Monday, 30 September 2013

What can the landlord really do?

It is not infrequent that I have tenants asking me what the landlord can actually do them.  The question usually arises because a landlord has said one thing or another to a tenant that has frightened them, made them feel uncertain of their rights, and left them feeling concerned that they, the tenant, are about to be evicted.   There is no shortage of misinformation, mistaken information, threats, and ignorant commentary about the power of a landlord.  This article speaks to what a landlord can actually do if they comply with the law.

If I were ever asked what is the most significant or important aspect of landlord and tenant law in Ontario I would say, unequivocally, "security of tenure".   Security of tenure is a legal concept that informs every aspect of the Residential Tenancies Act.  I dare say, every operative section of the RTA is drafted from the perspective of maintaining tenancies and making it a burdensome process to evict someone from their home.  "Security of Tenure" as a feature of our law, mandates that landlords must follow a technical procedure that complies with the Residential Tenancies Act in everything from entering the apartment, to inspecting the unit, to showing the unit, to choosing prospective tenants, to setting the rent, to raising the rent, to terminating the tenancy (voluntarily or involuntarily) and in evicting the tenants.  The law even provides for the "rules" in the event a tenant passes away.

The point of the foregoing is to emphasize that the landlord has very little leeway with respect to the important features of a tenancy (i.e. rent, entry, repair, maintenance, eviction).  The ability for a landlord to be arbitrary with respect to important things is severely constrained by the provisions of the Residential Tenancies Act.  This is important to know as tenants often find themselves facing heavy demands from their landlords.  On the flip side, many landlords think that they should be able to enter into a reasonable bargain with their tenants that the law should reccognise and enforce.  The reality is that many of the private "agreements" that landlords make with tenants are in fact illegal.   Because they are illegal, they are unenforceable and the Residential Tenancies Act provides that any clauses in a lease, or any agreement (oral or implied) that are contrary to the Residential Tenancies Act are void.

Some examples might be useful:  A landlord may not require a tenant to do the repairs or maintenance on a property as a condition of the lease.  This means that you can not require your tenant to shovel the walkway as a condition of the lease.  Further, the law doesn't allow a tenant and a landlord to agree to rent a property for a set period of time----even if a one year lease is signed it will continue on a month to month whether or not the landlord likes it unless the landlord can identify a ground of termination in the Residential Tenancies Act.  Further, a landlord and a tenant may not agree to terminate a lease at the same time as a lease is entered in to.   There are almost countless limitations on the nature of the agreements that tenants and landlords can make.  The lesson for tenants is that you should always get legal advice to see if the clause you don't like is legal.  The lesson for the landlord is that you should be careful about clauses that are important to you and get legal advice to ensure that what "seems" reasonable is in fact legal.

So, what can the landlord do?  In relation to terminating a tenancy and evicting a tenant, it must be remembered that the only person who can enforce and eviction is the Court Enforcement Officer.  The police can't evict anyone under the Residential Tenancies Act nor can the landlord.  The person who attends, to change the locks and physically remove a person is the Court Enforcement Officer (also often called the Sheriff).

The Sheriff, can only enforce an eviction Order from the Ontario Landlord and Tenant Board.  Hence, the Sheriff, will not take a direction from a landlord to evict based on any piece of paper or notice of termination that the landlord drafts up.  The only valid direction to evict comes from a properly issued Order of the Landlord and Tenant Board.

The Landlord and Tenant Board does not make Orders in secret.  If the Landlord wants to get an eviction Order, the Landlord must apply to the Board and the tenant must be given notice of the proceeding.  The tenant will always have the right to dispute the application and to lead evidence to refute what the landlord is saying.  If the tenant did not get notice, or did not have a reasonable opportunity to participate in the hearing, an Order can be reviewed and set aside.

It is important to realize that a landlord may only terminate a tenancy if there are grounds in the Residential Tenancies Act for that termination.  To this end, there are many "urban myths" out there about what is in the Law.  People have heard so many things, for so many years, that many people presume the law to be a certain way when in fact the law is completely different.  Two common examples:  1) a landlord is NOT NOT NOT allowed to terminate a tenancy on 60 days notice just because they want their rental unit back.  The only person who can give a 60 day notice, after the expiry of any fixed term, is a tenant.  A landlord can only terminate a tenancy for reasons set out in the law and the law DOES NOT provide that the end of a lease is a reason to terminate a tenancy nor does it provide that a landlord can ask for their property back because they "want it" back.  2) Another enduring urban myth is that a tenant can not be evicted in winter.  There is absolutely no basis to this myth---and in fact the Landlord and Tenant Board evicts people in winter all of the time.

So, the answer to what can the landlord really do, is that the landlord must follow the strict requirements of the Residential Tenancies Act.  That procedure will afford the tenant an opportunity to present their side of the story to a Judge/Adjudicator.   From experience I can tell you that there isn't a single case where a landlord can say that they have the absolute right to terminate a tenancy and regain possession of a rental unit.  I have seen numerous examples of each of the different kinds of Landlord applications being refused---sometimes because the application isn't proven and sometimes because the Adjudicator decides to exercise his or her discretion to maintain the tenancy.

The laws respecting Landlord and Tenant relations are fairly complex.  It is a mistake to assume that the landlord knows the law or that the answer to the issue is "everyone knows that".  The only way to truly know what a landlord can really do is to get legal advice from someone who practices residential landlord and tenant law.

Michael K. E. Thiele
Ottawa, Ontario
www.ottawalawyers.com
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64 comments:

  1. Anonymous23 June 2014 at 10:39

    I have a few questions. By the way, an amazing blog.

    I have a tenant that is $100 short on April's rent, still owes for May & June, and now it is almost July. I gave him a n12 for because I want to use the basement for myself. I gave it to him a week ago. His last day will be aug 31st, 2013 as listed on there.

    So my main questions are:

    -what can I do to ensure I get this rent before he leaves?
    -if he leaves earlier or on Aug 31st owing rent, what are the steps I can take, what is the burden of proof? I want to act as soon as he leaves
    -if I want to ensure I file this on his credit report what do I need to show from my end?

    Thanks so much.

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    1. Michael K. E. Thiele23 June 2014 at 15:11

      Hi:

      Presuming that your N12 is valid, you may choose to now file an application to the Landlord and Tenant Board in form L2 to get the eviction Order based on LL's own use. You may wish to apply soon as your statement that you wish to use the basement may call into question whether your N12 is valid. The N12 is to be served when the LL in good faith requires possession of the rental unit for the purpose of residential occupation. "Residential Occupation" is the key. If you simply wish to use the basement you may not fit within the permitted N12 grounds (review section 48 of the Residential Tenancies Act).

      On the issue of rent. If you were certain that your N12 and L2 application were sound--then it would be worthwhile to also file an application against your tenant for non-payment of rent. You could do this without serving a Notice of Termination for non-payment of rent (N4) and instead proceed by way of L9. You may combine the L2 application with the L9 application and pay only one filing fee.

      If you file the L9 now, you will get a judgment for the rent arrears and this is what you can use to execute against the tenant's assets.

      However, if you are not certain that your N12 (L2 application) will work, then you will want to be able to evict the tenant for non-payment of rent as well as get a judgment for the unpaid rent. To get EVICTION and JUDGMENT for non-payment of rent you will need to serve a Form N4, wait the 14 days, and then file an L1 application. You could then combine the L1 (non payment of rent) and the L2 (Landlord's own use) into one application and pay only one filing fee of $170.

      It is in your interest to have a pending/filed application for non-payment of rent, with the Landlord and Tenant Board, before your tenant vacates. If the tenant vacates before you commence such an application then the Board will have no jurisdiction to grant you a judgment for the rent arrears. If you haven't filed before the tenant vacates then you will need to sue the tenant in the small claims court. You will certainly get a judgment there as well but the process, by comparison, takes a lot longer.

      Best of luck.

      Michael K. E. Thiele

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    2. Anonymous24 June 2014 at 13:38

      Thanks for your reply. Sorry just trying to get my head around things. So yes the basement will no longer be rented and will be for our personal use. We have grandkids and they need a place to run and play and we would like the space for our own belongings and so on. So I hope that make my N12 valid. Now we did serve the N12 while he was behind on rent. Does that put into question the validity of our N12?

      My concern is I start filing some of these non-payment of rent forms and now it may question the N12 saying I need it for residential occupation. My worry is I file non payment forms, he pays and stays then. I need the basement back for ourselves at the same time I obviously want to be able to collect all my rent owed.

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    3. Michael K. E. Thiele24 June 2014 at 14:10

      Hi: That explanation is better and leaves me with the impression that you live upstairs and will now expand your living space to include the basement. If that is it, then your N12 should indeed work. You should file the L2 application, based on the N12 as soon as you are able to do so. If you do want a judgment for the rent arrears you have the options I described. The risk of proceeding without an N4 is that you end up with a Judgment but no eviction--which is a problem if your N12 does not work. Remember too that if you proceed on the N12, and win, you could always sue the tenant in the small claims court for your rent arrears.

      Michael K. E. Thiele

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  2. Anonymous24 June 2014 at 14:17

    Wow amazing blog honestly! So my concern is i file a N4, he for whatever reason pays in full. Can he then stay? My worry is I file all these documents, and by paying up - which i highly doubt, it then over rides the other N12 and so on and he can stay. Will it question the legitimacy of my N12 and L2?

