we move out on April 30 and use our last month's rent (that the landlord holds) as our rent for April?
Hopefully you can shed some light on our current situation.
Many thanks in advance.
Hello,
ReplyDeleteWant to discuss my situation with you... I got into one term fixed lease and completed that. On completion, with landlorad signed lease continuation agreement. now i want to break my 2nd term after 6 months, as i bought house. ...Can Landlord ask me for penalty or ask me for rent for remaining months.
Thanks
Hi: To answer what you are asking I would need to see this signed " lease continuation agreement". This is not a usual or normal legal document and in fact the landlord must have just made it up if that is the title of the document. If the document merely confirms that you are continuing your tenancy after the expiry of the fixed term then you are presumably on a month to month lease. Or, does the document purport to be a second fixed term lease of one year? The wording of the document is important. Also, it would be significant to know how it came about that you signed this document. Did your landlord tell you that if you wanted to continue to stay that you had to sign it? Were you told or were you aware that you had the automatic right to stay and continue your tenancy on a month to month basis without signing anything after the expiry of your lease? If you could provide some the details I would be happy to try to give some clearer direction. Alternatively, as you are buying a house, you will be needing a real estate lawyer to close the deal for you. Why not bring in your original lease and the lease continuation agreement to that lawyer and ask him/her the meaning of it and what kind of notice you need to give to terminate your lease. You can then discuss assignment, sublet, and other options in trying to terminate your lease early.
DeleteNote that even if you are on a month to month lease that you must give at least 60 days notice to the end of term. Hence, as we are coming up to the end of March you should be giving notice very soon if you are seeking to terminate the lease as early as possible (presuming a month to month tenancy).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you in advance for your expertise. My question is, I received a call from my landlord that he has sold my apartment on March 5th (I'm currently on a month to month lease) while at first we agreed that I will stay at the apartment until June 1st, I actually found another apartment quicker than expected so on March 11th (a week later) I had called him to say that my last day will actually be May 1st (to which he agreed, verbally) and my last month's deposit will thus be applied for month of April. At this point I had not received any official termination notice from him (i.e. N12 form), he called me again on March 20 saying that he in fact wants to enforce the 60 days notice from me, meaning I have to stay until June 1st which and that my last month's rent will be applied for month of May... even though we had agreed I am moving out May 1st. So now I am not sure what my next step should be, I have already agreed to a lease at my new apartment starting May 1st. If I was to fill out an N9 form stating my tenancy will be terminated as of April 30th do I lose my last month's rental deposit? Or if I feel out the N9 form and not pay April's rent what happens? Thanks again, and I look forward to your reply. Regards
My mother-in-law is 91 yrs old she made a mistake and signed a 2 year lease for a townhome in Renfrew in Oct/14 because of certain family problems it is imperative that she move back to Kingston she tried to give 60 days notice but was told that there must be a suitable tenant located prior to her release and that this process could take up to 6 monthes well this is creating a very stressfull and unhealthy situation for her.Is there anything that can be done about this
ReplyDeleteHi:
DeleteThis is a difficult position to be in. Because your mother-in-law is in a fixed term lease she is required to complete the term before giving a notice of termination. In circumstances where people need to leave early the RTA allows for the option of assigning the lease to someone else with the landlord's consent. It sounds like the landlord has indeed given consent to assign the lease.
Finding a tenant to assign the lease to can be very difficult. Ultimately, if circumstances demand it and your mother-in-law simply moves out she should make sure to return possession of the premises to the landlord. The landlord has a duty to mitigate the losses (minimize the rental income loss that your mother-in-law isn't paying) under section 16 of the RTA. This means that the landlord has to take steps to re-rent the unit. Your mother-in-law could then become liable for rent that was unpaid pending the landlord re-renting the unit. That amount is not unlimited. Court's normally find that if a landlord mitigates properly that a property should be re-rented within a certain amount of time. That "time" depends on where the property is, how desirable it is, etc..
