Tenants in Ontario are fairly secure in their tenancy during the course of a fixed term. The only legal grounds to terminate a tenancy during a fixed term (the typical fixed term is the one year lease that people sign at the beginning of the tenancy), is for cause. "Cause" includes termination for non-payment of rent, willful or negligent damage, illegal act, impaired safety, and a few other specified grounds in the Residential Tenancies Act (RTA). The security of a tenancy is almost as strong after a fixed term ends. Unless a renewed fixed term is entered into, after the expiry of a fixed term a tenancy continues on a month to month basis. This is automatic, there is nothing that either party needs to do. A landlord can not object or refuse the continuation of a tenancy on a month to month basis.
As in fixed term tenancy, a month to month tenant can be evicted for "cause". The cause grounds are largely the same in the month to month context as they are during the fixed term of a tenancy. What is a bit different is that in a month to month context the landlord has the ability to terminate a tenancy at random times and unexpected times so long as notice is given under the RTA. The type of notice I'm talking about in this article is termination for landlord's own use and for the purpose of this article I'm assuming that the N12 Notice of Termination is given in good faith and that the landlord is entitled to termination.
A notice of termination for landlord's own use requires that a landlord give a tenant 60 days notice with the final day of the notice ending on the last day of the term (usually the day before rent is paid). In a fixed term tenancy the Notice of Termination can not specify a termination date that is sooner than the end of the fixed term. Hence, if a tenant has a one year or multiple year lease the tenant is protected from being evicted for landlord's own use before the expiry of the fixed term. The end date of a fixed term tenancy is known and hence the tenant has the comfort of knowing that their tenancy is "safe" from termination until at least the end of the fixed term for landlord's own use.
In the case of a month to month tenancy, a landlord can serve a Notice of Termination any time; and so long as 60 days notice is provided the tenancy can be terminated at any time of the year. For some tenant's this can be quite unsettling.
Consider for a moment the impact of receiving a Notice of Termination for Landlord's Own Use (Form N12) and only having 60 days to find a new place to live. Certainly, if a tenant is young, footloose and fancy free, healthy, with minimal responsibilities, a termination in 60 days may indeed be reasonable. However, imagine a tenant who has lived in the same unit for a great number of years, may be suffering from health problems, may have a lot of stuff in their unit, may be going on a trip, may have kids in a local school, may be financially unstable and may have dependents or responsibilities that make finding a new place in 60 days an impossibility. What happens to the tenant who can't move or can't find a place within 60 days? Does that tenant become homeless?
The fact is that 60 days notice in the Form N12 is only a minimum notice period. One would hope that a landlord would take into account the circumstances of a tenant when serving the N12. Unfortunately, it is my experience that many landlords read the 60 day notice provision as creating an inviolable right to evict without regard to a tenant's personal circumstances. Thankfully, we have section 83 of the Residential Tenancies Act that allows the Landlord and Tenant Board to consider an appropriate termination date based on all of the circumstances. The Landlord and Tenant Board can indeed recognize the hardship that 60 days notice causes and the adjudicator can delay the termination for longer or even deny it.
Here is an example of an actual case. In the case of Tarsitano v. Duff, the landlord of a small apartment building established that he (age 66) did indeed require the apartment of the tenants (age 78). The landlord was living in a 3 bedroom apartment with his wife, and three other people. The pictures of the unit showed that the landlord's living space was very cramped and that he clearly needed more room. Hence, taking over the apartment of the tenants was considered to be something that the landlord needed to do.
The tenants on the other hand had been in possession of their apartment, on a month to month basis, for over 15 years. The tenants were elderly, on a fixed income, and the husband was undergoing cancer treatment and was terminally ill. There was a recognized shortage of affordable housing (this case was in Toronto) and there was no doubt that finding a new place to move to would impose hardship on the tenants.
The Judge in this case considered the landlord's need (recognized as legitimate) and considered the circumstances of the tenants (very sympathetic). In considering the respective positions of the parties the Judge was free to disregard the 60 day notice of termination. He had the authority under the law of that time to exercise his discretion and do what would be considered fair.
In this case the Judge decided that the tenants should be given more time to find a new place to live. He delayed the eviction of the tenants by 5 months thereby giving the tenants more time to make reasonable arrangements to move. Whether 5 months is enough, not enough, or too much, is not the point. The point is that the Judge has discretion to decide based on the circumstances of the parties.
If you are facing eviction for landlord's own use, or if you are a landlord planning to evict for own use, it is important to recognize that the Landlord and Tenant Board has the authority and jurisdiction to delay or deny eviction for landlord's own use. It is not automatic nor guaranteed. Hence, if you are a landlord I recommend that you meet with the tenants, deliver an N12 based on 60 days of Notice, but at the same time discuss with the tenants or invite the tenants to propose a satisfactory timeline that works. If you can agree to a termination date sign off on a Form N11 that is available from the Landlord and Tenant Board website.
If you are a tenant and your landlord is being entirely inflexible with respect to the termination date go ahead and prepare for a hearing. Be ready to show the Board why moving within 60 days is simply not possible. Have copies of medical records, school reports, travel documents, pictures, and whatever else you have the establishes the reasonableness of the delay of eviction that you are asking for. If a child is in a school district with a special program and termination and moving would deny the child continued access to the program collect that evidence and be prepared to present it. Don't assume that simply saying it will be enough. Be prepared to tell the Board what your plan is, the timing, and the reasons. If your reasons are compelling the adjudicator certainly has the power to grant you the time you need to leave.
[Note that this article was in relation to landlord's who served an N12 in good faith and there are no issues respecting a substantial breach of obligations under the RTA. If there is reason to challenge the landlord's desire to occupy the premises then there are a whole other set of considerations and defences.]
Michael K. E. Thiele
www.ottawalawyers.com
As in fixed term tenancy, a month to month tenant can be evicted for "cause". The cause grounds are largely the same in the month to month context as they are during the fixed term of a tenancy. What is a bit different is that in a month to month context the landlord has the ability to terminate a tenancy at random times and unexpected times so long as notice is given under the RTA. The type of notice I'm talking about in this article is termination for landlord's own use and for the purpose of this article I'm assuming that the N12 Notice of Termination is given in good faith and that the landlord is entitled to termination.
A notice of termination for landlord's own use requires that a landlord give a tenant 60 days notice with the final day of the notice ending on the last day of the term (usually the day before rent is paid). In a fixed term tenancy the Notice of Termination can not specify a termination date that is sooner than the end of the fixed term. Hence, if a tenant has a one year or multiple year lease the tenant is protected from being evicted for landlord's own use before the expiry of the fixed term. The end date of a fixed term tenancy is known and hence the tenant has the comfort of knowing that their tenancy is "safe" from termination until at least the end of the fixed term for landlord's own use.
In the case of a month to month tenancy, a landlord can serve a Notice of Termination any time; and so long as 60 days notice is provided the tenancy can be terminated at any time of the year. For some tenant's this can be quite unsettling.
Consider for a moment the impact of receiving a Notice of Termination for Landlord's Own Use (Form N12) and only having 60 days to find a new place to live. Certainly, if a tenant is young, footloose and fancy free, healthy, with minimal responsibilities, a termination in 60 days may indeed be reasonable. However, imagine a tenant who has lived in the same unit for a great number of years, may be suffering from health problems, may have a lot of stuff in their unit, may be going on a trip, may have kids in a local school, may be financially unstable and may have dependents or responsibilities that make finding a new place in 60 days an impossibility. What happens to the tenant who can't move or can't find a place within 60 days? Does that tenant become homeless?
The fact is that 60 days notice in the Form N12 is only a minimum notice period. One would hope that a landlord would take into account the circumstances of a tenant when serving the N12. Unfortunately, it is my experience that many landlords read the 60 day notice provision as creating an inviolable right to evict without regard to a tenant's personal circumstances. Thankfully, we have section 83 of the Residential Tenancies Act that allows the Landlord and Tenant Board to consider an appropriate termination date based on all of the circumstances. The Landlord and Tenant Board can indeed recognize the hardship that 60 days notice causes and the adjudicator can delay the termination for longer or even deny it.
Here is an example of an actual case. In the case of Tarsitano v. Duff, the landlord of a small apartment building established that he (age 66) did indeed require the apartment of the tenants (age 78). The landlord was living in a 3 bedroom apartment with his wife, and three other people. The pictures of the unit showed that the landlord's living space was very cramped and that he clearly needed more room. Hence, taking over the apartment of the tenants was considered to be something that the landlord needed to do.
The tenants on the other hand had been in possession of their apartment, on a month to month basis, for over 15 years. The tenants were elderly, on a fixed income, and the husband was undergoing cancer treatment and was terminally ill. There was a recognized shortage of affordable housing (this case was in Toronto) and there was no doubt that finding a new place to move to would impose hardship on the tenants.
The Judge in this case considered the landlord's need (recognized as legitimate) and considered the circumstances of the tenants (very sympathetic). In considering the respective positions of the parties the Judge was free to disregard the 60 day notice of termination. He had the authority under the law of that time to exercise his discretion and do what would be considered fair.
In this case the Judge decided that the tenants should be given more time to find a new place to live. He delayed the eviction of the tenants by 5 months thereby giving the tenants more time to make reasonable arrangements to move. Whether 5 months is enough, not enough, or too much, is not the point. The point is that the Judge has discretion to decide based on the circumstances of the parties.
If you are facing eviction for landlord's own use, or if you are a landlord planning to evict for own use, it is important to recognize that the Landlord and Tenant Board has the authority and jurisdiction to delay or deny eviction for landlord's own use. It is not automatic nor guaranteed. Hence, if you are a landlord I recommend that you meet with the tenants, deliver an N12 based on 60 days of Notice, but at the same time discuss with the tenants or invite the tenants to propose a satisfactory timeline that works. If you can agree to a termination date sign off on a Form N11 that is available from the Landlord and Tenant Board website.
If you are a tenant and your landlord is being entirely inflexible with respect to the termination date go ahead and prepare for a hearing. Be ready to show the Board why moving within 60 days is simply not possible. Have copies of medical records, school reports, travel documents, pictures, and whatever else you have the establishes the reasonableness of the delay of eviction that you are asking for. If a child is in a school district with a special program and termination and moving would deny the child continued access to the program collect that evidence and be prepared to present it. Don't assume that simply saying it will be enough. Be prepared to tell the Board what your plan is, the timing, and the reasons. If your reasons are compelling the adjudicator certainly has the power to grant you the time you need to leave.
[Note that this article was in relation to landlord's who served an N12 in good faith and there are no issues respecting a substantial breach of obligations under the RTA. If there is reason to challenge the landlord's desire to occupy the premises then there are a whole other set of considerations and defences.]
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you so much for your amazing blog. This has helped me tremendously as a first time small landlord. My husband and I live apart due to our jobs, but while I was on mat leave, I chose to rent out my house for the year and a half I was gone. The tenant went in knowing it was a short term stay. He asked to have the lease extended from Jan to July to accommodate his two children so they could stay in school. I said that was fine, but for this to happen, I had to rent a one bedroom back where my work is. I have told my tenant that I will be filing an N12 to take back possession of my house as of August 1st. Giving over a 7 month notice. He seems very reluctant to move. Non the less, the N12 is being served in good faith. If this tenant happens to move before the end of his tenancy, I am unable to break my lease until July 31st. So I was wondering, is it okay that my house sits vacant for the time being? Or can this tenant come after me because he had to move and the house is vacant until his original end of lease.
