Tuesday, 30 July 2013

Kicking out the Boarder or Roommate

This week has brought some interesting questions about the obligation that a person has towards a roommate or boarder.  The rights of a boarder are not likely to be covered by the Residential Tenancies Act.  In fact, there are a number of landlord and tenant like relationships that are specifically exempted by the Residential Tenancies Act and those are set out in section 5 of the Act.

The fact scenario that I got this week was from a gentleman, in his 70s, who was renting out the second bedroom in his two bedroom apartment to a roommate.  He brought that roommate into the unit to help meet the rent and pay for some of the utilities in the unit.  Unfortunately, that roommate has started to  abuse him by calling him names, threatening him (verbally) and entering his room without permission even though the understanding is that neither of them would enter each others' room without knocking and permission.

The gentleman who called was increasingly upset by the behaviour of his roommate and he wanted to evict him.  What could he do was the question.  The fact is, that in this scenario, the roommate is not a protected tenant under the Residential Tenancies Act.  This is both good and bad.  Because the RTA does not apply the gentleman who called could very quickly demand that the roommate leave the unit on a permanent basis.  The "bad" is that there is no framework or established procedure for how you go about getting rid of the non-protected roommate.

Does the gentleman who called me owe the roommate any kind of "fair warning" or notice that he is being kicked out of the apartment?  This is a difficult question to answer and unfortunately, the best answer is that "it depends".   My analysis of "it depends" turns on the fact that  the roommate is entitled to reasonable notice to quit--which means a reasonable notice to get out of the rental unit even though they are not a tenant.  This principle has recently been affirmed in a case out of the Small Claims Court called Boudreau v. Landry 2013 CarswellOnt 8895.

The question in non-RTA covered tenancies will be what is "reasonable" notice to quit.  How do you define the word "reasonable".  When you think about it for a while it becomes clear that a reasonable notice will not be more than the legal notice required to be given to a tenant who is protected by the RTA.  Using RTA notice periods as a guide for what is "reasonable" you have 10 days for illegal acts involving drugs, 20 days of other illegal acts, 20 days for interference with reasonable enjoyment, 60 days for landlord's own use--or purchasers own use,  14 days for non payment of rent and 120 days for conversion demolition or repair.  Then of course there is also the tenant's notice of 60 days for monthly tenancies.

Notwithstanding the guidance that the RTA provides in its Notice periods; in the circumstances of the situation I've described above I was comfortable recommending to the client that "reasonable notice" was immediate termination and removal from the apartment.  In effect, I felt that in the circumstances, zero notice was appropriate.  My reasoning was that I could not envision a  Court requiring an elderly gentleman to live in circumstances where he was being threatened, verbally abused, and his personal bedroom was being invaded.  Presuming of course that the behaviour of the roommate could be proven, I felt that it was reasonable to make the roommate leave immediately without giving him any notice or warning.

You can see that what constitutes a reasonable Notice to Quit is going to be very dependent on the facts of each individual situation.  I think the factors that are relevant will include the reason for terminating, the rent that has been paid, the terms of the agreement, whether the manner of termination of the agreement had indeed been contracted for, the behaviour of the roommate, and the prejudice and risk suffered by the actual tenant or landlord owner if the roommate is allowed to continue in possession.

What is clear from Boudreau v. Landry is that the Court will impose significant financial penalties on landowners--who rent out rooms to persons and who have a non-RTA covered tenancy and tenants---if the manner in which they deal with them is not fair, reasonable, and even handed.  Just because a tenant does not have the protection of the Residential Tenancies Act does not give the landlord carte blanche to do what they like to that tenant.

If you find yourself needing to evict a non-RTA covered tenant from your property you will find that the Ontario Landlord and Tenant Board is unable to assist you.  Your only remedy is to see if the Police will help you in removing the roommate or boarder from the premises and if not, you are left with applying to the Court for a Writ of Possession to be enforced by the Court Enforcement Office (i.e. Sheriff).

Michael K. E. Thiele
Lawyer
Ottawa, Ontario
at

332 comments:

  1. Unknown17 February 2014 at 02:01

    Hi had a question, I am a home owner and i have a roommate, now things have been on the bad said due to out side damages. I warned him if he doesnt pay the price for the damage that i will evict him when rent is due. Now he says I have to give him 2 months notice but he has no contract, reciepts and his ID is still registered to his parents house, not mine that his currently living at.

    Thanks
    Kirk

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    1. Michael K. E. Thiele17 February 2014 at 05:19

      Hi Kirk: Just to be clear, I presume this is a house in Ontario, that you own it, that you share a kitchen and/or bathroom with this roommate and that he is not in a self contained apartment within the house. If this is accurate then the usual notice periods required under the Residential Tenancies Act do not apply to you. Even if they did, a notice for Damage (Form N5) is 20 days with the tenant requiring to repair or pay to repair within 7 days after the service of the Notice. The 60 days your roommate is referring to is the non fault notice period that a tenant must give a landlord to terminate a monthly tenancy. In Ontario, a landlord is not allowed to terminate a tenancy on 60 days notice just because they want to. A landlord must have cause to terminate or meet the specific conditions in the RTA for not for cause terminations.

      Your arrangement with your roommate appears to be exempted from the application of the Residential Tenancies Act because you, as the owner, share a kitchen and/or bathroom with the roommate. As such, your relationship is governed by the contract between you. Your contract can be written or oral. In the absence of any terms dealing with termination (i.e. you never talked about how the relationship could be ended), the key will be reasonableness. What is reasonable will depend on the circumstances---for example, if you caught the guy doing something seriously illegal in the house no one would question immediate eviction without notice (i.e. throw him out immediately). For less serious things you have to ask your self what is reasonable. You can use, as a guide, the timelines under the Residential Tenancies Act--though of course you are not bound to them in any way. For negligent damage the RTA contemplates Notice of 20 days. Your risk for unreasonable behaviour is that the roommate sues you and make a strong case that throwing him out, on short notice, caused him damage--such as missing work, loss of stuff, hotel expenses, etc..

      For the damage he caused, if he does not pay voluntarily you should make sure to collect evidence of the damage (photographs), get repair estimates, and be ready to sue him in the small claims court (presuming the damage is under $25K).

      Good Luck
      Michael K. E. Thiele

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  2. Anonymous27 February 2014 at 21:57

    Mr. Thiele,
    I have a similar situation in which a boarder became intoxicated and began threatening my elderly mother-in-law who lives in our rental property. He was taken away by his father and his possession picked up several days later.

    His father is now insisting that we owe him half a months rent since we asked him to leave mid-month. Are we legally obligated to return the money?

    Thanks so much,
    Sandy

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    1. Michael K. E. Thiele28 February 2014 at 04:20

      Hi Sandy: From the facts you provide it isn't clear whether the "boarder" is a tenant as defined under the Residential Tenancies Act or not. Do any of the section 5 exemptions apply--meaning this would be a tenancy but for the specific exemption under the RTA? Whether the RTA applies or not is a relevant consideration. If the "boarder" is a tenant then the "boarder" has the legal right to remain in the unit regardless of your demand that he move out and regardless of the threat to your mother in law. To get him out, legally, you would need to file notices and an application to the Board. At the Board, he could argue that it was a bad night, that he wants another chance etc.. Maybe he would win a conditional order allowing him to remain---it is possible. Right now he is out of possession because his father must be a decent sort of fellow and removed his son at your request--without an argument. Technically though, if the rent is paid up and he is a tenant under the RTA--he has a right to come back and take possession--he can do this until you get possession lawfully. Now you might say that the fact that he has moved, and all of his stuff is out, is suggestive abandonment or an agreement to terminate? True except that no unit is abandoned where rent is paid up. Also, one would expect that any "agreement" to terminate would involve a return of unused rent as one would not expect a tenant or boarder to agree to leave earlier otherwise. In this regard, I think the boarder's father has a rather logical argument (from a legal perspective) for the return of the unused rent. Assuming that this is an RTA covered tenancy my inclination is to suggest returning the unused portion of the rent upon getting the boarder to sign a form N11 (Agreement to Terminate) stipulating the day on which he left as the last day of the tenancy. That gives you lawful possession. I appreciate that there are arguments in favour of keeping the money--especially moral arguments---and that the Boarder should not benefit from his own misconduct. I think these arguments fall apart on the basis that the Boarder did not have to move when you wanted him to. If the choice is not to repay--then at this stage you have an obligation to seek to re-rent and mitigate your losses. If you re-rent within the time that rent is paid--you must refund the difference to the Boarder.

      The other possibility is that this is not an RTA covered tenancy at all. If it isn't, the relationship is covered by contract and the obligations are set out in your contract. Is it written?, oral? What do the terms of your contract provide in the case where the "boarder" is asked to leave for misconduct? It's likely that your contract--even if written--didn't consider this as a possibility. In that case, you are going to have to think of this from a "what's fair" perspective---looking at it from both the boarder's side and your side. I don't have enough facts about the circumstances to analyze it fully. Your obligation is dependent on the weighing of those facts--so the answer is not a simple yes you must pay the money or no you don't have to pay the money. The answer is "it depends" and that all turns on how a judge looks at the facts. If I imagine some additional facts to the ones you provide I can envision a situation where a Judge would order you to pay back the money---and also a situation where a judge would say you were right to keep it. In this regard, to get an answer, try to take a look at it from both sides. The strongest argument in the Boarder's favour is that he left (because of his father), upon demand after an incident that you did not like. He could have resisted and demanded to stay for the period of his paid up rent--but he didn't. That favours his demand for repayment.

      Best of luck.

      Michael K. E. Thiele

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  3. Larry25 March 2014 at 23:53

    Hi Michael,

    Your blog is very insightful. I hope you can assist me with the following and provide your professional opinion. I have a few questions.

    I was way for a week from my boarding room, and my landlord enter my room without my permission to close a window in my room. I usually have it open so I have some air in the room even when I leave the room. I forgot to turn my electric heater off as well. Upon seeing that my landlord moved all my things out and when I came back from my vacation, he told me I am no longer welcome and he changed the locks.

    Because I was away, I didn't get any text message from him and he did give me a written notice until April 15 to vacate around mid March. Since it is now March 25 and I basically have had no notice and he claims it is within his rights as the RTA don't apply to him. I paid rent up to this month ending March 31.

    Is he legally able to do the above?

    I have a written standard RTA agreement between the landlord and I. At the back, it was check off he needs to give me 3 months notice. Will that still apply?

    He said he will give me back my security deposit within 24 hour notice but he may charge me for his time to move my things and also change the locks. Is he able to do that?

    Your comments and knowledge will be much appreciate it.

    Thanks,

    Mike

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    1. Michael K. E. Thiele26 March 2014 at 05:55

      HI Larry: I'm sorry that you are having this trouble. My comments here are not professional advice as I only provide legal advice upon being retained. The information here is of a general nature specific to the law on certain topics. So, if you intend to pursue this further, you should indeed seek legal advice from a lawyer or paralegal (or if in Ottawa from me!). That being said, I'm please to comment generally about the circumstances you describe. Presuming that this residence is in Ontario we would assume that the Residential Tenancies Act applies to your relationship with the landlord. A Boarding relationship may indeed be covered by the RTA depending on how the relationship was originally formed. However, given the landlord's statement that the RTA does not apply, and the likelihood that you share a kitchen and/or bath with the landlord (and have done so since the commencement of your lease) then your relationship is likely exempted from the application of the RTA (by the RTA itself in the exemption sections). If your lease is not exempted because of sharing a kitchen and or bath then there are many other exemptions (see s. 5 RTA) that may apply.

      Presuming that your tenancy is not covered by the RTA you are now looking at a contractual arrangement. Your relationship may be considered a licence revokable on the terms in the RTA agreement that you have signed with the landlord. The RTA agreement that you have signed is quite valuable as the terms of that agreement--though not enforceable under the RTA--may indeed be used to inform the terms of your contractual relationship with the landlord. Hence, your landlord is bound to the terms of that contract in the same way that you are. What is different is a bit different than in an RTA tenancy is that you do not have the same security of tenure that an RTA covered tenant has. Your landlord may still be liable for breaching the contract with him--and have to pay you damages--but in the interim you may indeed suffer eviction from the landlord's premises as there is no effective way of regaining possession of the room once he evicts you (though in theory you could try getting a Court order--though that is impractical).

      The key in all of this will be to document what is happening and get the landlord to confirm what he is doing in writing. Emails are great, text messages etc.. Take some photographs of the room (if you still have access?) and make sure to retain your RTA agreement. Send a confirming letter that you are being evicted and frankly, if you can get a lawyer, law student, paralegal or someone to engage the landlord on your behalf that would be helpful in getting the facts and positions down on paper. Absent professional help--can you get a third party to speak to the landlord for you--that too would be helpful from an evidentiary perspective.

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    2. Michael K. E. Thiele26 March 2014 at 05:55


      Once the chops fall where they do, you may consider suing the landlord in small claims court for the damages you suffered as a result of the termination (contrary to your agreement). This may be moving costs, increased rent, etc..

      With respect to the "charges" that the landlord wants to levy. Just because your lease isn't RTA covered (presumably) does not mean that the landlord may act with impunity. He isn't permitted to just do what he likes--as the absence of RTA coverage does not imply lawlessness. Your relationship is covered by a contract or licence. The terms are set out in that contract. Does the contract give him the right to charge you etc.? If not, then presumptively he can't. Where the contract is silent, reasonableness is the usual way that a Court would imply the terms of your relationship.

      If you do decide to sue (if you can't come to terms with the landlord), there will be other issues to think about that could indeed increase your claim. I'm intrigued at the notion that the landlord would sign an RTA agreement with you knowing that the RTA does not apply (your comment implies this set of facts). Should your landlord be held to the RTA standards given that he signed up for them in your agreement? Is there a misrepresentation in the landlord's conduct that was designed/intended to mislead you into thinking you had security of tenure? Some of these issues may be actionable on your part. In this regard, make sure to get legal advice as soon as possible and make sure to take legal action in a timely way.

      Best of luck, I hope it works out for you.

      Michael K. E. Thiele

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    3. Larry26 March 2014 at 08:18

      Thank you so much Michael. I highly appreciate your timely response.

      I am just gonna hope he gives me back my full deposit. My rent there is only $400/month, so I don't think in a practical standpoint I may pursue this in a small claims court as the cost in doing so will outweigh the benefits.

      However, that is considering I get the full deposit back. Even still if the landlord decides to withhold $50, I don't think there is any remedy to me as with the practically of enforcement vs the benefits.

      Again thank you very much for your comments.

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  4. Unknown6 April 2014 at 14:26

    Hello Mr Thiele,

    We have a very specific circumstance that I was hoping that you could give me some advice!

    My boyfriend any myself, both students, moved out of our nice house and into an apartment. In order to keep this house, we decided to rent it out room by room to fellow students under similar contracts to what we had with the owner. Since we are very new to the situation, I am not sure how we should proceed if (god forbid) we ever need to evict someone. From what I understand, we would fall under the "licensee to licensor" relationship, however the difference remains that we do not share a bathroom or kitchen with our "tenants". Due to this, I don't think we are considered roommates; are we landlords? Does the RTA apply to us?

    We are currently having an issue with a student being disrespectful to his roommates, as well as consistently paying his rent late. Though we don't feel it is necessary to kick him out, it has brought to light the limitations of our position in this situation.

    When we contacted the Landlord Tenant Board recently, they claimed we, or our sub-tenants, were not covered under the RTA. However when we got legal counselling over the phone awhile back, we were very determinedly told that we were "landlords," regardless of sharing a kitchen or not. At that time, the legal counselling very specifically went against the licensee/licensor idea, as we were then living with the roommate whom we had hoped to evict. Also, when the police were consulted they continued to apply RTA rules of eviction, claiming not to know anything at all of the licensee/licensor concept.

    Since we are operating the situation now without living at the house, we are confused as to what legal grounds we should draw on given any issues arising in the future. Ultimately, with the authorities clearly not all operating on the same page, (as a legal consultant tells us one thing, the police another, and the Tenant Board yet another) we do not understand how we should proceed with regards to any evictions or other ensuing issues.

    Overall, we do not intend to breach any rights and would hope to provide our sub-tenants with the best treatment possible through acting accordingly with any problems that may arise. We do intend to implement a roommate agreement, but do not know where our role would come into that situation; as we are not technically their roommates, nor their landlords.. Could you maybe help me to understand what we are exactly, in this circumstance? :)

    I appreciate your time, this blog has been very helpful for us.

    Sonja

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    1. Michael K. E. Thiele7 April 2014 at 11:52

      Hi Sonja: An interesting situation. You don't mention whether you have the owners consent to do this or whether the owner knows about it. I'm assuming here that you were originally tenants in a house (with a landlord) and that the tenancy continues. You moved out and started re-renting the premises as a landlord. Is it with the intention to reoccupy the premises at some point? Without having some more answers from you the best I can do is provide you with my "first impression" of your situation (and hence this is a view point and not legal advice). It seems to me that you have transferred your tenancy to third parties--presumably without consent of the landlord. Without consent, all of your "renters", if you want to call them that, are unauthorized occupants. They do not have a status (in my opinion) other than as unauthorized occupants that can be evicted as soon as the real landlord finds out about it. The real landlord (i.e. your landlord), once he discovers their presence in the unit (and your absence), must decide to bring an application to evict the unauthorized occupants. If the landlord does not do this, then with the passage of time, your "renters" are deemed to be tenants---of your landlord (and not you). The tenancy will be deemed at law to be assigned to them and you are quite possibly out of the picture. There are some interesting issues here with multiple tenancies--on different terms--within the same residential complex--in what I presume is an unlicensed rooming house? Regardless though, the first step is to see if the landlord takes action to evict the unauthorized occupants.

      The are other ways of looking at this--but the foregoing is my first impression as to your situation.

      Michael K. E. Thiele

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  5. EC12 April 2014 at 16:19

    Hi Mark,

    I was wondering if you had any advice for me. I am renting a two bedroom house (my name is the one on the lease), and I rented out the 2nd room short term (march 1st to april 30th )to someone recently. (After getting permission from my landlord to do so).

    Long story short, the roomate I rented to was committed by a friend last week, removed from the house while I was at work, and I found out from the police when I came home.

    During the week where she was in the hospital she called me and I asked her to find somewhere else to stay, she had previously been living with parents in town, but said we could arrange for her things to be removed over the next few weeks. She told me she had nowhere to go until april 30, and that I couldn't just kick her out and I needed to give 30 days written notice (she said she has spoken to a lawyer).

    I allowed her back in to the house on condition that she sign a written contract that listed the rent to be paid, the confirmed move-out date, with writing to the effect that if during that time I wanted to end the agreement for any reason I would give 7 days written notice to her. She paid some of the rent down, and said she would get me the rest two days later, I agreed.

    Three days later, no payment. Things have been quiet, but if she does not pay in the next few days I would love to give her 7 days notice - what are my rights if I go ahead with this? What if she refuses to leave? What if she says she has nowhere to go? I do not think she is not dangerous to me or the house, but I am not comfortable with her here and only let her back to avoid conflict. Should I just tough it out until april 30th?

    We share a kitchen and she is not on the lease so I know this doesn't fit under the RTA, so very pragmatically what are my options? Also, if she does pay but does not leave on april 30th, what are my rights in this situation.

    Your opinion would be greatly appreciated.
    Thank you

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    1. Michael K. E. Thiele12 April 2014 at 17:05

      Hi Mark: On the facts you describe this person is not a tenant in the unit with you. You are the only tenant and she is a "room mate". She has no rights under the Residential Tenancies Act and has no security of tenure. If she has any rights they are governed by your agreement with her as a "contract". Where the terms of the contract are unclear or uncertain a Court would typically analyze the situation from a fairness perspective. You have no statutory obligation to give notice to her and there are no real rules that apply. Absent any agreement at all, she is nothing more than a guest. With some money changing hands perhaps you may be considered to have granted her a licence (revocable) to be in the house with you. Ultimately, her only remedy against you is to sue you if you exclude her from the property unfairly and contrary to some bargain that you have struck with her. Generally speaking, any Court looking at this would look at your conduct to see if you are "fair". Fair is not the same as "generous" and no one imposes that on you.

      What this all boils down to is that in appropriate circumstances you can require her to leave immediately, without notice--change the locks, call the police etc.. Where the circumstance do not warrant such immediacy and she has paid you to occupy the space, then a Court might say you were a bit too hasty and award her damages. Context, as most things in life, is everything.

      Hope that helps.

      Michael K. E. Thiele

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  6. Unknown14 April 2014 at 11:28

    Hello Micheal,

    I have a roommate who has been living with me but is not on the lease. Since he has come into my home he has disrespected me almost every day, disrespected my children (whom are with me every second weekend) by smoking pot in his room in the early afternoon while my children and I were just outside his door, he has stolen from me (I fed him for over a month with the intent of him paying me back which he is now refusing), his friends have stolen from me (2 cartons of cigarettes right out of my freezer), has come into my room without permission, gone into my children's bedroom without permission, has had all these shady characters in and out of my house and i recently confirmed that he is dealing pot and all of these friends coming over (without my permission) were his clients and not his friends, he has also ruined some pots and pans, my computer speakers and some decorative towels i had in the bathroom. I am wondering what my rights are to evict him because he is a serious threat to both my children and I.

    Thank you for your help,
    Lindsay Regnier

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    1. Michael K. E. Thiele14 April 2014 at 16:40

      Dear Lindsay: The circumstances that you describe are horrible. In Ontario there is no legislated protection for roommates. The relationship is goverend by contract. Given what he has been doing I would have no hesitation in excluding him from the property without notice at all. In fact, you should call the police, report what has happened and ask them to attend at your home to assist you in excluding him from the property. The police can then also warn him to never return and you should trespass him from your apartment (meaning he can be charged if he should return). I can't imagine any Judge having any sympathy for this roommate. His activities put your own tenancy at risk and you could be evicted for the drug dealing that he is doing. On top of that, the risk to your children is simply not acceptable. You should coordinate with the police and the landlord to have this person removed from the property and the locks changed as well.

      Best of luck.

      Michael K. E. Thiele

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  7. Unknown20 April 2014 at 07:58

    Hello Micheal,

    My roommate and I moved into our apartment a year and a half ago at the same time. Her name was on the lease, it was a year long and since it ran out we have been living month to month. I pay the larger amount of rent because I have the bigger bedroom. We live in peace and do like each other, however I got a text yesterday saying she intends to take over the apartment and would like me to be out in just over 2 months.This is a week after I quit a toxic job knowing I had a cheap and stable home. The reason she gave was that she would like the space to study and will be getting assistance from her parents to pay all the rent.

    What I am wondering is can she legally kick me out of my home, (simply because she would like a lifestyle change) because her name was on the lease that is now ran out? I have not done anything illegal or damaged the apartment. I am wondering what rights I have in this situation now that the lease has ran out and we are on month to month.

    I appreciate any wisdom you can share on this topic.
    -Sarah

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    1. Michael K. E. Thiele21 April 2014 at 06:41

      Hi Sarah: The first question to answer is whether or not you are a tenant as defined in the Residential Tenancies Act. If you are a tenant, as defined in the legislation, then you have many rights including the right to occupy the rental unit. If you are not a tenant, but only a roommate of the tenant, then you have fewer rights and in my opinion, no right to continue to occupy the premises if the tenant is asking you to move out. The signed lease is certainly a significant factor in determining whether or not you are a tenant. Does the wording on the lease reflect your understanding of what your relationship with your roommate was? If, before she asked you to leave, some had asked you or your roommate whether you were a "tenant" what would you have said? If you approached your landlord right now, what would the landlord say you are? While the lease may not list you as a tenant that is not determinative of your legal status. Did you pay rent to the landlord directly? Did you give Notice to the landlord, receive Notice from the landlord. Did you get rent receipts in your name? After looking at all of these factors it may still be unclear whether or not you are a tenant. In that case you would need the Landlord and Tenant Board to decide (which is trickier than you might think) or alternatively a Judge. If you are found to be a tenant then you have the rights and obligations of a tenant including the right to occupy.

      If you are not a tenant but instead are considered a roommate, the Residential Tenancies Act (for the most part) does not apply to you. Specifically, you do not have any security of tenure and no right to occupy the premises under the RTA. In such circumstances, your rights are contingent on the contract between you and the tenant. If that contract does not exist or needs to be implied from the circumstances then there will be a whole lot of uncertainty. The only help I could give you is to suggest that you view the matter from the perspective of "reasonableness" as an objective third party would view it and use that as a guide as to what to do.

      Michael K. E. Thiele

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  8. Anonymous5 May 2014 at 13:23

    Hi Michael, interested to hear your POV on a situation my roommates and I have been dealing with and how to go about having a roommate evicted under Ontario Residency Laws.

    I currently share a house with 4 others (5 people total), a mix of working professionals and mature students. One of our roommates has consistently caused issues over the last 4-6 months. Repeated noise complaints by having guests over until early hours of the morning, an intoxicate friend who tried to break into our house at 3am, neglect of tenant duties (cleaning, etc.), excessive drug use. Other roommates are prepared to complain to our landlord about this roommate but are unaware of what the process would be to having them evicted.

    From my understanding if we as a house are trying to evict one of the roomates, there would at least have to be a written record of all such incidents prior to engaging the landord about evicting a tenant. And even at that point, it would be difficult for our landlord to legally evict without hard first hand evidence (damage to the property, etc,).

    Let me know what our next steps should be if we want to ensure the proper channels are followed in order to evict a roommate.

    Thanks,

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    1. Michael K. E. Thiele5 May 2014 at 15:10

      Hello: This is a difficult situation. May I presume that the troublesome roommate is also a tenant on the lease? Is it a single lease or are there a series of individual room leases between the landlord and each tenant (i.e. like a rooming house?). Before being able to provide any suggestions to consider I would have to know the nature of the relationship between the roommate and the landlord and the roommate and the other tenants.

      Presuming that you are on a single lease I expect that you would have to approach the landlord and seek his cooperation in terminating the tenancy of everyone in the house. Upon such termination--and eviction--the landlord could then enter into a lease with the tenants again--but without the roommate. The reason for this is that the Board does not (as far as I am aware) have the jurisdiction to carve up a tenancy agreement and terminate the tenancy of individual tenants and evict them while still maintaining the over-all tenancy agreement in favour of a smaller group of tenants. The termination and eviction would have to be for the entire tenancy.

      If there are individual leases (rooming house style) then the landlord would be able to terminate and evict this particular roommate on the complaints and evidence of the remaining tenants.

      Gathering evidence and having sufficient evidence to satisfy the legal requirements under the Residential Tenancies Act to terminate a tenancy is always a burden for the landlord. Without your evidence (or that of your roommates), the landlord is unlikely to be successful.

      Have you tried speaking with this roommate and informing him that the house has decided they want him to move out? You could mention that unless he agrees to move out the house will seek the assistance of the landlord in evicting him. Most "normal" people when confronted by a group of roommates who do not want to live with them generally agree to move out in a reasonable amount of time. If he refuses in the face of a common front asking him to leave you can be sure that you will need your landlord to agree to terminate the tenancy of the whole house (or the whole house gives notice of termination)--and then either re-rent the place as a group (without the roommate) or have everyone go their separate ways.

      Michael K .E. Thiele

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    2. Chantal2 June 2014 at 22:41

      Hi Michael, I just wanted to thank you for all the help you're giving. You're really helping a lot of people. Thank you.

      Delete
  9. Anonymous5 June 2014 at 23:53

    Hi Michael,

    Your blog is really helpful as I have some roommate concern hope you can give me some advice.

