I'm pleased to publish today an Article written by my assistant Heather. As you have seen in prior Articles, Heather has developed a keen interest in Landlord and Tenant Law issues. I'm pleased that she has written about how a tenant terminates a tenancy, legally, as far too many tenants still think that their tenancy automatically ends after a fixed term expires or that a simple phone call will do the trick. As Heather discusses, termination of a tenancy, by a tenant, engages a formal process under the Residential Tenancies Act and a tenant is required to comply strictly with the law just as a landlord is required to do. Thank you Heather for your interesting piece. Michael K. E. Thiele
No-Fault
Termination: A Tenant’s Notice of Termination by Heather Campbell
When you think of providing a “Notice of
Termination,” there is distinct undertone of negativity, or if you’re in the
least bit nerdy like me, you think of Arnold Schwarzener as a half-man
half-robot. However, unlike Arnold, when a tenant gives a landlord a Notice of
Termination, they are not planning on coming back.
Life has a way of taking us to places that
we never thought we’d go, especially at times when we are not at all prepared
for such a substantial shift. Recently, a friend of mine gave me a call with
just this type of situation. After
completing a university degree in English at Carleton and a college degree in
the Library Technician program at Algonquin, she had been accepted to a Masters
Program in Library Science at the University of British Columbia. The catch,
she would be starting in the winter semester, meaning she had to be out of
Ottawa and in Vancouver in less than three months. As a result, she would need to give her
landlord notice that she was leaving and she needed some guidance on what
needed to happen and how to do it. So, I figured I would write a blog to share
with you, in general terms, what I was able to share with her about tenants
giving a Notice of Termination.
First things first, when a tenant is
considering giving their landlord a Notice of Termination of Tenancy, you’ll
need to know what type of tenancy you have. For the sake of this blog, there
are two general types, a fixed term tenancy or a month-to-month tenancy. A
fixed term tenancy generally occurs for example when you begin a new tenancy
and sign a lease for let’s say a one year term.
If you have signed a lease agreement and the original term in the
agreement has not passed or if it was formally renewed, then you would likely
have a fixed term tenancy. In the alternative, if the original term in your
lease has passed and no steps were taken to renew the lease, you’re likely on a
month-to-month tenancy.
Now for the big question, why does it
matter what type of tenancy I have? For the answer, we look at Section 47 of
the Residential Tenancies Act (RTA)
which deals with tenants giving Notice to Terminate. Under the RTA, a tenant
can give the landlord notice to terminate the tenancy at the end of the period
or term of the tenancy (Sec 47). This means, if you’re in a fixed term tenancy,
if you’re giving your landlord notice you’re leaving, you would have to wait
until the end of your rental term to actually move out. For example, if you’re
9 months into a 12 month tenancy, you would have to give notice for the end of
the 12 months. In the alternative, if you’re currently living on a
month-to-month tenancy, then your end of term is considered to the end of the
current month. If you need to terminate a fixed-term tenancy before the term
ends, there is a process of that, however that is a whole other blog.
In the case of my friend, thankfully her
tenancy was month-to-month so she was able to give notice right away. However
there is a distinction between the date for notice and the date for
termination. For an explanation we turn yet again to the RTA but this time we
look at Section 44. Section 44 (1) looks at notice and termination periods for
daily or weekly tenancies, under that section a landlord or tenant must be
given at least 28 days notice before their tenancy is terminated under a Notice
of Termination. In other words at least 28 days have to pass between the
termination date on your Notice to Terminate and the day the landlord is given the
notice for daily or weekly tenancies. Section 44 (2) looks at notice and
termination periods of monthly or month-to-month tenancies, under this section
a tenant wishing to terminate their tenancy would have to provide a landlord
with at least 60 days notice.
To go back to my friend, her flight to
Vancouver was set for December 28, 2013. Up to that date, she would need access
to her apartment. Given that she was on a month to month tenancy, the best
termination date for her was December 31, 2013, as a termination date has to be
at the end of term in this case the end of the month (Section 47). So now she
had her termination date, she needed to know when she would have to give her
landlord notice and how to do it. After looking at Section 44, she now knew she
needed give her landlord at least 60 days notice, so now all she had to do
count backwards. As a side note, the RTA and Landlord and Tenant Board have
specific requirements when it comes to giving/ serving Notices, so you need
consult the relevant sections to make sure you are counting any extra days that
may be required based on your form of service.
My friend had a really good relationship
with her landlord and wanted to give them as much notice as possible so she
decided to give more than the 60 days notice required. Now all she needed now
was to know how to give the notice. Section 43 of the RTA deals with what must
be included in a Notice of Termination. The Landlord and Tenant Board has a
form specifically for Tenant’s to use when giving landlords notice of their
intention to move out, it is the N9-Tenant’s Notice to Terminate the Tenancy
form. It is available from the Landlord and Tenant Board or can be downloaded
from the LLTB website.
Section 43 states that all Notices of
Termination shall be in a form approved by the Board. There are cases with
other types of form have been accepted, however, save yourself a headache and
just use the N9 if you are a tenant looking to end their tenancy. Again, giving
the notice to the landlord (also known as service or serving) must be done in
accordance with the RTA and Rules of the Landlord and Tenant Board, so please
consult the relevant documents depending on your individual situation.
Regardless of how you choose to serve the Notice, it is always prudent to
complete a Certificate of Service, which is provided by the Landlord and Tenant
Board. The Certificate of Service is used to prove that you have provided the
landlord with the Notice should any issues come up and the matter proceeds
before the Landlord and Tenant Board. This should be done right after serving
the N9.
If you look at the N9 Form, Section 43, 44 and
47 of the RTA, there are many more issues that relate to tenants giving notice
and situations and consequences of giving a landlord a Notice of Termination of
Tenancy. All of which, are unfortunately
more than can be dealt with and explained in a blog. So if you have specific
questions, please feel free to leave comments or to seek legal advice. I hope
this blog has shed a little light on tenants giving notice to end their
tenancy, and useful should you ever find life leading you on to new adventures.
Very informative and well written. I don't think Heather is going to be an assistant for long.
ReplyDeleteVery interesting and motivating blog. Helped me a lot. Thanks for sharing !
ReplyDeleteHi hope this finds it's way to you because I am in need of some big help.
ReplyDeleteWhat are my rights of a tenant who resides in Ottawa? Here is what has happened.
About 6 months ago my husbands work that he was at for many years was going bankrupt..prior to us knowing his paychecks were becoming less and less with promises that it would be in next week...next week went on...so we fell behind in rent. None the less my Husbands other employer said instead of us getting evicted would the property management okay the idea that he pays the rent and in turn we pay him until we get on our feet. They agreed to this. Now what has happened it...the other employer who was paying rent has said to property management..they are okay now and on their feet as my husband has a good new job etc..so I turn it over to him. Just starting this month we were told that rent is paid in full nothing owing...so we just figured that the boss paid it in turn we will pay him...so then we wanted to pay for May 3 weeks early and sign a lease...they said...well we can't take payment until the lease is signed and that has to be agreed with the Landlord that she will let you sign one. So this has gone on waiting on her decision....then we found out that actually Aprils rent was paid with our last month rent. For three weeks we kept getting the run around about a lease and then we started to get scared because their attitude started to change saying well...maybe you should look for a place as owner doesn't seem she wants you to live here due to that last time you were late on rent. So I went over their heads and contacted her....she was a bit confused asking what I was talking about and if I paid the rent for April..I said...yes...they said all is paid in full. After she contacts the management she tells me...well if you find a co signer and you are in charge of the rent not your husband because the property management doesn't anything to do with your husband...... Now this got me thinking....is there something up? I figure they want me gone in a week without notice...never told me it was the last month rent...not excepting money for May...saying I didn't even pay Aprils rent...as the landlord stated they said I didn't pay April that is why they took the last months...how is that possible when all we have been trying to do is give them money and they do not except? What should I do? I can't just pack up a family of 4 with no where to go.
Please help ASAP.
Hi there. The information you provide is a bit confusing. What I understand is that you fell behind in rent because your husband was having difficulty with getting paid by one of his employers. Your husband's other employer (a second job) said that they would cover your rent so you would not be evicted. The deal is that you repay your husbands second employer--which has nothing to do with the landlord. The last you are told, all the rent is paid up. Which sounds like it is to the end of April 2014. What you were not told is that your husband's second employer did not pay the April rent but instead the landlord was applying the Last Month's Rent deposit to the month of April 2014. Without being told that, you have tried to pay the May rent but have been refused. From your comment I infer that you have a written lease that ends April 30, 2014. You have tried to negotiate a new lease for May 2014 but have had no success as the landlord and the property management company are imposing odd conditions.
