EVICTION BECAUSE THE LANDLORD IS MOVING IN (Possibly in bad faith)
the new rules
The Residential Tenancies Act and at least the last two previous versions of the residential tenancies law in Ontario has allowed a landlord to evict a sitting tenant for no reason other than the landlord wanting to take over the rental unit for themselves, their family members (the relationship being designated in the law), or for care givers. The notice period was then and still is 60 days to the end of term. The notice form is a form N12.
Tenancies can be terminated regardless of any fault or lack of fault on the part of the tenant. Good tenants are as likely to be evicted as bad tenants. The N12 (Landlord’s Own Use) process does not require the tenant to have done anything to justify termination for this purpose.
Historically, tenants have challenged the N12 (Landlord’s Own use) on the basis of the landlord “wanting” the rental unit for their own use or “needing” the rental unit for their own use. The difference between “want” and “need” is significant and where the landlord by accident allowed the analysis to become about “need” then the Ontario Landlord and Tenant Board would look at the legitimacy of the “need” and assess whether the expressed need was legitimate and asserted in “good faith”.
When landlords did not stumble into asserting a “need” but simply stood firm on “wanting” the rental unit the analysis at the Landlord and Tenant Board focused more or entirely on the question of whether the landlord required the rental unit “in good faith” for residential purposes. The LTB would analyze the evidence to determine why the N12 was served and whether the landlord or the person he indicated on the form was apparently going to move into the rental unit. An affidavit from the person who was claiming to move in was also provided to the LTB in the application process.
Unfortunately, the LTB’s ability to analyze the landlord’s intent was rather limited. If a landlord swears “We’re moving in” and there are no surrounding facts available to the tenant to prove otherwise the application was normally granted. For many years, the LTB did not worry too much about granting the Order because the RTA provided a remedy if the landlord did not move in. However, with the passage of time it became readily apparent that the remedy for a false N12 was easily averted and tenants who moved out only to find their unit up for rent again (at a higher rent), ended up with no effective recourse or remedy.
The Landlord’s Own Use notice was increasingly a silver bullet that could kill any tenancy. Proving that a landlord has served an N12 in bad faith is a very difficult thing to do if the landlord is careful and doesn’t say too much. While a tenant’s suspicions may be strong, the burden to prove that the N12 was served in bad faith rests with the tenant. If the tenant is unable to prove that bad faith then the eviction order was/is very likely to be granted albeit normally with a little bit of extra time.
ABUSE OF THE N12
Over many years it became obvious to those of us working in residential landlord and tenant law that the N12 (termination for landlord’s own use) was being abused by landlords as a simple way to evict a tenant without any real consequence. In fact, I had and still have many cases where licenced realtors are giving advice to landlords to serve an N12 to get possession to make it easier to sell a property. This is entirely contrary to the RTA but it was quite common.
The N12 (Landlord’s own use) was in the early years interpreted strictly. At one time it was impossible for a corporate landlord to take up residence in an apartment. It was believed that a corporation couldn’t live in an apartment. Over time that changed and where a corporation was closely held (one shareholder) it was determined that the shareholder could move in and then it was determined that the shareholder’s family member could move in. The effect was an expansion of the number of ways that a tenant (who was doing nothing wrong) could be evicted from their home.
THE CHANGES
The abuses finally became too much and the Residential Tenancies Act has been amended with respect to a “Landlord’s Own Use” application [Form N12]. The applicable residential tenancies act section is section 48. This section has now been amended to make the N12 more difficult and more costly to use.
These are the major changes:
1. When serving an N12 the landlord or his family member designate must require the rental unit for residential purposes and must intend on living there for at least one year (section 48(1) RTA);
2. Once the landlord serves an N12 for landlord’s own use the landlord must pay the tenant compensation equal to one month of rent or offer the tenant an alternate and acceptable rental unit (section 48.1 RTA);
3. The N12 may only be served if the rental unit is owned in whole or in part by an individual (section 48(5)(a));
4. The landlord is an individual (section 48(5)(b)).
The requirement that the N12 notice be served in “good faith” and that the rental unit is required for residential purposes continues to be a prerequisite to serving the N12.
As you can see from these changes the use of an N12 is now more onerous. It is not impossible, but there is now a greater basis on which the tenant can challenge an N12. Corporate landlords may no longer serve an N12. If the landlord on a lease is a property management company it is arguable that an N12 can not be served. There appears to be a greater barrier to landlord’s using the N12 to evict tenants. The requirement that a landlord or his family member live in a rental unit for at least one year makes temporary living arrangements impossible. The one year requirement allows for a greater questioning of prospective landlord occupiers, especially children who are often the intended beneficiaries of N12’s.
The compensation requirement is another interesting and new requirement. I read the section as requiring payment upon service of the N12 regardless of whether the landlord follows through on the N12. As soon as the N12 is served, compensation equal to a month’s rent is due to the tenant. I believe this is a fair interpretation of this section given the apparent intent to limit the improper use of N12’s. Requiring compensation to be paid is a good way to stop frivolous use the N12 or using the N12 as a threat. I have seen too many times where landlord’s serve N12’s just to see what happens and to see if a tenant will leave because of it. Currently, landlord’s are arguing that the compensation does not need to be paid if the Landlord does not apply to the LTB on the N12. I disagree with this position. As far as a I know there is no binding authority on this point at the time of writing this article.
THE HEARING PROCESS
The process before the Board remains as it always has. A landlord may apply to the LTB, based on an N12, at any time after service of the N12. The notice period of 60 days (to the end of term), continues to only be a minimum notice period and not a maximum. Hence a landlord who absolutely needs to know when they are getting the rental unit should apply to the Board immediately after serving the N12. The LTB is fully authorized to extend the 60 day notice period to a future date that seems fair under the circumstances. Because the tenant is not at “fault” in an N12 situation the Board looks favourably at tenants and their particular needs. If a tenant has a child in school and wants a few extra months to allow the child to finish school then that extension of time is likely to be allowed. There are many many reasons for the LTB to extend the termination date even if the landlord is found to have served the N12 in good faith.
Because you can not know for certain when the LTB will terminate the tenancy it is a good idea to apply sooner than later, even if the tenant advises that they will be moving. Regardless of what the tenant says, it is only lawful to evict the tenant with an Order of the LTB.
Michael K. E. Thiele
www.ottawalawyers.com
When it comes to evicting a tenent for personal use I understand the family member (in my case my daughter) has to intend on living there for a year. We have an apartment 40 min from our home which is in same town daughter works. She Needs to move closer as she no longer drives. My question is what if she looses her job or gets kid off or decides she wants to get a place with her boyfriend and I now stuck to having that apt empty for a year???
ReplyDeleteHi Susan:
DeleteThis is a great question as there is a whole lot of confusion around the N12 (Termination for Landlord's own use) and the intention to occupy for a period of one year. I will say right from the beginning so that it is clear---you do NOT need to keep the unit vacant for a year if your daughter moves out.
The one year requirement was put into the legislation to address the fact that the N12 was being used as a tenancy terminating silver bullet (i.e. it could kill any tenancy). The N12 was being used in bad faith to simply get rid of tenants contrary to the purpose of the landlord's own use provision. The added layers of requirements are to dissuade the improper use of the N12.
That being said. The key to the N12 is to consider your good faith intention at the time of serving the N12. If, at the time you serve the N12, you have a good faith intention to occupy the unit for residential purposes for one year or more, then that is a proper use of the N12. You pay the compensation owing and that then is it. If, after serving the N12--and possibly even before taking possession---something happens that was unexpected that changes the honest plan that was in place at the time of serving the N12--then you can go with that. So, if your daughter loses her job, wants to move in with her boyfriend, or a whole host of other possibilities then she can move out and you can re-rent the unit to someone else. You do not have to leave it vacant.
Of course, if the evicted tenant realizes that your daughter did not stay in the unit for a year the tenant could file an application to the Landlord and Tenant Board alleging a bad faith termination and seek damages (usually moving costs and a rent differential (if any)). The presumption is against you if the unit is not occupied for a year but it is entirely possible to rebut the presumption with appropriate evidence. For example, if your daughter lost her job you could tender as evidence her termination letter from her employer and then explain that she needed to move because of the job loss. Similarly, if your daughter decides to move in with her boyfriend--there will presumably be a "story" that explains the decision (perhaps a pregnancy, proposal, or other life changing event).
The key, in the event of an early termination (less than a year), is to retain evidence and proof that explains the change of plan.
Lastly, and while it isn't in your question, for the benefit of people reading this--if you serve an N12, move in a family member, and that family member moves out in less than a year--leaving the unit vacant does not actually prevent being sued. The unit being vacant (in less than a year), can also be considered a bad faith eviction unless properly explained.
Michael K.E. Thiele
www.ottawalawyers.com
Hi, I understand that when you evict the tenant for personal use we need to occupy the property for at least a year, what if we are living in the unit/ use it as our primary residence but renting out unused room to student is it considered bad faith? Our house is close to school. Many thanks in advance for your reply.
ReplyDeleteHi: There isn't much information here so it is difficult to contextualize a response. On the theme of your question you need to be able to answer the following affirmatively at the time of serving the N12 notice of termination: Did you, in good faith require possession of the rental unit for the purpose of residential occupation for a period of at least one year? [section 48 Residential Tenancies Act]. You need to be able to answer this question with a yes. Then the next question is whether you are indeed occupying the premises. Ideally the answer is "yes". Though there can be a lawful excuse if you are not. If the answer is yes, then the question of taking in a boarder becomes less of an issue. It is just a way of living in your house. The boarder arrangement is not a tenancy and you are doing it presumably for financial reasons--which is legitimate. So, presuming the first part of the analysis is answered affirmatively I don't see a problem with the boarder.
DeleteHowever, there is a potential for a problem if the answer to the first question is not a clear "yes". If it can be shown that the entire purpose of serving the N12 was really to get rid of a tenant and not for residential occupation by yourself or other authorized person then the problem starts. If the goal was to rent out to boarders--because you can make more money while living there yourself--then the section 48 requirements are not met. If your former tenant can prove this then you will be found to be in breach of the RTA.
As you can see, context and factual background is critically important in answering this question.