    I am a landlord and rent a two bedroom apartment to a single and notice recently she got a roommate in the apartment. As one day when I was there the roommate ask me to open the door for him as he forgot the key, but I told him we don't have permission to do so. As the time the tenant came back and told us that she give the permission to let him into the appartment. As I notice that the person not in good temper so I warn her that I don't have any relationship with her roommate as to us he just her guest she need make sure her roommate follows all the “behavioral” rules which we put in the lease agreement. She should be responsible for the roommate behavior in the rental property. But she said: "As to the matter of his temper and behavior, that is not my responsibility. I am not a mediator and I will not act as such. If you have any issues with him, you have the right to call the police."

    My question here is I am OK with the tenant but I just worry about she bring some troublesame roommate is out of control. What my right here and what the tenant should responsible? What I can do in this situation?

    Thanks!

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    1. Michael K. E. Thiele6 June 2014 at 08:44

      Hello: Your tenant is, in law, responsible for the behaviour of her guests and roommates. If the roommate or a guest causes a disturbance, commits an illegal act, or does anything that would warrant the termination of the tenancy if the tenant did it herself then you may serve the tenant with the appropriate Notice of Termination. It is entirely possible that the tenant could be evicted for the behaviour of her roommate. Also, it should be noted that she would be financially responsible for any damage caused by her roommate.

      Hope that helps

      Michael K. E. Thiele

      Delete
    2. Anonymous6 June 2014 at 12:48

      Hi Michael,

      Thanks for your quick reply. An other question is as in our lease agreement we had state clearly that only list persons can occupy the Rental premise. Do I have the the right to limit her to get a roommate?

      Thanks,
      Rong.

      Delete
    3. Michael K. E. Thiele6 June 2014 at 14:23

      Rong: No you don't have that right--regardless of what it says in the lease. Mike

      Delete
  10. Kathy H11 June 2014 at 19:13

    Hi - I am POA for my father's home. My father has been in long term care for just over a year now and in hospital for several months before that. My brother who is Brain Injured was in the house along with another man who is also on ODSP. This person was of great help to my father during the last year in his own home - and was also of assistance to my brother. I told him in February that as soon as my brother was placed in an assisted living place that he would have to find other accomadation. He has known for about 2 years that he would have to leave. He has not found accommodation yet for himself and his dog. During the time that my father and brother were in the house - they were all 3 sharing 1 bathroom and 1 kitchen. He has now been in the house almost 3 months on his own - but pays a very minimal board. I am trying to sell the house - but he is somewhat volatile and can't show it with him in it. Do I have any rights?

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    1. Michael K. E. Thiele11 June 2014 at 20:29

      Hi Kathy:

      Certainly you have rights in your capacity as the POA for the owner of the property. The question is whether you have rights as the agent for the "landlord" as defined in the Residential Tenancies Act or whether you have the rights of a property owner who has a guest or trespasser on their property. Your rights are very different depending on which of these legal definitions apply. Which one it is depends on the "facts" and absent agreement you will need to have a determination of whether the RTA applies to this situation. How you choose to proceed is best answered by your lawyer--yes you do need one. The current occupant does not seem to be in any rush to vacate the premises and he has every reason in the world to interfere with a sale. Even if you do find a purchaser--it is likely that the purchaser will want vacant possession of the unit---so you need to get this fellow out sooner than later. If he isn't a tenant then you can demand that he vacate and enlist the police if necessary. If he is a tenant then you need to make yourself familiar with the N12 form (Notice of Termination for Purchaser's Own Use). Either way, it is important that you get this cleared up soon.

      Best of luck.

      Michael K. E. Thiele

      Delete
  11. Unknown20 June 2014 at 11:03

    I have a question. I let my friend move in while she was going through a divorce, she has my whole basement, but we share a kitchen and bathroom. Her behavior has become increasingly dangerous, she often gets drunk while on prescription anti depressants as well as smoking marijuana, then become verbally aggressive bordering on violent. I knew she smoked marijuana and drank but told her from the beginning the behavior was not to be tolerated in my home. I want to evict her and have infact told her she must vacate before or by july 1 due to her unsafe and argumentative behavior especially in front of my young son. She is refusing to acknowledge the eviction. How can I have her removed from my home?

    ReplyDelete
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    1. Michael K. E. Thiele20 June 2014 at 19:06

      Jennifer: It is time to call the police and ask them to attend to remove a person from your home. This person is a guest and you can ask guests to leave. She does not live in a self contained unit. I presume her dope is not medicinal and hence it is still illegal. Ask the police to help you remove her. Based on what you describe and absent any circumstances that I am unaware of, the police should help you remove her from your home on the spot. The RTA does not provide rights to guests of tenants or owners vis a vis the tenant or owner. Reasonableness is the key in dealing with non-protected tenants under the RTA--but in the circumstances of illegal activity, threats of violence, I don't think anyone would doubt that immediate removal is reasonable.

      Michael K. E. Thiele

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  12. U.24 June 2014 at 01:57

    Hi, I have a question.
    I live in Ontaria. I am a tenant and I have my name on the lease. I have a roommate, whose name is not on the lease. When we moved in, my landlord made the tenancy agreement with me and he will be paying the amount to me. Our landlord also charged us the first and the last month's rent.

    My roommate and I decided to sublet our rooms, when we are away for the summer. We arranged a formal and written sublet agreement. This agreement requires the subletters to pay first and last month's rent and a security deposit. Then, my roommate found a subletter and he informed me about his eligibility. His subletter signed this agreement with me for 2.5 months (1st of June and 15th of August, 2014) and his subletter made the payments to my roommate. However, it turned out they did not honor this agreement (probably he did not want to deal with finding another subletter; therefore knowingly and intentionally misinformed me about it). I feel like I am being lied, misinformed and my continuing tenancy would be in danger due to his reckless, willful and intentional actions.

    I gave him his 60 days notice (as of 23rd of June, 2014). His subletter is moving out on 15th of August and I asked to him to stay until 30th of August.
    Now he wants the last month's rent, when we moved in. Is he entitled to it? If so, how much of it?

    I want him out and gave him his 60 days notice. Now he wants his deposit (last month's rent). How much of it he is entitled to and when?
    thanks

    ReplyDelete
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    1. Michael K. E. Thiele24 June 2014 at 11:49

      Hello: Thanks for your question. Unfortunately the facts you provide are incredibly confusing. My assumption is that you are the tenant in an apartment and you have a roommate. You rent the entire space and are liable to the landlord for the entire amount. Your roommate shares the expense with you and pays you part of the rent. In the summer, you and your roommate, from time to time rent out your individual rooms to third parties. Your relationship with your roommate is contractual (based on an agreement--either oral or in writing). What happened recently is that your roommate found a someone to rent his room for the summer (you remained in possession of your room). That person either did not pay the rent or paid the rent to your roommate. You remain liable for the full amount to the landlord but have not been getting the share from your roommate.

      If this is an accurate description of your situation then there was no legal sublet of your unit. The person who is staying in your roommates room owes you or your roommate rent. If he fails to pay he does not have the protection of the residential tenancies act--meaning, in a reasonable way, you may require him to vacate the unit without any lengthy notice.

      Your roommate remains responsible to you in contract for his share of the rent. You remain liable to the landlord for all of the rent. If your roommate and his sub-roommate are not paying their share then you can require them to leave the apartment. When they are gone you will be responsible solely for the rent until you get a new roommate.

      Michael K. E. Thiele

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  13. Anonymous30 June 2014 at 01:03

    Mr Thiele
    I have a situation I would appreciate your advice. I own a townhouse in Ontario where my son lives while he attends university. I have 2 tenants who are his friends and each has signed a lease agreement with me. Both of them are not living in the townhouse during the summer. One student (with my permission) sub leased his room to a female student for the summer. They had a sub lease agreement. I rented the empty room to a couple as well as the basement living area to a working male for the summer. Both signed lease agreements with me. They were for 1 year with the rent reduced for the summer 4 months. Both of them also signed a notice to vacate after they moved in stating that they will move out at the end of August. The couple gave me 4 post dated cheques for each month instead of first and last month rent as stated in the lease. The basement tenant said he wishes to sub lease for the summer for the reduced rate and wants to go on to lease from September on. I told him I preferred him to rent for the summer only. He gave me first and last month rent based on his summer rent rate.
    After they all moved in, I received many complaints about safety, privacy and parking. It started with the basement tenant found out someone locked his door to outside porch while he was not in his living area, he blew his anger at everyone. Everyone was scared and stayed inside their rooms. (A point I want to clarify is that my townhouse has a walk out basement and the basement is not enclosed for privacy) Then there were verbal complaints about the basement tenant's girlfriend around the townhouse and stayed overnight too often. Every time when I emailed the basement tenant about his problem, his reply would contain foul language and stated it was false accusation and threaten to take action against me. Finally we got a face to face meeting and addressed all the issues. I sent the meeting minutes to all the tenants stating the solutions of all the issues. The basement tenant replied with the same threaten tone stating that I had been unfair and disagree with the solutions.The female student who sub lease from my regular tenant found the basement' tenant has concern behavior and wanted to move out ASAP. My regular tenant also found the basement tenant is difficult to deal with and express concern of disturbance during the school year. My son was very upset and stressed since the basement tenant incident of locked door. The basement tenant had a temper explosion couple weeks ago again. I am prepare to terminate his tenancy early. I know because my son lives in the unit my case would not fall under the Landlord and Tenant Act. I want to know what should I do next? Can all the emails that I received and sent to him serve as warning? How much is reasonable time to give to ask him to leave? What reason should I use will best suit this situation? Does the female student need to give 60 days notice to my tenant as stated in the lease agreement? I am very confused

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    1. Michael K. E. Thiele30 June 2014 at 11:08

      Hi: This is one of those situations in which you need to retain an experienced landlord and tenant lawyer or paralegal. It is admirable that you seek to understand the legal landscape and interspersed in your description you have clearly identified legal issues---i.e. permission to sublet, self contained unit, son occupying residential unit. Ultimately, if the residential complex/residential unit is exempt from the RTA then it is not possible for you to confer jurisdiction on the Landlord and Tenant Board--even if the other party would agree to it.

      Many of the behaviours you are describing would allow the service of an N5, N6, N7 Notices of Termination. But again, only if the RTA applies. Are you certain that you are RTA exempt or that the entire residential complex is RTA exempt? Is an A1 application appropriate? If you are confident that you are RTA exempt then requiring people to leave the complex generally falls to being reasonable in the circumstances. Of course, when you have belligerent tenants who take a menacing posture like the basement tenant you describe you might find that simply asking them to leave won't work. In such an instance you could see about getting police help--though the police might not recognize the nuance of the RTA and may say they will do nothing without an Order from the Court. Maybe they would assist you with an A1 Order from the Board that clearly states the RTA does not apply? If not, you will need a Writ of Possession from he Superior Court of Justice---through an application process that will very likely require you to have a lawyer (unless you are an exceptionally clever lay person).

      When the RTA does not apply you need to be ready to explain yourself to a Judge if the person you evict sues you. Having the emails, statements from other affected occupants, and whatever evidence you can gather that explains what you put up with is very useful. You will also need this evidence for the Court application (for a writ of possession) if the basement tenant refuses to move out and the police refuse to evict.

      Again, I urge you to get counsel. You have a number of different people going in and out of this residential complex and you are using RTA language, leases, and rules, in a situation where you might be exempt. Even if you are exempt, you may have left these sub letters with the impression that they are RTA covered which may also cause you problems. Experienced counsel or licences paralegal should be able to take you through the process of getting rid of the basement occupant more cleanly that you could yourself.

      Best of luck.

      Michael K. E. Thiele

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  14. Anonymous9 July 2014 at 17:21

    Dear Mr. Michael Thiele,

    I am a student at Western University in London, Ontario. I rent a two bedroom university apartment from Western. I am the only tenant on the lease. In February of this year I welcomed a new roommate. She is not on the lease and we have no written agreement between us. We had an oral agreement that she would be staying until the end of August 2014 and paying monthly rent. I asked her for July and August rent near the end of June. This was because I am going away at the end of July on vacation and wanted to pay the summers rent to the University before leaving. She has informed me that she is leaving at the end of July and is refusing to pay for August rent like we agreed upon. I told her that I wanted August rent or she would no longer be welcomed in my apartment. It will really cost me if I do not get another roommate in my apartment. My current roommate does not respect my apartment and maintain like I wish. I would like her out of my apartment because she has broken our oral agreement. Then I would be able to have it properly maintained once again and find a new roommate faster. Her mother sent me a couple emails expressing her feelings and told me that I would have to speak to the tribunal of the landlord and tenant act and the police because it would be an illegal eviction. I spoke to the tribunal and they could not help me as they said she would be considered a roommate or guest. I need to know if I can ask her to leave at any point? Or is there a certain amount of notice I have to give? If you could answer this question I would be very grateful.

    Thank you for your time.

    ReplyDelete
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    1. Michael K. E. Thiele9 July 2014 at 19:13

      Hello: The relationship you describe with your roommate is not one that is covered by the Residential Tenancies Act. She is not a "tenant" as defined in the Residential Tenancies Act and hence she does not enjoy the protection that the RTA provides (other than by being your guest). Your relationship with her is governed by contract. Are you entitled to terminate the contract now in anticipation of her breach of the contract. Knowing that she plans not to fulfill her side of the bargain can you just end the relationship now? The answer to that question is "yes" and "no" and "maybe". Unfortunately, which of these answers governs ia dependent on one's view of various aspects of contract law and frankly the outcome is also dependent on the Judge hearing the case. Much will also turn on how you throw her out. Throwing her out in the middle of the night is likely unacceptable and could cause you some grief if she sued you. However, it may be more palatable to a Court if you write her a letter, advise that you are terminating the roommate relationship in a day or two or three and that she needs to be out by a specific time. Make it clear that you have no choice as she has indicated that she will not be fulfilling her end of the bargain and that you need to make the premises presentable to find a new room mate. Advise her as well that if she does not move out that you will seek the assistance of the police to remove her from the premises as a trespasser. There is also always the right to sue her for damages. While taking this position it is always possible that she will feel that she is not in the wrong and she may sue you for throwing her out for a month in which she paid rent. A Judge may be sympathetic to that view and award her damages for the eviction during a period in which she had paid rent. The Judge may very well say that your option was not to throw her out (so you could make the place ready for a new roommate) but that instead you should have just sued her.

      So, unfortunately, I do not have the definitive answer that you are looking for. The answer truly is "it depends" on the circumstances. Certainly, your roommate's rights are confined to the terms of your contract (which I presume you don't have in writing nor does it provide (if it is in writing) the implications of early termination of the relationship or the right to terminate the relationship early. Where the terms of the legal relationship are not documented, and the RTA does not apply, it just comes down to the Judge's impression of what is "fair" under the circumstances.

      Michael K. E. Thiele

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  15. Anonymous15 July 2014 at 10:42

    Dear Michael,
    I have a situation I would like some advice on.
    My boyfriend and a friend signed a lease for a 2 bedroom apartment in Ontario. Both names are on the lease. The first and last months deposit was $3000 total. $1500 per person. He email transferred $1500 to the roommate to pay the landlord his share of the first and last. The roommate only ever paid the landlord $1000 of that $1500, and never paid her $1500 (he only found this out this week based on a conversation with the landlord). The landlord gave them the keys and allowed them to move in despite that. Since moving in 2wks ago, his roommate has become increasingly volatile. If he doesn't come home she creates an issue and will call non-stop for hours screaming. She's post embarrassing photos to Facebook. She's spit in his face and attempted to physically assault him. To this day she has not paid ANY money towards the rent. Yet she keeps threatening to kick him out, and put his belongings outside. Tells him he has until the end of the month to move out. My boyfriend spoke to the landlord explaining the situation. He also let landlord know he is actually able to pay the rent as he has a full-time job as manager (the roommate doesn't have a fulltime job), and would like to take over the lease and ensure payment is issued. Despite not having even gotten a full months rent the landlord is very hands off about the situation and has not been helpful in any way.
    What are my boyfriends options? How is he able to get the roommate out? What are alternate options?

    ReplyDelete
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    1. Michael K. E. Thiele16 July 2014 at 06:20

      Hi: Your boyfriend has limited options and it seems dangerous for him to remain in the unit with such a volatile person. There is no reasonable way to have the tenancy severed, evict the roommate, and for your boyfriend to continue on in the unit alone. IN these circumstances his safest option may be to abandon the rental unit and force the landlord to take termination proceedings--and write this to the landlord and force the landlord to do it at the Board and evict. Your boyfriend could then, if the landlord is agreeable--enter into a new lease with just him on the lease and take possession once the sheriff evicts the roommate. None of this needs to be done in secret--be straight up with the Board on the day of the hearing. Once your boyfriend is out of possession (i.e. moved out) technically he can not be named as a tenant on the Order. If your boyfriend is unable to move out while all of this is happening then he should be ready for some truly crazy behaviour when the Board terminates the tenancy and evicts both him and his friend as he will likely become the focus of her anger.

      This is one of those cases where it would be best if your boyfriend was taken through the system with the help of a lawyer. Irrational roommates (mentally ill?) can cause serious legal problems.

      Michael K. E. Thiele

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  16. Anonymous16 July 2014 at 01:47

    Hi, I live in Ontario and am an owner (female) of a condo with an extra room. 4 months ago I rented this room to another female with no signed agreement between us for the period of 3 months. In the final month of her stay she asked if she could stay for another month and paid one more month of rent. Its 15 days to her moving out but she says she wants to stay and can't find a suitable place to leave. As our roommate relationship has not been so great due her carelessness in sharing house duties and disrespect to my furniture, I'm not willing to extend our verbal agreement any longer and my home has become a prison for me. I can't properly communicate with her as she gets upset and gives me silent treatment and has threatened me to call police while I never offended or verbally or physically abusive to her. She had called police on her previous roommates for various accusations, one being rape and as a result had to vacate immediately. I don't want any involvement with this person anymore. I want my freedom back and don't know what my rights are. Please help.

    ReplyDelete
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    1. Michael K. E. Thiele16 July 2014 at 05:55

      Hi: This woman has no right to remain in your apartment. Unfortunately, she sounds like the type of person who may say and do anything without regard to the truth and common decency. In circumstances like this I think you should seek the assistance of the police. Get a copy of your lease (so you can prove that you are the sole legal tenant). Go to your landlord or property manager to get a similar letter and advise them that you fear for your safety from this woman and that you wish to have her excluded from the building and ask for a lock change. Coordinate this request with the landlord by going first to the police and tell them that you need their assistance in removing an unwanted person from your home who refuses to leave and who behaves in a way that is making you fear for your safety. Advise the police that you want them present when you require her to leave your apartment as you fear for violence, false allegations when this happens. You can even say that you expect they will be called and be asked to be present one way or another when you require the woman to move out. I take it from your comment that the "rape" allegations were found to be false but that it shows the kind of things this woman might say about you. You should try to keep the peace for the moment until you round up police support and landlord support. Ultimately, going to the landlord and police for help in getting rid of this woman will be to your benefit if she does start to make false allegations against you. If the police, for some reason, do not feel they can get involved you may need to speak with a local lawyer to get a Court Order requiring the woman to move out (you might be able to get this Order without notice to her--but this is something to discuss with the lawyer you retain).

      Just to be clear, your roommate, as a non-tenant has no rights under the Residential Tenancies Act. She is not legally entitled to notice and you do not have to provide her with any forms. The Landlord and Tenant Board has no jurisdiction over this relationship and hence you couldn't get an order from the Board even if you wanted to.

      best of luck

      Michael K. E. Thiele

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    2. Anonymous17 July 2014 at 21:17

      Thanks very much for your comment. Just to be clear, I'm the owner(landlord) who lives with this tenant in a condominium. For time being she has agreed to leave by the end of the month, but I don't know if I should believe her. I will try to go to police ahead of time and see if police is willing to help being present on the day she leaves. All I know is that, I will change the lock on the last day of the month she is supposed to leave regardless and she won't be able to enter anymore. And if she leaves behind any belongings she may come with police to get them and at least police has been informed ahead of time. Please let me know what you think.
      Sincerely

      Delete
    3. Michael K. E. Thiele18 July 2014 at 05:48

      Hi: I think that going to the police in advance of changing the locks can be helpful to you. Seek to make a report advising of your concerns. If a confrontation happens you want the police to know of your situation before arriving at the door. Lastly, once you change the locks and presuming the roommate has made no efforts to move out or find another place, it would be a good idea to immediately pack up all of her belongings (nicely and take pictures) and move them to secure storage somewhere (i.e. pay for a month) and then give her the key, tell her where her stuff is and she can pick it up at her convenience. Getting her stuff out of your house is particularly important if she is unstable as you describe.

      Best of luck

      Michael K. E. Thiele

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    4. Anonymous3 August 2014 at 19:12

      Hi again Michael, and many thanks for all your expert advises. My roommate had finally agreed to move out end of July and as I previously mentioned our relationship had been a complete nightmare for the last 2 months of her stay. After calling the non emergency police number to get their advise on just incase if she would get violent on her moving out, they told me I could get help of the security guard( concierge) of our condominium to be present during the time she was actually moving out to be witness. Any how, she moved out calmly, and since all her rent payments ( 4 months) was received in cash I was supposed to issue her an invoice upon her leave. Hence, I never checked her true identity as she moved in as I'm usually a trusting person which I regretted it later. During her stay, I had asked her many times that I would need her ID which she always declined to provide me with one. That was one of my fears living with her as to who she really was! I asked in front of the concierge desk that I need to see a piece of a photo ID and she replied as it is illegal to ask for ID for an invoice. I refused to give her one since tomorrow she can claim another invoice with another name. She got angry and threatened me that she would go to the Tenant Board and will sue me. ( we had no lease agreement and sihe never used this address as her mailing address).
      What should I do? I only have a cell# from her, no address, no other contact, nothing!
      Really appreciate your advise.
      Sincerely

      Delete
    5. Michael K. E. Thiele5 August 2014 at 07:31

      It's not often (in fact never before) that I want to reply with an "lol"--not at your expense but at your former roommates. You can be rest assured that if she wishes to take legal action that she will be required by the Court or the Board to prove her identity. They will not let her sue you anonymously. That being said, I doubt very much that she will take legal action on this point. If she does, she will have no success at the Landlord and Tenant Board as there will be no jurisdiction there. Suing for a receipt in small claims court is also quite unlikely.

      I'm glad that this worked out for you.

      Michael K. E. Thiele

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  17. Tina16 July 2014 at 22:34

    Hello, I just found this article and it seems like you have some fabulous advice. (I understand that it's not professional advice?)
    I am a tenant in an apartment with 4 other people in Waterloo; major student central! I am asking this question on behalf of one of my other roommates. We all signed one lease, so there are not separate leases. Two of them have subletted out their rooms. All I can say is these two subletters are a worst case scenario. Rude, loud, and above all destructive and absolutely filthy. While these guys ruin the apartment, two of us who are actually on the lease need to live in their filth (we are not their mothers!) We are having the most problem with one of the tenants. In the subletting agreement that my other permanent roommate put together it outlines certain responsibilities this subletter has at this apartment; essentially keeping the apartment liveable (contributing to cleaning). He happily signed this lease. What rights does my roommate have? Can she kick him out immediately under breech on contract?

    Thanks kindly for your time and any advice you may have.

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    1. Michael K. E. Thiele17 July 2014 at 07:23

      Hi Tina:

      In my opinion the sub-letter is not actually a real sub-letter as defined in the Residential Tenancies Act. A sublet only happens when the tenants in the unit vacate the unit and turn it over to the sub letter with the consent of the landlord and an agreement to return at some fixed point in time. As this unit is under a single lease, not all of the tenants on the single lease moved out, then you are not in a legal sublet arrangement with the people who moved in As such, their rights are not RTA rights and they are just roommates governed by their "contracts" with your roommate. As they are breaching their obligations your roommate has the option to require them to leave. You also have the option to require them to leave as they are not tenants nor sub letters. Of course, if they are required to leave contrary to the terms of the contract and it is determined that they were forced to vacate improperly a Court could award them damages. Hence it is important to objectively assess what is going on. As you are students, perhaps you can get legal advice from the student legal aid at the Law School? This is usually free.

      best of luck.

      Michael K. E. Thiele

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    2. Tina17 July 2014 at 23:18

      Thank you VERY much, Michael! I just have one more question. It's regarding a timeline. If it were up to us (my roommates and I), this subletter would be gone as early as this weekend or the first of August. I know a landlord has to give 60 days notice, but does my roommate have to in our situation? If she doesn't, and for some reason her subletter brings it to court, what could possibly happen? Their agreement concludes at the end of August, which is admittedly quite soon. Most people would just say wait it out. But the situation has gotten SO out of hand that he needs to be out sooner rather than later as to avoid any more damage (caused by filth) to her bedroom or the shared spaces.

      So in short, is there a minimum amount of days that my roommate must give to her subletter? Can she get him out immediately? And worst case scenario, her subletter brings this situation to a court. What could happen?

      Regards,
      Tina

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    3. Michael K. E. Thiele18 July 2014 at 05:33

      Hi TIna: If the "Sub-letter" is not actually a real sub letter under the RTA then the notice periods under the RTA do not apply. In a situation where the roommate is in possession by virtue of a separate contract--that does not have any provisions for early termination--the measure will be one of reasonableness. If the Court determines that evicting the person before the end of the term (i.e. August in your case) was unreasonable then the Court would look at what damages the roommate incurred--perhaps hotel costs, moving costs, storage costs, that kind of thing. If under the circumstances the Court holds that it was reasonable to terminate the contract early then there will be nothing to pay even if the roommate suffered losses.

      I know you are looking for "fixed" period of time--as that would be useful. Unfortunately, when the RTA does not apply there are no clear cut rules for notice.

      Michael K. E. Thiele

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  18. Daanish24 July 2014 at 20:31

    Hi Michael,

    I first wanted to say that this is a great blog and you provide really great general information! I'm an articling student at a law firm in Toronto and I have a question for you, mostly out of curiousity though it is based on my own circumstances. As a law student, I, of course, understand that you are not providing professional legal advice but rather general information.

    My girlfriend is living in a property in Kitchener where she shares a kitchen and bathroom with the owner of a premises. It seems fairly clear that she is not subject to the RTA given the exemptions set out in the Act. She has only been there for a few days and the owner of the premises has asked her to sign an agreement. The agreement stipulates that there are no overnight guests allowed. When my girlfriend asked about the house rules before moving in, this stipulation was never mentioned -- had it been, my girlfriend would not have rented the room.

    I know that "lodgers" or "boarders" not subject to the RTA are subject to the contract signed and the common law. I was wondering if such a provision (no overnight guests allowed) would seem to violate a common law principle. It seems quite unreasonable. Perhaps it can be construed as a violation of quiet enjoyment? Do you believe it is likely that such a provision would be upheld in court? Can you perhaps point me toward some case law regarding the matter?

    I really appreciate your time and any helpful information you might be able to provide. Again, I think you provide excellent and helpful information!

    Daanish

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    1. Michael K. E. Thiele25 July 2014 at 15:23

      Hi Daanish: An interesting question. Often enough I've thought about the existence of residential tenancies outside of the scope of the Residential Tenancies Act. Just because a tenancy is not covered by the RTA does not mean that many of the landlord and tenant principles should not apply to those tenancies. If you flip through the RTA where does it say that a landlord is not permitted to restrict the tenant's right to have over-night guests? The idea that a landlord can not restrict this is partly founded in the fact that an interest in the property is conveyed to the tenant through the lease. Quiet enjoyment is an implied covenant in every lease as well and I think it's understood that living as an adult and having guests is a part of that. What about the Human Rights Code? Is this condition a breach of the code (family status?).

      On the other hand, in a small home, occupied by the owner, the presence of one or more over-night guests may impair the owners sense of security, may over-burden the facilities, and may cause over-crowding. Is it not reasonable to allow the owner to control who stays overnight in his/her home? Part of the answer will be the context.