DeleteHopefully the above is an accurate summary of you situation and what you have told me in your comment. If so, I think that you are operating under a serious misunderstanding about the law---and it sounds like your landlord is taking advantage of your misunderstanding. In Ontario, a fixed term lease--AUTOMATICALLY RENEWS--upon the expiry of the term. You DO NOT have to negotiate a new lease. The landlord is NOT ALLOWED to ask you to leave because the lease has expired.
The issues with paying the rent and the problems you have had are quite frankly your business and not the landlords. The landlord has received its rent and that is all it may require. The landlord can not now ask for co-signers or impose additional terms on you. You are in possession, you have a lease, your lease continues automatically on a month to month (without the need to sign anything), and the terms of your month to month lease are exactly the same as the terms in your fixed term lease. This means the rent stays the same (unless you received a legal N1--Notice of Rent Increase).
The landlord's refusal to accept your rent is unfortunate. I hope that you are able to save the rent money as eventually you will have to pay it. If you can, go ahead and buy a money order for the rent amount. It will be handy to have proof that the money order for rent was bought before the rent was due. Also, be ready for having to pay the April rent (as the Last Month's Rent deposit should not have been applied yet). Eventually the landlord will have to file legal paperwork to try to evict you and the only way the landlord can do that (on these facts) is to try to evict you for non payment of rent. As long as you have the rent money--the law will always give you an opportunity to pay the rent that is owing and allow you to stay in the apartment.
As I said, I think your misunderstanding about the law is causing you a great deal of stress. Please understand that Ontario law, and any tenancy subject to the Residential Tenancies Act, provides you with a great deal of security of tenure (meaning the legal right to stay in your rented home).
Given that your landlord is actively misleading you (seems that way to me), please consider getting legal advice from a local legal aid clinic, lawyer, or paralegal experienced in this area of the law.
Best of luck.
Michael K. E. Thiele
I failed to mention..for further detail...the sheriff did come and lock us out. At that point the third party gentle men offered to pay the balance that was owing in full as long as we can stay in the unit. They agreed. He signed a lease and he paid the rent in turn we paid him. Due to other commitments he was no longer able to do this and his lease was canceled. He felt that since his new job was stable and there was no issue with pays we were able to look at this on our own. My husband then called the first week of April to go down to pay the rent. They informed him there was no money owing. There was no mention at that time that it was last months rent being applied so we offered to pay Mays rent 3 plus weeks in advance. To show them good faith. At that point they refused and said the owner of the property would have to okay a new lease. Several weeks went by we were told by one of the property managers that it looked like the owner wanted a brand new start and we should possibly look for another place. Do to my panic I went above the property management and contacted the owner myself and pleaded to her if we can stay I will try to get a co signer as I felt I was being thrown out by next week. I even pleaded that I will continue the removal of snow in winter and do the landscaping in the summer..without looking for anything in return. She was unaware any of this was happening. Over a period of a few days she told them to accept a lease on our behalf with April payment as well as My payment due on the first of May. We were then told a co signer will be require. She told me that The owner of the property company is furious with her for allowing us to sign a lease because he does not trust my husband and feels a lot of anger towards him. I do not work at the moment yet they want me to be the one to sign the lease. Is a co signer still allowed.
ReplyDeleteThank you for writing again. Your situation certainly is unique. The fact of having your tenancy terminated and being evicted by the sheriff certainly puts a different spin to the case. In fact it changes things completely. If I understand correctly now, after your eviction it was your husband's boss that signed a new lease and you lived in the place and paid him? If this is correct, it raises an interesting question about whether your original lease was in fact terminated. All that being said, I think your situation is a little beyond my general comments in a blog like this.---i.e. your circumstances don't lend to a simple solution. Given the risks to you it would be ideal if you could meet with a lawyer or licenced paralegal to discuss your situation. Best of luck.
DeleteMichael K E. Thiele
Hi Michael, thanks for this blog and the opportunity to ask questions. I have a scenario for you. I had signed a one year lease until September 30th 2014 but have a new job opportunity that requires me to leave my lease early. I presented the landlord with this by email and they agreed to let me out of my lease for June 30th asking that I pay a fee for the advertising of the apartment. I thanked them and wrote back to ask if they would like a cheque for the advertising amount and to clarify if June would be considered my last month's rent deposit; they then said they would keep June's rent cheque to cover their costs of re-renting the apartment including the advertising fee. They then returned my cheques for June, July and August. I emailed inquiring if June was given in error, and they did not respond; however June 2nd they emailed saying they had mistakenly given back June's rent and requested a new cheque be issued. Do they have a right to ask for this given I paid a deposit for last month's rent and they have successfully rented the apartment for July 1st? Thanks very much for your help.
ReplyDeleteHi J. Vaughan: In one sense, the deal you made with them respecting early termination of your lease constitutes a "contract". That deal visited the risk of not re-renting on the landlord. The upside to the landlord was re-renting for July 1 in which case they got a bonus for the risk they took. Some people and some judges would have absolutely no problem in enforcing the deal for you to pay the June rent as the amount for terminating your lease. The alternate view is that the landlord may only recover the lost rent going forward. As they are not out of pocket they should not be entitled to a double recovery. In effect, they are prohibited from recovering the June rent from you because they have mitigated their loss by re-renting to a new tenant. Of course, their advertising costs and expenses would be extra. Perhaps cleaning and preparation costs of the unit would also be extra.
DeleteIn short, if this matter proceeded at the Landlord and Tenant Board --the board being a creature of statute--I think you would win and not be required to pay the June rent. However, if the case proceeded in small claims court, or if the landlord sued on the contract in the small claims court or if the landlord sought damages for advertising, clean up, preparation of unit, and some administrative fees, I think a small claims court judge would be fairly sympathetic to such a claim.
Hope that helps--a bit of a wishy washy answer but I don't think the answer is entirely clear cut.
Michael K. E. Thiele
Thanks so much Michael, this helps clarify my options. Have a great day.
DeleteThere is a ton of useful and helpful information mentioned within this post! Thanks for sharing!
ReplyDeleteI need to give 2 months notice to terminate my month to month lease. However, I want to give a 30 days notice and move out on Oct 1st as there are multiple neighbors in my floor who are taking and may be even selling drugs and I don't want to expose my young family to this any longer. Is there any law which will support me?
ReplyDeleteHi: The law with respect to giving Notice to Terminate is fairly inflexible--meaning 60 days to the end of term on a month to month tenancy is the minimum that you must indeed give to the landlord to lawfully terminate your tenancy. That being said, if you were in a position to prove that you have brought the problems (drug dealing) in the premises to the landlord's attention and the landlord has failed to take steps to deal with it, then you could seek an earlier termination of the tenancy from the Landlord and Tenant Board using a form T2 (Tenant's Rights Application). Otherwise, you may wish to simply speak to the landlord and advise why you are moving and ask the landlord to consent to earlier termination (use Form N11--Agreement to Terminate). If the landlord will not agree and sign off on an N11, and you decide that you're moving anyway, you could inform the landlord that he has a duty to mitigate (i.e. try to re-rent to minimize losses) and that if the landlord fails to re-rent and decides to sue you for the 30 days of short notice that you will defend on the basis that the landlord interfered with your quiet enjoyment of the premises by allowing the building to have drug dealing in the premises. One thing to consider doing is to give notice for October 1--even though it is short notice. Under the RTA, on sections dealing with what rent is owing when Notice is short the amount is capped to the legal termination date that could have been given. Hence your maximum exposure should be, or what you would aim for it to be, is one additional month of rent.
DeleteBest of luck
Michael K. E. Thiele
Sir, I am in need of some advice...could you help me sort out the following.
ReplyDeleteI co-signed on a Tenancy Lease for a young single mom of 1 in September of 2013. Everything was going well until May of this year when she started with late rental payments, partial payments, and then not paying July's rent. I had a voice mail message left on my cell (only contact with Landlord regarding rent issues since start of lease) on July 28th, 2014 stating that I needed to contact the Tenant and get her to pay her outstanding rent. This was the first I had heard (from Tenant or Landlord) that there was outstanding rent, and the message was from a Private number and no phone number was left for a return call.