Michael K.E. Thiele
www.ottawalawyers.com
I own a home in Ontario and my mother lives there rent free. I pay property taxes and Insurance, she pays bills. 4 Years ago, my brother and his wife moved in "temporarily" and have not left since. My mother in not well now and I have to think about nursing home or a live in nanny and need to consider selling the house. It is full of so much stuff, mostly his hoarding. There is no lease, he pays no rent, how can I evict them? I live in another province.
ReplyDeleteHi: There is a special place in heaven for children who look after their parents in their dotage and it is nice to read about you taking on this responsibility. I take it from your comment about evicting your brother and his wife that expecting him to voluntarily move it out of the question. Therefore, it will take legal action.
DeleteUltimately, I think that this is an application to the Superior Court for a Writ of Possession. You willed a lawyer to do this as it isn't practical to do it yourself. The evidence is entirely in written form so your attendance in Ontario is not required for the hearing (though you are more than welcome to attend). The Court will issue a Writ of Possession which will be enforced by the Sheriff (Court Enforcement Office). This process of taking possession and then getting the house in good order will require you or some agents to be present to deal with the work that needs to be done. The "stuff" in the house might just become numerous dump runs--also at your expense. I'd suggest that in filing the Application to the Court that you also get the Judge to address the issue of the "stuff" and Order your brother to remove it from the property prior to his being removed from the property failing which you have the right to send it to the dump. You would want this protection (in the Court Order), as you might expect your brother to allege you've thrown out very valuable items.
Your brother's strategy will be to assert that he has Residential Tenancies Act protections and security of tenure. He will want to do this because the RTA gives him the most protection from eviction. Based on the facts as you've given them to me I don't see him having any chance at all on this argument. Sometimes (with similar facts) it makes sense to file an A1 application with the Landlord and Tenant Board to ask the question whether the RTA applies or not. If the Board says it does not then you file your application for a Writ of Possession with the Court. I don't see that, as necessary, on the facts as you describe them because there is no tenancy agreement and even if there was a tenancy agreement the tenancy would be exempted from the RTA based on section 5(i) RTA.
The Superior Court application contemplated above requires (if you intend to get legal representation) that you retain a lawyer and not a paralegal. It is not the most common of applications to bring so you might have a little difficulty finding a lawyer who wants to tackle something like this that is unknown to them. It will be helpful, in finding that lawyer, if you know that you are looking to file a Notice of Application for a Writ of Possession to be enforced by the Court Enforcement Office and that the reason you need to proceed this way is that the Residential Tenancies Act does not apply.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Hi Michael - i have a question. I advised my tenants that i was going to sell my house and they have become very vindictive and angry and of course uncooperative. We have provided 24 hour notice for all requests for showings and advised the tenant that they are welcome to be there during showings. An open house was planned (and happened) however, the tenant had the neighbors dog excrement dumped on our front yard) The tenants admitted this to our agent. The house will sell, but there is some question of when the 60 days "starts and ends". There is no lease, the tenants have been month to month for approximately 2 years after the expiration of the most recent lease. Do i have any recourse against their attempts to "sabbatoge" a sale? Do i have the right to clean up the yard "mess" without providing 24 hours notice (I will not be entering the home). Thank you !!!
ReplyDeleteMy problem is in regard to an N12 eviction notice. My landlord notified me in person that they had sold their house (I rent a rental unit that is attached to the house). I am on a monthly term. My landlord told me in person that the new owners would take possession the end of august and that she would have to pay me one month’s rent as compensation. She then served me the N12 form and selected reason 2(for the purchasers use) but then put the eviction date of the end of July. I notified my landlord via text that I had found a new place for July 1st and asked if my last month rent would apply to June and the compensation she owes me would apply for May. My landlord is now saying she does not owe me the compensation of one month’s rent. So I paid for May rent. After reviewing the instructions for the form, I now think that the N12 she served to me was incorrect. If she was selecting reason 2(for the purchasers use), the eviction date would have to be when they take possession, right? But because she wants me out before the new owners take possession, it would be reason 1 and I am entitled to one month’s rent? I still have not served my official notice, so I don’t think when I am leaving really matters. I am just really upset because she told me in the beginning she would owe me one month’s rent.
ReplyDeleteHi Michael:
DeleteThe N12 is valid, for purchaser's own use, if the purchasers have a good faith intention to occupy the premises for residential purposes for at least a year. It is difficult to know whether an N12 is served in good faith, in accordance with the law, or whether it is a ruse to get tenant's to move out so the unit can be re-rented at a higher rent. In this rental market (virtually across the province) rents are increasing significantly on unit turnovers.
There is no compensation payable when the N12 is for a purchaser's own use. The termination date in the N12 must be for the end of term (i.e. the end of the month if rent is due on the first of the month). It is normal for purchaser's to make vacant possession a condition of a purchase. This means purchaser's will only close if they have vacant possession on closing. Requiring you to move out by July 31 for a closing of the sale some time in August is lawful.
The N12 in your case can not be for "landlord's own use". The landlord does not have a good faith intention to occupy the premises for residential purposes for 1 year or more. We know this because the property is sold. The landlord can not serve the N12 for the purpose of getting possession so that the unit can be sold more easily. The N12, from what I read in your comment, is valid and is for the proper party--i.e. the purchaser. However, I can't comment or confirm that the purchaser have the requisite lawful intention.
About this promised compensation. The Residential Tenancies Act does not require compensation for purchaser. However, you have already been promised compensation. The RTA does not prohibit compensation either. Depending on how the compensation was promised, whether you can prove that it was offered, whether you made commitments to a new place taking into account the compensation (i.e. you relied on the promise), you have an argument that the compensation is payable. Not as an RTA mandated payment but as part of a separate contract and inducement for you to get moving and find a new place. I think this argument holds water because the rental market is incredibly tight right now. As you see on the N12 you are not "required" to move. You can refuse to move, require a hearing at the LTB, challenge the good faith of the N12, and even if it is a lawful termination you are entitled to ask for relief (s. 83) in the nature of getting more time to move and delayed eviction. Section 83 relief is common and regularly granted as often enough there are circumstances affecting the tenant that makes 60 days an unreasonably short notice period.
DeleteGiven the above, offering a tenant a month's rent--to get moving--is a reasonable thing to do even if the RTA doesn't require the payment. The compensation can assist in moving costs, first and last month's rent for the new place, cover the rent differential between new rent and old rent for a short while. Essentially, the offer of compensation helps smooth the move and gets the tenant into a new place and gets the landlord the unit on the timeline they want. Hence, the offer and acceptance (i.e. the bargain) is a reasonable arrangement that should be enforceable at all especially if the foregoing factors came into play. Is it fair for you to have relied on the offer of compensation, signed a new lease relying on the compensation to move, and now have it yanked away under the guise of "mistake". Personally, I don't think it is.
I can't say whether the argument would win the day, but I don't think it would be unreasonable to insist on the compensation if the factors I described above are in play. You have June. Advise the landlord that you are taking it as the promised compensation. The landlord can then decide whether to take you to the LTB for a hearing. You can argue your position there. You have certain leverage points as well that you might want to think about that could affect the sale of the property--for instance requiring the landlord to prove good faith intention to occupy the premises. Anyway, I'll leave these points for you to think about.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Hello Michael. If the tenant hasn't paid rent for 'x' month and it's the month when the one month's compensation is due. Are we able to state that the one month's rent that is in arrears, will be used towards the one month's compensation? Or does it have to be made separately?
ReplyDeleteHi: The month in arrears can be used for the compensation. Section 48.1 says that you will compensate the "tenant in an amount equal to one month's rent" ... . In my view, waiving a month of rent that is due accomplishes this. The wording is not that you must deliver cash of one month's rent to fulfill the obligation. To require differently misses the point of the legislation.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteMy landlord as asked me to move out on September 3rd via text message, then via a "typed letter" stating that they want me to move out due to needing my basement apartment for personal use/for family (they live upstairs in the house - we do not share anything, my apartment is separate in the basement), by November 1st. They have not provided me with an N12 - is a "typed letter" valid? Or is an N12 required to be provided to me? I spoke with LTB and they assured me that an N12 is required, a "typed letter" is not valid and does not count. Can you please confirm if this is true? I'm having doubts. I believe they are acting in bad faith as I refused to do something I'm not responsible for as a tenant then the next message 10 minutes later via text was please move out in 60 days we have decided to go a different route. Then I received the "typed letter" stating personal use later that evening. I believe they are trying to take advantage and get out of providing me with proper notice via the N12 and the required 1 month compensation, assuming I don't know any better.
Help!
Hi: The first question is always whether the Residential Tenancies Act applies to your rental or not. This is of particular concern when you advise that you live in the basement and the landlord lives upstairs. I presume you must have been asked this question by the person at the Landlord and Tenant Board when you called as you provide confirmation that you are not required to share a kitchen and/or bathroom with the landlord or his family. In a nutshell, this information addresses the RTA exemption found in section 5(i). There are other exemptions as well (mainly in section 5) that you might want to review as well. In any event, it sounds like the RTA applies to you and hence you have the security of tenure that comes with having an RTA tenancy.
DeleteWhen you are RTA covered, the grounds and process for terminating a tenancy are entirely set out in the Residential Tenancies Act. This means that a landlord (and a tenant) must follow the provisions of the RTA and they are not allowed to simply make up their own rules or their own process. The RTA provides that any agreement contrary to the RTA or any process contrary to the RTA is simply invalid (i.e. illegal).
The foregoing is good news for you. If you are RTA covered then the only way to terminate your tenancy for landlord's own use is for the landlord to serve you with an N12. A note, email, text, oral direction, voicemail, NONE of these are enforceable at law. The landlord must serve an N12 and it must be correctly filled out. From the N12 Form you will see your rights and that you have the opportunity to challenge the landlord's demand by requiring the landlord to file at the LTB (failing which you simply remain in your home).