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    1. Michael K. E. Thiele24 June 2014 at 15:54

      Hi: An N4 that is voided by payment does not void an N12. In fact, Landlords often enough file combined applications using different Notices of Termination (some voidable, some not). There is nothing wrong with doing so. Can a voided N4 challenge the legitimacy of an N12? It would be wrong to say "never" but generally the two are not connected. At some point though it depends on what the evidence is. If the tenant plays a voice recording wherein the landlord is recorded as saying---"I'm so angry by the late payment of rent I'm going to evict the tenant for any reason I can think of" then of course the legitimacy of the N12 is called into question. Absent evidence that calls the "good faith" serve of the N12 into question, or evidence that demonstrates that the landlord does not have an intention to occupy the unit for residential purposes, there is no reason to not proceed with an N4 and the N12. If you believe that there is evidence of such evidence, or evidence of arguments that might allow for such a conclusion to be reached, then perhaps you apply immediately on the N12 (file the L2), and serve the N4 now. Don't combine the applications but proceed separately on them. It will cost you $170 twice--one for the L2 and one for the L1. The risk of proceeding separately is that the tenant vacates the unit prior to you being able to file the application based on the N4 (L1). If this happens you would have to proceed to the small claims court if there continue to be rent arrears. At that stage, and presuming the N12/L2 application is successful (because the tenant has vacated) you may wish to see if there is damage to the rental unit which you could also include in your small claims court action.

      Michael K. E. Thiele

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  3. Anonymous24 June 2014 at 16:31

    Michael I want to send a donation you are awesome!

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  4. Anonymous26 June 2014 at 08:52

    My last question I think...lol
    So the N12 has been given. I am positive my N12 is fine and there should be no issues. I want to collect past rent, have motion to evict and collect on file and go at assets if needed.

    So I am going to file a N4, and L2 together. Then if tenant does not pay up fully in 14 days file an L1. Is that correct?

    I am missing anything? I did not mention the L9. Should I be fine as is. Thanks a million!

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    1. Michael K. E. Thiele26 June 2014 at 21:22

      It sounds like you've got it. The "N" in "N4" or "N12" means "notice". The "L" in "L1 or L2" means "Landlord". To terminate a tenancy you must always start with an "N" form. Without a valid "N" form the Board lacks the power to terminate a tenancy. The "L" forms are used to start an application to the Board--but it is the N form that is the basis of termination of the tenancy. So, for an N12 (Landlord's own use) you use an L2 Form. That will cost you $170 to file. It can be a stand alone application.

      Because you have rent arrears, you may choose to seek to terminate the tenancy for rent arrears plus an order for those arrears--in which case you need an N4 Form. By its terms, the N4 form requires you to wait 14 days before filing because the tenant is allowed to void the N4 form by paying the rent arrears. Failing a voiding of the N4 within the 14 days, you may then file an L1 Form. This will cost you $170.00.

      If you have served the N4 Form, and 14 days have gone by, and the rent has not been paid, then you may file the L2 (based on the N12) and the L1 (based on the N4) at the same time as a combined application. This will cost you $170 for the combined application (i.e. not $170 twice for two stand alone applications). The drawback at present is that you have not yet served the N4 and would have to wait two weeks if you wanted to file a combined application. The advantage of the combined application is that you can get the tenant for Landlord's own use and for rent arrears in one shot. You end up with eviction for both grounds and a judgment for the arrears when the tenant does not pay.

      If you are confident that your N12 (L2) will succeed, then you might consider skipping the N4 form. Instead, proceed with the N12 (L2) and an L9 right away. You file this as a combined application and pay only one fee of $170. Presuming you succeed in getting eviction based on the N12, the L9 will get you a judgment for the rent arrears (but only a judgment and NOT eviction for rent arrears because there is no N form underpinning the L9. The Order you get, based on the L9, allows you to enforce through garnishment etc.. The risk of going only with an L9 is that if your L2 (N12) fails, you will only have an Order for rent arrears for which you will never be able to get eviction.

      Another alternative, is to file the L2 (N12) now. Then serve the N4, wait the 14 days and then serve an L1. There will be two application fees of $170. The risk is that the tenant sees you are serious based on the L2 and then moves out quickly or before the 14 days in the N4 expires. If that happens you will not be able to get an Order for the rent arrears at the Landlord and Tenant Board. If the tenant moves out of the rental unit before you file an "L" form for rent arrears then the Board has no jurisdiction over the tenant. If the tenant moves out after the L form is issued there is no problem because the application (L form) was issued while the tenant was in possession.

      So, those are your choices. You do seem to have a handle on it so I'm pleased. I teach this stuff in a paralegal program and it takes a while to catch the logic of the system. These forms are actually easy compared to N5 forms--fortunately you don't need those!

      Best of luck

      Michael K. E. Thiele

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  5. Anonymous15 July 2014 at 14:14

    thanks for all your help, filed all the papers n12 n4, l1 and l2, affadavit, and everything. The 14 days to pay came and went. A hearing date is set for early August. My question is, is it wise to go to the tenant and try to negotiate something with him. Tell him if he leaves before end of this month, i'll reduce money owing by x? Or could I be jeopardizing something by doing that if it goes to the hearing?

    Thanks

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    1. Michael K. E. Thiele16 July 2014 at 05:24

      Hi: It is perfectly fine to go to the tenant to try to work a deal. The question is whether your tenant is sophisticated enough to understand what you are trying to do. Some tenants (and landlords from time to time), interpret attempts at settlement as some kind of acknowledgement that the case against them is flawed and that they are in a greater position of strength than they actually are. Further, it can be difficult to convert an agreement into an enforceable deal in advance of the hearing. If your settle and can draft Minutes of Settlement that are worded correctly then you should be able to enforce those Minutes but that drafting process can be difficult for non-lawyers as there is legal language that needs to be in the Minutes to make them binding. All that being said, if you can make a deal that the tenant agrees to, and remains agreed to up to the hearing, then you can simply attend and tell the adjudicator what the deal is and it will be incorporated into an Order. The next option is to wait to negotiate until the hearing date. Hopefully your hearing location will have staff mediators who can assist in drawing up a settlement (the terms of the settlement with a mediator may be broader than what can be done in front of the adjudicator).

      In short, there is no prejudice to you in trying to resolve the dispute. Settlement negotiations are always considered to be "without prejudice" meaning you can object to any offers being used in evidence at hearing.

      Michael K. E. Thiele

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  6. Anonymous15 July 2014 at 21:22

    You can ignore my last post. Spoke briefly to tenant about taking lesser money if he moved out in 2 weeks. He instead says he will come to hearing. He says he had to clear the path and driveway at times of snow. Is that justifiable at a hearing for a reason to be owing almost $3000 in rent? I could list a million things we agreed to, to be flexible. Taking small payments, taking payments late, allowing for driveway parking when it wasn't in agreement and so on. I didn't start charging more rent all of a sudden. So would having to clear the path side of the house of snow or driveway a few times be a reason that the hearing would side with him? It seems insane?!?!

    Secondly, is it worth mediating at these hearings. I feel like we are fully within our rights to ask for all of it. If we go mediating could that just prolong the process, if he then fails to pay again. The n4 was filed due back rent owing. But the n12 is filed as well. I want to be done with this and have use of my basement again. Thoughts? Much appreciated.

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    1. Michael K. E. Thiele16 July 2014 at 05:42

      Hi: Clearing a "path" and "shovelling" a driveway a few times will likely get the tenant zero. It certainly doesn't add up to anywhere near $3000. In the hearing you should be ready to deal with allegations of lack of maintenance--specifically with respect to clearing a path and shovelling snow. Specifically, are there emails, work order requests or any kind of complaint from the tenant about lack of snow clearing? The tenant's lack of complaint is in your favour. Be ready to demonstrate the kind of relationship you had with the tenant. The "flexibility" you describe is indeed a useful thing to show---not as a set off for failing to do other maintenance--but to demonstrate that the tenant's current complaint is a fiction and is something that he is just making up to try to get out of paying rent. While a tenant has a right to bring up as a defence any issues that could otherwise be brought up by tenant application, you have the right to know what the issues are in advance of the hearing. To that end, you may wish to write to the tenant now, copy the Board, confirm that he has told you that he will be raising "path clearing and shovelling" as an issue, ask for copies of all evidence he intends to file at the hearing, and ask to be provided with notice of all other issues that he intends to raise at the hearing and copies of all of his evidence in advance of the hearing. State further that if he fails to disclose this evidence or the issues in advance of the hearing that you will object to him raising these points in defence of your applications. You will have mixed success with this but it can be useful in resisting an ambush and in resisting an adjournment of the application for disclosure of the tenant's allegations and evidence. If an adjournment is on the horizon the key to whether one is granted or not is prejudice. Hence, with respect to rent--an adjournment prejudices you if another month of rent will become due before the next hearing date--you address that prejudice by making payment to you a condition of the adjournment (to eliminate the prejudice). If the N12 date will come and go if the case adjourns you might argue that the prejudice of an adjournment exceeds the reason for an adjournment and hence there should be no adjournment. The adjudicator would decide.

      Mediation, in my opinion, is very useful. Mediation can indeed lead to a termination of a tenancy or something less. Mediated agreements are enforceable like Orders if there is a breach. Mediation can lead to situations being drawn out but it all depends on what you agree upon. If you ever wondered how good your negotiating skills are you will find out in mediation.

      Best

      Michael K. E. Thiele

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  7. Anonymous16 July 2014 at 08:59

    Thanks. If he shows up and makes claims but has no proof, there is a chance they could adjourn it sounds like, and that would definitely go past the N12 date. I don't believe he has any proof, and I feel like by asking for proof, he will actually try to look for it or make it up. I am positive he has no valid claims to defend his lack of payment. Does mediation happen before the hearing? In my research I found a post about him on an online site from an ex-girlfriend claiming him to be a liar, and below it a co-worker making reference to him being a druggie. There is a picture of him there that only a gf would have. I dont want this to be dirty. Would it make sense for me to take this info with me to show character. Or would this be frowned upon?

