Being short on the rent can happen. This article speaks to options that Ontario tenants have when they are unable to pay their rent in full or on time.
When I have tenant clients who are facing an application for termination for non-payment of rent there are a series of questions that have to be asked before becoming too concerned about dealing with the eviction. It is worthwhile for anyone who is having trouble paying the rent to answer these questions:
1) Why is the rent late? Is it because there is not enough income, unexpected bills, poor spending control, the rent is too high, roommate moved out, illness, loss of job, hours at work cut, on strike?
2) Can the reason that the rent is late be fixed so that the tenant is able to pay the future rents in full and on time? If not, is there a period of time over which the problem can be fixed? What is the timeline?
3) Is there enough income coming in that the rent can be paid in full on an ongoing basis and a small amount can be paid towards the arrears?
4) Is there a family member, friend, or someone who can and who is willing to help out?
5) How long is/was the tenancy and are there any special circumstances.
RENT ARREARS: NOT THE END OF THE WORLD
Being in arrears of rent is not a tragic situation. Getting evicted is not the obvious outcome and the likelihood is that you can indeed preserve your tenancy---i.e. you won't be evicted--depending on how you answered the questions above.
The Residential Tenancies Act is the law that governs landlord and tenant relationships in Ontario. As a provincial statute it is a law that takes precedence over any contract or lease document that a tenant may have signed. In fact, it doesn't matter what a tenant agrees to, in writing or not, if that agreement violates the provisions of the RTA then the agreement is void. The law does not allow a residential landlord and tenant to make just any deal that they wish. This includes agreements or terms that appear to be reasonable and fair to both parties. If the deal breaches the RTA--it is void---regardless of the perceived fairness of the arrangment.
The structure of the RTA matters--and its precedence over lease terms matters--as the RTA itself gives tenants many many chances to pay rent arrears, to make deals, and to seek relief from eviction from the landlord and tenant board. In fact, the structure of the RTA is such that the tenant gets the chances--whether the landlord likes it or not---and the hearing process is such that the law requires the adjudicator (judge at the Landlord and Tenant Board) to consider alternatives to eviction (called section 83 relief). As a tenant in a rent arrears situation you can access these chances and alternatives to eviction simply by participating in the process that the Landlord needs to follow. At some point in going through the process you will find yourself standing in front of an adjudicator--and depending on the answers to the questions I've set out above--you can likely save your tenancy.
At this point, I should make it clear to tenants that a landlord is NOT allowed to simply change the locks. A landlord is not allowed to enter your unit and evict you. A landlord is not permitted to demand that you move by a certain time and date and enforce that demand himself or through friends or acquaintances. A landlord does not have the right to remove a tenant who is covered by the Residential Tenancies Act from the rental unit. In Ontario, the only person who can physically evict a tenant from a rental unit is a Court Enforcement Officer--known as the Sheriff---and the Sheriff will only do that based on a valid Order from the Ontario Landlord and Tenant Board or the Superior Court of Justice. Landlord's have no self help right to kick out a tenant who has not paid the rent (regardless of what any lease or agreement to the contrary might say).
WHAT IS THE LEGAL PROCESS and how should a tenant respond to the steps?
When a tenant is in arrears of rent they should expect that a landlord might call to ask for the rent. In my experience it is best to be honest and straightforward with the landlord and advise truthfully about the reason for late payment. Often enough, a landlord will accept the explanation and make a deal to take care of the rent arrears. If this can be done an awful lot of anxiety and stress can be avoided. Note that you can only make a deal if you take the landlord's call---don't dodge the landlord or avoid him in the hopes that he will "forget" about the rent that you owe.
If the landlord does not call to talk to the tenant about the rent arrears or is unwilling to make a deal on acceptable terms, then the landlord will have to proceed with the legal way of terminating the tenancy and evicting the tenant. This process will take a fairly long time and the tenant will indeed get several opportunities to pay the rent and maintain the tenancy.
The first legal document that a tenant will get is a form N4 (Notice of Termination for Non-Payment of Rent). Note I said "legal document". Letters, notes, texts, emails demanding the rent and threatening eviction if the rent is not paid are not "legal" documents. The Form N4 is a form from the Ontario Landlord and Tenant Board and only that form can be used to terminate and evict a tenant for non-payment of rent.
As a tenant, when you receive a Notice of Termination (like the N4) take a look at the notes that are at the end of the form. The print is small but the notes explain your rights very clearly and demonstrate that the big bold letters and boxes on the form don't mean exactly what you think they mean. The biggest example of this is the box that says "TERMINATION DATE". When you see the date in this box you will think that you need to move out by that date. In fact, that is not true. If you pay the rent by that date then the Notice of Termination is void. That date is a minimum of 14 days after you receive the Notice of Termination (and if the time period is shorter the notice is invalid).
If you are unable to pay the rent by the Termination date then you still do not have to move out. You can require the landlord to file an application with the Landlord and Tenant Board. You do this by not moving out of the apartment. If you refuse to move out then the only legal way for the Landlord to get the unit back is to apply for a hearing date with the Board.
Applying to the landlord and tenant board will take another week or two or three before the case comes on for hearing. If at any time before the hearing you come up with all of the rent arrears (plus the $170 application fee) then it is guaranteed that at the hearing the adjudicator will dismiss the application and allow your tenancy to continue (because you have paid all of the rent and the costs). Sometimes this works out because the passage of time between getting the N4 (waiting 14 days) and then another week or two passing before the hearing allows the tenant enough time to come up with the rent arrears.
If the tenant is unable to come up with all of the rent arrears before the hearing then it is worthwhile for the tenant to attend the hearing. At the hearing, the adjudicator will ask what the rent arrears are and establish what amounts are owing. Often enough the tenant is in a position to agree what is owed. The adjudicator, after determining what is owed, will begin to ask the tenant questions very similar to the ones I've set out above. The adjudicator will want to know whether the tenant wishes to continue the tenancy, the reason for the rent arrears, whether the reason for the arrears arising has been fixed, whether ongoing rent can be paid in full and on time, whether the tenant can offer a repayment plan on a reasonable time line, and whether there are circumstances that exist that should result in the adjudicator exercising his or her discretion to impose a deal on the landlord that allows the tenant to maintain the tenancy while still protecting the landlord's ongoing right to rent.
Even if the tenant has no decent explanation--no acceptable plan---and can't possibly ever pay the rent arrears and is unlikely to be able to pay future rent as it becomes due--the Landlord and Tenant Board will still issue an order giving the tenant 11 days to pay all of the rent arrears plus the $170 application fee and thereby void the eviction order. If the tenant does not pay the rent within those 11 days, then on the 12th day the landlord may go to the sheriff to file the eviction order. The Sheriff will give the tenant a minimum of 7 more days before returning to evict. If during the period that the sheriff has given notice to the tenant the tenant pays the rent arrears and costs then the eviction order is voided again and the tenant can stay (this can only be done once during a tenancy).
The point of the foregoing timeline is highlight how many opportunities a tenant is given to pay the rent arrears and maintain the tenancy---even when it is clear that payment is unlikely or impossible.
EXERCISE OF DISCRETION (section 83)
Let us presume for a moment that the answers to the questions I laid out were such that it was clear that the reason for the rent arrears was a one time event--an unfortunate occurrence. For example--the cash rent was stolen before it was handed over to the landlord. Or, a roommate moved out. Or, the tenant lost a month's pay because they broke a bone and couldn't work. All of these explanations result in a temporary inability to pay the rent. The rent arrears happened because the tenant lost the ability to pay the rent for a short period of time. However, the tenant earns new money to replace the stolen cash, the tenant gets a new roommate, the bone healed and the tenant returned to work, and therefore the things that caused the rent arrears are fixed.
The "fix" allows the tenant to pay future rent in full or on time. Or, the "fix" allows the tenant to pay most of the future rent in full and all of the rent in full in a month or two. The point is that the "fix" sets out a plan that shows how a tenant can get into a position to pay all of the ongoing rent in the future.
An adjudicator needs to see--or have it explained to him or her by the tenant, how the future rent is going to be paid. Once the adjudicator is satisfied that future rent is going to be paid and that the "fix" or the "plan" is a reasonable one--then the adjudicator will turn their minds to the rent arrears that built up while the tenant was having the problem (i.e. while the bone was broken, when the roommate left, when the cash was stolen).
The adjudicator will not forgive the rent arrears and will indeed expect these arrears to be paid to the landlord. However, the adjudicator will be very open to the idea of an affordable payment plan whereby the tenant pays off the arrears over time. It is certainly true that this "payment plan" often makes landlords very upset. However, the "payment plan" is indeed a very logical thing to allow. The landlord is already out the money. Nothing can force a tenant to pay the money any faster than in a way that they can afford. Nothing that the Board can order will force a repayment if the tenant doesn't have the money. Evicting the tenant--for the rent arrears---will not result in the landlord getting the money any faster. Therefore, and so long as the tenant is in a position to pay ongoing rent in full, and on time, then it makes sense to grant the tenant a reasonable repayment plan for any sum of rent arrears. The repayment plan can be anything that makes sense within the tenant's budget.
To propose a payment plan, a tenant should be ready to put the details of their financial life on the table. Show paystubs, benefit stubs, and the sources of income. Show expenses and the things that the income is necessarily spent on. Show what the surplus is, or if there is no surplus of income show where you could cut back in the budget to pay the landlord an amount towards the rent arrears. Where a tenant produces a clear picture of their income, provides confirmation of income sources, and demonstrates what amount can reasonably be paid from the budget, it is my experience that for the most part, the Board will allow the tenancy to be maintained so long as the payment plan is followed.
Most payment plans of rent arrears are conditional on future rents being paid in full and on time. It is most important to pay ongoing rent--in full. The reason for this is that the Board, in exercising its discretion to maintain your tenancy and allowing you to remain in your apartment, will impose a section 78 condition on your tenancy. Section 78 allows the landlord to apply to the Board in the event that you breach the conditional order, without notice to you and obtain a without notice eviction order.
If a tenant has failed to make a payment towards the arrears as required by the discretionary order not all is lost. Even though a landlord may apply under section 78 for an eviction order, a tenant may set aside that eviction order on motion and again seek the exercise of discretion depending on the reasons for the breach of the eviction Order. Note however, that getting the exercise of discretion (relief) repeatedly becomes increasingly difficult as the failure to comply with an order arouses a suspicion that the tenant simply can not afford the rental unit.
THE THEME OF THE LEGISLATION
If you are a tenant who is in rent arrears, I hope that you have taken from this article the notion that being in arrears of rent is not a catastrophe. Losing your home, being evicted, is not the automatic consequence of falling behind in the rent. If the rent arrears are the result of an unexpected event, a tragedy, an illness, a problem of some kind, the RTA has built in chances and opportunities for tenants to recover from these problems. Ultimately, the RTA builds in compassion and understanding from adjudicators who are directed by law to consider alternatives to termination and eviction. Falling behind in the rent is not an insurmountable problem if the issues that lead to the arrears can be fixed and a viable plan is created that demonstrates that future rent can be paid and that arrears will be paid in a structured manner.
HOPELESS CASES
Sometimes, the reason for the rent arrears arises from a problem that can not be fixed. Sometimes a tenant's income will fall, or the circumstances are such that paying the future rent is simply not realistic. As indicated earlier in this article, the Board will still grant time to pay and the process of going to the sheriff will add more time to the ultimate eviction. Even in these circumstances, though, if the reasons are sufficient, it is worthwhile to participate in the proceeding and explain what is going on to the adjudicator. A tenant can ask for more time, or delayed eviction, or try to make a deal premised on partial payments or an indication of an honourable intention to pay the debt at a future time. Many landlords will agree, sometimes with the urging of an adjudicator to agree to a timeline that is least traumatic to the tenant--or the tenant's children---and allow an orderly end to a tenancy that simply can not continue.
Michael K. E. Thiele
QTMG LLP
Ottawa Lawyers
Landlord and Tenant Law questions answered for tenants and landlords by Ottawa lawyer Michael Thiele.