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteWe found a tenant through a relator and signed a lease to rent for one year. But got to know from the relator that the tenant wants to break the lease before move in. The 1st and last month rent was given to the relator when signing the lease. We moved out from the house and we stopped showing the house after we signed the lease. What are tenant's and landlord's legal liabilities if the tenant breaks lease before moving in? Thanks in advance for your valuable advice
Hi: It will be worthwhile for you to get legal advice from a lawyer on this and have your documents reviewed. Generally speaking though, the lease is valid and it takes affect from the date of the lease. The rent become due and owing in the normal course. Because the tenant has not taken possession, and it appears that they will not take possession, you should confirm with the tenant that they want you to find another tenant or find out if they will be seeking to assign their lease to someone else. If you find a new tenant to replace this tenant you would agree to terminate the lease (Form N11) for the date of the new tenant's lease. You have an obligation to mitigate losses and reduce the amount that may be owing from these tenants in damages.
DeleteHope that helps
Michael K. E. Thiele
Hello Michael
ReplyDeleteIt's me again. I think I should tell you more about details and hopefully my case will benefit your reader too. On my lease has 2 name which is me and another person who I have been dealing with for every thing about my rental. I paid my first and last month to her. I paid my rent to her. Everything I contact her. I asked her about the landlord she said the owner is her family member. I asked about the received of the rent 3 times. First she said she will ask the landlord. Then I asked again and didn't get any reply. I asked if I can have some body take over my lease. And the answer is no because I am not the owner I can't sublet my basement. She said she will find herself but if she can't find I have to resposible the rent until the end of my lease. However, i read my lease it said if the landlord find the new tenant I have to pay fee as one month rent. And when she said she will take care of finding new tenant she didn't mention that fee. I afraid at the end she will force me to pay that a month fee. It's not fair since she didn't let me because she want that money? All these had done by texting via cell phone either refuse assignment or asking for received any of them I mention above. Can I have my text as an evidence to prove that I get refuse for assignment and then I can give form N9 and move out the date on N9? Do I need her agreement to approved my N9 or after I give 60 days notice I can move out either she like or not? Can I still have my received for the rent I paid her? Please help me. I would very appreciate that.
Hi Jimmy: There are elements of what you describe that sound completely illegal to me. The extra fee that the landlord wants to charge is not acceptable. With respect to what is written in the lease I think you need a lawyer or paralegal to actually go through it, line by line, to point out what is legal and what isn't. The part about assignment (general request versus specific), is fairly complicated. You seem to have a good grasp of the concepts and I urge you to read section 95 & 96 and follow it closely. I think it is important to make a very clear request to assign the rental unit and to get a very clear response. If consent is not granted then you may proceed as the RTA permits in serving an N9. The key is for the communication to be very clear.
DeleteI don't see a problem in dealing with the same person that you have dealt with the entire time in renting the apartment. She may be acting on behalf of another person but given her authority to deal with the property I think it reasonable that you deal with her until you are told otherwise by the owner.
Michael K. E. Thiele
Thank you Michael
DeleteThis is a big help!! I appreciate your helping. I hope my landlord won't chsr me that fees without mention that to me and think that my responsibility to read the lease. However, I won't pay that fees because I feel that my landlord take advantage on me. Luckily, we have law to protect our rights.
Our landlord agreed to allow us to assign our apartment. We found a potential assignee, who wished to apply. The landlord refused to accept a (normal) cheque as a deposit from the potential assignee, requesting deposits to be paid by money order or certified cheque only.
ReplyDeleteDoes this count as refusing assignment, and therefore can we give them 30 days notice to end the tenancy (N9)? i.e., Move out by June 1st, and get our last month deposit back (and/or use it for May).
Thanks,
Ryan
Hi Ryan: This is very strange. The assignment process is simply to determine whether the prospective assignee is credit worthy and acceptable as a tenant (credit check and references). There should be no deposits as the lease already exists (i.e. the contract is in force) and deposits have already been paid. The only payment due is the next rent payment on the rent due date. The LMR (Last Month's Rent) has already been paid by you (and if one hasn't been paid the landlord can not now require one).
DeleteThe refusal of a "normal" cheque is a problem because 1) the landlord shouldn't be asking for a deposit and 2) even if the landlord can get a deposit he can't require guaranteed funds for ongoing rent (which is the only kind of payment an assignee can be asked to make).