Perhaps you are nervous because it has been too quiet for too long? Perhaps you're worried that the landlord, ignorant of the law, will simply take unilateral action? If so, there are two approaches that I could recommend. You could make a complaint to the Rental Housing Enforcement Unit (Google to find it). You can explain the problem and given the landlord's illegal approach they may contact the landlord to advise them of the correct approach and further confirm that a breach of the RTA (and the process) can lead to charges being laid against them. The second approach could be for you to file a T2 application (see LTB website). You could indicate the illegal method of termination as harassment/intimidation and you could seek an Order requiring the landlord to stop as well as an Order directing the landlord to only evict in accordance with an Order of the Board (i.e. cure the ignorance).
Good luck, I hope that eases your mind somewhat.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Mr.Thiele
DeleteRead your posts about Eviction for Landlords Own Use.
I’m in the final stage, Eviction Order was granted by September 30,2019 by LTB.
I like to know how much time do I have before the Sheriff come physically evict me.
I live in Toronto, had asked some tenants agency, they said they(Sheriff office) might or might not notify me to come change the lock. Or they don’t have to.
Needless to say, the landlord had submitted a false (make up) affidavit so the application was granted with no questions asked. I live in a basement apt and there is another unit in the same house. I heard and aware of what’s going on, they tried to raise my rent of 20% increase which I don’t agree. Then use text messages and verbally harassing me to move. Finally they took the legal action and I had no choice.
Please help!
Thank you.
Hi Connie:
DeleteYour comment raises a few concerns. Firstly, I don't know what this "false affidavit" with no questions asked is all about. Certainly, the LTB requires an affidavit to be filed because the legislation requires such an affidavit. At the same time, the filing of the affidavit is not beyond challenge and you do have a right to challenge whatever is said in the affidavit. If you have been deprived of this opportunity then it is entirely possible that your LTB hearing was procedurally unfair. This could be the basis of a Request to Review and even an Appeal if a decision was made on evidence that you were not permitted to challenge through cross examination or to even refute with your own evidence.
Aside from that, the typical process when an LTB Order is enforceable and a tenant does not move out in accordance with the Order is for the Landlord to file the Order with the local Court Enforcement Office. That process entails filing a copy of the Original Order, paying a fee, and filling out another form that tells the Sheriff about the property etc..
Beyond these steps it seems to me that the process becomes somewhat unique in the various Court Enforcement Offices around the province. Here in Ottawa, once the landlord files the Order with the Sheriff, the Sheriff will typically attend at the rental property on the following day (day after the landlord files) and post a Notice to Vacate on the unit door or on the outside door. This is often accomplished by taping the Notice to the Door. That Notice (again here in Ottawa) provides at least 7 days notice to the tenant--meaning the sheriff tells the tenant (in the Notice to Vacate that is taped to the door) that the sheriff will be coming back on a specific date at a specific time to physically remove the tenant from the property if the tenant has not moved out. Sometimes, due to staffing levels or just sheer volume of work the Sheriff will give the tenant more than 7 days notice. Also, if the 7th day falls on a weekend day the tenant get the benefit to the next business day. In Ottawa, even if the Landlord and Tenant Board Order asks the Sheriff to expedite and enforce quickly the Sheriff still gives notice by posting to the tenant though the period of notice is typically not less than 4 days. Zero notice is unheard of.
I find the advice you received from some "tenants agency" that the Sheriff might not give you any notice at all as quite shocking. This is the first time that I have heard anyone say this. I've heard some representatives say that in Toronto the Sheriff might mail the Notice to Vacate as opposed to personally serving it (also shocking to me), but I've never heard of a Sheriff not bothering to give the tenant notice.
I've spent a few minutes now looking for the "law" that directs the Sheriff on how to enforce Landlord and Tenant Board Orders. So far, no luck. Surely the manner of enforcement isn't just arbitrary from office to office or file to file. I'm fairly certain it isn't because over the years I have had the Ottawa Court Enforcement Office (Sheriff) tell me about changes to their policy, how they count days, and the discretion they have etc.. The Sheriff here has always been forthcoming when asking for details so I've taken their word for it as the process they describe is consistently followed. I suppose if the local Sheriff just started to make up their own rules, case by case, I'd take a closer look.
DeleteBecause of what you've written I've asked my local MPP (Joel Harden) to help me get access to the policy manuals, directives, or whatever it is that tells the Sheriff how to do their job in enforcing Landlord and Tenant Board Orders. When I hear from him, or get my hands on the manuals, I'll post here again.
What I sincerely believe is required to happen--for you--is that the Sheriff will come to your home to post a Notice to Vacate. That Notice to Vacate will give you the specific day to be out failing which the Sheriff will escort you from the premises and the locks will be changed. If you were in Ottawa I'd be very confident in saying this is what would happen. However, because you are in Toronto I can't give you that assurance.
I'll invite anyone in Toronto, with knowledge of the process to please comment on this post. I'd be happy to give credit to get to the bottom of this suggestion of no notice.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Again: A debt of gratitude to MPP Harden's office. I've confirmed that the policy with the Ministry of the Attorney General with respect to eviction and giving notice is that the policy is that tenants are given 5 clear days written notice that is personally served. If personal service is not possible at the time of attending then the Notice to Vacate is posted on the door or other conspicuous spot for the tenant to see on returning home. Alternatively, there are 49 Enforcement Offices around the Province. The practice in each office is not necessarily the same and can be adopted by the local office based on local considerations. One of the things that might be different is how the Notice to Vacate is given. On a policy basis there is an option for mailing it to the tenant instead of personally serving or posting it. If the Notice to Vacate is going to be "mailed" the Ministry uses a 5 day mail rule meaning they add 5 days to the notice to allow time for the document to arrive in the mail.
DeleteI'm informed that "zero" notice is not an authorized policy/procedure except that the Enforcement Office is still subject to direction of a Court under the Courts of Justice Act (meaning the policies can be over-ridden by a Judge).
Michael K. E. Thiele
www.ottawalawyers.com
Hi Mr. Thiele, thank you so much for your informative page. I have a question as the Landlord and Tennant Board is hard to get a hold of: I live with my landlord/housemate, separate bedrooms, but we share the entire unit (kitchen, bathrooms, living spaces, laundry, etc). I also rent another room in the house where i run my business from. He just told me he would like to take over the apartment and live alone. Is he allowed to do that? He already lives here, so he's not 'moving in'; but he would be using it for personal use. Is there anything I can do?
ReplyDeleteHi Kaylee:
DeleteThe Residential Tenancies Act is the legislation that sets out the rules and law that govern the relationship between tenant and landlords. It is these rules that people think about when considering their legal rights. Of course, the common knowledge about what the law says is not completely accurate and people make mistakes--hence you have hearings, lawyers, paralegals and adjudicators!
Anyway, you are likely referencing the rules/law as it arises from the RTA to your own situation. Specifically, you are thinking about the rules related to evicting a tenant for landlord's own use. (That is section 48 of the Residential Tenancies Act). Unfortunately, this Rule does not apply to you. All of the protections that the RTA provides are excluded for you because of section 5(i) of the RTA. This section excludes the application of the RTA from relationships where the landlord shares a kitchen and/or bath with the tenant. Because you share the landlord's space with him, you are not an RTA covered tenant. Meaning you don't have the same security of tenure as an RTA protected tenant.
Your relationship with the landlord is not completely lawless. However, it does strongly favour your landlord. You have no "right" to remain in the premises on an indefinite basis. Certainly, you have a right to occupy for the period of time that you have paid and arguably (based on the common law) for a notice period that is reasonable. "Reasonable" notice is often interpreted as one rent period.
The landlord can't act in an entirely arbitrary manner. Your contract with him certainly matters. Look at the terms to see what rights you have contracted too. If the written contract is vague or non-existent then one can rely on the oral contract but proving the terms becomes a challenge. Often, a Court will imply the terms from how the parties have behaved. Lastly, in the absence of contracting terms being agreed to or even implied from the circumstances the common law will apply (for things like notice periods) and then it is all about "reasonableness" on an objective basis.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteThank you for this very informative blog. My landlord has informed me that she is going to rent out her main floor (that I am currently occupying) to her cousin and her cousin's husband and would like to paint the unit before they move in. I politely stated that I will sign an N12 form, however, the form she gave me was an N11 form with no reasons stated for my eviction. Is the N12 form the correct form for this scenario since they are her cousins and not her child, parent, or direct family member? Also, is the N11 form correct and does it need a valid reason? There is no reason stated, just the date we agreed upon to terminate the lease. I had a one year contract and has been month to month since then and I have been here for about 3 years. I'd say I've been a peaceful, respectful tenant who pays the bills on time, keeps to myself, and respects her home.
Thank you
Hi: As a tenant in Ontario you have security of tenure (all tenants in Ontario covered by the Residential Tenancies Act do). Security of tenure means that you have the right to continue in occupancy of the rental unit as a tenant. That right is only subject to the grounds for termination and eviction set out in the Residential Tenancies Act. The grounds for termination are what you would exepect---non-payment of rent, illegal activity, impairing safety, substantial interference with reasonable enjoyment or interfering with a lawful right interest or privilege of the landlord. Each or any of these grounds must be proven to the satisfaction of the Ontario Landlord and Tenant Board and even if proven, the Adjudicator/Judge is required to consider maintaining the tenancy and imposing an outcome that does not include termination of the tenancy.
DeleteThe above category of termination grounds can be referred to as "for cause" grounds. You describe yourself as a good tenant, peaceful, respectful, etc.. A tenant of this sort can expect to remain in a rental unit indefinitely--your security of tenure is quite strong. However, there are a few exceptions. The biggest exception involves the N12 Notice of Termination. The N12 may be served to terminate a tenancy for a 1) landlord's own use, or 2) for a purchaser's own use. You have already identified some of the limitations on the N12 form in that it can not be used to allow one's cousin to take over an apartment. The N12 has other specific limitations and conditions that are worthwhile to understand. However, in your situation, because you unit is wanted for "cousins" there is no basis to serve the N12 and no basis to terminate your tenancy in law.
The next "NOT for cause" ground is the Form N13--which is demolition, conversion, or repair. Aspects of this form allow for reoccupation after the work is done at the same terms. The "repair" must also require a "building permit" to be issued--hence painting is not serious enough to warrant termination under an N13.
There are a few Termination Notices that I haven't mentioned here but there are no additional NOT for cause grounds.