Monday, 9 June 2014
96 comments:
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.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
How about considering the landlord - I'm not talking about a corporation, but someone who has a duplex, triplex, etc. The landlord is dealing in good faith and the tenant is taking advantage of the rent review laws. Not all landlords are slum lords running flop houses and trying to blackmail the tenant into paying the rent that is due. Most small landlords have to pay mortgages (banks are none to forgiving of excuses) and pay the upkeep and bills. Please take all situations into consideration before you assume that all landlords are out to get their tenants and that maybe the landlord is the one who is being used.
ReplyDeleteHi: I hear your frustration--and I've heard a great many landlord's express that same frustration in less polite terms than you just did. This blog article was written for the tenant who is in a tough spot and unable to pay rent or who is behind in rent. If you are a landlord or know a small landlord then I'd urge you to read this article again and see the options that are open to a tenant who is behind in rent. Whether you agree with it or not--this is the current law in Ontario and landlord's need to adjust their business model to take into account what a tenant can do or ask the Landlord and Tenant Board to do for them.
DeleteMy role as a lawyer is not to be an apologist for the law. It is what it is. I represent both tenants and landlords and it is knowing how to apply the facts to the law--regardless of one's own philosophical leaning--that leads to success. Take a look at the article just before this one titled " Small Landlords: What to do when the rent is late". You might find the thrust of that article more to your liking.
Michael K. E. Thiele
This is a really good article. Sometimes the tenants are not able to pay the rent because of some genuine reason. I have been a lawyer at a litigation law firm for years and I have seen landlords coming to file cases against their tenants just because they failed to pay the rent for a month. I always advise them to give the tenants some time and wait for at least 3 months before they file a case.
ReplyDeleteIf the tenant is given time after a mount has passed, where does that leaves the landlord for mortgage payment for that month? Not all who rents a property can afford to pay two mortgages
DeleteHi: This blog isn't about the policy basis for doing one thing or the other. The legal fact is that tenants are given a significant amount of time to pay rent, rent arrears, and to save their tenancy long after rent was due. The "answer" to your question has to be that the law isn't concerned about the landlord being able to pay the mortgage. The answer is that a landlord should not go into the landlord business if they have so little cashflow that one tenant can put them into a mortgage default position. A landlord's business plan needs to take into account the possibility of non-payment of rent, damaged rental units, and all the rest that comes with the business of being a landlord. The key is to understand the law, know the rights and obligations of both landlords and tenants and plan accordingly.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
What if your just renting a room from ppl already living in house are associating with criminals and acts and they threaten you if you say sword. What can I do?
DeleteHi: If you are renting a room from people living in the house you are either renting from the tenants or the owner---either way, you will not have rights under the Residential Tenancies Act (if you're sharing kitchen and/or bathroom with owner). Because you have no RTA protection there is very little you can do. If the living circumstances are intolerable you should consider finding a new place to live.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi, what if the tenant lost their job, and is currently looking for work but has no income? Thanks
ReplyDeleteHi Daniel: It is not unusual for a tenant to lose their job and hence have the ability to pay rent taken away. What hopefully happens is that the tenant finds a job, receives EI, borrows money from family while looking for a new job. The landlord and tenant Board, once a hearing is scheduled for eviction for non-payment of rent, would likely give the tenant a reasonable payment plan for rent arrears so long as the tenant is able to pay ongoing rent as it becomes due. If the tenant is unable to pay ongoing rent as it comes due it is likely that the tenancy will be terminated and the tenant evicted.
DeleteGood luck
Michael K. E. Thiele
Hello: Following Daniel's query and your response, if the tenant is evicted, can rent arrears still be collected? Is there any way to enforce payment of rent arrears?
DeleteI was ordered to pay my rent, to the LTB. How do I do this???
ReplyDeleteHi: It has been a few years since I've had to do this so my procedures may be a little out of date. It will be worthwhile for you to head over to the Landlord and Tenant Board. Bring the amount you have been ordered to pay into the Board in a guaranteed form (cash is best if you've comfortable carrying that amount). In the past, the process has been that the Board fills out a deposit slip for you and you take that deposit slip to a bank they direct you to. You deposit the cash or certified cheque (the funds need to be in a guaranteed form). The bank stamps the slip and you then return the slip to the Board office. That's the way it worked for the longest time. Perhaps procedures have been updated so either go to the Board and ask or call the 1-888 number on the LTB website and ask them there. If you live in a smaller centre, without an LTB office you can ask them how to make the deposit happen.
DeleteGood luck
Michael K. E. Thiele
After missing two monthly rent payments, I contacted my tenant who informed me that he had a reduction in work hours and was having financial difficulty that was expected to be temporary. He advised he would pay all arrears in a series of small payments over a three month period. He paid the next two month's rental fees in full, but did not make any payment towards the arrears. Then, despite having regained full time employment, he stopped paying rent all together. I have not been able to reach him by phone, email, text or in person.
ReplyDeleteAfter six months, and $14,000 more in debt, I cannot afford to continue carrying this tenant's costs. I plan to apply to the LTB for eviction and payment of arrears; however, am a new landlord (who tried to give the tenant the benefit of doubt and be understanding to circumstance) and unsure of the process. Specifically, if an order is made to repay arrears with or without eviction, how is the order enforced? If the tenant does not pay, what options are available to recoup amounts owed?
Also, do I need to submit my application to the LTB in the city in which the rental property is located?
Grateful for any information to assist.
Hi: You should follow the process that flows from serving a Form N4 (Notice of Termination for Non-Payment of Rent). That has a very specific timeline to follow. The tenant will get another two weeks out of you before you can file with the Board. The form you use with the Board is the L1 Form. As you are a new landlord I can't emphasize enough the importance of being exceedingly meticulous in your forms---very small mistakes--seemingly very minor, can be fatal to your application. There is zero flexibility in the Form N4--if there is an error it is void.
DeleteProceed via the N4 as this is the only way to get eviction. If you apply only for the arrears, which is possible in a Form L9, you will not be able to evict the tenant for the arrears covered by the L9.
You enforce the eviction part of the order through the Court Enforcement Office at the Courthouse in the area in which the rental unit is located. The financial part of the Order may be enforced in the jurisdiction in which the debtor has assets or a job (in Ontario). If the tenant works in a jurisdiction different from where the Order is from you will have to work with the Court Enforcement Office where the debtor's assets or employment is. You can explore all of the details with the staff at the Small Claims Court after you get your Landlord and Tenant Board Order.
You can file your application by fax and online filing is also becoming a reality--hence you do not have to travel specifically to the Landlord and Tenant Board office where the rental unit is located. I've never tried, but presumably any Board office could accept your application.
Good luck
Michael K. E. Thiele
Hi, I'm just wondering if this applies to ontario but in the states they give the tenant up to 5 days to pay the rent after the 1st. Does this apply here as well?
ReplyDeleteHi: For the most part the answer is no. If rent is due on the first, then it is due on the first and there is no grace period for that payment to be made. Landlord's and tenants could agree to a grace period but that would have to be consensual. While there is no right to a grace period, there is effectively a grace period if a landlord decides that the late payment is something they are prepared to take action about. A landlord may serve a tenant with a Notice of Termination for Non-Payment of Rent starting the day after rent is due. That Notice of Termination gives the tenant a 14 day grace period (from the date that it is served) to pay the rent. The landlord may not do anything during this time period to evict. If the tenant pays the rent within the 14 days the Notice of Termination is void.
DeleteThis is very useful and relieving for tenants who run into money problems from time to time. It also causes some serious upset for some smaller landlords who need the cashflow of the rent to pay bills. Take note that if a tenant does pay rent late persistently (in my view that means 5 or more times in 12 months), the landlord may serve a Notice of Termination for Persistent Late Payment of Rent. This terminates the tenancy at the end of term or on 60 days notice. The Landlord and Tenant Board, in response to an application like this will typically preserve the tenancy on the condition that the tenant pay the rent, in full and on time for the next 12 months.
Michael K. E. Thiele
www.ottawalawyers.com
Hello there....I always pay my rent and on time. But this month I messed up ...I was not hurt or loss my job I just made a poor judgment. I played most but not all. See I'm on odsp and 1500 gets sent to my landlords from my odsp then when I get my govement cheuq letter in the month I pay the 800 to my landlords making my rent 2300 a month. I did not pay the 800 this month. What is going to happen since I didn't pay cut my poor judgment?? I will pay them back it will just take a while since I don't make a lot. Thanks
ReplyDeleteHi: Be upfront with your landlord and don't dodge the issue. Advise the landlord that you are unable to pay the extra $800. Then propose a payment plan to the landlord. The landlord may choose to accept the payment plan--or not. However, make the payments you propose in any event. If the landlord applies to the Landlord and Tenant Board to evict you you can ask the adjudicator to give you time to pay in accordance with your payment plan. If the payment plan you propose is reasonable and the adjudicator orders you to pay in accordance with the plan that you have been already following then you can argue that you should not have to pay the landlord's $170 filing fee as it was not reasonable for the landlord to incur that expense.
DeleteBase you proposed payment plan on your budget and be forthcoming with the landlord about your ability to pay. If you can get the $800 paid off within 12 months that would be considered a reasonable payment plan--while all the time paying the future rent in full and on time.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Someone told me that if I pay most of what I owe to my landlord then it should void the sheriff from coming to change my locks. I jus need to know if this is true?
ReplyDeleteHi Chantel: Sorry, this is not true. If there is an order from the Ontario Landlord and Tenant Board then look closely at the paragraphs in the Order. The order very clearly states what is needed to void the eviction order. There is no other short-cut that legally stops the sheriff.
DeleteGood luck
Michael K. E. Thiele
What about cases outside of the RTA? Like a student residence? Can the manager of the building simply change locks and cut off your Internet for late rent?
ReplyDeleteHi: If a tenancy is not covered by the Residential Tenancies Act then you would need to find what law applies to that relationship. In most cases you will find that the relationship is governed by the contract. The contract will normally contemplate non-payment issues, behavior issues etc., and will set out what either party may do in various contemplated scenarios. If you are asking about a specific tenancy take a look at the rental agreement for guidance as to what the parties agreed to.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
What happens if a tenant does not pay rent but then moves out? What happens to the due rent? what can the landlord due? what is the process?
ReplyDeleteHi: A landlord may only commence an application against a tenant at the Landlord and Tenant Board if the tenant is in occupation of the rental unit. If the tenant has moved out before an application to the landlord and tenant board has been started then the landlord's only option to get an order/judgment is to file a claim through the small claims court (if the amount is for $25,000 or less). The Small Claims Court rules and the process for pursuing a claim is set out on the Ontario Small Claims Court website (http://www.ontariocourtforms.on.ca/english/scc)
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello,
ReplyDeleteI'm on a 5 year contract with the current warehouse that I'm renting. We're in our second year, and up until december we never missed a payment, some stuff got mixed up, we agreed to pay december and january together on january. Though there was sufficient money for both rents, they were able to take out one payment and not the one for january. I left a msg to my landlord the next day, advised her that she can take out january's payment as well, or if she likes i can get a money order. Just found out this morning that my landlord changed the locks for the warehouse(private/commercial) and is now asking for 3 month's payment in advance. Even though initially we paid 4 months deposit. I just cant wrap my mind around the fact that she can change the locks just like that
Hi Aydan: Your question relates to a commercial tenancy agreement. The rules for commercial tenancies are entirely and 100% different than they are for residential tenancies. The law governing these different types of tenancies is not at all similar. Hence, you will need to consult with a commercial tenancies lawyer--usually a corporate commercial lawyer. There is no time to waste in these situations, please do consult with a corporate commercial lawyer as soon as possible. You can get a referral from the Law Society of Upper Canada.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello I'm on odsp and my girlfriend moved in with me last year. I notified my odsp case worker. My case worker told me in December 2015 that she needed my girlfriends bank statements and my bank statements but I became sick and couldn't hand anything in by the end of December. I found out my check is being held when I called my case worker January 29th. She told me why my check was being held I told her why I didn't hand in the bank statements. I brought them in that morning. It's been four days counting today. I've been leaving my case worker messages every day. I didn't hear back from her at all. My rent is late it's due on the first of each month. Landlord is bugging for his rent every day I told him why it's late but he still comes to my door sometimes more than once a day. I called one of the managers at my local odsp office and sent an email to her and my MP this morning. I got a call back from her this afternoon she told me my case worker is going to review the bank statements tomorrow morning and give me a call. My case worker I believe her personal/religious beliefs are effecting her judgment towards me. I'm in a lesbian relationship plus she's always cold and quick to get off the phone or rush me out the door. I also found out my odsp might get cut off because my girlfriend gets cpp disability income. If I get cut off what do i do because I won't have the rent money from odsp. My lease says my rent is due on the first of every month. My girlfriend gets paid on the 22nd of each month and at the end of each month. We have no friends or family to help us out. Can we be evicted because we can't pay the rent by the first of each month?