What are the rules? Can I have someone supervise the house until the original lease is up?
If he does end the lease early, and I have to break my lease early and face financial fees from my rental place, am I allowed to move back into my house earyl and have a friend stay with me and help me pay bills if I am there full time in my house, to help me with the cost.
Let me know,
Thank you
HI:
DeleteYou have an interesting dilemma which is arising from giving early notice in a Form N12. As you may see from the N12 form, once it is served a tenant may terminate the lease earlier than the date in the N12 by simply giving a landlord 10 days notice.
I think that an option to avoid this problem is to not serve the N12 form right away. You can inform the tenant orally or via email that you will very likely be serving an N12 form with a termination date of July 31 (remember termination date has to be last day of term--which is usually the last day of the month if rent is being paid on the first), which N12 you will serve at the beginning of May. You can state that it is presently your intention to re-occupy the premises but that you will confirm your intention to do so when you serve the N12.
Does providing this kind of information trigger the right to terminate early. Technically speaking I think not. Is there any value in giving so much notice? If there is value I think it is only with regard to arguing against a section 83 discretion pitch by the tenant who claims to have been taken by surprise and who is unable to find alternate housing within the short time allowed by the Notice under the N12.
If you have already served the N12 with a termination date for the last day of the term then you may consider filing an application based on the N12. 7 months in advance of the termination date is certainly much much sooner than normal but I don't think that there is any prohibition in doing so. The Order may terminate the tenancy for July 31 and it may recognize the tenant's right to terminate earlier. The value in proceeding soon is that it gets all of the issues heard and forces the tenant to either agree or disclose his intentions now if he doesn't plan to vacate. Filing early allows you to get any reviews and/or appeals out of the way before you plan to move in. If the appeal should go longer at least you will have lots of notice of it and be able to plan accordingly.
If the tenant serves a notice to terminate early then certainly you may do the things you describe. Your notice is a clear indication that you plan to occupy the premises for residential purposes as of July 31. If the tenant gives you back possession 7,6,5,4,3, months early then it would not be surprising if you did something with the place on an interim basis.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteThank you for your amazing response to my first question. After verbally telling my tenant that I would like to move back into the house at the end of his lease,after continous late payments and two months of non payment (which she has now paid)
She has written me a letter staying she coming after me for rent increase money. We had an agreement on rent increase, which was above the guidelines. She agreed (considering the house is still 500 below rent in the area) she signed a new lease with the new rent. Now that I have indicated that I am moving back into my house she wrote me an extensive letter of money that I owe her from to much increased rent, and that I owe her interest on her laat months rent, saying 2% on 1200 every month for over a yea, equally iver 130 dollars. I thought it was only 2% over the entire year, not 2% every month.
This tenant has been fine with the rent until I said I was moving back.
Hi: If you have been charging an illegal rent then there is a risk that you will have to repay the difference. What exactly constitutes an illegal rent is not as simple to figure out as you might think. Above guideline increases are permissible for many rental units now as a great many units are exempt from rent control. In addition, there is a section of the RTA that deems otherwise illegal rents legal--see section 136 (RENT DEEMED LAWFUL). Unfortunately, section 136 does not mean what it appears to say as the Court of Appeal has nuanced the language of the section. So, it is necessary to read a case called Price v. Turnbull's Grove Inc., to understand section 136. The case further opens the door on another defence to a claim for a refund of "illegal" rent. All this to say that whether your tenant has a claim for a rebate of rent that was charged above guideline is not a simple yes or no.
DeleteWith respect to interest on the Last Month's Rent deposit. The rate of interest varies year to year and it follows the guideline interest amount. The interest is an annual amount, not monthly, and it is simple interest. This means that interest does not earn interest year to year. There are also provisions allowing the LMR interest to be applied to the LMR to increase it so that the LMR on deposit is enough to cover a full month of rent. If you want to read about that you should start at section 106 of the RTA and read through the subsections. The key point, in response to your question, is that the interest is an annual amount--not monthly as suggested by your tenant.
Michael K. E. Thiele
www.ottawalawyers.com
What if I choose to just give back the money. But two months worth were paid by a housing company. Am I still obligated to give back him that money? Even though the two months iant actually his money
ReplyDeleteA more specific question actually to the following two other questions. THe renter who is going back on our increase agreement, fine, I am providing back his money. But two months worth were paid by housing support, so does the money go back to the renter or to the housing support? And for those two months that housing support paid, do I provide him with the rent cheques for those two months because it wasnt his money?
ReplyDeleteHi: How the tenant caused his rent to be paid--whether from a friend, housing support, OW, ODSP, Salvation Army, Emergency Housing Support from local government, doesn't matter. The rent was paid on behalf of the tenant for the tenant's rent. The focus will be on a potential illegal charge of rent--that may or may not have led to the tenant's eviction--arguably because the landlord charged an illegal rent.
DeleteIn my view the rent should be refunded to the tenant. Your legal relationship is with the tenant. You have no idea what relationship the tenant had with any third party funder and it is none of your business. If you send the funds to the third party funder your tenant could still go after you for a refund of the illegal rent. It will be no excuse that you paid some other entity the money because you felt that the tenant wasn't entitled to it. Of course I am assuming that you have no legal relationship with housing support (no contract, lease, subsidy agreement etc.).
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThis is an amazing blog. I wish I had found this earlier.
Questio , If I have served an N12, and would like to have a N11 signed. If yhe tenent signs the N11. Does that over ride the N12? I am not sure how they work.
Hi: The N11 is an agreement to terminate whereas the N12 is a Notice to Terminate a Tenancy for Landlord's Own Use/ Purchaser's Own use. It is perfectly normal to sign an N11 after the service of an N12 or frankly any of the other Notices of Termination. The service of the N12 or other Notice of Termination brings to a head the issues that need to be resolved. Quite possibly, the N12 contains a termination date that isn't convenient for the tenant. Therefore the tenant proposes another termination date that, for the sake of argument, is acceptable to the landlord. You record the agreement to terminate the tenancy on this other date (other than the date in the N12), in the N11 Form. The reason to use an N11 as opposed to a handshake or an email is that you want to clearly record the agreement to terminate the tenancy. It is then easy to apply to the Board based on the N11 form for an order terminating the tenancy and evicting the tenant if they do not leave by the agreed upon date.
DeleteNote that the N11 and the N12 are just between the landlord and tenant. To give effect to the N12 or to the N11 (i.e. the tenant does not move out in accordance with the N12 or does not move out in accordance with the agreement to termination (N11)) you will need to apply to the Landlord and Tenant Board for an Order. The application form that you will use is a Form L2 (Landlord application number 2). You will see boxes to tick off on this form indicating whether you are applying based on an N12 or N11, or any of the other Notices of Termination (other than non-payment of rent (N4) which uses an L1 Notice of Application).
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Sorry I misspoke, the application to the Board based on the N11 is in Form L3. The N12 is in Form L2.
DeleteGood evening,
ReplyDeleteI am a landlord and have served an N12. I am moving back into my home because of work and am seperating from my partner. I have fallen in finacial hardship and will need assistance. If I am there full time, all my bills and paycheques go to my house. Am I allowed to have a friend come and live with me to help pay bills and help me with my kids? Or can the tenent come after me for bad faith?
Hello: It is perfectly fine for you to have a friend come and live with you in the house. The "good faith" part of serving an N12 is whether there is a good faith intention to occupy the rental unit for residential purposes by the person who is indicated on the form N12 as being the person who will occupy the premises. As you likely indicated yourself on the form that is all that is needed. You do not have to indicate who all of the other occupants in the home are going to be.
DeleteBe aware that if you have served an N12 there is no guarantee that the tenant will vacate in accordance with that notice. To be sure about getting possession of the home I recommend that you file an application to the Landlord and Tenant Board immediately after serving the N12. If the tenant has no problem with the N12 and intends to vacate in accordance with it you will easily get the Order for the date stipulated in the N12. If the tenant does have an issue with the N12, or wants more time, or there is a technical issue, or wishes to challenge the good faith then at least you will now that, sooner than later. If you do not apply to the Board after serving the N12 you can find yourself waiting for the tenant to leave or worse, expecting the tenant to leave, only to discover at the 11th hour that the tenant has no intention of vacating the house.
Good luck to you, Merry Christmas and season's greetings.
Michael K. E. Thiele
www.ottawalawyers.com
Hello,
ReplyDeleteI have been living back in my home now for about 6 months after having evicted my tenent with an N12. An unexpected job opportunity has come up for me in another town, and I would like to sell and move. But how will this effect me in regards to good faith?
Hi: If you are able to prove that the facts are as you state in your comment then there should be no issue with "good faith". The key to the "good faith" issue is whether you served the tenant the N12, in good faith, at the time that the notice was served. The question is therefore whether you had a good faith intention to occupy the premises for residential purposes when you served the N12. If the answer to that question is yes, then it doesn't matter that your plans changed or that a new opportunity arose after the fact. Incidentally, there is caselaw on this point dealing with situations where a landlord's plans change after the tenant moves out but before the landlord ever occupies the premises for residential purposes. Even in those cases there has been no issue with the "good faith" of the notice.
DeleteWhat will be important for you is to maintain an evidentiary trail of how this unexpected opportunity arose. If your tenant does try to pursue a claim it would be very helpful to you to have emails, letters, etc., that demonstrate that your opportunity arose well after the N12 was served and you took possession of the premises.
Michael K. E. Thiele
www.ottawalawyers.com
Happy New Year Mr. Thiele
ReplyDeleteThank you for this blog. I find it more resourceful then calling the LTB, as I find I often get contradicting responses depending on who I am talking to.
I have a question for you, but I am not sure if this is more of a legal matter then advice.
I have handed an N12 as I was thinking I was going to be returning to work as of Sept 2016, but now have the opportunity to return in December 2016. Am I allowed to resubmit an N12 form with the later date, or will this come back as bad faith? I don't have any paper work to say I was going back to work in Sept, other then that I thought I had to but now have the opportunity to return in Dec.
If it is considered bad faith, I can return in Sept no problem.
I just would like to know if it is wrong to resubmit an N12 with a different date, or whether it is opening a can of worms.
Hi Michael,
ReplyDeleteI just found your blog and I am sure I will be following it from now on.
I am the landlord of a small building. I talked to my tenant of wanting to move in and they responded that they are also thinking about moving out. I told them that I will need the place in two months but they are thinking about 4 months. Eventually they signed N11 with a vacancy date of 4 months later and asked me not to use form N12 with a 2 month vacancy date. I agreed and signed the form N11. Now my problem is because I agreed to the 4 month delay and my renovation was a mess because the tenant left the place in such a poor condition, my wife had already gave birth (for 4 months) already and do not want to move into the new place at this moment. Am I still required to move into this new place since they signed form N11?
Hi Michael,
ReplyDeleteI have been served with a bad faith accusation because the tenent is arguing that I am not there.
I am gone every weekend because of child care situation, but my drivers licence has been switched to the gouse I served the N12 on, all the bills are in my name, and I have proof of payment on those bills every month.
What other evidence do I need to prove I live there?
Hi: As I read your comment/question I see you are asserting that you do in fact live in the rental unit. Presumably when you served the N12 form on the tenant you had a good faith intention to occupy the rental unit for residential purposes. Once the tenant vacated I trust that you moved into the rental unit within a reasonable time period and this house is now the place where you live? If those are the facts then you should have no problem defeating the former tenants application. The issue will be to simply prove that you live there.