The N11 Form that you have been offered is quite literally a Form that reflects an agreement. You can not be required to sign the N11--it is entirely voluntary. There does not have to be an expressed reason for the N11. The cousin wanting to move in does not legally terminate your tenancy but if you want to move out and are willing to leave then the N11 is appropriate. The N12 form is not a form that you sign---it is something that is served on you and your agreement is not required (hence you do not sign it). In your current situation any N12 served to allow the cousins to move in would be invalid.
Good Luck.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks for all the great info,
ReplyDeleteMy landlord has just reached out to me and gave me a choice, either move out in april or they will serve me an N12 now.
They gave me 10 days to decide.
Our lease is up and we are living month to month now.
We rent the main floor of a house.
My question is, I have small child going to school in the neighborhood.
There is about 8 months left of school.
Can we fight so that the move out date would be when the school year ends? Is 8 months too long? Thanks, any info would be much appreiciated.
Hi: Do you know why the landlord wants possession of the rental unit? The advice that you agree to move end of April or else an N12 will issue is an odd kind of threat to make. If the landlord is trying to avoid the compensation due to you (one month) for landlord's own use I suppose this offer could be seen as leveraging to avoid compensation. That is problematic, legally, in my view. Further, it is difficult to see how you are not automatically granted delay of eviction to the end of April even if you refuse to agree to the landlords terms. The landlord has already indicated that the unit isn't needed until at least the end of April because the landlord is willing to let you stay there until then.
DeleteWhat is unclear is if the N12 is for landlord's own use or for purchaser's own use. In my experience the N12 is often used improperly. To make a deal in the face of not knowing exactly what the landlord is up to is perhaps premature.
If you are willing to move but simply want until the end of the school year then perhaps you should make that offer. Indicate that you would like an N12 with a termination date on it that is consistent with your agreed on move out date and that if you receive such an N12 you will then write back accepting that date. If the landlord wants "more" certainty the landlord can apply to the LTB for an Order and you can have a hearing and enter into a consent order for that date. That Order should also require the landlord to pay you compensation if it is for landlord's own use. If the N12 is for an impermissible purpose you should be able to see that based on the boxes ticked off on the form. There is more investigation needed before you can make a firm decision on how to proceed.
What if you simply refuse to move out and force the landlord to go by way of N12? As of today (Nov 15) the earliest termination date would be January 31. In Ottawa the landlord isn't likely to even get a hearing date until later on in February 2020 based on adjudicator shortage (presently). At a hearing the adjudicator will typically adjust the termination date based on discretionary factors. Extending termination to the end of a child's school year is a good reason to delay eviction. In my experience this is a common reason to delay and 8 months is not "too much". Of course every case turns on its own facts and the severity of the landlord's need may also factor into the length of a delay. The adjudicator is required to consider all of the circumstances in exercising discretion.
Sorry for the lack of a definitive answer. This is one of those "it depends" situations and at the moment you don't have enough information (i.e. reason for landlord wanting place) to even begin to narrow down the likely outcome at a hearing.
Michael K. E. Thiele
www.ottawalawyers.com
They are saying there parents from Russia are coming to Canada and need our unit.
DeleteWe now have in wrighting (email) that there parents are coming mid april. We are in Toronto, our childs school would be over end of june. What is the likelyhood of getting an extension at a hearing?
So we have also just been served with the N12, with end date of april 30th.
ReplyDeleteAlso they have given us no compensation as of yet.
The reason checked is there parent moving in.
Hi Jeremy: Let us assume that the landlord's parents are actually coming and that the reason for needing your unit is for the parents' occupation and the N12 is served in good faith. With that being the case then you are left with a section 83 argument---which is discretionary relief. Take a look at section 83(RTA) for the wording. Will the LTB delay eviction until the end of June to allow your child to finish the school year? My experience has been "yes" and the members that I have appeared before have agreed to delay the termination to allow a child to finish the school year. Getting to "yes" is the trick and requires you to put together a persuasive case. What are the alternatives to finding a new place to live that allows your child to continue in the same school? How diligently did you search for a new place and can you prove your diligence? What is the consequence for your child in being withdrawn from that school prior to the end of the school year? Any specialized education services being provided that would be disrupted if your child were required to move schools? How big a deal is that? Can you prove the extent of the disruption via letters etc.. What other factors make this a very significant issue for you, your child, etc.? Being in a position to prove the hardship and further being in a position to prove that you tried to move by the termination date is crucial in being persuasive. You would of course also explore what options the landlord has for the extra 60 days---can't he parents live with the landlord for a short while? What kind of room does the landlord have? Big house? Guest room? The landlord's hardship or lack of hardship is also weighed.
DeleteIn the past I have found that delaying termination can reasonably be expected with persuasive facts. You need to keep in mind the following: 1) the landlord chose to rent out the unit, 2) the RTA is underpinned with the concept of security of tenure (i.e. housing security), 3) an N12 is a "no fault" termination--meaning you did nothing wrong, 4) having done nothing wrong why should your personal circumstance not matter given that the landlord chose to rent the unit to you.
If your landlord applies to the LTB sooner than later you will hopefully get a timely hearing date. Be ready to make your arguments (have your evidence ready 3 copies) and hopefully you will have an answer well before the termination date of April 30, 2020.
Lastly, the compensation due to you needs to be paid prior to the termination date. You can wait for it--or agree with the landlord to simply not pay a month of rent to cover off the compensation.
Michael K. E. Thiele
www.ottawalawyers.com
Thanks again for the good info, our case got remanded to April 17th and our N12 date is April 30th. Is it possible that the board can still evict us on the 30th? The landlord has yet to compensate us. Will the board make an eviction notice if they don’t pay us compensation. We are very worried as our hearing date is so close to the end date of the N12.
ReplyDeleteHi Jeremy: The "normal" thing for a case like this is that the LTB issues a new termination date after hearing the case. The law prohibits the LTB from issuing a date sooner than the termination date in the N12. You ask whether the LTB "can" order eviction for April 30. Yes, the Board could do that. While it's never happened to any of my clients, I have seen it happen. In those cases the tenant failed to provide any compelling reason for a delay, failed to explore section 83 (discretion), and basically assumed that they would simply be given more time to leave. At the same time, the landlord demonstrated hardship if the termination date were not honoured. So, if that is the context then it is entirely possible that the LTB would terminate your tenancy for April 30 (at the hearing on April 17). There are always risks in legal proceedings when the decision is left in the hands of someone else (i.e. the adjudicator). For this reason, I do recommend that you retain an experienced lawyer or paralegal who can navigate the system and strategize for you. If that simply isn't possible (usually for financial reasons), and you are representing yourself do consider being well prepared and ready to demonstrate a strong case in all respects including for an extension of time. Some pointers for a strong case for the exercise of discretion includes being able to demonstrate that you took the N12 seriously and actively looked for a way to comply with the N12. So have real estate listings, apartment rental searches, and proof of doing these things in hand. Have also, (you mention finishing school), perhaps a letter from a counsellor, family doctor, teacher, principal, discussing the impact of withdrawal from the school at this stage of the school year on your child. Think about what other things like this---that arise from being forced to move on relatively short (but legal) notice. Evidence like this makes it likely (in my experience) that the adjudicator will indeed be willing to extend the termination date.
DeleteGood luck
Michael K. E . Thiele
www.ottawalawyers.com
Hi Michael. Hope you're safe during these self isolating times.
ReplyDeleteMy landlord just gave me a N12 form stating a Parent (father) is moving in at the end of June (60 days). I find this highly suspicious. My landlord lives two houses down (he's a hobby farmer) and has his house listed for sale. He had his house for sale last year and I asked him if he was going to move into my place. He said he was going to move into his father's place. He and his family are financially very well off and I can't seem to picture his father moving into a place that is substantially below the level of comfort they are accustomed to.
1. I was not offered compensation when he gave me the notice. So I think it reasonable that the last month deposit (first-last) I gave him when I moved in can be taken in kind.
2. Do the same LTB rules apply during the "Stay-at-Home" requirements during the Covid pandemic? How can I find a place with these social distancing rules in effect?
3. I understand that if his parent does not remain in this house for one year I may be entitled to legal redress but at what level? I am worried that even if I do have recourse, the penalty would be trivial for him and I would be left holding a worthless bag (everything's relevant right?).
With this Covid-19 induced unemployment in full force, and no reasonable expectation for a quick return to full employment on the horizon, I don't want to end up on the street.
Thanks, and worried.
Hi J Tessier:
DeleteYour second question (Stay at Home rules), is a very common and current issue facing many tenants and landlords. The pandemic restrictions are lawful requirements that the government is imposing on Ontarians. The restrictions are reflected in more than two dozen regulations passed under the Emergency Managment and Civil Protection Act. At this time, Ontario is under a declared State of Emergency and the end is currently scheduled for May but extensions are possible and perhaps even likely. There are too many direct effects of the emergency regulations to list here but they include the fact that the Ontario Landlord and Tenant Board is NOT issuing eviction orders. Further, the Sheriff is NOT enforcing eviction Orders. The Notice of Termination (like the N12) that you received is effectively unenforceable at this time. Exceptions have been made for extremely serious cases involving health and safety and criminality and even for these there is a process with high hurdles to clear to get a hearing (and then further hurdles to get the Court to allow eviction).
An N12 does not meet the "health and safety" exception nor the criminality exception and therefore no landlord is going to get a hearing to enforce an N12 during this time period. In this sense, the "same LTB rules" do not apply during Covid as the LTB's processes are suspended.
WHAT ARE THE "rules" anyway?
I have a number of N12 cases (presently in the Covid context) and there are heightened emotions all around. Tenants are more anxious (N12's are generally a source of anxiety even without Covid) than usual and landlords are more anxious because there is no legal recourse to allow landlords to move back in or sell their property (and allow a purchaser to move in). The stress of the situation has darkened the tone of letters and emails and threats are flowing about "damages" arising from not moving out, "suing" for the loss of a sale of a property, and tenants threatening back that the threats about suing and seeking damages constitute a breach of the landlords duty not to harass, obstruct, or intimidate. In this context I think the "status quo" is the winner for the foreseeable future. A sitting tenant can remain a sitting tenant pending the LTB starting up again and hearings being held. Notwithstanding the threats being made by landlords, an N12 has never been an absolute termination notice based on the dates in the notice. A landlord providing the N12 with 60 days notice has only minimally complied with the RTA. A tenant has always had the right to seek more time and relief from termination under section 83 RTA. Delay and reasonable termination terms are, I think, a substantive right of tenants. An N12 is a no fault eviction and the landlord who chose to put the tenant into possession at the beginning of the lease would (or should) know that eviction for N12 grounds is subject to section 83 provisions and relief based on the circumstances faced by the tenant.