    Should I be filing an L9 at any point. I am worried that he can skip out still and pay nothing and I have no recourse.

    Thanks

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    1. Michael K. E. Thiele16 July 2014 at 11:34

      Hi: The presumptive course manner of proceeding is that on the hearing date the case will proceed on the issues raised in the Notices of Termination and in your applications. Normally, the tenant defends an N4 (Non-Payment of Rent) on the basis that the rent has already been paid and is not owing or that they need a payment plan and time to pay or they want an extended termination date so that they can get out in an orderly manner. If your L1 application (based on N4) proceeds in this way then no problem and you are ready to argue that case. However, the RTA permits a tenant to raise any issue that could be the subject of an application made by the tenant under the RTA (see s. 82 RTA). The raising of "any issue" can be a bit of a trap for a landlord--and procedural fairness may be denied--if the tenant starts to raising all sorts of things without any notice to you. The tenant's claims may very well be bogus but you will not have any evidence to disprove the allegation because you had no notice of it. So, the point of the demand for details and evidence was to counter the potential surprise and limit the need for you to request an adjournment for your own benefit (i.e. prepare to answer the tenant's allegations). Of course, it is entirely possible that the tenant will show up, unprepared, without any decent evidence, and not in a position to prove anything at all. If you show up with the tenant file, copies of work orders, tenant ledger, and are generally in a position to answer broad allegations you may indeed be able to deal with the tenant's allegations on the fly--and hence not need an adjournment. You are correct in thinking about the impact of demanding evidence and disclosure of issues as that may make the tenant do the work that he otherwise might not do. In short, it's a judgment call.

      Mediation does happen before the hearing if both parties agree to attend mediation. If either party does not wish to mediate it will not happen. If mediation is unsuccessful you would proceed to hearing.

      I don't see any value in the online ex-girlfriend allegations nor in the co-worker statements. I'd be surprised if an adjudicator let you enter that into evidence and I'd be equally surprised if you were not admonished for trying to enter it into evidence.

      I don't see why you would need an L9 application. You already have the N4/L1 which gives you a judgment for the money plus eviction (if you win). An L9 would give you only a Judgment and not eviction--but it is a duplication of the money portion of the L1 application and hence unnecessary. There is no reason that I can think of to have both an L1 and an L9 on the go at the same time.

      With respect to him skipping out--that is a real risk. You will have an order for whatever money the Board says is owed. But just because you have an order does not mean that he will pay it or that he won't wipe it out in a bankruptcy. Chasing the tenant is something that you may wish to consider handing over to a collection agency (once you have the Order).

      Michael K. E. Thiele

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  8. Anonymous24 July 2014 at 10:50

    I understand it is bit of a he said she said. What if tenant goes in and bold face lies and says he paid and we are lying. Everytime I talked to him in person I had my cell phone in my pocket recording the conversation. Can I present that as evidence if he refutes any of the claims?

    Thanks

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    1. Michael K. E. Thiele25 July 2014 at 14:35

      Hi: The burden of proof with respect to establishing payment of rent is on the tenant. So, if a landlord brings an application for non-payment of rent and states that the rent was not paid, it is up to the tenant to prove that the rent was indeed paid. Proving that it is paid is more than simply saying it was. The tenant will need to produce a cancelled cheque (best evidence), receipts, acknowledgements, email money transfers, or other evidence that convinces the adjudicator that rent was indeed paid. If the tenant can't prove that rent was paid, then the tenant will be ordered to pay it---even if that means paying it again! If you have recordings the Board will admit them into evidence.

      Michael K.E. Thiele

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  9. Anonymous31 July 2014 at 09:34

    Is an N11 form any use at this point to have the tenant sign it?

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  10. Anonymous15 August 2014 at 13:22

    Just wanted to say thanks very much. Your blog was very very helpful. I really appreciate it. We went to the hearing, he wanted to go through mediation. The mediator said likely what was going to happen in the hearing she could assist us with. We basically want him out. He was given Aug 31st as his last day. If he doesn't go we were given a notice to go to the sheriff and have the locks changed and have him out. Thanks for your help. A last question. Do we need to give any formal window to move, or any notice to him about moving out and days to move and so on? Thanks!

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    1. Michael K. E. Thiele15 August 2014 at 17:11

      Hi: As you went through mediation which led to an agreement to terminate the tenancy I presume that you briefly appeared before the adjudicator to obtain an Order terminating the tenancy which further stipulates that you may file the Order with the Sheriff if the tenant does not vacate as of the date set out in the Order. If this is what you have, there is no need to give an further notice or warning to the tenant. If the tenant continues to occupy the premises after the date set out in the Order then you may proceed directly to the Court Enforcement office (Sheriff's Office) and start the enforcement process. The Sheriff has a form for you to fill out and there will be charge of around $300. In Ottawa at least the Sheriff will also want a Google map to and from the unit (used to calculate a mileage charge). The Sheriff will then give the tenant a Notice to Vacate and return on the date on the Notice to Vacate to enforce the eviction.

      Hope that helps

      Michael K. E. Thiele

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  11. Anonymous20 August 2014 at 09:35

    Hi Mr. Thiele, and thank you for this excellent blog!

    If you have signed a fixed-term lease to start on date-X, you've received a first and last month's deposit, and you've later mutually agreed upon a move-in date a few days BEFORE X - when exactly does the legal tenancy begin and the tenant/landlord acquire the rights and responsibilities as outlined in the residential tenancies act (rather than being subject to contract law in the pre-tenancy agreement period)? Would it be on the date when keys are given and the space was to be moved into, or would it be no sooner than date-X?

    Thank you!

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    1. Michael K. E. Thiele20 August 2014 at 12:20

      Hi: Thank you for this question. It is difficult to provide a definitive answer as it is not clear why you are asking this question. The answer may be different depending on the context of the question. For example, how the question is answered is different if you are trying to ascertain the term of the tenancy--i.e. when is the first day of the lease, than if you are just trying to determine if the tenant is liable for damage caused or if the landlord is responsible to provide services in the pre-term days of occupancy.

      Nevertheless, I can offer you this answer, and direct you to take a look at section 13 of the Residential Tenancies Act. This section--entitled, Commencement of Tenancy, provides: "The term or period of a tenancy begins on the day the tenant is entitled to occupy the rental unit under the tenancy agreement", [and further] A tenancy agreement takes effect when the tenant is entitled to occupy the rental unit, whether or not the tenant actually occupies it."

      From the wording of this section you may be tempted to conclude that there is no tenancy agreement prior to the commencement date. This is not, however, how the section is interpreted, as the Divisional Court has held (Opara v. Cook] that a tenancy agreement comes into effect upon the agreement being reached between the parties and the deposit being paid. Section 13, in the case of Opara v. Cook was held determine when the term of a tenancy began--not whether there was a tenancy agreement or not. Extrapolating from that, I think it is a fair argument to assert that the responsibilities of landlord and tenant, with necessary modification, arise before the beginning of the term of the tenancy--that is, as soon as there is an agreement and deposit paid.

      Hence, it is my opinion that the responsibility for the premises arises as soon as the tenant is put in possession of the rental unit--i.e. keys given.

      Hope that helps. If you have a specific fact scenario or event that has happened that makes the answer to your question particularly important you should consider getting legal advice from counsel after describing the full circumstances of your situation.

      Michael K. E. Thiele

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  12. Anonymous8 September 2014 at 19:26

    Thank you very much for your blog! It has helped me a great deal in my time of being a landlord. I have come into a troubling situation that I am not quite sure how to handle.

    I purchased a property that came with a tenant who had a lease with the previous owner, but was on month to month as the term was up but they have stayed in the unit. I have a copy of the original lease (which if I'm correct is still valid and transferred to myself when I purchased the home.)

    This tenant is now looking to move out, and they are refusing to give me 60 days because (these is her words exactly:) "I talked to a lawyer and when the house sold I don't have a lease anymore so since I don't have a lease I don't have to give notice". She refused to pay September's rent because she had planned on moving out at the end of September and since we have her last months rent, in her mind she would have paid for September already. She told me today (September 8th) that she did not get the place she was planning to move into and she will be paying for September this Thursday (September 11th). She still is refusing to give 60 days notice even after I gave her a copy of her original lease (that she signed) and I gave her references to the Landlord and Tenant act that specifically says she must give 60 days notice, she is still refusing to do so.

    What can I do about this? At this point I am willing to just get her out as soon as possible and I will deal with renting it later.

    Also, I do not have a copy of her license or any real personal information other than her name. I believe that I may need to bring her to small claims court for damages and not paying rent. How would I go about this when I do not have her personal information? Is there any legal way I can get it from her?

    Thank you very much for your time.

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  13. Anonymous4 November 2014 at 10:56

    Hi there, just wanted to say your site is amazing and so helpful. I had a question. So i went through with the process, went to a hearing the tenant moved out. However as of Aug 30th the tenant owed $2570, which there is interest on now. I do not know where he moved to, or where he works as he jumps around a lot. What suggestions do you have as to getting that money back, credit file so on?