Is it a refusal? I don't see this as a direct refusal. Instead it is making a demand that dissuades a prospective assignee from applying for the unit. So, look at section 95(5) which provides: A landlord shall not arbitrarily or unreasonably refuse consent to an assignment of a rental unit to a potential assignee under clause (3)(b). Because it is not an outright refusal to assign I don't think (on the facts disclosed) that you can simply serve an N9 (based on the refusal to assign sections). I think you will need to apply to the Board under section 98 to prove that the landlord arbitrarily or unreasonably withheld consent. You make the argument based on the landlord's demands. If successful in the argument, you can ask for termination of the tenancy under section 98(3) RTA.
Michael K. E. Thiele
www.ottawalawyers.com
Ok here's our issue. We are trying to assign our unit. The landlord agrees. The landlord wants the assignee to provide first month's rent deposit along with their application. After their application is approved, they want the assignee to pay us our last month deposit back, to finalize their application.
ReplyDeleteWe're having a hard time finding someone to assign, because it looks like they're paying two deposits up front, i.e. they are paying the landlords the first month rent, and they are paying us the last month rent, both before they move in on the 1st of the month.
Isn't this requiring two deposits? Is this allowed?
Thanks,
Hi: The mechanics of this process seems messed up. The only issue for the prospective assignee is whether or not the prospective assignee passes the credit check. The assignee would not give a first month deposit because the assignee is taking over an existing and ongoing lease. The rent for the upcoming month is only due on the first of the next month and that is when it should be paid. As for the last month deposit this is more complicated and the RTA does not provide any real guidance on how to deal with this. The LMR (Last Month's Rent) deposit is for a future rent period. In theory you would like to get the deposit back as it will be used to pay a month that the assignee has in the future. The RTA is silent about what happens to the LMR in an assignment. Hence, you could ask the assignee to pay you the equivalent sum and the assignee gets to keep the LMR on deposit with the Landlord plus the accrued interest. Another option is that the assignee pays the landlord the LMR and the Landlord pays you the LMR (seems more complicated). Another possibility is that you give the LMR to the assignee or you give half the LMR to the assignee as an incentive to take over your lease.
DeleteIn a normal renting situation--brand new lease, a tenant does pay the landlord first and last month's rent--sometimes with the application to rent. So what you are characterizing as two deposits is not really unusual as to quantum. However, given that an assignment is the transfer of an existing lease the landlord is not entitled to ask for a first month's deposit as this is requiring rent to be paid before it is due. The landlord may only accept or reject the prospective assignee based on the credit check and that decision has to be reasonable.
Good luck
Michael K. E. Thiele
Question: is a tenant on a month to month lease allowed to assign their apartment, if they wanted to leave before the required 60 days notice? Or is assignment only for tenants on a fixed term lease?
ReplyDeleteThanks
Hi: There appears to be no reason why a month to month tenancy could not be assigned. Section 95 of the RTA (the Assignment Section), oddly enough refers to the assignment of a "rental unit" as opposed to assigning a tenancy agreement. This section gives a tenant the right to seek to assign a rental unit and no reference at all is made to whether the tenancy is on a month to month or on a fixed term.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello,
ReplyDeleteMy boyfriend and I are trying to get out of out one year lease (6 months to go). We want to move because we have a lot of problems with the unit. There has been a cold problem, leaking windows that result in peeled paint and dripping on the radiator which causes a burning smell when turned on. We do not want to step on anyones toes but we do not wish to stay in these conditions. The "contractor" who was only a painter came in and by own omission put a "bandaid" on the problem and that it would keep coming back unless the cause of the old was fixed. Thank you for your time and input. Anna
Hello Michael,
ReplyDeleteMay i have your advise on the following:
i am a landlord and having one tenant causing some problem, so i am trying to end the 1-year fixed term lease sooner. and i plan to use the excuse of turning the room for my own use, so it won't upset the tenant.
on our lease agreement (we both signed), either party shall give 60 day prior notice to end the term.
However the RTA says if landlord wants to turn to own use on a fixed term, has to wait until 1-year term ends.
in this case which shall we go with? our lease agreement or the Act?
your advise is much appreciated!