The landlord filed with the Landlord Tenant Board (I found out from the Tenant after confronting her about the outstanding rent), and I was not named on the paperwork, nor provided with any request to appear. The Tenant and her then live-in boyfriend were named on the documents, and I was not kept 'in the loop' as to what the outcome of the Board's decision was. Neither the Tenant or her boyfriend appeared at the Board hearing, so the Landlord was awarded a decision against the Tenant and her boyfriend for the outstanding rent plus the court costs.
I found out all of the information about the decision when the Landlord again contacted me on August 25th via cell to advise that the apartment was a mess, and that she could not get a straight answer from the Tenant about paying the outstanding rent. She then stated to me the amounts owing, and that I would be responsible if the Tenant did not pay up. I contacted the Tenant who said she would pay up at the end of the month when she got her cheque (assistance). I advised the Landlord what I had been told by the Tenant (as the Tenant was not returning the Landlords calls), and she again stated I would be responsible for the outstanding amounts.
On August 28th I contacted the Landlord and Tenant Board. While I did not have a case number, and I was not named on any documents, including the decision by the Board from the hearing, they could not discuss this particular case with me. So I asked some general questions regarding my particular position, providing them with the information that I had co-signed the lease, but had not been named on the application or order with the Board, and was advised that the Landlord could not hold me to the lease since she had an order against the Tenant and her boyfriend for the outstanding amounts. I asked about the pressure I was being put under by the Landlord for payment, and it was stated that the Landlord could not proceed with any legal action against me because of the existing Order from the Board.
Could you please confirm with me that this Landlord cannot persue me for the outstanding amount (close to $2500.00 at this point). I am not in a position to come up with this amount, not have this impact my credit rating.
As of this writing, the Sherriff has taken possession of the apartment and all of the remaining contents.
Any assistance / advice you could provide would be greatly appreciated.
Kathryn
Hi Kathryn: Providing you guidance is difficult without seeing the paperwork. It sounds like you signed the lease as a guarantor or at least that is how the landlord is treating you. That you were not named in the Board proceedings does not help you and I don't agree with the comment made to you by Board staff. The landlord could not name you in the Board proceeding because you were not in possession of the unit at the time the application was filed. This is a quirky jurisdictional issue and the landlord proceeded correctly by not naming you and in my opinion this does not automatically absolve you from liability. The question remains, what is the legal implication of what you signed and hence the need to look at that document closely. The law of guarantee is fairly complex and not at all straightforward. There are plenty of cases where the enforceability of the guarantee or the co-signors liability is put in issue and often enough the case turns on technical interpretations of the words on the guarantee. Further, what your intentions were at the time of signing the documents along with a reasonable person interpretation of what was intended will be relevant. Then also there will be a question of whether you guaranteed the rent or the rent plus indemnity for damage and cleaning costs. Ultimately, if the landlord has no success against the tenant the landlord will demand the money from you and if you do not pay the landlord may choose to sue you in the small claims court (because the claim is worth less than $25,000). You will be entitled to defend the action and challenge the amounts and you should consider suing the tenant for any amount that you have to pay the landlord. If it comes to this (being sued ) it would be in your best interest to retain a lawyer for at least a consultation to review your paperwork and to send you in the right direction ( presuming the amount of the claim will not justify the expense of a lawyer for the whole case).
DeleteSorry that this response is not the "good news" you were seeking but it affirms that people have to be very careful and sure of the creditworthiness of the people they sign for.
Good luck
Michael K E Thiele
Michael, thank you for your quick response.
DeleteI am not in possession of a copy of the Lease agreement, as it was never provided to me by the Landlord or the Tenant. This leaves me in the position of being in the dark regarding the specific wording. At the time of signing, and in previous conversations with the Landlord, she indicated to me that my information was being taken so that they had a firm 'alternative contact' should there be an issue with the apartment.
I signed the agreement, and am at fault for not reading thoroughly what I was signing. However I should have been provided with a copy.
I will be seeking in-person legal advice today to determine where I stand in this matter.
Thanks again. Kathryn
Hi Heather and Michael,
ReplyDeleteWe recently gave notice to our landlord that we wish to terminate our month-to-month residency. I followed the guidelines on the landlord tenant board website with regards to noting the right dates but I sent the notice via e-mail because my partner was in Europe and wasn't available to sign a written letter. Our landlord accepted the notice and wished us well.
I've been worried about whether this notice was legally given because recently she has been quite intrusive - she is selling the house and has asked us to pack up our things, has threatened that pictures of our personal items will be posted on the internet, leaves our apartment covered in dust from repairs that she does - and we would like to appeal to her to be more respectful of our space but she can be quite unreasonable and I don't want to provoke her if we might be at risk of paying another month's rent because we failed to give written notice.
What are our options here?
Thanks,
Melanie
Hi Melanie:
DeleteIn my opinion you have nothing to worry about. Let me explain first the bad news, then the good news. The bad news is that serving the document (Notice of Termination) on the landlord via email is not a valid form of service for documents under the Residential Tenancies Act. Acceptable methods of service are set out in section 191 RTA and Rule 5 of the Landlord and Tenant Board Rules of Practice. Going through both of these you will find that service via email is not an accepted form of service. The accepted methods include: in person, to an employee of landlord, leaving in mailbox where mail ordinarily delivered, if no mailbox then in the place where mail is normally delivered, mailing it to last known address, courier, fax, under the door or mail slot (for tenants), xpresspost.
The good news for you is that section 191 (2) of the RTA will make your email valid service because receipt of it has been acknowledged. The section provides as follows:
(2) WHEN NOTICE DEEMED VALID--A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period.
Hence, on the strength of section 191(2), I don't think you have anything to worry about with respect to the service of your notice of termination via email.
Michael K. E. Thiele
www.Ottawalawyers.com
Thanks Michael!
ReplyDeleteHi Michael.
ReplyDeleteI just have a quick question I was hoping you could help me with. I've been searching online everywhere and can't seem to come up with a firm answer. My girlfriend signed a lease for an apartment and in the lease it stated that when moving out, we would need to be out by noon on the day of termination (she lost her copy of the lease before we moved in together, so this information is just what I have gathered from the superintendent, and from when a friend was moving out of the same apartment building and they yelled at them and threatened to call the police as they weren't out before noon). We are now just on a month-to-month basis, as our lease has expired.
My question is, is the clause in the lease of moving out before noon binding? Everywhere I look online, all I can find referencing this is that you have to be out before midnight and I have never heard of a clause stating that you have to leave early.
Thank you for your time
Hi Mr Michael,
ReplyDeleteI have a problem with my tenants that we rented our basement to this month ie. November and they are becoming a headache already, They smoke which they lied about wen we rented them and said we smoke outside when I caught them but we have smelled it inside quite a few times and I am allergic to it, secondly they are extremely loud and fighting, and yelling 80% of the time and that's becoming a nuisance for us, they are a young couple with a four years old son, the lady said she's on social assistance as she moved from other province and later I found out she's also on therapy for some drug allegations and unfortunately we do notice abnormalities in her behavior wen she's shouting at her partner and even her son and we also suspect we heard her hitting him, though its none of our business but it definitely is ruining our peace and calm in the house, I am studying and unable to do so because of this at times and my mom who's home as she recently had a surgery cannot rest . we signed a month to month lease with them and 60 days notice either side if we need them to vacate or they want to leave. We have their IDs and man's job letter and also did reference check but still landed into this situation, I hope you get my message and help us if we want to just let them go with 30 day notice and what would b the right approach since its winters now.
Hello:
DeleteI'm sorry for the experience that you are having with these tenants. From your comment it is clear that you have very little experience as landlords. The agreement you have that either side can give 60 days notice is not legal. Only the tenant has the right to give 60 days notice to terminate a month to month tenancy. The law does not let you make a deal to have the same right of termination. You may only terminate the tenancy for the reasons set out in the Residential Tenancies Act.
The good news is that the things you are mentioning are grounds to terminate the tenancy. The smoking alone is grounds for termination. You could use an N5 or possibly an N7 Notice of Termination Form. The shouting is also grounds for serving a notice of termination. The hitting could be an illegal act for which you could serve an N6 Form---though that is a much harder case to make. If the hitting is of her four year old son (it isn't clear from your comment if she is hitting her spouse or child) you should report what you are hearing to the Children's Aid Society and to the police.
The fact that it is winter is irrelevant to the legality of evicting. They do not get extra time because of this.
