Often enough, I have landlord clients who find themselves with a tenant who is many months in arrears of rent. The rent arrears amount to several thousands of dollars and the landlord, when speaking to me, is only slowly overcoming their denial of the huge financial loss they are about to experience. I've looked at this often enough and have asked many landlords how they got to the position of their tenant owing them so much in rent arrears. The explanations are always the same.
These landlords describe a situation where the tenant falls behind in rent. Often just part of the rent. The tenant pays the late rent but it is nevertheless late. In subequent months the entirety of the rent is not paid but the tenant describes a tragedy of some kind---a lost job, a death in the family, unexpected expenses, a spouse leaving, not receiving spousal or child support---and asks for a little time to pay. The landlord, feeling compassion agrees to extend credit and the tenant is very thankful. Time passes and the tenant fails to pay the entire arrears, or only makes a small additional payment. The excuses compound and the landlord describes feeling like a villain if they pile on financial worry to the recent hardship experienced by the tenant. At this point, the arrears are starting to be meaningful.
When the promised money does not materialize the landlord begins to finally suspect that there is a serious problem. That feeling however, is tempered with denial as the landlord finally does the math and realizes that these rent arrears are significant and that not getting this rent will have a real impact on the landlord's personal finances. That realization sometimes stuns the landlord into further inaction as they choose to believe that the tenant will come up with the money if just given a little more time. Of course the money never comes.
Eventually, the landlord realizes that legal steps need to be taken. Often, small landlords who haven't had this kind of problem ever before only now begin to learn of the procedure provided under the Residential Tenancies Act. Being finally ready to evict the tenant because they are losing their shirt the landlord is stunned to learn that the Residential Tenancies Act (RTA) provides an entire method/structure/rules for terminating a tenancy for non-payment of rent and that the process provided for under the RTA could easily take another 2 to 3 months from serving the Notice of Termination to getting an eviction order. What many landlords find profoundly frustrating is that the Landlord and Tenant Board refuses to deal with their matter in an expeditious way (i.e. faster then the system allows) even though the landlord knows he won't be paid and he has given the tenant numuerous chances.
SO WHAT SHOULD A LANDLORD DO?
The very first thing that a landlord needs to recognize is that they are running a business. In order for the business to be profitable the customers must pay and they must pay on time. You should not allow the customer to consume the product without paying for it. Accordingly, I recommend to all of my landlord clients that as soon as the rent is late--which is the day after it is due--that the landlord prepare and serve a Form N4--Notice of Termination for Non-Payment of Rent. No waiting, no excuses, no delays---the only exception being if you believe the tenant is trying to escape from a fixed term lease.
The service of a Form N4 starts a termination procedure. That procedure is long and drawn out. The N4 gives the tenant 14 days to pay the rent from the date that the N4 is served. The tenant gets 14 days whether you serve the Notice the day after rent is due or 6 months after the rent is due. The point is that the law always gives the tenant 14 days to pay.
After the 14 days expires, and presuming that the tenant has not paid the rent owing, paid only part of the rent owing, or hasn't paid all of the rent owing and any rent that became due after the service of the N4, then the Landlord may apply to the Landlord and Tenant Board to evict the tenant for non-payment of rent and further to get an Order for the rent owing. The form that the landlord uses is Form L1 (available online and from the Landlord and Tenant Board). Filing the L1 form will result in the Landlord and Tenant Board issuing a Notice of Hearing. That hearing date could be a couple of weeks after filing or sometimes even a little longer after filing.
During this entire period of time, a landlord is not allowed to take any action against the tenant. It is illegal to simply change the locks, interfere with services, harass or intimidate the tenant in any way. If the landlord does do something illegal and contrary to the RTA the Board may refuse to terminate the tenancy, it may fine the landlord, grant damages to the tenant, and possibly even refer the landlord for prosecution under the Provincial Offences Act.
Having waited for the hearing date, the landlord and tenant will attend. The tenant may seek an adjournment and it is not necessarily guaranteed that the case will proceed on the scheduled date. The tenant may be ill or have some other explanation for why they are not reasonably able to participate in the hearing. Any of these things could lead to an adjournment. Further, the tenant could indicate an intention to file their own case, or that they have filed their own case and that they have a separate hearing date and want the cases joined to the later date, or there could even be an issue with language and needing a bi-lingual hearing block.
Presuming that the case proceeds and is not adjourned, and further presuming that the case is straightforward without the tenant claiming against the landlord for anything, and presuming also that the tenant admits the amounts owing; the landlord and tenant board, absent any special considerations will make an order requiring the tenant to pay the rent in the next 11 days (from the date of the order). If the tenant pays--the tenant gets to stay and the order is void.