    Thanks

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    1. Michael K. E. Thiele4 November 2014 at 16:43

      Hi: So I presume from your comment/question that you had success in getting not only the eviction order but also an order of the payment of money from the Landlord and Tenant Board. The first thing to do is to convert that order into an enforceable judgment. You will see that other than directing the sheriff to enforce the eviction part of the Board's Order, the Landlord and Tenant Board doesn't provide you with any enforcement tools that allow you to collect money judgments. So, you have two choices for converting the Order to a Judgment--thought the usual choice for a judgment of this size is to turn it into an order of the Small Claims Court. To do this, you will need to go to the local Courthouse where there is a small claims court counter. Bring with you two certified copies of the Landlord and Tenant Board Order---you know it is a certified copy if it has the red stamp on the front of it (this is the one that was mailed to you). For a relatively small fee, the small claims court counter staff will give you the paper work to convert the Board Order to an Order of the Small Claims Court. It is a paper shuffle and not a big deal. Once the Order has been converted to a Judgment of the Small Claims Court you can use the enforcement tools of the Small Claims Court--such as garnishment, debtors examination, writ of seizure and sale, and writ of seizure and sale against land. The Small Claims Court should have a booklet for you. Unfortunately, these enforcement tools presume that you know where the debtor lives, banks, or who might owe him money. If you don't have any such information it will come down to detective work and trying to find him. Hopefully you will have identify details in the original rental application that will help you track him down.

      If this all comes to naught, then maybe you will want to consider turning the Judgment over to a collection agency. Whether that is worth it or not is up to you. I understand that most charge a percentage of the debt collected.

      I will leave it at that except for one last comment and that is to remind you that you can't get blood out of a stone. If your former tenant is impecunious then no amount of chasing will be worthwhile and even the money spent to convert the Board order to a small claims court judgment will be throwing good money after bad.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  14. Anonymous10 December 2014 at 13:05

    Thank-you for your last comment. Is there a collection agency you suggest in Ontario that I could use? What are their fees typically?
    If I know where they bank, but that is all do you suggest to go ahead with Small claims court instead? What are your thoughts?
    Thanks

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    1. Michael K. E. Thiele10 December 2014 at 13:25

      Hi: I'm not in a position to recommend any particular collection agency. My understanding of the "fees" is that they vary depending on the amount of work you bring, the nature of the debt (whether just a claim or an Order/Judgment), and the chance of recovery. If you have an Order from the Landlord and Tenant Board for a sum of money it is fairly easy to convert the Order to a small claims court judgment. If you are confident that the debtor will have money in their bank account and you know where it is, why not do a garnishment of the bank account yourself and see what you get. The process is not too difficult, but beware you are spending money to issue the garnishment and if the bank account is empty or the funds in it are not subject to seizure you will be out the filing fee.

      Michael Thiele
      www.ottawalawyers.com

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  15. Anonymous5 March 2015 at 21:09

    This is an interesting article (post) on the concept of "security of tenancy." At the present time we are renting a house. The lease that was signed clearly states that the lease will in all cases be governed by the provisions of the Residential Tenancy Act ("RTA") (not that it's necessary). The lease was signed for a fixed term and that term will end at the end of April. The landlord has used coercive tactics in trying to secure an additional fixed term lease. Having sought both legal advice and comments from the Landlord and Tenant Board, it is clear to me that the landlord is totally oblivious to the provisions of the Act. In fact, the landlord refuses to educate himself/herself to ensure that what is being done is within the law. This is unfortunate as it creates a stressful situation for us, the tenants. Throughout the term of lease payments have been prompt, the property well maintained, etc. The landlord has given us Notice of Termination of Tenancy which was a word document. The landlord did not used the forms prescribed by the Landlord and Tenant Board. So my understanding is that legally even if the reason for the notice fell within the rules (and it does not) the notice provided is ineffective for failure to provide notice on the Board approved form. My reason for bringing this up is simple. There are all sorts of rules and penalties for not following the rules. In this case, the landlord has chosen to turn a blind eye to the rules. Should I file an application about tenants' rights? The problem is quantifying damages-stress etc.

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    1. Michael K. E. Thiele6 March 2015 at 11:57

      Hi:

      You seem very well versed in the RTA and know how to find answers to questions that you have. That is fortunate in your situation as your landlord sounds like the type of landlord that takes advantage of tenants who do not know the law. With respect to your question of whether you should file an application to the Board because the landlord uses the wrong forms and fails to education himself about the RTA I would say "maybe". I would not recommend filing an application just because the landlord is ignorant and just to prove the point that you know the law and the landlord doesn't. As you say, "damages" are difficult to quantify and "stress" is hard to buy when you know that the landlord's forms and demands amount to nothing. However, I would consider filing an application if the landlord's silly demands and ignorance of the RTA puts you at risk of the landlord taking unilateral steps to enforce his rights as he perceives them. For example, if the landlord communicates to you that he intends to change your locks and exclude you from the house on X date because you failed to sign a lease renewal form then I would indeed urge you to file an application. The threat to exclude you from the property--even though it is illegal--is not something that you should just ignore. In these circumstances the landlord probably needs an Order of the Board to open his eyes as to his obligations.

      Good luck

      Michael K. E. Thiele

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  16. Anonymous7 March 2015 at 09:26

    Many thanks for taking the time to respond. The only option that we have is to wait and see what happens. I have already sought the advice of counsel as I don't believe that in the end it's worthwhile to "play lawyer". When the fixed term lease expires I will need to send monthly rent cheques to the landlord. I will then advise the landlord that any further questions regarding our tenancy should be addressed to my lawyer. I would ask your readers that subject to their own budgets and comfort/ability to deal with difficult or unreasonable landlords that they seriously consider "handing over the file" to lawyers such as yourself. This should at least get the landlord to understand that you are taking the matter seriously and so should they.

    Thanks again and thank you for your blog. Like most things in life, there are two sides to each story and you have demonstrated an ability to look at both.

    ReplyDelete
  17. Anonymous4 April 2015 at 11:48

    Hi - I own a townhouse that is divided into two units with one utility metre. One set of tenants rent the upper unit (1800 sq. ft.) while another tenant rents the basement unit (600 sq. ft.). There is only one metre for the entire townhouse. Based on the terms of the upper tenants' lease, they are responsible for all utility costs and they were given a rebate in rent because of this. Unbeknownst to me and without my permission, the lower tenant installed a washing machine, which increase the overall utility costs by about 30 per cent. As soon as I found out, I asked the basement tenant to remove the machine and asked him to cover some of the utility costs. He refused and agreed to leave instead. Now my upper tenant has deducted the cost of the overage in utility bills from their April rent along with a plumbing repair bill. I don't feel this is right. First of all, they arranged the plumber and paid him as he demanded payment on the spot. I said I would reimburse them as soon as they gave me the invoice. So far, they have just sent me a photo of the invoice. As for the utility overages, I don't feel this is far either as the upper tenant only brought these increase in costs to my attention after the basement tenant had been in place for eight months. As soon as I found out, I took immediate action to remedy the situation. The upper tenant has also given me 60 days notice they are leaving after first trying to give me just 30 days which I would not accept. I plan to file a L9 with the Board. Is this the best recourse? Also on the lease I signed with the upper tenant, I have provided my maiden name (legal name though I have since remarried) and I have provided my work address (where the tenant has met me several times to drop off cheques etc) instead of my home address. Is this valid or will it void the lease and hence the rent payable? Any advice/guidance will be much appreciated!

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    1. Michael K. E. Thiele6 April 2015 at 10:39

      Hi:

      Your description of how the utilities are charged is a bit unclear. Do the upstairs tenants pay the utilities directly (i.e. is the hydro account in their name?). Take a look at section 138 RTA and see if you comply with that section and the regulations that follow (look on www.canlii.org for the regulations).

      Filing the L9, while the tenants are still in possession is a great way to get the issue of rent that is owing adjudicated. If you wait until after the tenants are gone then you will have the longer Small Claims Court route to go. Whether you will have success or not is not something I would guess at based on the facts that you have provided. On the issue of the plumbing repair it seems that you have already agreed to pay for the repair if you get the invoice. While a photo of the invoice may not be "handy" you could still print it out and use it along with the email or text message that came with it. You don't say whether you doubt the veracity of the invoice--I presume you could confirm that with the plumber.

      With respect to the hydro increase due to the washing machine I can't imagine that this amounts to very much money. I've quickly googled cost of running a washing machine and unless the tenant was running a commercial laundry out of the unit it is hard to imagine that this impacts the hydro bill significantly.

      As for your maiden name and address for service--neither of these things has any significant legal impact. You should use your legal name on any documents that you file. You may continue to use your work address--many landlords don't want their tenants knowing where they live.

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

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  18. Anonymous19 July 2015 at 16:48

    Hello Micheal,

    PLEASE HELP WITH SOME ADVICE FOR MY PARENTS!
    They have a tenant who signed a lease for the basement apartment as of July 1st. They asked to move in June 20th as they advised their previous location flooded, and all parties agreed on a set amount. An agreement was made to pay a portion of June, in addition to first & last. He provided bounced cheques, and when asked to pay in cash he did not provided his deposit nor his rent.

    On July 2 we served him with a N4 however the incorrect date was used (we are aware it suppose to be 14 days after). My question is, can we serve him with another N4 form as to date no funds have been paid and the tenants have been here for almost a month.