ReplyDeleteHi Maddie: I can't really speak to the issues surrounding ODSP, entitlement, and reduction of your ODSP benefit based on the household income you have with your girlfriend. There are many issues involved in that and policies that I am not entirely up to speed on. Your comment that you feel that your caseworker is prejudiced against you is of course problematic. You are entitled to be assessed in accordance with the rules and not based on the ideals of any particular employee administering your file. That being said, suspicions and the treatment you describe do not in my view scream discrimination on the basis of sexual orientation etc., as your explanation of how you are being treated is something that I hear not infrequently from ODSP recipients. That doesn't make it right, it just reflects bad service over all.
DeleteWith respect to eviction for non-payment of rent. You will find several articles on my blog explaining the termination for non-payment of rent process, how to delay it, how to get extra time, and an outline of what can be done and when. You should read those articles to get a sense of what might happen. Ultimately, you can be edited for non-payment of rent and if your rent is always late you can also be evicted for persistent late payment of rent. It will not happen right away, it takes time, and you will be given several chances to get the rent payment process in order. However, if nothing is done to fix the rent issue then in time you can indeed be evicted.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi,
ReplyDeleteMy husband and I moved in to our house in August. By the end of October it came to our attention that we had bed bugs. Because of this by the end of November we had to pay out $3000 to have our house fumigated. Once again because of this Your savings were depleted and we were late laying January's rent,but it was paid by the 7th. Our landlord made us pay a $150 nsf fee with the payment. We have been trying to play catch up since. We were not able to pay Feb 1. We contcted the landlord and told him. He doesn't care. We told him that we would be able to do a payment plan with him. He refused. We are able to pay rent every month. It was a one time thing that has made us late. Question; is he able to charge us the $150 nsf and also when we moved I. He made us pay a $1450 damage deposit. Is he allowed to charge us that deposit? Of not what can we do to get that money back because that will cover the late rent!
Thank you
Hi: To be clear, we are talking about a rental unit in Ontario? You describe renting a house from your landlord. I take it that this is a single family dwelling? I ask this because it raises a question of where the bedbugs came from. The timing that you describe--August to October, suggests to me that you may have moved into a rental that already had bedbugs in it. If you research bedbugs you will discover that the things can live for a long time without feeding. They will hide in the smallest of cracks, in electrical sockets, behind baseboards, and in places you would never thing of. I would inquire of an expert pest control technician, but I think a period of two months to go from zero to infested seems about right. The point is that the bedbugs you have may have already been there. Is there any way to talk to the previous tenants, any way to find out from neighbours if they had a bed bug problem. It makes for a strong case that the landlord is responsible for the treatment and you can chase him for the $3K that you spend dealing with the infestation. Is there anything in what you did that you can pinpoint as the source of the bedbugs--i.e. do you believe that you somehow brought them in or is it a mystery?
DeleteThe $150 nsf fee is illegal and unenforceable. The legal maximum is $20 (section 17(5) O. Reg. 516/06) for the landlord's fee. He can also charge the exact amount that his bank charges him.
The $1450 damage deposit is illegal. The only deposit that a landlord in Ontario is allowed to take is a last month's rent deposit that is less than or equal to a regular month of rent. Anything else is illegal and must be returned. You can direct the landlord to apply the deposit to ongoing rent if you wish. If he wants to proceed to the Landlord and Tenant Board on this issue he will lose.
Consider seeing a lawyer or paralegal in your area who is familiar with Landlord and Tenant matters. You have a decent claim for the $3000 fumigation costs, plus a refund of the damage deposit and the $150 NSF fee. Don't sit on your rights though, most claims by tenants under the Residential Tenancies Act need to be made within 1 year of the event having happened. It is best to bring the claim as soon as possible.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteOur Landlord did not supply the Water/sewer bill for over a year then dropped an invoice for over a thousand dollars, we responded with a payment plan that we can afford and he is insiting ...demanding we pay in full , even thought he initially did not respond to out payment plan but accempted the first three email money transfers payments and after the third demanded the remainder in full..... what can we do?
HI: I would be interested to know whether you are responsible for water and sewer under your lease agreement or whether you have just assumed that you are responsible for these costs. Water and sewer are often included and not separately charged.
DeleteIf you are satisfied that you do indeed owe the charges that the landlord is submitting to you then what you have proposed and what you are doing is entirely reasonable. It is the landlord who will have to take a step or some kind of legal action. Given the amount in question the landlord's options are limited. I suppose he could try the Landlord and Tenant Board or alternatively, and more likely, the small claims court. The more likely route of the small claims court would in most areas in Ontario take longer than your payment plan. Further, your explanation of the landlord's delay, your dealing with it, proposing a payment plan and making payments, is very favourable to the Court making an order in accordance with your proposal. I would guess that a Court would even deny the landlord his court fees/costs because your position was reasonable and proper from the outset.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
My exes landlord gave me a notice today about taking us to small claims court for my ex not paying his rent for a couple months . This issue was 4 years ago and from my understanding there was no definite payment plan . He paid rent after the couple months of hardship .I was never notified when moving in with him that they had this issue ,we also haven't lived there for over a year and we're only notified now about it.
ReplyDeleteHi: Your comment raises a few immediate issues to consider. The first is that any claim for rent arrears, four years after the fact, is likely statute barred. Claims for these types of debts typically need to be made within 2 years of them becoming due. The key is to not acknowledge the debt in any way nor to make any payments on the alleged debt. You can by accident waive the limitation period and re-start the 2 year period by making a payment on the debt.
DeleteSecondly, it is difficult to understand why you would be liable for the debt if it was incurred before you moved in with your ex. This too is a defence for you.
Other than that, if your ex paid the rent and can establish that from his records that of course is another great defence.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks so much for replying. I forgot to mention the issue ofthat the months not payed for in 2012 he back dated all receipts . So let's say we payed November 2014, payment shows for that month but he writes that the month of June . So he wrote up the claim like we didn't pay the last four months , when really the missing months were back in 2012. He also made the claim last year , may 2015 and only delivered papers to me yesterday, and only to me , as he can't find my ex. May was 6 months after we moved out .
DeleteI'm just really frustrated as I think he's taking advantage of the fact that I work in the public and have the money to pay it .
I'm not sure he's even aware that I'm no longer with my ex , not sure if I should talk to him . I was never told when leaving that there was money owed from 2012.
I pretty much didn't sleep last night and been researching everything on this , and it's been a frustrating day as my biggest option is to go to court and let a judge tell him he can't charge me for these issues . And I'm not happy that he just dropped it off when I was with a client.
Hi: The change in facts is rather important and significant. Under these circumstances I'd recommend that you retain a lawyer or paralegal---even if just for an hour, to sit with you to review the available documents and perhaps steer you in the right direction for a defence.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, thanks for your excellent article. I'm a renter in Ottawa and I recently received an eviction notice telling me I had 10 days to vacate. Apparently my landlord had failed to make his mortgage payments and the lender intends to take possession of the house. I had no idea my landlord was in such financial trouble and now he's ducking my calls and emails. Do I have any rights here? Is there any chance I'll even get my security deposit back, what do you think?
ReplyDeleteHI: It is worth getting legal advice from a lawyer on this issue. As a tenant you still have rights against the mortgagee. The mortgagee steps into the shoes of the landlord and becomes your landlord--at least for a period of time. Sale of the property leads to further complications. If you want to take a look at the obligations start in the Mortgages Act Part V--Mortgagees in Possession of Rental Residential Premises (look it up on www.canlii.org ). You can still bring an application to the Landlord and Tenant Board and even name the mortgagee as the landlord.
DeleteAgain, this is complicated landlord and tenant law and you really should be sitting in front of a lawyer with your paperwork for clear guidance on what to do. There are simply too many permutations and "what ifs" to anticipate on this blog.
Michael K. E. Thiele
www.ottawalawyers.com
What if you miss your hearing date what is the time frame before a landlord can have you out
ReplyDeleteHi: The timeframes are all different and may not even happen. By not showing up for your hearing (and presuming the landlord did show up), the landlord would have had to prove to the satisfaction of the adjudicator that eviction was something that the facts of the case warranted. Presuming that the landlord could prove his case the date that you are "out" is set out in the Order. For non-payment of rent, the adjudicator would give you at least 11 days to pay and void the eviction. For other grounds of eviction the adjudicator can pick the date--which is usually not less than a week and certainly no sooner than the termination date in the Notice of Termination you received.
DeleteThe way to know is to look at the Board's order when it is mailed to you. You can also call the Landlord and Tenant Board and see if a clerk will read the order to you. The landlord is required to get the local sheriff to enforce the order and you will be given some notice of that happening as well with a Notice to Vacate being posted on your door.
Lastly, you say that you missed your hearing. If there is a reason for missing it you have the right to seek a review of the hearing and getting a new hearing. You have to provide a reason that supports the contention that you were not reasonably able to participate in the hearing of the case. If the Board accepts that then you would get a new hearing. You must seek this review within 30 days of the date of the Order--or certainly before any eviction takes effect. It is not a guarantee that you would get a new hearing, but it is a chance.
Good luck
Michael K. E. Thiele
www.topaccidentlawyers.ca
What if your being kicked out because u have no job even tho your paying rent
ReplyDeleteHi: Being unemployed is not a grounds of termination under the Residential Tenancies Act. If your tenancy is covered by the Ontario Residential Tenancies Act you do not have to move for the reason of not having a job.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
I would like to ask how lenient a board will be in allowing a tenant to remain when issued an n4
DeleteI have paid my rent late 8 months out of 13 and have always paid a portion on the first and the remaining balance before the due date on the n4
Hi Kate: You will have voided all of the N4's by payment of the rent arrears. Hence you will not face eviction on those N4's. If you have a current N4 that you haven't paid off and a hearing is scheduled the Board will absolutely give you another chance to pay off the arrears and it will even order a payment plan. On an N4/L1 application to the Board the Board will not be concerned about your payment history. In fact, you payment history is favourable in that you did indeed pay your rent---late...but paid (which is better than the alternative ...late and not paid).
DeleteWhere you might get a bit more of a headache is if the landlord serves you with an N8. That form is a termination for persistent late payment of rent. The form itself is a 60 day notice to the end of term and when you read it there doesn't appear to be any chance to void the termination. In reality what happens is that the Board will exercise its discretion to not evict you on this notice. The Board tends to order that you are allowed to stay so long that you pay the ongoing rent in full and on time for a period of time (usually 1 year). Getting this discretion is virtually automatic as the Board is more about preserving tenancies than evicting people.
I note that you say you have a history of a partial on time payment and payment within the notice period of the N4. I would be very curious why this is the case. I presume it has something to do with when you get money etc.. Note that the Board's discretionary power is quite broad. If you can make an argument that payment of rent in two parts like this is necessary and there is a history of doing so and an acceptance by the landlord of this OR you can base the need to pay this way on a peculiar circumstance you could actually ask the Board to allow you to pay this way indefinitely. Though to make this argument you might want find an experienced lawyer to make the pitch for you.
Hope that answers your questions.