If the tenant does not pay, then on the 12th day, the landlord may attend on the Court Enforcement Office (aka Sheriff) and ask the sheriff to enforce the eviction Order after paying a fee in the range of $350. Depending on where you are in the province, the timing for enforcement can be a week or longer. During this entire period of time it is possible that the tenant is not paying rent.
While the time-line described is long enough, it is also possible that the tenant will ask for an extension of the 11 day period or ask for a payment plan to allow the rent to be paid off over time. All of these possibilities arise from the adjudicator's power to exercise discretion under section 83 of the Residential Tenancies Act.
If you have been adding up the blocks of time that the Residential Tenancies Act allows to tenants to void the eviction and pay the rent, you will have discovered that from the date of service of the N4 to the date of eviction is a minimum of one month (if you are extremely lucky) and is more likely in the range of 2 to 4 months. This can be a very long time to go without getting rent if you are relying on the rent for your own expenses.
In strictly following the rules provided for in the law you will recognize that the tenant will have plenty of opportunities to pay the rent arrears and keep their tenancy. The law makes any step that you take to terminate and evict the tenant void if the tenant pays the rent. Even after the Landlord and Tenant Board has given the tenant the final 11 days to pay the tenant can still pay the rent (once during a tenancy) after the sheriff has been instructed to attend and evict and thereby void the eviction order.
CONCLUSION
So the point of this article then, and to answer the question posed in the title the thing that a landlord should do, when the rent is late, is to immediately start the legal process to terminate and evict the tenant. Starting early will get you through the mandatory blocks of time that a tenant is granted to pay the rent before the rent arrears become ridiculously large. From the time line set out above you can see that it is virtually guaranteed that you will lose rent--even after applying the Last Month's Rent deposit to the rents owing.
Michael K. E. Thiele
www.ottawalawyers.com
what happens if someone just prints this page out and gives it to the tenant?
ReplyDeleteHI: I suppose a person could do that and maybe that would be helpful? If a landlord is in a rent arrears situation I imagine that the better route would be to serve the appropriate notices and terminate the tenancy and get a judgment. However, if providing a copy of any of my articles to a tenant or landlord is helpful in resolving an impasse then great. Nothing in this blog is confidential or intended to be only for landlords or tenants.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
(Small Landlord Pt 1 of 2)
ReplyDeleteHello Michael
I'm so happy that I stumbled upon your page. It really puts a lot of the tenant/landlord act in perspective. I read a few of your articles and I was hoping you could shed some light for me. I am a small landlord and I own a small building that has retail businesses at the bottom and some residential units on the top two floors.
The 2nd floor has 3 bedrooms, with a shared kitchen, bathroom. The 3rd floor has 2 bedrooms with a shared kitchen, bathroom. Each floor is rented out as 1 flat and we used to rent it out to single families (husband, wife, kids etc). However as the years past, it got increasingly harder to rent out the entire flat, as we haven’t been getting many single families looking for a place to rent. However, we got a group of individuals (who are friends amongst themselves) that were interested in renting the flats, and they would all claim 1 bedroom, and then they would divide the flat rent to give me the total sum. So example, the 2nd floor rent for the flat is $900 total and there’s 3 bedrooms, so each tenant would be $300, and 1 tenant will collect all the rent from his friends, and give me the rent at the beginning of the month. If one of their friend was to move out, they would find someone else to replace their roommate to ensure that I always receive $900/monthly from them. This works out perfectly for me, and they have been very consistent for over 5 years. I’ll also mention, the lease between myself and my tenants has always been oral, with no written leases. The 3rd floor also abides by the same concept. I have no issues with the 2nd floor tenants. However, there were some issues that arouse with the one of the 3rd floor tenants, where the rent wasn’t paid on time, or paid at different times, and then the 3rd floor tenants wanted their own “separate rent receipts” instead of 1 receipt for the flat. At the time, I was pretty relaxed, and let them pay separately as long as I received the sum of $800/month (they pay $400/each). But in the last 3 years, I feel that 1 of the tenants is deliberately causing despair with their roommate, and always causing the other tenant to move out. A new tenant will move in the share the flat, but then quickly moves out 3 to 5 months later because of dispute with the residing tenant. This would keep happening, and sometimes the vacant bedroom will remain vacant for 2 to 3 months, and the residing tenant will continue to pay his $400/month, saying that it isn’t his problem that no one lives in the vacant room and refuses to pay for the whole flat of $800.