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    1. Michael K. E. Thiele19 July 2015 at 20:02

      Hi: If the first N4 is invalid due to an incorrect termination date being used you may indeed serve another N4. The first N4 is considered void so it is like you never served an N4. Sounds like your parents may have a professional scammer living in their basement. Consider hiring a lawyer or paralegal who is experienced in Landlord and Tenant law to help you. I highlight the importance of getting an EXPERIENCED lawyer or paralegal. If the tenant is indeed a "professional" there will be lots of tricks to try and stay for as long as possible for free. The first defence will be allegations of lack of repairs, maintenance, illegal entry, etc. etc., the tenant will try to stall the hearing with demands to get a counsel, then perhaps time to file an application for their own issues and then when that all shakes out and fails they will file an appeal to stay the whole process. I really hope for your parent's sake that they don't have one of these kinds of tenants but it doesn't look good when the very first cheques bounce. A lawyer or paralegal will be expensive but compared to what is coming--if the tenant is a scammer--it will be well worth it.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  19. Unknown9 November 2015 at 17:50

    Hi Michael,
    Thank-you so much for your informative blog.
    I am renting out my basement while I live on the main floor. I have a one-year lease with the tenant but I'm sure she would like to stay on longer. I've made some exceptions for my tenant with parking and extra laundry, free internet etc as I wanted to have a cordial relationship rather than an "us and them" attitude.
    Unfortunately she has shown some inconsideration and some take-take attitude already at only a month in. Okay, I have to put up with that. However I stated in the lease that the premises/property is No-smoking and grounds for termination. I verbally explained this as I have bad allergies which have required a medical procedure in the past. She asked me after the fact if her friends could smoke e-cigarettes and I looked into it and said I'm sorry, no.
    After a few weekends of feeling sick and symptoms of smoke exposure I caught her bf vaping an e-cigarette as he walked into the basement! When I mentioned it to my tenant a couple of days later, she said, "oh, you could smell it?" and looking embarassed. I was stupidly polite and reminded her that it is No Smoking including e-cigs anywhere on the property but sorry, that's the lease, I have allergies and that was explained to you. She apologized and seemed on board.
    2 days later her other boyfriend shows up and is using my common patio several times to smoke weed!! The weed smell still came into the basement and wafted upstairs!
    I have my elderly parents and other guests over and I nor them need to be exposed to someone else's habit. This tenant does not get it, and is being lax about the lease clauses. I have thought long and hard - I am better off evicting her now than trying to police her guests and if I only caution her now, the tribunal may use that to her advantage. So I think evicting her for illegal activity is my best recourse, as well as interfere with enjoyment of property through smoking/vaping. Can you tell me -should I just talk and serve her an eviction notice or should i start the process with the LTB?
    Thank-you
    PS I really have bad allergies- I can't breathe properly/my eyes and throat get so dry and I get migraines. This was explained in the lease agreement.

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    1. Michael K. E. Thiele10 November 2015 at 11:26

      Hi: It is a bit tricky to decide how to proceed against a tenant in these circumstances. I take at face value your decision to try to evict now instead of trying to work with the tenant to maintain the tenancy. Given serious health problems and a clear and intentional repeated breach the rules that protect your health I don't think it is unreasonable to proceed with eviction. On the assumption that the Residential Tenancies Act applies to your relationship with this downstairs tenant I would be inclined to proceed with an N7 form--ticking box 4, with allegations based on the fact that you live in the same building as the tenant. This N7 (box 4) is like an N5 except it is non-voidable based on the landlord living in the same building as the tenant. That the smoking is a substantial interference is something you should be able to prove relatively easily. You should get medical report backups from your doctor confirming the seriousness of the allergy and the impact of smoke, e-cig and marijuana smoke on you. Confirmation of your recent illness and suffering smoke related exposure symptoms should also be documented and verified by your doctor. You would use all of this as evidence and justification for termination and seeking immediate eviction. Do not presume that you will be taken just at your word about the seriousness of the health condition.

      I prefer the N7 route over the proposed illegal act route that you are thinking of taking. The fact is that while marijuana use is still illegal there is very little weight given to the illegality of the activity. Smoking marijuana on the premises is unlikely to get you an eviction order unless you can show some significant consequence of that activity on the character of the residential premises.

      The first step, then, is to properly prepare the Notice of Termination (Form N7) and serve it on the tenant. Keep a copy of the N7 as served (a photocopy). Prepare a Certificate of Service and then prepare an L2 application. You will need your N7, certificate of Service and the L2 application to file with the Landlord and Tenant Board. This will get you a Notice of Hearing.

      Once you start the process (i.e. serving the N7) nothing stops you from making a deal with the tenant. That deal may be a consent termination or such other things you may agree on. It is always best to document your deals either through mediation at the Board or through a consent order with Board. Do not simply withdraw your application upon making a deal with the tenant. Unless the tenant actually completely fulfills her end of any deal before your hearing date you should make sure to get an order from the LTB. If she agrees to leave--go get an order that allows you to enforce the agreement. If you agree to give her a second chance document that second chance through a Board Order or mediated agreement and give yourself recourse to evict if she breaches any deal.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  20. Unknown3 May 2016 at 22:54

    Hi,

    My wife and I with our three children aged 3,6, and 8 live in a townhouse in Richmond Hill. We recently leased the basement to a 20 year old male. Our ad said no smoking but out lease does not indicate this. i found out he smokes and creates his own e cigarettes. I imagine I could get him to sign an amendment that no e cigarette smoking or smoking of any kind is allowed in the lease. However, as e cigarettes do not smell, I presume he would continue to use them. Would I be able to evict him if he is not willing to leave on his own accord?

    ReplyDelete
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    1. Michael K. E. Thiele4 May 2016 at 10:39

      Hi Mike: The value of having a no smoking clause in the lease is that the breach of the clause creates its own basis for termination. Without a no smoking clause in the lease there is no prohibition on smoking. This does not, however, mean that you can't terminate for smoking in the unit. Where the lease does not contain a no smoking clause you would need to prove that smoking in the unit is causing a substantial interference with the reasonable enjoyment of the premises by other tenants or the landlord. Proving "substantial interference" can then be a basis for evicting. Why is this not as good as having a no smoking clause in the lease. A no smoking clause would only require establishing that smoking is happening. Whether that smoking is substantially interfering or not is less important as the value of a unit that has not been smoked in is protected by the non-smoking clause. Smoking might not be bothering anyone except that on unit turn over the cost of preparing the unit, cleaning the nicotine, cleaning ducts, etc., can be very high. A no smoking clause can protect against expenses like this. I trust you get the point.

      The question in your case is whether your lease includes a non-smoking clause or not. I appreciate that your written lease does not. Perhaps it is an oversight. However, your advertisement indicated non-smoking and this condition was not negotiated away by the tenant. In residential landlord and tenant law a lease is "oral, written, or implied" and an adjudicator is directed to cut through the outward appearances of things and get to the heart of the matter and determine the real facts. Arguably, you could take the position that the advertisement and the lease constitute the lease terms (not ideal but arguable and likely an attractive argument given that we are talking about smoking).

      With respect to e-cigarettes the argument I think is harder. Certainly, e-cigarettes are evoking the ire of the anti-smoking crusaders who are quite happy to tell everyone how to live their lives. What is the evidence that what comes off of an e-cigarette is dangerous like second hand smoke? If that can't be established as a matter of fact then I think eviction for e-cig use is going to be much more difficult if you can't establish a substantial interference ground. It seems to me that e-cigarettes are different enough from smoking that your advertisement is not going to "catch" this practice. However, it is a matter of argument so you can always try.

      Lastly, you ask about signing a lease amendment. That can be a good idea. However, if you are going to do that, and the tenant is agreeable, make sure to include all of the different products that can be smoked--tobacco, e-cigarettes, drugs like marijuana. Arguably you can carve out an exception for medical marijuana and set up something that works for everyone. For a lease amendment or the amendment of any contract each side to the contract needs to get something for the change to the contract. You would get the clauses you want and in exchange you need to give the tenant something. It could even be a single dollar or a peppercorn--what you give is not so important as the fact of giving something. Recognize the exchange of consideration ($1.00 for non-smoking clause) in the amended lease itself.

      Good luck

      Michael K.E. Thiele
      www.ottawalawyers.com

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  21. Unknown4 May 2016 at 11:39

    Michael, Thanks so much for your reply!! This issue is causing us a lot of stress and your advice is very helpful. We will try to get our tenant to sign an amendment with all the details you suggested. If he is unwilling to sign this, based on the "reasonable enjoyment clause", is it legal for us to insist that our tenant not smoke or make e cigarettes anywhere on our premises? The issue for us is that given there is not enough research on e-cigarette second hand smoke and that Ontario has banned them from being used anywhere regular cigarettes cannot be used, we have to act on the safe side and not allow this in our home. Mike

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  22. Unknown4 May 2016 at 11:45

    Michael,
    Not sure how I could repay you. This advice is so helpful!!
    Mike

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    1. Michael K. E. Thiele4 May 2016 at 15:49

      Hi Mike: You may of course insist that the tenant not smoke in the rental unit. Your position of course is that "no smoking" is a part of the lease in any event. Getting an explicit clause inserted in the written lease was to clarify an existing obligation--arguable from the presence of that requirement in the advertising. Your argument regarding the e-cigarette will certainly get some traction as there is a basis that you describe. The "in our home" part is the tricky part. "In our home" also means in the tenant's home and as a renting tenant he has the right to do whatever he likes in his home so long as it is legal and does not substantially interfere with the reasonable enjoyment of the premises by other tenants or the landlord (or impair safety). I think the trick on the e-cigarette is proving that it is happening. Can you smell an e-cigarette being used? How do you prove that this e-cigarette is causing harm? That will be the trick for you in an application to the Board. That being said, you may certainly make it clear to the tenant that your expectation is that there will be no smoking the unit including e-cigarettes and that if this is done that you will immediately move for termination and eviction. You would then proceed to issue a Notice of Termination and in accordance with the terms then apply to the Landlord and Tenant Board to terminate and evict the tenant. It is at the hearing that you would have to convince the adjudicator that you are entitled to the relief of termination and eviction.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  23. Unknown5 May 2016 at 09:06

    Hi Michael,

    I cannot thank you enough! I have proceeded to work with the Tenant on this. He has agreed to not use or produce e- cigarettes in his unit. Of course, you mentioned the problem. Vaping is relatively odorless so it would be very difficult to prove this. I will get to him to sign that updated lease so hopefully that will help. I will certainly contact you to retain your services with any rental issues if I am ever in need! Thanks again!!