Accordingly, the fear of ending up on the street is something you can avoid by simply not moving out at this time. Take a look at your N12 Notice and you will see that the notes at the end even indicate that "If you Disagree" that you do not have to move out. The fact that you might disagree with the termination or the date is actually contemplated within the form. I think the arguments to extend termination dates (during Covid) are self evident and I don't see how the LTB will fault tenants for "staying home" during the pandemic. Is it reasonable to go out looking for a new home/apartment now? (I think not).
Best of luck
Michael Thiele
www.ottawalawyers.com
Hi Michael. I am the owner of a rental property, currently tenanted, with the tenants on a month to month as their one year expired April 30th. We entered into an APS on March 9th...closing date June 14th....signed APS a week before Covid shutdown commenced. The terminology of "Vacant Possession" is on the APS, no mention of Tenants. I know for a fact, the purchaser has no intentions of moving in, as a result I have not served my tenant with the N12 because I am unable to fill out with honesty. The agent has tried to negotiate to keep the tenants in there, but with an increase rental amount of $650 to what they are currently paying me now. Because of Covid, I am unable to legally evict...because of the APS, I have a legal obligation to provide vacant possession, or risk being in Breach. But I also know, the purchaser is not moving in (or anyone in their family)..the agent has told me directly. Can the Tenant not sue the buyer, after the fact, once we see the same house re-listed for rent at a higher value...what happens if my tenant is unable to find a place because of Covid, I cannot legally evict, but at same time, cannot provide Vacant Possession.
ReplyDeleteHi: This sounds like a terrible mess--regardless of COVID. You suggest that COVID is preventing you from being able to legally evict your tenant. I don't think that is correct at all. A tenant has the absolute right to continue the tenancy unless the tenancy is lawfully terminated in accordance with the Residential Tenancies Act. The RTA includes grounds for termination--from the fault evictions of non-payment of rent, illegal act, impaired safety and substantial interference with reasonable enjoyment etc.. The "no fault" eviction grounds (where the tenant's behaviour is irrelevant) are quite limited. The N12 (landlord's own use or purchaser's own use), is one of the very few "no fault" eviction grounds. Aside from fault and no fault you can say there is another category which is "agreement" between landlord and tenant to terminate a tenancy.
DeleteYou appear to be aware that a precondition for serving an N12 for purchaser's own use is that the purchaser must intend to move into the rental unit. Knowing that the purchaser has no such intention you can not properly serve an N12 to terminate the tenancy.
Absent an N12 it is very difficult to see how you could terminate the tenancy. This is regardless of COVID. To evict the tenants you need to serve a valid Notice of Termination. Simply wanting to evict them, wanting to end the tenancy, wanting to evict them for the purpose of delivering vacant possession is NOT a legal option for you. Unless you secure the tenant's consent to terminate I don't know how you can expect to terminate the tenancy.
I wonder also about this rent increase. Are you saying that the rent will increase by $650? If so, that is a rather steep increase that is likely more than 2.2% of the current rent. Is this rental unit relatively new? Is the unit exempt from the guideline increase amount? The operative date for exemptions from rent increase guidelines is November 15, 2018. Does this unit fall into that category? If not, the rent increase being demanded is illegal. Even if the tenant's agreed I don't think it would be worth the paper it's written on.
So I am a bit perplexed. How did you come to agree to deliver vacant possession? Did you receive advice to sign a deal like this? It seems to me (based on what you say you've agreed to) that you've agreed to do something that is practically impossible--subject only to getting the tenants to agree to move--which might (likely) mean that you are paying them a sizeable sum to leave.
COVID has made access to the Landlord and Tenant Board difficult if not impossible. The Courts have further ordered that during the state of emergency no eviction Orders will be enforced without the direction of the Superior Court of Justice. Certainly, this is a covid related problem for you. However, I think your problem is bigger than covid because I don't see how you will ever get an Order terminating the tenancy and evicting the tenant. Subject only to the tenant(s) agreeing to leave you've said nothing that identifies a recognized legal ground under the RTA to terminate and evict.
I strongly recommend that you get to your real estate lawyer asap and get advice in relation to this problem. Perhaps the circumstances of the deal, the knowledge of the purchaser about the sitting tenants, and perhaps the purchaser's knowledge that a tenant can't be evicted in the circumstances (regardless of COVID) can inform the interpretation and application of the "vacant possession on closing" clause.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Will an improperly filled out N12 and notice of termination stand up in a hearing?
ReplyDeleteHi: Your questions very specific and vague at the same time! Without knowing the details of what is "improper" I can only offer this. The law, for a very long time, has required that Notices of Termination be filled out correctly. If the Notice (N12 or other notices) are incorrect with respect to mandatory requirements then the Notice will be void. The Residential Tenancies Act spells out certain mandatory requirements for Notices of Termination. If these mandatory requirements are not followed then the Notice is void and unenforceable.
DeleteThere are many errors that result in Notices being held to be "void". Some of these errors seem to be minor and highly technical--at least to the landlords who fill them out and served them. When this happens you often hear those landlords becoming quite upset at the system and they argue that the system is biased towards tenants. While I can appreciate the perspective, the key is to complete the forms correctly and to take care in filling them out. If in doubt, retain a lawyer or paralegal to at least review the form(s) before serving it on the tenants.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael:
ReplyDeleteThis may be an odd request. I am currently in school for paralegal, and we are studying RTA. We have to do a mock trial for class. Me being the landlord and the other person being the tenant. We have a scenario to work with, and we are asked to argue our side to try and win. Just a way to learn. The scenario is that the landlord said he would not renew his tenants one year lease, as the area in Barrie is up and rising and he could now get more per month for rent. As the area has new malls, GO Train, schools etc.
The tenant approached the landlord and said he discovered that he had security of tenure and did not have to move out at the end of the lease. all this happened May 15.
On June 24, the landlord served an N12 and stated his parents were moving into the apartment on Sept. 1 and he would have to move out by August 30th.
Tenant seeked a paralegal because he would like to challenge the good faith of the Notice of Eviction.
So, as a mock hearing, what would be reasonable argument for both sides, especially the Landlord?
This is learning curve for me to know both sides of an argument, as I am very interested in this course.
Thanks Michael
Tonya (Barrie, Ontario)
Hi Tonya:
DeleteThank you for being up front about this being for school as opposed to a real life question. Over the years I've sometimes received questions that seemed a little too perfectly balanced with competing rights that I was sure it was an "exam" question that I was asking.
Anyway, I'm left wondering if I can or should answer this question as a matter of academic integrity. Certainly, when you are a licensed paralegal reaching out to people who "know" the answer is certainly a fantastic way to get value for your client and you supplement your own work. Lawyers and paralegals everywhere do this. I wonder if the commendable private practice initiative of reaching out to colleagues for advice applies vis a vis a mock trial? I think it is worth it for you to check with your professor, perhaps consult your academic integrity rules of the college and perhaps stop reading here ... until you've gotten the all clear.
This question is a good one--and fairly common. I've often thought of the N12 form as a silver bullet for a tenancy. These are very difficult to challenge if done correctly--even if done correctly and in bad faith.
Your starting point for any kind of analysis for cases under the RTA is to look at the section that is applicable. In this case, you are looking at an N12--so which section of the RTA authorizes an N12 for a owner's own use for parents? When you look you'll see that it is section 48 and it provides:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by, ...
It is always always always important to refer to the statute (i.e. RTA) and not just to look at the Notice of Termination and the wording on the Notice itself. Indeed, there are many examples of the Forms not properly reflecting the legislation. You are a step ahead if you look closely at the section and see what it requires and what it allows.
DeleteOnce you have done that (looked at section 48) find the sections of the Act that are associated. An annotated RTA (like Jack Fleming's text) is great for this as he lists the related sections. If you don't have an annotated Act use the search feature in Canlii to search for related sections. A handy trick--if you don't know it already--is to search just the section number in Canlii within the RTA. I've done it just now and searched the number "48" within the RTA in Canlii. This returned 37 results--which if you look at each you can see that many many of them relate to section 48. This matters because these additional sections impose requirements and give you "angles" to consider relative to the facts of your case. It also will highlight the technicalities required to be met in your case and when you know the technicalities you can check to ensure that the opposing side's case meets the requirements. Perhaps you are unaware--but there is an affidavit/statement requirement from the person moving in. Until the recent amendments the Affidavit was often not served nor filed with the LTB. The affidavit provides a lot of potential for disputing the application.
The next way to explore for ideas on how to challenge an N12 (or any other application), is to read the caselaw. I presume you know how to find the section related caselaw without searching generally. If not, click the section number in canlii and you will see a list of all the cases on Canlii that consider section 48 . You end up with 317 section 48 cases and 133 section 48(1) cases. Quickly skim the summaries to see if there is anything particularly good. Always look first for Divisional Court and Court of Appeal cases---all the rest are persuasive at best--appellate authority is binding on the adjudicator.
So that's the approach I take to the legal analysis. The next approach is with respect to the "facts". Landlord and Tenant law is extremely difficult because there is no discovery, no disclosure, no affidavit of documents. It is, in a way, "trial by ambush". Even if you get an order for disclosure from the LTB (which orders are not uncommon)--these disclosure orders are no where near the same as a proper discovery. An LTB disclosure order only requires a party to disclose the documents on which they intend to rely. If they don't intend to rely on it then they don't have to disclose it. You can be rest assured that they don't intend to rely on documents harmful to their position--hence they won't be disclosed and there is no legal obligation for them to hand it over---even if the evidence wold be relevant to the issues in the application.