DeleteYour driver's licence is a good government document that proves where you live. Other bills are useful, not because they prove you live there, but because they should help prove that no one else does. On top of that I would take pictures of the house, room by room, showing how you are occupying the space and living in it. Pictures of your bedroom--your bed, your dressers, your clothes hanging up in the closet, toiletries, pictures on the walls. Pictures of the kitchen, pots and pans, cutlery drawer, food in fridge and pantry, kitchen table, pictures, etc.. You get the idea, same kinds of pictures for other rooms. If you have immediate neighbours who know you consider getting them to sign a document confirming that they know you moved in, that they see you around and that they believe you live in the house. While the document is technically hearsay, it is admissible and will have some weight for the adjudicator hearing the case.
The last bit is dealing with the fact that you are gone every weekend. The first point to make is that serving the N12 and taking over the rental unit does not require you to occupy the premises on every day of the week. You are allowed to go other places and you don't need to occupy the space on a constant basis. However, there is a bit of nuance in this. There is caselaw about landlord's terminating tenancies for own use for the purpose of occupying the rental unit as a pit stop between business trips or as a place to stay a few times a month when in town. There are other cases about the landlord wanting to make the rental unit available for their kids during summer holidays. There are cases about home based businesses. The thrust of these cases is to demonstrate that the intended occupation of the premises was not as a full time home. The nature of the occupation was transient or not for the purpose of residential occupation in the sense of this is where the landlord would call home.
Being away every weekend for a child care situation is not necessarily a problem. The issue will be how you explain this situation and whether you can still maintain that the house is your full time home and that when you are away on the weekends that you are visiting somewhere. If, on the weekends, you are going to your real house/home then there could be a problem as that would begin to suggest that your occupation of the rental unit is not as a home but for some other reason. I presume this is not the case given your changed driver's licence address.
If there is more to this story and the child care situation is factually complex you may wish to consult with a lawyer or paralegal and give them the details. There are other defences to this kind of application and the approach that you are "living there" is not the only defence you have available (the other defences depend on certain facts being true which information is not available from your comment---hence the value of a lawyer consult).
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael.
ReplyDeleteIt is infact my primary residence. Its the only house I own. Is there anyway to prove it is my only house I own??
If I can prove it, will that hold any defense for me?
Hi Michael,
ReplyDeleteThanks for taking the time to consider my question:
I am a tenant and after my year contract an opportunity came up for a great place. We weren’t even looking and had the expectation of staying in our unit another 2 years and even previously communicated that to the landlord. When I inquired with the landlord how they felt about it they offered us a rent reduction if we stayed and committed for at least another year. We decided that we were not willing to move and agreed to their offer and have been paying the reduced rent for a few months. Two months later we get a N12 form by email with errors on it. We didn’t sign a contract, it was just a verbal agreement. What are my rights? Can the landlord actually evict us when there is a verbal agreement in place?
Hi Michael
ReplyDeleteThank you for this site. I have learned so much.
I was served a n 12 the landlord wants to have a family member live in his apartment. However. He gave it to me on jan 2 and said I have until March 3 I told him that the form is not valid as it goes into another term which means I would have to leave at the end of March ... That being said he got very upset and it has been horrible living there since.
I want to just leave however my question is
If I use my 10 day end tendency which is on the n 12 form to leave feb 1. Could I be liable for outstanding rent as in reality the form he gave me is void as it was given to me on the wrong day..
Thank you
Hi: This is a great question. I don't have a definitive answer for you as I am unaware of any appellate authority on the issue (which would be a binding authority). I have had this very issue at the Landlord and Tenant Board and I argued reliance by my client on the Notice of Termination--even though it was void. The adjudicator agreed and terminated the tenancy, again by order, based on the date that my client moved out in reliance on the void notice. That being said, I've read at least one summary where the tenant relying on a notice was penalized because the Notice of Termination was void. That outcome certainly seems unjust especially when he tenant does not know that the Notice of Termination was void. In your situation I wonder in the equities would not go against you. You are aware that you are dealing with a void Notice of Termination and have expressed that to the landlord already. You would not be an innocent tenant relying on the Notice in good faith.
DeletePerhaps you should consider approaching your landlord with an N11 Form, put in the date in accordance with he N12 rule. Point out that the N12 gives you the right to terminate earlier and ask to confirm the termination in a Form N11 because of the apparent deficiencies in the notice. If the landlord balks you can always point out that whenever he does serve you with a proper N12 you can give the same short notice. If that simply goes nowhere consider an application to the Landlord and Tenant Board in Form T2, seek termination due to treatment and circumstances since the N12 service.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael for the response above
ReplyDeleteI talked to the landlord and he said that the n 12 notice to vacate due to him having a family member move in is valid even tho he gave gave it to me on feb 2. He said it is valid because he has text messages between the two of us trying to connect to pay rent on the 1 and the 2 So because he was and I was unable to meet on the 1 to pay rent he was not able to give the form to me on time. With that I decided that he was telling the truth and that the form was in deed valid. So I ended up finding another aparent and have already paid my last month rent to secure. I plan on moving into the apartment on feb 1. He wanted me to leave at the end of March as he has a family member moving in.
My concern is that he will take me to court for the last month or possibly even for more as I have already stated to him that the form is not valid but then I conversation he assured me that it is due to the text messages.
I also owe him 150.00 from my current month but I have had to shovel five times now to move my car. He is suppose to shovel as it is the law and he agreed it will be part of rent.
I would like to know one can I be liable and two I only took pictures of shovelling one time. Will the court take my word on the fact that I have had to shovel more the. 150.00
Also in regards to finding out after I have already signed another lease and having to move. Could I possibly take him to court for expenses due to having to move from a n 12 that I thought was valid later to find out it was void
Thank you
Sincerely
Hi Sheenah: The explanation in relation to text messages, picking up the rent, and therefore not being able to deliver the notice is in my view pure nonsense. The N12 is still, in my opinion, not a valid N12. That being said, your landlord appears to maintain that it is a valid N12 and that he is relying on it to require you to vacate the property. Hopefully these assertions are documented in text messages or emails and you can point to them if you ever need to do so. As you have committed to moving I think that at this stage you strongly assert the early termination rights you have in the N12. You should rely on the early termination rights and give notice accordingly.
DeleteThe landlord may indeed try to get more rent from you as it seems to me that he has a very poor understanding of the Residential Tenancies Act. You may always defend such a claim based first o the N12 being valid (and hence having an early termination right) and second, if the N12 is deemed invalid and you thereby not having an early termination right, that the discussion about the validity of the N12 lead to an agreement that you could terminate early based on terms of an N12 or based on the representations of validity even after you pointed out the problems to the Landlord. It seemed to me that the Board would be very sympathetic to your position.
Charging for snow shovelling and reducing rent is entirely self help on your part. If it works, great, if not you will be liable for that rent subject only to you proving a claim for the work you had to do.
As for pursuing the landlord for expenses arising from a void N12 there is a theoretical possibility of that but I don't see it being successful. That the N12 was void is apparent from the form itself and the notes. I don't see an adjudicator granting damages for you relying on a Notice that you could have easily discovered is void. That being said, the only opinion that really matters it that of the adjudicator.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much
ReplyDeleteI gave him my notice for 10 days and also sent a text to confirm.
He acknowledged tha the received it and that I will be leaving in 10 days. So I now have a agreement in text that we both know that I will be leaving in 10 days. I believe that the both of us will now be covered in terms of trying to collect more money after I leave !!
Thank you so much for you time This is an amazing and much needed site for both tenents and landlords
Much appreciated
Hi Michael,
ReplyDeleteMy husband and I are in a unique scenario where due to unfortunate circumstances we had to move across Canada for good in which I immediately informed my landlord in Toronto on Dec 14th and he agreed to early termination with 60 days notice. We vacated the place on Dec 21st. While we fully paid for the month of Dec and our deposit was kept for the January rent, both parties agreed that he is going to try to re-rent the place and if so we might get part of that deposit back and worst case scenario if he doesn't find anyone for the month of Feb, we owe him half the rent with respect to our 60 days early termination notice. last night (Jan 26th) he informed us that his intentions to rent the place changed early Jan and he deiced to sell the place instead of renting and that a selling agreement was firmed up as of last night with his possession date set for mid Feb and he is requesting us to pay for half Feb rent until his place is sold. I looked up the Ontario Act last night and I'm wondering if lack of reasonable effort to mitigate damages clause would apply here or not and if we are responsible for the rent for time in which the landlord was not making the unit available to prospective renters.
Thank you in advance
Tera
Hi Tera:
DeleteI presume that your landlord let you out of a fixed term lease for which you could not have given 60 days notice. In "trial" this will be an important fact for a judge in deciding what is fair.
In negotiating the 60 day termination you appear to have gotten the landlord to agree to refund any prepaid rent should the unit be rented sooner. That certainly is more than fair especially if there is nothing said about the re-renting costs of prepping the unit, advertising the unit, showing the unit, paying a commission, etc.. Is it safe to presume that the landlord expects a significantly higher rent? Just trying to figure out why he is being so generous as he did not have to be.
The landlord changing his mind on re-renting and deciding to sell clearly is a change of plans. It doesn't necessarily "fit" within the scope of your deal. However, there is still a question of whether suitable replacement tenants would have been found sooner than the 60 day window. I think it is entirely possible that a Judge would conclude that the early termination of a fixed term lease, in your favour, gives the landlord a little leeway to decide how to go forward. Adjusting his plans within the notice period is a reasonable thing to do and the law generally does not require a landlord to re-rent within a notice period even if the tenant gives up possession early. The landlord may indeed use the notice period to fix the place up and get it ready if the tenant's decide to return possession early. To my mind this does not fall within the mitigation of damages provisions of the RTA. That being said, you seem to have reached terms that include having the landlord look for a new tenant right away. This becomes a compelling argument if you can show a hot rental market (easy to re-rent) and that the landlord gets an advantage by terminating your lease and getting a potentially higher rent from new tenant or selling into a hot real estate market and being able to give vacant possession to a new purchaser (which he couldn't do during your fixed term lease).
All this to say, it really depends on how you look at what happened here. Ultimately, the landlord is not double dipping and not getting two rents for the same time period. Deciding to take the 60 days notice to sell I think is reasonable. You would have been stuck with 60 days notice in any event and I don't think a Judge would look as the landlord's decision to sell as unreasonable.
If you had simply moved out, without making a deal, the landlord would have had a duty to mitigate losses by trying to re-rent. If this were the scenario, my experience is that a Judge would give the landlord the 60 days without question. The mitigation inquiry would be focused on what happened after the 60 days and be less focused on the 60 day time period. Of course, if the unit were re-rented sooner then the damages would be reduced.
Sorry that there isn't a definitive answer to your question. I think it really depends on how the story is told and who the Judge is.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteJust to quickly add to this, based on our initial agreement with the landlord, chances of the unit remaining empty for the month of Feb was near zero due to its location, amenities, and etc. we weren't asked to leave a deposit for the month of Feb (later he also admitted he turned away potential interested tenants as he "changed his mind" (vs. initial agreement) in early Jan to sell instead in an email). Is there a chance to argue that this decision that we were fully unaware of when we agreed on the early termination terms back in Dec changed the chance of the unit being vacated drastically from near zero to 100% which is major change of the terms in the initial agreement that could potentially nullify it? Since we were under the impression that the unit will rent, we rented a place in the new province as of Feb 1st, had we known from early Jan when he changed his mind and as a result of a new agreement between the parties, we could have stayed with a family member and not get hit with double rent. Since my husband and I are not looking for trouble, we offered him to split the difference. I understand you can't give legal advice. I just want to know if he decides to take us to a small claims court, do we have a case or I'm just plain wrong?