(Small Landlord Pt 2 of 2. Cont…)
ReplyDeleteMaybe as a landlord, I’m too soft, and I know demanding $800 from 1 person is a lot to ask for and he always pays his portion of the rent on time, so then I leave him be, and I go look for another tenant. But it feels like this is a vicious cycle, because in the past 3 years, there has been more than 5 different tenants who tried to share the flat with the residing tenant, and they all flee because they cannot tolerate the residing tenants bad/rude behavior, ignorance, and total lack of respect. And I’ve just had about enough. Because of this and word of mouth, no one wants to share the 3rd floor flat with the residing tenant. So I am losing money each month because that tenant refuses to cooperate with others, and I really need to find a way where I could evict him. I’ve read countless landlord/tenant acts for Ontario, and there’s nothing I can find that will help me as a Landlord. I feel like the tenant purposely annoys the other tenant, just so he can live in the flat all by himself and just pay the $400/month, and I know I can’t evict him, just because other people don’t get along with him. Also because there’s no written lease, I can’t hold him accountable for anything. That unit has now been vacant for almost 6 months. Is it reasonable if I want to evict him because our initial oral agreement is that the entire flat is rented out for $800, and seeing how he cannot “play nice” with others, I’ve also had many talks with him, and we cannot come to any agreements, because he refuses to move out and says he’ll continue to live the way he sees fit, and it’s not his fault others don’t get along with him. I just want to take the flat back so that I can rent it out as a SINGLE FLAT again. (of course, I will give him the appropriate 90 days’ notice; I’m so desperate at this point, I’ll even consider letting him live there free of charge for 90 days just so I can get him out!).
Any help, or advice on this, would be greatly appreciated,
From a small and young landlord
Hello: I've been thinking about your comment for a number of days now. I can't really offer you anything useful in this forum. The way you have dealt with this tenant has potentially put you in an impossible position. In my view, it would be quite worthwhile for you to retain a lawyer who is very familiar with Landlord and Tenant law and you should schedule a meeting to develop a strategy on how to deal with this tenancy. I do think that you originally started with a tenancy that is favourable to you. However, with the passage of time you may have changed the nature of the tenancy and arguably you have created a rooming house or tenancy in common in the 3rd floor. Before taking any "legal steps" or making any offers of any kind you really should meet with a lawyer to clarify your rights and obligations so that things don't get any worse.
DeleteBest of luck
Michael K. E. Thiele
Thank you kindly for your response Michael, I was afraid that I backed myself into a corner as well. I really didn't want to go the route of getting a lawyer, but if that's what it comes down to, then maybe that's the only solution for me. I'll try to have another friendly talk with the tenant, and see how that goes. But if nothing gets resolved, then I now know what I have to do.
DeleteThank you for your helpful advice and thank you for taking the time to respond back to me. I really like your blog, and I have learned a lot as a Landlord.
From a small and growing Landlord
Excellent article .. I would swear we (landlords) were the scenarios you used. Now our tenants are so far behind, they will never catch up (and I believe serious, legitimate illness will cause that), and by the time we go through the eviction routine (which I had previously started and monies came our way), we will be bigger losers. From experience with a previous tenant, the Board will believe he will pay and we will be back to square one. And yes, we had previous experience and didn't learn anything. Except my belief that some people should not be landlords.
ReplyDeleteHi: I'm sorry for your luck. It is difficult to focus on the money when you see the circumstances that some people find themselves in. Unfortunately, your tenants' inability to pay the rent has a direct financial consequence on you.
DeleteGood luck--I hope they pay.
Michael K. E. Thiele
www.ottawalawyers.com
To my understanding, and please correct me if I am wrong, when it gets to the final stage of going to the Court Enforcement Office and the landlord asks the sheriff to enforce the eviction Order and then the tenant asks for a 11 day extension and still does not pay the rent, the tenant must leave correct? So after the tenant leaves, are they obligated to pay the arrears amount that they owe to their landlord + application fee of $170 + eviction order $350? Or do they just walk away? & If they just walk away paying nothing what sort of penalty do they get? Certainly such behaviour is not acceptable and unethical. Thank you in advance for your advice
ReplyDeleteHi: I don't think that you have it exactly correct. I presume that you have an Order from the Landlord and Tenanat Board. The Board, in the Order has given the tenant a number of days to pay up all of the rent arrears plus the costs of $170. The number of days that the Board has given the tenant normally total 11 days. Hence the Order specifies a date by which the tenant must pay. On the day after that day, the landlord can take the Order to the Court Enforcement Office, pay the fee, and then the Sheriff will start the eviction. The tenant has no right to ask for extra time at this stage. The only thing the tenant can do, and this can only be done once in a tenancy, is that after the sheriff has been directed to enforce the Order the tenant can pay the entire rent arrears and then bring a motion to void the eviction. Without payment of the rent arrears there is no "extension" of time.