Please do consider hiring a lawyer to help you. For people who are going through this for the first time it is very confusing and frankly tricky. If you plan to be a landlord for a while you could perhaps learn from this experience and see how the lawyer prepares the forms and proceeds to the Landlord and Tenant Board. Your tenants will likely be represented at the Landlord and Tenant Board as they will be provided a lawyer through Legal Aid Ontario---and hence they will have an advantage over you.
Best of luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks so much for replying this quickly Sir! We actually belong to low income group so will we be eligible to get help from legal aid as landlords? And as an update with the situation they had a huge fight today and it was so loud we could hear everything so we went right away and told them verbally that we have had enough and if this continues we will have to call the police and also u will have to find another place. The did apologize and text saying they respect our decision if we give the notice, I don't if it actually goes in our favor but we have to let them go regardless, so if you can guide us once again I would highly appreciate so...
Deleteplease help! I am desperately trying to move out of the house I'm co-renting with an acquaintance of mine (I feel that living here is causing me mental and emotional duress). I am planning on giving an official N9 60 days notice thing to landlord the end of this month. I have already given the landlord and co-renter more than 90 days notice via email as a courtesy, (written notice of a sort at least). 10 months ago we had signed a simple monthly agreement form with the landlord, there was no fixed term, it was month to month. My co-renter, and whoever answered the phone at the LTB hotline, says that I am not allowed to give 60 days notice and leave on my own, it has to be both of us or no-one. But unfortunately I want to leave and they do not see themselves leaving for the forseeable future.. So I feel I am being held to an indefinite term decided by another person against my will - When I originally signed the monthly rental agreement, I did not know this (the form was not that detailed), and I assumed I could get out after 60 days if I wanted. Also, my landlord is insisting he needs 2 names on the "lease", and cant rent the place without that. I was quite relieved in reading one of your other blog posts (2013/04) where you stated that "..in a month to month tenancy either or any of the co-tenants are permitted to give the requisite Notice of Termination of the Tenancy to the landlord to terminate the tenancy" but as I read some other stuff it seems that things are not that cut and dry. I realize that you cannot give official legal advice, but wondering if you could verify this wether this is indeed that case, if Im going in the right direction, and what the usual course of action is. Thanks so much for all your efforts in this area, Jeremy, Ottawa ON
ReplyDeleteJeremy:
DeleteYou are citing my opinion correctly but I must make it clear that it is only my opinion--though supported by a line of caselaw. The author Jack Fleming indicates in his text Residential Tenancies in Ontario 2nd Edition, the following (at page 301), "If there is a tenancy in common, one tenant may terminate a tenancy without affecting the tenancies of other tenants. For joint tenants, the case law is split on whether: 1) termination by one joint tenant terminates the tenancy for all; or 2) the tenancy of one joint tenant can be terminate without affecting the tenancies of other joint tenants. As well, one can make an argument that the concepts of joint tenancies and tenancies in common are property law concepts no longer application to residential tenancies, and that therefore co-tenants can terminate their tenancies without affecting the tenancies of other co-tenants."
Mr. Fleming as additional discussion in his text and seems to favour the view that a joint tenant may terminate a tenancy for only that tenant while leaving the remaining joint tenant in possession with a valid tenancy.
I respectfully disagree with Mr. Fleming and the law that leans that way. I think that what Mr. Fleming proposes is fundamentally unfair to landlords and that the position he advocates is centred on the interests of tenants without trying to be fair and balanced to the interests of both tenants and landlords.
I look at the situation you describe as follows. Before the creation of any tenancy agreement you have a landlord and tenant(s). The unit is vacant and the landlord gets to assess whether he wishes to lease to the applicant tenant(s). Similarly, the applicant tenant(s) get to view the rental premises, decide whether he/they like the premises, and he/they can decide for how long they might like to rent the premises (i.e. for a fixed term).
The landlord, in assessing the applicant(s) is fundamentally interested in ensuring that rent will be paid and the premises respected (i.e. damage, noise, etc.). The landlord's security for rent being paid, security that damages will be paid for intentional or negligent acts, is the creditworthiness of the applicants. When the landlord signs on a new tenant or tenants, the landlord is choosing that tenant(s) over other applicants for reasons that are consistent with the landlord's interests.
An applicant tenant, or tenants, decide when applying whether they are prepared to commit to living in the rental unit for a fixed period (for example a one year lease) or whether they don't want to be tied down to a fixed term and instead wish to proceed on a month to month basis. If a group of tenants sign a one year lease I think they are agreeing amongst each other, as well as with the landlord, that they will perform the obligations of the lease and the RTA for that fixed term. If the tenant or group of tenants don't sign a fixed term lease, but instead choose to go on a month to month, I think they are saying to the landlord as well as to each other, that each of them individually agree to perform the obligations of the lease on a month to month basis with the right to terminate the lease in accordance with the law for month to month tenancies--which is 60 days to the end of term. For a fixed term lease (say one year), the tenants are agreeing with each other to meet their share of the obligations of the lease to no sooner than the end of term or until proper notice of termination of the lease is given by any or all of them.
DeleteI think this interpretation is the fairest to all concerned (landlords and tenants) as the landlord gets the security of the applicants and people who are actually leasing for a clear minimum time period as the law clearly sets out (i.e. a fixed term, or 60 days on a month to month). It is fair to tenants as they too know what they are signing up for when the enter into a joint tenancy with another person. The issues between joint tenants--whether to sublet or assign in the event that one of the two needs to leave early in a fixed term is something that can be adjudicated in the context of finding replacement roommates or holding each of the roommates to a objective standard of conduct as between them. It should not be the landlord's problem with two tenants who can't live with each other or are having a dispute.
In my view, the line of caselaw that allows a joint tenant to terminate the entire tenancy at the end of term, or on 60 days notice, is the most reasonable way for the law look at the situation of multiple tenants in one residential unit (call it joint tenancy, tenants in common, statutory tenants, or a modern tenancy as Mr. Fleming suggests may be appropriate). I don't think that any of multiple tenants should be compelled to continue a tenancy until that tenant can convince the other co-tenants to terminate the tenancy. One tenant should not be forced to assume the risk of continued liability to a landlord while simply moving out and getting on with their lives while the co-tenant remains in the unit. There has to be a way for a co-tenant to unilaterally terminate their responsibility to a landlord once the original obligation of a fixed term has expired on or legal notice (that the law says is 60 days) in a month to month situation. In my view, that "way" must include a unilateral termination of the entire tenancy--even over the objection of the co-tenant who may wish to stay.
DeleteI say this because I think it is entirely unfair to allow one co-tenant to terminate their part of the tenancy, thereby terminating their legal obligation for rent, damages, etc., while leaving the other co-tenant in possession who may have very little credit worthiness. It is unfair to the landlord to effectively allow his/her/its security for ongoing rent and possible damage to be reduced by half or more through the unilaterally act of one of the tenants in a unit.
To be clear, I don't think that the termination by one tenant automatically means that the other tenant must move out. If the remaining tenant is credit worthy and a decent tenant the landlord may very well wish to enter into a new tenancy agreement with the remaining tenant. The remaining tenant could find a new roommate, new co-tenant, or not. Just because one of the two co-tenants wishes to move out and has the right to terminate the tenancy does not mean that the tenant who wishes to remain in the unit must necessarily move out. If the tenancy was good, respectful between the parties, and there is a clear track record of behavior and compliance with the lease the landlord may be very pleased to keep the remaining tenant in possession and sign a new lease. By keeping the remaining tenant there would be no turn over costs, no missing of rent while trying to re-rent---hence there is a an incentive for a landlord to do a deal with the tenant who wants to stay behind.
The caselaw that Mr Fleming refers to (which he doesn't seem to favour) is what I think the law should be. It is fair and the scope of what everyone gets is by far best known by adopting this law. So to summarize, I think that during a fixed term lease none of the multiple tenants in a lease are able to terminate the lease unilaterally. None of them can force an assignment or sublet on the other tenants. During the fixed term any of the tenants can meet the obligations of the lease and impose liability for those obligations on the co-tenants (i.e. payment of the rent by one of the co-tenants obliges the other tenants to reimburse the tenant who paid their appropriate share).
Once a tenancy goes month to month or leading up to the end of the fixed term I think that any of the tenants can unilaterally terminate the lease of the entire group of tenants. This can be done by serving a Form N9 and only the one signature of one of the tenants is required. The other tenants, if they wish to remain, are free to negotiate a new tenancy agreement with the landlord and enter into that tenancy agreement once the existing tenancy is terminated by the properly served N9.