Thank you again
Thank you very much for this Michael. This helped a lot. the reason he didn't charge us for the re-listing and showing costs was that our lease was coming up on Feb 2016. so he would have had to pay that shortly anyways and yes he did list it at a higher price and he did have interested parties who he turned away. We also got professional cleaners do a great job where he even admitted the place looked better than when we took possession so no time was wasted on maintenance or cleaning. Thank you so much again for your response and help! greatly appreciated!
ReplyDeleteHi Michael, I have recently given my tenants 80 days notice and they have come back to me requesting an additional month or two, but they also indicated that they would prefer not to move at all. As such is there something I can do prevent a pattern of delays? I understand the N11 form would indicate a clearly agreed upon termination date, however how binding is that? Would it be better to maintain my original date and then, if I were to grant them an extension, could I do that under a new short term lease (ie a fixed term on two months)? Would this remove them from a month to month contract which is what the current lease terms are, they have been in my house for more than 2 years. There prolonged residency at my house may cause me out of pocket expenses, is there a way to integrate those into the new lease? Any advice would be greatly appreciated!
ReplyDeleteHi!
ReplyDeleteWe recently received an N12 with 80-day notice, with the landlord repossessing for personal use. I have a few questions about this ...
Our landlord, who lives and works in another province, had this to say about the reasons for the N12: "My company has recently gone through significant organizational changes which has led to my role requiring that I spend more time in [Ontario]. With this in mind, I have determined that it makes sense for me to have the house available for my personal use in order to meet the new demands of my job."
1. Are there any minimum standards of occupancy that must be met for a landlord to claim "personal use"? Does it need to be their primary residence?
2. For a number of reasons we strongly suspect (but can't prove until it's too late and we've moved out) that the landlord intends to have another tenant occupy the house full-time, and then possibly the landlord will occupy it occasionally it for personal use while visiting the city or on business. Would this be legal?
3. Since we can't prove that #2 is happening until after we have already moved, if we could prove (after the fact) that this had happened, would we have any legal rights to recourse? What could that compensation look like?
4. Assuming we do have to move, we want to withhold our rent, and apply our last month's rent to the upcoming month (the first of our two months allowed). Then, if we want to use the 10-day clause to terminate before the 80-day period the landlord set, we would be able to do so without needing to ask for our money to be refunded (we have reason to believe this would be an arduous process that the landlord would fight). If we ended up staying for the second month, we would pay for that. We would prefer this option because WE are honest, and we know that we will pay whatever we owe, but we do not trust the same about our landlord. Would this get us into any trouble?
5. If we use our 10-day notice to terminate in the middle of a month, is the rent then pro-rated for that month?
6. When calculating what we owe, is it fair to consider the interest owing on our last month's deposit, which the landlord has never paid?
I know this is a lot! Thanks in advance for any information.
Hi Michael.
ReplyDeleteI am having a situation with my current Basment apartment, and it's actually really upsetting me
I live in a Basment and the old owner sold the house with me in the Basment. This was 60 days ago. The new owners took possession on July 1, they have not moved in as they are doing renovations on the upstairs where they will live.
After two weeks of renos and being woken up every morning 7 days a week, I wrote emailed ( as per requested by them for communication). Asking how long the renos will take and if I could be informed when it will Interfer with my reasonable enjoyment.
They became very defensive saying they do not have to inform me of anything and in fact will be working even earlier and longer to get it done. At that point I snap shot some pictures of rules from the tenent board website and emailed them, my rights as a tenent.
The emails went back and forth for the entire day, leading to them saying they don't have to tell me anything or have to keep it down. On thier last email of that day, they said they wanted to meet in person to give me a n 12 as they do not want to be landlords anymore and want the apartment for themselves.
I know that this was done in retaliation to myself asserting my rights as a tenent, and have the entire conversation in email.
Also they bought the house knowing there is a seperate Basment apartment with a tenent in it and had 60 days and day of purchase to decide that they do want a tenant.
It is pretty obvious that the one time I speak up for my rights they then decide to use a n 12 for personal use the same day of disagreement. They could have provided this when they took passion or when they bought the house. Clearly this was retaliation.
My question is , does the board not have to deny the n 12 as they clearly did this because I used my rights and they didn't want to deal with it or reapext that so they kick me out. Even if they do indeed and have decided they want the apartment for themselves ..
Thank you sincerely.
Amanda
Hi Amanda:
DeleteThe landlord will need to prove that when they served you with the N12 that they did so in good faith with an intention to occupy the premises for residential occupation. Certainly, your defence will turn on the issue of whether this is "good faith" and whether they actually intend to occupy the premises for residential purposes.
Your question is phrased well. Does the Board have to deny the N12--with the emphasis on the "have to". In fact you have a point. Section 83(3) RTA deals with situations where the Landlord and Tenant Board is required to refuse an application. One of those circumstances is in section 83(3)(c) which provides that an application must be refused if the reason it is being brought is that the tenant has attempted to secure or enforce his or her legal rights. It does seem that the N12 and the application is directly connected to your complaints about the interference with your quiet enjoyment.
That being said, how the Board rules really depends on how the adjudicator perceives the issues between you and the landlord. How the evidence comes out and what the legal implications of the evidence is is something that you should likely be a bit coy about until the hearing. I can see this application turning out either way as it is entirely conceivable that the landlord could explain the manner of service in a way that is not inconsistent with the Residential Tenancies Act. Then again, if the evidence is damning and you even get the landlord to admit that they served the N12 because they considered you to be a nuisance etc. and therefore decided to just use all the space you then have a good defence. Much turns on how the evidence comes out.
Good luck to you
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
Thank you very much michael.
ReplyDeleteI feel like the fact that they decided to give it to me and decide to give it to me during a complaint is pretty clear. Considering they bought the house w a tenent in it and had 60 days to provide this to me. They also could have done it on July 1 when they took possession of the house. However they did not and gave it to me when we had a disagreement over my trying to have my rights met as a tenent. Which is in violation.
On a side note, the n 12 form I think may be void as they put the address as the house and did not put basement, which is where I live. Does this mistake not void the n12?
You have provided me with some relief over this matter.
Thank you for your service !!
Hello Michael! You are just awesome! Wealth of knowledge gained by reading these posts.
ReplyDeleteI have 2 questions,
1. Can I reissue my N12 with corrected end of agreement date (last day of the month) but with the same issue date?
2. The day I presented my tenant with N12, he got really upset. My place is not registered or zoned for renting. He actually complained the city about the safety of my apartment. Inspector did an inspection and could not find any safety issue. She rather issued me Order to comply, with 2 options, either to apply for registration or to remove the stove from the apartment and not to rent that place. Can the LTB held me liable for renting out an unregistered place when I will go for N12 hearing? What options I have now? Thank you so much and waiting for your valuable reply.
Hi Imran: If your original N12 is somehow defective it is legally "void". You are not able to correct it. You will need to prepare a new N12 and serve it with the appropriate notice (60 days to end of term). Using the original issue date does not work.
DeleteYour second question is more complicated. A rental unit that is "illegal" in the sense that it is contrary to the zoning by-law or otherwise non-compliant with the law does not actually make the lease illegal nor does it permit you to interfere with the rights of the tenant in the unit--even though the rental unit is non-compliant.
The City Inspectors order does not over-ride the rights of the tenant under the Residential Tenancies Act. Ordering you to remove the stove from the apartment does not over-ride your obligations to the tenant and the Residential Tenancies Act. Taking the inspector up on one of the "options" might actually have you breaching the Residential Tenancies Act. You can only do what the inspector orders--vis a vis the tenant--if you do it in accordance with the Residential Tenancies Act.
I do not see how you can lawfully remove the stove while the tenancy continues and the tenant is in possession of the unit.
You could try to terminate the tenancy--which I suspect is what you are doing with the N12. Presumably you are choosing to take back the unit and no longer rent it out?
Keeping the City at bay while dealing with the landlord and tenant issues might require you to get time extensions from the inspector. Failing agreement you might need to appeal any order to give you the time to deal with the tenancy.
Good Luck
Michael K. E. Thiele
www.ottawalawyers.com
This is a great thread! I just had a hearing as my landlord is evicting me for personal use.
ReplyDeleteI was concerned because they served my N12 by regular mail postmarked 6/27/18 and I didn't receive it until 7/3/18. This does not add up to 60 days notice with an eviction date 8/31/18 but it does apparently! The adjudicator ruled 60 days notice was given because service by regular mail is deemed to be delivered 5 days after postmarked. Hmmm, I cannot find a clarification if these days are calendar days or business days. It was also Canada Day weekend with no mail service that Monday. Where is this in black and white in the RTA? Do I grounds for an appeal or review of this order?
Hi: Based on my count the N12 is void and yes, you do have review or appeal grounds. Look at Rule 4 and Rule 5 of the Landlord and Tenant Board Rules of Practice. This will give you the computation of time process and how to count days (including holidays). Based on what you indicate--and with the N12 being served by regular letter mail--the earliest termination date would be the end of September (not August).
DeleteAppeals or Reviews need to be filed within 30 days of the date of the decision. Extensions of time are possible if you are beyond these time lines and are still in possession of the premises.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Afternoon. My son was notified (not via a proper N12) that he was being evicted under the 'personal use' provision. The Landlord badgered him and my son eventually signed a termination of tenancy agreement. My son was under very significant duress at the time (he has mental health struggles) ; he doesn't remember what he signed and the landlord never gave him a copy of what was signed (I've asked for it but he hasn't given it). The landlord has counsel and counsel said the apartment is a 'month to month' situation so the N11 and N12 aren't necessary.
ReplyDeleteMy son needs more time to find a place but the landlord won't allow him to stay passed 60 days. The 'personal use' is for the landlord's (who is not the legal owner of the house, btw) daughter. The daughter and her husband live in the first two floors of the house and my son rents the top floor. I find it very hard to believe that the landlord is acting in good faith or that the daughter intends on moving into the top unit - - that would be akin to her 'needing' two full apartments in the same house (the floors she occupies are quite spacious). I think they've promised the unit to a friend and that's why they won't/can't allow an extra month or two to find a place.
There has been ongoing issues with the landlord not tending to repairs so there has been conflict between the landlord and my son.
Any suggestions on how we can respond to this mess?
Hi: On the assumption that the Residential Tenancies Act applies (which I think it does if your son has a self contained apartment and doesn't share kitchen or bath with the landlord) I think you are best off to immediately file a T2 application to the Landlord and Tenant Board. If you explain what happened in the terms described here then you may expect the LTB to consider the entire circumstances and to void any action that may have interfered with the tenancy. It is difficult to know exactly how to respond as the landlord is not giving you the paperwork. I will guess that your son signed an N11 (Agreement to Terminate). The landlord may have applied to the Board based on this Agreement to Terminate. An order will come in the mail in accordance with that N11 form. You have 10 days from the date of the Order to file a motion to set aside which will be automatic and then you will have a hearing to determine whether the N11 is enforceable. IF waiting for that Order to arrive and absent clear direction from the Landlord you can file the T2 described above--the alternative is to just wait for the Order and file the motion to set aside. Continue to document your disagreement with the termination and make it clear that your son intends to stay.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your prompt response and guidance. The landlord and now his counsel have articulated many times that they didn't have to provide any reason for their actions and they don't see the situation as an eviction...even though they write that he has been evicted and needs to vacate by the end of the month. They often write very contradictory statements in their emails so I struggle to understand their logic. It's an awful situation.