      In your girlfriend's situation the problem seems to revolve around changing the terms of an agreement already reached. As you indicate, had this been a term of the original contract she would never have moved in there. Moving out now, to a new place, will carry with it a certain amount of hassle and expense. Perhaps try to quantify that cost. Then meet with the "landlord" and get an understanding about the "no overnight guests" rule and see if exceptions can be made and how firm the landlord is on the point. Flouting the condition will most certainly lead to aggravation that your girlfriend will wish to avoid. If the landlord requires compliance with the condition, put to him the costs of moving and termination of the relationship and see if he would pay voluntarily. If not, and the issue is important, incur the costs and sue in small claims based on the breach of the original terms. Documenting and proving the base facts will be important--so if she can, write to the landlord to confirm the positions, the original position, and the change in terms---i.e. get the landlord to admit that a new condition is being imposed or that he forgot to impose it by over-sight etc..

      Best of luck with articling.

      Michael K. E. Thiele

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  19. Annie Hughes8 August 2014 at 12:20

    Hello

    I just received notice this morning that I am to vacate the bedroom I rent by september first, or to stay for another year. I am not on the lease, I was not requested to pay first and last, or a deposit of any sort. I am paying month to month, I have already paid my rent for August, and I am at a loss. I am recently graduated and unemployed and looking for work, and I have no funds to spare to pay first and last a new apartment right now. Am I protected? Do I need to be given sixty days notice? I can't seem to find any information on the internet protecting me as a room mate, and I am very agitated by this turn of events. Does she need to give me notice, and where can I find this information to show my room mate so she cannot force me to leave, or, alternatively, force me to stay for an entire twelve months?

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    1. Michael K. E. Thiele8 August 2014 at 18:56

      Hi Annie: The first question to always ask is whether or not you are covered by the Residential Tenancies Act (RTA). This is the law that covers tenants in Ontario--I presume of course that you reside somewhere in Ontario. The notice periods that you are citing (60 days) and the first and last month's rent are concepts and terms that arise under the RTA and are applicable to landlords and tenants. When you say "am I protected?", the usual implication of this question is that you're asking if you are protected by the RTA as this is the legislation that sets out the rules for how tenancies are terminated, what rent may be charged, what the rights of renewal are etc.. The RTA rules--like 60 days notice to terminate--have become a part of the societal understanding (in Ontario) of what constitute legal rights.

      Unfortunately, if you are not RTA covered then you are not protected and the common understanding of the legal rights that people have in Ontario do not apply to you.

      From your description of your circumstances I do not think that you are RTA covered. I say this as you indicate that you are renting a bedroom. Presumably you are sharing a kitchen and/or bathroom with an owner. If so, you are excluded from the RTA. If you are sharing with another tenant and you clearly are not on the lease then you are also excluded. You can find other exemptions in the RTA--see section 5 to start.

      When the RTA does not apply the law that applies to your situation is one of contract. Do you have a written agreement with the person you rent from? What does it say? If the agreement addresses the circumstances then those are the rules. If the agreement is silent or there simply isn't a written agreement the entire matter becomes much more tricky. It isn't that there is no law--it's just that the terms will have to be implied from the circumstances. This essentially invites a Court to decide what is fair under the circumstances. I think it is clear enough, in law, that people in your circumstances have no security of tenure--which means you have no right to occupy the space that you are in. My view is that you can be removed from the premises at will. However, if you are removed contrary to the terms of a roommate agreement or your removal is arbitrary and unreasonable in the circumstances a Court may be inclined to award you damages.

      Your roommate clearly wants a 12 month commitment or wants you to leave--presumably so she can find someone who will give her a 12 month written commitment. Is she perhaps motivated by her landlord demanding a 12 month lease be signed? It seems to me that there must be some reason like this behind your roommates demand as it is unusual to be told to get out in 30 days or sign a 12 month agreement. Clearly your roommate has no serious problem with you.

      Anyway, I hope that helps a bit. In short, there is no specific written law that provides the terms and conditions (RTA like) to non-RTA covered persons who are in landlord and tenant like relationships.

      Michael K. E. Thiele

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  20. walrusgumboot20 August 2014 at 17:26

    Hello,
    My roommate & I have a lease together on a basement suite that expires at the end of October. We would like to stay on a month to month basis, but we would also like to add a third roommate to help defray the costs of the apartment. If we ask the landlord about having a third person move in, does he have the right to raise the rent or add the stipulation that we pay utilities (our utilities are included in our rent currently)? Thanks for your advice!

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    1. Michael K. E. Thiele21 August 2014 at 11:07

      Hi: Generally speaking you do not have to get your landlord's permission to get a roommate to help with expenses. There is a restriction under the RTA to "overcrowding" a unit and this is a reason to terminate a tenancy if the issue is not resolved. Overcrowding is not just a matter of a landlord's opinion but must be based on a "law" of some kind (could be a by-law). The section of the RTA that applies is section 67--so if the size of your unit suggests that adding a person might be overcrowding take a look at this section.

      Aside from this, you are entitled to share your space with a roommate. Doing so could very well drive the landlord crazy as this issue evokes passionate opinions from landlords who resent the increased use of utilities caused by the presence of another person. So long as the unit is not "overcrowded" the answer to this position is that in renting the unit the landlord has to take into account (when setting the rent) what the lawful occupancy of the unit might be. Certainly, many leases contain occupancy clauses and require a tenant to list who the occupants are and many leases purport to limit the number of occupants to the ones listed on the lease. Personally, I have never seen such a clause (restricting the number of persons in a unit) being used successfully by a landlord--even when the impact on the landlord is increased utilities. That being said, I haven't come across a case where a landlord has been clever about the argument or the drafting of the clause restricting the number of occupants of a rental unit and as such I'm not comfortable saying that such a restriction would be impossible in every instance.

      To your question specifically. The landlord would have no right to raise the rent because of the presence of another roommate. If anything---he would have the right to terminate for overcrowding (if that strict test is met).

      Michael K. E. Thiele
      Ottawa Lawyer

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  21. The Weekly Quirk26 August 2014 at 16:09

    Hello Michael,

    Thanks you for providing people with advice when they need it most. I have a question, I posted it once before but can't find it again, so if you've already responded I apologize.

    I've been living in the basement apartment (in Ontario) that is beneath a house since April. Near the beginning of August a friend of mine who has fallen on hard times came to stay with me while she tries to find work and another place to live, not even two weeks into her being here my landlords want to charge me $200 more on top of my rent for each month she stays here, along with an extra $50 for my cat. Can they do this? She has no intention of staying here on a permanent basis, as it is not a two bedroom apartment. I had originally offered to pay any additional utility charges if they arose, and they came back demanding the $200. Now she and I are out of the apartment all day, I doubt very much that we rack up more utility usage than is normal. Not to mention the landlords have had people staying with them all summer. So I wonder how much utilities they use, and if there are increases how can it be proven that she/I are the cause?

    Other factors in this case are: they never gave me a copy of my lease. I did take a picture that I signed it. I gave them post dated cheques up to a year, my apartment hasn't been given its own unit number and all my mail goes to their mailbox which allows them to sort through my mail. Is this legal? Don't I need to have my own unit number? Also my apartment has only one entrance and exit. I've heard from other sources that this makes it an illegal apartment and that if they push me on paying them the additional money I should report them to the board. I don't want to be litigious but I need to know my rights.

    I appreciate any advice you can provide. Thank you!

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    1. Michael K. E. Thiele27 August 2014 at 12:57

      Hi: Thanks for your question. I recall answering a somewhat similar question at some point but frankly all these comments and answers have become rather unwieldy for me to sort through. Presuming that the Residential Tenancies Act applies to your unit there is no basis in the RTA to charge you extra for having someone come and stay with you for a while. You have the right to have guests and the landlord has no control over that. The landlord could object if it amounted to over-crowding (as legally defined) but what you are describing does not amount to that.

      Please note that if your unit is not covered by the RTA then the rules are entirely different. I mention this simply because you are describing a basement of a house as your unit. If you share a kitchen or bathroom with the landlord you may not be RTA covered. If you unit is not self contained you may not be covered by the RTA.

      If you are RTA covered the landlord is not allowed to charge you $50 for your cat. Ultimately, the landlord could charge you for damage caused by your pet--but there is not right to impose a pet fee of any amount.

      Shared mailboxes are not illegal as far as I know. I've never come across anything in the RTA requiring units to be numbered though if I went looking I'd look at the requirements from the city, municipality, township that you are in. There may be a unit numbering requirement for all self-contained rental units.

      Whether a unit is "legal" or not is not always an easy question to answer. Often, when people talk about a unit being illegal they are referring to the requirements under the Fire Code/Building Code in terms of egress. If the reason a unit is illegal is because of fire code issues then this is something to take notice of because it ultimately is a safety issue. The apartment may seem fine and nice but that is when there is no fire. Fire Code provisions are there for safety in the event of a fire.

      An interesting thing to note is that even if your unit is "illegal" this would not give a landlord a right to unilaterally evict you from the unit. You continue to enjoy the protection of the RTA even in an illegal rental unit.

      Michael K. E. Thiele

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  22. Anonymous22 October 2014 at 12:19

    Hi Michael: My case is that I'm living in an informal arrangement in a finished basement, sharing kitchen facilities with the landlord and three other tenants. The landlord told me to leave because of perceived cleanliness infractions, giving me 90 days to be out which would be by the 1st of January 2015. I found an apartment for Nov 15 and so informed the landlord on October 16th. I plan to remove my possessions by the end of October and store them till I can move into the new place. The landlord wants me to pay for November, $600 and is asking for $400 to clean the carpet, sofa and chair in the room. Given that I was asked to leave I am inclined to offer $200 all included. Is this reasonable? considering that the room is actually spotless and could easily be cleaned with a supermarket carpet cleaner.

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    1. Michael K. E. Thiele22 October 2014 at 15:22

      Hi: As you have likely figured out, by sharing a kitchen with the landlord your tenancy is exempted from the application of the RTA. Therefore, the rules in relation to your tenancy are contractual ones as there is no specific statute that governs. When you say "informal" I presume you mean that there is nothing in writing. If that is the case, then the landlord is being quite fair in offering you 90 days notice. Does this mean that you have to stay 90 days? If there are no written contractual terms then reasonableness will dictate. If we go by analogy to the RTA then a termination for the "cleanliness" issue alleged under the RTA would be 20 days (in a Form N5). I appreciate that the landlord has chosen to give you more time, but the point is to use the timeframes of the RTA to establish what is reasonable. In that context, I think you moving everything out by October 31 is reasonable and that ending your rent obligation for the end of the month is also reasonable. Note that "reasonable" varies depending on who you talk to.

      With respect to cleaning. Again, if nothing is provided in the contract then reasonableness will dictate. What is "reasonable". Well, under the RTA the law requires a tenant to maintain a property to a standard of ordinary cleanliness. I think its reasonable to import that standard into your situation. So, if the condition of the things you have control over are below that standard then it is likely that a court would order you to pay the cost of getting the things to that standard. Whether that will take $400, $200, or some other number I have no idea. Certainly, $400 represents an awful lot of cleaning and seems excessive. Another alternative, is to consider cleaning your room etc., yourself and pay nothing.

      Best of luck

      Michael K. E. Thiele

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  23. C Kalte28 October 2014 at 10:03

    Hello,

    I have a question regarding certain situations, we have a "boarder" living in my home which we own and they have not paid remainder of the rent for this month. We have given her 3 weeks and still have not recieved our payment. We were informed that due to sharing a kitchen and bathroom we do not fall under the "Landloard Tenant Act" not sure if this is correct.

    Also we have been trying to speak with them for 3 weeks and they refuse to talk to us regarding the non payment and the severe damage that has been done to our home.

    Our main concern is how much time would we need to give for an eviction and what are the proper steps to avoid court.

    Thank you for your time.

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    1. Michael K. E. Thiele28 October 2014 at 12:19

      Dear C Kalte: I understand that you received advice that your living arrangements with the tenant are exempted from the application of the Ontario Residential Tenancies Act (this is the correct title of the law you are referring to as the "Landlord and Tenant Act"). If this is the case, then your relationship with your Boarder is governed by the contract between you and the boarder. If the contract--written or oral--didn't really contemplate termination then I will suggest that the test to be applied is one of reasonableness with respect to notice to vacate. "Reasonableness" is a matter of context. What may be reasonable when it comes to requiring a person to leave for non-payment of rent may be very different if that person is committing an illegal act or is damaging your house. Unfortunately, I can not give you any hard or fast rules for determining what is a reasonable notice period. These are the kinds of thing that it would be very useful to sign an agreement over to avoid the guesswork of determining what is reasonable. That being said, I don't think anyone would fault you for using as a guide the periods set out in the Residential Tenancies Act. Under the RTA, the notice for terminating for non-payment of rent is 14 days. After that you follow the eviction process that takes several more weeks. However, in your case, there is no "process" as your relationship isn't governed by the RTA. Arguably, after 14 days (presuming you use this as your notice period) you could simply escort them to the door. If they fail to cooperate you could call the police and ask them to remove the person from your home. If the police, for some reason, refuse to remove the persons from your home then your only option will be to file an application with the Ontario Superior Court of Justice seeking a Writ of Possession which will direct the Sheriff to remove these individuals from your home. My experience is that the police will normally remove Boarders without much question about it.

      I appreciate your desire to avoid Court--but sometimes that simply is not possible. Note that your Boarders can always sue you but that does not mean that they would win. It is important that you make sure the RTA does not apply to your situation and that if your contract is silent that your treatment of the Boarders appears to be objectively fair. If so, then you are unlikely to have any great risk even if the Boarders do commence legal action against you. Please ensure that your document your interaction with the Boarders and do as much by email or other traceable way so that in the future it will be clear what was said and to whom.

      Best of luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  24. Anonymous30 October 2014 at 19:56

    Hi Michael,

    I've been reading your blog and really value the wonderful advice you offer people. I have a difficult situation of my own and would appreciate your opinion.

    My elderly mother owns a 3-storey house in which she resides on the first floor. She rents to a female tenant on the second floor, and to 2 tenants on the 3rd floor. The second-floor tenant is somewhat mentally unstable, prone to yelling at both my mother and the other tenants over slight noises and perceived slights. One of the 3rd-floor tenants has just moved, claiming she can no longer endure the stress of living in the same house as the woman and being harassed by her. Two previous tenants were also harassed by her over the last few years. My mother can't tolerate the stress anymore either, so we're going to evict her, after many conversations asking her to keep to herself and to stop harassing others. Various incidents have been recorded by myself, my mother, and the other tenants to substantiate a notice of eviction.

    My question is how to proceed, depending on how the house and/or the tenant's unit are classified. The house was classified as a boarding house by the fire department a few years ago, as the tenants share bathrooms and kitchens. My mother doesn't share her personal facilities with anyone else, but the 3rd-floor tenants share a bathroom and kitchen, and I used to share a hallway bathroom with the difficult tenant when I lived there in the past. (I believe my sharing with her was specifically what earned the boarding house status) The tenant's unit consists only of a self-contained room and kitchen, with the shared bathroom outside her unit in the hallway. I believe the tenant was previously not covered by the RTA, as she shared the bathroom with me. As I no longer live there and she is no longer sharing a facility with the landlord or the landlord's family, would this change the status of her unit and render her covered under the RTA? Knowing how difficult and unreasonable she is, we would like to serve her with a 10-day notice, for interfering with the reasonable enjoyment of the premises by the landlord and other tenants. If she doesn't vacate, we would then like to remove her belongings and change the locks. Do you believe we would have the right to do this? Or would we need to apply to the court for a writ of possession enforceable by a sheriff, or alternately first apply for an eviction hearing? I believe your answers will depend on how you see the status of her unit and the house, hence my confusion over how to proceed.

    Finally, can my mother appoint me as her agent, to have me undertake the proceedings for her? She's 84!

    Many thanks in advance for your valued assistance.

    Kate

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  25. Anonymous30 October 2014 at 20:42

    Hi Michael,

    I forgot to mention that the tenancy is month-to-month without a lease.

    Thanks again,
    Kate

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    1. Michael K. E. Thiele31 October 2014 at 07:04

      HI Kate: The answers to your questions are a judgment call and I think an argument can be made for viewing the nature of the tenancy as both covered by the RTA and exempted. Whether a unit is covered or not goes to whether or not the Board has jurisdiction over the matter. That being said, I think you could indeed just assert that the unit is covered by the RTA and proceed to the Board. If the tenant objects, well then you could have that issue decided by the Board at that time. Query whether you should prefer the unit to be covered or not. With a difficult tenant and one you know won't go easy into that good night I think you might prefer to have the unit RTA covered. If the unit was not covered and you had difficulty getting the tenant to leave--and the police were reluctant to help without a Court Order---you option then would be to get a writ of possession at the Ontario Superior Court of Justice. That process, I think, is almost impossible for a lay person to do without an inordinate amount of time and effort. Retaining a lawyer to get a writ of possession all cost you several thousands of dollars.

      The Landlord and Tenant Board, on the other hand, is much more friendly to lay persons. You may engage the process and expect to be heard with minimal effort on your part. Now that doesn't mean being self-represented is just as good as being represented at the Board. The fact is that having an experienced advocate will always give you an advantage or a disadvantage if you are facing one. Your mother's tenant is likely to get legal aid or duty counsel at the Board--unlikely to get legal aid in the Superior Court.

      Another consideration about going to the Board is that by asserting that this is an RTA matter the process, as engaged, results in the tenant getting more rights than if she is a non-RTA covered occupant. Under the RTA there are discretionary factors as well as human rights factors that will be taken into account. The tenant appears to have a mental disability of some kind---you may find that it is not so easy to evict a person with a mental health problem even if their behaviour is disruptive from time to time. IF the tenant defends the application on a human rights basis (i.e. duty to accommodate) the case, even at the Board, gets a bit trickier and you may need to consider retaining a lawyer to handle the matter.

      With respect to you representing your mother. That should be no problem at all. The Board will announce that representatives must be licenced by the Law Society so that may cause you concern. However, that does not cover your situation. Have your mother write out an authorization appointing you as her representative and you should have no difficulty at the Board. When you file the application ask them at that time if the Board at your particular location has any preference for representation letters.

      I note that you made reference to a 10 day notice, so well done. The basis of the allegations normally would call for a Notice of Termination in Form N5 but because your mother lives in the building you are likely correct to use a non-voidable Form N7.

      Best of Luck

      Michael K. E. Thiele

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  26. Anonymous5 November 2014 at 14:42

    Thanks so much for your insights, Michael. As you might have been able to guess, I'm reluctant to apply to either the board for a hearing or to the court for a writ of possession, given the extenuating circumstances regarding her stability and her likelihood to fight the eviction. I would prefer to simply serve the notice and then proceed to placing her belongings on the front porch after having the locks changed. Under that course of action, would her only recourse then be to sue for damages in small claims court? No police officer would be able to force us to re-allow her entrance or residency apart from a court order, would they? And one last question, does your use of the term "non-voidable" re: the Form N7 imply that the court could not void it at any time? e.g by giving her an opportunity to correct the behaviour, which might then necessitate the serving of a second notice and a prolonging of the situation? Does your use of the term suggest that it IS quite enforceable and its use IS likely to result in an eviction?

    Many thanks!

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    1. Michael K. E. Thiele5 November 2014 at 21:40

      Hi again: You really should not enforce eviction (i.e. change the locks) if you have served a Notice of Termination under the RTA. If this is an RTA covered tenancy then the only legal way to regain possession of the unit is to either get it from the tenant voluntarily or by way of Board Order and Sheriff enforcement. You will see from terms of the Notice itself that the Notice gives the tenant the right to remain in the unit and dispute the termination at the Board. If you evict based only on the Notice of Termination you will be breaching the RTA and could indeed face charges under the RTA before the Provincial Offences Court as well as an Order from he Board directing the Sheriff to put the tenant back in possession.

      If you are certain that the RTA does not apply then you may act as you describe and then her remedy would be a claim against your mother--in Court. It is interesting that her tenancy commenced on an exempt basis and your moving out removed the basis of the section 5(i) RTA exemption. The language of the exemption seems to be in the present sense in that the exemption seems to apply if the tenant is currently sharing a kitchen and bath. The section does not seem to speak to a situation where the tenancy commenced on an exempted basis. Could one argue that the tenancy, once exempt, remains exempt? Certainly there is a case law determining that once a tenant is covered by the RTA the landlord can not deprive a tenant of those protections by moving into a building (like a rooming house) and sharing the kitchen and bath. Perhaps and argument could be made that the RTA never comes to apply because no tenancy agreement that was subject to the RTA was ever entered into. It is an interesting question and I don't actually have a definitive answer for you on this point. Which is unfortunate as it is a rather crucial point. Perhaps there is some caselaw on point (I've never come across it), or perhaps this is a unique situation that has never been adjudicated. I think its a fair comment to say that the answer to this question is not a foregone conclusion and hence to take action against the tenant without getting the answer in advance exposes you to substantial risk if the tenant does anything about it.

      An N7 is non-voidable in contrast to an N5 which is voidable. You get to serve an N7 for behaviour that normally is covered only by an N5 form and this is because your mother lives in the building. In an N5 situation a tenant would have the right to correct the complained of behaviour and void the termination by rectifying the behaviour. If you are able to serve an N7 then the tenant does not have the right to "correct" the behaviour and void the Notice.

      A voidable and non-voidable notice does not speak to the Board's discretion. An adjudicator may always give a tenant another chance, delay or deny eviction based on the circumstances of the case. This discretion is exercised under section 83 RTA. Whether or not discretion is to be exercised is a contextual task. One would argue that discretion should not be so readily exercised in an N7 situation (as it might be in an N5 situation) as the legislature intended, by inserting this provision, to make it possible to evict people on single acts of misbehaviour when landlords live in the building. Arguably, exercising discretion to stymy the intent of the N7 is to override the intent of the RTA. I'm not saying, however, that there is no circumstance in which the Board would not be justified in exercising discretion--I just think those instances should be fewer given the intent of the RTA with respect to buildings occupied by owners.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  27. Anonymous5 November 2014 at 15:07

    Sorry to trouble you with another question, but if we took a different approach and decided to expand the size of her unit (currently a bachelor) by including another small bedroom that exists on the same floor, thereby increasing her rent and possibly forcing her to leave due to the increased cost, would we be able to do this with written notice? Is this an option when a tenant is residing in the unit? Again, her tenancy is month-to-month without a lease. I've looked for such a provision within the RTA but haven't been able to find anything.

    Thank you so much.

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    1. Michael K. E. Thiele5 November 2014 at 21:46

      Changing the size of the rental unit and increasing the rent are things that you can only do with the consent of the tenant. Neither cane done unilaterally. The tenant has to agree otherwise you may not change the nature of the rental unit nor can you simply increase the rent for the unit.


      Michael K. E. Thiele
      www.ottawalawyers.com

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  28. Anonymous13 November 2014 at 16:49

    Thanks again for your help, Michael. We're going ahead with serving the N7, then immediately applying for a hearing which we hope will result in a judgement of eviction. Wish us luck. :)

    Best,
    Kate

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    1. Michael K. E. Thiele13 November 2014 at 20:22

      Hi Kate: Please let me know how it goes. Good or bad--the details are interesting for me and I think a lot of people read these comments and would like to know how it turned out. Good luck. Mike

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    2. Anonymous1 December 2014 at 20:34

      We haven't gone ahead with it yet due to some family issues that I needed to deal with, but I'm working on it now and hope to serve notice within a few days. I'll serve the N7 and proceed with a hearing. Please tell me that doing it now, so close to Christmas, will not create sympathy in a judge who might delay the eviction!

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    3. Anonymous1 December 2014 at 20:39

      I was advised by client services at the Ministry of Housing to serve the notice under the door of the tenant's unit. I plan to serve it to her in person so that I can explain why we're doing it and hopefully prevent her from going ballistic. Is this a bad idea from the court's perspective? Maybe it's better to serve it under the door and create more of a case for the eviction if she loses it and the police need to be called?

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    4. Anonymous26 January 2015 at 14:41

      Hi Michael, I wanted to let you know that my mother decided not to proceed with the eviction. After she warned the tenant in December about eviction, it appears that she has corrected most of the behaviour and has stopped harassing others. We hope that things will remain calmer going forward.

      Thanks again for all your insight and assistance.
      Kate

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  29. Roger18 November 2014 at 20:54

    Hi Michael. I have I think a fairly bizarre situation.

    I was living with my dependant son in a townhouse,whixh I onwed. My son had a lot of problems, and, for a very long list of reasons, he left the home for a few months.

    During those few months I was "staying with" my girfriend most of the time in another house. I still owned the original townhouse, but probably only spent a couple of nights per week there. I didn't feel safe there, and besides, the goal was to do the necessary repairs and then rent it out or sell it.

    However, my son wanted to move back in. I wasn't comfortable living with my son for a long list of reasons, but I was happy to let him move him (at the time at least). I charged him a token amount for rent. Even though we never had any kind of formal lease, this carried on for a about a year. Again I was barely there. I stayed at my girlfriends and started paying her rent.

    During the time he lived there, another guy basically moved in and paid "him" rent without my knowning. Of course, no formal rental agreements backing anything up.

    Things turned bad with my son again, and, he left again. This time, permanently. Then I learned of the other guy that was living there.

    This happened about a year ago.

    I agreed to rent the new guy out a room, at least officially. I wrote up a month to month lease that shows two people living there, him and me, and, I am the landlord. Again though. I have barely been there. In retropect I should have just rented him out a whole house and not just a room. Or, just kicked him out and moved on. But, what's done is done. So, even though on paper he is a boarder, he essentially has the run of the house.

    The trouble is, he has stopped paying rent over the last few months. I want to evict him.

    But, in terms of the law, is he a boarder or a house renter? Would he be covered by the RTA?

    I don't mind going through all the paper work I need to do to collect rent/evict him, but, I want to mkae sure I have all my ducks in order.

    Technically speaking, in the eyes of the law, is he a boarder or a house renter?

    Thanks,
    Roger.

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    Replies
    1. Michael K. E. Thiele19 November 2014 at 11:52

      Hi Roger: Residential units under the RTA by definition include rooms in a boarding house, rooming house or lodging house. Hence, what you are describing in the nature of the rental unit is definitely a type of rental unit that attracts the protection of the RTA.

      By not taking steps to evict this person when your son moved out he became a tenant of yours or was deemed to be a tenant 60 days after you became aware of his occupancy (s. 104(4)). This deeming does not happen if you meet certain criteria one of which is entering into a tenancy agreement with the unauthorized occupant. If you did this within the 60 day period then your lease with the tenant should be the document that determines the nature of the relationship.

      If you did not enter into the new lease with the unauthorized occupant within the time required by the statute it is arguable that this person become a tenant through a deemed assignment of the rights the original tenant had (that in itself is a question given that the tenant was your son). If there is a deemed assignment and the original tenancy was covered by the RTA then the occupant has all of the rights under the RTA and is entitled to notice in accordance with the RTA.

      The reason to split these hairs (as the foregoing seems to do), is that your lease with the tenant includes and refers to the fact that you will live in the rental unit. Presumably you will then share a kitchen and/or bath with the tenant. If this is accurate then your relationship with the tenant may not be covered by the RTA as it is exempted by section 5(i). If the RTA does not apply then the tenant is not entitled to the protections and notice provided by the RTA. Unfortunately, whether the RTA applies or not is not clear cut in your facts. Your limited use of the premises may call into question whether the exemption actually applies. If the tenant does not agree that the RTA does not apply then the way to answer the question is to file an A1 application with the Landlord and Tenant Board. If the Board says the RTA does not apply then the requirements under the RTA do not apply.

      The alternative is to proceed with the case as if the RTA does apply. However, because parties are unable to confer jurisdiction on the Landlord and Tenant Board it is possible that the question will be brought up during the case. The adjudicator would then determine whether he has the power to hear and decide the case. If he determines that the RTA does apply then the tenant would get the protections of the RTA and have the "right" to pay and stay for the non-payment of rent.