Angie
Hi Angie: A word of warning about "using" the landlord's own use as an excuse (FORM N12). The RTA only allows you to serve an N12 in good faith for the purpose of residential occupation by the landlord or as permitted by the RTA. Using the N12 as a tactic to get possession can attract some serious consequences. A tenant can bring a bad faith application against a landlord who serves an N12 in bad faith (often based on the Landlord not moving in after the tenant moves out). Further, if a landlord is relatively unlucky the enforcement branch of the Ministry of Housing will take notice and lay quasi criminal charges against the landlord under the Provincial Offences Act--yes it can result in a prosecution with a heavy fine as a consequence of a conviction.
DeleteThat being said, I know you likely got advice from Landlord friends to proceed in this way. It is in my experience a common way for landlords to get rid of tenants they don't like. Be aware though, just because it is common does not mean that it is legal. In fact, it is very illegal which is why I can never recommend this as a strategy.
So, the preliminary point aside and to your question. The RTA trumps your lease. This means that you have to wait until the end of the fixed term as set out in the RTA. You don't have a choice between the two different time periods. The Residential Tenancies Act provides that where a term in a lease is contrary to the RTA that provision is void.
Good luck.
Michael K. E. Thiele
thanks a lot Michael!
Deleteactually as i read over the act, my situation that the tenant and i live in the same house--share kitchen and bathroom, is exempt from the act. so the 60 day notice specified in the agreement shall apply.
but i am wondering if there's any law provides if i need could end the term with less than 60 day
notice?
thanks so much!
Angie
Hello Michael,
ReplyDeleteI own a property in downtown Toronto which is listed for lease and sale. I just had an offer to lease which I am considering. If I lease the property for 1 year and then get an offer to buy during the lease from someone who wishes to live in the suite, would the new owner have to wait until the lease is up to move into the suite, or will the new owners have to right to break the lease so that they can reside in the property. If I have a closing within 3 months of the offer to buy, can I give the tenant notice so that the new owners can move in as soon as they take possession?
Joanna
Hi Joanna: This is a great question to ask BEFORE entering into a lease with tenants. If you sign a lease for any fixed term (i.e. usually a year) then the tenant's have the absolute right to finish at least that term regardless of a purchasers or landlord's desire to move in the unit. Hence, if you sign a one year lease (or any other length) and then you sell the property, the purchasers would not be able to move in until the at least the end of the lease. Note that whenever tenant's are in possession there is a risk that the Board may refuse to terminate and evict either at all or perhaps not on the timeline that the landlord wishes (authority for this is in section 83 RTA).
DeleteYou could rent to tenants on a "month to month" right off the bat. That would allow you to give 60 days Notice of Termination at any time. Of course, tenant's may resist the termination if you should serve them with a Notice of Termination within a month or two of them moving in. Hence, if you rent on a month to month you should likely tell your prospective tenants that you are selling and that if the buyer wants to move in that you might be serving a Notice of Termination early. This may make it difficult to rent the place but it may be preferable to find a flexible tenant than springing the sale (& eviction) on unsuspecting tenants who will resist eviction for purchasers own use.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI've been reading through the questions and responses here and, wow, you're still giving them two years after the fact. Thanks for that. It's a really great resource to those of us without law degrees.
Anyway, I have a question that's related to what I have come to understand is the very murky and unresolved issue of joint tenancies.
I share an apartment with four other girls. Four of us are on a yearlong lease that commenced September 1, 2014. As it so happens, I am moving to the UK on the 23rd of July. The landlord is currently carrying out renovations (completely illegally as we were served no notice, given no times or proper information, and yesterday he and the workmen were here well beyond 8 pm, but that is a different issue altogether) and has stated his intent to raise the rent. I'm trying to find a way to replace myself without ending the current lease because I don't want him to be able to raise the others' rent beyond this year's guideline, which, from my understanding, he would be allowed to do because initial rent negotiations aren't subject to regulation.
Now, I've understood from your answers that you do not believe that joint tenancy can be ended by one person without it ending for all, and that assignment/subletting cannot occur without all names on the lease vacating the property. There are a number of particulars to our situation, however, that I am hoping you can clarify in terms of this issue.