Michael K. E. Thiele
Quinn Thiele
www.ottawalawyers.com
I would like to ask if a landlord filed an n8 against me, how likely is the board to show leniency in giving me a chance to start paying in full on time
ReplyDeleteI have paid it late 8 months out of 13 months and always paid a portion on the first and the balance before the date on the n4
See above Kate---here you reference the N8--the answer above applies. Cheers Mike
DeleteShould I communicate with the landlord or just not sign the application to end the tenancy and wait for them to request an eviction and then attend the hearing?
DeleteI have put together a package with my budget to show that I can remedy the situation in the future but will be 120 late for July rent until July 7th
Thereafter I am fine
Would this affect the boards decision to not grant the option of signing an agreement to pay the rent on time in the future?
I really appreciate the time you take to provide advice
Thank you
Hi Kate: If you wish to remain in the unit then certainly don't sign anything that terminates your tenancy. Simply wait to see if they apply to the Landlord and Tenant Board to terminate your tenancy based on the N8. If your landlord has not yet applied to the Board then it is unlikely that they will get a hearing date by July 7, 2016--hence, your payment problems are resolved by that date and your rent will be paid up. If by chance the landlord does get a hearing date before July 7, 2016, I am confident that by you showing the Board a clear plan of how you are able to pay in full and on time into the future that the Board will indulge your late payment of July rent to the 7th of the month.
DeleteGood luck. When at the hearing consider speaking with Duty Counsel for advice on how to present and what to say to the particular adjudicator hearing the cases that day.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much
ReplyDeleteYou have really eased my mind :)
Hi!
ReplyDeleteMy boyfriend and I recently received an L1 exactly 10 days before the hearing. We didn't receive an N4 at all. We asked the Board for help and they sent us a copy of the N4 our landlord filed - supposedly under our door in April. Would they need to prove service or will the Board just believe them when they claim this?
Thanks very much in advance!
Hi I'm not sure you'll see this in time or be able to respond in time as my hearing is tomorrow. I have had issues with my rent due to being robbed of both my savings and a month's worth of rent money (which was never recovered) around 2 years ago. I have had difficulty paying my rent in full on time each month. Though it has always been paid within the month it was due, and my landlord has never taken us to tribunal, (though we have taken them for maintenance, and other issues which we agreed to settle out of "court" prior to the hearing date) I had hoped that with this years tax refund I could get it caught up back in Early March. However due to changes in credits received by families this year I did not get the amount I anticipated and therefore was unable to pay my rent with it (I ended up owing tax rather than receiving a refund). I had advised my landlord that i "hoped" to be caught up and pay on time after I got my refund (did not however make any promises as it was based on if I got what I anticipated). I do not have family to borrow from, nor good enough credit to obtain a loan, and I don't make enough in a regular month to pay 2 full months of rent plus feed my 2 children. My landlord was patient and did not file against my family until May. When I received their notice saying they were going to apply to the board, I wrote my landlord a letter again, explaining that even though I was unable to secure the funds prior, I could make installment payments over the next 6 weeks and due to having an extra pay-cheque in June, I would be able to be completely caught up with arrears and Pay July rent on time and continue to pay on time going forward. I also enclosed post dated cheques for each payment and July's rent. My landlord responded with a letter saying they did not agree to that payment schedule and I must pay my arrears immediately and pay on time going forward. They also re-enclosed my post dated cheques stating they did not want the appearance of agreeing my my arrangement. I have a hearing Tomorrow (July 27) morning with 2 applications - Arrears and a Persistent late payment form (I don't remember the form numbers exactly). My final arrears payment would be June 30 when I get paid and is for less than $200. July's rent will be paid July 1st. Herein lies my question for you. I don't feel that I should have to pay for my landlord's $170 filing fee as my payment schedule was not unreasonable. I have always paid my arrears within the month of the rent they are from and don't have a history of bounced cheques. Had my landlord been a little bit understanding and willing to work with us for a few more weeks, within 3 days of the hearing we'd be caught up and on time going forward. What do you think the odds of us being evicted for persistent late payment and also the odds of us being able to fight the fee should we not be evicted are?
ReplyDeleteHi: Good luck this morning! If I understand correctly, all of your rent arrears are paid off as of 3 days from now? The facts are a little confusing to me as you are talking about 2 months of rent arrears--which of course means that all arrears are not paid within the month they are due. I must be missing something. Anyway, it does seem clear that you will be paid up in all arrears in 3 days.
DeleteBeing fully paid up will indeed void the eviction order for non-payment of rent. The Board will give you 11 days to pay all arrears plus anything that becomes due in that time plus the $170 application fee. If you are paid up before the end of the month or after the end of the month plus the July rent (plus costs) then no eviction.
The N8--persistent late payment of rent--is likely a proven application in that you have been persistently late paying your rent (i.e. late more often than not). Nothing in what you say suggests that your landlord condoned the late payment (i.e., he was not okay with it). Instead, your landlord seems to have exercised some restraint and acknowledged your position of hardship. Condonation is sometimes a defence to a persistent late payment of rent application. On the facts your describe I don't see it.
Hence, on the persistent late payment of rent the landlord is, initially, going to be successful. The Board will then consider whether termination of your tenancy is the appropriate remedy. It is at this stage that you are likely to be successful. The Board will exercise its discretion (as it normally does) and allow you to remain in the apartment if you pay your rent in full and on time for the next 12 months. That is a fairly typical order. If you breach, and are late, the landlord will have the right to file an L4 application to evict you for breaching the order.
The exercise of discretion by the Landlord and Tenant Board is an interesting power. I know that you are keen and convinced right now that ongoing rent can be paid on time and in full---which is good given that this is the likely order that the Board is going to make. However, when you get to the Board, speak with duty counsel and try to get a lay of the land--i.e the inclinations of the particular adjudicator that you will face. If the lay of the land is somewhat favourable I would suggest trying to get a shorter compliance timeframe (less than 12 months), or pitch something that would allow you to be late but paid within the same month perhaps once or twice in the next year. If I were arguing this (presuming certain supporting background facts arising from the robbery), I would encourage the adjudicator to dismiss the N8 (persistent late application) entirely on the grounds that the basis that the persistent lateness arises from crime with you as a victim. I'd argue that it is only this month that you have recovered from the crime and rent is finally caught up and ongoing rent will be paid on time. To put you under a conditional order, at this time, is to simply re-victimize you for being a victim of crime. Regular tenants get the benefit of the pay and stay provisions and regular tenants can be late a few times a year without consequence as late a few times does not constitute persistent late payment of rent.
DeleteI'd argue that I don't think you should be deprived of the benefit of the RTA in granting some leeway to tenants a few times a year in late rent. Not that the RTA encourages it, it certainly doesn't. However, the concept of "security of tenure" reveals a bias in favour of maintaining tenancies and I think you should continue to enjoy the benefit of that bias.
I'd further argue that you are on the margins, without a family support network, and you have the responsibility for two children. You are a family on the edge---losing the stability of your housing could be catastrophic. To give the landlord a conditional order because you were robbed and hence couldn't pay properly seems manifestly unjust.
With respect to the costs---I'm afraid you are likely to get stuck with them. However, you make a good point about offering the landlord a deal that would have solved the problem. Was it reasonable for the landlord to apply? The $170 is a lot of money to you. You have the makings of a good argument against the $170 but note that you are making a pitch that goes contrary to the standard protocol of the Board---the Board (virtually) always orders the $170.
If you make the pitch about dismissing the persistent late application (and that wins), then you would still be stuck for the $170 in relation to the N4. I think you are going to have to pay it. I'd try to spin it/argue that the $170 is your penalty for being a victim of crime but you acknowledge that the landlord is innocent too. Hence you accept that you will pay it. However, ask that it only be a judgment for money (not a basis for eviction), let interest accrue on it, and ask for XX number of months to pay it.
Good luck to you this morning. Please let me know how it goes this morning.
Michael K. E. Thiele
www.ottawalawyers.com
Quinn Thiele Mineault Grodzki LLP
If you pay cash each month , and now the landlord is claiming rent arrears. A receipt was never issued.How can they prove there claim for arrears.Also I have received a eviction notice.
ReplyDeleteHi: The very unfortunate thing about paying rent with cash is that a tenant risks not being able to prove that they paid the rent. Getting a receipt is great--losing the receipt is not. Not getting a receipt puts a tenant entirely at the mercy of the landlord and basically gambling that the landlord is honest or that the landlord doesn't make an honest mistake in their records about receipt of rent.
DeleteNote that a landlord can very easily prove that rent was not paid. All that a landlord has to do is say "the rent was not paid". The burden then shifts to the tenant to prove that rent was paid. If the tenant doesn't have a receipt or anything else that proves payment then there is a real risk that the tenant will be ordered to pay rent again. It is not impossible to prove that rent was paid without a receipt--but indeed it is very difficult. It would take a clever cross examination of the landlord to win this but it is not impossible.
Good luck
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
Hi Michael,
DeleteThank you for this. Can a land lord still levy the 170 application fee if you have paid late rent in full with certified funds within 13 days of it being due? Caveat being that the tenant (me) has already have 60 days notice to leave? Thank you
Hi Robert: Presumably you received a Form N4 (Notice of Termination for Non-Payment of Rent). That form gives you 14 days to pay--which is the number of days before the "termination date" set out on the form. If you pay all of the rent arrears before the termination date then the landlord may not charge you the $170 application fee. The landlord is not allowed to apply to the Board based on the N4 if you have paid off the rent arrears before the termination date--or frankly, at any time before the landlord applies to the Board.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteGreat article, thanks for this. I had a quick question regarding my situation at the moment. I am paying $950/month here in Toronto and my landlord tried to evict me for July 1st giving me notice in writing before May 1st,saying that a family member was moving in. He however did not fill out the N12 and so it was not official notice. When June rolled around, I did not have to pay rent because when i moved in here 3 years ago i had given him first and last months rent, so he was using my last months rent deposit for June. I talked to the LTB and they said indeed, i did not have to move out for July 1st because he had not given me official notice. I told my landlord towards the end of June I was not moving out because he had not given me legal notice. He finally gave me legal notice to move out by August 31st. So I paid rent for July and now August is about to roll around. The new place that I have rented is $1800/month and I don't have enough money to pay rent for August at my current apt because I had to give a deposit. My question is, if I cant pay rent here this month and then I have to come up with another $1800 for my new place for September 1st and may not be able to pay my current landlord rent of $950 for August for a month or two, what do you think will happen? I will obviously speak to him and tell him my situation but he won't be able to evict me before September 1st, right? Thanks for your time!
Hi: I am a big fan of being upfront and talking with the opposing side to see if a big dispute can be avoided. Adopting this approach with your landlord will give him the heads up that August rent is not forthcoming when due. As you've gone "legal" on him with respect to the N12 I wouldn't be surprised if isn't entirely pleased with you. Hence, I'm not sure how fruitful a conversation with your landlord will be.
DeleteInterestingly enough, your landlord has been in a position to serve you with an N4 for quite a while now. As your tenancy was not lawfully terminated your use of the last month deposit for June was not legal. The last month deposit can only be used for the last month. Hence, your landlord could have demanded payment for June quite some time ago. Why the landlord isn't doing so is something I can only guess about.
For the moment, let's forget about the June rent. With respect to the August rent the landlord will become aware that it hasn't been paid sometime on the first of August which is a holiday this year. While he serve an N4 (Notice of Termination for Non-Payment of Rent) on August 2? He will be entitled to. In fact he is entitled to do that right now for June rent--which is actually July rent because your July rent payment would be attributed to June.
If you speak with the landlord you may convince him to hold on and wait for payment. Perhaps he would be understanding? Alternatively, the landlord may think about it and decide that legal action should be taken right away to protect his interests. Any lawyer or paralegal will tell him to immediately serve an N4 on you.