      The problem with simply agreeing to the RTA applying is that your ability to enter the space and use it may be constrained by such an admission. You say that the Board now has the run of the place. The rent is likely far to low for all of the space that he enjoys and as such you should not simply agree that the RTA applies without also confirming that you retain the right to occupy the premises (which will be a bit of a trick as one will usually preclude the other).

      I know this is confusing but hopefully I've gotten you started on the right path to deal with this person.

      Good luck

      Michael K. E. Thiele

      Delete
  30. Anonymous3 December 2014 at 15:44

    Hi Michael,

    I have read your blog with great interest. Although I am going to share my situation with you and judging by the cases above, the situation would not apply to the RTA:

    I was the sole tenant on the lease of a two bedroom apartment. My ex-girlfriend was also on the lease but under 'occupant' only. Just before we moved in (March 1st 2014), we split up. I decided to get a roommate to move in on March 1st (the same day I moved in) to cover half the costs of rent. I helped him to move his furniture in the apartment as a favour to him (we were friends before moving in). He paid first and last but only directly to me (not landlord) and as the tenant, I paid the full rent amount to the landlord each month. I cut him a copy of the keys and gave them to him. He even managed to get his name on the post box alongside my name.

    To cut a very long story short, 5 months down the line I give him 30 days written notice to vacate because he was being verbally abusive towards me. I also refunded his rent money back and was going to keep his last months rent as payment. On the day of the notice period was over, he refused to leave so I called the police to remove him. I explained the situation to the police and they said 'We cannot remove him as this is a civic matter, of which you need to apply to the Landlord and Tenant board'. They also said that I was illegally subletting the room to him (I'm 99% sure they are wrong on this but the police don't get everything right).

    After this occurred, I finally approached my landlord to terminate the lease early. The Landlord agreed to this and an N11 was issued. I then vacated the apartment after the N11 was in effect but the roommate still refused to leave. At this time, he filed an A1 to the Landlord and Tenant Board and set a hearing date for the 5th September. So the Landlord allowed him to stay in the apartment until the tribunal (She wasn't sure about the consequences of calling the police again). During the hearing, the roommate managed to secure an adjournment until November 5th! The case ended up being heard on 25th November and as of today we are awaiting the outcome. The roommate stated that he will be appealing any decision against him. I know this could literally take many months before the appeal is heard.

    Is there anything else the Landlord can do in this situation? Because even if the Landlord and Tenant Board orders an eviction, he will appeal. At the same time, how is a roommate who is not on the lease able to continually appeal and get away with paying no rent for almost 4 months? If the RTA doesn't apply in this situation, can the board rule that they have no jurisdiction to do anything? Therefore, the landlord could call the police again to remove him?

    I later discovered that this guy has been evicted and played the system many times before. Another guy 'moved in' with him in October and the roommate and this new guy made a brand new lease with their own terms and conditions and sent it to the landlord. This new guy who is 'living' with him, can the landlord do anything about that?

    I hope it all makes sense to you. Any thoughts on this situation would be greatly appreciated.

    Thanks!

    ReplyDelete
  31. Anonymous3 December 2014 at 15:46

    I forgot to say that the hearing took place on 25th November and the judge said they will send the decision in the mail.

    ReplyDelete
  32. Anonymous12 December 2014 at 23:37

    Hi, I've rented a room in Waterloo, ON and I had to leave Waterloo for personal reasons - so I subletted the room to another person. We drew up a contract but he is not paying the rent - so I wanted to kick him out. Are there ways of doing this?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele13 December 2014 at 11:30

      Hi: Assuming that you had a proper RTA covered tenancy, and the sublet was valid with the consent of the landlord, with an intention by you to return to the unit, then you do have recourse under the RTA. Unfortunately, it is cumbersome and you as the tenant now have to treat your subtenant as a regular tenant and you have to behave as a landlord. The RTA makes you a "landlord" and you proceed against the sub-tenant by serving the notices on the subtenant that a landlord would serve on a regular tenant. So, in this case, you would serve an N4 (Notice of Termination for Non-Payment of Rent) and then proceed in the normal course.

      The basis for a tenant becoming a landlord in relation to a subtenant is found in section 99 of the RTA. It provides as follows:

      Tenant’s notice, application re subtenant

      99. The following provisions apply, with necessary modifications, with respect to a tenant who has sublet a rental unit, as if the tenant were the landlord and the subtenant were the tenant:
      1. Sections 59 to 69, 87, 89 and 148.
      2. The provisions of this Act that relate to applications to the Board under sections 69, 87, 89 and 148. 2006, c. 17, s. 99.

      Presuming a valid sub-let under the RTA this is the way to proceed under the RTA.

      Good luck

      MIchael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Anonymous18 December 2014 at 20:48

      Thank you for your reply! So I served him with N4 and I found that he has no intention of paying me the rent. The worse thing is he's threatening me that he can do whatever he wants after the termination date (meaning he may stay until actual hearing is schedule and so forth) - and he knows that I plan to get a new subtenant. So he's sort of using that as his leverage. Is there any way that I can make him leave the premises after the termination date?

      Delete
  33. Anon26 December 2014 at 01:24

    Wow, where do you find all the time to answer all of these?

    I'm new to this game, I've never had to deal with bad roommates before. I live in a 3 bedroom apartment with 4 people, and only 2 of us (including myself) are on a year lease. The other 2, a couple, have refused to sign the lease because of a minimal rent increase, so I suppose they are month to month tenants. They recently adopted a cat as well, which goes against what I had agreed to on the lease (other roommate is allergic too!).

    I am unhappy with the situation: too many people for my liking, plus my personal space and items have been used without my consent. Can I ask my landlord to install a lock on my door?

    I've looked through a lot of information, but I can't seem to find anything that specifically helps me. Any information you can provide me with would be helpful.

    ReplyDelete
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    1. Michael K. E. Thiele30 December 2014 at 09:32

      Hi: There is nothing wrong with asking the landlord to install a lock on an interior door in the unit. This is what the RTA says about lock changing:

      Changing locks
      35. (1) A tenant shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without the consent of the landlord. 2006, c. 17, s. 35 (1).
      Landlord application
      (2) If a tenant alters a locking system, contrary to subsection (1), the landlord may apply to the Board for an order determining that the tenant has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without the consent of the landlord. 2006, c. 17, s. 35 (2).
      Order
      (3) If the Board in an application under subsection (2) determines that a tenant has altered the locking system or caused it to be altered, the Board may order that the tenant provide the landlord with keys or pay the landlord the reasonable out-of-pocket expenses necessary to change the locking system. 2006, c. 17, s. 35 (3)

      As you will see, the RTA is silent about interior door lock changes and arguably you can just go ahead and do it.

      All that being said, I trust you recognize that your living circumstances are problematic. As a tenant who signed the lease you are responsible for the behaviour of all occupants of the rental unit. The two people causing you problems are possibly not tenants and you could be liable for their behaviour. Asking for internal locks on doors is suggestive of a rooming house (or an illegal rooming house---not criminal illegal--just not zoned)--is that your situation? If so, then there may be multiple tenancies inside this apartment. Consider dropping in to a local legal clinic and ask to meet with someone who knows about Residential Landlord and Tenant law. They will have a bunch of questions for you to help sort out exactly your legal position and they could advise you on what to do.

      Best of luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  34. Anonymous27 December 2014 at 21:17

    Hi Michael. Not sure if the first post actually posted but here goes again. I recently rented an apartment with somene I thought was my friend. This person has been stealing from me since we first moved in at the beginning of this month. Today she stole from my kids (video games and a $40 gift card for the movies). Then tried selling those same things to my friends! The apartment is in my name the only thing she has is a rent verification form for odsp saying how much she pays. I called the police and reported it, she also has a very bad prescription drug addiction which I didn't report but is in no doubt the reason she steals. Does this give her 10 days notice due to the drugs and illegal activity or 20 days? Her january rent is paid as well as she did pay half the last months rent. Can I kick her out? Can I change the locks with the landlords permission? Being a single mom in a not very high paying job I can't exactly give her the money back. I just need to know what I can do. Any advice would be appreciated. Thank you!

    ReplyDelete
    Replies
    1. Michael K. E. Thiele28 December 2014 at 08:27

      Hi:
      I'm sorry for your bad luck in choice of roommate. In Ontario, a person who is not a tenant has very limited rights to remain in a rental unit. So, the 10 days notice you are speaking of is not something that she has a right to. In fact, with respect to Notice the most that she would have, as your roommate, is whatever was contracted to or alternatively an implied reasonableness under the circumstances. Certainly, I don't think "reasonableness" would exceed 10 days as that is the statutory notice period for illegal act. Given that she is in your home and she is stealing from you and your children I think most people would find zero notice to be reasonable.

      If it is clear that this roommate is not a tenant (i.e. she is your roommate), then under the circumstances you describe (and presuming there isn't anything significant that you haven't mentioned) then you may certainly proceed to kick her out. You should coordinate this with the landlord so that the landlord knows you are removing her from the rental unit, change the locks (which will require the landlord's help), and to let it be known to the landlord that this person is no longer your guest and that she does not have your permission to be on the residential complex. You are liable for the actions of your guests on the residential complex--so it is important to make it clear that she isn't your guest anymore. If you are concerned about safety or there is a risk to children please do consider calling the police and asking them be present to assist you in kicking out this roommate. Advise them of your safety concerns (if any).

      Best of luck.

      Michael K. E. Thiele

      Delete
  35. Anonymous30 December 2014 at 11:31

    Hello Interesting articles!

    This is current situation, Daughter who will be 18 in 5 months. Attitude and behaviour are and have been deteriorating for a while. So what is Parents rights obligations on 18th Birthday. Parents are listed as Tenants and have a lease in place. We clearly do not wish this behaviour attitude to be in our house and especially after 18th birthday. On 18th what can we do. Also she has been suspended from school and is now in a safe school coop program hence no formal classroom or school schedule. We have tried and thought of everything and need a new fresh set of ideas and thoughts.

    ReplyDelete
    Replies
    1. Michael K. E. Thiele30 December 2014 at 15:33

      Hi:

      I'm sorry that you are having problems with your daughter. I limit my comments to issues of Residential Tenancies Law, specifically the Ontario Residential Tenancies Act (RTA). The RTA is not going to be of assistance to you and the problems that you describe having with your daughter. However, you should be aware that under the RTA you are responsible for the behaviour of the occupants of your unit as well as any guests. Often enough, parents are evicted from their homes because of the behaviour of their children. Accordingly, if you have concerns that your daughter's behaviour may give rise to grounds for termination of your tenancy you would be wise to get advice about your options respecting your daughter. Perhaps speak with your family doctor for referrals to appropriate agencies and in addition meet with a family law lawyer who may be in a position to advise you with respect to your legal obligations towards your daughter.

      Good luck and I hope that it works out for you all.

      Michael Thiele
      www.ottawalawyers.com

      Delete
  36. Anonymous4 January 2015 at 02:12

    Hi Michael,

    Thank you so much for your insightful advice, it is much appreciated. I really am in a tough situation I hope I can get some advice and guidance.

    I am a landlord who rented to two individuals (both on the lease). Right off the bat, one of the roommates was shocked to notice that his friend (who he thought he knew) is doing illegal drugs on a regular basis, very noisy, and disruptive. He contacted me right away saying that he wants to leave the apartment. I have advised him to send me details of what his friend is doing and it is essentially a daily ritual of hard drugs (crack cocaine) and dealers coming by and even some dealing going by. This has shocked me beyond belief because I never had anything remotely close to this happen.

    My question is what is the best way to go about terminating this tenancy? The good roommate clearly wants to get out and says he can in no circumstance be roommates with this individual. Is it better for the roommate to call the police and have a record of the drug use? If I file an application for termination, does the Tenant Board care that one of the roommate is testifying for the landlord against the other roommate?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele4 January 2015 at 11:20

      Hi: An unusual situation to say the least. You seem to be under the impression that "reporting" roommate is credible and that what he is reporting is true. Do you have any independent evidence of these allegations? Perhaps it's true, perhaps there is an ulterior motive, do you know for sure? If it is happening you are right to want to terminate the tenancy as this kind of activity--serious drug use, dealing, antisocial behaviour, will only attract more and greater trouble to your building in time.

      In my view, on these allegations, the best thing to do is to seek to terminate the entire tenancy. Use the Form N6 (illegal act). You have grounds in the both box 1 and 2 of that form--the box two grounds being the use of these drugs. As far as the noise goes, your comment does not provide enough information to support the service of an N5 (i.e.--other tenants, other than the roommate disturbed etc.).

      There is nothing wrong with the roommate being the witness to support the application. However, I wouldn't be entirely surprised if you find that the roommate becomes less cooperative as the hearing date draws closer and you may find him to be a no-show for the hearing. I'm still skeptical about his "surprise" and suspect that there is likely something else behind it. Perhaps they're in cahoots to get you to terminate the tenancy because they both want out?

      Anyway, presuming that the allegation is sincere (and true) then you should certainly try to get rid of this activity from your property. Start with the N6, file the application with the Board, and don't stop until you have vacant possession and an Order from the Board returning it to you. Don't "release" either roommate from any liability, no deals in exchange for help, nothing like that. If this kind of activity is going on you may indeed be shocked by the condition of the premises when you regain possession. IF the reporting roommate is not exaggerating the extent of what is going on it would be worthwhile for him to go to the police and for you to contact them as well. The roommate may find himself in serious trouble, presuming he is innocent of what is going on, should the police raid the apartment (yes--it does happen).

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Anonymous4 January 2015 at 16:24

      Hi Michael,

      Thanks for the quick reply. I don't doubt the roommates version, and am sure there is no conspiracy in terms of ending the lease because the other roommate was very keen in getting the apartment.

      I just received an email from the roommate saying they will vacate the apartment at the latest by the end of the month because of the situation. I did have a clause in the lease saying that the lease can be transferred as long as I approve of the new individual(s) before moving in, so I think he is taking that clause but leaving it to the other roommate to take care of it.

      I just want to know how likely is it that I can get an eviction based on the written (emailed) testimony of the roommate (assuming he does not show up)? Do you think I should send the notice right away or gather more evidence, perhaps contact other tenants and/or have the police involved to have more evidence. Again, I don't doubt this is happening but want to know if I need more solid proof.

      Lastly, about reporting to police, can I just call or go there personally? Will they do anything?

      Thanks in advance, I really appreciate any advice, I am very stressed about the situation.

      Delete
    3. Michael K. E. Thiele4 January 2015 at 20:18

      HI Again: Sticking to your questions: You will indeed need the tenant at the hearing to testify. IF the remaining tenant disputes the allegations and all you have is a letter or even an affidavit you will lose. If the application is uncontested then written statements may indeed be "enough" to win. I recommend that you get (or perhaps you already have) a written statement from the roommate indicating what is happening in the unit with a high level of details (who, what, where, why, when, how). As soon as you have that statement serve the Notice of Termination. You should make it clear to the tenant who intends to leave that he is liable for rent and damages until the tenancy is terminated or he is replaced on the lease on consent. He should understand that simply leaving does not absolve him from responsibility. Once you have a written statement from your tenant give the local police a call (regular number--not 911) and just ask the police how to proceed and tell them what is going on. There are a great number of factors that go into the decision making of the police. All you can do is make the report and wait and see what they do (if anything). Certainly, having as much evidence as possible is preferable. However, if you've heard nothing from neighbours or other tenants what is the likelihood that the case is going to get better/stronger. The roommates evidence is likely to be as good as it gets (unless of course the police raid and arrests are made).

      Good luck

      Michael K. E. Thiele

      Delete
  37. Anonymous6 January 2015 at 22:33

    Good day Michael,

    Interesting and eye opening information here. Hoping for advice on my situation. I am the property owner of a single family rental home who entered into a signed 1 year rental agreement with a single tenant. A few months into the agreement my tenant took in some roommates who are not on our agreement. Subsequently my tenant requested to cancel our agreement, to which I agreed and we filled out form N11 and agreed to a move out date. My tenant provided his roommates notice (over 30 days). The move out date has since passed and I'm not sure if my tenant has vacated as his belongs are still there and his roommates also remain. I went to the Board thinking I needed form A2 for unauthorized occupancy but was advised that form L3 was the correct form.

    If the eviction order is issued on the strength of the L3 for agreement to vacate, will this also apply to the "roommates" as well or will that be an entire different process.

    Thank-you,

    Confussed

    ReplyDelete
    Replies
    1. Michael K. E. Thiele7 January 2015 at 10:57

      Hi:

      This is an interesting question the answer to which I think depends entirely on the specific facts applicable at the time of filing the application. If there was more flexibility with the forms I would be inclined to plead an alternative--i.e. the L3 first, and the A2 in the event that the tenant has vacated. The forms do not work that way, unfortunately.

      I suspect that the reason the Customer Service Representative (CSR) told you to go with the L3 as opposed to the A2 is that you told them that your tenant was still in possession of the rental unit. With the tenant still in possession my opinion is that the L3 is the correct form. However, if the tenant is out of possession, then the A2 is the correct form and application as the tenant has now transferred occupancy to unauthorized occupants and has vacated the unit.

      The direct answer to your question is that the Board Order, that will issue as a result of the L3 will be to terminate the tenancy and direct the Court Enforcement Office to give you vacant possession of the rental unit. The vacant possession of the rental unit means that all occupants will be removed from the premises when the sheriff attends to enforce the Board Order.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Anonymous7 January 2015 at 13:44

      Hello Michael,

      Thanks for the prompt reply. In the event my tenant leaves prior to an evict notice being ordered I would have to submit A2 for the roommates? And would a hearing be held under this situation or would an evict order be issued without a hearing as is the case with the L3?

      Thanks again,

      Not so confused

      Delete
    3. Michael K. E. Thiele7 January 2015 at 14:55

      Hi Again: If you have filed the L3 already with the filled out N11 form and the tenant was in possession at the time of the filing you are very likely to receive an Order in the mail that terminates the tenancy and which allows you to file the Order with the Sheriff. This happens without notice to the tenants. The tenant could, upon receiving the Order file a motion to set aside the Order and seek to dispute the application. This would automatically lead to a hearing being scheduled.

      The tenant has moved out it is unlikely that he would file a motion to set aside and hence you will have an enforceable Order in hand. The remaining occupants of the unit (presuming the tenant has moved out) may be upset with a Sheriff's Notice to Vacate being posted on the door. As they are not tenants they don't have standing at the Board to bring an application or to set aside the Order as of right. However, they could seek to set aside the Order by filing a Request to Review (Rule 29), as any person who is directly affected by an Order may seek to have it reviewed. If the occupants did this one would expect that they would assert that they are tenants and that as tenants they had the right to know about the N11 and the right to seek to set it aside. The mere allegation is likely enough to get them a hearing which would stay (stop enforcement) your eviction order pending the resolution of the Request to Review. If this should happen, you could file an A2 then to put the question of "unauthorized occupants" squarely before the Board though I expect that the Review Hearing would effectively deal with that very question. If you won the review hearing the review would be dismissed and the Stay of the eviction would be lifted. If you lost the review hearing the original order would likely be set aside and there would be a "replacement" order reflecting the decision of the adjudicator.

      This reply is likely a whole lot more than what you expected--but I set it out to demonstrate that nothing in law is ever certain and that a case is never as clear cut or simple as one might expect.

      With respect to an A2 application, I don't think you will find yourself in a position of needing to issue one. However, if you do proceed with one there will indeed be a hearing (i.e. it is not ex parte (without notice) like the L3 typically is.)

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  38. Anonymous8 January 2015 at 16:42

    Hi Michael,

    As like many of the people posting here, I am in an odd situation and in need of advice.

    I entered into a verbal lease with a landlord with 3 other roommates (4 in total), one of which being a good friend, and the others not knowing very well. My good friend has since moved out, and the other two tenants have started a witch hunt to remove me as a housemate as well, even though I have caused no damage to the house, have not done any sort of drugs, or done anything evictable as far as the RTA would be concerned.

    Due to my tight work schedule, I do not want to move, or have the ability to move within the next 3 months, would they be legally entitled to remove me from the house or no?

    Thanks in advance,
    P

    ReplyDelete
  39. Anonymous14 January 2015 at 19:26

    Hi Michael,
    I am a landlord and am in a situation where I agreed to an early lease termination. The tenant had a roommate that I approved, but refused to sign the lease. As the tenant has now moved on, the roommate refuses to leave and has not paid rent. Is the roommate covered under the RTA, or can I have him evicted/removed from the premises.
    Thank you,
    Roger

    ReplyDelete
    Replies
    1. Michael K. E. Thiele15 January 2015 at 11:28

      Hi Roger: The roommate is likely an unauthorized occupant. The RTA applies--but in a favourable way for you. You can use the A2 application to apply to the Board to get an eviction Order against the unauthorized occupant. Be aware that you have a very limited time to apply to evict otherwise the unauthorized occupant is deemed by the RTA to be a tenant---which means a different eviction process.

      Good Luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Anonymous15 January 2015 at 13:26

      Thank you so much for the speedy reply.
      I have been trying to amicably resolve this for two weeks. Do I still have time to file an A2?
      Thanks again

      Delete
    3. Michael K. E. Thiele15 January 2015 at 13:59

      Roger: The applicable section of the RTA is section 100. According to section 100(2): "An application under subsection 1 must be made no later than 60 days after the landlord discovers the unauthorized occupancy." Presumably you expected the roommate to move out when the tenant moved out. When he didn't move you ended up with an unauthorized occupant of the rental unit. So you do have time to file but you should do so very soon.

      Michael K. E. Thiele

      Delete
  40. Unknown31 January 2015 at 15:57

    Hello,
    I have a question regarding guests in a licensee/ licensor relationship (my parents own the house and I live in it with 3 other roommates). Can a renter have overnight guests over or do I have a right to remove these guests? There is an issue with one renters mother staying on weekends causing a disturbance and friction in the house. They have also previously signed a lease stating no overnight guests.
    Thankyou
    Corinna

    ReplyDelete
    Replies
    1. Michael K. E. Thiele2 February 2015 at 09:31

      HI Corinna: From what you describe I understand that you are sharing a kitchen and bath with roommates who are renting from your parents and in that sense you are also a tenant of your parents. Section 5 (i) of the Residential Tenancies Act exempts this tenancy from the RTA--meaning the rights and responsibilities set out in the RTA do not apply. If this were an RTA covered tenancy then a tenant would have greater rights with respect to guests. Your situation, being exempt from the RTA is therefore covered by the terms of your contract. The roommate has no right to have his/her mother stay unless that right is contracted to.

      Michael Thiele
      www.ottawalawyers.com

      Delete
  41. Anonymous31 January 2015 at 17:49

    Hi Michael,
    Excellent blog you have here. My son is one of six tenants going to University in Ottawa. He pays the utilities and the others pay him back. He has no written agreement, and one roommate has paid nothing for nine months, and is leaving the house in three months. Would small claims court be our best option? Would a registered letter to the roommate before he leaves be helpful in court?
    Thanks,
    Chris

    ReplyDelete
    Replies
    1. Michael K. E. Thiele2 February 2015 at 09:18

      Hi Chris: Presumably voluntary payment is not forthcoming so there will be no choice but to sue. I don't see the point of a notice letter as I suspect the issue of him not paying must have been raised a number of times. If the claim is under $25,000 then Small Claims Court is the way to go (I'm presuming that the property is in Ontario). To save yourself some headache in getting this roommate served with the Plaintiff's Claim it would be worthwhile to issue it while he is still in Ottawa and serve him before he leaves (you need personal service for a claim).

      Good luck

      Michael K. E. Thiele

      Delete
    2. Anonymous2 February 2015 at 13:36

      Thank you Michael.
      -Chris

      Delete
  42. Anonymous4 February 2015 at 11:41

    I need some guidance about asking our 22 year old son to leave our home. He has not paid any rent, has quit many jobs & owes a lot of money to creditors & also us, his parents. Question, do I legally have to give him any notice about leaving ie 30 days to pack up & move? If he won't leave will the police assist us? Thank you for any help you can offer, Maureen

    ReplyDelete
    Replies
    1. Michael K. E. Thiele4 February 2015 at 13:05

      Hi Maureen: On this blog all I can tell you is that your son has no rights under the Ontario Residential Tenancies Act. You are not a landlord and he isn't a tenant and as such there is no notice required. Whether you have any obligations to him otherwise is perhaps a question for a family law lawyer as I am not familiar with the current law respecting the support obligations of family members for each other. While I would be very surprised if you had any obligation to your son at this stage of his life it wouldn't hurt to check with a lawyer who is familiar with that area of the law. I do expect that the police would assist you in removing your son. If you think it will come to that you may wish to communicate with them in advance, let them know of your intentions and perhaps have them present to escort your son from the home.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  43. Anonymous9 February 2015 at 09:36

    Good morning...

    I realize that your response will not and cannot be considered 'legal opinion' unless you are retained.

    In a nutshell, I rented a 3 bedroom apartment on a short term lease because the property is being torn down. I am the only person on the lease. When I rented, I indicated that my nephew would be moving in with me. This was agreed to verbally with the property owner's representative.

    I rented out the third bedroom to reduce costs.

    The third person is creating problems with noise and smoking inside his room (which is a violation of the lease and our agreement) and sometimes plays loud music. This has affected the tenants next door.

    The landlord has called me and told me that the other two (my nephew and his friend) have to be tossed out because they are disruptive and are not on the lease. While the lease specifically says I cannot assign or sub-let the apartment, there's nothing that says I can't have roommates.

    I have a verbal agreement from the trouble-maker that he will be leaving at the end of this month. This, apparently, is not sufficient for the landlord and he says he is sending me a notice to have everyone other than me out of the apartment by the 15th.

    First, can he do that, and second, what are my options?

    Thanks - your blog is fantastic as far as giving general and specific information on LTA and LTB.

    Cheers

    ReplyDelete
    Replies
    1. Michael K. E. Thiele9 February 2015 at 14:16

      Hi:

      Having roommates is not "subletting" or "assigning" as those terms are defined in the RTA. And so you know, the prohibition in your lease on subletting is not lawful (see s.97 RTA). You are entitled to have roommates and the landlord has virtually no say on that. The landlord can't tell you who your roommates are or who visits you etc..

      The landlord's ability to deal with your roommates is limited to dealing with you. Under the RTA you are responsible for the behavior of your roommates and you are financially liable for anything they might do in or about the residential complex. Their behavior could get you evicted. For the behavior you describe (smoking & noise) the landlord could serve you with a notice of termination--the grounds being that your roommate is smoking and making noise. That Notice of Termination could result in your eviction. I would assume that the landlord would use a form N5 for smoking and noise. This is a voidable notice, meaning that if the behaviours complained about stopped immediately and nothing similar happened within the next 6 months then the Notice would become void and the tenancy would continue. If the behavior did not stop (for the 7 days following the service of a Form N5) then the landlord could apply to the Ontario Landlord and Tenant Board for an eviction order. At that hearing you could argue for another chance etc.. It is likely that you would get some kind of opportunity to maintain your tenancy if you were behaving reasonably. If the behavior did stop for 7 days but something else happened within 6 months then the landlord could serve you with a "second" N5 which is not voidable. He would then apply to the Board where you could explain yourself and seek the adjudicator's exercise of discretion. Again, if you are reasonable and you have taken proper steps to deal with the issue then it is likely that the LTB would give you another chance to maintain your tenancy.

      In short, I think your arrangement to get rid of the trouble maker by the end of the month is a good thing to do. You should also make sure that the troublemaker doesn't cause any more trouble between now and the end of the month. He needs to understand that his behavior could get you evicted. If he misbehaves---i.e. smokes or makes unreasonable noise---you need to consider kicking him out immediately as the risk to you is real.


      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
    2. Anonymous9 February 2015 at 22:09

      Thanks Michael.....