Proceeding in the way allows the tenant who wishes to leave to clearly delineate their responsibilities for rent and damage to the unit. The tenant who is leaving can require the landlord to do a move out inspection etc..
What happens if one of the tenants serves an N9, the remaining tenants disagree and the landlord refuses to recognize the N9 as valid? In my opinion---and I must stress it is my opinion only---the N9 is valid whether or not the remaining tenants recognize it as valid or whether the landlord or the landlord and tenant board (presently) recognizes it as valid. After the termination date in the N9 I argue that the remaining tenants become unauthorized occupants of the rental unit. The landlord MUST file an application to evict the unauthorized occupants within 60 days of becoming aware of their presence (which date will be the day after the termination date in the N9). If the landlord does not file an application to evict the unauthorized occupants before the expiry of 60 days then the remaining tenants who did not move out in accordance with the N9 are deemed to be new tenants or the lease that was terminated by N9 is instead deemed to be assigned. The ideas expressed in this paragraph flow from the structure of existing RTA sections--specifically section 100 to section 104.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks so much for your very thorough reply. I appreciate it. It is very likely that " the remaining tenants disagree and the landlord refuses to recognize the N9 as valid" situation will most likely happen. At this point though I am having a hard time even getting a copy of the lease from the landlord, and I assume he is legally supposed to be able to provide me with that? if he cannot even produce a lease..
DeleteMichael Thiele, So elegantly laid out. Also to note the statue seems to favour this view by not talking about it - which opens the door for case law to fill the void. And of course the Charter argument that right to law needs to be open evenly to all (including those in multiple tenancies).
DeleteHello!! I have a roommate (co-tenant) who told me she wanted to move out but didn't give written notice to the Landlord. She finally did 6 days before the end of this month and is now refusing to pay September's rent. She is locked in to the lease and is legally required to pay it, however the rent automatically comes out of my account and if we default it affects me too. I want to stay in the apartment so will need to pay the rent in full which I can't afford. Can I sue her in small claims court since she failed to give notice and she's listed on the lease?! She thinks that she shouldn't have to pay and that I should be paying her back her last months rent since she wants to leave now (even thought she's on the lease until October 31st). Also, some of her things are still here and I know that I can't change the apartment locks but can I put all her things in her bedroom and lock that door if she refuses to pay?! Things are getting messy and I just need to know the law is on my side. Thanks so much for your help... Your blog is so informative!!
ReplyDeleteHello,
ReplyDeleteI need your advice regarding my lease. In June 2013 we signed a lease for one year.A few months before the end my landlord asked us if we wanted to renew for one more year and we accepted because we didn't know we had the month-to-month option (we are foreigners on a work permit). We thought this was the only way to continue living in the apartment. The second year also ended and we wanted to stay more so we asked for a second renewal (again because we were unaware of the month-to-month option) but we told our landlord that we wanted for a smaller period as my husbands' work permit would be for less than a year. However a little later my husband signed a yearly contract and we contacted our landlord to let her know that we want the apartment for a year that would be the last though as we knew we are leaving from the country. Unfortunately, for family/Health reasons we have to terminate the 2nd renewal three months earlier, that is in March 2016. We have been her tenants for more than 2 1/2 years. We gave her notice 2 months plus a week in advance and she has already listed the unit and so far we have had some showings. Her agent though told us that we will be on the hook for any rent loss. We have been very good tenants without creating problems and we have taken care of the apartment as if it was ours. I have found out in the meantime that they have done some improper things like asking us 100$ deposit in case we leave unpaid electricity, they have never given us back the interest from the last months deposit and they have asked for 10 post dated cheques. I found all these to illegal. Plus there is a term in the lease stating that we are not allowed to assign the unit. I know we can, the Law allows us to assign even though we have signed. I emailed her however asking her permission to assign the unit(pretending I know nothing about my Rights) and her agent replied that my lease Agreement does not allow me to assign. So, I'd like your help as to what our options are. They are taking advantage of the fact the we are foreigners and we don't know the laws here. Do I have the right to cancel the 3 last cheques? I have already paid the last months rent which is from february to March. Please note that we are leaving permanently from the country!
Thank you in advance
Hi: You raise a number of issues and I think you have done well to research your legal rights as the facts you relay are exactly the ones needed to terminate your tenancy early. As you likely know, a landlord's refusal to allow an assignment of the lease triggers a right to terminate the lease within the timeframes set out in the RTA. The sections dealing with assignment and the consequence of refusing a general request to assign may be found in section 95 (and onwards) in the Residential Tenancies Act. Note that there are indeed timelines so read the sections carefully. On the basis of the refusal you could indeed terminate the tenancy on notice within the time allowed.
DeleteWith respect to the your question about post-dated cheques. You are not required to provide post dated cheques and having given the cheques you may indeed demand that they be returned. However, it is my experience that many landlords disregard the request to return the cheques so it may be that you have to put a stop payment on the cheques. If you do so, you should inform the landlord in writing that the post dated cheques should not be cashed and that there is a stop payment on the cheques.
With respect to the illegal deposits and the unpaid interest you are clearly entitled to payment or refund of these amounts. Of course, if the payments are not voluntarily made then you would have to bring an application to the Landlord and Tenant Board to get an order. As this is unlikely given your time frame you may wish to deduct these amounts from anything that you owe to the landlord. If all rents remaining due are paid then you will have to simply hope that the landlord pays you.
Good luck with your move.
Michael K. E. Thiele
www.ottawalawyers.com
Hi there,
ReplyDeleteI was looking for some advice regarding my lease agreement. My current fixed term lease ends on February 29th and I notified my landlord via email back in December that I would not be renewing the lease. This month he reached out to me stating he did not receive the email, that it may have got caught in his work email filter, and that because it does not constitute 60 days notice I needed to pay one extra month of rent (March) while he finds someone to rent the apartment. If I did not comply he would pursue one months rent in damages from me.
I realize now, after your article, that I should have filled an N9 form, however I was not aware the form existed and truly believed that an email could be considered as written notice. I forwarded him the email I had sent when he said he did not receive it. Email and text was also the primary way we communicated.
I was just curious as to what my options are, and if in fact he could "sue for damages" (his exact words).
Thanks so much for your help in advance and enlightening me (as a first time renter) on the intricacies of renting in Ontario!
Michael: Sounds suspicious on the part of the landlord. The Form of notice is not ideal as the N9 is the correct way. However, giving written notice in email, text, letter, is generally sufficient so long as the necessary information is communicated. Hopefully your email said something along the lines of terminating your tenancy. It's possible to get into hair splitting here as not renewing the lease might be interpreted as not signing up for another year and that instead you are going month to month. If you made reference to moving out, returning keys, something like that it would be helpful as evidence of intention to vacate.
DeleteHow did your landlord know that there was an email that he did not get? Your comment doesn't indicate you telling him about it. The "I didn't get it" argument is fairly lame and generally regarded with great suspicion by adjudicators and judges. He better be able to prove with his IT department that the email isn't in any of the email logs or is caught in a filter or wasn't delivered. His simply "saying so" is bogus in my view. On top of that you are thinking as I would in relying on the fact that your manner of communication with the landlord was via email and text. This is how he wanted to communicate and this is how you are directed to communicate with him. You can demonstrate a sent email. If he sets up his system in such as way as to block or filter emails that is his problem and his risk.
Can he sue? Sure he can. Nothing can stop anyone from suing. Can he win? He will first have to prove that your notice is invalid. The form of the notice isn't perfect but it should pass muster with the Court (substantial compliance). The method of delivery was in accordance with the agreed upon method of communication which you can demonstrate from other emails and texts. It is a good argument in my view.
Note that the landlord implies that your form of notice is acceptable---only late. This leaves you arguing only about the delivery method.
If you lose on the form of the Notice and method of delivery then the landlord has a chance. The landlord will first have to prove that he took adequate steps to mitigate his damages. Did he advertise etc., take reasonable steps. If he finds someone or the Court feels he should have found someone by the date you moved out then your liability is capped--even short of 60 days. The landlord is not entitled to double dip on rent for the unit.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, I love your blog - it's very informative. I'm hoping you can answer a question for me. A friend has decided she needs to end her tenancy early as she simply cannot afford her apartment, partially because the landlord told her the utilities would be much lower than they actually are. She notified the landlord by email asking if she could break the lease early, and the landlord (property mgmt company) told her she is responsible for finding a new tenant, getting their cheque for first and last, etc. However, they also maintain that she will have to pay them a $300 processing fee to assign a new tenant, and that they will not even consider assigning the lease to a new tenant until this fee is paid. My understanding is that the only fees they can charge her would be the actual out of pocket costs of advertising, credit checks etc for finding a new tenant - and since she will be finding the new tenant, only their credit check fee would be applicable. Is this correct?