That N4 is required to give you 14 days to pay. No legal action can be taken before the 14 days is up (i.e. August 16). On August 17 the landlord can file with the Landlord and Tenant Board for a hearing based on Non-Payment of Rent. The speed of getting that hearing date depends on where in the province you are located (you say Toronto--but its big). It will be, at a minimum, more than a week before you get your hearing date. Once at the hearing, even if you don't defend the application, the Board will give you another 11 days to pay and void the Order. Presuming you don't pay, the Landlord could file with the Sheriff to evict you and the Sheriff would give you another 7 days though it may take some time for the Sheriff to actually show up to post a Notice to Vacate.
If you add up all of the time periods (14 days, 7 days minimum to hearing, 11 days, 7 days) you can see that you are well past the end of August and this presumes that Landlord starts the legal process as soon as he can on August 2.
Note that a reason for the landlord to start a process at the Board is to confirm eviction and also to get a Judgment against you for the arrears so that he can enforce payment and get a collection agency to chase you should payment not be made. In order to take advantage of the speedy board procedure the landlord needs to start the case while you are still in possession of the unit.
Good luck to you.
Michael K. e. Thiele
www.ottawalawyers.com
I had 1 week late payment and received N4 and 60 day notice. I paid by e-transfer to landlord, he want me to move out, for mr its no problem, do I still have to pay the rent until he rent the appartment , what will be happened for my last month that I have already paid?
ReplyDeleteHi Mark: By paying the rent you have voided the N4 Notice of Termination for Non-Payment of Rent. This means you can not be evicted for non-payment of rent. The Landlord's 60 day notice to ask you to leave is likely no legal. A landlord can not just ask you to move out. For a landlord to evict you he has to have grounds under the Residential Tenancies Act. Simply saying " I would like you to move out" is not legal. Even if the landlord gives a legal notice to move you can force the landlord to apply to the Landlord and Tenant Board and argue that his notice of termination is not valid.
DeleteIf you simply don't mind moving out based on the Notice given to you by the landlord then you should fill out a Form N11. This is an agreement to terminate. You can find it on the Landlord and Tenant Board website. Both you and the landlord sign it and each of you should keep a copy. You are only responsible for rent up to the day of termination set out in the Form N11. You should use your last month's deposit for the upcoming month or two. You should not pay rent for the last month of your tenancy because that is what your last month deposit is for.
Your landlord is not allowed to punish you for late rent payment or make any other money demands.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I am a new landlady of a house that I have rented out to a 4 woman, 3 of them pay the rent on time but the 4th does not she always pays half, when she does pay. For the last 2 months she has not payed any rent at all and yet she is still living in the house. My husband and I have noticed a pattern with her. Every time Rent is due she causes a fight with one of the other girls in the house, she does this I think so we would forget about her paying rent. My husband and I are at the house on a weekly or monthly basis to be mediators in these fights. We had no problems with the other tenants until this 4th woman moved in with her teenage daughter. We talked to her over the phone today again because she and another tenant are fighting over the heat being too high or low. We told her that she needs to sort it out herself and that we are not her parents. We have had pretty much the same discussion though a lot more politely with her in person and over the phone about living with other people. My husband said to her that she has no rights anymore to complain because she owes us 11 hundred dollars in rent. And that until she pays us she has no right to complain about the heat. Last week when we went to go get last Months rent from her, she avoided us or stayed in her room and didn't come out. I don't know what else to do other then say on the phone you have 30 days to move out or pay us in full. When we said this she broke down and cried and said are you really going to kick my daughter and us out on the street... We are at the end of our rope with this tenant and don't know what to do other then to print out the N4 form.
ReplyDeleteHi: The relationship that you describe between yourself and the women in the house does not contain enough information to determine the "legal" nature of the relationship. It seems likely that the Residential Tenancies Act does apply this relationship as you don't mention any facts that give rise to typical exemptions from the RTA. What is unclear is whether you have one lease with all four women or whether you have 4 leases one with each of the women. The second scenario seems more likely from how you explain the situation which means that you have most likely created a "rooming house" in the premises.
DeleteIn a rooming house situation each tenant is responsible only for their own rent. Hence, you may indeed serve an N4 when a tenant is late with rent or in arrears. You should, in fact, serve an N4 the moment a tenant is late as you are about to discover how long the process is even after you have reached your wits end and now want to solve the issues.
Note, that if you are in a rooming house situation then the other tenants in the house have the right to demand that you deal with a problematic tenant who causes fights, arguments, etc.. Theses tenants need to share common areas--kitchen, bath, living room--and having an anti-social tenant in the mix is upsetting for all of the other tenants who are trying to get along. This is your problem, as landlord, to fix if you have set up a rooming house. If all of the tenants were on one lease then they would be collectively responsible for paying the rent and their social problems would be their own (and not your problem).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Help!! I'm waaaay behind in rent in the house my 4 kids & I live in because my husband left me last year. The furnace broke down and the landlord keeps telling me to fix it myself because the repair is way less than what I owe him. When I got home yesterday morning the house was freezing and I phoned him up, I got pretty angry with him when he again told me to fix it myself. I shouted I was going to file against him with the LTB over it. He then replied he was going to file for the rent arrears, and take me to Small Claims Court over utility bills he paid because I couldn't. Now today someone here at work said if I'm behind in my rent I can't even go to the LTB until I pay the landlord off. Is that true?
ReplyDeleteHi: The short answer to your question is "no, that is not true". You may indeed file and application with the Landlord and Tenant Board. In fact, heat is a "vital service" that the landlord is required to provide and if the furnace is broken down then he could be in serious trouble. Consider call the Investigations branch of the ministry of housing (number on website or call the Landlord and Tenant Board for it), as they may contact your landlord and make his obligations clear to him. Further, consider contacting your city/town--usually Property Standards department. They can make orders as well and in extreme cases they will come in, do the work, and charge it back to the landlord.
DeleteIn relation to the vital service of "heat" you are in a strong position to get action.
Of course, there is problematic side of the story and that is the unpaid rent. Your landlord is in a position to serve you with a Notice of Termination for Non-Payment of Rent in Form N4. This will start the clock on termination and give you 14 days to pay the rent. If you don't pay within that time period the landlord may apply to the Board for an eviction order. Within a couple of weeks he will get a hearing and then you can go to argue for more time or a delay. However, there will come a point at which the Board will order you to pay the rent or move out. How quickly the landlord accesses the Termination for Non-Payment of Rent provisions of the Residential Tenancies Act is up to him. Of course, pursuing him for a new furnace is likely to speed up his interest in getting his house back from you.
Given that you have four children and eviction would be a great hardship consider making plans now and seeing what kind of resources are available in your town/city. Local legal clinics are a great source of information for things like subsidized housing and for information explaining how to get support services. Lawyers in legal clinics generally have experience in helping people get into subsidized housing after evictions for non-payment of rent like yours. Get that information now so that you are prepared and can make the best out of a bad situation.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
This article is just encouraging tenants not to pay their rent on time, cause the landlord can't do nothing about it. Unless spending a tone of time on legal actions. It is very unfair to small landlords like myself who still have mortgage on the house and this is our investment for our kids. We are working very hard to save money and we had an opportunity to have an INCOME property so that we can help our kids, thought it is a good plan. Not anymore....Having tenants that not paying on time for months and months and clearly their priority is not paying the rent each month and not having the ability to ask them to move out is ridiculous.I own this house and I pay the mortgage, insurance and property tax, not the board and if I have a tenant that clearly don't pay or come up with bs. lies every month and I don't have the right to say,"listen find another home, you clearly can't afford this and give you 60 days to find something" because there is a lease involved, is absolutely unacceptable. I don't support landlords that are abusing their tenants, but I hate tenants that using the system to put their landlords through hell.
ReplyDeleteTHe law should not protect tenants that are not paying on time or at all and make them feel like they are the victims. Once this nightmare is done I never rent out my property again and sell it instead. :(
Thank you for your comment. The article I've written here is not intended to be biased towards any one side. The purpose of this blog is to reveal the reality of what the law requires and what each side to a dispute has the right to do. Whether I write a blog like this or not, the law is what it is. My hope is that this blog gives people the information they need to know BEFORE becoming landlords or tenants. Especially with landlords like yourself, where you are running a tight ship financially to make it work, I think it is helpful to know what MIGHT happen if you run into a tenant isn't paying the rent. That way, if you at least plan for the possibility of a bad tenant (or have an emergency fund to survive the legal dance), then you don't suffer as badly than if you weren't prepared. I have the greatest sympathy for small landlords with one or only a few units who can be ruined by one bad tenant. I have seen it many times and that is why I encourage all people who are thinking about becoming landlords to learn what the "business" of being a landlord is all about.
DeleteMichael Thiele
www.ottawalawyers.com
I have a neighbor who was recently evicted for rent arrears. He claims he owed rent arrears when the building was sold and taken over by new owners and the new owners are evicting him for not paying the corner owners but he thinks it is a wrongful eviction because it is not the new owners he owed money to. I was under the impression that the new owners CAN collect rent arrears even if it was owed to the former Landlords. Another friend is saying he also thinks it is an illegal eviction.
ReplyDeleteCan you pls tell us which is correct?
Can the new owners evict him for arrears that were owed to the former Landlords when the new ones took over? Thanks.
Hi: As it tends to be when it comes to legal questions there are often multiple answers to the same question. Odd, I know, but some of the smallest changes in fact can impact whether something is legal or not. Without guessing on your fact scenario I'll give you an example of how what happened might be legal. If the first landlord was a corporation and now there is a change in control of that corporation the rent arrears would still be collectable (and eviction possible), even though it might look to your friend like there is a "new" landlord. The key, I think, in any continuing enforcement of old rent arrears is that the new landlord needs to have a legal interest in those arrears and that the right to the arrears have been transferred, assigned or somehow conveyed to the new landlord.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
You are 100% right. I'm first time landlord, with less than 5 properties, have a full time job other than real estate, never bothered to learn about RTA and my rights..and now feeling RTA is unfair to me...but not after reading your blog. (still...those grace periods by RTA are too graceful!)
ReplyDeleteMy first tenant's rent is due by over 10 days now. Did call/email them the next day when it was due. No response. Visited them. No response on the door, even though they were inside. Same day,got an email from tenant saying 'will pay after a week as their child benefit did not come in'. Im thinking there was no mention of child benefit money as source of income in lease agreement. What happened about the job? No income? Should i even let them stay? Will they be ever able to pay?
The lease agent who found these tenants suggests to move slow and give them a week and if they did not pay up, then serve N4. Is it 3 day notice to pay or we go to court?
My second tenant's lease is ending on 30th June. We got in touch on 28th April, to know if he wants to continue. He cited his contract renewal issues and will need a week to know from his employer. As stupid (or kind?) we are, we accepted. Till today, 30 days later, he has not informed us. But we got call from Utilities that the tenant has notified to moving out on 30th June. I feel that he was tricking us, still nothing lost, he has technically paid up the last month rent. But my only concern is, if he doesn't allow us to set up showings for potential tenants, what can we do?
Hi:
DeleteThank you for these questions. The RTA feels brutally unfair if you are learning it in the context of dealing with problems. It really is best to take a course (before becoming a landlord) or alternatively, hiring a paralegal or lawyer to handle your first cases and teach you how to do them so that in the future you can handle them yourself. I have done this for many landlords who now handle their own routine cases and only call me for the "crazy ones".
With respect to non-payment of rent. If the rent is due on the 1st and you have not received it by 11:59 p.m., then the first thing you do in the morning is prepare an N4 (Notice of Termination for Non-Payment of Rent) and serve it. The excuse doesn't matter. Anything less and you are prejudicing yourself and causing a risk to your landlord business.
You will undoubtedly see that the N4 gives the tenant another 14 days to pay and void the Notice. If you wait, as suggested to you by your agent, you are just delaying the start of the 14 day period. The Landlord and Tenant Board will give you zero credit for being a "nice guy" and taking your time in using your rights. In my view, it is absolutely critical to serve the N4 the very second you are entitled to serve it. There will be plenty of opportunity to give the tenant more time later on.