      I got a call from the landlord this evening and he re-stated his assertion that because my nephew is not on the lease he's not allowed to live there.... because we're all out of here in April when they tear the house down, and I'm looking for a new place to live, I need to remain on somewhat good terms with him for the purpose of a reference..... my TEMPTATION is to send him a copy of your blog dated January 6, 2015.... but I think that would only aggravate him.... should I 'educate' him for the future, or should I send it to him so that he'll back off a bit and rethink his position? By the time he files an N5 and I take it to the board, the lease will be up at any rate.... which will only serve to annoy him and cost him the filing fees...

      Here's a new question though....

      A *LOT* of ads state 'must show proof of employment' or 'employment letter' or 'paystubs required' - which as I understand the Ontario Human Rights Act is illegal because it essentially deters people on ODSP or OW from applying for the house or apartment.

      In a couple of cases I have seen ads that say 'no drinking' and 'vegetarian only' - are those restrictions legal? Could I get tossed out because I have a steak now and then and a glass of wine with my dinner?

      What recourse does one have when one is on ODSP and gets a response that says 'we do not take applications from people on ODSP'?

      Thanks again!

      Delete
  44. Anonymous10 February 2015 at 18:43

    Thanks Michael.....

    I got a call from the landlord this evening and he re-stated his assertion that because my nephew is not on the lease he's not allowed to live there.... because we're all out of here in April when they tear the house down, and I'm looking for a new place to live, I need to remain on somewhat good terms with him for the purpose of a reference..... my TEMPTATION is to send him a copy of your blog dated January 6, 2015.... but I think that would only aggravate him.... should I 'educate' him for the future, or should I send it to him so that he'll back off a bit and rethink his position? By the time he files an N5 and I take it to the board, the lease will be up at any rate.... which will only serve to annoy him and cost him the filing fees...

    Here's a new question though....

    A *LOT* of ads state 'must show proof of employment' or 'employment letter' or 'paystubs required' - which as I understand the Ontario Human Rights Act is illegal because it essentially deters people on ODSP or OW from applying for the house or apartment.

    In a couple of cases I have seen ads that say 'no drinking' and 'vegetarian only' - are those restrictions legal? Could I get tossed out because I have a steak now and then and a glass of wine with my dinner?

    What recourse does one have when one is on ODSP and gets a response that says 'we do not take applications from people on ODSP'?

    Thanks again!

    ReplyDelete
    Replies
    1. Anonymous15 February 2015 at 14:37

      I have the same questions as this person for everything after "heres a new question".

      Delete
    2. Michael K. E. Thiele16 February 2015 at 06:54

      Hi Again:

      The first place to take a look is the Ontario Human Rights Code (HRC). The first 9 sections of the HRC provide a statutory framework outlining prohibited behaviours in relation to accommodation. Beyond that, the website of the Ontario Human Rights Commission (NOT the Ontario Human Rights Tribunal) has helpful information about discrimination in accommodation---see http://www.ohrc.on.ca/en/social_areas/housing .

      As for what can you do about discrimination or suspected discrimination. Two avenues are readily available. The Landlord and Tenant Board has the jurisdiction to deal with Human Rights complaints and if you are in a landlord and tenant relationship you might consider filing an application to the Board and raising the HRC issue in that application. The other alternative, and the likely one to be pursued if you are not in a landlord and tenant relationship is an application to the Ontario Human Rights Tribunal (that application you can find on the OHRT website). While the application process is simply enough, be aware that you will still need to prove your case and collect the evidence that supports your allegations. Certainly, if you receive a written refusal of your application that says "we do not take applications from people on ODSP" that is fairly damning evidence against the prospective landlord. Frankly, I'm shocked that any landlord would be so bold and overt in their discrimination as in my experience landlords who are inclined to discriminate do so quietly.

      With respect to your question about "no drinking", "vegetarian only", I'd have to say "maybe" to possible eviction. Context is everything which makes hypothetical questions difficult to answer. In a building that is set up for recovering alcoholics where everyone agrees to remain drug and alcohol free one could imagine circumstances that would make drinking in such a housing complex problematic for other tenants. While I can't imagine the grounds for terminating on the basis of eating a steak the possibility can not be excluded entirely depending on the actual facts of the situation. That being said, I think it is safe to say that in the vast majority of circumstances the LTB would not terminate a tenancy for the uneventful consuming of beef and alcohol by a tenant.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  45. Rob in Toronto12 February 2015 at 16:23

    Brief question - I have a 3 bedroom apartment and want to rent one of the rooms out - from reading this blog I understand I am able to do that because the lease is in my name and I'm the one responsible for the rent and the condition of the apartment, noise level, etc.

    The landlord says he wants a copy of the photo id of anyone I rent to so that he can do a 'background check' - whatever that means.

    Am I required to comply?

    ReplyDelete
    Replies
    1. Michael K. E. Thiele16 February 2015 at 06:26

      Hi Rob:

      I presume that when you say that you want to rent out one of the rooms that you intend to continue living in the unit as well. If so, the person you are renting to becomes a roommate. You are certainly entitled to do this. What the landlord is asking you to do with respect to roommates is not a demand that is supported in the Residential Tenancies Act. He can't actually require that you allow background checks or obtain photo id from prospective roommates. These roommates are your guests and your responsibility.

      That being said, what your landlord is asking and what your landlord is seeking to do is not necessarily a bad thing. In fact, it may be something that you want to consider doing yourself. If you are bringing in roommates who are "strangers" perhaps getting a background check and a copy of identification would be a good thing for you as well. What if the roommate you bring in, who seemed "normal" the first time you met them, turns out to be destitute with a long history of making trouble for landlords and roommates. If a background check reveals this that would be a good thing for you as well. Remember, that you are liable to the landlord for anything that your roommate does on the Residential complex including payments for damage caused to the complex and of course you could be evicted for any improper behaviour of the roommate as well.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  46. Unknown14 February 2015 at 16:32

    Hi Michael,

    I am messaging on behalf on my father, who resides in New Brunswick and is an Ontario landlord. We were just wondering the by law pertaining to evict a tenant from one our apartment complexes. He has been unresponsive and uncooperative with letting possible clients or buyers from viewing the apartment. We haven't made a profit off this apartment for over 7 years, and have been trying to sell it since then. The tenant also has an expired lease , but persists on paying monthly rent without signing a new lease. Is there anyway we can evict the tenant ?

    Thanks in advance ,

    Best

    ReplyDelete
    Replies
    1. Michael K. E. Thiele16 February 2015 at 07:03

      Hi:

      Section 27(2) of the Residential Tenancies Act allows you to give 24 hours written notice of entry for the purposes of showing a rental unit to a prospective purchaser. The entry with notice provisions in the RTA are as follows:

      Entry with notice

      27. (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
      1. To carry out a repair or replacement or do work in the rental unit.
      2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
      3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
      4. To carry out an inspection of the rental unit, if,
      i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
      ii. it is reasonable to carry out the inspection.
      5. For any other reasonable reason for entry specified in the tenancy agreement. 2006, c. 17, s. 27 (1).
      Same
      (2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. 2006, c. 17, s. 27 (2).
      Contents of notice
      (3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3).


      If the tenant refuses entry or interferes with that entry then you could serve the tenant with a Notice of Termination. While it depends on how the entry was refused, I suspect you would use a Form N5. If the tenant continues to refuse to allow entry then you could apply to the Board to evict.

      Over the years I have had a great many cases like this. Often, the tenants' next step will be to make the place so messy and such a disaster that it discourages any prospective purchaser from buying. If the tenant does behave in this way, that behaviour can also be the basis for serving a Notice of Termination. The tenant has a statutory obligation to maintain the unit to a standard of ordinary cleanliness.

      With respect to the expired lease there is absolutely nothing you can do about that. A tenant in Ontario has an absolute right to continue a tenancy on a month to month basis after the expiry of a fixed term lease.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  47. Unknown14 February 2015 at 18:12

    Hello,

    I have a strange situation and I am not sure where I go for help.

    I brought in my friend and her husband after they were evicted from their apartment and living in their vehicle, on what was supposed to be a temporary thing. I have been storing their furniture from when they were kicked out in April 2014 until now, and brought them into my home in August 2014. When I brought them into the house, we had a verbal agreement that when my step-son was here (every other weekend) that it was to be HIS room first, as I don't want him to go without. After being here for two months, with out even trying to find their own place, I asked them if they can start paying rent (as I can not afford to have people living in my house, eating my food, using my facilities, etc. for free). As they are on O.W., we had to send in a paper stating that they are paying money for "room and board" in order for them to get some money to help with the extra costs. My friend's husband wouldn't help in the process of getting the support from their O.W. worker, in which my friend and I had to do everything.

    Since they have been here, my entire family, including our dog, has been mistreated. My three children can't play with their toys as they used to as he (the husband), complains about everything they do. My three children have been yelled at and cursed at (by the husband). I would be watching television and would leave the room for a few minutes to come back to the channel changed to his show. He would push everyone's shoes out of the way to put his boots where he feels (including on top of a pair of my expensive Suede shoes that are now ruined because of water and salt from his boots). He would come in at all hours of the night, potentially waking my children up at times. Has even caused stress and anger between MY husband and I. He's even used his feet to push/kick my dog out of his way (instead of just saying for her to move, which she would do if asked).

    Last night, in the middle of the night I might add, he started complaining about my step-son, even insulting him. I finally spoke up, telling him that it is not appreciated, nor acceptable in this house that he puts down my child(ren). He then got up, yelling and screaming at me, heading to the door to leave. I told him that he is to leave and not come back until he can show some respect for my house and my family. He then left the house, standing on the porch with his wife (my friend). After talking with her, he attempted to re-gain entry into my house, where I told him that he was not welcome here with his attitude. He then got within a couple inches of my face, screaming at me and threatening my life. I then asked him to leave and not come back at all.
    My questions are:
    1. Do I have to provide "reasonable notice" for him to vacate the property, and if so, how long is "reasonable notice"?
    2. If I do have to give him reasonable notice, what do I do about my family and I (including our dog), if I have reason to fear for our health and safety?
    3. Do I have to return any portion of his "rent money" for leaving in the middle of the month, even though he was only asked because he threatened my life?
    4. What can I do about his furniture that I have been storing for almost a year? Do I have to keep it or can I give him a couple days to pick up before throwing it out?

    I can not allow a man in my house that has threatened me with violence, especially a death threat, when I have three children in the house. My husband and I do not know what to do, as our situation is strange. If I can get some advice, it would be greatly appreciated.

    Thanks in advance,
    Kayla

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    Replies
    1. Michael K. E. Thiele16 February 2015 at 07:18

      Hi Kayla:

      On the facts as you describe them I don't see any need to provide any notice whatsoever. Given the circumstances of the threat you should make a report to police as well. Not just for the purposes of charging him but if there is an incident at the house in the future then the police will be aware of his status and that he has threatened you before. With respect to the rent money. I am sure you have committed resources to having him and his family in the home. His behaviour and the need to immediately bar him from the premises does not change the fact that you incurred expenses in having him there. The rent that you have---and I presume it is only a couple of weeks worth--is not an amount that I think needs to be refunded. With respect to the furniture. This is more complicated. I'd give him a certain date on which he can pick up the furniture and advise that he will need to arrange to have a police officer present to keep the peace. If he fails to show up, then take a look at the value of this furniture. If there is some value, consider moving it out of your premises to a storage locker and pay for one month of storage. Put a lock on the storage locker and then send him the key and storage location. Advise him that he as a month to get his stuff. After that month, he will have either picked it up or you can work with the storage company to sell it, throw it all out etc.

      Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  48. Anonymous18 February 2015 at 11:02

    Hi Michael....

    This isn't REALLY a question, although feel free to comment....

    I am on ODSP looking for a place to live... when I respond to an ad on Kijiji or Craigslist, I always ask if they accept applications from people on disability.....

    Here's a response I got yesterday....

    "Sorry, we prefer people have a stable job."

    Here's how I responded....

    ***
    That is a shame. It is also a violation of the Ontario human rights act. I will forward your email to them and request a hearing on the grounds of discrimination in accordance with the Act.

    By the way....

    Here's some food for thought ....

    If someone is on disability, they are guaranteed their cheque every month.....

    If you worked at head office at Tim Hortons last month, you had a 'stable job' - but your job just disappeared last week when they laid off 300 people.

    Which is better? A guaranteed cheque from the government, or a 'stable job' that might not exist tomorrow because the company got sold or went bankrupt.

    Be careful if you get any applications from someone working for GM - they're about to shut down one shift at the plant in Oshawa.

    Would you like a list of "stable jobs" that disappeared in the last month.... shall we start with Target employees?

    ***

    Oh, here's a question.... IF someone files a complaint with the Human Rights Commission, does the landlord get a financial penalty imposed or fined or can the complainant be compensated for having been discriminated against?

    ReplyDelete
  49. Anonymous18 February 2015 at 16:51

    Michael,

    Firstly, thank you for writing this blog entry. I have had a surprising amount of difficulty tracking down information regarding a boarder's rights, evicting a boarder, etc. Most FAQs and the like primarily cover tenants' rights.

    [Note: The following two paragraphs go into detail regarding our troublesome boarder and what life has been like with her here. If specifics aren't necessary for you to be able to answer the questions that follow, feel free to skip them entirely and head over to my other reply that follows this one. Suffice to say, my significant other and I are on the lease, whereas our this individual is not. She gives us her share of the rent, and we give the total rent amount to the landlord company.]

    My situation: My significant other and I are sharing a two-bedroom apartment with a woman who moved in on February 1st, with a verbal agreement that she could remain for 3-4 months (provided things go well). Unfortunately, it has been something of a disaster: Even though she had seen the apartment--and her bedroom--before moving in, she brought with her far more possessions than she'd previously indicated, leaving our main room and balcony entirely unusable due to various pieces of furniture (a loveseat, various end tables and chairs, etc.) and plastic bins piled one atop the other. She refuses to sell or throw away items, or put anything in storage. She smokes in the apartment (we've asked her to stop twice), and is a drunk - by which I mean she is one of those alcoholics who seems to be steadily drinking from morning till night, everyday. We think she has bathed twice since she's been here, too, so the entire apartment smells - even though it is rare that she leaves her bedroom. Even her two cats, while adorable, have taken to climbing counters, tearing up the small planks in our wooden floor tiles, and peeing in the bathtub.

    Most distressingly, she seems to lie to an almost-comical, near-constant extent. She will enthusiastically agree to something one day, only to deny the conversation ever took place a few days later (or argue that the opposite agreement was reached). Even when confronted with text messages she sent, or voicemails she left, proving the other person right, she will continue to deny, deny, deny. She has sent text messages to my girlfriend's mother (they are--well, were--old friends, which is how we were introduced in the first place) falsely claiming mistreatment at our hands, or claiming we said something in conversations she fabricated entirely. At one point, she even sent a text telling my partner's mother that she had lit a fire in the kitchen that damaged the fridge; upon investigating, I discovered that nothing of the sort happened; she, of course, denied ever sending the message, going into near-hysterics when confronted on the matter. It is to the point where we are convinced that she may have some sort of mental disorder, based on her frequent bouts of self-pity, her paranoia, and her sense of persecution (by us, and the world at large, for she has many shaky--to put it mildly--tales of hardships she's been forced to endure, past and present).

    ReplyDelete
  50. Anonymous18 February 2015 at 16:53

    (Continued...)

    To make a long story short, we gave her notice on February 12th that she needed to move out by the end of the month. She agreed and said she was already looking for a place to live. Even with a lock on our door, though, we are worried about vindictive or retaliatory behaviour. She has already claimed that a big-screen LCD television in the living room belongs to her, when we have (as mentioned above) text messages and even audio recordings from her that prove it was a gift to the two of us from her old roommate when we assisted said roommate pack up her belongings in a hurry (which is a whole 'nother story). She has even gone so far as to claim we never helped her roommate at all, which is... mind-boggling, considering she was there the entire time.

    So, if things escelate and we are fearful for our personal safety, the safety of our belongings, or the wellbeing of the apartment itself, we will have to ask her to leave immediately. This, obviously, is an absolute last resort; we are hoping we can just grit our teeth and bear the ten or so days left. Even then, though, she may not be able to find an apartment in time. We are concerned about handling things in the most appropriate manner should we decide we have to evict her post-haste. Should we call the police first? What about her (many) possessions? And her cats? It is not our intent to be cruel, especially to animals; at the same time, we don't want her things here a moment longer than necessary, and cannot afford to pay for storage. I am worried about her trying to once again contest ownership of the television, even though we seem to have resolved it in our previous 'conversation'. Finally, because she's in her fifties and not in the best health, we are worried about how it may all look to outsiders (police officers, for example). She claims to have cancer, for what it's worth, but it has become impossible to tell fact from fiction with her; she may simply have made it up--or at least greatly exaggerated her true health problems--for easy sympathy/pity, or to explain away the days in which she's 'unable to get out of bed due to pain and fatigue' (an excuse we've overheard her using after a late night of hard drinking, which is a bit fishy). She seems to be without friends, and we've already learned that she's alienated her entire family, so there isn't anyone we can contact to assist us - either with her, or her belongings. When can we get rid of them, and what does the law say on the matter? (I accept that anything you say here does not constitute legal advice.)

    Thank you for taking the time to read this rambling reply. I hope to hear from you soon. All the best.

    -S

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    Replies
    1. Michael K. E. Thiele19 February 2015 at 10:37

      Hi S--:

      What a terrible and tough spot you are in. Based on what you say here I suspect that you also have your doubts that this roommate will be gone at the end of the month. With a track record of lying and making up some rather vicious lies I would expect that your roommate will resort to making up some wild stories if she is feeling threatened and pushed out of her home--with the likelihood of being homeless.

      Unfortunately the law does very little for you. There is no equivalent to the Residential Tenancies Act for tenant/roommate relationships--meaning there is no readily accessible (cheap and fast) method of adjudicating the dispute and getting enforcement by a sheriff etc.. With you as the tenant and only having a roommate (who is not a legal tenant), you are left with contract law (which means suing in Court) and getting the help of the police in enforcing eviction by your roommate as a trespasser. Getting help from the police in these situations is not as straightforward as you might think. Some police officers have said to me that they view this as a civil dispute that needs to be solved by a Judge. They see the roommate, and all of the roommates possessions in the unit, as a contractual relationship between the tenant and the roommate. They don't see their role as deciding whether the roommate needs to leave or not--as it is a matter of contract---not a matter of trespassing. Hence, some police officers take the view that so long as the peace is not being disturbed they are not going to remove anyone from a rental unit without a Court order. While I don't agree with this position, I certain understand the basis of the police officers concern as there is very little guidance in the law and certainly no statutes that explicitly deals with this issue.

      In my opinion a police officer should remove anyone from an apartment who is not a tenant, at the request of the tenant, because the tenant is the only person who has an interest in the property itself through the lease agreement. The nature of the right to occupy the premises, through the lease, is different to the right to occupy that a roommate has through a roommate contract. A roommate, if evicted contrary to the roommate contract, has the right to sue for damages for breach of contract (i.e. money). But the roommate does not have the right to sue for possession of the rental unit as that kind of interest is not what is granted to the roommate.

      Anyway, that is a bit of an aside. Given what you are experiencing I do think that you need to enlist the help of the police. I think that you should give advance warning to the police, advise them that you will be requiring your roommate to leave as of a certain date and that you want a police presence to keep the peace when you require her to leave. You should have the door locks changed and advise the roommate that her continued presence in the unit is trespassing and that she does not have the right to be present anymore. Hopefully the police will back you up on this.

      If the police do not back you up and instead maintain that this is a civil matter you might be compelled to go to Court to get an Order. At that point you will very likely need to retain a lawyer to help you.

      Delete
    2. Michael K. E. Thiele19 February 2015 at 10:37

      If you do manage to get the roommate out of your apartment but she leaves her stuff behind I think you need to make an inventory of the items and deliver them to her new place. If that is not an option you will need to put these items in storage (and pay for it). I would be very reluctant to let the roommate come and go and pick and choose what she takes as her personality, as you describe it, seems to be an invitation to unfounded allegations which will only get worse with the more contact that you allow. I appreciate your comment that you can not afford to put items in storage, that there is no family, etc., and presumably the idea of paying a lawyer to go to Court for you is also beyond your current means. In this context, every avenue of dealing with the problem seems cut off. Perhaps you are simply left counting on a positive police response to the problem and failing that perhaps giving your own termination and moving out of the unit to a new place to get away from her (i.e. if you can't force her to leave---leave yourself).

      Good luck

      Michael K .E. Thiele
      www.ottawalawyers.com

      Delete
    3. Anonymous20 February 2015 at 13:33

      Hello! Thank you for your prompt and sympathetic reply. :)

      Unfortunately, yeah, the reason we elected to rent out the room (for a little while) in the first place was because we were in a bit of a lull, income-wise. So renting storage units--paying for anything, really--isn't something that's likely to be feasible. Similarly, up and moving would require us giving sixty-days notice, let alone cobbling together the cash to cover expenses, etc.

      Based on what you've said, we think our best course of action would be to give it a few more days; if she hasn't found a place by, say, Tuesday or Wednesday, we'll contact the police and let them know what's going on. (I had forgotten that we actually gave her till the 3rd of March, as opposed to the end of the month, to find somewhere else to live. Not a big difference, but that way we at least gave her a clean twenty days to find a place.) Hopefully, they'll be willing to send someone over (though it makes me feel a bit bad to use police resources for something like this) on that date should it be apparent that she's still looking (or not bothering to look, as the case may be).

      At any rate, thanks again for the detailed response. :)

      -S(hawn)

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  51. j23 February 2015 at 00:40

    Hey :) nice blog. I will really appreciate if you can suggest solutions to my problems
    I am renting a 1 bedroom apartment in Ontario with another person (45 yo woman). We both have our names on the lease. We have been having problems and its becoming frustrating at this point. She is 20 years older and wants everything on her terms and her schedule. She drinks every night and blabs to herself about how awful everyone around her is and tries to pick fights with me. When she says its okay its absolutely not okay. She comes into my room without my consent even if the door is closed. Sometimes she wakes me up at 3 in the morning and tries to sell me on her business ideas she thought of while drinking. She can cook food loudly banging pots and pans anytime drunk or not but im not allowed in the kitchen to get water after 10pm. We have had a few major fights over the last 10 months over things I absolutely cant take like her walking around completely naked even when my boyfriend was over. Anyway, I am applying for my masters and can't deal with all her drama. I love this apartment and dont want to move and she wants to retire in this apartment. We never discussed who would move out when we would have problems. she always mentioned that I would have to first, when I get married and have a family and she would get the apartment. Is there a law that decides for us who gets to keep the place?

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    1. Michael K. E. Thiele23 February 2015 at 09:31

      Hi:

      I'm sorry to say that there is no law that decides which of two legal tenants on a lease get the rental unit if the relationship between the two of them breaks down. In fact, there is no statute at all that deals with your relationship with your roommate in a landlord and tenant context.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  52. Unknown2 March 2015 at 12:28

    Good Morning
    I have recently rented my house out to two young men, one of which has yet to pay his rent on time. My work has me living far from home so I do not get back there very often. Both have a basic rental agreement that we printed off the Ontario LTA website and are living month to month with no lease. Just wondering what my best course of action is to get him to start paying on time/request that he looks for a new place to live/evict him. I do not wish to create a hostile environment but his tardiness is creating financial difficulties for me that I do not wish to continue.

    Thank you.

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  53. Cindee16 March 2015 at 00:21

    Hi Michael,, thank you for helping us all out..I am a home owner..I rented out one bedroom He has a 2pce bathroom but also shares the only bathroom for showering..He cooks his own meals..buys his own food..He refuses to clean counters off in the kitchen I have shown him where the dishcloth is..disnfectant..Plus he also refuses to wipe down the shower walls..turn off the hotwater tap tight and he leaves the bathroom window open after the shower or never opens it anyways Not maybe huge things? but it is winter..the water is hot water..I don;t need to worry about food left stuck to the counter for days..I have shown and asked I wrote a cute little reminder not for the bathroom, He doesn;t seem to care.. He left his bedroom door open the other day and oh my !! What a mess in there. He;s never cleaned it in the 3.5 months he has been here. He is gone in another 6 weeks..I do not have a security deposit from him I honestly forgot..I am expecting some mess to clean up but am concerned it will be real bad. He has lied to me different times..sneaks around snooping..I am not comfortable Do I have any recourse if he leaves me with a trashed room? He busted the hot water tap in the shower & to get it fixed tiles have to come off the wall..drywall etc and I honestly cannot afford it right now... thoughts?? thank you

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    1. Michael K. E. Thiele16 March 2015 at 17:22

      Hi Cindee:

      From what you describe your tenant is actually a roommate. He appears to be sharing a bathroom (shower) and the kitchen with you. Because of this your relationship is exempted from the Residential Tenancies Act (see section 5(i)). Your relationship is therefore covered by contract law--meaning the terms of your relationship are governed by your agreement with him. I am going to presume that you likely did not write out a lengthy agreement that contains all of the rules and requirements that you expect of him. Some of what you require can be chalked up to common sense. For the things that he breaks and the damage that he does--which can not be excused through normal use, wear and tear--you would have the right to seek compensation from him. If he refuses to pay your recourse would be to sue him in the small claims court. Whether or not that would be worth it depends on the extent of the damages caused by him, the likelihood of recovery from him, and frankly whether you have the time and resources to pursue him.

      Good luck

      Michael K. E. Thiele

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  54. College roommate issues17 March 2015 at 00:27

    Hi Mike. I have a question about rent required before moving in. My 19 year old son applied to college in 2014 and 2 different friends asked him to move in with them. The first was a group of boys who would all sign one lease together and the second was 1 boy who's mother already had rented and paid for an apartment. After being accepted in June my son decided to rent a room for $500 a month from his friends mom as she said the other boys were trouble. He moved in August 23 and had given his friends mom $1000 on August 22 for first and last months rent. (He has a reciept). Soon after my son fell into financial difficulties and did not want to tell us. He didn't pay any rent for September October November or December and on January 7 the friends mother emailed my husband for payment. After a long discussion with our son we determined that he had to quit school and come home. My Husband replied on January 8 that we would pay his rent in February once we could sell some shares to raise the money, if that was okay. We picked him up January 23 but left the living room furniture as his friend had none. She emailed a few more times however we were away on a previously arranged trip to which she took offence. As soon as the shares arrived we sent her $2000 for the 4 unpaid months as the first and last took care of August and January. She accepted the funds but is now suing us in small claims court for the months of May June and July as that was when she signed the lease. Is this legal? My son had no contract and had not even been accepted to school yet. We don't feel we should have to pay for these months as we had no input into the apartment, and I would never had accepted it if I had, as my sons "room" was the furnace room without a fire escape or window.

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    1. Michael K. E. Thiele17 March 2015 at 12:46

      Hi:

      It certainly is an odd claim. From how you describe it, the decision to rent a room at all was not made until June 2014. That decision (to rent a room) was only made because your son was not accepted to college until June 2014. Presumably, absent the acceptance, your son would never have rented a room at all. If this recounting of the facts is accurate, it is difficult to see how this woman can argue that your son is liable for May rent (which pre-dates his acceptance to College and before he even thought about renting at all). I think the logic of this is demonstrated if you produce a copy of the acceptance letter from the College--showing the date of offer of admission (i.e. when the offer was communicated to your son). I think a Judge would agree that you are unlikely to have sought a room or contracted to pay for a room before you even knew that your son was accepted to College.

      Using the same letter (offer of admission), there will be a commencement date for school. I presume your son is coming from afar and that an apartment/housing would be needed for the start of his semester in school. Knowing the start date of the term should demonstrate when you would reasonably have been expecting to start paying for an apartment somewhere. Often enough, in situations where people are renting rooms they make those arrangements on a "just in time" basis --i.e. just before school starts.