DeleteThat being said, the Sheriff (Court Enforcement Office), effectively gives the tenant more time. After you pay the Sheriff the enforcement fee the Sheriff will go and post a notice to vacate on the tenant's door. This Notice will give the tenant about a week or so vacate the premises and it will contain a date and time that the sheriff will return to forcibly evict. How much time the Sheriff will give depends on local workloads and how many evictions need to be enforced.
The rent arrears, the costs, and the sheriff costs all form part of the Order. When the tenant leaves or is forcibly removed it is up to you to chase the tenant for the money. If you do nothing to collect then absolutely nothing will happen to the tenant. To collect the rent you could hire a paralegal, lawyer, collection agency or become familiar with the enforcement tools of the Small Claims Court and do it yourself. You will need to convert your Landlord and Tenant Board Order to a Judgment of the Small Claims Court to start the enforcement processes.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi, thank you very much for such an informative blog!
ReplyDeleteMy question is, if the tenant has not paid the rent. Are we legally allowed to forward the file to a collection agency, while it is going through the process? At least this way, the collection would be registered on their credit file, and future landlords would be aware that their file was forwarded for collections?
I realized now that using the previous landlord for a referral is a horrible idea, because they would likely provide a positive review of the tenant just to get them out of their own unit!
Thanks in advance!
Hello, we live in Hamilton, ON and we own and rent out a house in Thunder Bay, ON. Recently, the tenant has stopped paying rent. I am preparing to fill out the N4 form tomorrow (6 days after non payment of rent). Can I serve that form via email or mail? Or how do I serve it - in person? Same question for if, heaven forbid, this gets to the L1 stage. Is there any hope for long distance landlords? Especially if a hearing is scheduled? Finally, assuming we do receive rent - at what point and how can we choose to go separate ways? At the end of the lease? Or do we have an option to do so earlier? Any help in this matter would be appreciated.
ReplyDeleteHello:
DeleteYou've likely already thought about it but you are going to need to retain a lawyer or paralegal in Thunder Bay to deal with this for you, unless of course you have the time to travel and deal with this. That being said, you may do the preliminary paperwork and get the ball rolling.
The N4 form may be served by mail. However that requires you to add 5 days for mailing to the termination date. For acceptable methods of service you can take a look at Rule 5 of the Landlord and Tenant Board Rules. Combined with that rule, you should be aware of Rule 4 which tells you how to compute time in the legal sense. An N4 requires 14 days of notice before the termination date that is set out in the form. This means that the N4 must be in the tenant's hands at least 14 days before the date in the N4. Hence, an N4 served by hand/personally on January 1, 2016, could not have a termination date earlier than January 15, 2016, based on the service and computation of time rule. If you were to serve an N4 by mail, say on January 6, 2016, the earliest valid termination date in the N4 would be January 25, 2016. You have to allow for 5 days for mailing and you don't count the fist day of the mailing.
To be "safe" many people add a few days to the Notice to give room for delayed delivery etc..
Make sure to keep a photocopied duplicate of what you serve. Then also prepare a Certificate of Service to record how you served the document. You will need the duplicate of the N4 when you go to file with the Board.
If you do not receive the rent money by the termination date then you will have the right to file an L1 application based on the N4. You are able to do this as well though I recommend having a paralegal complete it for you. The filing will result in you getting a Notice of Hearing. Being represented throughout this process by an experienced paralegal or lawyer should get you the result you are looking for without or with fewer hiccups. The tenant may attempt to get time to pay, make payment proposals, or even raised repair and maintenance issues or any other issues that could be made in an application as a defence to your L1. The tenant is allowed to do this without notice to you and it can come as a complete ambush. If you are on your own you are less likely to respond to these tactics in a way that protects your interests and gets you where you need to be. I don't know anyone in Thunder Bay who can handle this for you but there are usually a few paralegals who dedicate their practice to these kinds of cases. N4/L1's are fairly routine and you could expect a block fee for this kind of case.