    Mike

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  24. jodi12311 May 2016 at 16:32

    Hi Mike.. I am a landlord i reside upstairs in my home.. I renovated my basement into a two bdrm apartment.. Ended up renting too ..two young brothers .. They were fine tenants at first..then after two months they became a real problem.. Smoking in the basement .. Their car leaking oil all over my driveway.. Partying all hours of the night.. Finally after my 5 year old was woken up at 330 in the morning.. We knocked on their door told them to keep it down .. An argument followed.. My husband then proceeded to ask them to move out... My hubby served them with a N7 stating they had 10 days to vacate apartment.. We then went to Landlord tenant board and filed a L2 .. Served them that form.. They rent was paid up till March 15th .. They came to me on March 11 stating they were moving out on the 15th and they wanted their last months rent back .. They left the apartment in serious disreapir and damaged my fridge by kicking the door in ..it needs to be replaced now..the walls had to be repainted and drywall repaired due to the damage.. I withheld 500 dollars of their last months rent..due to short notice and damage done..they in turn filed with landlord tenant board for there 500 dollars .. I have signed agreements that they signed when they moved in stating if they damaged apartment they would inccur repair costs..other then basic wear and tear.. And on top of that i was not able to re rent due to repairs that had to be made.. So i suffered lost rental money and time off of work to deal with this plus i incurred all filing costs. I am planning on going to court to fight this ..

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  25. The Soap Mistress1 July 2016 at 13:30

    My daughter rents a two bedroom apartment and the landlord now is stating she can't use her washing machine because it "might" flood. The landlord also had one very old pay washer and dryer in the basement that he expects them to use and they used it a couple of times and when they have their clothes smell like dirty wet dog because one of the tenants in the building has a couple of dogs and they are always washing the dogs bedding and stuff. Can a land lord tell a tenant they can't have a washer because it "might flood"??

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    1. Michael K. E. Thiele2 July 2016 at 08:30

      Hi: Whether a tenant is entitled to have a washing machine or not is most often dictated by the terms of the lease. Hence, the first place to check is the lease. If a washing machine is precluded in the lease then it is likely something that the landlord can insist on. However, if the lease is silent, then the issue is less clear. If the apartment had washing machine hookups when you viewed the place and it is clear that having a washer was reasonably assumed as permissible then the landlord is going to have a hard time banning the washer now.

      The landlord's explanation is curious. Is there any reason to be concerned about flooding? Saying the washer "might" flood is like saying a pipe "might" burst. If you can speak with the landlord it would be worthwhile to explore what is behind this expressed concern. If it really is about possible flooding (seems unlikely) you could explore various solutions to prevent flooding---there are hoses that claim to prevent flooding if ruptured, there are pans that the washer can sit in (built into the floor or on top) that capture the water from a leaking washer and direct it to a drain; and Im sure there are other "precautions". You could also show the landlord your tenant's insurance (I presume you have insurance) and confirm that flooding negligently caused by you is a covered loss (confirm that with your broker)--so that the landlord gets a fully repaired unit in the event of a flood.

      Ultimately though, the key to this issue might be the word "pay" in relation to the basement machines. Forgetting for a moment whether it is legal or not, in the lease or not, maybe it just comes down to the landlord wanting to be paid for the water and electricity that the washing machine in your daughter's unit uses. Seeing as your daughter is paying to maintain her own machine (no repair or maintenance costs for landlord), perhaps the landlord would be satisfied with a small contribution towards the costs of the water and electricity "used" by the machine. Such a payment is legal under the Residential Tenancies Act for the extra electricity (not the water). Perhaps your daughter already has the right to have the machine in her unit and a fight could be forthcoming---or maybe to buy a little peace make a payment for the "extra" electricity and be done with it. Of course this gets a little trickier if your daughter is already paying for the electricity in which case this looks more and more like a cash grab by the landlord.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com
      Quinn Thiele Mineault Grodzki LLP

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  26. Ada115 May 2019 at 07:25

    My landlord has been transition to non smoking apartment
    3 peoples health are suffering and proven
    Property manager dragging feet
    she cant smell it the public hallways even are cloudy smell matches the doors to those smoking
    Yet she said nothing will happen untill cigarette in hand
    She told a few of us verbally non smoking upon moving in
    She ignore me and only seems to handle banking
    What can i do legally
    I can't afford to move or I would of yesterday

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    1. Michael K. E. Thiele24 May 2019 at 08:18

      Hi: What you describe is a difficult problem. Can you prove who is smoking? Will the people who are smoking admit it? If you had to prove to a Judge that person XX is smoking in the building--could you? For the landlord to take effective action the landlord needs to have the kind of evidence that would the allow to prove to an adjudicator of the Landlord and Tenant Board that a particular tenant is smoking in the building. Once the landlord proves that the tenant is smoking, then the landlord can lead evidence from you (you would testify?) and other tenants that the smoke is bothering you and substantially interfering with your reasonable enjoyment of the property. With this evidence, the landlord should get an eviction order against the smoker--or a conditional order requiring the smoker to not smoke inside the building. The fact of transitioning to a no-smoking building is interesting but not critical to the landlord's case. Even in a building where smoking isn't banned, if the smoke substantially interferes with the reasonable enjoyment of another tenant it is grounds to terminate and evict a tenant smoker--even if they have always smoked and were always allowed to smoke in the building.

      If you have the evidence that is needed for the landlord to be successful against the smoker, and the landlord does nothing, then I'd make sure to document the evidence and send it to the landlord. Make it very clear, in writing (text or email too) that the smoke is bothering you. Indicate how often there is smoke in the hallways, when it is smelled, what unit you suspect it is coming from, and if you are able, confirm that the person living in the unit is a smoker. As the landlord to put up security cameras in the hallway and to take action to stop the smoking in the building. Provide this evidence and write regularly to the landlord. The landlord is legally required to take action.

      If the landlord fails to take action after you write to complain, provide evidence, and ask for action to be taken, you can then file an application against your landlord. Use the T2 form. Ask for a significant rent abatement and ask for an order requiring the landlord to deal with the smoking in the building. This will likely be a multi-step process and mediation may in fact be helpful and result in a deal that settles the issues in the building. Keep in mind that the landlord's ability to prevent tenants from breaking the law is rather limited. The tenant(s) who is smoking knows that they shouldn't be smoking in the hallways. Yet they continue to do so. Presumably the landlord has written to the tenants on your floor advising that smoking needs to stop--beyond that, it is a game of cat and mouse with the smoker hiding their activity. You can help solve the problem by getting the landlord the evidence they need (presuming a landlord who actually wants to solve the problem).

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

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  27. Unknown15 May 2019 at 22:40

    Hi Michael, thank you so much for the valuable information.
    I have a house with a family consisting of a husband wife, infant and 13yr old son currently living on the main floor and a seperate basement apartment. In 2017 I rented the basement apartment out to 2 older men, both men had good references including work references, first and last, and good credit. They paid their first and last and for the first 4-5 months things were OK except for some smoking. However in the summer one of the men became increasingly belligerent with the tenants upstairs, smoking excessively and inviting unruly drug using people over(I found drug paraphernalia). There were 2 verbal warnings as well as a written warning. The man did not comply and I filed an N5 to begin the eviction process. Soon after he was given the eviction notice he became very hostile and hit his roommate in the face. Police were called and he permanently left the premises. He was given $1000 and took his belongings.
    The remaining man was not a hassle and seemed to take on the victim role. I said he could stay as long as he complied with the lease and paid his rent (this was August 2018). Since this date he has been short on his rent twice. In April 2019 he moved in 2 mentally unstable drug users. I'm at the property on average once per week for maintenance and they generally try to hide when I am around. He has not paid rent for May at all and I suspect he is doing drugs. This has been very disruptive for the tenants upstairs and I've stated this to the tenant as well as given written warning again. They smoke and have lots of random visitors. Is it possible to file an N4 and N5 simultaneously to evict this person? What is the best way to approach this effectively?
    Thank you for any advice.

    Katherine

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    1. Michael K. E. Thiele16 May 2019 at 06:57

      Hi Katherine:

      You may indeed serve and file different notices. Hence an N4 and an N5 may be served separately. Where the Board begins to have difficulty with multiple notices is when there are a great many notices with different termination dates and the circumstances of the service of the notices causes confusion. Confusion is a bad thing when it comes to notices as the Board will often determine that the whole process is flawed and therefore dismiss the applications.

      That being said, a single N4 and an N5 (with a possible 2nd being served as the process demands) is not likely to be a source of confusion (objectively).

      My advice respecting rent arrears is always the same. Serve the N4 as soon as the rent is late and apply to the LTB as soon as the law allows (15th day after service--and day after the termination date in the N4). If the tenant voids the N4 by paying you the N4 becomes useful evidence in the future for an application based on N8 (persistent late payment of rent).

      The N5 should be filled out and served as soon as you have sufficient grounds to serve it. Whether you should serve, or not, is a little bit more nuanced. You need to ensure that you will have evidence available to prove the allegations at the ultimate hearing. Hence, complaints from tenants but their unwillingness to take a day off work to come and testify can make service of the N5 pointless. Also, you mention "mentally unstable drug users". Note that being such a person is not the basis for eviction. It may be that the other tenants don't like being around "mentally unstable drug users" but this is not in itself a basis for eviction. You will need to focus on the behaviours and breaches of the RTA by these persons and the tenant.