      The plaintiff needs to prove that there was an agreement (i.e. a contract) between you and her (or between her and your son). That contract should set out what was agreed to and who was paying for what, for how long, and for how much. The contract (call it a lease if you wish), should contain these terms. Note that your son's relationship is not governed by the Residential Tenancies Act---so it is all a matter of contract.

      I'm going to assume that there is a "lack" of writing, no written lease, no emails, no texts, nor anything documented or recorded that speaks to the issue of when the rental relationship starts and when or how it ends. The lack of this evidence does not mean that there is no contract, it just means it is harder to prove. The burden of that proof falls on the plaintiff---i.e.she needs to prove that you agreed to pay for the months that she is claiming.

      Hence, the logic of what I set out above, and the supporting paperwork is in your favour. The first and last month's cheque for which you have a receipt is also helpful if it says "first month" on it and it is clear for which month it is being applied. Does her original email demanding payment (January 7) set out the months for which rent is late? If she only sought rent for Sept, Oct, Nov, December---and last month was applied to January--then it is difficult to see how she can successfully demand May, June, and July. She would have known these months were unpaid when she made her demand. The inference I would argue is that she never expected to be paid these sums and there was no agreement for you to pay these amounts. Had there been such an agreement she would have said something at the beginning of the tenancy or would have raised it in January.

      Based on what you have said here I don't understand why the plaintiff thinks she has any chance of success. That being said, I am concerned that perhaps there is something in your paperwork or in the claim that you are not recognizing as being legally significant and hence did not put in your comment to me. You may be wise to put all of the paperwork together (emails, cheques, all documents) and seek a consultation with a lawyer for perhaps an hour. Pay for the hour and have the lawyer review everything and ask for an opinion. The opinion is not a guarantee of outcome of course, but if everything is disclosed and read an experienced lawyer should have a fairly good idea of the likely outcome of the case. That lawyer could also give you some ideas of how to defend yourself.

      Good luck

      Michael K. E. Thiele
      www.otttawalawyers.com

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  55. Gabrielle24 March 2015 at 22:57

    Hello Michael,

    I found your blog and it's extremely insightful to the intricate border relationship.

    I am a home owner (a single detached house with 4 bedrooms) and rented out three rooms in the house. I am living in the house with the tenants. The kitchen, entrance, and bathrooms are shared. Recently, one of the tenants started to cook breakfast with strong odor, from 5 am to 7 am, depending on her schedule. It strongly disturbed my sleep and I became extremely sleep deprived and missed a few work days.

    I have been with tenant to mitigate this situation, such as, open all windows, all vent, and lighted up burning sticks. This helps only when she cooks french toast, not on the fatty sausage. i also suggested that she pre-cooked the food at night and reheated in the morning, which she refused.

    Today, i had only 4 hours sleep and missed work again because she cooked at 5 am in the morning. I had enough and offered her three options: 1) mutually ending the lease; 2) filing eviction order with RTC; 3) stop cooking on stove top from 12 am to 8 am and limit to the use of microwave, kettle, and coffee maker during this time. She initially agreed to option 3 but changed her mind soon after.

    Do you think i need to give her 10 days eviction notification as per "disturbing your landlord" under RTA? Reading your blog, I understand this rental arrangement is not covered under RTA, and it may serve as "reasonableness" in court.

    Thanks!

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    1. Michael K. E. Thiele25 March 2015 at 10:21

      Hi Gabrielle: As you have figured out, in a residential rental property in Ontario where the landlord lives with the "tenants" and shares a kitchen and/or bathroom with them the Residential Tenancies Act (RTA) does not apply (section 5(i) RTA) to that relationship. As the RTA does not apply there is no basis to serve a Notice of Termination under the RTA on this person. What does apply to your relationship with this person is the terms of your contract. You should follow the terms of your contract as that is the first thing that a Judge will be looking at. If your contract is vague or completely fails to address the point a Court will then begin to import terms that may be implied from the circumstances and reasonableness will become a big factor in deciding whether what happened was fair and just.

      I do think that you should make a great effort to document your concerns with the roommate and certainly make certain to communicate important things---like termination of the contract---in writing. If the matter did ever end up in Court you would want a clear written trail demonstrating what transpired in the relationship.

      Good luck

      Michael K .E. Thiele
      www.ottawalawyers.com

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  56. Anonymous3 April 2015 at 02:25

    Hello Mike,
    Thank you for the helpful post. I have a similar issue with my tenant. Me and the tenant live on the same floor in a house owned by me and we share the kitchen and shower so we're not covered by RTA. This tenant has been living her since May 2014 and has always been very disturbing. At first I thought my generosity would make her feel shame of herself, but it turned out that I gave a inch and she wants a foot! She sleeps in day time and makes noises at night and I have to wear ear plugs to sleep, she never does any cleaning in kitchen and bathroom. She never pays her rent on time. She never turns off lights after using and uses oven to bake one potato (done many times), and once even forgot to turn off the oven after taking the food out... The worst is she shows zero respect to me as the landlord. I asked her to move many times through text messages but she ignored. This time I taped a written notice on her door(she would not open the door when I tried to give her in person) with one week of notice. Is it enough of time? We don't have any written agreement, but the "implied" agreement may indicate that I have to give her one month of time (as she pays rent monthly and has lived for 10 months now). I really cannot take her any more as I get very desperate seeing the mess she makes and the attitude she gives. Do I have to wait for a month to make her leave? What if she still does not leave by the end of the notice period? I've searched a lot for information, and police said it's none of their business to help me with this...Please help me!!!!!!!!!!!!!!!!!!You are my only hope!!!!!
    Thanks in advance!!!!!!!!!

    ReplyDelete
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    1. Michael K. E. Thiele6 April 2015 at 10:13

      Hi: Your living arrangement with this Boarder is not covered by the Residential Tenancies Act. It may be described as you having granted the boarder a licence to be in your premises. The notice required to terminate a licence where no terms are written out is often considered to be the same amount of time that the boarder pays rent for. Hence, if they pay a month of rent at a time then you should give a month's notice. That being said, there is no explicit law or statute that says this is what must be done in the absence of contracted terms. Reasonableness often factors in and I have heard often enough from people who are being victimized by boarders who are stealing, doing other illegal things, or putting the safety of the owner at risk. In those circumstances immediate termination is, I think, fair enough. How that plays out in your circumstances is something you have to judge. I can't tell you that immediate eviction is fair as I simply don't have enough information to make that determination and ultimately it is a judgment call in any event.

      That the police won't help you is an unfortunate circumstance. If the Boarder does not move at the end of the notice period, and the police won't help, you will need to seek legal advice and I suspect that you will be told to bring an application to evict the boarder to the Court. Make sure to keep a copy of your notice to the boarder so that you can prove that you asked this person to leave.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  57. Anonymous15 April 2015 at 15:58

    I own a 5 bedroom home where I maintain one bedroom for myself and rent out the other 4 room by room. There is one kitchen and bath shared by all. Is there a minimum number of nights I must stay in this bedroom to validate my status as owner occupied? I have 2 other residences (that are not rented to anyone) that I travel between only occasionally staying in this home a couple of times a year. I do have personal effects in the bedroom, bathroom and kitchen.

    Laura

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    1. Michael K. E. Thiele15 April 2015 at 20:35

      Hi Laura: The point of your question of course is whether the Residential Tenancies Act applies to your tenants in the other rooms. If, as the owner, you share a kitchen and bath with the other tenants then the RTA will not apply. The issue that your question raises is whether your occupation of the premises is sufficient to give rise to the exemption. Your concern is fair enough as there are cases where the tenants have challenged the claimed exemption on the basis that the landlord is contriving a set of facts to deprive the tenants of RTA protection. Whether or not this particular residential complex is exempt from he RTA is not going to strictly turn on the number of nights that you sleep there---though that will certainly be a relevant consideration. An adjudicator would look at a whole host of facts--for example, what address is on your driver's licence, and further try to discern the real substance of what is going on. Travelling a lot or rarely being in the residential complex does not mean that the exemption is lost but at the same time it allows the question to be asked. Ultimately, it is your explanation of the entirety of the circumstances of your living situation that will determine whether the unit is RTA exempt or not.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  58. Anonymous16 April 2015 at 18:50

    Hello i think i have the answer from reading all your responses. My 42 year old daughter moved in to my house with me supposedly to save money to buy her own place. She paid me "rent" for 5 months and lost her job three months ago. She is now two months behind paying me and is not working nor does it look like she is looking for a job. I have also caught her stealing liquor and money from me.I want her out of my house, i feel terrible being put in this position but it is a horrible situation and is affecting my health. She has no where to go as far as i know. What to do..? I understand you can only give me legal advice. Thank you

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    1. Michael K. E. Thiele21 April 2015 at 09:57

      Hi: From your comment I think its clear that you know that there is no legal impediment to requiring your daughter to leave your home. If she refuses to move out you will need to seek the assistance of the police and perhaps a lawyer. The living arrangements you describe (sharing kitchen & bath) mean that this is not covered by the RTA. In a way it is unfortunate that it isn't covered by the RTA as that would allow you to get an eviction Order and Sheriff enforcement fairly easily.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  59. londonstudent111317 April 2015 at 01:34

    I am a university student in London, Ontario and I am leasing a three bedroom apartment with two other girls. One of the girls has her boyfriend over at least 6 nights a week (we pay extra for utilities and we only have one bathroom), so he uses our utilities and living areas and blocks myself and my other roommate from using the only bathroom. He and his girlfriend have become increasingly rude over the course of the year, and he has already made the argument that I have no say in whether or not he's there because his girlfriend has given him permission to be there. I would just like to know if I have the legal authority to ban him from the premises, or if I need to go through my landlord to do this. There is no clause that refers to guests in our lease agreement. I would also like to know if there is a line drawn in Ontario that separates a house guest from a subleasing tenant. Both me and my roommate have told him we don't want him there anymore but he doesn't seem to care, what can we do?

    ReplyDelete
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    1. Michael K. E. Thiele20 April 2015 at 11:44

      Hi Londonstudent:

      This is a difficult question to answer as the way of dealing with a roommate like this generally means being fairly aggressive (legally). To be properly advised really means that you need to be sitting face to face with a lawyer explaining what is happening and receiving the advice on how to deal with this roommate and her boyfriend. On the facts you describe there is no subleasing happening and it is not surprising that your lease does not deal with this issue as the lease is not intended to regulate the relationship between roommates.

      In your situation I would be inclined to have the help of a lawyer supervising the interaction and preferably have a lawyer writing the letters for you. Your roommate is in fact breaching your agreement with you all and now it is a matter of imposing some consequences for that behavior. If you are at the University I think you are at then you may be able to get legal help from the clinic at the lawschool. It would be free.

      In dealing with this problem I see numerous steps to take including serving a Notice to Trespass on the boyfriend, calling police to have him removed and charged, suing your roommate in small claims court, and officially asking her to get out of the apartment and replacing her with someone else. It will be intense for a period of time. These steps need to be orchestrated of course for maximum effect and it would be best if you did that with the advice and supervision of a lawyer.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  60. Anonymous21 April 2015 at 14:28

    Hi Mike,

    I have served my tenants an N4 and the tenants that were on the lease will be moving out by the specified date, but the two room mates who are not on the lease have no plans on leaving. They full balance indicated on the N4 was not paid so should I fill out the L1 form and go through that whole process or is there an easier way considering they are not on the lease?

    ReplyDelete
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    1. Michael K. E. Thiele22 April 2015 at 13:55

      Hi: I would quickly file the L1 if the termination date in the N4 has passed. It will be easiest way to get a judgment for money as well as an eviction order so that you get your unit back. If the tenants vacate but the roommates do not you may have to file an A2 application to get back vacant possession. That would allow you to get an order for compensation after the tenants vacate but it would give you nothing for the rent arrears. You can only file an L1 application after the termination date in the N4 and while the tenants are still in possession. If the tenant's vacate before you apply to the Board then your only avenue against the tenants is through the small claims court. Alternatively, if you know the tenants are going to vacate before the termination date but you want an order against them for the arrears, file an L9 application against them for the rent arrears and combine it with an A2 application (there is only one fee of $170 for both applications). If the tenants vacate then you will have a pending application as of the date they vacate allowing you to get a rent arrears order and then you have the A2 which gives you an eviction Order so you can get vacant possession. If it turns out the tenants do not vacate as you anticipate before the termination date in the N4 you can then file an L1 application after the termination date in the N4 (potentially losing the $170 you paid for the L9/A2--as you would abandon that application with a validly issued L1 that will get you an arrears order, per diem compensation and eviction.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  61. Anonymous22 April 2015 at 02:37

    Hi Mike,
    I am renting a room in a condo owned by my roomate. We share a kitchen and living room. I was given 45 days to move out as she mentioned she no longer wants to rent out the place and will be moving out herself. I have since then given 12 days notice as I found a new place to reside in that time. She is now refusing to refund my last month deposit since we each verbally agreed to give 30 days notice before moving out. It is news to me that roomates don't fall under the RTA and I was hoping to get my deposit refunded since I am leaving at her request. What are my rights to that deposit in this circumstance?
    I very much appreciate your feedback as it has been difficult to find advise for roomates online.
    Thank you,
    Anonymous

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    1. Michael K. E. Thiele22 April 2015 at 12:02

      Hi: Your rights are as reflected in your contract between you and your roommate. I presume that you don't have a written agreement, or if you do, it likely does not address this specific circumstance. As she gave you notice to terminate, the agreement for giving each other 30 days notice does not seem to apply. Applying that rule seems unduly harsh to you as the chance of finding alternate accommodation exactly within the notice period she gives you is unlikely and hence you are out of pocket. So what would be fair and how would you justify the position in a legal argument?

      There isn't really a specific statute that covers your situation. You are entirely governed by the contract between you and your roommate. Where the contract is silent, a Court could look at the circumstances of the entire situation. The Court could bias towards to the person who did not have control in drafting the contract and interpret ambiguity against the person in control. The Court could also look at what would be "fair" under the circumstances.

      If I was asked to make a pitch, on your behalf, I would draw on analogy with the RTA. Specifically section 48. This section applies when a landlord gives a tenant notice to terminate for a landlord's own use---it is a non-fault based notice (much like your situation). Under section 48 a landlord needs to give a tenant 60 days notice to the end of term. Under section 48(3) a tenant who received such a notice has the right to terminate the tenancy earlier than the notice period given by the landlord. Section 48(4) specifies that the earlier notice period that the tenant may give is a minimum of 10 days. Applying that section, by analogy to your circumstances, I would argue that your 12 days of notice is entirely reasonable and that you should be entitled to your deposit back. Under the limited circumstances you have described--I would expect to win that argument as well in front of a Judge.

      Good luck
      Michael K.E. Thiele
      www.ottawalawyers.com

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  62. Anonymous4 May 2015 at 19:34

    Hi Mike,

    I'm a landlord. I have a semi-detached house that I rented individual rooms. Currently I have two tenants each renting one room. The kitchen, dinning room, living room, and bathrooms are common areas with furniture I provided. Do I need to give them notice before I go in the house? Since I'm renting each tenant rooms not the whole house, I only need to give them notice if I want to enter their individual rooms, right?

    Thanks for the help!
    Linda

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    1. Michael K. E. Thiele6 May 2015 at 10:09

      HI Linda: If I understand correctly, you do not reside in the house---hence you are not sharing the kitchen/bath with them. If you do not reside in the house then the RTA applies and you have the notice obligations under the RTA.

      The type of living arrangement you are describing is potentially problematic when it comes to giving notice of entry. I understand that the rooms are rented to the tenants but that the rest of the house (kitchen, bath, hallways, vestibules etc.) is intended to be a shared common area with the other boarder.

      I had this very issue (in a similar house rental as rooming house situation) before the Landlord and Tenant Board several years ago. My position was as you indicate, that the rental unit is the room and not the entire house, therefore the landlord could enter the premises to be in the common area spaces without notice needing to be given. This view seemed self-evident to me.

      The adjudicator at that time felt the exact opposite to be the case. He considered the nature of the tenancy as a whole and that while the "rooms" were exclusive use space for the tenants the "common area" space was shared exclusive use space and that the lease contemplated (it did no such thing explicitly) that the tenant would be sharing the other space only with the other boarder with an expectation of privacy and exclusiveness in relation to that space. Hence, that particular adjudicator felt that Notice of Entry pursuant to section 27 RTA had to be given.

      I was a bit surprised by this adjudicator's analysis but ultimately you can see that this view is not inherently "wrong". It depends on how you characterize the rental situation and how the rental complex comprised that informs the notice requirement. Certainly, I have never had an adjudicator assert that a landlord has to give notice to walk down the hallway of a traditional apartment building, or to use the elevators or entry the laundry room or other shared facilities in these buildings.

      The key, I think, is to look at the nature of the rental complex and contemplate the expectations of the people living there. If those expectations are reasonable then it would be best to be careful about simply entering the residential complex.

      In the future you may wish to include a "housekeeping" clause in the rental agreement under section 26 RTA that would allow you to enter the rental complex without notice for "regular cleaning". Take a look at section 26 (2) RTA to see how that might be helpful.

      Otherwise, you may reserve other reasons to enter under section 27(5) RTA, but note that these grounds for entry require that 24 hours notice of entry be given.

      Whether it would work or not I am not sure. However, in drafting your agreements with future boarders you could address the issue of expectations in the leasing document. You could explicitly set out the exclusive use space of the tenant (i.e. their rooms), and then explicitly state that the tenant does not have a shared exclusive use of the remainder of the house with the co-boarders and that the landlord is free to enter the house and the common areas at will and that the tenant should not expect any privacy in this respect. Whether this would work or not I don't know, but it were challenged at the Board (i.e. your entry without Notice), it would not be a shocking or blatant illegal entry. The reasonableness of this provision will also be informed on your reasons for entering. If it is for routine maintenance, cleaning, or some other such thing then I think it is more likely that your entry clause will be found reasonable. If your clause is successfully characterized as a "snooping" clause you may expect it to fail.

      Sorry that there isn't an easy "yes" or "no" answer to this question.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  63. Anonymous13 May 2015 at 01:02

    Hello Michael,

    I recently signed a lease for a two bedroom house for my son and I. Not knowing how m yrelationship would go with my boyfriend, father of my son, he's not on the lease. If I'm correct by reading your blog, I can ask him to leave without notice because of his intimidating ways or give him 20 days notice for interference with reasonable enjoyment. Please advise if this is correct.

    Thank you

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    1. Michael K. E. Thiele13 May 2015 at 11:54

      Hi: As the sole tenant of the premises your boyfriend has no right to occupy the premises from a Landlord and Tenant Law perspective. He has the same status in your apartment that he would have in your house if you owned it. The 20 day notice of substantial interference is a Notice that is given under the Residential Tenancies Act. It would not apply in your circumstances. You could require him to leave at any time--though nothing stops you from giving him Notice to leave. Giving Notice may be appropriate in situations where you are still feeling safe and not intimidated. If there is intimidation, violence, or threat of violence I think it is fair to call police and have him escorted from the property immediately.

      Hope it all works out for you.

      Michael K. E. Thiele

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  64. Anonymous21 May 2015 at 20:08

    I recently rented my bachelors apt to a man and a month after he moved in two of his friends moved in. They are drug users and makers. The tenant was evicted and never left for 3 month now, and still never paid the rent. I still have the two friends living there and they are letting all of their friends in the apartment and all I can smell is their drugs that they smoked I have to open all my windows and air out my house. I have had the police here many times and it is an invasion of privacy.What am I to do !

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    1. Michael K. E. Thiele22 May 2015 at 10:35

      Hi: The facts as you describe them are a bit confusing. When you say the tenant was "evicted" but that he hasn't left, do you mean that you have an eviction Order from the Landlord and Tenant Board? If so, you need to take the eviction Order to the Court Enforcement Office and ask the Sheriff to enforce the eviction. Once you go through that process the Sheriff will come and actually physically remove the tenants from the rental unit.

      If you do not have an Order from the Landlord and Tenant Board and your tenant is still causing you problems you will have to start with a Notice of Termination. I am assuming that your bacheolors apartment is a separate rental unit and that the RTA applies to your relationship with the tenant. You would serve the tenant with a Notice of Termination for Non-Payment of Rent (N4), also with an N5 for Substantial Interference with reasonable enjoyment---you may also qualify to serve the N7 on the same grounds. You have illegal act issues and could also serve notices for that though you will probably be successful just on the Non-Payment of Rent and the Substantial Interference grounds.

      Your question reveals to me that you are an inexperienced landlord. You are being taken advantage of and your tenant is manipulating the situation in his favour. I recommend that you find an experienced Landlord and Tenant lawyer. Pay the fees to the lawyer to get this tenant evicted. Watch how it is done, get copies of the forms that the lawyer prepares, and learn from the lawyer about the specifics of how the process works. It will cost you a fair amount but you will get the problem solved. Once you understand the process as shown to you by the lawyer you can possibly do this on your own in the future. If you proceed on your own now you will very likely have a bad experience and not solve your problem at all.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  65. Anonymous22 May 2015 at 16:55

    Hi Michael,

    I have a little tricky situation on my hands!

    I rent a home, and I allowed my brother to move in with me about 6 months ago. The house I rent has an almost separate apartment in the basement. It has a kitchen, family room, bathroom, bedroom and laundry. I told my brother he could use the bedroom & the kitchen. He can share my laundry. The family room is my kids play room, and the bathroom is shared when the kids are playing downstairs. My lease says that I am not aloud to sublease the basement, but my brother was going through a touch time so I let him come stay.

    There was never a contract written up - I didn't even consider it since he was my brother and I didn't see any issues arising. However, it has been nothing but problems, mainly never paying what we agreed upon. On top of that, he uses all of my things - food, laundry soap, toilet paper, bed, dresser, couch, tv, steals money.
    I have asked him to leave numerous times, and he wont. He said he will leave July sometime, and because of the Landlord Tenant act, I have to allow him.

    What are your thoughts on my situation? Thank you!

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    1. Michael K. E. Thiele23 May 2015 at 10:01

      Hi: On the facts you have provided your brother is nothing more than a roommate or guest in your home. He does not enjoy the benefits of the Residential Tenancies Act (the proper name for what he is calling the Landlord Tenant Act). What you have done is not "subletting" as what you have done does not meet the definition of what constitutes "subletting". A "sublet" requires the tenant to vacate the rental unit when transferring the unit to another person. As you have not moved out you have not sublet the premises. You can't be both tenant and landlord in the rental unit at the same time. In only very limited circumstances can a tenant, like yourself, be a landlord. That arises in the context of a legal sublet where the RTA allows you to enforce the obligations of a tenant against a sub-tenant with you acting as the landlord. Again, though, this is NOT your situation.

      Your brother has no legal right to be in your rental unit under the provisions of the Residential Tenancies Act (or Landlord Tenant Act as he calls it). If you want him out now you can require him to leave now. If he refuses, get your lease handy, call your landlord and advise that you have an unwanted guest in the premises that refuses to leave so you need the landlord to confirm with police that you are the sole tenant. Then call the local police station, advise of the situation that your brother is refusing to leave your home, that he is stealing from you, etc., and that you would like the police to attend to remove him as a trespasser from your home. Have the landlord's phone number handy for the police to call to verify that you are indeed the sole tenant and the only person with the right to be present in the rental unit.

      That being said, if you have entered into some kind of contract with your brother to allow him to live in the rental unit then evicting him without notice may attract some civil liability--but only after a small claims court lawsuit. However, I would not worry too much about that if you can prove he doesn't pay and that he steals from you. It is very difficult to see how a small claims court judge would have any sympathy at all for your brother.

      If you have difficulty getting the police to take action you should consider speaking to a lawyer or perhaps visiting a local community legal clinic. They can give you advice of what to do and how to get a Court Order requiring your brother to leave.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  66. Anonymous1 June 2015 at 17:36

    Dear Michael,

    Thank you for providing so much information about the tenancy issues, your advices in this entire blog are very helpful for alot of people. Recently, I have a problem in one of my rental premises and searched online for more advices and landed on your blog, I read all of the contents in this blog just want to make sure no repeat cases and hopefully you can shed me some lights to the problem.

    The rental premise is a licensed lodging house in Waterloo, Ontario. I am the landlord of the unit and have a tenant signed a year lease from last September 1st, 2014 to August 31st 2015. Early in May, he sublet his room to another tenant (subtenant), from May 1st, 2014 to August 30th 2015 (one day before my tenant's lease end date for valid subtenancy instead of turning into an assignment). I also screened her and made sure she is ok, signed the subtenancy agreement with my tenant as a consent of letting him to sublet. However, the subtenancy agreement has a condition that it will become invalid if the subtenant didn't obey the house rules and cause disturbances to others.

    After a month has passed, I revisited the rental unit for regular maintenance and all other tenants complained to me that she caused a great disturbance to others. The worst is she shout at other room mates lucratively when something goes wrong in her opinion, she talks to her self alone in her room frequently and never do any dishes and mess up the place. I observed her weird behaviour and tried to communicate with her but she said she's busy and just ran away when I saw her. After that, I went to the police station to seek for advices and found out from the police officer saying that she is "different than others" when he pull out her file from the database. From our conversation, I even sensed that the subtenant might have mental problems. The police recommended me to speak to the other tenants that they have the right to call the police to investigate if the subtenant caused the disturbance again and I couldn't do anything since I am not living in there. In addition, I contacted my tenant and he is not in Canada but told me that he would contact his subtenant for the problems, which I doubt he will get any response and made the situation better. The only way we can contact this subtenant is thru email and she doesn't even have a computer nor a phone, she can only access her email account when she's in school. Therefore, for the good of other normal tenants and the subtenant agreement is invalid due to her disturbances to other normal tenants, I decided to evict this problematic subtenant.

    First of all, will the RTA apply in this case? If so, I know I can send her the N7 form and request her to leave. However, do I have the right to do this since I am the landlord and I didn't sign anything with the subtenant and the tenant unlikely will come back within a year. I understand I offended the RTA if I change the lock and pack her stuff after the date of request to move out as specified in the N7 form, will the police has the right to enforce and help this problematic subtenant to move back in? I am willing to return her rent for the rest of the days she paid for the month on my expense and take the risk of getting sue by her rather than letting her to enter the unit and caused greater disturbance to others again.

    Once again, thanks for your helpful comments in the entire blog and I look forward to your response. Have a great day.


    ReplyDelete
  67. Unknown10 June 2015 at 23:34

    a family member moved in downstairs. we set some ground rules for her to follow and asked to pay a small ammount of money to us per month for rent. they procended to break every rule and got a cat and smoked inside knowing 2 of us are very alergic to said things (one of us is deadly alergic to cats), also damaged some of our proerty and failed to pay rent. we did not have them sign any written agrement to prove that they have any right to live her. how long would we have to wait to kick them out or can we do so imeditly to get rid of the health hazzards and to avoid any more proerty damges. thank you for your time sorry for any spelling errors

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    1. Michael K. E. Thiele11 June 2015 at 12:14

      Hi Neko; Is the family member living in a separate rental unit? Is the downstairs an apartment with its own kitchen and bath? If your living space is not separate and you share a kitchen and bath with the family member then the RTA does not apply and you can act immediately. Reasonable notice under the circumstances is always appropriate to give though it would not be long for the reasons you describe. If your comment that one of you is deathly allergic to cats is literally true (i.e. not just a figure of speech) then I would say no notice is required. This assumes that she is not a tenant under the Residential Tenancies Act.

      If she is in a separate unit, does not share a kitchen or bath with you the argument is much stronger that she is a tenant under the Residential Tenancies Act. If so, you will have to comply with the Notice requirements under the RTA. Take a look at a Form N5 as your starting point.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  68. Shelby12 June 2015 at 14:24

    Hi Michael,
    Thank you for all the insight you are providing. I have a tricky situation on my hands.