The trick then becomes to "dig". If your client retains you early enough you can suggest to your client that engaging with the party opposite, emailing, texting, writing, is a good thing if it results in disclosure of true intentions. Certainly video and audio recordings are admissible and can reveal a lot. You need to canvass with your client what kind of evidence exists. They had a conversation about increasing the rent and then when they refused an N12. What is the over-lap, was there a threat, is any of it in writing, is there evidence that the N12 is retaliatory for refusing to pay more? You might find this information in text messages, emails, phone messages etc..
Then, start digging, has the landlord done this before? Is the N12 a favourite eviction tool? Ask around--in all my years I've found multiple instances where landlords have used the N12 in multiple units in the same building--all just an eviction scam---and often, they get away with it. Then look at the parents (in your case it's for the parents). What can you find out about them? Where do they live now? Does it make sense for them to move from their 2500 square foot suburban house into a bachelor unit in a sketchy part of town with a cheap rent? Circumstances can cast doubt.
DeleteAlso, consider your section 83 remedies. What are the circumstances of your client. Can you get a delay or even outright refusal? A few years ago my client who had lived in the unit for over 25 years with her now adult severely disabled son (wheelchair confined) received an N12 for landlord's own use. The landlord was a nice young woman who had been gifted he triplex by her family. She renovated each of the units as they became empty and re-rented. The last unit, where my client lived, was unlikely to become vacant any time soon. She offered money and exerted pressure for the tenant to terminate. The tenant resisted and the landlord then decided to move into the unit herself. She was an unemployed new teacher and was looking for a job. Until she got a job she planned to live in the unit. She intended, once she got possession, to renovate the unit and then move in. If she became employed locally she would stay there but if she got a job further afield she planned to move out. She was rather forthright about the background and her intentions. Technically she met the test for termination and eviction. However, in this case Member Gerald Naud determined that the needs of the tenant far outweighed the need of the landlord. The section 83 relief was a complete refusal to terminate for Landlords own use. Yes, this was an exceptional case, however, it highlights the importance of considering all of the facts and your own narrative. The last I heard, this tenant still resides in the unit with her son to this day.
So that's about all that I have to offer you in this context. The answer I think is more about the strategies on how to come up with a winning case---one undermines the statutory requirements, one that brings forward evidence that is inconsistent with the expressed intention, and one that focuses on the power of the adjudicator to relieve against eviction (or delay eviction) in the appropriate case.
Please do note that the caselaw is clear that just because a landlord at one time wanted to raise the rent or terminate a tenancy that the lack of success in this respect does not automatically mean that an N12 is served in bad faith. Take specific note that the N12's validity turns on whether the good faith intention existed at the time it was served.
Good luck with the moot!
Michael K. E. Thiele
www.ottawalawyers.com
I appreciate and value everything you had to say here, and appreciate your honesty. Everything you have said here has helped gain a perspective on how I should take this on. It is all about learning for me. Thank you for this amazing blog, and sharing your knowledge.
ReplyDeleteHi Michael:
ReplyDeleteI had served my tenants with the N12 in March to move out by the end of June - they had agreed to this. However after serving them with the N12, they served me with an N11 and moved out at the end of April (when the lease ended). I feel like they knew they were going to move out earlier than the date mentioned on the N12 and just waited for me to serve it in order to be eligible to receive compensation.
My question is - since they served me the N11 and moved out end of April instead of end of June as stated on the N12 - do I still owe them one months compensation?
Thanks for this great question. I think the correct answer is "yes". You do owe the compensation. The reason I say this is based on the wording of section 48.1 RTA. Section 48 is the authority to serve an N12 for Landlord's Own Use. Section 48.1 RTA is the section that requires the payment of compensation for serving the notice under section 48. This is how section 48.1 is worded:
Delete48.1 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.
If I could put an emphasis in this comment I would highlight the "if the landlord gives the tenant a notice ..."
The trigger that requires the payment of compensation is the service of the N12. The trigger is not that they move out as per the termination date or that they don't serve a notice that supersedes yours--the obligation, I think is fairly clear.
What is odd in what you say is that you say that the tenants served an N11. This is technically not a correct form as the N11 is an agreement to terminate. The correct form would have been an N9 (tenant's notice to terminate). If this is not a mistake--meaning that you made some other deal with the tenants that led to the use of an N11 (instead of an N9 that the N12 gives them the right to serve) then it is possible that you do not owe the one month's compensation. The reason would be that your "agreement" supersedes or encompasses the compensation otherwise owed. If the N11 was just mistakenly used then I think the compensation is still owing. Note that the N12 does permit the tenants to move out sooner than the termination date in the N12 on 10 days notice to you.
Michael Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy husband and I own a condo in the GTA. We have been struggling with the tenant there for a while as he makes late payments or missed payments at times. He is currently 3 months late on payments but is paying the monthly rent without any “catch up” payments.
We have also noticed that a bathroom sink is cracked and surrounding counter broken. He insists it was previously cracked.
What process would be quickest and least expensive for us to evict him? We have been very lenient and did not even renew or raise his rent at the end of the rental agreement. At the moment he is month to month.
Is he more likely to cooperate if I give N12 notice as I have a family member hoping to use the condo or should I give N8 notice based on late payments?
Thank you
Thanks for the question. Unfortunately, the concept of "quick" has long been forgotten in the administrative processes of the Ontario Landlord and Tenant Board. Regardless of which legal path you take nothing will be quick. Any legal application to the Ontario Landlord and Tenant Board (as of the date of writing) puts you on at least a 6 month journey and likely longer. That is true whether it is an N4 (non-payment of rent), N8 (persistent late), N12 (landlord's own use). The N4/L1 applications are least now getting hearing dates rather quickly after filing but the dates are rather far down the road (months and months) and there is no guarantee that the scheduled first hearing date will actually happen or result in a conclusion.
DeleteYou ask what I think is the most likely path to successful co-operation from the tenant. This, I think, is a question that begs a carrot and stick consideration. Co-operation happens (in my experience) when landlords approach tenants civilly, co-operatively, and with understanding. The goal being to discuss unpleasant issues firmly, without accusation, and seeking a solution. It's an unusual way of communicating--but imagine taking about a "future" resolution without pinning blame, denigrating, or otherwise being aggressive towards the tenant. If you can manage that--then deals can happen. The reality (I think) is that tenants already know how they are in the "wrong". They know what they've done, they know the issue. The situation does not require you forcefully reminding them of it. A version of the foregoing is how I approach mediation sessions when I am representing landlords. I am aiming for solutions and a different "future" without necessarily pinning blame for the past and current issues.
With that approach, the carrot to be added can be a few things. What constitutes a carrot for any particular tenant can be unique. Some carrots: 1) money, 2) waived rent, 3) reference letter, 4) pay for moving truck, 5) pay first and last month somewhere else, 5) time to move. What constitutes a "carrot" is what you figure out by listening to the tenant. I can tell you that I've had many tenants who at first are willing to move--willing to make a deal--and then they look for a place and discover how expensive it is and then they decide that all they can do is hunker down where they are and resist eviction. In long years past when rental markets were really soft (i.e. lots of units, landlord's offering rental incentives) it was fairly easy to negotiate terminations as tenants could easily move elsewhere. It is sort of the opposite right now.
DeleteNow, the "approach" discussed above, along with exploring carrots, does not mean that you go entirely soft and let the tenant treat you like a pushover. You have already given him that idea (i.e. you're a push-over) because you haven't enforced your legal rights. So, next step is the "stick".
The "stick" is legal action and the Notices of Termination. Now, any of the Notices of Termination you might serve are less of a stick today because of how awful the Landlord and Tenant Board is for timing hearings. [to carry on the analogy, perhaps the stick is more of a solid branch--big twig?]. Anyway, you do need to assert your legal rights and you do that through Notices of Termination.
From your question (and the facts you bring up), you are in a position to serve an N4 (Non-Payment of Rent), N5 (wilful or negligent damage), N8 (persistent late payment of rent), N12 (Landlord's own use). The last one (the n12) may or may not be available to you so you need to look at that more closely. There isn't enough detail in your question to determine if the N12 is realistic.
Anyway, serve all of the Notices. Don't just pick one. Do an N4, N5, N8. Prepare them carefully. Each is legitimate. File on each when the law allows (the timing will be different). This starts the legal clock ticking in that there will be a hearing and ordered termination is a possible outcome---it is a day of reckoning (albeit a much delayed one due to LTB's inefficiency).
So, a word about manner of serving the Notices of Termination. There is a human inclination to avoid confrontation and nasty interaction (fair enough really). This plays out in LLT matters with landlords sliding notices under doors, putting it in the mail, or otherwise serving without meeting or speaking with the tenant. The reaction of many tenants to receiving a Notice in this way is that they regard the receipt of the Notices as a Declaration of War. In the face of a declaration of war there is no co-operation. The tenant becomes defensive, argumentative, and perhaps looks for a way to go on the offence.
So what do you do? Yes, you still serve the Notices of Termination. But, you try to do it in a way that is almost apologetic. There are a few ways to do this. It becomes some version of "I'm sorry but I have to give you these but let's talk and see if we can make a deal before the legal process catches up with us and we each have to rely on our "legal" rights." What you are doing is deploying the stick, letting them know you are indeed going down that road, but that you prefer to talk and work something out.
DeleteIn my experience, this is how you get to a "mediated" deal and co-operation. Of course, it only happens if the tenant is so inclined. Sometimes no amount of carrot or stick gets you anything but a hearing. Note too, that patience is an under utilized tool and virtue. Your timeline is unlikely the tenant's timeline. Being pressured, handled, manipulated, is the enemy of a good deal. You have to give some room and time (not a crazy amount) but urgency is not something you get to impose. Urgency needs to be an external force--and in LLT cases that comes when the hearing date gets closer and is at its height just before the hearing starts. Most deals are made on or just before the hearing date because of the urgency (risk) created by the hearing. The lack of timely hearings at the LTB is one of the reasons why bad Landlord and Tenant relationships are festering--yes, in one sense you need the hearing--but more importantly, you need the urgency/risk/pressure that the hearing date puts on the parties. Deals happen and festering cases resolve (without the need for an actual hearing) when the parties are confronted with going to hearing.
In conclusion. The above is the approach I recommend. None of it is particularly expensive (though if I'm your lawyer deploying the above it isn't cheap), but it is time consuming and a lengthy process.