      Hope that helps.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  28. Anonymous12 August 2019 at 11:16

    Hi there,

    My parents are currently going through a hard time with their tenant. Ever since my mom filed for eviction for personal use the tenant has stopped paying her rent as we await for the hearing for the N12. So they have also served her with an N4 (3 times) as she has not paid for 3 months and later filed for the L1. Initially, at the start of her tenancy, the Tenant was asked to use the washer/dryer until 10 PM on Sunday which she complied with. Now she has started to use it past this time, claiming she has the right to use it until 11:59 PM. I'm not sure if there are any rules and regulations stipulated by the LTB regarding usage of a washer and dryer but I was wondering how and if my parents are able to enforce their rule?

    Also, this tenant has usually paid by draft cheques. I have a feeling she will attend the hearing and present copies of the draft cheques that were prepared for payment and basically lie and say that she's already paid. How do we prepare and disprove this? Should we bring bank statements to show we have not taken any money?

    Thank you!

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    Replies
    1. Michael K. E. Thiele12 August 2019 at 12:21

      Hi: You have a lot of issues going on! If you are able to, I'd recommend hiring a lawyer or paralegal who is experience in residential landlord and tenant. Some of the things you are describing sound to me like you may be taken advantage of in the system. It is a mistake to think that the "system" will make sure the right thing happens. That is rarely ever the case.

      The N12 hearing has many elements. You need to prove the basis for serving and have evidence of the reasons for doing so. Relying simply on your word can make winning more difficult than it need be. The tenant will likely challenge the good faith of the N12, then challenge the intent to live there a year or more, and then seek to extend or deny termination/eviction under section 83. Cross examination of the tenant on her section 83 grounds can be very important as it informs whether the adjudicator terminates the tenancy now, later, never, etc.. Doing this cleverly is really something that only comes with experience.

      You indicate having served 3 N4's, presumably one for each month of rent that is late. If this is what you're doing it is incorrect. You serve one N4 and that covers all rent arrears, including new arrears that arise after the N4 is served (so long as the N4 is not voided by payment). Serving unnecessary N4's risks causing confusion and delays in the lawful termination date. This is not good for you. Again, you should consider hiring someone with experience to avoid this mistake.

      With respect to rent being paid, or alleged to be paid, simply having a photocopy of a cheque doesn't tell you anything. Cross examine on where the cancelled cheque is (proof it has been negotiated). Then where is the proof of the cheque clearing the tenant's account (print out of bank account should show the cheque coming out of the account). In the face of allegations that you anticipate part of the trick is how to cross examine effectively and suggest a way forward that the adjudicator will agree with that will support your case. For example, if the tenant says "here is a copy of the cheques--rent is paid", you could stand the matter down and ask her to go to a bank and print out her account or even pull it up on her phone if she has an app. If she agrees that the cheques have not cleared then it becomes clearer that rent has not been paid. At which point, a standard pay and stay Order is likely to be issued.

      The dryer and washer usage, presuming the rules are clear and agreed upon can be the basis for an N5 being served. Given all that you have going on you might want to avoid issuing another Notice at the moment---but it is through an N5 that you would deal with this kind of issue.

      Good luck to you. Please seriously consider retaining a paralegal or lawyer who knows this area of law. A lawyer can fix what you've done or failed to do--up to a point. After that, you are either starting again or simply unable to do what you wish. That would be a nasty spot to be in given that it would likely only come from your inexperience in these matters. (Note that the tenant is likely to have the assistance of duty counsel at the hearing).

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

      Delete
    2. Anonymous12 August 2019 at 14:49

      Hi Michael,

      Thank you so much for your prompt response!

      We have prepared ourselves to prove why they need the space, mainly as my parents wish to unite the house once again and will be using the basement partly to turn into an exercise room for my dad and my mom who would like to use the space for storage and/or host family gatherings. This was communicated to the Tenant as well before.

      For the multiple N4's, we've already filed the L1. Will this mean that our case will be dismissed? I do plan on hiring a lawyer...should we reapply for the L1 again?

      And for the washer/dryer situation, would it be alright if my parents intervened and just shut off the machine after 10 pm, if it were to still be running after that time?

      Delete
    3. Michael K. E. Thiele14 August 2019 at 13:42

      Hi:

      I am quite pleased that you will be hiring a lawyer. I would make sure to do so soon. Your comments about how you intend to use the space in the home can be characterized in a way that is not helpful to your position. Your lawyer will be familiar with the cases and can assist your parents in explaining their intended use of the premises. The section of the RTA for which interpretative caselaw should be reviewed is section 48.

      As you have already issued and served the L1 I would wait and see what happens with it. If the issue about multiple N4's is raised it will be worthwhile to have the Board's decision before starting new applications.

      With respect to the washer/dryer situation it is not to me to say turn it off or not. The house has rules and I presume the timing of use has a reasonable basis. If your parents turn off the machines the tenant could allege an interference and file an application. Your parents would then have to defend an application. Whether the tenant would go to the trouble of filing an application over this issue I don't know. If your parents would be comfortable defending their action in turning off the machine and the time of use is reasonably supported and there is no reasonable exception, then they could choose to proceed in this way and deal with any claims and defend against them. It is difficult to see how any such claim would be characterized as a substantial interference but you can imagine that the tenant will allege a terrible harassment as a result.

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

      Delete
  29. painter3 January 2020 at 17:10

    Hello
    Can landlord sue tenant in LTB if tenant's car drips oil little by little to tenant's designated parking spot. The car oil dripping clause is in the lease but I assume we tenants sign a lease for accommodation vs. landlord gets into tenant's personal life using lease as a tool and add to it all kind of demands. No one can predict if a hose will burst on a car.
    (WHAT DO YOU SAY TO THE ABOVE)

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    Replies
    1. Michael K. E. Thiele4 January 2020 at 11:32

      Hi: An interesting question. The LTB decides cases under the Residential Tenancies Act (RTA). The RTA sets out the rights and responsibilities of landlords and tenants. The RTA also sets out certain rules that can not be contracted out of and further sets out certain rules that make lease clauses that are contrary to the RTA void (section 4 RTA). Whether the clause you complain about is "void" (that is the "oil dripping clause") or not depends on the wording. If the clause seeks to impose a liability greater than or contrary to the RTA then it is quite arguably void (i.e. unenforceable).

      With respect to damage to a driveway from oil dripping from a car there are many many factors that will go into determining whether there is liability and also into determining the extent of the liability (i.e. amount of money) that is owed. If you assume there is liability this does not automatically mean that the tenant pays for a new driveway.

      Presuming that the landlord has commenced an application at the LTB for damage (not eviction and damage) then the landlord will be alleging that you negligently damaged the driveway with your oil dripping car. The legal test in the RTA for damage caused by a tenant is whether the tenant "negligently" or "wilfully" caused the damage. Wilful is "on purpose" so that is out. Question then, is the way in which your car caused damage (presuming it did), negligent damage? You then get into the question of what does "negligence" mean. The answer to that question is long and involved and I'm not sure entirely helpful. What might be helpful is to understand that "ordinary wear and tear" is not negligence. As you use something in the way that it is intended to be used that thing will inevitably get broken down, damaged and used up. Things have a useful life and then they need to be replaced. The RTA has a table of the useful life of things--asphalt driveways are deemed to have a useful life of 15 years. This means after 15 years the driveway would be expected to be worn out. Based on this useful life you can figure roughly how much of your existing driveway is already used up. This would impact the value of what has been lost if you are indeed responsible (financially) for the damage.

      Delete
    2. Michael K. E. Thiele4 January 2020 at 11:32

      So, is a tenant automatically responsible for oil damage caused by a leaking car? I don't think so--regardless of what the lease says. The landlord still has to prove negligence and the mere fact of an oil leak from a car does not equal there being negligence. What if the car is (new or old) is regularly maintained and inspected according to the owners manual. Say the vehicle is inspected and no short cuts to maintenance are taken and the owner of the car takes good care of the vehicle. Say also, there was no warning of an oil leak, no marks on the driveway, no need to top up oil every couple of days/weeks--none of that. Then say a spontaneous leak occurs----is this negligence? I don't think so and in fact I could see this as falling within the broader category of "ordinary wear and tear". It is ordinary because I do think cars will from time to time malfunction or suffer a breakdown through no fault of the owner and no amount of maintenance or good care could prevent the "oil leak". Hence, unless you want to look at oil leaks from an "absolute liability" perspective which is not supported under the RTA, then I think there are circumstances under which no liability will attach. Of course, there will be circumstances where liability will clearly attach--such as driving an old clunker that is always breaking down, is slow leaking oil, that has no regular maintenance history, has been demonstrating that it is on the verge of a breakdown, etc. etc.. I've certainly had people visit me, and know people who are aware of the issues with their car who have avoided parking in my driveway because of dripping/leaking oil. If a tenant has that kind of car you can't be surprised if they are held responsible for causing oil damage to the driveway.

      In conclusion, whether or not there is responsibility really depends on the underlying facts. You describe an unexpected bursting hose. This could be a good defence. As most things in law--the answer depends on a close look at the facts and the adjudicator's perspective .

