What is likely one of the most frustrating things for a landlord is having an application to the Landlord and Tenant Board dismissed because of a "technicality". Until it happens to you, it is a little hard to believe that an application can be dismissed because of a mistake that seems obvious to everyone and it is clear that the mistake didn't mislead or confuse anyone (including the tenant). The reality, however, is that applications that do not comply with the provisions of the Residential Tenancies Act are dismissed out of hand. This means that a landlord needs to start all over again, from the very beginning, if they want to try to evict the tenant.
It is perhaps easier to write about this topic using an example application so that you can understand how precise (picky) the legislation is. Lets consider the application to terminate a tenancy for non-payment of rent. That application starts with a Form N4 (Notice of Termination for Non-Payment of Rent). This Notice calls for a notice period of 14 days. What this means is that you need to give the tenant 14 days Notice of Termination for Non-Payment of Rent and this date (at least 14 days after you give the tenant the Form N4) is called the Termination Date.
On the N4 Form you will see a box in the middle of the first page in which you are required to put a date---this date is the Termination date. Every single Notice of Termination (Form N4, N5, N6, N7, N8, N12) has a box on it that requires the insertion of a termination date. Each Form has its own number of days of notice that must be provided and on some forms it changes depending on whether it is a first notice or second notice.
The question is--how do you calculate the date that you need to insert in the box on the form? It is extremely important to calculate this date correctly as this is one of those "technicalities" that can result in the immediate dismissal of an application if the date is wrong.
The general rule for calculating a Notice Period is that you do not include the day of doing something but you do include the day that would be the final day of the period. What does this mean? By example, if you physically hand the N4 form to the tenant on the 5th day of a month you would not start counting the 14 day notice period until the 6th day of the month (meaning the 6th becomes the first day of the notice period). You would then continue counting out 14 days of Notice and you would discover that the 14th day is the 19th day of the month. Pursuant to the general rule for calculating Notice periods you would include the 14th day as notice-- meaning the termination date that you would insert in the N4 (for an N4 served on the 5th day of the month by hand personally) would be the 19th of the month or later.
It is perhaps worth mentioning that Notice Periods (Termination Dates) are minimum notice periods. You are permitted to give more than the minimum.
So, in the context of an N4 it seems straight forward enough that you don't count the day that you hand the tenant the notice, but you do include the 14th day after service. Can it get any trickier? In fact, the rule we just went through is dependent on the method of how you deliver the Notice of Termination to the tenant. The rule we just discussed presumes that you hand the Notice of Termination to the Tenant or that you place the Notice of Termination in the mailbox where mail is normally delivered. The calculation method changes if, instead of handing it to the tenant or putting it in the mailbox, you mail the Notice of Termination or you Courier it to the tenant.
In the case of mailing, the law provides that the Notice is not deemed served until five days after mailing. So, using our N4 example of serving on the 5th of a month--the following would result. By mailing an envelop on the 5th it would not be deemed delivered to the tenant until the 10th of the month (exclude the date of mailing and include the date of deemed service). Therefore, if the Notice is deemed delivered on the 10th you don't include the 10th for the purpose of calculating the 14 day notice period. You start counting the 14 day period on the 11th of the month--which takes you to the 24th of the month. Hence, the termination date is the 24th of the month at the very earliest.
The Rules are different again for service by courier--which deems service to be effective the day after sending a document by courier. Hence, your 14 day period for an N4 would not start until two days after serving by courier even if you know for an absolute fact that the Courier company delivered the envelop on the same day that it was given to them for delivery.
The whole of this article has been dealing with a concept often referred to as "computation of time". It is not just Landlord and Tenant law that has special rules for calculating time periods and in fact all court systems and different levels of courts have their own rules about service and computation of time. How is a regular person supposed to become familiar with the rules? Unfortunately, the way most people learn is through making mistakes and effectively learning the hard way. Certainly, the forms contain guides and if you read carefully you should be able to get it right.
For someone who wishes to be precise the best way to determine if everything is being done correctly is to review the Landlord and Tenant Board Rules--and for computation of time the Rules to review is Rule 4. For a complete understanding of the interplay between the computation of time and the method of service you should also have regard to Rule 5. The Landlord and Tenant Board Rules can be found at this link.
The manner of calculating time and the rules surrounding it are very dull and boring. However, in the process of terminating tenancies nothing can be more important than getting these dates absolutely correct. Being off by one day is enough to wipe out all of the work that went into an application as well as losing the $170 application fee (there are no refunds).
If you have questions about computation of time be sure to get legal advice before starting on the process. Mistakes in relation to Notice can not be corrected or amended or fixed not matter how reasonable it might seem to make an allowance for a small error. It may seem draconian, unfair--and even impossible--but the fact is that there is no wiggle room at all for mistakes in relation to the calculation of Notice Periods in Notices of Termination.
Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.ottawalawyers.com
Sunday, 4 August 2013
5 comments:
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Did the notice period for an N8 recently increase? It used to be 28 days, now it's 60? Which is effectively 3 months if you serve early in a month. This is for a month-to-month tenancy. Also is there any accepted definition of "persistently late"?
ReplyDelete
DeleteHi: The notice period for persistent late payment in an N8 has been 60 days since the Form was created. Note it is 60 days to the end of term. The shorter periods you are thinking of are for tenancies where the rental period is less than one month. You can find details of this on page 2 of the N8 form--where the notes to the Form are provided by the Landlord and Tenant Board.