Good luck
Michael Thiele
www.otttawalawyers.com
Hello,
ReplyDeleteDue to the high costs, interest rates and property taxes going up, having the rental property is not feasible for us anymore so we will either need to sell the unit or move into it. Our cost has doubled and rent control prevents us from recouping our cost so we are enduring huge negative cash flow by holding the property.
I’ve had a conversation with the tenant to give him a heads up that there is a possibility that we’d want to move back in due to this, but agreed to give them a year so the school for the kids is over and they graduate. They were appreciative of this long notice. All this was over text.
However, no N12 has been issued as we’re still not a 100% sure what we’re going to do until spring 2024 comes and we see how the market acts.
I have no problem giving them one month compensation, that’s not an issue and am not going to try and get out of it.
But I would like the flexibility to be able to renovate and possibly sell within 3-6 months after they move out if the market goes up and prices reach my target sale price.
Since I haven’t officially served an N12, can I give her an N11 since we’ve both agreed to end the tenancy in spring 2024, that way I have the flexibility to sell without moving in? I will still give her a month’s compensation out of good faith.
Or because in my texts I’ve mentioned I want to move in, I could still get in trouble if I don’t move in and don’t live there for at least one year.
I initially told them we’re moving in because that was the plan but now that I think about it, the commute will be too long and tiring and we’d want to just sell and get rid of it. But this requires renovations which require her to have to move out. And we’d want to stage as well which is difficult with a tenant in.
Please advise. And if I CAN issue N11, how soon can I do this considering we agreed to June 2024.
Thank you for the level of detail in your question. What you are describing in your interaction with the tenant and in explaining your personal circumstances is NOT at all a legalistic approach to landlord and tenant law. In a purely legal approach, the Residential Tenancies Act (RTA) and the Ontario Landlord and Tenant Board (LTB) couldn't care less about your financial hardship in operating the rental property. The RTA and LTB similarly are indifferent to the fact that doing repairs and upgrades for the purpose of sale would be useful and neither the RTA nor the LTB give you a path to evict for the purpose of renovating (needing eviction) for the purpose of sale. This simply isn't possible (at least not a direct and convenient manner). Again, on your facts, the N12 isn't remotely available at this time as you have not formed the requisite legal intention to serve it in good faith. The corollary to this is that your tenant could simply tell you to get lost, do nothing, not cooperate, and insist that they will simply continue to live in the property until you are actually in a legal position to serve a valid notice.
DeleteWhat seems nice about your explanation of the circumstances is that you are working with the tenant in an open and transparent way. The tenant seems to be respectful of your issues and seems willing to work with you in a way that solves your problem while similarly protecting their own interests. There is absolutely nothing wrong with this (in fact I think it is behaviour that is to be encouraged) and you and the tenant making a deal is a good way for both of you to move forward.
To that end, do please realize (I think you do), that your tenant is in a rather strong legal position and if the tenant wanted to be legalistic you would have very limited options. This legal reality is another reason to be generous and really decent with the tenant who is deciding to help you without having to do so.
An N11 is not "issued". Unlike an N12, or the other termination notices, the N11 is not a unilaterally delivered form that imposes something on the tenant. The N11 is an agreement to terminate. It is entirely voluntary and if the tenant doesn't wish to sign it they don't have to. The N11 is a useless form unless both landlord and tenant agree to a deal and reflect the termination agreement in the N11. The N11 form only has space for the termination date and doesn't provide room for any other terms of a deal. In my view this is too bad. It would be great if the Form had a space for "terms in addition to the agreed upon termination of the tenancy". That it doesn't, however, doesn't mean that you can't write it in or make a notation on the form that additional terms were agreed to as recorded in a separate document. Again, there is nothing wrong with this. In an addendum you could record that you (landlord) are paying the tenant XX, and whatever other terms there might be (extended termination, help with first and last, providing a reference letter, cash for keys). Your willingness to pay the one month N12 compensation is something that can be recorded here---though arguably the compensation is not N12 compensation because you did not serve one. However, you offer the compensation as an N12 was considered, you told the tenant the why and wherefore, and you recognize that the tenant could simply tell you to get lost. Why should the tenant sign an N11? They really don't have to. Hence, they are giving you something and it seems only right that you give them something back. Note that these days, it is not uncommon for tenants to be ruthlessly capitalistic and demand top dollar for what they have from the landlord. This could get way more expensive for you than a simple one month's rent.
Good luck
Michael Thiele
www.ottawalawyers.com
Thank you for the detailed response. I have not mentioned anything about renovating and wanting to sell. I've only mentioned that we are planning on moving in. If they agree and sign an N11, and I add the addendum with the compensation terms and and the extended notice, we should be ok to renovate and possibly sell, since we didn't issue the N12? We genuinely intended to move in when I mentioned that to them, but the more I think about it, the more we realize the commute will be painful.
DeleteI do not think it is possible to provide an opinion that you "should be okay ... " . Not using an N12 certainly allows you to argue that the termination was not based on landlord's own use and that the good faith requirements (and the presumptive bad faith factors) do not apply. However, will that "fly"? I think in some senses "yes" but in other ways "no". Your positioning is hair-splitting. The fact is that you got to the N11 using an N12 ground for termination. Your tenant accepted, at face value (possibly?) the good faith of your demand based on N12 grounds. Now, you sign an N11, give the same compensation, will they feel deceived if shortly afterwards you sell the property? Will they feel strongly enough about it to file a bad faith application? And if they do, can they be successful? I don't think it is a foregone conclusion either way. What concerns me the most for you is the timing of your forming your intentions--pre-signatures, pre-termination. This timing favours your tenants and the LTB may be convinced to disregard the outward form of the transaction and make findings about what actually happened.
DeleteMichael Thiele
Hi Michael!
ReplyDeleteIt's great reading your replies to these. They are so much more to the point and easy to follow then the LTB pages. I own a duplex which has tenants both upstairs and down. The tenants downstairs are living in a no lease tenancy. I want my brother to move in there for the same amount of rent (this isn't to get more money), this is because his current living situation just isn't working for him. I thought the N12 form would work for this but I see it says that it only counts for spouss, kids and parents. As I have never had to go down this road before I would love your input!
Do brothers really not count for this?
Siblings (brothers/sisters) do not count for the purposes of serving an N12 to terminate for landlord's own use. Subject of course to the sibling being a provider of care services mentioned in the latter part of section 48 RTA.
DeleteI am guessing that you are asking this question (even though you've seen that a "brother" does not count) because you are wondering if there is "wiggle room" or even if the listed persons are just an example of the types of familial relationships recognized under the N12--and that in reality, it is possible to serve an N12 for a sibling. The short answer is "no", the list is indeed exhaustive and if the person who you want to have move in is not on the list then the N12 is not validly served for that person.
So that we aren't talking in the abstract--here is what section 48 RTA says:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 48 (1); 2017, c. 13, s. 7 (1); 2021, c. 4, Sched. 11, s. 31 (1)
The above section 48 is reflected in the Form N12--so if you download the Form you will see the tick boxes that correspond to the persons set out in this section.
What you are intending to do--provide housing for your brother--is a noble intention even though the RTA does not recognize this desire with a way to terminate a tenancy.
BELOW is a generalized suggestion on how to approach tenants for Landlord's own use. You can use the approach--but I am intending a wider audience than just responding to your question. I come back to you at the end of this response.
I would suggest the following for all landlords seeking to termination for own use or purchaser's own use. This suggestion arises out of many years of seeing/experiencing landlords approaching tenants "legalistically" with an intention to impose their will on tenants--an intention premised on the idea that as "owners" they can pull rank and lay down the law!
Too often, an N12 (or other notice--like an N13) comes out of nowhere without warning. The termination date in the notice has no regard for the tenants' needs or circumstances--it simply says--get out in 60 days. The demand is rather brutal (which everyone can recognize if you think about being told--get out of your house in 60 days). Some landlords nod to the idea of empathy (perhaps instinctively recognizing that dropping a termination notice on someone without notice is ethically challenged) but even those landlords seem inclined to dictate the terms of their compassion without actually first listening to the tenants. This approach of imposing termination---for landlord's own use, for purchasers own use--is flawed and often leads to extraordinary confrontation, resentment and litigation.
DeleteA landlord needs to recognize that the N12 and N13 forms are "no fault" termination notices. This means that the tenants did nothing wrong and are fully compliant with their obligations (as far as they know). The arrival of an N12/N13, even though it is a no fault notice will still feel like an accusation to the tenants. It doesn't matter that the service of the Notice is legal and in accordance with the Residential Tenancies Act. It still feels like a punishment, a threat, a statement that they are somehow bad tenants--and frankly, it screams "I don't care about you or what happens to you or your family". It should not be surprising then, that the response to a legalistic approach to terminating a tenancy is that the tenants fight back, resist, make their own threats, and seek to prevent from occurring what the landlord intends. Makes sense?
I recommend approaching tenants with a request that is legal, empathetic, and co-operative. There is no foul for being a decent person. An approach that starts with "I'd like to talk to you about an issue" and then setting out what it is that you are wanting is a good start. I don't suggest an approach that gives a tenant a veto or to grovel--that will not work. Instead put the issue out there in a way that encourages consultation, engagement and understanding on how to get to a "win win" situation. What does "win win" look like? Well, I can tell you that it definitely does not mean that the landlord simply gets what he wants. "Win Win" includes a little "Lose Lose" for each side to the bargain---this is always true in a negotiated resolution of a serious issue. Why?--well, remember, requiring a tenant to leave for N12 or N13 reasons is a no fault termination. The bias is not against a tenant. They didn't do anything bad. Ultimately, even in a litigated outcome where the landlord insists on the purest form of legal rights the landlord will have zero chance of getting the termination on the date they desire. Because this is unequivocally true, the ultimate objective in negotiating is to get to a point where both parties are signing an agreement to terminate (FORM N11). Whether one agrees with the rights conveyed by the RTA and lease agreement or not, the law in Ontario gives the tenants security of tenure and with that their rights are substantial and so strong that the balance of power between landlord and tenant is much closer to equal than unequal. Tenants have the legal right to stay, FOREVER if they wish, subject to very limited termination grounds in the RTA. Those grounds are extraordinarily specific and the processes are profoundly unforgiving with respect to technical requirements. Landlords give "security of tenure" to the tenants when they rent out a unit. That legal right of security of tenure is a serious bit of business. If a tenant is going to be asked to give up that right----especially for grounds that are not a basis for termination in the RTA--well then, it is going to "cost". A landlord needs to recognize that a tenant will need to get something for giving up this right. That "something" can be money, time, references, a suitable alternate unit,---"something" that speaks to the tenants' needs.