With respect to choosing to go your separate ways only the tenant has that choice. You must continue to rent to the tenant, even after the expiry of the lease, unless you can find a ground for termination in the Residential Tenancies Act. There are obvious termination grounds--nonpayment of rent, illegal act, impaired safety, these are the termination for cause grounds (there are others). Then there are the non-cause termination grounds. These include landlord's own use, purchasers own use (and various other designates of the landlord for own use), conversion, demolition, repair (N13 Form). Other than that you are likely out of luck. You can not elect to termination because you simply don't like being a landlord any more or because you don't like the tenant. To see the grounds for termination go to the LTB website and look at all of the Notices of Termination forms. Reviewing these forms will give you an idea of what grounds exist for termination. Unless one of these grounds applies to your situation the tenant may continue as a month to month tenant indefinitely.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
JC,
ReplyDeleteHi Michael, hoping you can give me some advice. Abou a year ago I had a hypo manic episode and since then have been diagnosed with severe anxiety and depression along with mild bipolar 2. I have worked at my full time job for about 12 years now and because of all of this I had to take a leave of absence (STD) which lowered my weekly pay. My common-law husband is currently working full time and has had his job for approximately 10yrs. With this lower income and 2 kids it was hard to come up the rent one month ( again this was about a year ago) We were than issued an N4,which we did pay in full before the termination date. Which if I read your article correctly, makes the N4 void. Well because of that one month putting us behind, we continued to get N4's for each month after because of paying the rent that one month late. Paying in full by the termination date plus $35.00 each month which I assume is the nsf fee. Well now my STD has ended and my doctors (family and physiatrist) have extended my leave and I am now on LTD. My doctors have prescribed medication for me, which I have been on since my hypo manic episode(approximately 1year). I am still currently taking 4 different medications which consists of 7 pills in the morning, 2 pills in the afternoon and 2-3 pills at bedtime to help me sleep. The doctors are still adjusting my medication to see what works and this is the reason they have put me on LTD. So long story short, I am currently waiting to hear back from Blue Cross about my claim for LDT. I have phoned them everyday looking for answers, but they keep telling me it's in process. I am supposed to find out this week and get my LTD pay, that is also being retro paid. Plus I am waiting to hear from the Child tax benefits on a retro pay check worth over $6000.00, which I have also been calling daily and am supposed to here back by the end of this week. I have received an N4 form for the month of July and the termination date is for today(July 21st), and I only have about $600.00 of the $1500.00 that I owe them for the month of July. When I get the cheques that are owed to me, then I will be able to catch up and begin paying the rent on the first of the month when it is due. Please help me and let me know what my options are, as my family and I have and still are going through a very tough time, and we all love and enjoy the place we are currently renting.
Thank you for your time.
Hoping to hear from you
JC
Hi Julie:
DeleteAll is not lost and in the facts you provide a good outcome with you maintaining your tenancy is indeed possible. You don't say much about your landlord so I don't have a sense of whether the landlord is willing to be a part of the solution or is indeed the problem. Given the $35 monthly charge (NSF cheque you say?), they don't seem to be interested in helping you out. Note that there are questions to be asked about the $35. What I don't know is whether cheques actually went NSF or not--were there literally bounced cheques? If so, one would want to know what the landlord's bank actually charged the landlord as a fee to deal with the NSF. That actual fee is chargeable to you. Otherwise, for an NSF cheque, the landlord's fee to you is capped at $20 (O.Reg. 516/06 s.17 para 5). I'd be surprised if you kept handing over cheques you knew were going to bounce knowing that the landlord was going to ding you $35 each time. There is NO legal fee for late payment of rent.
So that aside. If your landlord can be part of the solution, then it is worthwhile putting the issues before the landlord and get them to simply agree to wait for the rent and provide them with reasonable information that gives them the comfort to know that rent is forthcoming. This is sometimes difficult to do on your own behalf--and hence it is ideal to have a lawyer speak for you. As you clearly are in difficult financial straits consider going to a local community legal clinic that handles landlord and tenant matters--and hopefully get someone who knows how this works. Getting the landlord to agree is not guaranteed--but it should be explored even if the response is entirely negative (i.e. some landlords don't want to be a part of the solution).
If the landlord is unwilling to be helpful, then it becomes a matter of using the law to win the best outcome for yourself and your family. You're in good shape for this as well.
At this stage, unless you have trouble holding onto money, I wouldn't pay anything towards the N4. You should make the payment only if it voids the N4 as there are no bonus points for partial payments. Hold on to the cash--as you can use it to your advantage at the hearing. Of course, if the landlord was willing to cooperate with you in solving the problem you could offer the partial payment in exchange for the landlord not applying to the Board. An application to the Landlord and Tenant Board will cost you a $170 application fee if the landlord wins.
The landlord will be in a position to apply to the Landlord and Tenant Board tomorrow. The landlord had to wait until the 14 days period in the N4 expired. Depending where you are in the province the scheduling of the hearing will now take place---likely within the next 2 to 6 weeks--again depending on where you are in the province.