ReplyDeleteThanks!!
Hi: I don't think that you could have packed more issues into that paragraph if you tried! There is a lot wrong with the landlord's position and perhaps issues to explore even in relation to the misrepresentations with respect to utility costs. To deal fully with the issues that you are not technically asking about your friend should find a friendly legal clinic and see if someone will sit down with her to help sort it all out.
DeleteThat being said, let me focus on your question and what may ultimately be a pretty good solution for your friend. I would be interested to learn whether the requirement to pay the $300 processing fee as a condition of assignment is in writing or not? If it is not in writing, can you get it in writing? If this is possible to get it in writing (or in some form that you can prove that they require this), then I think your friend can likely just give the landlord a notice of termination and walk away--fully and completely without any further liability.
The reason I say this is that the RTA does not allow a landlord to charge a fee as a condition of granting permission to assign. Requiring payment of $300 before even considering assignment is directly contrary to the RTA's assignment provisions. Please note, and perhaps go hunting, but there are a couple of articles in this blog on how to assign (and sublet) a unit and the implications of refusing an assignment. The effect of a landlord refusing an assignment is that the tenant may terminate the tenancy. Attaching conditions to an assignment that that RTA does not allow is the same as a refusal. The RTA allows two answers---"yes" or "no" to an assignment request and not a "yes, but" answer. So, please take a look at the assignment provisions and you will see how the RTA gives your friend a termination right upon a refusal to allow an assignment.
Your friend's position gets a little more interesting than what you have identified. Yes, the $300 fee must be for actual out of pocket expenses and not just an in-house administrative charge that the landlord levies. What is interesting is that the fee is chargeable for an approved assignment to a particular assignee. The fee is not chargeable for vetting prospective assignees. If your friends landlord is planning to charge $300 per potential assignee they have a problem. It would be interesting to confirm this with the landlord (in writing) as that would be contrary to the law on this point.
Good luck to your friend.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, Wonderful blog here. I wonder how I can delivery a Tenant's Notice of Termination (N9). So, can I delivery that by email or it has to be a delivered method by mail or in person or fax only? I would appreciate your response. Thank you.
ReplyDeleteHi: Technically, you legal methods of service of an N9 are the same as the service of any other document by either landlord or tenant. I will paste section 191 of the RTA at the end of this comment which sets out the ways to deliver notice. That being said, note that notice given not in accordance with the RTA or the Rules can be validated if there is proof that the contents of the notice came to the intention of the intended recipient (see section 191(2) below). Hence, sending something by email is valid--especially if the landlord replies to it which implicitly acknowledges the receipt. You could serve it by email and then ask the landlord a question---such as I need a move out inspection, where do I drop the keys, can I take the flooring and appliances (tongue and cheek--but likely to get an answer from the landlord).
DeleteIf you are serving the N9 now--with a valid 60 days--you can serve by email and regular mail and it will be valid (as we are in mid-month June and mail only adds five days until it is deemed delivered).
Good luck
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
Hi Michael, good morning:
ReplyDeleteI found your blog when I doing some research of eviction. sorry if what I post here is bothering you.
I am a landlord live in Ontario. I have question about tenants' signature of n9.
My tenants gave me a signed n9 in march 1 because the end of term is apr30,2019, they want to change a smaller house(because one of family member moving out), and signed termination day is May1, but I found this family didn't look for a another house except the son-law. I want to evict them, so I went to the board yesterday to submit n9, a staff has checked the signed n9 form that I brought, and told me the only question is the tenant signature on n9, if 3 people sign the lease agreement, it must to be the same 3 people sign n9, one signature isn't good enough, she didn't collect my n9.
The thing is my tenants they are a family, the father takes care of everything like the rent and the bills, and the father is the person always communicate with me, and told me contact him only not to contact his children or his wife. So the father signed n9 for me. My question is the n9 is signed by the father, the wife and one son-in-law who are signed the lease didn't sign n9, is that mean I can't submit n9 to evict this family? the other two who signed the lease, one is the son-in-law he told me he already signed new lease with other landlord and move out on apr30, his mother in law didn't contact me for a new lease, also other adults who are the children of the father, none of them contact me for staying, they always keep silence.
I really don't want to renew the lease with this family, they always keep skipping the rent and I have to ask rent every month in person, also they don't pay water bill the city transfer water bill to my property tax and I got pre-tax letter for that.
Can you give me advice how to fix it in order to do evict?
Thanks in advance!
Josephine
Dear Ms. Yao:
DeleteThe N9 is likely (technically invalid) with a May 1 termination date. The tenants notice should be for the last day of the term--not the first day of a term. The N9 (while a Notice to Terminate), should best be characterized as an Agreement to Terminate---meaning you accept the proposed date of May 1, 2019, and agree to it.
As for multiple persons signing, all the tenants signing, this is not something that should be decided at the counter at the LTB. I presume they raised it with you because you asked a question about it. My experience is not that the CSO is insistent on a particular format. They may point out an apparent error but will accept the application for filing if you insist. Having only one signature from multiple tenants on an N9 can be valid or it can be problematic. Circumstances matter. With some tenants already gone, having a Notice to Terminate from the remaining tenant in possession is entirely reasonable---and frankly, it is silly to require a notice from a tenant already out of possession as the Board can't bind that person in an Order anyway.
Lastly, please consider finding a lawyer or paralegal to represent you. From your question I have the sense that you don't have the clearest understanding of the Residential Tenancies Act. While the Board staff will do their best to help you, they are not there to offer you legal advice nor will they advocate your position for you. You might find that the cost of a paralegal or lawyer is well worth the time and aggravation you will avoid.
Michael K. E. Thiele
www.ottawalawyers.com
Hi, Michael,
ReplyDeleteI really appreciate your kind and quick reply!!
The problem you pointed it out is the first day of a term can't be a termination date, but the tenants moved in 29th, so we set each 29th is the first day of term, also 29th is the rent pay day each month.
in the month February doesn't have 29th, so he signed n9 on March.1,2019 and wrote termination date is May1,2019. so that we both believed it already meet the 60 days notice requirement. Actually, end of term is on April.28 2019, I gave the tenants extra 3 days until May.1, because they have small children in the family, I don't want to rash them.
I will try your advice to find a paralegal to help me deal with it!! Thanks again.
Hi Michael,
ReplyDeleteI have gone through many articles on your blog, but can't seem to find more details about my situation.
I have been renting my current apartment for 3+ years, and am on month-to-month basis. On May 1, I gave management office a signed N9 form to move out by June 30. Management acknowledged receiving my notice, and asked why I'm moving. I told them I accepted a job in a different city. I also asked in the same email if it's a possibility to let a friend take over my lease (I guess the legal term is "assign") if I hear of any interest, but I did not get a response. A day later, on May 2, a friend messaged me saying he's interested to take over my apartment at the current rent if that can be arranged. I said I would ask - thinking Management might reply to my email from the day before. Then came the weekend, and still nothing from Management. Then first thing on Monday morning, May 6, I went to Management office and asked if my friend can take over my lease. They said no (without knowing who this potential assignee is) because my lease has passed the 1yr mark. My friend can still apply to my unit, but it will be a brand new lease at the current market rate ($250+ higher than my rent). I read through RTA 95, and it does say the landlord has the option to refuse consent for assignment, just not arbitrarily or unreasonably. What is considered arbitrary or unreasonable? Is there anything I can do to help my friend get this unit at the same rent as me? My friend would not consider renting here otherwise.
Any help you can give me would be much appreciated!!
Thank you,
Emily
Hi Emily: Sorry to say, but you're out of luck on this one. The Landlord can effectively say "no" arbitrarily to your assignment request. The not "arbitrary or unreasonable" refusal applies when you're held to an existing term (i.e. the landlord is requiring you to honour your lease). The landlord can not arbitrarily refuse your proposed assignee and then still require you to pay and continue the tenancy.
DeleteIn your situation you are not being held to any continuing tenancy. The landlord can in fact say "no". Saying "no" because they want to re-rent at a higher rent is actually a valid and lawful reason to say no.