1. As I mentioned, only four of us are on the lease. The fifth person sublet from one of the previous tenants over the summer and then was unsure how long she would be staying. I can't remember the details, but if I recall correctly she signed some sort of letter in November relating to her status in the apartment. The lease the four of us signed has a clause in the added appendix stating that "Each person making up the lessee guarantees the rent of each other person making up the lessee". Given that the latter fact implies a joint tenancy but the former implies a tenancy in common (I believe that's the term?), would the fifth person's situation mean that the joint rent responsibility clause has been made void by action and we are operating under a tenancy in common, that we have unknowingly been operating under a new tenancy agreement since the formalization of the fifth person's status, or simply that somehow someone is in breach of the tenancy agreement and it either will or will not become an issue at some point?
2. Similarly, one of the clauses in the appendix reads "Any change in the lessee requires the advance written approval of the lessor". Does this imply that a change in names on the lease could be made without ending the original agreement? Or is that an unenforceable clause trumped by the law (whether the law is clear in the matter or not?)
3. The matter of what happens after the set term of the lease is up aside, I am leaving the country a month before the lease's term is up. Your understanding of joint tenancies is that I essentially cannot do that in any formal way. From what I have understood, however, extra occupants/roommates/guests/visitors do not have to be approved by the landlord and can stay as long as they want. We have found someone to take over my room. If I leave and they stay in what would then, legally, essentially be a spare room, would it be legal for the other four girls to essentially pay my part of the rent, as a joint tenancy would stipulate, and then the new girl basically give them each that bit back? Would that be some sort of illegal sublet or would it just be making use of a loophole in the law?
(continued from previous comment for character count issues. Sorry for the lengthiness)
ReplyDelete4. If there is no option for me leaving without the tenancy agreement ending and a new one having to be signed, is there any way the others could insist on separate agreements? For two of the current tenants this will be their third year here, but because the apartment is for five people and we are all at an age where our lives are constantly in flux, it is highly, highly unlikely that the group is likely to remain the same from year to year. I believe the landlord is aware of this and I want my current roommates to be offered the rental increase/non-eviction protections that I believe to be the current law's intent (marred somewhat by the lack of clarity on the issue of joint tenancies, which I find particularly problematic given that the vast majority of tenancy agreements would involve more than one person), especially given that the renovations he is using as the reason for raising the rent have been carried out so entirely without consideration of either our needs, comforts, or the law.
Thanks a lot,
Sasha
Hi Sasha: Your questions, I think, highlight how confusing residential tenancies can become when there are groups of unrelated people who rent for the purpose of sharing the expenses of living. Putting the nature of the relationship in writing and then providing a description of that relationship as members of the group permanently leave, leave temporarily, wish to terminate their responsibility, etc. is something that isn't easily done under our current legislation.
DeleteI will seek to avoid a treatise and try to stick to the issue that concerns you most. You are seeking to leave a month early. You can do that of course, and in my view you are liable for the rent to the end of term, subject to your co-tenants/roommates finding a replacement for you. That replacement person can be a roommate of the remaining tenants and pay rent to the roommates in an amount equivalent to what you had been paying. This is not a sublet or assignment and is legal. However, this roommate is not on the same footing vis a vis the landlord as the actual tenants and does not have the same RTA rights. To put this tenant on the same footing, the landlord should be asked to agree that this person is a tenant and provide the usual particulars to the landlord about this person. The landlord may agree or not. "Adding this person to the lease" is how it is often phrased but I think what is likely happening is that the old lease is being terminated and a new lease with the new person is being formed with the identical lease terms as the lease that was just terminated. Characterized like this, your name is removed and ongoing liability ends, and the new lease includes the new person who takes on all the liability as of the date of her name being added to the lease.
If the landlord is happy with the tenancy and the general tenor of the relationship I expect he would agree to this "swap" out as it keeps the rent flowing, no turn over costs, etc.. If the landlord wants to impose silly terms for the "swap" then you would just keep the new person as a roommate for a while and then decide whether to move out or not.