With respect to "persistent" and a definition. In my experience the Board is only interested in the last 12 months. Typically, you need to have late payment at least 4 or 5 times for the Board to take the complaint seriously and if there is a "good" reason for the late payments then it is possible that you will need more. There is no definition in the RTA of what constitutes "persistent" late payment of rent. Below is a paragraph from a decision from the LTB that gives some meaning and guidance as to what the Board believes will constitute "persistent late payment of rent".
"Finally, I note that at the time the N8 was served, the Tenant had paid rent late twice over two months in a tenancy that was more than a decade old. This is not a persistent late payment of rent, it’s two late payments. Had the Ontario legislature wanted subsection 58(1) of the Act to be so restrictive as the Landlord requests that I interpret it, the legislators could have written that a landlord could serve a notice of termination where “a tenant has failed to pay rent on two or more occasions” or something similar. It did not. It used the term “persistently”, which in my view suggests a pattern of continued late payments for a time that is significant to the tenancy in question. In this tenancy, two – even three - months of late payment are not “persistent”. "
You can find decisions explaining the RTA on www.canlii.org. There is also a link on the Landlord and Tenant Board website (see the LAW folder)--which takes you to canlii but directly to the LTB portion of canlii.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I had a TLB board member throw out my N4 because I documented my rent period incorrectly. It was off by one day. I had the option of starting over or processing an order to get the overdue rent in 11 days or the tenant risk having interest applied to this amount. Have you heard of an N4 being dismissed in this manner?
ReplyDeleteHi: I wonder if you understood the adjudicator correctly as I am left guessing about what you described as happening. I'll take a stab at a comment but I may be off depending on the actual comments of the adjudicator.
DeleteThe most likely error that is fatal to an N4 is the calculation of the notice period and then the date from which the N4 Notice can legally be served. If you made a mistake in relation to either of these two issues then the effective dismissal of your "eviction" application makes legal sense. Firstly, the right to serve the N4 only arises when the tenant is actually late with their rent. To determine whether rent is late you need to know the start and end date of the rental period. In the vast majority of tenancies, rent is due on the first of the month (it doesn't have to be, but that it the usual arrangement). When rent is due on the first, the rent is not late until the clock ticks past midnight into the 2nd of the month. If rent is unpaid on the 2nd of the month the landlord then has the right to prepare and serve an N4--not before.
The N4 requires you to insert a termination date. Again, in the vast majority of tenancies, the termination date needs to be 14 days after service of the N4. Presuming you serve the tenant in a way that deems service of the N4 effective on the 2nd of the month (i.e. personal service by handing it to them or under the door or in the mailbox where mail is normally delivered or a few other methods recognized in the Landlord and Tenant Board rules), then the earliest possible legal termination date is the 16th of the month.
Many people make a mistake in calculating the termination date in the N4. This happens because of a misunderstanding of the computation of time rule. In calculating the date you do not count the day of the first activity (i.e. service on the 2nd). As such, to get to the proper termination date, based on service on the 2nd, you start counting the 14 day notice period on the 3rd of the month.
Yes, the manner of calculation is very finicky and you wouldn't be the first person to comment about the hyper-technical nature of this. Appellate Court's have pronounced though, that the law is clear and that strict compliance is required otherwise the Notice is void.
My guess is that you made a mistake in the calculation of the Termination date--that meshes with your comment that you were "off by one day". It also means that your notice was short by one day (i.e. 13 days) and not over by one day (i.e. 15 days). In an N4 you can give more than 14 days but not less and it will still be valid.
The adjudicator gave you an option. I've watched this "option" play out many times and as I sit there (in my experience), I watch about 80% of landlord's pick the wrong option from the choice presented by the adjudicator. Sadly, it seems to me that the wrong option is picked out of embarrassment and/or a failure to understand what is actually being offered.
Here is the practical effect of the option that the adjudicator was offering you.
Because of the finding that the N4 was void (notice late by one day), the adjudicator could dismiss your application for an Order evicting and for the money OR the adjudicator could dismiss your application for an Order evicting but continue with the application for an Order just for the money.
What often is not explained, when you are presented with these two options is that if you go for option 2 (just get an Order for the money), and the tenant does not pay in accordance with the Order you can NEVER evict the tenant for those specific arrears. You can not serve another N4 for those specific arrears. All you can do is try to enforce the Order for the arrears through garnishment etc.. Eviction, however, will not be an option.
DeleteThe loss of the eviction remedy can be quite serious if the tenant(s) are judgment proof. If the tenant's have no assets or are on OW or ODSP there simply are no assets that can be seized to satisfy the rent arrears Order. Certainly, many people with limited assets or being on assistance of some form are honourable and will try to pay, but the reality is that they often simply don't have the money to pay. In these circumstances, you essentially have a pretty piece of paper that says the tenant owes you money that you can never, ever, collect unless the tenant voluntarily does so.
Option two is not a bad choice if the tenant(s) is well employed, has assets, or will soon have assets that can be seized. In fact, some tenants who are trying to get out of a fixed term lease will purposely not pay the rent and hope that an N4 will be served so that they can simply rely on the landlord's termination to get out of their lease obligation. For tenants like this, who have assets, you might not want to serve an N4 and in fact you might only want to get an Order for arrears because enforcement is easy enough.
In summary, what happened to you (if I've guessed correctly), is exceptionally common. Landlord's make this mistake all of the time. This is the kind of mistake, however, that should have been caught at the intake stage or filing stage. It is too bad that it took the time to get to a hearing before the mistake was realized. I presume that the problem was concealed (not apparent) due to the Certificate of Service?
You comment doesn't say whether you took option one (starting over) or option two (get an order for arrears only). I hope you made the right choice and/or that you have a tenant who has assets and therefore is more likely to satisfy the Order for arrears.
Michael K. E. Thiele
www.ottawalawyers.com