ReplyDeleteMy son had a year lease that converted to a 'month to month' arrangement after the first year so counsel's assertion that my son's tenancy can be terminated at any time for no reason because he no longer has a lease and/or rental agreement seems inaccurate to me.
The unit is a one bedroom, fully self-contained apartment. It's been very challenging getting information; they say they will send the requested documents then they don't.
I wasn't aware a T2 would apply in this type of situation so thank you for directing me to it.
Your assistance is very much appreciated. Have a nice weekend.
If a N11 notes a completely incorrect date for the signature, does that impact the validity of the N11, especially if its being argued it was signed under duress?
ReplyDeleteThank you in advance for any assistance you may provide.
Hi: I don't believe that the date for the signature, being incorrect, will make much of a difference. If it is a situation of just being mistaken on the date and that mistake is not material to the understanding of what was being signed then I don't see this as voiding the agreement reflected in the N11. However, if the date is wildly wrong and somehow the printed date is probative in determining that the signature was made under duress then the "wrong" date may be a valuable indication that the N11 was not signed voluntarily.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael; I have lived in what was a shack of a farm house for 35 years. The rent was cheap because it was not rent able but I was a young ambitious carpenter. The landlords are extremely wealthy and when I offered to buy one of their other homes in 1995 she said "oh no Terry please stay there, it is good for us and good for you" So, i stayed and kept fixing it up, sometimes significant projects approved by the landlord. Over the years $ 500k of improvements. I did an addition on the living room because the wall was going to collapse if I did not. $ yrs ago the grandaughter came into the house on an insurance inspection and when she gor back to the office she commented "Terry's place is beautiful, we should be charging a lot more rent for that.Well last February 2018 they dropped a leasing agreement on me and want to raise it by 1400. per month. They even tried to coerce me into the agreement with a signing incentive of 14k. They tried up until last sept with 4 different leasing agreements and even had an associate call me and threaten to sue me for the additions I did. He did send an inspector in sept. I was a contractor all of my life until I got sick so everything is top notch. I lost my health career and life savings in 2003 and am permanently disabled. Last week the changed from wanting more rent to wanting to move a child in. Both children live in Toronto (fathers condo's of which he has many) They also have an empty house on the property here just 600ft away from me for 2 yrs and another home that will be empty later this yr. I have lived in the area all my life at age 58 and am low income. My 78 yr old mother lives in an apartment I built for her here. Does this sound like bad faith?
ReplyDeleteTerry
Hi Terry: The facts as you've laid them out certainly support "bad faith". It would be quite interesting to defend this application. Usually, when I get a question like this I lay out a possible strategy--especially when the facts are generic enough that the question could be from "anyone". Your facts, I think, are not generic and I hesitate to answer given that this blog is very widely read ( just about 3 million page views) and you landlords could very well end up reading this.
DeleteYou should approach this case strategically and I would indeed recommend that you speak to a lawyer or paralegal who is experienced in Landlord and Tenant law. You have a strong position to beat this.
Good luck
Michael K.E. Thiele
P.S. when the case is done--however, it goes, I'm happy to comment generally on what I see as your best defence (just for the readers of this blog).
Hello Michael.
ReplyDeleteI've received N12 for landlord's use. Apart from my grave suspicions that it has been given in a bad faith (after landlord's son(as representative) repeatedly trying to increase my rent without giving me a proper notice and me standing up for my rights) with the intention to re-rent it.
The name on the form is not the landlord's but of her daughter's and indicates that the unit is needed for "my child" (form signed by a representative - a lawyer). Does that make a notice void, if the landlord's name is not correct (or the relative who's claiming to be needing the unit would be the landlord's grandchild according to this form)?
2)Would the notice be valid if the daughter has P.O.A. for her elderly mother(the owner of the house)?
3) would the notice be valid if the property was signed over from mother to daughter?
If it matters, my lease agreement is with another representative (the other son who's not even living in the country - not the one who harassed me over the rent increase) and he's the one collecting rent (bank transfer).
Thank you.
Hi: Before you say much or anything to the landlord or his or her lawyer you should do some more investigating. I'd be inclined to get a title search of the property and include in that search any transfers of the property over the last little while. You seem to be on the right track with your concerns and certainly the multi-generational issue is a strong technical argument. I trust you are aware of section 48 Residential Tenancies Act that spells out the mechanics of the landlord's own use. You are correct that "grandchild" is not a person for whom an N12 may be served.
DeleteThe Board will look at the circumstances and try to figure out what is actually going on here. Given you're dealing with sons and daughters I'm going to guess that the mother owns the house and is the landlord. Her kids just take turns as her agent to manage the property for her. While it is possible to have more than one landlord (by definition), I think that in the context of section 48 the owner's children are not going to be landlords for the purpose of serving an N12 for their own kids.
The title search will tell you who the owner is and if ownership was transferred from parent to child then the new owner becomes your landlord. The new landlord may indeed serve an N12 and has to prove it just like any other landlord.
The technicalities of what needs to be on a Notice of Termination is addressed in section 43 RTA. While the Forms clearly have boxes for landlord's name and tenant's names you can see from section 43 that this isn't actually required information. As such, I'm not sure that much turns on this unless the form--by the absence of the information causes confusion.
Hope that helps you somewhat. I'm not sure what your "goal" is but be aware that getting more time to vacate is fairly common. If your goal is defeating the application outright then what you are considering is the right way to go in finding the technicalities and legal issues that call into question the legality of the application.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you very much Michael, the title search alone is indeed a helpful suggestion. My goal is to defeat the application. I thought my course would be to find fault in the notice first (btw, the 1-month compensation has not been paid), and if it turns out to be valid, then bring up bad faith. Let's say this notice is found invalid, but few months down the road the landlord's family serves another - valid notice? Would they be able to evict me then? Do you think my chances are better or worse if I file a bad faith claim now or at least state my suspicions at the hearing anyway (or in the first place)? Or save them for later in case the family comes up with another trick to get rid of me?
DeleteThank you, really appreciate your help.
Hi: In my view, the place for using the grounds you have is at the hearing, on the record, with the goal of getting the landlord to respond under oath to the allegations. That being said, there is an order to these arguments, at a hearing, as well. At the hearing you start with the technical issues and hope that you can knock out the application right at the start. If the N12 is void then the case should end and you won't have to lead further points or evidence. Sometimes, however, if the adjudicator wants to avoid ruling on the spot they will want to hear the whole case and decide all of the issues. If that's the case then you should run through the evidence for each argument and argue it. I'm inclined to disclose what is needed to win. If you're not getting a dismissal during the hearing then lead the whole case---don't save anything for the future as the future may not be what you want it to be.
DeleteAs for refiling. If you knock out an N12 on a technicality the landlord ma reserve and proceed on another application. Even if you the N12 was dismissed after a merits hearing nothing stops the landlord from serving another one, at a later date, and trying again.
If the landlord tries again because of a technical deficiency and the merits were never heard then the prior attempt is unlikely to mean anything. If the landlord tries again, after a dismissal on the merits, then the prior hearing and Order is much more significant. You would argue against multiple attempts as an abuse of process etc.. How that argument plays depends of course on the facts.
If you get into a full merits hearing and you expect to win and anticipate future attempts and presuming your examination skills are up to it, you may think about asking questions of the landlord that when answered under oath could be problematic for the landlord in future applications. Getting answers that are useful in this way is likely more about luck than planning but give it some though and if you are able to have hearing evidence transcribed--and it is relevant for future cases--then it is fair game to use.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks a lot, Michael. I start wrapping my head around it.
DeleteJust one more thing. Would it be possible (and wise) to request the merits to be heard and recorded even if the adjudicator dismisses the case on technicality?
DeleteIn the LTB context, if the matter is dismissed on a "technicality" and that is done on a motion before the start of the hearing the chance of the Board hearing the case on the merits is just about zero. The Board won't entertain that request.
DeleteMichael K. E. Thiele
Hi Michael, Thank you for this interesting and comprehensive article. I have a question. If the tenant does not evict based on N12 and signs an N11 for a delayed eviction time, are they still entitled to receive one month of rent? Also, can they dispute the original N12 form in the future? Thank you very much.
ReplyDeleteHi:
DeleteThe N11 is an "Agreement to Terminate" whereas the N12 is a Notice of Termination for Landlord's Own Use (s.48RTA) (and sometimes for Purchaser's Own Use (s. 49)). In your case, if you were entitled to compensation on the N12 it was for landlord's own use as no compensation is payable if the N12 was served for purchaser's own use.
The answer to your question is going to be so unhelpfully "sometimes yes, sometimes no---but mostly yes". It is all a matter of characterizing what happened and what did the parties understand that they were doing. I don't think that it is impossible to trade away the compensation entitlement but it needs to be explicit and be truly, freely and voluntarily waived.
In my view, the service of the N12 for landlord's own use triggers the compensation obligation regardless of any N11 or any other legal action. In the context of your N11 I presume that the agreement to terminate was reached because of the N12. But for the N12, there would not have been an N11. In my view, any "agreement" to terminate as reflected by the N11 is void to the extent that it purports to cancel the compensation owing from the service of the N12. In my view, any "agreement" to avoid the compensation provisions amounts to a subversion of the RTA and it is clear that the legislature took great pains to prevent that. Section 4 of the RTA makes void any tenancy agreement or provision thereof that is inconsistent with the RTA. While it's not perfect, it seems to me that an agreement to terminate (which deals with the occupancy of a rental unit--or the ceasing to occupy it) is a tenancy agreement by the definition in section 2 of "tenancy agreement".
So, my starting legal position is that an N12 for landlord's own use--when served, requires payment of the compensation. I think that this is the fair interpretation of the compensation section (s. 48.1), which states:
Compensation, notice under s. 48
48.1 A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48. 2017, c. 13, s. 8
Note that the compensation obligation is triggered by the service of the N12 and not the vacating the unit in accordance with the N12.
With respect to challenging the N12 in the future---lack of good faith, I'd have to say in general terms that this remains open notwithstanding an N11. There will be circumstances where the agreement waives such a claim and I think that, unlike waiving the compensation, is possible.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteI was served with an N12 a few weeks ago by my landlord because she had sold the unit and would need it vacant . After receiving the N12 a couple weeks later I met up with the landlord and we both agreed to sign the N11 for the same date stated on the N12 . After signing the N11 a week later I get a notice of hearing L2 application and reason is the N12 .. she had already filed the n12 before we signed the N11 . Now do I still have to go to the hearing even though we both agreed to sign the N11?
Hi: I am loathe to say "don't go to a hearing" because you just never know what might happen. That being said, the risk to you should indeed be zero. As you are not disputing the N12 and are agreeable to moving out on the termination date the hearing doesn't present a risk to you. The LTB is not permitted to terminate the tenancy for any date sooner than the termination date in the N12. The costs of the application should not flow against you as it is no fault application.
DeleteIf you did not attend I would expect to receive an Order in the mail terminating your tenancy for the date in the N12.
While there is no formalized way to tell the Board your intention, you could write a letter to the Board advising that you do not intend to appear and that you accept the N12 and are moving out in accordance with it.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Micheal
DeleteShe is still going forward with the hearing . Even though I have signed an N11 and dated to move out same date as she initially wanted me to on the N12.
However, I'm not asking if I should go or not but my question is if it's a must for me to appear in court?
As I'm planning not to go because I have nothing to dispute .