In my view of things (and I say it is my view given the conflicting views), you terminate the tenancy not by leaving the rental unit. You terminate the tenancy for you and your co-tenants by serving a Notice of Termination (Form N9). If you don't serve that Notice of Termination then the tenancy continues, whether you are there or not. This may be a nice thing to do for your co-tenants but it does expose you to liability should the co-tenants not pay rent or severely damage the place.
I hope that provides some guidance on a path forward for you. Getting too caught up in the joint tenancy and tenants in common analysis in the face of what some authors are calling statutory tenancies (i.e. forget about the joint tenancy and tenants in common concepts) is likely to lead to inaction altogether.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much! Like I said before, these answers you're giving are so great to us laypeople. I really appreciate it.
DeleteIt's hard to get a read on our landlord as he doesn't have the most friendly bearing, and I've been put on edge by the renovation situation this week, but I do believe he's happy enough with our tenancy that he won't be too difficult about swapping me out for someone else. It seems the best option, especially as your initial advice in the original post is to simply approach the landlord in the first place.
Thanks again, and have a great weekend!
Sasha
Hello
ReplyDeleteWhat would you recommend in this case: The building is not ready and in the 1 lease it says that if the buidling is not ready after 2 months of the move in day the lease may be terminated by either party. So far they have said that the delay will be 1 month but I'm 99% sure it'll be 2-3 months. I'd like to terminate the lease now and find something else. Move-in day was Sept 1st and now has been pushed to Oct 1st. I fear they will then push it to Nov 1st after October hoping to keep us hanging on until it's ready. Can't find anything in the act legally telling me that I can leave immediately due to the delay.
Hi Michael,
ReplyDeleteMy Girlfriend and I have been off a lease and paying month to month rent.
At this time the rent is too much for our financial status to keep paying for.
I understand that a form N11 would help terminate earlier than the 60 required days of notice.
But most Landlords/Agencies won't even acknowledge this form. Even in a financial strain.
We wish to terminate for July 31st so that we do not have such a strain any more and it's about a 6 week notice.
With us possibly out by Mid Month.
Is there a way to approach this without seeming like a completely rude person(s)
thanks
Hi Michael,
ReplyDeleteWe are currently trying to sell a condominium rental unit (unoccupied), but we are getting to the point where if it doesn't sell in the next 2 months, we have to find a tenant. My question is: If we sign a lease with a tenant, but then get an offer to purchase (to someone who will use the unit as a principal residence), can we cancel the lease before it's even begun? We would return any monies provided to us (last month's rent as a deposit), and would not expect any additional money from the tenant.
Thanks
Hi: The short answer is "no". The tenant will be entitled to take possession of the rental unit in accordance with the lease agreement. You would only be able to terminate the lease on 60 days notice using a Form N12. I suspect that you would have great difficulty finding a traditional tenant who would risk such a quick notice of termination that they might not even get settled before they have to move again. The lease you sign, if it is for a one year term guarantees the tenant at least one year of occupancy even if you do sell the unit and the purchaser wants to move in. If you sign a month to month lease (i.e. no fixed term), I think you would should be up front with the tenant about the risk of a quick termination. If not, you might find that the tenant refuses to move, will require you to file an application at the LTB to evict, and they will resist that application on the basis that it is unfair (i.e. if you did not inform them of the intention to sell and evict quickly). The Board could find such an argument attractive under section 83 (discretion section).
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI recently moved out of a rental unit. I had signed a one year lease and provided the landlord with my notice to end tenancy (form N9) 60 days prior to the end of my lease term. However, I ended up moving out early because I couldn't stand my neighbours and I was planning on moving in with a friend somewhere else. So I cleared out all my stuff, cleaned the place, left the keys, and was out the door with a month and a half left on the lease. I notified the landlord that I moved out but that I was still going to pay the remainder of the rent. I came back a few weeks later to pick up mail and noticed that someone else was living there. I guess by moving out and leaving the keys I returned possession to the landlord, but is he still entitled to my rental money over the period he was collecting from someone else? My rent payments were never in arrears. Thanks for your time.
Hello Michael,
ReplyDeleteYour blog is so informative! Your valuable knowledge and insights are very appreciated!
My husband was threatened and tricked into signing an N11 a month ago, but we were only shown it 4 days ago by the landlord's representative.