Your second tenant is apparently walking away from their tenancy in an illegal manner. The end of the lease does not mean that the tenancy is ending. The tenant's tenancy will automatically renew on a month to month basis at the end of the lease. If the tenant did not want to continue the lease the tenant needed to serve you with a Notice of Termination in Form N9. Yes, this is even the case if the lease document indicates the end of the fixed term at June 30.
This tenant, if they move out, still owe you ongoing rent. You may wish to warn them of this fact. Get them to provide a notice and then you can show the unit etc., to minimize your rent loss between tenants. The failure to provide proper Notice (from the tenant) does impact you--as you've identified in that you will be without a tenant if you don't get showing the unit soon.
Michael K. E. Thiele
www.ottawalawyers.com
Hello.
ReplyDeleteWe have recently been given a L1 from our landlord. Prior to the L1 we did receive a few N4s but always had rent paid by the following couple of weeks after the 1st ...so in the same month. We always gave the landlord a head up, but still had to receive the N4 of course for document purpose. We have court June 13th..walking in with $!3500 in past due mmay and June that is. We did have my roommate become unemployed for the winter but now he is hired by a huge construction company( thank God) So I am gonna go in with a payment plan and all ourmup coming income with employment in the min for the next 10 yrs. We have in the l1 evicted move out date July 1qth. We do not want to move, I have children and we treat this home as it would be our own..its a beautiful home..we just fell on hard times. Pls help with any advice what to bring to court or how to represent ourselves. Thank you
Hi:
DeleteThe worst case scenario that you face is an Order requiring you to pay the full amount of the arrears within 11 days and if you do the eviction Order is void. That is the worst you can do.
The best you can do is an Order requiring you to pay ongoing rent in full and on time while also paying the rent arrears according to a repayment plan that works for you. In breach of that payment plan the landlord can apply to the Board under section 78 for an Order to terminate your tenancy because of a breach of the payment plan or a failure to pay ongoing rent in full and on time.
The key to the payment plan is not to propose something that is too aggressive. Make sure that what you propose is something that you can actually follow through on. What is critical is that ongoing rent gets paid as it is due. If future rent is late or unpaid you will find yourself in trouble. It is better to pay future rent on time and breach on the repayment (if you absolutely must breach). The landlord might not seek the section 78 Order for a breach on arrears if the track record is good at that point. Also, if the landlord does apply under section 78 you will have an opportunity to set aside the Order that will issue and argue again that you should be permitted to complete the repayment. This is an easier argument to make if ongoing rent is being paid in a timely manner.
To make your payment plan compelling to the adjudicator, consider preparing a written proposal. Perhaps a chart, have three copies. Show your revenue (income), show your expenses, show the money left over after expenses, and then propose the payment plan on the arrears. It should look like a budget and it should come across as reasonable.
The goal is to demonstrate that your plan to pay the arrears, plus ongoing, is feasible and that there is a likelihood of success. A common argument against payment plans is for the landlord to suggest that the home is unaffordable and that time to pay is just delaying the inevitable eviction. You need to convince the adjudicator that your plan is much more likely than not to succeed.
A payment plan needs to take into account whether that plan would be unfair to the landlord. If it is not "unfair" to the landlord then the Board should order it. This is the test under section 83 RTA. A strong payment plan is not "unfair" because it is far more likely that a landlord will get their rent arrears if you are on a payment plan than if you are evicted. Clearly you would not prioritize the arrears if forced to move. Accordingly, if the ongoing rent is paid on time then the landlord is in a better position with a payment plan and conditional order than if the Board terminated your tenancy and evicted you.
Lastly, consider making point form notes on how the arrears accrued. Be ready to explain that the arrears arose because of extraordinary circumstances. Explain the job loss, explain the time hunting for a new job, explain the financial strain caused by unemployment. Contrast that to the new employment and the income that will bring. The adjudicator will need to understand this in order to make the conditional order that your are seeking.
I hope that gives you some guidance. If you are properly prepared and present a clear plan with evidence to back it up then the adjudicator will be inclined to help you. Perhaps attach a pay stub for the new job or an employment contract or something that can tangibly establish that the needed income to pay arrears and ongoing rent is "real" and not a fiction you have created to buy time.
Michael K. E. Thiele
www.ottawalawyers.com
Hello sir ..what if u have an agreement to pay every 2 weeks such as every time I get paid I pay half towards the last month and so on so at end of each month I'm paid in full then the landlord decides to just end the agreement on no good terms ..what do I do
ReplyDeleteHi: I would need a bit more information than what you have provided here. However, if you can prove that you have been paying rent in a particular way (such as half on each pay day as you describe), then this manner of payment can be a term of the lease. This practice, and agreement, can in fact over-ride the terms that might be in the written lease. The circumstances of how this agreement arose matters and the length of time of paying in this way also matters. If the fact of this manner of payment is reflective of your "deal" with the landlord then the landlord can not simply end the agreement. The landlord has to honour the agreement---if you can prove that this is an actual agreement.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
My tenant is moving out end of July but still didn't pay me for June. The last month deposit covers July. I didn't file N4 as I felt by the time this would gone to hearing they will be gone from the unit. What other option I have now once they move out to collect my rent they didn't pay. Can I submit the case to small claim count? The whole N4 process is useless. They give the tenant option to move out and then what? Landlord is out of the money anyway?
ReplyDeleteHi Joanna:
DeleteI strongly urge landlords to always serve an N4 the moment rent is late. This at least gets the 14 day period ticking so that you can apply to the Board for an Order for payment and eviction if there is no payment. I suppose the exception would be if you think the tenant is not paying in order to get you to serve an N4 because they wish to terminate early and are trying to get you to do it to them.
Had you served the N4 you could now be in a position to file the L1 application. This would be useful because the L1 application gets you an eviction order (who cares if they move anyway), but also an Order for the money. The Order for the money is equivalent to a small claims court Judgment. You would enforce the Landlord and Tenant Board Order through the Small Claims Court.
The LTB process is preferable to the Small Claims Court because it is cheaper and faster. If you plan to sue your tenant in the Small Claims Court you will need to find them to serve them and then deal with the procedural delays of the Court.
If you are certain that the tenants are moving at the end of July (I presume they gave notice?), then you do still have an option for the Landlord and Tenant Board. You can immediately serve an L9 application. This is the equivalent of suing in the small claims court. The L9 application gets you an Order for the rent arrears but NOT an eviction Order for those arrears. When proceeding on an L9 you need to be sure that you are okay with only having an Order for arrears and not an eviction order too. Once you use an L9 you can't get eviction for the arrears covered by the L9 Order even if you start with a new N4.
Landlords can only apply to the LTB if the tenants are still in possession of the rental unit. Hence, this L9 form is open for you to use right up until the day the tenant's move out. You could file it now and even if the hearing occurs after they move it will be a valid Order for the rental arrears.
I note that you technically still have time to serve an N4 and let the 14 days pass and then apply on the L1 form before they move out. Service tomorrow (July 16) by personal service has the 14 days passing on July 30. You could then apply on July 31 and get your hearing some time in August (likely). Of course this is very tight and if the tenants move out a day or two early then you won't able to file if relying on the N4 to serve an L1.
I hope that clarifies this for you. The Small Claims Court is there for you is you wish but it is costlier, takes longer, and doesn't give you anything more "official" than the same Order from the Landlord and Tenant Board.
Good luck
Michael K. E. Thiele
Hi Michael. Thank you for taking the time to answer questions on your blog for those in need of some advice!
ReplyDeleteI am a small-scale landlord in Hamilton renting a bungalow to one tenant. My lease with my tenant began October 1, 2018 and is a one-year lease. She has paid her rent late 8 out of the past 10 months. She has stopped payment on all 8 cheques that were late months and has admitted in a recorded conversation to doing this intentionally because she was trying to be “difficult”. I also have documentation from my bank confirming she stopped payment each month. She was warned by an adjudicator at a recent LTB hearing that she could be served with a N8 for her actions, yet she has continued the same behaviour. She is employed and has not claimed financial hardship at any point thus far. She is typically non-responsive to requests to pay her rent until 1 day before I can file the L1. The current months rent is outstanding and I am in a position to file a L1 (N4 served 18 days ago).
What are the odds that the LTB adjudicator will end the tenancy without giving her a chance to pay on time for a year? This feels like fraud - Is it not criminal to write cheques you have no intent to allow payment on? This will be my 3rd visit to the LTB in less than a year with this tenant (for non-payment of rent) and the adjudicator has sided with me on each occasion. I’ve had to return to work from retirement because I couldn’t afford to default on this mortgage.
With the N8, can I file for eviction for September 30th now? It’s more than 60 days out but the form says you have to give at least 60 days notice. I don’t want to incur the $170 fee twice because I also want to file for eviction for non-payment of rent at the sametime.
Thank you - Leslie
HI Leslie:
DeleteThe odd thing about the story you tell is that there doesn't seem to be any sense to it making the tenant's motive a bit of a mystery. In any event, if you don't mind an eviction, then go ahead and serve the N8. It is not an early termination notice--meaning it can only have a termination date for the end of term. Hence, if you are on a month to month at this time then the earliest termination date is indeed September 30 (presuming a calendar month term/period). You describe a fixed term lease (1 year) but coincidentally the end of the term of that lease is also September 30 so you can be your termination date.
Once you serve the N8, and presuming you have an N4 that can be applied upon (i.e. not voided), you may file an L1 and L2 application combined. You pay one fee instead of two.
What will an adjudicator do? The typical outcome is that a tenant is given a chance to maintain the tenancy. That, however, arises in the context of a tenant having some hardship or some troubled circumstance that is beyond the control of the tenant. Giving the tenant another chance is an exercise of discretion by the adjudicator under section 83 RTA. The adjudicator needs to be convinced to exercise his/her discretion which normally is not too difficult if rent is paid up, the tenant gives a satisfactory explanation, and undertakes to pay in full and on time for the future. The facts you describe give no reason for the adjudicator to exercise her discretion. If this is the evidence at hearing then I don't see why the adjudicator would not terminate for the end of the term.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there and thank you for answering this blog!!
ReplyDeleteI recently have fallen back on 2 coming on 3 months rent. I enrolled in school full-time causing me to quit my job considering I have a daughter to take care of as well with no help whatsoever and am to receive osap by November. I received an n4 staying i just pay in full by the 1st of Oct. My question is basically will I be thrown into the street? How long till I have to be out I am super stressed and hitting depression due to this. I am trying to pay what I can but only current income is child tax. Am I doomed for ????
HI: I'm sorry for your circumstances. You are not "doomed" and certainly there is a way out. If your OSAP will be enough to catch up on arrears and keep you good for the months coming then you can likely maintain the tenancy. In fact, it likely won't be too difficult to maintain your tenancy--just so long as the OSAP comes in and it is "enough" to cover the rent arrears.
DeleteThe timeline, based on the dates you provide above, is likely as follows. You mention a termination date of October 1, 2019--this will be the date in the N4 Form that says pay this amount by October 1, 2019 or move out. If you read the notes on the N4 Form you will see that it tells you that you do not need to move out. Simply stay. You can try to make a deal with the landlord, try to make a payment plan, try to see if they will wait until November. Chances are, however, that they will not wait. On or after October 1, your landlord will be entitled to file an application to the LTB. Presuming they do not make any errors and the forms are technically correct, the Landlord and Tenant Board will send you a Notice of Hearing from sometime in the weeks following. The LTB is currently quite backed up so you may find yourself getting a hearing date some time towards the end of October and perhaps even in November depending on where you are in the Province. When you get the Notice of Hearing--plan to attend. You can see that the date of the hearing will likely be very close to the time that you get your OSAP. Even if the hearing comes up quickly (say middle of October), the LTB without you having to argue for it, will give you 11 days to pay from the date of the Order and void the eviction Order. If you explain your situation, propose a payment plan, and indicate that you are waiting for OSAP, the adjudicator would likely bend over backwards to make an Order that allows you to maintain your tenancy. The key--truly--is whether OSAP comes through with enough money to bring you up to date.