Thank you Michael
Dear Michael, Great article! One question: I gave N12 to the former tenant and my parents who moved in are now leaving after 3 months of staying in the house as their plans changed. Can I now rent the house?
ReplyDeleteHi: Yes, you may rent the house. Your former tenants may find this very troubling and they might very well file an application against you. In fact, whether you rent the house or not--they might file an application against you--because your parents no longer live there. That being said, just because your parents are moving out does not mean that you are liable to the former tenants for anything. The law recognizes that plans change, circumstances change, and that life moves on. Be prepared to explain why your parents decided to move out. What you will be looking to demonstrate is that at the time the N12 was served (way back) that there was a good faith intention to occupy the premises for residential purposes for 1 year or more. Show that "good faith", and then provide an explanation that demonstrates a legitimate change in plan. If the whole story comes across like a scam or that your parents always did intend to leave after 3 months then you have a potential problem. But, if it truly comes across like plans changed (unexpectedly) then you are likely fine.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael:
ReplyDeleteMy friend just bought a condo in Feb. 2019. He gave a N12 to the tenant with 90 days period. And the tenant agreed to move out within 60 days. My friend wants to know since he was not the person who signed the lease contract with the tenant, and also the tenant agreed to move out so quick even he didn't have time to find a new condo for the tenant. He didn't want to pay the one month compensation, is that possible ?
thanks in advance.
Hi Micheal:
ReplyDeleteI have a question regarding the N12. My friend give N12 to a tenant and by law, the tenant should get one month compensation. the question is that my friend just bought the house and the lease agreement was signed by the former landlord. Does my friend can void the compensation ? And also he can void the N12 and gave N11 instead ?
Hi:
DeleteThe N12 form can be used in 2 ways. Firstly, it can be a Notice of Termination for Landlord's Own use (which includes for use by the landlord's family and other specified persons). Secondly, it can be used to terminate a tenancy for Purchaser's Own use. Each of these uses have there own specific conditions.
Your question suggests a mix of the purchasers own use and landlord's own use provisions. This is a mistake. If the N12 was served for the purchaser then no compensation is owing. If the N12 was served for the Landlord then compensation is owing. The basis for service of the N12 will be apparent from the actual N12 served--though that doesn't necessarily mean it was done correctly.
If the tenant's have not yet vacated the unit then the current owner should file an application to the LTB based on the N12 served (if it is a valid N12). Without seeing the documents I can't comment on whether the N12 was properly served or not or whether your friend and the former owner were entitled to serve the N12 (there are conditions for service).
The N11 form is NOT a replacement for the N12. An N11 is an agreement to terminate. For the N11 to have any enforceability the tenant must agree to leave. If they don't agree then they won't sign the N11--meaning it can't be used to evict the tenant. The N12 form can result in a termination and eviction Order even if the tenant does not agree to leave (i.e. the LTB can impose eviction).
Please be aware that many landlord's are doing crazy things to avoid the compensation required in an N12 for landlord's own use---and in doing so, they risk losing the ability to get possession of the rental unit. The compensation payable is part of the law and flows because evicting for landlord's own use isn't the fault of the tenant. The compensation recognizes the significant expense of moving and the inconvenience of finding a new home at what will likely be a higher rent. This compensation is part of Ontario's focus on security of tenure and the importance of stability in housing and the social importance of that stability.
It would be worthwhile for your friend to speak with a paralegal or lawyer with familiarity of Landlord and Tenant law. The issues that are coming up (as you've described) are likely coming up because these questions were not properly answered during the purchase process.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
If a landlord writes a letter (i.e., not using the N12 form) that contains the information that would normally be contained on the N12 form, does this satisfy the legal requirements of the N12 form? For example, could this letter be used to file an application the LTB for eviction? Or would the landlord be required to serve the same information using an N12 form in order to file an application for eviction? And if so, would the original dates from the letter be valid or would the 60-day minimum be counted from the date the N12 form was served and not the original letter?
ReplyDeleteHi: You don't say in your question from what perspective you are coming at this from. Do you want to try to save the notice in letter form or do you want to knock it out? The easier answer I think goes to knocking out the letter notice and forcing the landlord to start afresh with a proper N12 Form. The dates would run from the new and proper form because the letter notice is likely to be determined invalid.
DeleteThe requirement to use an LTB approved form is set out in section 43 RTA. The sentence is "Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall, ...". I think it is clear that the letter version you are talking about does not meet the "shall" requirements of section 43.
The argument that someone might turn to in trying to save the "letter" as a valid notice is to rely on section 212 RTA which provides: "Substantial compliance with the Act respecting the contents of forms, notices, or documents is sufficient". Can section 212 satisfy the Notice requirement and perhaps over-ride the specific direction of section 43?
Aside from the RTA, it might be worth looking at section 84 of the Legislation Act. That section speaks about deviations from a mandated form not invalidating the form. However, it also says the substance must not be affected and those deviations must be unlikely to mislead---and perhaps fatally, the form (i.e. letter) must be organized in the same or substantially the same way as the form whose use if required.
I don't see an easy way for a landlord to save the "letter" notice and I'd be inclined to advise a landlord using a letter to simply start afresh with a proper N12 Notice. Even if you successfully convinced an adjudicator to use the "letter", the decision would be ripe for review and ripe for appeal. Any time you might win initially I think would be lost in the process of Reviewing and Appealing.
Hope that answers your questions.
Michael K. E. Thiele
www.ottawalawyers.com
Hello there, thank you for this blog!
ReplyDeleteMy family was served with an N12. Originally we were told to move via email, then when we looked into whether he could hold us accountable for rent if we just moved like that, we were informed about the N12. We passed this information on to him. He originally asked us to move for Oct 1st, then changed his mind for the N12 and chose Aug 31st.
He has compensated us with a month’s rent as per the N12.
We have some how managed to secure a new home for Aug 1st.
My questions are this:
If we apply to end the tenancy early now as we’ll be moving for Aug 1st, will we have to return the 1 months compensation? And does this filing also excuse him from having to live here for the 12 months before renting it again?
My 2nd question is: Since August is on our last months rent to which we paid 6yrs ago, we won’t be living here as we’ll be moving to get away from this toxic mess without much of a fight... however, can we request through the courts for that money be returned to us since we won’t be living here? (This would be our only reason to end the tenancy early)
Thank you for your assistance.
I appreciate your time very much.
Hi:
DeleteThe serving of the N12 for landlord's own use triggers the obligation to pay compensation. In addition to this obligation, both landlord and tenant have additional rights and obligations when the tenancy is terminated on this ground (landlord's own use). The "right" you are focused on is the right to terminate earlier than the termination date in the N12. This "right" is found at section 48(3) & (4) of the Residential Tenancies Act. You may terminate earlier, on 10 days notice. This is not an application, simply notice given in the Form N9. See the very top of page 2 (of 3) in the Form N9 that is available on the Landlord and Tenant Board website. I do recommend that you serve the N9 (and keep a copy) in a way that you can prove having delivered it to the Landlord.
Terminating the tenancy earlier than the date in the N12 does not waive the compensation. You are still entitled to receive it, and you are still entitled to keep it if it has already been paid.
As for your second question. Let us presume that you serve the N9 for July 31, 2019 (it can be any date so long as there is 10 days notice). This means that your tenancy ends for July 31 along with any obligation to pay rent. Because you have already paid July rent you will have a credit for another month of rent in the form of the Last Month's Rent deposit. This deposit must now be returned to you because there is no rent obligation to which it can be applied. A LMR deposit is legally only allowed to be applied to rent (nothing else including damage).
On top of the LMR deposit being returned to you, you may be entitled to interest on the deposit as well. It is likely a small amount but nevertheless you are entitled to it. To calculate it there is an article in this blog on the topic.
Good luck, I hope that this has helped you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am a tenant who recently was notified, by email, that my landlord has sold my unit. I was under the impression I could continue to live in the unit. My landlord said that indeed, the new purchasers want to live in my unit, by email.
I have not receieved formal notice that the unit has been sold via the N12. I have asked my landlord for this. I was only asked to sign the N11.
Is the landlord obligated to provide the correct, more accurate, end of tenancy form N12? I do not want to end the tenancy but my landlord requested I sign the N11 so that the purchase of the unit could be completed. I signed the N11 assuming good faith on my landlord's part, but do not have actual proof, except by email (according to my landlord) that the purchaser plans to live in my unit.I feel I have been given information in bad faith since the N12 was not provided upon request now. I am still waiting, and my landlord is not responding to my request.
Thank you for your help. Any assistance would be helpful.
Hi Alice:
DeleteThe N11 form is an agreement to terminate. You were not obliged to sign it. Now that your signature is on it the landlord will take the position that you have agreed to terminate your tenancy and move. The landlord may choose to apply to the Landlord and Tenant Board for an order based on this N11 Form. If he does, you will simply receive an Order in the mail terminating your tenancy. No hearing will be scheduled. Your option then is to file a motion to set aside the Order. The process is simple and the form is on the LTB website. Once you file the Motion to Set Aside the Ex Parte Order (an order made without notice), the Board will issue a Notice of Hearing and the eviction Order will be "stayed" until the hearing is concluded.
When a landlord wants to terminate a tenancy for his own use, or for a purchaser's own use, the proper way to proceed is to serve an N12. The N12, in my view, should be served as a precondition to any N11 agreement as the Form contains very useful information for a tenant. If you reviewed the N12, and then became familiar with the RTA on which the N12 is based, you would discover that you have a right to a minimum 60 days notice to the end of term. You are entitled to compensation if the landlord is taking over. You do not have to move if you disagree with the the termination and can seek more time or accommodation from the Landlord and Tenant Board if the notice period is insufficient. And perhaps most importantly, you would learn that a purchaser, if they seek to terminate your tenancy, would need to state that they intend to occupy the premises for residential purposes for 1 year or more.
By presenting you with an N11--the landlord deprives you of the rights you have, and further, denies you the recourse you have if the "purchasers own use" turns out to be a fiction (i.e. not true).
As you put your comment I would have no difficulty challenging the N11 and I do think the LTB should set it aside and require the purchaser to either cause the landlord to serve an N12 or serve an N12 themselves when they purchase the property. The N12 process will require them to swear an affidavit setting out their intentions (if you force it to a hearing), which also gives you the comfort to know that your tenancy is being terminated for legal reasons.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteI'm a landlord and gave my tenants the N12 because of marriage difficulties and I will be moving back into the rental house. The tenants did not agree to moving out for July 31st in which they were given 60 days notice so now it's been pushed to September 30th. I'm in a bad predicament staying with my husband because I've had to wait to have this conversation with him or it would have been a nightmare to stay with him all this time. Now that I've told my husband that I want to move out of our house he wants to work things out desperately. I know you're not a relationship expert but I just need to know if I have a change of heart as this is not an easy decision can I cancel my N12 to my tenants and what repercussions should I expect? Would I still owe them compensation equivalent to 1 month's rent?
Hi Lee:
DeleteThank you for this question as it highlights the more complicated nature of N12's (termination for landlord's own use). The new layers, imposed by recent amendments to the Residential Tenancies Act, of having an intention to occupy the premises for 1 year or more for residential purposes and the compensation requirement of 1 month's rent, are complicating features that have not yet been fully explored in caselaw nor appellate authority. The best I can do is give you my opinion.