Are we able to give the minimum 10 day vacanCy notice to the representative so we aren't forced to endure more threats and harrassment?
Thank you in advance for your insight.
HI: An N11 is an Agreement to Terminate a tenancy that is signed by both a landlord and a tenant. This means that the tenancy is terminated as of a specific date. You don't have a right to terminate the tenancy on a different date unless there was some other kind of notice served. The 10 day notice you are referring to arises from other Notices of Termination that may be served by the landlord. What other Notice of Termination did you receive?
DeleteMichael K. E. Thiele
www.ottawalawyers.com
There was no other termination notice served. Just the one my husband didn't know he was signing. There is tons more to this story, and I think we'd better seek legal advice. Thank you for your time.
DeleteOur landlord told us he wanted to move into our unit and do reno to combine our unit with the unif downstairs. He had us sign an N11 form and now I see our unit and the unit downstairs online for rent. I just realized that the n12 form existed. Can we report him or take legal action? We moved because there was black mold in thd basement. A wall doen there collapsed snd I asked for air quality testing since ive been having asthma attacks this year. They said if the gut it they would move in... but the images dong show much reno.
ReplyDeleteHello Mr. Thiele,
ReplyDeleteI had another question... if the original lease was signed by both my husband and I, does the N11 need to be signed by both/all tenants as well? And I actually have the video of the landlord making my husband sign what was supposed to be a consent to view property, but was actually an N11. Would this help us at all?
Melanie: There are many who take the position that a lease signed by two tenants can not be terminated by N11 unless it is signed by the same two tenants. The law on this question is unsettled. My personal view is that one signature is all that is required--but the contrary argument exists and there are some Board decisions that say two signatures are needed. If you have video of the misrepresentation--and the misleading---and it conclusively shows what you are saying then yes it is very helpful. The N11 becomes worthless.
DeleteGood luck
Michael K. E. Thiele
Hello Michael,
ReplyDeleteThank you for such a helpful and insightful blog. I have a tenant who is a few months into his year long lease (payments at the beginning of each month) and who has decided to end his tenancy early. He has provided me with an N9 with a little over than 60 days' notice but with the beginning of the month as the termination date (which I only now realize is not valid as per the RTA). 1) What is the penalty to him if he has no valid reason for ending the tenancy early? I can't seem to find a straightforward answer to this from the RTA or the LTB website. 2) It is now less than 60 days from the termination date. What is the correct form for him/us to complete (IF we decide to come to an agreement for him to end tenancy early)? From the answers above, I see that accepting the incorrect form might cause problems for me later on. Thank you so much!
Hi: Your tenant does not have the legal right to terminate his tenancy except at the end of the fixed term of his one year lease. He could do that now by serving you with a Notice of Termination (Form N9) but the termination date would have to be for the end of the one year term.
DeleteIf the tenant terminates and leaves the unit (and stops paying rent), while still in the one year term and no deal is made with the tenant to accept early termination then the first thing that happens is that you would re-take possession of the rental unit. The RTA requires you to mitigate your losses meaning you would try to re-rent the unit to someone else. You need to actively market the property and keep track of your attempts and efforts. Once you are successful in renting the property out you will know how much rent you lost and how much the re-renting process cost you. These expenses represent your loss and this is what you would claim from the tenant. If you know how to locate the tenant then you could send him a letter asking him to pay by a specific date. Failing payment, you could choose to sue him in the small claims court (presuming the loss is under $25K). Of course, the tenant could try to argue that you were in breach of your obligations and that he was entitled to leave. Unless the basis for leaving is screamingly obvious, these arguments will carry little weight as the tenant's remedy for whatever issues he may have is to first complain to you and then apply to the Landlord and Tenant Board. The tenant generally does not have a right to simply walk away from the lease.
If you were going to make a deal with the tenant and wanted to agree to terminate the tenancy as of a specific date you would use the N11 form.
Hope that answers your questions and provides some guidance. Note that the legal path changes depending on what you or the tenant does so be sure about the implications of your offers and statements to the tenant.