When you get to the hearing make sure to sign up for duty counsel. They can help you quickly put together a payment proposal and the dates. In some locations they will even appear with you to make the pitch to the adjudicator. Duty counsel will also be able to quickly determine if there are any technical issues with the documents served.
So, in short, you are not doomed! There are options and you have ways to maintain this tenancy. The law is in your favour so long as you get into the necessary funds in a reasonable period of time.
Good luck to you and I wish you well in your studies.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteFirst of all, thanks for sharing all your knowledge through this blog, I just spent a while to read from the beginning and I have learned a lot and I am sure so are the others.
I am a first time landlord in Toronto area. I have signed a one year lease with a single female in April, 2019. She is self-employed. All her rents are paid in time until two weeks ago when I received a detailed email form her that she advised me she has been diagnosed with server illness and also she is losing business and her income in the past year and half. (I feel terrible for her unfortunate affairs) Via the email, she upfront indicated that I am not going to be able to cash the rent cheque for September. I met her in person a few days later and provided all my support emotionally and financially as I was prepared to compromise and lose some rent already although I told her that I am living on budget in my life too and I have a mortgage to pay on the property she lives. I was asking her for alternative solutions, but she could not provide me any time frame how and when she would plan to resolve this issue. She did mention that she is looking for a new place and she is willing to give me back my property, but still, no time frame.
During this week, we communicated a couple of times through emails, she said she visited a couple of potential places but neither works. Today, I provided N4 to her, atmosphere was not pleasant, I explained to her eviction was not my purpose, but I would need a solution at the end of the day. I told her that I am not able to support all expenses on the property without rent ongoing. Again, she concluded our conversation as "no answer" for nay solution or proposal...
My tenant will go on medical treatment very soon, clearly she is not going to have any income in the short future or maybe even longer, really depends on how she might recovers. She said she has applied for disability support, but I am not sure when and how much she will receive from that. Event when she has it, would it be enough for her to pay rent on top of her daily expenses...a lot of question marks...
I am very frustrated at this moment as I don't have a timeline and I am not sure if she is ever going to be bale to get back to work and make income again. She does not have many relatives that she can rely on. I don't know what to do at this moment, I can't afford to lose this property if I default on the mortgage, all my years of savings are on it.
Would you please kindly share some information and experience during your years of practicing? I would really appreciate your advice! Thank you Micheal!
Hi: The only thing you can do is to proceed with the N4. As soon as the notice period in the N4 passes, apply immediately to the Landlord and Tenant Board. Given how slow the LTB is currently this will take perhaps another month or so and then the Sheriff will take at least another week but possible several weeks to enforce the eviction. As you follow the legal process the tenant will have many opportunities to pay and stop the eviction (whether you agree or not). At this stage I recommend that you focus on pursuing your legal rights as quickly and efficiently as possible. Ultimately, you can always wait to instruct the Sheriff to enforce if you don't want to evict the tenant right away. However, at this stage you are very far from actually getting an Order in hand and the risk of continuing to lose ongoing rent payments is a virtual certainty.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there! Thanks for such a great article and thoughtful responses. My landlord wants to evict me for non-payment of rent and I have a hearing scheduled for December 9th. I owe partial rent from November and full rent for December as the first has passed (as well as the filing fee). My landlord has a full month's deposit from me, so all I'd need to come up with is $1,132. On November 28th I told my landlord that instead of going through the whole process I would prefer to just move out at the end of December, pay what I owe and find somewhere more affordable for me. My 1 year lease ends at the end of December. My landlord stated that I'd need to give 60 days, making my move out date Jan 31 2020. I understand that's what the law requires, but I found an apartment very close to my work that would save me tons of money and I don't want to lose this opportunity. Its frustrating that a big rental company wants me to move out, and I'm agreeing to, but they're trying to keep me on the hook for 60 days anyway. If I make this request at my hearing do you think it is possible they'd allow me to end my tenancy on Dec 31st so I don't owe anything additional for January? Alternatively, what would happen if I didn't show up to the hearing? I'm honestly not sure if I can get the day off work and I'm embarrassed to tell my employer about this. It would just be so helpful if the rental company would meet me halfway. Thanks!
ReplyDeleteHi: The landlord, unfortunately, is taking an unreasonable position. Given your late payment I presume that the affordability of your unit is the issue. Your landlord should be thankful that you're prepared to simply move and not put them to the expensive task of repeated applications to the LTB. If they took your "deal" as offered they could simply look for a new tenant and given the timing likely have a new tenant in place for the beginning of January. In the current rental market they will likely even get an increased rent from a new tenant.
DeleteAnyway, your landlord is shortsighted so how does the law play this out?
1. If you simply don't show up for the hearing the LTB will issue an order terminating your tenancy 11 days after the issuance of the Order. The Order will likely be written a few days after the hearing. Say it is written on December 10. You are given 11 days to pay (say December 21). Then on December 22 the landlord can go to the Sheriff to file for eviction. The Sheriff will serve a Notice to Vacate on you giving you another 7 days notice. The timing of the Sheriff serving the Notice to Vacate varies greatly. For a long time, here in Ottawa, the Sheriff would serve the day after filing the Order to evict--meaning you would get a Notice to Vacate on December 23 for December 31. That timing doesn't hold up any more and you likely will get more time.
Now, you can't help but notice that this is all happening in December. It is a virtual certainty that no eviction will happening in the time around Christmas---basically because Enforcement Staff is on holiday and business shut downs. I imaging that the earliest a Sheriff is showing up for you is in the first week or so of January 2020.
Based on the above. Doing nothing at all seems to work out for you.
2. I prefer this approach--assuming you can't go because you have to be at work. Write to the LTB and copy the Landlord. You can fax the LTB, email the LTB, or drop off a letter to the LTB. In that letter explain that you are unable to attend the hearing due to having to be at work. Advise that you wish to make your submission in writing. Advise that you acknowledge owing XX dollars. State that the rental unit is unaffordable and that you are unable to reasonably pay future rents as they become due. Advise that you wish to terminate the tenancy. Advise that instead of a "standard order" that you would like an Order terminating the tenancy for December 31, and to extend the termination date to December 31 using section 83 (discretion section) of the RTA. State that you have already located a new apartment and that you will vacate for December 31. State that this is very close in time to what a "standard order" would result in anyway. State that you are therefore consenting to a termination under a standard Order or alternatively and preferably for December 31.
Then state that the landlord is holding a Last Month's Rent deposit and that you have not paid interest. State that the monthly rent is $XX and that you owe $XX for November and $XX for December. State that you intend to pay the amount owing but that you want the Order to be non-voidable--meaning you don't want payment to void the termination and eviction (if this isn't granted--don't pay the Order until after termination has been effected).
3. If you are able to take off to the LTB for the hearing---simply argue #2 orally. If you are in Ottawa (I suspect you might be based on the hearing date), you should be in and out in about 40 minutes.
There is always duty counsel at the LTB hearings and you could speak to them prior to your case being heard. They might even help you get the Order described above.
Good luck to you
Michael K. E. Thiele
www.ottawalawyers.com
Hi, thanks for writing a great article, it is indeed very informative. We have a very different issue we are facing over rent payment. Our lease on the apartment ends on Jan 31, 2020. However on Dec 26, 2019 we spoke to our landlord via messages about leaving when our lease ends on Jan 31st to which our landlord agreed to.
ReplyDeleteWe then on the next day paid deposit to the new landlord for move in date of Feb 1st, 2020. Our old landlord then messaged 2 days later saying that our lease agreement requires 60 days notice and so we still have to pay rent till end of Feb 2020. We are now stuck in a difficult spot of having to pay rent in Feb to 2 landlords. We spoke to the landlord that based on your approval we paid for the deposit and he should go ahead and list the apartment for rental again.
We have already paid the landlord the first and last month rent, so we advised him that we wont pay the rent for Jan 2020 and he can use our last month rent for it.
The landlord is not agreeing and said we still have to pay for Jan rent and our last month deposit would be used for Feb rent or he will send us a legal notice which could cost us $5000.
I wanted to know are we right to hold back the rent for Jan and move out end of January or should we pay the rent? Also is the landlord able to send a legal notice which will cost us $5000? Also please advise us what should we do next.
Thank you.
Sanil
Hi Sanil:
DeleteThe question you ask is very specific and what you need is actually legal advice and not the general information that I can provide here. Based on what you write it seems to me that the "key" to your position is an "Agreement to Terminate". Certainly, if the text exchanges via messages support an "Agreement to Terminate" then there shouldn't be any liability for an additional month's rent.
I don't see you as having much choice in this situation--unless you simply decide to capitulate and give the landlord the money. If you pay--then the money is effectively gone and the effort and time needed to adjudicate the issue will likely be something that will be too much effort relative to the amount at stake. Accordingly, I don't see paying January rent as a reasonable proposition given your position that January is the last month of the tenancy.
I think you should very clearly write to the landlord that the tenancy is terminated for January 31 and that the landlord should immediately seek to re-rent the premises to new tenants. You could also inform the landlord that even if he continues to disagree about the termination date that he has a duty to mitigate his losses and hence should re-rent as soon as possible.
If the landlord does commence legal proceedings you want to be in the position of first arguing that the tenancy is terminated in accordance with your agreement, and alternatively, 2) if the tenancy was not terminated by agreement then the landlord had/has a duty to mitigate his losses and re-rent the unit for February 1. With respect to 2), the landlord needs to take reasonable steps to re-rent and the failure to do that can deprive him of damages (i.e. the month of rent he claims from you).
With respect to what the landlord can do. If the landlord maintains that you owe the January rent then the landlord could send you a Notice of Termination in Form N4 to terminate your tenancy for non-payment of rent. You will note the irony in this. Alternatively, the landlord could avoid a Notice of Termination and serve you with an Application for only rent arrears and not termination. While it seems logical that the landlord should serve you with the Application and NOT the N4--this is not standard procedure and typically landlords do proceed with N4's when non-payment of rent is in issue. If the landlord does proceed by N4 then your tenancy will be terminate earlier than January 31--but that process will take longer that the end of January to play out. Hence you would just move out and return possession at the end of the month.
As for the costs that you could suffer as a result of this dispute. If everything proceeds at the Landlord and Tenant Board then your exposure is the "rent" which is January rent and possibly February rent--less the deposit. On top of that, you could be ordered to pay the application fee ($190) if you lose. Legal fees/Legal Costs are often threatened but at the Landlord and Tenant Board the reality is that Legal Fees/Legal Costs are not awarded. Hence, your question about $5000 is not a risk that I can reasonably see. If the $5000 that you're talking about includes the month of rent in dispute then sure. But if you're talking about $5000 in addition to the month of rent in dispute then "no" I don't see that as a possibility.
Consider calling a local paralegal or lawyer who is experienced in landlord and tenant law. I don't think you'd need more than half an hour to discuss your strategic steps and answer a few questions and to allow the paralegal or lawyer to read the text messages to see if the "Agreement to Terminate" angle is very strong.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Does your above article still hold true today - 2020? I have been paying my rent in split payments due to a misunderstanding of "last months rent" as I thought it applied to the 1 year term and I continued on month to month...needless to say I ran into some needed car repairs and put me behind. The landlord never noted an issue but would sometimes ask when he would receive his rent payment and I explained when and paid it. No N4 forms were given...i've been in the rental now for a year and seven months now....on January 3rd of this year i found out he hired a Property Manager...from the Property Manager....and then i was given my first N4 plus i was given an N8 form....can they do that?? There were no issues from my current landlord that he legally raised and then i get this one/two punch. Help?!
ReplyDeleteHi: I'm not entirely clear on what has happened in your tenancy in relation to the LMR (last month's rent). I'm guessing that you paid the LMR at the beginning of the tenancy and then applied it to the last month of the term---i.e. the 12th month and you did not pay the rent for that month. You then spent the rent money that you normally have on various living expenses including car repairs. If this accurately reflects what happened then you did indeed make a mistake.