I'll start with the compensation requirement. In my view, the service of the N12 triggers the requirement to pay compensation. Once triggered, the obligation is enforceable by the tenant whether or not the landlord seeks to withdraw the N12. I have this opinion because of the wording of section 48.1 RTA which states: " A landlord shall compensate a tenant in an amount equal to one month's rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48". To me, the language of the section creates an absolute obligation and this makes sense to me as the service of the N12 is intended to cause the tenant(s) to move out and immediately make alternate arrangements for their housing. The tenants, I think, are entitled and are intended to be able to rely on this compensation given how the legislature drafted this section.
As for cancelling the N12. You do not have a right to cancel or withdraw the N12. Of course, if you do reconcile with your spouse and you don't need to move into your rental, then you can approach your former tenants to see if they would be interested in reinstating their tenancy. They may or may not be interested depending on whether they have already committed to move elsewhere or whatever other arrangements they've made.
Are there repercussions for serving an N12 and then changing your mind about moving into the rental unit? Yes, and no. Whether there will be a problem for you (or not), will depend firstly on whether the former tenants take action against you. If they do not, then no problem. However, the tenants could decide to file an application against you to assert that you served the N12 in bad faith. If there is a finding of bad faith then you could be ordered to pay damages to the tenants. If you're interested in knowing the kinds of damages the LTB considers take a look at section 57 RTA.
If you can prove that you had a good faith intention to live in the rental unit for a year or more at the time of serving the N12 then your failure to follow through is not technically a breach of the Act. The former tenants would not be entitled to damages. Note, however, that proving you served the N12 in "good faith" is your burden to establish. The RTA builds in a presumption of bad faith (i.e. you will pay damages) in section 57(5) if you attempt to re-rent, enter into a new lease, advertise the unit for rent (see section for full list).
It is certainly possible to change your mind and it is possible that there will be no liability for this. However, you need to be willing and able to prove to the Board (if your tenants claim against you), the circumstances of serving the N12 and how your change of position came about.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I just received an N12 I was asked to sign the second page, which I did, but a day later I realized that the N12 form I was given is outdated 2007 the new form has the date of 2017 and has been updated with different rules now I am not sure if the N12 Form I received and sign is legal?
ReplyDeleteHi: I don't know why you would have been asked to sign the second page of an N12 form. The N12 is a Notice of Termination for Landlord's Own use. The landlord signs and serves. There is no spot for the tenant to sign. Is it possible that this is an N11 Form? That is an agreement to terminate? Is it possible that the form has been slip sheeted (i.e. a page from a different form inserted to get a signature which will then be put into another different form that you haven't seen at all)? The issues your question raises are odd enough that I'd go looking for advice from an experienced paralegal/lawyer--experience being the key---so that you can figure out what kind of game may be being played here. Ultimately, an old N12 in my view will not be valid. The legislative changes are significant enough that the required information has not been communicated to you with an old form. Whether the LTB would allow the use of this form on a substantial compliance basis is likely the question at hearing.
DeleteGood luck
Michael K. E. Thiele
www.otttawalawyers.com
Hi Michael
ReplyDeleteMy tenants lease is ending September 30. In early June, I informed the tenant that I would need the basement space for my son once her lease is up. I served her an N12 so things were clear. Now she tells me that she can't find a place and I need to give her one months rent and moving expenses too! What course of action to I have now?
Thank you for any advice.
Lisa
Hi Lisa:
DeleteYou should probably apply to the LTB as soon as possible based on the N12. You will need an L2 application to do that along with a Certificate of Service for the N12. Download at the same time the affidavit that you will need to file (short statement) indicating the good faith intention to occupy the space for residential purposes for 1 year or more. Truly, don't delay in filing as the Landlord and Tenant Board is seriously backlogged. You are unlikely to get a hearing date for months.
Without an Order from the LTB it will not be possible to evict the tenant. I presume she is covered by the RTA given that you are serving an N12. Is there a chance that there is an exemption--do you share a kitchen and/or bath with the tenant? See the exemptions in section 5 of the RTA. Whether the RTA applies or not is obviously an important question as it goes to whether the Board has jurisdiction to grant you an eviction Order. If this is an "exempted" tenancy then the Board application process will not get you an enforceable Order.
With respect to moving costs in addition to the one month's compensation. Certainly, you are required to pay one month's compensation as this is now required under the RTA (presuming it applies). You will see a reference to the compensation requirement in the notes to the N12 and you can see the statutory provision at section 48.1 RTA that sets out the compensation requirement.
There is no requirement that you pay moving expenses. However, you may want to consider it if it gets the tenant out of your basement asap. Query though, if she can't find a place how paying moving expenses gets her to a place she doesn't have. Perhaps she is just trying to get some extra cash? Perhaps she can't find a place and is trying to stall? Whatever it is, I doubt you're being told the whole story.
Being willing to pay a little more money with a guarantee of getting the unit back is probably worth it. Perhaps in exchange for the key, her stuff on a truck, you can agree to give her a sum of cash. You can document that agreement--there is nothing illegal about it. Perhaps the payment of extra cash is just enough to pay first and last elsewhere and move--who knows. Maybe you could offer to pay Last Month's Rent to the new landlord directly? The trick is to make the payment with a guarantee of the unit being turned back to you. You wouldn't want her to take you money and still not move out.
The reason to consider paying is that the LTB process at the moment is severely delayed. An application filed today (in Ottawa) will get you a hearing around the beginning of December (this was the timing being offered here in Ottawa yesterday). Even when the date comes up, the tenant could seek to adjourn, ask for more time, argue the case, appeal the decision, or if luck doesn't go your way--win.
Depending on how important it is for you to get the unit for the end of September you may want to consider being a bit more flexible as the system isn't going to help you very quickly.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael
ReplyDeleteI am very happy to have stumbled across your blog!Hopefully you can provide some advice...
I have been living in my townhouse for 7 years now, when I rented initially, things were very casual, as the landlord has a very strong accent, and very hard to understand, so the rental was actually done by the current tenant at the time, also i never signed a lease, just have dropped chq''s off at landlords house when needed. About 2 years ago, i learned from my neighbours (I live in a 4plex)that the landlord's son and daughter would be taking over the building, as the landlord is quite elderly. I was then instructed to make cheques out to all 3 names (son, daughter and father). About a year after that, i was then instructed by the daughter to begin making the cheques out to an incorporated company number, approx. 2 years ago from now. In early July, i received an N12 to vacate the unit so the daughter could move in, (by registered mail, and the return address was that of the numbered company, with the son being the director of said company. I should mention my rent is well below market value, and increases began only when the son and daughter took over. As i will NOT find anything even remotely close to the very low rent i'm paying, i am trying to fight this, based on the fact that i've read that an N12 cannot be considered served in good faith if the landlord in incorporated? I'm hoping this to be true, but if you could kindly provide some much needed advice, I would be very appreciative
Hi:
DeleteYou are on the right track. Please cut and paste this link into your browser (sorry, but this platform doesn't allow me to make links live in these replies).
https://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=resid&autocompletePos=1#sec48subsec1
If you're reluctant to cut and paste ( I get it), go to www.canlii.org, search Ontario, then search Residential Tenancies Act, then look at section 48(5) [this is where the link above takes you].
Subsection 5 is the authority that a corporate landlord can not serve an N12. The wording of the section is a bit more nuanced so take a look. Then, if you are resisting the application, you may want to consider doing a title search and getting an abstract of title. That title search will tell you the name of the registered owner. Also, on that abstract you will see any other documents/instruments registered on title--and if they are interesting you can order those as well. If a little digging into the corporate identity is worthwhile you can also Order a corporate profile report. If you think about section 48(5) and the information you get from the title documents, the payee on the cheques you send, and the corporate profile report, you may very well have a complete defence to the landlord's application. A couple of hundred dollars---maximum--gets you the title search, corporate search, and any documents on title that you might also order (ex. mortgage documents, transfer documents). If you are going to order the title search yourself--consider asking them to also print out a copy with the deleted instruments showing and a version without the deleted instruments. You might come across some transfers that are useful for your position.
I will offer up, and you likely know this already, but you are arguing a case that is by its nature a legal argument. While you can give it your best shot--you best chance comes with an experienced lawyer or experienced paralegal. While you may "only" see a slam dunk in your favour there is always an argument or a set of facts that can derail your slam dunk. Hence, experienced help is great to have if you can afford it. As you are protecting a below market rent it might be worthwhile to spend a little to increase the chance of continuing the savings.
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael,
ReplyDeleteI like your blog, very informative and helpful. Looking for your suggestion as I am a landlord in following situation.
• Rented my house with 2 yr. lease in 03/2016 so rental is on a month to month term now
• Reason for renting the house –> Move to a different country with family due to work and did not wanted to sell the house
• Have returned back to Canada since 08/2019 and living in hotels/AirBnB since then, we don’t have any place to live as our rented house is our sole primary residence
• Have hand delivered N12 to the tenant on Aug 15th 2019 with end date as Oct 31st 2019 and took tenants signature on the N12 itself.
• Have completed certificate of service
• Have filed for L2 online form for tenant eviction
• Hearing date given is end of January 2020
• Have submitted “Request to extend or shorten time” form to shorten the hearing time and waiting for feedback
• Tenant has kept the house in very bad condition, broken door, broken window latches, heavy stained carpet, broken garage door, broken kitchen sink and custom cabinets, damages caused by water leakage in the house
Process-wise could you please comment or guide if I’ve missed anything. Is there anything we can do to expedite our case and can get OLTB’s attention. Please suggest.
Hi:
DeleteThe process you describe as following is correct, although without actually reviewing the actual forms you filled out and served I can not determine if they were completed correctly.
These days the LTB is severely delayed and backlogged. The Landlord Tenant Board is severely understaffed and they are missing adjudicators. This is the reason for the long delay between filing and the hearing date that you received. This was not always the case but there has been a long decline in the efficiency of the LTB over the last several years. Your request to shorten time is unlikely to result in anything useful. This form is used to shorten the notice periods that are required to be given to parties---the form does not expedite hearing dates. In Ottawa (Eastern Ontario broadly), the filing date to hearing date is about 3 months now--less for Non-Payment of Rent cases but even these are stretching out now.
Note that just because you have a hearing date you should not assume that you will get heard that day or that you will get a decision that day. In this region we have had several hearing days cancelled on the day of the hearing due to adjudicator shortages. These cases then simply get rescheduled to several more months down the road.
In the face of profound delays in getting cases heard I do encourage you to have all of your paperwork looked at by an experienced paralegal or lawyer. You do not want to imagine the stress and upset if there is a technical deficiency in your paperwork that results in the application being dismissed and having to start all over again.
As for the damage to the property the question is whether it will be worthwhile to chase the tenant for the damage. Does the tenant have assets? Does the tenant have a job? One asks these questions because getting a Judgment against someone who has no assets results in an uncollectable Judgment--i.e. it isn't worth the paper it is written on. If you are satisfied that the tenant does have assets and is worth pursuing for the damage you can consider serving an N5 Form and applying on it or perhaps waiting to file at the LTB or Small Claims Court after your hearing on the N12 is resolved or after the tenant is evicted (for the Small Claims route).
I would be cautious about starting a separate application or causing your current application (L2/N12) to bring in a claim for damage to the unit (you can see that as an option on the L2 Form). I would be cautious and reluctant to do that because joining multiple issues to an application will result in the need for more hearing time. The requirement for more hearing time means that you case will either be adjourned or the case will start and then be adjourned to continue on another date. You should be aware that LTB hearings do not continue until they are finished (i.e. if the case starts on a Monday it does not continue the next day). If your case starts but does not finish then the case will be adjourned to a time in the next several months in the hearing block of the adjudicator who has heard your case up to that point. This can be a brutal delay as the case must be heard by the same adjudicator (because they are what is called "seized"), and time must be found in that adjudicator's likely full docket to reschedule the hearing.