Michael K. E. Thiele
www.ottawalawyers.com
** I HAVE A QUESTION
ReplyDeleteWe gave our notice to end the tenancy for September 30 ( appropriate amt of time; the 60 days ) it wasn't an issue
my question is
We are unable to get the key to the new place until the 1st of October due to the current tenant unable to move to her location until the 30th , We require our end date now to be oct 1 being our move date ? Our landlord isn't willing to work with this situation and is giving us till end of the 30th to move out
What is our solution here , is it against the law to stay one extra day simply due to the fact that we have no other choice ?
Hi: The law is rather vague about this one. This is very strange of course given how important moving in and moving out are in the entire landlord and tenant law process. Most landlords and tenants simply agree to work things out. Absent agreement, you should be aware that you are entitled to occupy your premises until midnight of the 30th. On the 1st (the following day), the landlord could apply to the landlord and tenant board for an order evicting you and after about a week or so the landlord would get an order evicting you and then he could file that order with the sheriff who would come by in a week or so to evict you. Of course you will have been gone for weeks and weeks by this point so the entire exercise would be pointless. In short, and practically speaking, there isn't much that a landlord can do if you don't actually take off until the morning of the first of the month. If your presence interferes significantly with the incoming tenant then the landlord could try to take you to task for this (sue in small claims perhaps). But if you are gone rather soon I don't see a strong case for the landlord. That being said, by 12:01 a.m. you are overholding in your unit and technically you shouldn't be there.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, thanks for a great blog. We have a tenant in a condo who is only a few months into his tenancy of a 1-year fixed term lease. However, he just informed me that he plans to leave the country for another job over the next couple months, with plans of not returning. He wishes to sublet or assign the unit. I think assigning is the correct course of action. What we'd like to know is: is there a better and legitimate option? Can I agree to terminate the lease early using form N11 if he will find us a suitable tenant to enter into a new 1-year fixed term lease, at his own expenses of realtor fees, credit checks, unit turnover cleaning/repairs, etc? We will of course screen the applicant ourselves. Is it legitimate for us to ask the current tenant to cover our losses in rental income (such as time gap between his vacancy and new tenant taking possession), turnover costs, realtor fees, etc? We just feel it's cleaner this way, when there is a lease between new tenant and I, instead of dealing with a sublet or assignment. Thank you in advance for taking your time!
ReplyDeleteHi: I am a fan of simply terminating an existing lease and entering into a clean new fixed term with a new tenant. It is not the process contemplated by he RTA but I do think it is better. You may use an N11 to terminate your existing lease. Whether you are able to charge fees for rental losses, realtor expenses, turnover costs, is a matter for discussion and debate. Some will say no as they will be unauthorized charges under the RTA and hence illegal. I like to think of an agreement as to the expenses of termination as the consideration required to terminate the fixed term lease. There is a cost to ending the lease and an agreement to terminate is a contract that requires consideration to flow both ways--i.e. you have to and are entitled to get something out of the deal to terminate.
DeleteGood luck
Michael K. E. Thiele
This comment has been removed by a blog administrator.
ReplyDelete
ReplyDeleteHi Michael,
This is in regards of part 6 ,section 95.
I am into 1st month (just started off)of my fixed one year lease and due to family support has to downgrade plus various other reasons i decided to end tenency.
I spoke to my landlord regarding whole situation but landlord said agreement is for 1 year and that i am responsible. I requested i would like to "assign" this lease, But landlord turned down that offer and said she would like to do that herself.
After this conversation landlord suggested and gave me forms where tenant requests to terminate the lease agreement.which i submitted along with a certified bank draft of couple hundreds dollars and handed over to landlord of building.
Next day, i sent out an email of what we have discussed i.e. landlord does not conscent/agree to "assign" the unit and that building management will be the one who will decide who to assign as new tenant.
I have not yet got any response of this email (pleaae note i exchange emails with landlords in the begining when i was looking to rent)
P.S
the landlord has told me that i'll pay for october and last month rent will go to November. Anything after if they are unable to fill, again i'll be responsible.
Please note i'll be leaving this place as per notice is end of October.
Please advice what steps i should take to make sure to prove this agreement as null and void. Please note i have a serious family issue for which i need to support them or they are in grave danger.
Thanks
Su