DeleteIn my experience, most tenants recognize that the fact of renting is not a permanent situation of living in that particular unit. Most tenants recognize that they may need to move house from time to time. Notwithstanding "security of tenure" renting is not forever. Most tenants, I think, also don't want to be on bad terms with their landlords, are decent people who recognize that the landlord has needs, and that it is worthwhile to be flexible to get along. Tenants' willingness to exhibit these kinds of beliefs are far more likely if the landlord approaches the tenants with a similar attitude.
For example--a landlord could decide to sell a rental property and drop a 60 day notice to terminate for purchaser's own use on the tenants without warning. Demanding compliance with a 60 day N12 because "that's the law" will often result in serious push back, a refusal to cooperate, and the tenant insisting on every legal right that he has without a view to "compromise". The manner of engaging with the tenant (very legalistic) will likely destroy any chance of a smooth transaction. This approach guarantees legal processes being engaged, all of the vagaries of the LTB and ultimately the Divisional Court, extraordinary legal fees, delays, and probably even a collapse of anticipated transactions (i.e. loss of sale in the instance of a purchaser's own use N12). All of that because of the manner of approach to the tenants. What one quickly learns (often the hard way), is that before selling and serving an N12 for purchaser's own use--and doing a "pretend" kindness after the deal is done--one should engage wth the tenant on the near equal terms (balance of power) that actually exists. "Security of tenure" is not a joke. The Residential Tenancies Act (RTA) actually contains a provision that provides that the RTA trumps every other piece of Ontario legislation except for the Ontario Human Rights Code. If anyone needs a reminder that the RTA and Security of tenure is "not a joke" reviewing that section might bring the point home.
DeleteOf course, not every tenant is reasonable and not every circumstance can lead to a win win win. A tenant may be utterly unwilling to co-operate in any way and even refuse to recognize that the landlord has a legitimate interest. This does not happen too often (in my experience), but when it does you then engage in the legalistic way that the RTA allows. That you have "tried" to work cooperatively with the tenants does not count against you---though I suppose I should put in a caveat that if you tried to impose something patently illegal on the tenants through "negotiation" then indeed, it may count against you.
CONCLUSION
So, back to your situation for moving your brother in. Perhaps you approach the tenants to advise that you are looking to take over the unit for a family member. Explain it to them as is reasonable. Tell them that before exploring legal options you want to understand their circumstances. Ask if they can practically consider moving. What factors affect their willingness to move. What are the financial considerations. What are the timing considerations. And then see if a deal is possible--perhaps ask them if they can propose an outcome that works for them taking into account your situation. I recommend that you never, in the first discussion, ask for a decision. You can present papers---but only for them to look at later. Don't ask for a signature, don't ask for a commitment (even if they are willing to give one). Give the tenants time to process your "ask". Tell them to seek legal advice, discuss it with their partner, friends, lawyer, paralegal, whatever. It is good advice--and they will likely do it anyway. If you are forthright--and prepared to compromise (including spending some money to "buy out" their security of tenure) you might find that a fairly reasonable deal can be reached.
You use the Form N11 to reflect an "Agreement to Terminate" a tenancy.
I have a rental property that was leased for four years. Recently, I communicated with my tenants about my plan to move into the property because the house I was living in is being sold. I provided them with a formal N12 notice of termination of tenancy two months ago.
ReplyDeleteThe tenants requested an additional month to vacate, explaining that they were already planning to move out as they were searching for a property to purchase. I explained that I couldn't accommodate their request because my own landlord required me to vacate my current residence within the same timeframe.
Now, I have received a "cash for keys" offer of $25,000 from the tenants. Given the circumstances, with my mother being the sole earner and undergoing cancer treatment in the US, our savings are being depleted, and this situation is adding significant stress.
I would appreciate guidance on how best to handle this offer and navigate this challenging situation.
Thank you for this comment and question.
DeleteThe first thing to be very aware of is that your N12 has an expiration date that works as a mandatory action date. The tenants' request to extend the termination date by another 30 days could cause you a significant problem and make your N12 void. This can happen due to section 46 of the Residential Tenancies Act that provides that a Notice of Termination becomes void 30 days after the termination date specified in the notice. The way to prevent the N12 from becoming void is to apply to the Landlord and Tenant Board before "30 days after" the termination date in the N12. So long as you've applied to the LTB the N12 will not void due to the passage of time.
I mention the above because your tenants have asked for a 30 day extension. If you granted that extension because you thought you were being "nice" and then the tenants do not vacate you would find, upon applying to the LTB that you would have to start fresh with a brand new N12. Having a pending application to the LTB solves this potential problem.
As for "cash for keys". This has always been a reality in tenancies in Ontario. What the exchange reflects is an agreement to pay the tenant to release their interests in the tenancy. The financial terms usually are reflected in a signed N11 Form that sets out the termination date agreed upon. The financial terms are often separately recorded (in writing) and that separate document makes reference to the signed N11 form. Cash for keys is extraordinarily common and the reality of the phenomenon is, I think, generally accepted as a legitimate and lawful agreement. There was a time when there was a philosophical objection to the legitimacy of "cash for keys" and a belief that the practice was illegal under the Residential Tenancies Act. Given the prevalence of the practice I think this objection has fallen by the wayside.
There are what can only be called obscene cash for keys demands--this is when tenants demand outrageous sums of money to do something that the law would otherwise force them to accept without compensation or excessive compensation. Where does this come from? Well, the outlandish demands arose when the LTB stopped being able to give landlords a hearing within a reasonable amount of time. As the LTB took months to years to process an eviction application the tenants could simply sit and wait. If a landlord served an N12 for a purchaser's own use, or a landlord's own use, an astute tenant would notice that the landlord has a degree of urgency in getting vacant possession. A real estate deal could fall apart and purchaser's were walking away from deals where the landlord couldn't deliver vacant possession. In some instances, landlords who did not realize that the LTB was not hearing cases in a timely manner would sell properties with a vacant possession on closing clause without providing for a delay if the tenant did not vacate. When this happened, many landlords were sued by purchasers for breaching the Agreement of Purchase and Sale.
It was in the face of these kinds of problems that tenants realized the leverage that they had and the cash for keys demands sky-rocketed in quantum. At one time, cash for keys would reflect moving costs, utilities hook up costs and perhaps a month more of inconvenience money. The "cash for keys" amounts were reasonable and facilitated a tenant moving out. The amount stayed reasonable because a landlord could actually get a hearing date within a month or so and the outcome was predictable--so much so that the tenant was happy to make a deal for a reasonable sum that covered real costs.
The "windfall" amounts now asked for by tenants is entirely because the LTB is slow--in fact painfully slow. However, the LTB is claiming to improve its efficiency (and it is getting better) and once that truly takes effect then the amount of the case for keys demands will become more reasonable. Why would a landlord pay the equivalent of a ransom if they could get an Order from the LTB in a timely manner?
If a spouse is separated from their partner, would they be eligible under N12?
ReplyDeleteThis is an awesomely interesting question. I don't think it matters that the spouses are separated for the purposes of using an N12--but don't you think it should?
DeleteIt is very common for recently separated spouses to use a Form N12 to terminate a tenancy. The Landlord and Tenant Board accepts such applications all the time. It is also, in my experience, a common tactic of landlords to claim separation as a way to terminate a tenancy and evict for landlord's own use when in fact the separation is a convenient excuse to evict tenants who would otherwise have security of tenure.
It is not uncommon (again in my experience), to see separated spouses upon gaining vacant possession of their rental unit to suddenly reconcile and end their separation. By reconciling the separated spouses can likely rebut the presumption of bad faith that arises when the the spouse does not move into the rental unit.
Why the story about "separation"? This is offered as the reason for needing the rental unit because it is otherwise a challenge to come up with a logical reason why a spouse is leaving their spouse to live in a rental unit for at least a year. How often does it really happen that spouses who also happen to be landlords decide to live separately for a year while maintaining a happy spousal relationship? I don't doubt there are some circumstances of this happening but it seems unlikely that it is very common. Why then is the RTA and the N12 Form so specific as to make a rental property available to a spouse of a landlord separately from the landlord? It has to be because of a contemplation of separation and for the purpose of giving a separating spouse a place to live. Isn't it?
The RTA has a broad definition of spouse that includes common law spouses. You can find the definition in section 2 of the RTA.
If you serve an N12 for your own use to evict in good faith but then your financial situation changes or market conditions change and you want to get rid of your house before the 12 months of living in it is over, would you face any potential issues?
ReplyDelete
DeleteThe law is a bit different now, and knowing exactly when the good faith needed to be present and how long the period of good faith is engaged has been considered by the Ontario Court of Appeal in a case called Elkins. I think it is fair to say that "good faith" is now measured not at the time of service of the N12--but throughout the entire period of time from deciding to serve the N12, the serving of the N12, the period leading to the tenant vacating, and the period after the tenant has vacated but before the one year period expires. Elkins (the case) has made the overall determination of good faith/bad faith a far more complex question than it has been.
So, in short, "yes indeed" you have potential issues. A tenant could easily file a bad faith application against you. It will be your burden to prove (rebut the presumption of bad faith). It is not impossible to rebut the presumption but the basis for the change in use needs to be compelling. The right to displace the tenant is very specific in its requirements. Given the impact on tenants, flighty or flippant reasons, foreseeable reasons, weak explanations, will not absolve a former landlord from liability. I think, if circumstances are changing (and certainly this became clear in Elkins), tenants should be given options to remain in the unit if intentions or circumstances no longer require the rental unit. Query if a former tenant should at least be offered the chance to move back in if the landlord's circumstances change.
Michael Thiele
www.ottawalawyers.com