Lastly, I'll simply comment that you should be ready for continued stress and further hearings. Just because you get a hearing date that does not mean that you will win. There are new technicalities around N12's and explicit requirements. Beyond that adjudicator's have discretion to extend termination dates and even if you ultimately win at the LTB there is the possibility of an appeal which stays the entire process until the Appeal is resolved (which can take 6 to 24 months---as a worst case scenario).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks for your feedback and advice. You've made me prepared for the worst, I cant think if it can get worse than that.
ReplyDeleteHEllo Michael
ReplyDeleteour Tenants live on main floor and we need that house for our in-laws: we gave them 165 days of notice but its middle of the school year so they dont want to move out. questions:
what can we do so Judge favour our need for our parents to move in ( they need to land no later then April 15 so we need a place by then)
if judge decide that they can wait till year end we would need to find a rental place for them so in that case we dont need tenants to move out. can we then tell at the cort that we decided to withdraw N12 AND THEY CAN MOVE AT THEIR CONVENIENCE but we are not going to compensate them unless we decide to serve a new N12?
Hi: I'll work with the facts you've provided here but there are clearly some important ones missing. You say that you provided 165 days of notice. Was that notice in a Form N12? I question it because a 165 day notice period in an N12 would be rather unusual. If it was just a letter, email, text, phone-call, or in some way other than through an N12 then you have proceeded incorrectly. You will need to become familiar with section 48 of the Residential Tenancies Act. This is the section that sets out that a human landlord (as opposed to a corporation) is 1) permitted to give a Notice of Termination for landlord's own use (including for family), and then 2) how that notice is given with the required timelines. Subsequent sections (i.e. 48.1) spells out the compensation that you must pay the tenants.
DeleteIf you have not complied with the basic requirements of section 48 then you are well behind and need to start again. Note that an N12, once served, is not valid indefinitely. You have 30 days from the termination date in the N12 to apply to the LTB. If you haven't done it within time then you need to start again.
We are now in early February 2020. You're wondering if you can get possession by April 15. If you haven't yet applied to the Landlord and Tenant Board the chance of getting a hearing (in the current circumstance of the LTB) is, I think, simply impossible. If you were in Ottawa and applied today I don't think that you would even have a hearing date scheduled until after April 15 (such is the backlog at the LTB). I don't know what the backlog is like (wherever you are in Ontario), but the backlog is notorious throughout the province. Therefore, if you don't have the tenant's agreement to vacate I don't imagine that there is any realistic chance of even getting a hearing before April 15 (if you have already applied).
Let's assume that you do get a hearing before April 15. The chance of the LTB terminating the tenancy and giving you vacant possession for April 15 is, I think, unlikely. The LTB will not terminate the tenancy any sooner than the termination date in the N12 and that termination date needs to be lawful. Presumably your rental period runs from the first of the month to the last of the month (i.e. rent is due on the first of every month)? If so, the termination date in the N12 needs to be the last day of a month and not mid-month. If your rental periods do run mid-month to mid-month it seems unlikely that the last day of the rental period would be the 15th. Please check to ensure that you have a valid termination date because if you do not---regardless of how much actual notice you have given--the N12 is void if it does not specify the last day of the rental period/term as the termination date.
DeleteIf you get a hearing before April 15 the LTB would still consider the personal circumstances of the tenants (section 83 RTA) to decide whether termination of the tenancy should be delayed. It depends on the reasons offered by the tenants. The N12 is a no-fault termination process hence the tenants are not culpable for any kind of bad behaviour or misconduct. In my experience this weighs in their favour in setting a termination date. While you may argue that you gave lots of notice the implied question will be why you waited so long to apply to the LTB. The tenants could also assert that they made it clear that they at least wanted to finish the school year and presumed that your failure to apply indicated your consent to their request.
In the best of circumstances you are pushing a very tight time-crunch. With the lack of resources at the LTB to schedule and hear cases you are, I think, in an impossible position to get heard and the tenants evicted before April 15 (from today's date of February 6).
If you can't have them out by April 15 you indicate that you then don't need them out at all. Have you approached the tenants about this? There is no way to "withdraw" an N12 officially but you could let the N12 be voided with the passage of time (30 days past the termination date--section 46 RTA). Once voided the tenancy then remains in force. The tenant's ability to terminate the tenancy based on the N12 is also not possible once you are past the lawful termination date in the N12 (section 48(3) RTA).
Does allowing the N12 to void (by not filing with the LTB) affect your liability to pay the one month's rent compensation to the tenants. I haven't seen much caselaw on this question nor have I had the opportunity to argue the point. However, my interpretation of section 48.1 RTA is that your obligation to pay compensation of 1 month's rent is absolute and required upon serving the N12. In my view, it doesn't matter if the N12 is allowed to void, or if your application is dismissed, or if the tenant is successful in getting a delayed eviction from the LTB. In my opinion, the service of the N12 requires compensation to be paid regardless of what happens after the service of the N12.
My opinion about the compensation being due, regardless, is likely to be a controversial opinion. However, I think my opinion is supported by the clear wording of section 48.1 which makes the compensation payable "if the landlord gives the tenant a notice of termination under section 48". Nothing in the section says that the N12 needs to be successful or that the landlord must recover possession or that the compensation isn't payable if the N12 voids. There are no exemptions to the compensation requirement in section 48.1. Given the history of the section and the context in which it was made law, I think that this is quite intentional. Section 48.1 was made into law at a time when landlords were using the N12 process to regain possession of rental units for purposes other than what the N12 was intended for. Requiring the payment of compensation was seen as a way to defray tenant costs and to perhaps slow the improper use of the N12s and further I think the compensation being payable is a penalty for serving an N12 that is perhaps proven to have been served in bad faith.
All that being said, my opinion is that the compensation is payable as soon as the N12 was served and you can't get out of it even if the N12 is allowed to void or you simply let the tenants stay until they are ready to leave.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Dear Michael
Deletethank you so much for your reply!
We did serve N12 back in November and applied to LBT immediately. The hearing was beginning of February but was adjourned prior to getting to our case.
It is very devastating that landlords are not protected as well as tenants are... We gave them a notice and helped them when they asked to delay rental pay withour servicing notices. We tried not to serve N5 for pleasurable environment and still getting troubles..
Your answer is really helpful! Thank you!!!
Thank you Michael!
ReplyDeletewe served N12 on Novemeber 10 and immediately filed LBT. We were given Feb 3rd as a hearing date but were adjourned before hearing and now waiting to be rescheduled. I am really upset on how I cant get my own apartment for my inlaws when I need it. This is in spite of us being nice to tenants: they asked for late rental payment sometimes 2 weeks after appropriate date and never served them a notice. They interfered with pleasurable environment and we let it go without a notice and now they doing it to us.
But I really appreciate your payment clarification as I was under impression that you pay only after they move out...
1 - Landlord - sent N12 to the tenant - for personal use – March 31st.
ReplyDelete2 - Tenant needed to move out by May 31st as per the notice.
3 - Tenant requested a one-month extension – said will move by Jul 1, which I accommodated.
4 - Tenant paid the rent for May and used the last month rent for June.
5 - I, Landlord, paid the one month rent compensation as per the N12
6 - Did not receive the keys on the 1st of July.
7 - Tenant kept playing games (saying that they need an additional day to clean up) and I finally got the keys on the 11th of July and the tenant left behind bunch of stuff for me clean up.
8 - Tenant left the property in such a bad state – I had to call 1-800-Junk to remove everything from the unit. Tenant agreed to cover part of the costs for that removal and has yet to pay me.
9 - Entire unit needs to be cleaned and ducts have to be cleaned as they had 2 dogs despite a no pets allowed policy.
10 - They changed the paint colours for all the rooms in my house without my permission – clearly against the agreement.
11 - Backyard ruined by the dogs as they dug numerous holes.
The state of the unit is currently not liveable – smoke smell pervasive all through the house. We are asthmatic and I don’t think we can live there with our 5 year old now unless we get rid of that smoke. Despite having a no smoking rule as part of the agreement – they violated this. The house damage alone is going to cost over 10,000$ to make it liveable. I do not have that much money. What circumstances can change for me to change my mind so I can just sell the place.
It is an unfortunate reality that some tenants abuse the property and have no regard for their legal obligations.
DeleteYour question turns on the issue of "good faith" and what is the consequence of not moving into the home further to an N12 notice of landlord's own use. The failure to move in would, presumptively, given rise to a prima facie "bad faith" use of the N12. The presumption of "bad faith" is a rebuttable presumption--but it is most definitely up to you to prove that there was no "bad faith" in serving the N12 and in fact the corollary is true--the N12 was served in "good faith".
There are exceptions to having to move in to a unit even after an N12 has been served. The requirement to occupy is not "absolute". The law is not so inflexible. The key is to establish that at the time the N12 was served--that it was served in good faith. From your timeline that would be March 31.
What evidence exists--on March 31 and in the weeks leading up to that date--that you intended to move into the rental unit? If you think about it there are bound to be text messages, emails, letters, contracts, that would prove your intention. For example--did you make inquiries for movers and get estimates to move you back into the unit? Such an estimate, email, would be evidence of what your plans were. Did you speak with other people--what did you tell them? Would other people testify about your intentions to move back in? Was there a particular reason that you needed to move back into the rental unit? Perhaps you needed to reduce your expenses?, perhaps you moved out of a place that you sold?, perhaps your own landlord gave notice to terminate?---the point is that you were clearly living somewhere else when the N12 was served--what were the circumstances that required you to serve the N12? These circumstances will be provable with documents and witness evidence.
The fact of the destruction of the rental unit--the fact that it is uninhabitable for you due to health--these are provable. I know nicotine and how badly smoked in houses will stink of it for a very long time. Painters can quote you for cleaning walls (washing) and then sealing the walls with a special and very expensive paint to keep the smoke smell from coming out of the walls. Such evidence would be useful.
Medical records proving the health conditions (asthma) also available. Perhaps you spoke with your doctor to ask if it would be a good idea to move into a house like this--or perhaps you have had that conversation in the past and the doctor can confirm that any exposure to second hand smoke--even stale smoke in a house is something you need to avoid. The point is that there may be useful medical evidence to explain your changing mind and reasoning for not moving in.
DeleteThen of course, there is the damage to the premises, the cost of repairs etc.. You say that you can't afford to fix it. I presume that also means you are not paying to fix the place up to sell it? There is evidence in what you do--selling, fixing, etc., that reveals the changing intent. Presumably your real estate agent will be able to testify that s/he was only contacted to list the place for sale well after the tenants moved out and when you discovered the condition of the place. The real estate agent could also testify as to the condition of the place and your explanation of why you decided to sell.
The foregoing are just top of mind kinds of evidence that you can lead. Your obligation to live in the place for residential purposes for 1 year or more is not absolute---the presumption of bad faith (by selling) is rebuttable. However, if the tenants do bother to file an application against you for bad faith you will need to take it seriously. Consider retaining a lawyer or paralegal to at least outline the claim against the tenants. It could, indeed, be worthwhile to sue the tenants for the damages caused and the losses you will presumably sustain in selling the property for less than what a non-smoked in property would have been worth. At least such a claim for damages would provide some insulation against any claim that the tenants might assert against you. Be aware, a tenant application to the Landlord and Tenant Board for bad faith damages will take about a year to be heard (once filed).