In this situation, your N9 doesn't actually come into play. Even if you were a sitting tenant (i.e. not a tenant who has terminated her lease through lawful Notice) you would not have a greater right to assign your tenancy. The landlord could say "no" in that instance as well.
Thanks for this great comment.
Michael K. E. Thiele
www.ottawalawyers.com
We have a lease at our current apartment that expires August 31. I told my landlord verbally that we would not be re-signing as we are moving out of the city. I had to sign my lease at the new place early (supply issues) and she suggested finding someone to rent the place as of August 1 and I told her that was a great idea to which she responded 'no promises but I will see if I can find someone'. She began showing the apartment to people. The first person it was shown to wanted it for September 1. I told him that we wanted to rent it as of August 1 and my landlord said that was not my call to make. She then showed the apartment to another person and said that she wanted to rent it from August 1 to them. I placed an ad to help her find someone to take over my lease on August 1 and sign for a year after that. She was impressed by all the attention my ad was getting and asked me to increase the price on my ad because she took the high interest as a sign that her price was too low. I sent her a message asking her whether she wanted me to refer people to her number and she then advised me that she had already received a deposit for the apartment as of September 1.
ReplyDeleteI spoke to someone and was told that by her accepting the deposit from the other person, she was effectively ending my lease. Is this correct?
I asked her to allow me to assign the place (wanted to check with her before doing it) and she said that assignment would cost $300.
When I asked her what the fee breakdown would be for a $300 assignment fee she said:
Administration and liability work. It’s not going to happen. I’m not reassigning a lease for your unit for one month
I have it leased Sept 1
Your only option for August is a sublet with my permission
What would you do at this point?
Hi: The "what would you do" question is always tempting to answer it is one that must be resisted. It doesn't matter what I would do. What would you do knowing a little bit more about the law?
DeleteAs I comment, I will assume that the statements attributed to the landlord can be proven (i.e. they are in writing or she will admit them).
It seems to me that her statement about the $300 assignment fee or at least her explanation for the breakdown is contrary to the RTA. See section 95(7) where the fee allowed is limited to reasonable and incurred out of pocket expenses. Couple that statement with "I'm not assigning a lease for your unit for one month" and I think you have a refusal to an assignment. You may respond to a refusal to assign by giving a Notice to Terminate (see s. 95 & 96). This, I think, would get you out of the lease sooner than August 31.
What is a bit unusual in your case is whether you terminated your lease by verbally telling your landlord that you were moving out of the city and not re-signing. Technically, this is not the written notice required from a tenant under the RTA. However, it is not uncommon for tenancies to be ended this way even though some caselaw suggests that this is not a proper termination (i.e. possibly the tenancy continues).
On the assumption that the tenancy is terminated, I think that the most you could assign is the balance of the lease. The definition of a sub-let does not work if you are not returning to the unit after the month of the sub-let.
You mention someone telling you that the Landlord accepting a deposit ends your lease. This can not be true. Your landlord has no power to terminate your lease in the current circumstances. It is only you, through notice to the landlord, who can terminate the lease. The landlord, accepting a deposit from someone else is banking (gambling) that you are leaving. Without a proper Notice of Termination from you (a Form N9), and without a clear termination otherwise, you may not have terminated your lease and hence may not be required to vacate at the end of the fixed term.
You have to appreciate that the technical lack of a formal N9 and the very common practice of terminating orally or by email or by text makes the idea of the tenancy not being terminated an unsettling legal outcome. To address this, I advise my landlord clients to always ask a tenant to deliver a Form N9 when they orally, text, or email, that they are ending the tenancy. Anything less is fraught with potential difficulty.
The "potential difficulty" tends to arise when one of the parties to the lease thinks the other is not being fair. Sort of like your situation. Here, your landlord has opportunities to get a new tenant sooner and therefore save you an entire month's rent (because she can't double dip). Because the landlord is being greedy and then obstinate about assigning and making up seemingly illegal "fees" it has become a contest as opposed to something collaborative. It does seem to me that based on what you explain, you were seeking to be collaborative with the landlord and now she is taking advantage without giving you anything at all. That is unfortunate.
There are some who would simply say that your lease runs to the end of August and that you gave notice for the end of August. What are you complaining about? That is a way to look at it and certainly the idea of renting it out early is something that came from the landlord. Perhaps you weren't even thinking about the possibility. What is unfair about this then?
DeleteI'm not sure if you are already out of the unit and are just running the clock (i.e. August 1 was good because the unit is already vacant?), but if that is the case you can see with hindsight that instead of terminating you had a better option (in this rental market) to simply ask to assign. That would have terminated the lease sooner on the assumption that your landlord would know the value of the unit is higher than your current rent.
Good luck with this and I hope you figure out, in this instance, how to terminate sooner.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMe along with a friend were leasing a detached house whose term comes to an end on June 30,2019. my friend sent an email in mid of April on our behalf that we are not looking to renew the lease at the end of term being June 30th, 2019. We were unaware about the N9 form as our previous owner didn't require us to do any such thing.
He didnot respond to our email whether he agrees or if we need to fill a form or anything.
He showed up on June 2nd asking for rent. We told him that we had informed we are not renewing and cashing in our last month rent. But he is asking us now that we need to pay rent and a new notice for the period of June and August.
He hasn't even provided us with rent receipts for the term we have stayed even though we have repeatedly asked for it. And now also looking to charge us with fees for Lawn maintenance which was not mentioned on the lease nor orally. He says he hired someone to do it and so we just came to know that in our absence someone was entering the backyard without consent. We were unaware of who he was as we never saw or met the guy as we were working during the day. He never mentioned the cost and now wants us to pay for it.
The property had a detached Garage which was not part of the lease however the driveway was where he would park and use the garage when he needed.
Would appreciate your advice on what we can do. Do we need to fill out the N9 form and give notice again till August even though our lease expires on June 30 and we have already informed in April that we are not renewing? also do we have to pay the charges for lawn maintenance if it is not mentioned on the lease? Also is he liable to give us rent receipts?
Hi: I think the biggest question is whether your notice, sent by email in April is a valid termination of your tenancy for June 30, 2019. Does not having used the N9 form make the email notice invalid? Arguably, a notice by email is indeed valid so long as it contains all of the information that would have otherwise been contained in the N9 Form. Do a comparison and see if the essential elements of the N9 Form information are contained in the email.
DeleteYou don't say whether your landlord is refusing to acknowledge the email notice. Did he just not see the email? Or is he demanding a "proper" notice Form N9?
How to proceed depends on what your intentions are with respect to moving out. If you are able to stay until the end of August then you could serve a Form N9 with a proper termination date and there would be no problem. Assuming that you have made other arrangements for the beginning of July, are you moving out regardless?
If you are moving out regardless, I would contemplate proceeding as follows: 1) prepare an N9 form with a termination date of June 30, 2019 and serve it on the landlord. 2) move out as planned. 3) pay nothing further 4) confirm to the landlord that you are moving out and that he should be looking to re-rent.
The above, I think, leaves open the argument that your tenancy is properly terminated by the email of April 2019. If it is valid then moving out at the end of June is perfectly consistent with your notice and there is no further liability. If the notice contains the essential details of an N9 then I think there is a good chance of it being valid. Even if it is not valid, it most certainly will have triggered a mitigation obligation on the part of the landlord meaning he should have been advertising and looking for new tenants since the email. (I presume you emailed because this is the established method of communication?).
The new N9 form I am suggesting to you, terminating for June 30 (yes, June 30--not Aug 31), is technically invalid. However, I recommend it because I don't want you serving an N9 that suggests an acknowledgement that your tenancy continues until Aug 31. The N9 with a short notice date is technically invalid and void. However, it still has value as an invalid Notice of Termination. This is because an invalid notice of termination from a tenant (assuming it is determined to be invalid) is by law extended to the first lawful termination date for the purposes of calculating rent arrears/rents owing.
The value in serving the N9 (with the wrong date), is that it at least puts in place a Notice that terminates your tenancy "sooner" than later. Without an N9 your tenancy would be terminated, by law, for the purposes of rent arrears calculation to the first available termination date from the date that your landlord knew or should have known that you have actually vacated or abandoned the rental unit.
With respect to the maintenance and yard work. This is a nonsense claim and not properly charged to you. I say this based on what you've written here. Not in the lease, not orally, agreed upon. Plain nonsense. The RTA is clear that maintenance is the landlord's obligation.