DeleteThe LMR stays to your credit until the actual last month of your tenancy. This includes the month to month period after a fixed term expires. Until it is the actual last month of your tenancy (right before you move out--usually), you continue to pay the rent as it becomes due.
I understand that using the LMR put you behind when the landlord pointed out the issue. Presumably, the landlord did not apply the LMR to the 12th month and left that amount unpaid? Are you shown in rent arrears for that month? Potentially, the landlord did credit the rent for that month from the LMR and has had you paying back the LMR--though not technically possible, if this is what happened then you can identify an agreement that keeps your tenancy in place and voids the N4 (potentially).
With respect to the current N4. Ideally you can pay it off before the due date. If not, you should propose a payment plan to the landlord, in writing, that will settle the amount owed. For example, if you owe $1200, you could propose paying $100 a month for the next 12 months on a specific date. You then should explain how the rent arrears arose, that paying this amount is no problem, and that you will pay it until the total arrears are satisfied. You should also indicate that ongoing rent will be paid in full and on time (hopefully this is possible). If it is not possible and you are just in a bad "catch up" situation, then you might consider falling into arrears for one more month. Add that to the total owed and make a payment proposal that you can in fact comply with. In addition to that, you will need to be able to pay ongoing rent in full and on time. It becomes a very difficult case to win if you can't get into a position where ongoing (future) rent is paid on time. [note that an argument can be made about paying rent within the month it is due--but this is a unique situation and not easily argued and relies on the landlord's representations about when the rent is due].
The purpose of making a payment plan proposal to the landlord (that you can comply with) in writing is to encourage the landlord to do the deal with you without applying to the Landlord and Tenant Board. If the landlord applies to the LTB then there will be an application fee of $175.00 added to your arrears which is added pain that you don't need. If you make a payment plan proposal that the landlord doesn't accept, but you comply with it (whether or not the landlord agrees), then you have an argument to avoid the costs if the landlord applies to the LTB. At a hearing you could ask for a payment plan (the exact one that you've proposed to the landlord). If the LTB grants you that payment plan you could argue that the outcome of the hearing is a "win" for you and that your offer before the landlord spent the application fee is the same as what happened at the hearing. In these circumstances, you could argue, the landlord should be denied his application fee.
The LTB will grant you a payment plan (in the vast majority of cases). You need to prove that you can afford the rent on an ongoing basis. You need to give a reasonable explanation of how the arrears happened and that something has changed or that something is better now than it was that lets you get caught up on the arrears with a payment plan and that ongoing rent will be paid in full and on time. Your request for a payment plan is much more convincing if you bring a copy of a pay stub and write out what your monthly budget looks like. Demonstrate that you're not spending money on frivolous things and that you are maximizing your payment to the landlord, within your budget, to deal with the arrears. Show this kind of attention to your proposal and it is most likely that the adjudicator will grant you the payment plan.
DeleteWith respect to the N8--termination for persistent late payment of rent. The N8 rarely results in termination without the tenant being offered a chance to pay the rent in full and on time for the future rents. This is especially true if the rent arrears are causing the persistent late payment. If the persistent late payment is only happening because of the LMR issue then I don't see the N8 being successful. The "late" payment is because you're behind that one month. If that one month of arrears gets taken care of by a payment plan then future rents should be easy to pay on time.
IF the landlord does apply to the LTB be aware that you can access duty counsel services at the LTB on the day of the hearing. Perhaps try to get into a legal clinic before the hearing as well---just to make sure that your proposal is clearly laid out and that you have everything you need to be as persuasive as possible.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, thanks for your amazing article.
ReplyDeleteI have lived in an apartment building for over 3 years without an issue. Even had to endure some partial renovation left in my unit after I moved in because they were waiting on bell to fix some issues before finishing it. That took about 6 months. In the last year I had some issues which led me to struggle a bit financially and that made me always pay my rent late from the period of April to December. My management would always send me a n4 notice so I made sure I paid all in full before each due date. Also got a warning from them last year for my persistent late payment but I felt as long as I don’t miss the due date I’ll be fine. 2 days ago I got an eviction notice from them, n8 form. Asking me to move out by March 30 for late payments. I’m freaking out as I don’t know what to expect. I didn’t get any letter from the board for a hearing yet. I set up an auto payment for the first of each month in my tenant account as soon as I received the n8 form. What are my chances of being evicted? Would the auto deposit be enough to convince the board I’ll pay on time henceforth?. Should I get a lawyer? I really hope to hear from you. Thanks a lot for all your work
Hi Tom: In the vast majority of cases the Landlord and Tenant Board will NOT terminate a tenancy for persistent late payment of rent. Instead, the Board will typically make an Order requiring the tenant to pay the rent in full and on time for the next 12 months. If the rent is late in the future then the landlord will be given the option of filing for an eviction Order under section 78. (If that happens--you still have options).
DeleteI do think that an auto-debit is excellent and so long as the funds clear this is a perfect answer. You should probably write to the landlord advising that you have put in place an auto-debit and that they should not apply to the LTB as it is an unnecessary fee given the solution in place. You may wish to do this so that if they do apply to the LTB you could argue that they shouldn't get their costs (usually $175).
For the purposes of the hearing be in a position to explain to the adjudicator the hardships you've faced and explain how it is that you are sometimes late. Even if the answer is that you didnt realize how important it is to be on time--be honest about that. If covering the rent is not going to be an issue then show the adjudicator that future payment is not an issue and submit that you agree to an Order requiring rent to be paid in full and on time with a section 78 condition if you fail to pay on time. If there are unique circumstances or other situations that may impact timely payment you should plan how to address that with the adjudicator. If the case does go to hearing there will be duty counsel available at the hearing. Duty counsel can probably help you structure your submission so that the adjudicator is clearly inclined to make a conditional order in your favour under section 83 (discretion section).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
What if you decide to not pay rent until the landlord forces others in the rooms to stop smoking in the house. I hate it and it is illegal as far as I know.
ReplyDeleteI wish you had provided more detail about the circumstances of your living arrangement. I am going to guess that when you say "in the rooms" that you are living in a rooming house. The next assumption is that you have your own lease (presumably for your own room) and the smokers in the house have their own leases for their own rooms. I further assume that you are sharing common space with these other people (the smokers), such as the bathrooms, living room, kitchen. And lastly, I'll assume that the Ontario Residential Tenancies Act applies to your relationship with the landlord.
DeleteWith these assumptions made, your strategy of withholding rent to force the landlord to deal with smoking in the house is probably going to be "effective". It isn't quite legal and frankly a self help strategy such as this is frowned upon. What the Ontario Landlord and Tenant Board would have you do is file a T2 (Tenant's Rights) Application and seek remedies through that process. Unfortunately, in June 2023 that means filing an application into a black hole and your application will probably not see the light of day for about a year or so. That is how horribly backlogged the Landlord and Tenant Board is. So, the direction from the landlord and tenant board is to 1) pay your rent, 2) file an application, and 3) wait and wait and wait and wait.
Waiting of course is not really acceptable when you're choking on smoke in your home. Hence, your idea of withholding rent to get the landlord to pay attention is attractive. You just have to know how this plays out and what the risks are of doing this.
The landlord is likely to be upset with you. Presuming the landlord follows the Residential Tenancies Act (and does not illegally evict your or lock you out), the landlord will have to serve you with a Form N4--Notice of Termination for Non-Payment of Rent. You will be given 14 days to pay (presumptively). When you don't pay, the landlord can, on the 15th day, file an application to the Landlord and Tenant Board to evict you. Today (on June 8 2023), the landlord and tenant board is expediting hearings for non-payment of rent. When the landlord files the application he will get a hearing date that is approximately 5 months down the road. If the landlord includes your email address on the application you will get notice of it immediately and know that you have a five month window of time before the case will be heard. Until it is heard nothing can happen (at least legally speaking).
It will be very important for you to save the rent money that you don't give the landlord in your bank account. If you have trouble saving and not spending this can be very dangerous for you. If you save the rent money (plus $186) you will always be able to save your tenancy and not be evicted for non-payment of rent. If you spend the money while waiting for a hearing you could end up evicted as you will be unable to void the eviction Order by paying.
DeleteWhile you hold onto the rent money and wait for the hearing you must write repeatedly, often, and clearly to the landlord complaining about the smoke in the house. Yes, smoking indoors is in some instances contrary to the Smoke Free Ontario Act. It also is something the landlord is required to take action against when it bothers tenants like you. Smoking can not be imposed on you in your home through second hand smoke. It doesn't matter what the smoking rules for the house are. It must stop if someone complains. The landlord needs to clearly understand the issue, the seriousness of it, how it impacts you and how much it is happening.
Collect evidence of the smoking. Take pictures of the smoke. Take pictures of the ashtrays or whatever other evidence of smoking there is. Make notes of times, places, and how the smoking is affecting you (tell the landlord--in writing in a way tat you can prove you told him--and tell him often). If the smoke is triggering asthma or other health conditions make sure to tell your doctor about it, get the complaint into your medical records, get whatever medication needed to deal with the issues, and get the doctor to comment. Then get a copy of these records for your eventual hearing. You should collect all evidence that explains and supports the existence of the smoke, proof of your complaints to the landlord, evidence of who is smoking, when they're smoking, etc.. Then also collect evidence to prove the impact of the smoke on you. If you suffer financial losses or need to spend money to deal with it (maybe a HEPA filter), collect those receipts too. This is the evidence for your claim against the landlord.
Eventually the landlord and tenant board will send you a Notice of Hearing. Read it closely and carefully. You will see a reference to section 82 RTA and your right to raise as a defence any claim that you could have made against the landlord. There are strict timelines for disclosure of your claims and a weird looking form that needs to be filled out and served about a week before the hearing on the landlord and on the Landlord and Tenant Board. You file all of your materials with that weird form.
You then go to the hearing. The landlord's claim to terminate for non-payment of rent will be really short and fast. You don't have to deny it. You can acknowledge the numbers. When asked about payment--you can say, I can pay within a few days whatever amount you say I owe (presuming you've saved the money).
The key then is your section 82 claim. The adjudicator may not love you for having proceeded this way but the law requires them to now consider your claim. Your claim is the equivalent of a T2 Application and you are arguing that the landlord substantially interfered with your reasonable enjoyment of the unit by failing to deal with smoke in the house. You then prove to the adjudicator that you complained, that nothing was done, that you suffered etc., and that you want a rent abatement, and other financial damages depending on what you've lost. (you can use the T2 Application Form as a template for what to argue)
If you prove these things and the landlord doesn't prove that he was doing his best to stop the smoking and it was just impossible then you will very likely win something. You could even win an Order requiring the landlord to take steps to stop the smoking in the house and to commence eviction proceedings against anyone who still smokes in the house.
The likelihood of winning a 100% rent abatement is zero. You will have to still pay some rent--probably a fair amount of it. But you will hopefully get some reduction and some vindication with an Order requiring the landlord to deal with the smoke.
What exactly the numbers are is entirely unknowable at this time. Hence, it is critical that you save ALL the rent money plus $186 costs. If the wheels fall off the bus and you fail to convince the adjudicator of anything--and you lose your section 82 claim completely, then you will be ordered to pay all the rent arrears plus costs of $186. Typically you are given 11 days to pay. You can argue for more time if needed--but don't count on it. The law requires the adjudicator to give you an opportunity to pay the arrears to void the eviction Order. As long as you have the money--you can void the eviction. The Adjudicator does not have a choice to refuse you the right to void the Order.
DeleteIf you don't lose outright--then you will have some success. Some success will include some money and Orders that address your concerns. The "success" that you have should be enough to get the adjudicator to refuse to award the landlord the $186 in costs. Costs go to the winner---by getting a rent abatement and other orders you argue that you are the winner--and you are. There will be a tussle about this--but it is reasonable to argue that the landlord shouldn't get costs. Or there is divided success and the costs should be split somehow.
Note that in withholding the rent you don't have to hold back all the rent. Hold back enough to make the landlord follow through on the N4 process and pay the balance to him. Then save the difference in your account until the hearing deals with your issues about the smoking.
Good luck
Michael Thiele