DeleteThere are procedural strategies that can be used to delay the hearing. Delay is your friend as it gives time for your LTD to come through. These procedural strategies are best discussed with your lawyer.
Once you get to the hearing and the hearing actually proceeds on the merits you will not have a defence to the question of whether rent is paid or not. Presumably it will not be. Your defence will be to seek discretionary relief with an emphasis on your disability and seeking an accommodation--i.e. time to pay. This argument, which I expect would be effective, will require you to show a clear evidentiary basis for your rent problems---i.e. some medical reports, std letters, and transition application and waiting for LTD to kick in. Be able to demonstrate in a clear and forthright manner that your current circumstances are the result of a health crisis and what has now become a disability. Be able to show what the LTD benefit looks like when received and be able to show what the Child Tax Benefit looks like when it is paid. Then show a household budget (i.e. create one) that shows revenue (i.e. income) in one column and expenses in another. Demonstrate that when LTD and Child Tax is received that the rental unit is affordable and that it makes sense for you to remain living in the unit. If your budget shows that remaining in the unit is folly given your income and expected income relative to expenses then the adjudicator will be less likely to work with you to maintain the tenancy.
It seems likely to me that your hearing is going to be in the month of August or early September (because we are now in late July). Strategically, it will make more sense to accumulate arrears now--leading into the hearing and not pay any more rent. Unless you are able to fully pay rent, save the money for now.
With the things discussed, your argument at the hearing is that you should be able to make ongoing rent--i.e. use the $600 you have now and anything else you save between now and the hearing for new rent that arises after the hearing. Argue for a delayed payment plan of the rent arrears requiring payment only once the LTD or Child Tax benefit is received. You could also argue for a small payment towards arrears. The logic of this approach is that the landlord's position does not get worse--because ongoing rent is going to be paid. By maintaining the tenancy and requiring arrears to eventually being paid from a specific pot of money or as of a certain future date the landlord is much more likely to get all money owed than if your family is thrown into turmoil by an eviction and all of the attendant expenses that causes.
Beyond the foregoing, even if you lose at the hearing the Board will automatically give you another 11 days to pay to void the order. Then, before the Sheriff comes (but only once in a tenancy) you again get a chance to pay off the arrears and void the Order. This process will add weeks and it is reasonable to assume that an adjudicator will give you an extended termination.
DeleteBeyond the framework set out here, and again depending on where in the province you live, there may be community resources and funds to tap into that may pay your rent for you--either as a loan or as a grant. Your City may have a program to cover you in this kind of emergency. Then of course there is family and friends--but I assume you've considered that already.
Note that I'm scratching the surface in this reply and there will be other options that a lawyer will come up with in interviewing you and getting details of your situation. I hope for your sake that you can find someone who knows how the system works. A good place to get help or a referral is at the Landlord and Tenant Board from duty counsel--they generally know the names of lawyers and paralegals who are experienced and know how to work in the system. Be confident knowing that hardship and financial difficulties can happen to anyone and your difficulties arise from health problems that can strike anyone. The law isn't structured as "pay or else you're evicted". There is leeway and compassion built into the system and it is your right to access it.
Good luck to you. I hope this helps.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your help Michael. I live in Ontario and my landlord is a big building company. Devonleigh homes. I do not write cheques each month, it is an automatic withdrawal from my account. The first year we lived here, I wrote out a years worth of cheques. But after year we didn't need to sign another lease agreement and just continued to pay on a month to month basis. You said to hold onto my money unless the landlord agrees to voiding the N4 with a partial payment. Which I would assume to get in writing. But if I can't get the landlord to agree to an agreement, than I should hold what I have and give the full amount when I have it. Which I should have the whole payment by tomorrow or early next week. As well as the full amount for the August rent to be paid in full on the first.Once I start getting my LTD we will be able to pay the rent on time cause I will then be having a stable bi weekly pay cheque again. Also once I get my refund for Child Tax Credit I am able to get caught up on any outstanding bills that have accumulated and be able not to stress anymore about everything and continue my recovery. Right now this is only making it worse and I just want it all over with and have no worries.
DeleteAgain thank you, you've been a big help and I appreciate deadly you have already taken some of the pressure off of me.