DeleteThe claim for lawn maintenance expenses is a warning! Your landlord is sneaky. Expect him to try to extract charges for damage, replacement costs, cleaning costs, for your unit after you have vacated. Make sure to ask him via email--several times--to come do a move out inspection before you leave. Get a check list and ask him to confirm in writing that the unit is "fine". You might want to record that interaction. If he fails to do the move out inspection, confirm it in writing, confirm that he didn't show, invite him to come again. This correspondence will be useful if he sues you, after you vacate, for damage to the unit.
Lastly, ensure that you take lots of pictures, video of the entire rental unit. From every wall, floor, ceiling, appliance (inside and out) and every nook and cranny. Keep this evidence for at least 2 years from the date you move out (upload it to the cloud and forget about it). I've seen many cases where landlords make claims up to two years after a tenant vacates. Often, the tenant has zero evidence of the condition of the unit and the landlord then has the advantage. Take away that advantage by having evidence! I don't normally recommend such drastic action but I am always suspicion of a landlord like yours who demands money for maintenance on an ambush basis. There is no integrity in that kind of ambush--so be careful.
Good luck to you
Michael K. E. Thiele
www.ottawalawyers.com
Hi Micheal,
ReplyDeleteCould you please help with my question about giving termination notice to my landlord please.
I rented a condo in North York with a one year lease. The landlord did not provide his address in the lease and has not selected the option to receive notices by email. I have the landlord's email and phone number but he usually ignores it unless it is for something he needs.
I am worried that at the time I need to give notice to end tenancy after the one year is over, he will ignore my request for the mailing address to where I need to send the notice of termination.
In case he does ignores my request for mailing address, how can I provide the notice and vacate? I would appreciate any advice you can provide on this. Thank you!
John
Hi John:
DeleteThe Residential Tenancies Act (RTA) requires the landlord to provide you with an address for service of legal documents (such as a Notice of Termination). This is set out in section 12 of the RTA. It seems, from what you say, that the landlord is in breach of this obligation. How do you compel compliance? The answer may lie in section 12 as well, as the failure by the landlord to provide an address for service suspends the obligation to pay rent. Presumably, if you withhold the rent (note it delays the obligation to pay it does not waive the rent obligation) your landlord would be in touch demanding the rent and you could demand his compliance with section 12. I would be inclined to send him an email. Point out section 12, demand his address for service, and advise that until you have the information required you will suspend payment of rent as the law permits you to do.
Give that a whirl and see what happens!
Here, by the way, is a link that you can cut and paste into your browser (sorry, Blogger does not provide for live links in replies to comments): https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=resident&autocompletePos=1#sec12subsec1
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteThank you so much for your reply.
Your advice is very good, but unfortunately upon the landlord's request I have already given post dated cheques till the end of the lease. Would it be okay to call my bank and stop payment on those cheques?
Thank you again for replying to my question. You have a great day ahead!
Sincerely,
John
HI John: As you've likely seen elsewhere in this blog, requiring a tenant to provide post dated cheques is not permitted under the Residential Tenancies Act. However, it is lawful to provide them voluntarily. That having been done you can still revoke your consent to the post dated cheques and you should at least do this, in writing, prior to stopping payment on the cheques at your bank.
DeleteWrite to your landlord, advise that you are revoking the post dated cheques and ask him to return them to you. Further, demand the information you were seeking and further advise that you will with-hold rent, as the law permits, until you are provided with the required information. Lastly, advise him that the post-dated cheques, if not returned, will have a stop payment placed on them.
Note that the placing a stop payment on each cheque can be fairly expensive. I would start with stopping payment on only the first cheque (presuming a non-satisfactory response from the landlord). The balance of the cheques you can demand returned at an LTB hearing or stop payment as needed.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you in advance for your reply. I will keep this short. Am I able to revoke/cancel my Notice of Termination? My application for a new unit has been denied and I feel it is too late for me to apply elsewhere. I don't want to be forced out of my current place. Please advise.
Hi: I'm presuming that you served an N9 (Tenant's Notice to Terminate). Further, I'll presume that the N9 is valid with respect to the technical requirements under the Residential Tenancies Act. In such circumstances, there is no right under the Residential Tenancies Act to rescind the N9. Your notice of termination had the effect of terminating the tenancy as of the stipulated date. To change this (in my opinion) you need the consent of the landlord. Certainly, there is no specific provision in the Residential Tenancies Act that allows a tenant to revoke their Notice of Termination.
DeleteThis question gets a little more interesting if you did not use the N9 form, or the N9 Form is missing information or not technically in compliance with the law, or you gave notice by email, letter or some other way. While the Notice might be valid, there is certainly an argument to make that your notice was invalid. There are a number of cases where the Board and the Court has held that "the obligations respecting notices of termination apply as strictly to tenants' notices as they do to landlords' notices" [George V Apartments Ltd. v. Cobb, [2002]O.J. 5918 (Ont. Div. Ct.)] If your notice is invalid then the termination does not take effect.
If you simply do not move, or advise the landlord that you are revoking the N9, the landlord would have to file an application to evict you if you did not move out in accordance with your notice. If they don't file an application within the required time (60 days) you would be deemed a tenant again in the premises.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI got a N9 form electronically, filled it and sent it via email respecting the 2 months required notice period. I have heard over and over that emails don't count as proper means for notice.
However, in my case i email the N9 form itself. Is this considered proper notice?
Thanks in advance
Hi: This is more difficult to answer than you might think. The first place to start is to look at your standard form lease and in particular section 3. There you will see the question of whether or not you agree to both landlord and tenant serving each other documents by email. If checked "yes" you might think that this means you can send the N9 by email. However, section 3 of the lease also directs you to the Rules of practice as email service needs to comply with the Rules. If you actually go to the Rules of practice you will find that email service is prohibited for service of a Notice of Termination. That would suggest that serving an N9 by email is not valid service. That being said, what if you send the N9 by email and the landlord acknowledges receipt of the N9 and the contents of it. The key is acknowledging the "contents"--something like "yes, I got your N9 and that you are terminating for XX date" or something similar that confirms his understanding of the contents. If you have that, then the service of the N9 by email can be deemed valid under section 191(2) of the Residential Tenancies Act.
DeleteSo, the short answer. Service of an N9 is not likely valid by email so you should serve it by mail or personally or other recognized method. If you have already served it by email and to serve a new notice would stretch your termination date too far--then you could try to save your service by email by relying on section 191(2) if you can get your landlord to acknowledge that he became aware of the contents on the day that you emailed it (or at least 60 days before the termination date at end of term).
Hope that helps
Michael K. E. Thiele
Hello Michael,
ReplyDeleteI am in a 1 year fixed term lease which is joined with my roommate ending on September 30th, 2020. Both of us will be leaving the apartment permanently before the end of lease. So, we have asked to sublet or assign the lease or terminate the tenancy. The landlords said no to all of those options through email. I have now delivered an N9 to them one signed and filled out by me and one signed and filled out by my roommate giving them 30 days notice.
My questions are, was that the final step I needed to take? I have not heard from them in 3 days since personally delivering the N9. Will I be able to put a stop payment or ask for my remaining postdated cheques back? Will I be able to get my last months rent (they've already cashed it) back?
Any help would be greatly appreciated!
Thanks in advance.
Hi:
DeleteWhile it may seem odd, there is indeed nothing else to do. The delivery of the Notice of Termination under section 96 RTA ends the tenancy. You are not required (or able to) to file an application to validate or confirm the termination.
It would certainly be expected and professional for the landlord to respond to your N9 and communication. The landlord should confirm receipt of the N9, proceed to schedule the move out inspection, do the final adjustments for rent etc., and make arrangements for scheduling your move out if it involves elevators "on service" etc.. As the landlord isn't getting back to you, you should email the landlord and deal with these issues yourself. Whether or not the landlord does a move out inspection you will want to ask the landlord to do one (that is documented and signed off on with you getting a copy). You should revoke the authority to cash the post dated cheques and ask to have them returned. If the "office" is nearby you can stop in to pick up the cheques. If you're banking plan allows you to put a stop payment on the cheques without a hefty service charge then you can do that too. Consider your moving out arrangments as well, perhaps get the superintendent on side for access to elevators, doors, garbage room, etc. (if applicable).
You are entitled to the refunds you describe. If the landlord does not voluntarily pay then you will need to file an application with the Landlord and Tenant Board. If you are "counting" on the money and the landlord doesn't pay voluntarily you will need to make other arrangements as the hearing process at the LTB will take a fair amount of time.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com