    Currently I am renting a room in a house from a landlord, where I share a kitchen with her so I understand that I am not covered under the RTA and the RTA rules do not necessarily apply to me. Initially I was planning to live there for 4 months, but at the beginning of the second month I wanted to move out. There were several reasons, she started to get annoying and would enter my room (which did not have a lock) when I wasn't at home, something I can't really prove because she would go in to close or open my windows. Obviously nothing that I can use against her to leave the place, but those were some of my personal reasons for my choice.
    In the room listing ad for the room, it states a monthly price for the rent (not by semester as you will read in a bit), and does not specify how long or short the stay can be. I did not sign any written leases when starting to rent, and I have a text message from her that specifically states that there is no lease. I payed her my last month's rent up front as a deposit, and then when I started renting, I payed the first months rent in the first week of the month.
    20 days before the date I wished to leave, I sent her a text message telling her my desire to leave and that she could apply my last month's rent for the current month. She responded that I was stuck in a lease that she said went by a semester term (4 months) and that she did not rent monthly, so I would have to either pay for the last two months even if I was not living there, or find her a sublet. Not sure how this was relevant, but she also told me that if we were renting monthly I would have had to give her 60 days notice. I understand that since this is not under the RTA the days of notice I need to give her go by discretion and a reasonable time is sufficient. She further proceeded to tell me (which kind of sounded like a threat) where she said that she would ruin my credit history unless I fulfilled the terms of our lease.

    I am a student so I don't have the time or money to deal with her in court, and can't afford to have my credit history ruined. Is the amount of days of notice I gave her reasonable (20 days)? Or does she have actual reason and laws to back her up to take me to court? I live in the same house as her so I am afraid that she will throw my stuff out and also take me to court to get money from me.

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    1. Michael K. E. Thiele13 June 2015 at 09:23

      Hi Shelby: You seem to have a fairly good handle on the law and how it applies to your circumstances. The landlord is trying to impose RTA terms on your relationship with her. Given the shared kitchen the RTA does not apply and hence there is no statutory imperative to interact with each other in accordance with the RTA. Your relationship with the landlord is then a matter of contract. In theory at least, you could agree to contract to the notice provisions of the RTA or even contract to all of the requirements of the RTA. If this were the case enforcement would not be through the Landlord and Tenant Board because you can not, by agreement, confer jurisdiction on the LTB if the underlying facts don't give rise to jurisdiction in accordance with the statute. Hence, you would "sue" in court and for the terms of the contract refer to the RTA requirements.

      That being said, contracting to the RTA terms will require explicit acknowledgement and I would suspect a written contract setting out these unusual terms. Absent contractual terms that accord with what your landlord is saying, you are absolutely correct in how you are proceeding and with what you are demanding. I think 20 days notice is entirely reasonable but some would say you should give notice of one rental period. Given the lack of specificity in your dealings with the landlord I think you are likely fine.

      Aside from that, your landlord seems rather nasty. Threatening to ruin credit is rather mean spirited especially in the context of your tenancy which you know don't include the terms and conditions that she is now trying to unilaterally impose.

      Ultimately, I do think you are correct in your position. However, you can't stop someone from suing you and you can't make people play nice if they simply aren't nice. You could respond with your own legal threats and if she were to slander your credit you could sue her for that. Unfortunately, these roads lead to Court and to some degree it may be unavoidable.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  69. Anonymous12 June 2015 at 15:12

    Hi Michael
    Wonder if you can advise on this.
    My mom lived with her partner for 30 years after her second marriage. Decided not to get married. They split everything down the middle sold off their assets and purchased a new house. Three kids on our side and one on his.
    My brother who is considered disabled because of medical issues has lived with them in their house for the past fifteen years. He doesn't work and is fifty eight. Never paid any rent. He's in the basement and has everything except a kitchen which he use the one upstairs.
    Two years ago my mom passed and just before had conversations with both my brother and her spouse for each to look after each other. Which they both agreed to do.
    During the last two years my brother has been paying some of their bills with my step fathers money and his approval. Stepfather is 92.
    Of late there has been issues with my brother bordering on bullying my stepfather and so his daughter has decided to put her dad in a home for his own good. What this means is she has convinced her dad to ask my brother to leave within a thirty day deadline. She says that on that day she will cut cable, phone and change the locks on the house.
    My brother is under a false impression that he has been being paying bills and looking after my stepfather and therefore has some right to stay. We think this is because he is on medication for pain and really has not much conception of whats really going on. Although he is, its with my stepfathers money and he doesn't seem to be able to understand its not his money.
    We have found him an apartment but because of the government being slow he has not received his disability cheque yet. We have paid first and last for the new apartment but we don't think we can accommodate the 30 day window.
    The daughter is in control on my stepfathers money and we think she needs the money from the sale of the house to pay the 3000/mth at the retirement home and that's why the 30 day window. There is no immanent need to get out in thirty days just her demand. My brother really doesn't have a claim because in fact he's not related except the law would suggest that by them living in common law for so long he would be considered as equal to his own daughter?

    My question is can she evict him. If we called the police would we be able to get the change of locks removed with a reasonable extension or is she within her rights?

    Thanks in advance

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    1. Michael K. E. Thiele13 June 2015 at 09:02

      Hi: Thank you for writing. The circumstances you write about are surprisingly common. Unfortunately, for the purposes of this blog I can't really explain in any great detail how to deal with the problem. From a Residential Tenancies Act perspective I can say that your brother is quite unlikely to have any rights as a residential tenant which means that there is not a clearly defined process for terminating his tenancy or evicting him. So, strictly from an RTA perspective, the daughter may move more aggressively to evict your brother. That being said, you would benefit (or more specifically your brother would benefit) from contacting a lawyer to discuss the options. Perhaps the legal landscape is as you perceive it, but perhaps not. The homeownership (was it joint or as tenants in common), may be a source of rights for all of your mother's children. Is the nature of your brother's disability such that your mother had an obligation to provide for him (dependant's relief)? Was this obligation recognized and shared by her second common law spouse? What about the promise made to your mother for each of them to look after each other? Did your brother's presence in the house allow for your mother's spouse to "age in place" for a lot longer than would otherwise have been possible? Do any obligations flow to your brother from the living circumstances? Whether your brother is owed anything (or perhaps owes something) depends on an analysis of all of these questions--and more questions that arise from the answers to these questions. I presume that your brother is waiting for Ontario Disability Support Plan payments to begin--which can take some time. Living on ODSP is easier than living on OW (Ontario Works), but not by a heck of a lot. An ODSP cheque requires very careful budgeting and no one can say that a person on ODSP is living the high life. Your brother might find that his standard of living is about to decline substantially. Whether he is obliged to live on ODSP exclusively, whether the stepfather or your mother had or have an obligation to him, whether he had an interest in the home, are all questions that should be put to a lawyer. Getting a bit of extra time to move out might be the easiest problem to solve versus any support obligations owed to your brother.

      Again, I am not able in this blog to explore all of the possibilities nor can I provide the answers you are looking for. There are simply too many "if this then that" permutations of rights and obligations under the law. The few things I have mentioned here are to perhaps stimulate some conversation for you with counsel or for your brother with counsel.

      Good luck, I hope it works out well for you and your brother.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  70. Anonymous14 June 2015 at 10:58

    Thank You Michael. We really appreciate your input. I thought it might roll out that way but wasnt sure. Thanks again! Definitelty gives us some direction

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  71. Unknown15 June 2015 at 23:47

    hello Michael I would like to thank you on behalf of everyone on this blog for your help and advice. I'm hoping that you can now help me in my particularly sticky situation.

    I have owned a home in Ontario for the past 4 years. this is my primary residence where my driver's license, health card, vehicle, taxes, and mail all go to, and everything is registered to. I work out of town which requires me to take extended periods of time away from home usually two weeks at a time. to make ends meet I have rented out the other 2 bedrooms in my home so all three of us to share the kitchen and bathrooms.

    over the past 3 months these two men have become been a complete menace to my home. they have destroyed and damage my property, stolen from me, invaded my bedroom while I was away as evidence of a used condom and cigarette ashes. and worst of all engaged in a violent fight with each other on my front lawn, as one held the other in a chokehold by my girlfriend and I tried to break it up through reasoning and we're prepared to dial 911.

    luckily for me the very next day they each told me they were moving out. this was on May 15th. has expected on June 1st neither one paid their rent, has been given last month's rent when moved in. 1 June 9th they actually called the police on me, as I arrived home for the weekend and they said I did not live there 6 months of the year, and did not give them 24 hours notice. when the police officer arrived he was completely on my side as I told him that I am the homeowner and this is a shared residence.

    on June 15th both men told me they are no longer leaving and they are going to stay.

    I am frustrated beyond belief and don't know what to do. they have made me feel unsafe in my own home, and it feels like they simply want a free place to live. please help

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    1. Michael K. E. Thiele16 June 2015 at 09:38

      Hi Tony:

      As a shared residence the Residential Tenancies Act does not apply. You have figured that out of course. Your roommates on the other hand are trying to play the angles which they did when telling the police you don't live there. Telling the officer that you did not give 24 hours notice indicates that they are asserting that the Residential Tenancies Act does apply to them--meaning they are claiming the security of tenure protections that the RTA provides. So what do you do?

      There are a number of ways to approach this. As the officer believed you, perhaps he would be kind enough to attend at your house, remove the roommates, and charge them with trespassing if they return. Given what is happening, which I presume you can prove if required, I don't think any Judge would take issue with an immediate eviction without notice. The trick in this is whether or not the police will assist you. They might refuse to evict them on the basis that this is a civil matter and that either an eviction order from the Landlord and Tenant Board is needed or a Writ of Possession from the Superior Court is needed. If the police require either of those two orders to exist then the eviction enforcement officer will be the Sheriff backed up by the police if necessary. How do you know what position the police will take? I would start with the officer that you spoke with and make inquiries with him whether you could get the police to assist in removing them from your home. He may refer you up the chain of command for a decision. Get that decision and go from there.

      If you are at all nervous about whether the RTA applies or not, the application to file is the A1 application. It will be heard fairly quickly. On your facts I expect that you would quickly get a decision that the RTA does not apply. Perhaps you could ask the police, if they hedge on removing the roommates, whether they would look at that Order as evidence that the people in your home are not RTA protected tenants and hence trespassers because you have asked them to leave. Maybe that Order would give the police the comfort they need to remove the roommates? Be aware that an Order from the Board (under an A1 application) is NOT an eviction order. It simply says the RTA does not apply to the relationship between you and the roommates.

      The reason to consider the A1 route is that the Order is conclusive proof that the RTA does not apply and it might motivate a reluctant police to remove the trespassers. It would not be unreasonable for the police to be reluctant to evict people who are claiming RTA protection as it is not every officer who will be very comfortable with the technical aspects of the Residential Tenancies Act. Therefore, an order from the Board may be just the extra that the police need to act.

      If the police won't be satisfied with anything other than an eviction order or a Writ of Possession what they are telling you is that a Judicial body needs to make an Order putting you back in exclusive possession of the property before they will do anything. If this happens to you it will be unfortunate as that leaves you with only one option which is to file an Application to the Superior Court of Justice for a Writ of Possession. That process requires knowledge of practices of the Court, the Rules of Civil Procedure, and how to present an application to the Court. It is very unlikely or highly improbable that you could do that on your own in any reasonable way. You would have to retain a lawyer to file the application to get the writ of possession. This will cost you a substantial amount of money. The good news is that you are likely to win and hence will get a costs order against the roommates which, if they have assets you can seize, will indemnify you somewhat for the legal costs you must incur.

      Hope that gives you some help in dealing with this problem.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  72. Anonymous21 June 2015 at 23:02

    Hello, I am presently having difficulty with a young tenant in a share kitchen/bath situation. She has in the past burned a lampshade and refused to acknowledge or take responsibility. She did not report it to me. She has also wrapped a curtain around an exposed lightbulb. Damaged furniture. Broken all the house rules and recently broken her key off in the front door lock, forcibly with garden steel shears After admitting her use of the garden shears she no denies this and states the lock in disrepair broke her key. The master locksmith confirms the lock to have been in good working order. She had admitted that her word means nothing. She has broken promises and consistently disturbs the peaceful living environment in my home. Her denial of any wrongdoing, lying and insistence that she receive a replacement key .... is unmanageable. I have given her 60 + days notice that she leaves at the end of her lease. However, I would like her to leave sooner. If I ask her to leave sooner - It is June 21st and her lease expires Aug. 31. Must I give her rent money back? I also understand that as a paying guest i do not have to give her a replacement key...She is also walking around the house with her phone taping conversations with me. Accusing me of harassing her for damages....Can you please offer some advise.

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    1. Michael K. E. Thiele22 June 2015 at 13:13

      Hi:

      Your relationship with this tenant is likely not RTA covered as she shares a kitchen and bath with you, the owner. Your relationship, therefore, is covered by the contract that you have with her. You refer to a "lease" which likely is your contract. If you used a standard form lease then it will be referring to the RTA which will not have any legal effect as you can't make a lease and RTA covered lease if the facts don't support jurisdiction. However, the terms of the lease might be read as contractual terms. So, what do they say about notice and return of money and the ability to terminate sooner?

      Certainly, if it is a standard form lease then it won't have very helpful wording as it will refer to the legislation and the processes under the RTA for termination of tenancies. However, you can use the Notice timelines of the RTA as a basis for evicting her and for the reasonableness of the notice that you do give her. Illegal Acts and Impaired Safety allow for 10 day Notices of Termination. Unless the terms of your contract provide otherwise, 10 days notice is arguably reasonable notice for Impaired Safety and Illegal Act because the RTA says that it is. N5 behavior is interference with reasonable enjoyment--which has 20 days notice for the first incident and 14 days for the second incident. Perhaps take a look at the Notices of Termination under the RTA to get a sense of what would constitute reasonable notice to her. Be aware that if your lease has specific contractual terms you will need to follow those or risk her filing a claim against you.

      Sometimes behavior is so intimidating, dangerous, and illegal, that no judge would fault you for terminating without any notice whatsoever. Whether that is your situation I don't know. However, in the right circumstances it can be acceptable to require a non-RTA covered tenant to vacate immediately.

      With respect to the money--prepaid rent money, it is possible to make an argument that you retain the funds or that you have to return them. The argument to retain the funds is that the termination and eviction arises from the tenant breaching the agreement. The eviction and termination as well as the retention of the money is the consequence of the "tenant's" breach---at least that is the argument. The alternative point of view is that you chose to terminate the tenancy and hence the obligation to pay rent ceases with the termination of the tenancy. Which way it goes depends on the circumstances of the case and the persuasiveness of the parties.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Anonymous29 June 2015 at 09:38

      Thank you Michael, your information is very helpful. My contract with this paying guest, (non RTA) was very simple and limited. What was stated was a "60 days preferred notice". However, along with refusing to acknowledge or take responsibility for damages, she is also preparing to leave a month early and I am speculating her to skip out on a months rent. Can you please share with me what all my options are? How can I get paid for damages and the months rent I am out? Can I re-rent her room immediately? Can I report this to a credit bureau? My speculation is based on her taking her belongs out of the house day by day. We are close to the end of this month. I suspect she will leave by July 1st entirely. Her contract was till Aug 31st. This whole experience is very troublesome as her disruptive and dishonest behaviour was never expected and difficult to deal with.

      Delete
  73. Unknown9 July 2015 at 08:09

    Hi my name is Adam and I'm hoping you can give me some advice as well.. My roommate is on the lease, I am not. but, back in January we requested the manager to put me on the lease. She Provided some forms to fill out and told me that she would in fact put me on the lease once these forms were filled out etc. the first form was an application. The other was a lease agreement which went over the basic rules of the apartment. both of us signed the documents dated and return them to her. I needed to be on the lease for my disability according to my worker. I never heard back from the manager after turning the documents in my worker stopped asking me to provide a copy of The lease with me as a co-tenant. I assumed that the manager sent a copy to my disability worker directly. (The manager seem to have some knowledge about lease agreements and disability requirements etc.)

    So the roommate has asked me to move out because he's going to move in his mother and his sister. I pay my rent in full and he has no other reason to kick me out. When I asked for a copy of the lease the manager told me that she never put me on the lease. I have a copy of this lease agreement signed by my roommate and myself. Since the manager did not follow through with what she had said it would have made me a cotenant , so In the eyes of the landlord. I am not on the lease. I don't want to move, I can't afford a move. This location is ideal. Have a large dog. Which makes it nearly impossible to find a place that's pet friendly with large dogs. My doctor is in walking distance, I don't drive. I have severe anxiety when it comes to public transportation, so taking a bus is out of the question. The Internet bill is in my name. the utilities are in his. I have paid rent in full directly to the landlord from my bank account several times. He had given me his portion of the rent in cash and I did an electronic transfer. So the management definitely recognizes me and is fully aware that I'm living here.

    My question is what rights do I have? There is no written document between he and I stating the terms of my tenancy. All I've got is the signed document( lease agreement)saying I am a co-tenant. but the owner does not recognize it. despite the fact that she provided the paperwork). He gave me a verbal 60 day notice but nothing in writing. I've been actively looking for another place that I can afford, within walking distance to my doctor that is also large dog pet friendly. I haven't found anything. Either it's too far, too expensive or no pets.

    Had the manager put me on the lease like she told me she would have I wouldn't be in this predicament.
    what recourse do I have. Bottom line, I don't want to move nor can I afford it. Sorry for rambling, I'm frustrated and want you to understand the situation. Please tell me I've got a leg to stand on.

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    1. Michael K. E. Thiele9 July 2015 at 09:59

      Hi Adam: From a legal perspective I think you have a strong position and there is no doubt in my mind, based on what you have said above, that the landlord and tenant board would recognize you as a legal tenant. The problem you are going to have has less to do with the law than with your relationship with your roommate. I presume you are aware of the social issues that are going to arise with your roommate when you refuse to move out and hopefully you have a way of dealing with that conflict.

      The steps you took to get added to the lease involved the landlord and your roommate. The signing of the document that you have demonstrates an intention to make you a tenant and for you to have the responsibilities of a tenant in the premises. The application you filled out confirms that the landlord was assessing you on that basis. Living there, paying the rent directly from time to time, the signed documents, all speak to you being a legal tenant. The property manager's statement that she did not follow through and "put you on the lease" is, I think, meaningless. Another way of thinking about this is as follows. What if there was damage to the property or the rent was not paid. Would the landlord and your roommate consider you a tenant then? Has the landlord by chance ever served you with a Notice of Termination naming you as a tenant? Has the landlord ever issued you a rent receipt? These too could be useful pieces of evidence.

      The question is how to deal with the anticipated conflict and perhaps aggressive tactics of your roommate and landlord--who might unilaterally lock you out and then perhaps tell police that you were just a roommate when you call for assistance. The situation you describe will likely give rise to some tense moments. To give you an advantage in the argument over whether you have security of tenure, as a tenant, you need to have the question legally determined. I would recommend that you file an A1 application with the Landlord and Tenant Board. You can find the application on the Landlord and Tenant Board website. The A1 is an application that asks the Board to determine whether the Act applies or not. I think it is a reasonable use of the A1 Application for you to ask the Board whether the RTA applies to you or not and whether you have rights under the RTA or not. The determination by the Board of this issue will bind the landlord and the landlord will have to accept the Board's determination of whether you are a tenant or not.

      Delete
    2. Michael K. E. Thiele9 July 2015 at 09:59

      Unfortunately, the Landlord and Tenant Board (LTB) does not have the jurisdiction to adjudicate disputes between roommates or co-tenants. The LTB can not make orders as between yourself and your roommate and hence a legal determination that you are a tenant may simply inflame the tense relationship you have with your roommate.

      What could your roommate do? Let's assume that he will behave in a civilized manner. He may accept that you have a right to live there. Or, he may decide that because he can not require you to leave that he may leave himself. He might give the landlord a Notice of Termination of the tenancy.

      If he gives a Notice of Termination the legal interpretation of that document might allow for some mischief. The landlord could take the position that your roommate's Notice of Termination terminates the entire tenancy. Meaning you also have to move out as the tenancy is over. The Landlord could then enter into a new tenancy agreement with your roommate and voila, your roommate gets what he wanted all along. Alternatively, the landlord acknowledges that your roommate left, asks you if you are continuing (and presuming you were deemed credit worthy), simply continues the lease. Or the landlord might tell you that you need to enter into a new lease. After that you could find a roommate etc..

      There are several possible variations and angles and much depends on the positions that people take. A creative one might be, on filing of the A1 application, that you canvass the legal possibility that there are two tenancies within the rental unit. The argument that you would make is that you are tenants in common. The simpler way of understanding this is that there are two tenancies in the rental unit. I think the argument is possible as there was an existing tenancy with you as an occupant and then there was the creation of a second tenancy with the agreement of the landlord and the tenant(your roommate). Whether the facts fit or not I don't know. The implication though would be that you have your own tenancy within the rental unit and are liable only for your rent. If your roommate terminates, he is terminating only his tenancy and not yours. Of course, such an arrangement raises concerns and you wonder if the landlord would then have the right to re-rent that part of the rental unit that your former co-tenant occupied.

      The simpler argument of course is that the first lease was amended to add you as a tenant. Whether you want to pursue the second lease idea or not might be something for leverage with the simpler argument being the alternative argument.

      The legal aspects of your matter are something that really should be handled by a lawyer or paralegal and I strongly recommend that you get counsel--hopefully from legal aid or a local community legal clinic.

      I hope this works out for you. The way you set out the issues it sounds like your landlord and roommate are on the same side. Are you sure that your roommate is being honest with you about wanting his mother and sister to move in? Perhaps it is an excuse or a nice way of saying he doesn't want to live with you anymore and he has gone to the landlord asking for help in getting rid of you? As I said at the beginning, the legal aspects of the case favour a finding that you are a legal tenant. However, the social aspects are complicated and winning the legal case does not mean that everything will be peaceful and fine.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  74. Anonymous13 July 2015 at 11:46

    Hi Michael.

    I am looking for some advice in relation to a roommate. I am solely on the lease and have permission from the letting agent/landlord to rent out the rooms in the house. This has been the agreement for over 12 months.

    I recently rented a room to a person, they had agreed to pay first and last as standard. I allowed him to move in with only having paid me the first month (he was getting paid on the 3rd July so was due to pay the last on that date). When he moved in I had him sign a form stating that the balance of the deposit was due in July 3rd. At present I still have not received this balance. I have spoke to him twice regarding it and i have also sent numerous texts. Currently as it stands rent for July is due soon plus the last month from him. I am afraid that he will not pay me Julys rent on time which means i will have to pay out for this. Where do I stand in relation to this???

    Thank you for your help.

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    1. Michael K. E. Thiele13 September 2015 at 07:19

      Hi: This roommate is not a tenant and has no rights under the Residential Tenancies Act. As you are the tenant, living in the unit, you should regard yourself as the homeowner. The person who is staying with you (roommate), is there because you have an agreement/contract. Another way to look at it is that he has a licence to be in your home. His breach of his obligations allows you to consider this a breach of contract. You may further consider revoking his licence to be in your home. Reasonableness will always govern the day in relation to these matters as these cases end up in the small claims court if it becomes a legal matter. If he doesn't pay you may proceed to remove him from the property--resonably is the only condition.

      Michael K. E. Thiele

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  75. Anonymous27 July 2015 at 23:08

    Hi Michael,

    I found your blog based on a Google search I did for my circumstances, as I currently live with the landlord, and share a kitchen/bathroom with him. I understand that the RTA does not protect me.


    In short, I moved in April 2014, owner went to Egypt for a year, leaving myself (renting a bedroom), another tenant beside me (renting a bedroom) and a couple (renting the basement) to live in the house.

    The couple and the tenant beside me moved out, on bad terms with the landlord, who had been communicating witth them via email. In his absence, I maintained all the house duties, including cleaning, recycling/garbage, and finding new tenants.

    Owner returned and lives in the room across from me. He does believe in flushign toilet paper, insisting I throw it in the lidless garbage can beside the toilet. I come to a mountain full of brown in the garbage every night. The smell wafts into my room, and I have to take the bag and toss it outside each night. Owner covers up the smell by spraying aerosol cans, instead of just tossing the bag outside - he leaves that for me to do, if I want the smell gone so bad, insisting that the brown in the garbage doesn't smell.

    The landlord does not clean the bathroom, I have been scrubbing the toilet, sink and bathtub by hand since I moved in. With that, I left a note asking everyone to lift the toilet seat up to pee, as he pees right on the seat, forcing the other tenant and myself to clean up his pee - we've both accidentally sat in his urine, twice. He now urinates on the seat deliberately, and just yesterday, ripped up the note. Some pride of ownership.

    The owner has befriended the new basement tenant, and on numerous occasions, I have heard them both making fun of me, my body, my face and my sexuality. The landlord used to be nice to me, but the basement tenant is a drunk, I've never seen him sober, and always makes snide comments about me. I bite my tongue because I don't want conflict, although the drunk is testing my patience. The owner now scowls at me, instead of the cordial greeting he used to give me.

    I had enough because these are strangers to me, and I'm not interested in their drama. I planned on giving my 30 days notice this week, leaving September 1st. This morning, I overheard the owner tell the basement tenant that he planned on ambushing me on the last day of the month. "Pack your things and get out of my house", he said to the drunk. "Surprise!" The tenant replied, both of them laughing.

    It should be noted that I can hear them because they sit outside and guzzle alcohol on the deck, which is outside my window, and outside the washroom.

    I'm happy to leave with 30 days notice, but ambushing me at the end of the month, which is 3 days away, would make me homeless, I don't have a place to move into yet. Keeping in mind that I'm not protected by the RTA, can he legally get away with doing that to me?

    I know this sounds like a paranoid delusion, believe me, I wish it was.

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    1. Michael K. E. Thiele13 September 2015 at 07:22

      Hi: The situation you are living in is profoundly abusive. You have no RTA protection as you acknowledge. This goes far beyond any protection a statute could give you. Get out as soon as possible--to a shelter if you have to. The circumstances suggest escalating degrading behaviour and I don't think you should continue to live there. After you've moved out you may consider suing the guy but you shouldn't do anything like this without help from a lawyer or paralegal.

      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  76. Anonymous28 July 2015 at 13:38

    Sorry, I forgot to add in the above comment that the lease went from April 2014 to April 2015, and since then, I have been paying month to month. I have given first/lasts, so if August is my last month, which I want it to be (it's currently July), then I won't have to pay rent this month.

    My specific question is, since I"m renting a room and we share a kitchen/bathroom, can he evict me just like that, as I think he's planning to on the last day of this month, or is he required to give me 30 days notice?

    I also want to point out that, before he left for Egypt last year, the tenants and I paid utility bills, about $200, which the gas company said they never received. The tenants who were living here, myself included, had to leave a $200 deposit to get our gas turned on, which the owner refused to pay. This is all documented by a paper trail, the tenants and the gas company. What happened to our money that we gave to the owner remains a mystery...

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    1. Tanya5 September 2015 at 19:54

      This comment has been removed by a blog administrator.

      Delete
    2. Michael K. E. Thiele13 September 2015 at 07:36

      Hi Again: If you have no RTA protection then the landlord may indeed evict you without notice. Such an eviction may be contrary to your contract and you may have damages and you may indeed be able to sue him for being evicted without notice. However, the fact remains that your security of tenure is rather perilous.

      Why you would fight to stay in this hell hole I don't know. However, if that is important, you may wish to consider an application to the Board to determine whether you are a tenant or not with RTA protection. I say this because it sounds like you may have rented the premises when the owner moved away to Egypt. His return, and then occupying a room in the house does not void your RTA rights if you had RTA rights at the commencement of your lease. Sharing a kitchen/bath only operates to exempt the application of the RTA if that was the status at the commencement of your tenancy. A landlord can not move back and remove RTA protection. If you moved in, as the landlord was moving to Egypt, but the understanding was that he was retaining a room in the house and returning then it may be that the RTA does not apply. The facts matter a great deal in determining this question so if you want to go this route I recommend sitting down with a lawyer and explaining the commencement of the leasing process in detail.