JC
Hi Julie: On the timing of paying rent arrears. My view is that you shouldn't make a partial payment unless the Landlord is agreeing to not apply to the Board (this presumes you have no difficulty saving money and that it doesn't burn a hole in your pocket). However, if you have all of the rent arrears today or tomorrow, or next week, it is worthwhile to go into see the landlord and pay off the rent arrears in full. If the Landlord has not already applied to the Board then the payment before the application to the Board denies the Landlord the right to apply to the Board--i.e. you shouldn't be responsible for the $170 application fee. While the voiding date (Termination Date) on the N4 might have passed, the landlord can't apply to the Board if you pay off the amount before they file. There is no fee payable if you pay before they file.
DeleteOn the monthly charge by auto debit from your account. The fact that you went NSF should have cancelled the auto-debit from your account. That the landlord would try to take the money every month, without confirming with you, is problematic in my view. You should get a refund of these charges. Until your finances are in better shape you should make sure to write to the landlord to cancel the automatic deduction from your account. The landlord is not allowed to require you to pay this way.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Quinn Thiele Mineault Grodzki LLP
Morning Michael,
DeleteI took your great advice, and called the landlord yesterday. I explained my situation fully and in detail. They were more than happy to work with me to get caught back up. Owing only rent for the month of July, we came to an agreement that I could pay a partial payment of $300.00 now and they gave me another week to pay the balance. This agreement does void the N4 that was issued to me and and I have an email from the landlord stating the whole agreement ( dates, times, and notice that the N4 is voided with this agreement. I offered them proof of the money that is owed to me and they chose not to except it and they are taking my word. They also said that if I couldn't for some reason or same reason come up with the balance next week that I am to call back and we will work something out ( this is also in the email that was sent to me). Although they offered me an agreement for August rent. Which I'm not sure if I should have agreed with. But they said if I want they will not take out August rent on the first of the month to save paying the NSF charges for the bank plus them( which I did ask about and that is what they're bank charges) anyway they said they wouldn't take the rent out on the first instead they would issue me an N4 form on the first and it will give me till the 16th of August to pay August rent. Just wondering if I should have agreed to this? Again thank you so much for your help. The stress has lowered in me and as scared as I was to give the landlord a call, I'm glad I took your advice and did. It's really not a scary as I thought!
Thanks again
Love your blogs
JC
Accepting Partial Payment question:
ReplyDeleteI have served the N4 for part of July and all of August rent.
They have not paid anything within the 14 day period and we have filed the L1 with the court and have a hearing mid Oct(long time). The tenants have now e-transferred the Sept rent. (July & August is still unpaid).
The question is, will I jepordize my eviction hearing in court by accepting Sept rent?
The N4 claimed part July and all of August.
EE Kitchener
Hi EE: You may accept the partial rent being offered. It will have no effect on your hearing other than reduce the amount of the rent arrears. At your hearing you will be required to set out the amount of the rent arrears and regardless of your wishes the tenant(s) will be entitled to pay the arrears and void any eviction. There is no advantage in refusing any rent that is offered.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
If I don't pay my rent on the 1st of the month, I'm guaranteed to have an N4 taped to my front door the morning of the 2nd. All because I was late paying November's rent due to a severe depression, which I explained to my landlord, and she smiled, and acted compassionately, saying it was okay, just try harder to get the money to her on the 1st of December. Which I did, no problem.
ReplyDeleteBut then on January 1st, the bank was closed and her restaurant was closed, so I wasn't able to pay until until the 3rd, since her restaurant, where I pay the rent, was closed for the holidays until the 3rd. But she made a special trip into town on the morning of the 2nd to tape an N4 to my front door. (She never knocks on my door to see if I'm home, just tapes an envelope to the door. Sometimes, in the winter, I don't leave the house for days, so had I not been hyper-aware that my payment was late, I might not have known the notice was there until after the 14 days had passed.) When I explained why it was late, because of New Years and her holidays, she told me I should have paid on December 28th in anticipation of this unfortunate outcome. I explained that I hadn't had the money on the 28th of December, she complained that I was preventing her from paying her property taxes, and that "you people always take your money out at the end of the month" (I'm on ODSP, but was on Ontario Works when I moved in) so I shouldn't be making excuses. I told her not to presume to know about my banking habits, and she yelled in my face that the next time I was late, she'd get the cops to evict me without the courtesy of a notice. And then her husband yelled at me, so that numerous customers could hear, that he'd been in my apartment months ago and I had gay porn on my computer! I live in a small, rural town, so I knew every person there; I'm mostly out, but it was still humiliating.
I paid February, March, April, and May rent on the 1st. And paid for June's rent on May 31st, since June 1st was a Saturday. She didn't comment on me being early, she just wrote out my receipt and told me to have a good day.