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

      Delete
    3. pingxin888@gmail.com16 January 2020 at 07:10

      Hi, Mr Thiele, what an informative blog! I have a situation as a landlord: a couple (lovers outside marriage or sugar daddy/baby) rented my apartment, one old and rich man,with property with his legal wife and luxurious cars, businesses, legal and shady, another young and poor girl less than half of his age. They both put their signatures on the rental agreement. The young/poor girl seems to be a professional tenant who knows how to play the current system in Ontario, and instructed her old, rich boyfriend/sugar daddy not to pay rent after a few months of regular payment.
      I am going to the hearing soon. And if the LTB judgment is for them to pay (apart from eviction), and small claim court supports such judgment, how can I collect the money? Can I pursue the old rich man only, and ignore the poor young girl who has no money at all? Or they legally share the debtor 50/50? Say, if they owe me $5000 in rent arrears, does each of them owes me $2500, or is it possible to put the all debt on the old rich man alone? It was always the old rich man paying rent until he suddenly stopped, cancelled his postdated cheques and even stopped replying to all my emails and text messages.

      Delete
    4. Michael K. E. Thiele16 January 2020 at 07:22

      Hi: You tell a great story that could be a made for television movie! With respect to enforcement of an Order/Judgment as long as you have Judgment against the old rich man you can pursue him for 100% of the Judgment. If his view is that half of the Judgment should be paid by the younger lady he may sue her if he wishes for contribution or indemnity.

      The trick may be getting the Judgment against the old rich man. While you may have named him in the LTB proceedings the key will be whether he also occupies the rental unit. If he does not then the LTB does not have jurisdiction to grant you an Order against him. To pursue a claim against him you would need to sue him in Small Claims Court. This arises from a quirk in the Residential Tenancies Act that only conveys jurisdiction over tenants who are in possession. If you have a guarantor or tenant who is out of possession you must sue in the Small Claims Court (or higher Court for amounts in excess of $35,000).

      That being said, if the issue of jurisdiction is raised, make sure to get the LTB to write in its decision that it has no jurisdiction to enter an Order against the rich old man. Having this in an Order will be useful as the Small Claims Court is often inclined to push matters (i.e. dismiss them) back to the Landlord and Tenant Board as the appropriate venue for the claim. There is still a lot of confusion about where a claim should be brought. Hence having something in the LTB Order wherein the Board clarifies its jurisdiction would be helpful.

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

      Delete
  30. pingxin888@gmail.com18 January 2020 at 04:29

    Many thanks Mr Thiele for your reply.
    I just found out yesterday that the house the rich old man lives with his wife is also rented. He does drive expensive cars but they could also be leased. In this case, how can I make him pay after Small Claim Court judgment? What can I garnish?
    Do I need to locate his business? Do I need to provide the debt collector with his bank account number? Or only knowing which bank(s) he has money with will suffice?

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    Replies
    1. Michael K. E. Thiele18 January 2020 at 09:43

      Hi: One always hopes that when a Court/Tribunal Orders someone to pay that they do so. Certainly there are stories of people dodging Judgments and forcing debt collection but often enough that arises from the person not actually having the means to satisfy a Judgment. My experience is that most people, who have the money, will either fight the matter in Court or simply pay. Inviting debt collection can be rather inconvenient to the debtor. Garnished bank accounts, writ of seizure and sale against lands, seizing of assets (like cars), affecting credit rating, and debtor's examination--these are all typical steps in collection/enforcement. If a person has the money to satisfy a Judgment they probably want to avoid enforcement steps. I've had the experience that the reluctant debtor often comes around to paying on service of a Notice of Debtor's Examination.

      The questions you ask about enforcement don't have a single answer. How you proceed with enforcement varies depending on the circumstances. Garnishment---anyone who owes the debtor money an be garnished (i.e. they pay the Sheriff who then pays you--including banks and other entities owing money to the debtor). How much information you need, how deep you dig, all depends on the level of compliance. Certainly, the more information you have the better it is for enforcement. In my experience, the only information needed to garnish a bank account is to know the branch of the bank at which the debtor banks. The account number is not needed. Also, I've had success with garnishments at the head offices of banks without actually serving at the branch. Success varies and often depends on the identifying information of the debtor that you have.

      Ultimately, if you get a Judgment and payment is not immediately forthcoming you might want to contact a Collection Agency and see what they can do for you. Debt collection is a skill and having experienced persons doing it for you can be worth the cost as the results are often better than you muddling through the processes.

      Good luck
      Michael Thiele
      www.ottawalawyers.com

      Delete
  31. MReffo23 January 2020 at 12:46

    hi Michael,

    sorry if this is a duplicate to a previous post, computer glitch.

    I am very happy I found this blog as I have been running in circles trying to find answers. I did call the Ontario Tenancy Board and tried to find answers in the act but none quite get to the heart of the question. My daughter attends Ottawa U, renting an apartment with three other girls from a property manangement company. They moved into a unit listed as "all inclusive" including appliances with a washer/dryer combo unit. This however is listed in the appendix as a promotional item. The washer broke in Novemenber they were told it would be repaired, upcon further inspection now Jan 14 are being told they miseused the appliance and it is too costly to repair and they won't replace it. Our lease ends April 28th, they are not giving us a new lease, so i guess we have to go month to month now according to the act. Question: given all their other rentals have washer/dryer combos provided, and the piping and facilities are in place can we buy our own and install it by a professional? Can they force us to remove it, or use this as a way to evict us? it does state in the Appendix that tenant can only use appliances supplied by the Landlord but given they won't repair or replace it, why can't we add our own? we are bearing the cost of the appliance, its repair and will replace it with a similar model. Do we have to tell them in writing we are doing this? can they say no, what recourse do we have? The tenants are quiet, clean and always pay rent however we are well aware there is a Landlord motivation to not service items, make life difficult in the hopes we move so they can raise the rent considerably beyond the rate increase guideline for the new students. Other tenants have experienced the same lack of service and pressure and many have already agreed to leave. This is an unprofessional tactic that is preying on students in the area so I feel the need to do something. Any help is appreciated.

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    1. Michael K. E. Thiele24 January 2020 at 12:40

      Hi: This is an interesting problem that has a number of different approaches. The landlord's decision to simply not repair the item is not acceptable nor legal. As the lease has the landlord providing the appliance the appliance must work or be replaced by the landlord. If the landlord wants to allege that the appliance is broken because of misuse then they can do so and you can argue the issue at the LTB. If you (the girls) did negligently break the appliance then they will be liable for the cost of repair. Regardless though, the appliance must be repaired and replaced by the landlord.

      I am not keen on self help without notice and simply removing and replacing the washer/dryer though a quick fix creates a breach as you've indicated and then appliances (especially ones with water) can be a source of flooding, fire, etc.. Though if you were inclined to do the self help having the units professionally installed is indeed important---simply for the insurance coverage if the thing springs a leak or a hose fails or something similar and the unit gets flooded out or the dryer causes fire etc.. You don't want to be in the position of being accused of "improperly" installing the machines.

      As I think about this, my approach would be to write to the landlord. I'd confirm that the washer/dryer is broken and needs to be repaired or replaced. I'd give a deadline of perhaps 5 days. Then I'd indicate that I would be calling in a repair person at that time to fix the appliance and that the cost of that would be charged back to the landlord. Then I'd say, if the technician confirms that the unit can not be repaired or the cost of repair is excessive then I'd tell the landlord that you will replace the unit on a specific date with a unit of like kind and quality unless the landlord confirms in writing that they will replace the unit on or before a specific date.

      With your plan laid out to the landlord in a manner that you can prove (i.e. by email, fax), you can proceed. Presumably the landlord will ignore you and do nothing. Fine. Once the deadline for action passes call in an appliance repair person. The key will be to get a clear indication on the invoice of what needs to be repaired and specifically ask if the reason the unit is broken is from misuse. Ask specifically if it is possible to determine why the unit is broken and get that written in the invoice.

      If the unit is fixable and the repair person says it was "misuse" well then perhaps you just pay and be quiet. If the technician is unable to say how it was broken or that it is just wear and tear then you can pay (if that is reasonable) and then get ready to seek reimbursement.

      Delete
    2. Michael K. E. Thiele24 January 2020 at 12:40


      If the technician says that the cause of break down is unknown but that the cost is very high--close to cost of a new unit, then say thank you, pay the service call. Then search for similar unit, get estimate from three places--online quotes are good enough. Advise the landlord that you are going to purchase a particular unit and have it installed on or after XX date if the landlord does not replace the unit. If the landlord does nothing then proceed with professional installation.

      Now that you have replaced appliances you can decide how you want to recover the costs. The Landlord and Tenant Board would advise you to file a T6 application. Take a look at the application, add all of your emails (to show how reasonable you were), include the lease indicating the Landlord's obligation to provide the appliances, then add your invoices for repair, service call, and replacement, and your estimates and file the application. In my view, proceeding like that you will indeed get the money and be entitled to simply deduct it from ongoing rent.

      I think that this is a reasonable way to proceed if the amount of money in play is affordable to you and if it is not critical that you ultimately recover the money. If the money is very important to recover you can proceed first with a T6 and simply look for an Order requiring the landlord to repair or replace and perhaps ask for reimbursement of laundry expenses while you are doing without the washer/dryer.

      Proceeding in the first way gets the issue dealt with quicker--and you have laundry. The risk is that you are relying on winning to get reimbursement. The second way keeps the money in your pocket (presuming you did not cause the damage) but takes a long time as scheduling a hearing can take 3 to 4 months now.

      Hope that helps

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

      Delete
  32. MReffo10 February 2020 at 14:14

    Michael, thank you so much for your advice and providing us with options. In the meantime we have gathered all our emails and documents to support our claim for a resolution to this matter. I believe we are going to go ahead an file a T6 to have the landlord replace the unit. Thank you again for your information and time it is most helpful.

    ReplyDelete

IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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