      As for the money. The landlord needs to account to you for it--either in the RTA or pursuant to a licence or contract. Your remedy is likely a small claims court action (if it is worth it to you).

      Good luck

      Michael K. E. Thiele

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  77. Tanya5 September 2015 at 19:52

    This comment has been removed by a blog administrator.

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  78. Very concerned10 September 2015 at 15:40

    I have a roommate and we r both on the lease. I am the primary and she is secondary. Things have gone south with us and she is now saying that she will not pay half the rent like we agreed. She is also threatening to call child protective services if I don't accept the new terms. She's says she has a lawyer and everything. Can I make her move out?

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    1. Michael K. E. Thiele13 September 2015 at 07:27

      Hi: You say that you are both on the lease. Are you both on the lease as "tenants" or is one of you a tenant and the other person an "occupant"? It is worthwhile to have the lease looked at by a lawyer or paralegal. A duty counsel at the Landlord and Tenant Board would look at it for you for free or you could attend a community legal clinic and they would look at it for you as well for free. If you are joint tenants on the lease your options to kick out your roommate are very limited. Threats of the kind you describe are disturbing (and illegal). You likely can not continue living with this person. If possible, take a look around for a new place and approach your landlord about terminating your lease. Getting a lawyer from a local clinic to help you navigate the legal issues would be helpful---and that free help is available.

      Good luck to you.

      Michael K.E. Thiele
      www.ottawalawyers.com

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  79. mike15 September 2015 at 17:37

    Hi Michael,
    First and foremost: thanks a ton for the original post and the advice (non legal) that you offer. It's much appreciated and I hope you get +10 karmic points for helping people out.

    My situation is quite tame compared to some others:
    On August 1 (6 weeks ago) I moved into a place listed by a person with a house looking to share it for x/mo. Just one month passed by and the individual has decided that we are not as compatible as she would like and would like to try a new roommate instead. I was handed a notice of termination (2 weeks ago) and even in the letter she doesn't mention any reason for termination. Because it's so costly (in both money and time) to move out/in/find a place to live all over again, I'm understandably peeved. I don't have an interest in staying here if it's a toxic environment do I do want to move out but I do think, especially if there isn't any grievance caused, I do have the right to a "reasonable" amount of notice (60 days) rather than just under 30. I mentioned that to her and her response was that, as a boarder, she can evict me with just 24 hour notice and 30 days is a courtesy.

    I'm looking for apartments but I'm concerned that places with openings Nov1 will be out of the picture because I've been requested to leave by the end of September. My question therefore is:
    [A] Do I have a right to 60 days notice?
    [B] If I do but she doesn't recognize that right, what happens if she attempts to move my things out before those 60 days are up?

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    1. Michael K. E. Thiele17 September 2015 at 10:18

      Hi: As a boarder without rights under the Residential Tenancies Act you do not have statutory entitlements. Your relationship with your roommate/landlord is contractual. This means you are governed by the terms of your contract. What does it say with respect to termination? If the contract does not exist, is oral, or fails to address this issue, then you need to turn to "reasonableness" as a guide. While you have no right to occupy the premises (and no security of tenure) your roommate is not entitled to act with impunity. She is clearly in a contractual relationship with you. You pay her money to have a room. Either explicitly or impliedly, there are terms to your contract respecting the kinds of things that are expected of each of you. A breach of a fundamental implied term (i.e. not to commit illegal acts on the property) would entitle you or the roommate to immediately terminate the relationship without notice if the illegal act was very serious. The point is that the length of appropriate notice varies depending on the circumstances.

      Your focus on there being no reason for termination is appropriate and it factors into what is appropriate notice.

      You would like 60 days as that allows you to find a decent place to move to. Your notice is short. I would suggest that you write your roommate an email advising that you find the notice that she gave you to be short and that it is putting you in a bind. Ask her, in writing to extend your notice to the appropriate day. Then confirm that if she does not extend the notice period that you will move out in compliance with her direction as she is the tenant and you have no security of tenure. However, you can also inform her that moving out on the short notice will cause you to suffer financial damages, incur storage, housing and other expenses that you would not incur if given an appropriate length of notice. Because of that, you should inform her that in complying with her notice, which you find to be unreasonably short, that you will suffer financial damages for which you will seek compensation from her in the Small Claims Court. You could further mention that your view is that 60 days is the appropriate period of Notice when there is nothing "wrong" between roommates as in your situation. Given that this is the amount of notice that the Residential Tenancies Act deems as "reasonable" when there isn't an issue between parties it is your position that a Judge of the Small Claims Court will find that 60 days is the reasonable notice to be given to you and that earlier termination entitles you to damages.

      Depending on how she responds you may have the choice of suing her in small claims court. While I can't tell you that you would win, I can say that the argument would not be unreasonable and you certainly have a chance of winning.

      Good luck with this.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  80. Kim16 September 2015 at 00:01

    Hey Michael!

    I am a tenant, I'm rooming with the landlord's daughter. The landlord for whom I have signed a lease agreement with comes and goes as she pleases without giving any notice. I realize that she is exempt from the RTA because her daughter is living with us (sharing kitchen and bathroom). In the lease agreement, she there are no clauses that stipulate and conditions for her entering the premisses. She also comes in at odd hours (11pm one time), making lots of noise and moving furniture around. This doesn't seem fair to me. I want to request that she at the very least give us notice when she plans on coming/going (doesn't have to be 24 hours). If she says no, am I SOL?

    My second issue, is that the landlord comes in and moves my things around. Doesn't give warning, doesn't ask, I come home to find everything in the kitchen in different cupboards and on different shelves. I just feel violated. If she feels this entitled at moving my things around in the kitchen, what's to stop her from coming into my room and snooping? Is there anything that protects me at all in these situations?

    Thanks for your help, I've read a tonne of on-line forums and I've tried my best at reading through all the RTA but since it doesn't apply, it wasn't much use.

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    1. Michael K. E. Thiele17 September 2015 at 10:03

      Hi: A question for you. When you signed the lease did the landlord's daughter also move in with you? Did the daughter move in afterwards? I'm trying to determine if you ever had RTA rights during the lease. Further, does your signed lease agreement say anything about the RTA or Landlord and Tenant Act or Tenant Protection Act? Have you by chance contracted to the terms of the legislation? If so you might be able to argue that the landlord has to give you the same protections as under the RTA. Breaches could be the basis of a small claims court action against the landlord and if you were insistent enough you could in theory get injunctive relief in the Superior Court of Justice (though to do so would be extraordinarily litigious and you would be spending crazy sums of money in legal fees).

      The above represents angles to explore to try to get a legal advantage. However, if you are RTA exempt the reality is that recourse to the Small Claims Court is not very helpful to solve the immediate problems. I recommend that you document your concerns to the landlord, ask her to do what you set out above, and frankly just get ready to move out. A landlord who is this insensitive is unlikely to see the basis of your complaints.

      Good luck
      Michael K. E. Thiele

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  81. Anonymous17 September 2015 at 10:17

    Hi Michael,

    Thank you so much for helping people like me with our questions!

    I rented a 2 bedroom apt. I was the only person on the lease. I cleared it with my landlord re: finding a roommate but leaving the apt in my name only.

    We have both now moved out of the unit. The roommate (who was a student), wants me to issue her a rent receipt for tax purposes.

    Do I have to provide this to her?

    My points/thoughts are that it was shared accomodation, I did not own the premises myself (I rented), the landlord would already be declaring the rent as rental income (so I shouldnt').

    Thoughts?

    Thanks!

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    1. Michael K. E. Thiele27 September 2015 at 12:34

      Hi:

      This is a great question for your accountant or tax preparer. I don't think you are in a position to issue a rent receipt as you are not the landlord.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  82. Anonymous18 September 2015 at 05:06

    I recently rented a room in my apartment. 2 weeks rent has been paid, I asked for last months but I am still waiting. But thats not the problem. This person has a dog that will not stop barking when the tenent is not home. It is a serious problem that prevents sleep. How much notice is resonable?

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    1. Michael K. E. Thiele27 September 2015 at 12:48

      Hi: What constitutes reasonable notice depends on your contract/agreement with your roommate. You don't say what steps have been tried to keep this dog quiet and what solutions the dog owner has. If the dog drives other people in the building crazy with its noise you might be on the receiving end of an N5 Notice of Termination yourself. It is reasonable to expect immediate steps to be taken to quiet the dog. Immediate termination may not be reasonable depending on the steps taken by the roommate given that two weeks rent has been paid.

      Good luck
      Michael K. E. Thiele

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  83. Unknown25 September 2015 at 17:29

    Hi Michael,

    Thanks for all your great advice! I'm writing about a somewhat different situation. A friend of mine is condo owner. She had her boyfriend move in and live with her with the understanding that he would pay her $700 per month plus half of household expenses ( groceries, electricity, etc. ). Almost immediately collecting his share of expenses became a problem. Then he started being late on the rent, and finally he refused to pay any rent for September because he was planning on travelling for the latter part of the month. My friend got tired of his games, and after he left she informed him that their relationship was over ( she feared that if she broke up with him while he was still in her house that it would be impossible to get rid of him ). The question now, is what to do with his belongings. Does she have any obligation to hold on to them for him given that he hasn't paid any rent? Would she be allowed to sell any of his belongings to recoup the money he owes her?

    Thanks in advance for your help!

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    1. Michael K. E. Thiele27 September 2015 at 13:21

      Hi: The issues raised by your question do not involve the Residential Tenancies Act as the relationship between your friend and the boyfriend is not a landlord and tenant relationship. There is no specific statute that sets out how your friend must deal with this ex-boyfriends property. Likewise, there is no specific statute that sets out the boyfriend's legal rights in this situation. What applies are general principles of law. These principles may be applied by both your friend and her ex-boyfriend. A Judge weighing their positions would aim to apply the law to get to a just result. The context of this relationship is also important to consider. Looking at this from a purely contractual perspective the ex may be characterized as a breaching mooch (which I take from the tone of your comment). From his perspective (just guessing), he may think he contributed equally through other things he did (housekeeping, pay for social events, he just doesn't have the money so should not be expected to contribute the same amount). My point---when two people move in together based on a romantic relationship it isn't correct to analyze who did what and who paid for what on pure contractual terms. The relationship is not a balance sheet. If one of the two in a relationship has superior financial resources you can't be surprised when the financial contribution to the relationship is unequal. Trying to make it equal post-breakup with a lawsuit is usually unsuccessful. Of course, financial contribution, choices about money, and feeling taken advantage of are normal reasons to end relationships. Whether these reasons can be the basis for a lawsuit and a Judgment is not so clear.

      The ex could certainly sue your friend for a return of his stuff. He would win that lawsuit as nothing in the law gives her the right to simply take his property. He might (though unlikely) be able to get police involved. While he might sue her, she could also sue him for what she says he owes. For the apparent amounts, this all appears to be in the small claims court and hence this begs for reasonable behaviour. Simply selling his stuff risks judgment and admonishment from a Court or at worst attention from the police (and criminal charges) for selling someone else's property.

      I'd consider sending the ex an email setting out the financial demand and asking for payment. An aggressive stance would be to withhold his property until he pays. If he never pays, refuses to pay, then warnings upon warnings that she intends to sell his stuff to recoup the loss with the sincere hope that a deal can be worked out. The value of the things we are talking about would in all practicality determine how to proceed if no deal were worked out. In the event of a complete standoff and no reasonable resolution in sight, consider a small claims court action to bring the matter to a head (and resolution).

      Good luck

      Michael K. E. Thiele

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    2. Unknown28 September 2015 at 10:39

      Thanks so much for taking the time give such a through response. I doubt that it changes the legal picture, but just to clarify a couple of the points you raised, this isn't a situation where there was a financial imbalance. The boyfriend has the means to pay and may actually be better off financially than my friend. He was also a deadbeat in the area of houosekeeping, etc.. This is not a case of someone offsetting the cost of rent by contributing in other areas, this is a case of a guy taking as much as he could whenever he could. He's basically an exploitative jerk. Hence the appeal of taking punitive action with respect to his belongings. :) Thanks again for your help.

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    3. Michael K. E. Thiele28 September 2015 at 12:51

      Hi: I understand what you're saying. My point was more general in nature to highlight that romantic relationships are not a balance sheet and contributions to the relationship can not be expected to be equal from a dollars and cents perspective. What constitutes "deadbeat" at the end of the relationship may have been "endearing" early on (not that I'm saying he was). Again, your friend needs to be careful in taking a punitive action against the boyfriend that clearly is against the law (selling someone's property) using a justification (deadbeat) that isn't necessarily supported in the law.

      Michael K. E. Thiele

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  84. Anonymous26 September 2015 at 13:14

    Hi Michael
    Appreciate tou taking the time to comment on landlord/tenant issues. I am on the landlord side of the fence and have a question regarding the control of the heating and a/c systems. Just to give you a snapshot of the situation, i purchased a 3 bedroom condo to house my daughter during her unversity studies and have taken on 2 student tenants to help with the bills. I realize from reading the other posts that I am exempt from the RTA but want to treat the tenants fairly. The issue at hand is that one tenant is being wasteful with the use of the a/c, she's running the a/c constantly while the temp outside is colder than the room temp as she would rather run it than open her window. I should say at this point that all utilities are included with the rent and that we signed a one year tenancy agreement as I was unaware of lincensor/licenesee agreements at the time. Long story short, am I legally allowed to take control of the heating and a/c systems to keep them at a reasonable level and, if so, what are those thresholds in Ontario? Thanks in advance for any advice.
    Frank

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    1. Michael K. E. Thiele27 September 2015 at 13:46

      Hi Frank: I'll accept that you are RTA exempt from your comment (presumably because your daughter is in the unit). Once you are RTA exempt the rules are few and far between and there is nothing like the "code" of the RTA that governs your relationship with your daughter's roommates. So, yes, you can take control of the thermostat. Wasting resources is always frowned upon and this would give you good justification to take action. However, I caution you to not jump to conclusions about why tenants are doing certain things. What you conclude as waste may have an explanation that justifies the behaviour. Hence, before taking unilateral steps that may be perceived as aggressive you should have a frank conversation and get the perspective of the roommate. What might her reasons be? I know some people run A/C as opposed to opening windows because of allergies.

      To be "fair" is a matter of perspective. The trick is to be "fair" from an objective standpoint. If it is "fair" that you want to be then I think on an objective basis that treating the roommates as tenants under the RTA is going to get you close to what is considered objectively fair from a legal perspective. Under the RTA tenants do not have the right to control their heat and cooling. The landlord may control the thermostat. However, when that is the case the landlord must provide heat as a vital service commencing September 1. 20 degrees Celsius is the magic number. There are no rules about air-conditioning other than that it works if it is supplied with the premises.

      The difficulty in your situation is that you have started out in a particular way and now are changing it. Arguably the way you started reflects the terms of your deal. Changing it now can be argued to be a breach of contract by you. I don't think that this will go very far, but you should keep it in mind that the roommates are not in a complete legal vacuum. They may not have RTA coverage but they are paying money to live in the unit and they have a contract with you that sets out certain terms even if the RTA does not apply to them.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  85. Unknown29 September 2015 at 23:28

    Hi Michael,

    I am currently renting out a room in a landlord's home. The only thing that I signed for was a short rental agreement, with no rules addendum. The landlord had verbally expressed dislike for guests before I signed, however having no plans to bring several people over, I thought nothing of it.

    I brought a girl over one night, and got a confrontation later because the landlord had seen her enter the house. I'm paraphrasing but essentially:
    "This is my house, this is a rule of the house, no guests. If you don't agree you have to leave in the next 10 minutes or I'll call the police. I'll give you back what you've paid."

    Now I am only staying here for another 41 days (yes, I am counting at this point), and the time she came over, there was no noise complaints against us. In fact the room next door to mine was not even aware a guest was over. What I want out of this is to be allowed to have a single guest over without being threatened to get evicted for the remainder of my stay.

    I am aware I am a "board", and I saw a similar problem in the comments. However I think that as long as I am not disturbing the peace of the house, there are no grounds to evict me. Especially since I did not sign any rules whatsoever.

    Thank you

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    1. Michael K. E. Thiele5 October 2015 at 10:34

      Hi: I'm assuming that you are not covered by the Residential Tenancies Act on the basis that the landlord lives in the house and you share a kitchen and/or bathroom with the landlord. If the landlord does not live in the house then you may indeed be covered by the RTA.

      In an RTA covered unit you would have far greater rights to have a friend stay overnight and certainly the landlord could not take unilateral action to evict you--effectively on the spot.

      If you are not RTA covered then the "landlord" has significantly more power than you. The landlord can take the step of evicting you, unilaterally, and there is nothing you can do to fight to stay in the premises. Your remedy against the landlord in a non-RTA covered unit is contractual and you would have to sue in the small claims court.

      Your position on the facts you provide sounds reasonable and I think a verbal expression for dislike of guests is not the same as a prohibition. Certainly this should have been in the contract you signed. If the landlord did take action to evict you because of this situation without reasonable notice then I do think you would have a good claim for damages against the landlord. Unfortunately, you will not be able to get an order granting you possession of your unit.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  86. Unknown12 October 2015 at 13:01

    Hello Michael,

    thank you for posting this! very insightful. I was wondering if you could answer a question for me related to my new room mate

    I rented a room in my two bedroom condo recently to a seemingly nice lady . We share bathroom and kitchen of course. Anyway , i am not that fussy about to whom i rent a room to , but as part of my interview process, i indicated to her that i am a recovering alcoholic and that i cannot tolerate any drinking as this will risk my sobriety .Middle aged people seeking rooms tend to have substance abuse problems so i was very clear i could not tolerate any drinking whatsoever . She agree of course , indicating that she used to drink but this would not be an issue in the home. Anyway , the very first day she moved in , she was extremely intoxicated , and was drinking in my home. she was becoming aggressive when i confronted her. it was like we never had an entire conversation about my boundaries in my home. I let things sit for the night, the following morning , she was yelling and getting mad at me putting a cigarette out in the bathroom sink .. It was her smoke, she was just drunk and did not remember putting it in there. LOL ..

    I gave her notice on the spot , today , as of the 12th to move out by the first . She is refusing of course. The real issue is that when we interviewed she seemed great so i gave her a letter in writing that i would give her 60 days notice to move out . I wanted to protect us both here . Is her breaking our verbal agreement to not drink in a recovering alcoholics home trump this letter that i gave her.. Can i get in real trouble for booting her out. and if i am the right to get her out, how do i proceed here ? should i change the locks on the door if she refuses ? and call the sherriff to have her stuff removed from my home ? Maybe get a peace bond .? do i need to get a more official style document to evict ..

    Anyway i am really stuck here so any advice you have would be greatly appreciated !! Thanks ahead of time

    Cliff

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    1. Michael K. E. Thiele13 October 2015 at 09:51

      Hi Cliff: The written document that you provided to this boarder is a rather important document. It can likely be argued to be the "contract" between the two of you. I take it that this document does not contain any conditions or terms of the relationship---like no consumption of alcohol on the premises--which is of course a significant problem. Is it possible that a Judge would consider the agreement that there be no drinking as being part of the contract between you and the boarder? Yes, it might be considered. However, it is a problem that the terms of your relationship are partially oral and partially written. You, as the owner, are in control of the pen as there is no relationship unless you allow there to be one. As a result, a Court will generally interpret any ambiguities in contracting against the person who has the opportunity to draft a clear agreement. That being said, your condition of no alcohol is readily understandable and I wonder if the boarder would even challenge your position that no alcohol use is a condition precedent to entering into any agreement whatsoever.

      Perhaps the right question to ask is the one you did actually ask. Can you get into "real trouble"? I guess it depends on what you call "real trouble". The boarder could sue you. Likely in the small claims court. She would argue that you breached the contract by failing to give her the proper amount of notice. She could claim damages (money) for the early termination and seek to recover expenses that she had to incur. If she goes to a hotel/motel, buys restaurant food, etc., she could argue that she incurred these expenses because she was removed from her home where she would not have these expenses. The notion of "general damages" (pain and suffering money) or money for humiliation etc., is not something that I see as technically available to the boarder in any lawsuit against you. Of course, that doesn't mean she won't claim an extravagant sum. Fortunately in Ontario our Courts are balanced and reasonable. I don't see any kind of punitive award against you under these circumstances. Of course, and please keep this in mind, the only opinion that really matters is that of the Judge (i.e. my opinion, though educated, does not rule the day).

      So, I see the worst case (i.e. the real trouble), as being a lawsuit that you have to defend. Your defence, on the facts you describe, is fairly straightforward and inherently reasonable. The problem for you, might be, that while your actions (evicting) are understandable you contracted to different terms and hence are liable to the boarder. You should keep in mind, as well, that getting sued is a lengthy and time consuming process. The likelihood of the boarder proceeding in this way is by no means assured.

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    2. Michael K. E. Thiele13 October 2015 at 09:51


      Getting the boarder out is a bit of a challenge if the boarder does not leave voluntarily. The sheriff is not going to help you unless you have a Court Order. As this is not a Residential Tenancies Act matter you would have to seek a writ of possession from the Superior Court which would direct the sheriff to enforce the eviction. Without that, the sheriff is not getting involved. This leaves you with the local police. It is by no means guaranteed that the police will remove the boarder either. Some officers view the situation as a "civil" matter and hence will do nothing if there is no peace to keep. Other officers may look at the situation and see a boarder who is trespassing (because the boarder is no longer on the premises with consent) and therefore will remove the boarder on the request of the property owner. The only way to know what you're going to be facing is to call the police in advance and seek the assistance of officers on and for "moving day". If your local police are going to help you remove the boarder it is a good idea to not act without first informing them. Changing the locks after the boarder is out is a good idea.

      I'll mention of course that you need to be careful. Don't forget the dynamics of male/female and that stories may be concocted. Don't give your boarder any grounds to make allegations. If you see this as a risk I'd recommend that you get to the police first, tell your story, and make it clear that you've asked the boarder to move out and that you've set a date by which the boarder must leave. If an "incident" happens (or doesn't actually happen) before move out day you might find that having contacted police for assistance is a saving grace for you in dealing with officers responding to your home. I don't mean to alarm you and the chances of it coming to this are unlikely--however, in my law practice it is the worst stories that come to my attention and hence my rather jaded view.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  87. Riley13 October 2015 at 10:58

    Hi Michael,

    A former friend offered his small locker at his apartment building for me to use to store my belongings . He did not ask for share of the locker rent as he said he had to use the locker himself as well and even helped me move the furniture by himself and never gave me a period when I have to move it by.

    A few months have passed and now that he knows I am not interested in him romantically, he's sent hostile messages and emails giving me 5 days notice to move my belongings over the Thanksgiving weekend, calling me names, putting my family and my religion down. Is this considered a reasonable period and can he actually do this? What am I allowed to do? If he wants me to move my belongings, should he move it to another storage himself and cannot dispose it?

    Thanks and looking forward to hearing from you!

    Riley

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    1. Michael K. E. Thiele13 October 2015 at 16:51

      Hi Riley: This blog is about Landlord and Tenant law issues. Other than the fact that your property is stored in an apartment building there isn't really a connection to the Residential Tenancies Act that I can see. The law that I would guess applies is the law of bailment. You are well advised to make arrangements to move your stuff to your own storage as soon as possible. Keep this person apprized of your timeline to move your things and confirm with him that you want your property. If he does something foolish you will want to consult with a lawyer about suing him for the lost property.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  88. Anonymous13 October 2015 at 20:20

    Hi Michael,
    I own a house which I use for business and I also have a roommate. When he came to see my house we discussed what my expectations were in a roomie-a clean house, his own driveway-(mine is for me and my clients) garbage, recycling and dishes done daily and each our own laundry days. He smiled and agreed with everything. He moved in june 2014. He has never honored any of our agreements-he is filthy-he hoards garbage and recycling- he will take my laundry out to do his own- he wrecked(burned) my countertop in the spring and its still not fixed and he repeatedly ignores my request for him to park in his own driveway. My dishes are disappearing. I am losing clients because they think I'm busy with someone else because of the vehicle in my driveway. I can't keep trying to talk to someone who always agrees with me and then just does whatever he pleases. I struggle being at home now- I'm no longer comfortable in my own home as he appears to be vindictive. Every time I ask nicely for him to do something he turns around and does something not nice (like leave bags of garbage all over my property) I cant deal with this anymore and I am cancelling clients because my stomach is in knots.
    Thanks for your help

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    1. Michael K. E. Thiele14 October 2015 at 10:05

      Hi: I'm sorry to hear about your problems with your roommate. I'm presuming that the Residential Tenancies Act does not apply as you both live in the same house. The facts that you describe are certainly reason enough to want him to vacate. What you describe clearly shows a profound lack of respect for you and your home. It is time for the roommate to go. Given what you've described I don't think that you will be able to deal with the roommate entirely on your own. You should find a local lawyer (with experience) and retain that lawyer to help you get your house back. Depending on the circumstances you describe to the lawyer there are a number of ways to proceed. The manner of proceeding can range from a polite lawyers letter, to involving the police or even getting a Court Order directing the Sheriff to remove the individual. You mention a vindictive roommate---if the risk of violence is real your lawyer might even consider getting an order removing the roommate from the Court without notice. A restraining order is also a possibility.

      While working with a lawyer will cost you legal fees I think proceeding like this is necessary given your roommates total lack of respect for you and his demonstrated willingness to ignore your requests.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  89. Anonymous19 October 2015 at 14:50

    I was hoping you could help, I signed a one year lease, with my boyfriend. Both names are on the lease. There was an altercation, and for my safety I left the apartment with my son and have no intention of returning. I emailed the landlord, and his response was i had to sublet or he would help sublet if the apartment was vacant.
    1. I cannot return there
    2. I cannot force my ex to vacate
    3. I cant access the apartment or help out subletting in any way.

    What are my options?

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    1. Michael K. E. Thiele20 October 2015 at 13:43

      Hi: The Residential Tenancies Act does not have any specific rules for situations involving domestic violence. The rules remain the same. That being said, the rules for what happens when joint tenants disagree about terminating, subletting, vacating, are also clear as mud. There is nothing explicit in the Residential Tenancies Act that spells out the rights of co-tenants with respect to the tenancy agreement. This leaves us looking at the case law and further at the opinions of learned legal scholars on these points. I've looked at this issue time and again, have read some cases, and have read some of the authors on these points.

      My conclusion and what I think is fair is sometimes followed, though I've seen some Board decisions that say a tenancy can't be terminated by notice unless all the tenants sign off (a decision I strongly disagree with).

      In my view (and this is my opinion), the law that applies to your fact situation is this:

      1. You continue to be responsible for rent on the premises to the end of the term.
      2. You have the right to terminate the tenancy at the end of the term whether or not your ex agrees.
      3. As you have vacated, the remaining tenant must find a replacement for you, agree to assign the tenancy, or assume the total cost of the lease. You are liable for a reasonable period of time for the rent (i.e. the time it would reasonably take to find someone new, after which the remaining tenant is liable.
      4. If there is a rent shortage you are liable to the landlord, but you could sue the co-tenant for indemnity.
      5. After the tenancy is legally terminated by you on notice, the landlord has the right to remove the remaining tenant as an unauthorized occupant. If the landlord does nothing then the unauthorized occupant is deemed to be a tenant, in a new tenancy agreement, and your liability is at an end.

      The above is my view of the applicable law. If I am correct, then I would implement and use the law in your circumstance by doing the following.

      1. Serve the landlord with a Notice of Termination of Tenancy Form N9---list as the termination date the day that you vacated the rental unit (even though the form says for the end of term). Use the date you moved out even though it might look like that makes the Notice void.



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