What I'd like to know is: how can I use these eviction notices to show how she's preventing me of the reasonable enjoyment of my apartment? I should also mention that she has raised my rent every year, the maximum amount she could raise it, such that more than half of my monthly income is now spent on rent. (And with #fordnation slashing funding for ODSP, I'm assuming I'll be living under a bridge by Thanksgiving.) With this being the cheapest (doubtfully for long) rent charged for a 1-bdrm apartment in this community, how can I prevent myself from becoming homeless, while still complying with her rigid payment schedule? (until she raises the rent another 1.5-2%) I'm feeling really discouraged, and I'm afraid of how her stubbornness could one day affect my ability to keep on keeping on.
Hi:
DeleteThe service of a Notice of Termination in Form N4, every time the rent is late, is not actually illegal nor is it harassment. It might not be nice, but she is entitled to do it.
However, just because she is serving notices does not mean that the notice would be useful to her in the future. Because you are voiding the N4's (Notice of Termination for Non-Payment of Rent), by paying the rent within the 14 days that the N4 allows the notice can not be used to evict you for non-payment of rent.
What the N4 can be used for, after repeated and regular late payment of rent, is to support a Form N8 which is a termination for persistent late payment of rent. For the LTB to consider termination for persistent late payment the Board only looks at the last 12 months. The Board wants to see many months of late payment, general consecutive. 3 or 4 times late in a 12 month period generally won't be serious enough to order eviction. You would want to see late payment 5 or 6 times in the last 12 month period to justify termination for persistent late payment.
Once the landlord establishes late payment the explanations you provide are highly relevant. Your explanation about the restaurant being closed on July 1 as well as the bank is a perfect excuse for late payment. Her response is outrageous. Under no circumstances can you be required to pay early. Either she makes herself available to receive the rent (in the normal manner of how rent is paid) or she accepts it late and says "thank you" when you pay.
So, make notes about the reasons for particular late payment dates so that you can explain if you ever face an N8.
Next, you have revealed here and you have told her that you suffer from depression. Your depression is debilitating and leaves you housebound often. I presume your ODSP is based on this (at least partially). To the extent that your depression causes you to lose track of the date, leaves you housebound, etc., you can ask the landlord to accommodate your disability. Whether she wants to or not, likes to or not, it is the law that she must--to the point of undue hardship.
To follow up on this, consider writing to her in a way that you can prove having written to her (i.e. fax, email, text). Confirm that you have told her about your depression and that your depression causes you difficulty in always being able to pay the rent on time. Ask her to provide an accommodation for this problem---you mention that a knock on the door would be appreciated instead of just posting the notice. Perhaps this could be an accommodation. Perhaps a phone call. Perhaps a text message. Try to suggest something that is provable independent of her "word". She and her husband sound like despicable beings so I would not trust them to tell the truth.
DeleteLastly, if you want to go on the offence and teach these landlord's a lesson, you might want to collect evidence of the "you people always take your money" comments from the landlord. It would be wonderful if she wrote that. It would be wonderful if you could interact with her and record her comments secretly belittling you for your receipt of ODSP. Further, collect evidence of the gay porn comment. If people in the restaurant heard him--would they sign a statement confirming that? Can you prove that his nasty comment was made.
With evidence of this behaviour you have a nice Human Rights Case to make. You are being discriminated against because you are in receipt of social assistance--that is the "you people" comment. The "gay porn" comment is discrimination in relation to sex, sexual orientation. It does not matter if you are gay or not--the comment discriminates against you on through sexual orientation. Even if you are straight--should you have to justify your sexuality in public to rebut your landlord (of course not).
Do not doubt for a second that the landlord's will deny these allegations. Hence the need for proof. But if you lock down evidence--recordings, witness statements, their own written documents, then you have a good claim. If you ask for accommodation due to your depression--and the problems it causes in timely payment of rent--and the landlord responds negatively or nastily--that too is something to add to your human rights complaint.
True, attacking your landlord through applications will not endear you to them. However, they are not exactly nice now. I suspect that if you give them this symbolic punch in the nose it would do a lot for your own self esteem. Your landlords do not have the right to terminate your tenancy just because you file claims against them. However, they may indeed try to be more miserable than they already are.
Consider getting some help from a local legal clinic. If there is no help there, see if you have any young idealistic new lawyers around. Your Human Rights Case (if you have the evidence) is a virtual slam dunk. You might find a new lawyer (consider paralegals too), who would agree to a reasonable fee out of the winnings. While I don't want to put a number on it, I would expect the winnings to cover any "rent increase" the landlords might ask for for at least a couple of years if not more.
Good luck to you and I wish you well.
Michael K. E. Thiele
www.ottawalawyers.com