This blog is a rewrite and update to the law in Ontario with respect to terminating a tenancy for non-payment of rent. Has much changed in this respect in 2018-19? In short, the answer is not really. The process is the same and the considerations continue to take into account the interests of both the landlord and the tenant.
That being said, I think it is worthwhile for me to explain the process for anyone (landlord or tenant) who is new to this process and issue.
As usual, it is easiest to explain how the law works in the context of an example. So, let us assume the following set of facts. A 3 plex row building each rental unit having 2 bedrooms. The monthly rent is $1000.00, and the tenant is a single person with limited finances due to a disability. The tenancy started 8 months ago. Except for the first two months, rent has been late every month and now the rent for the current month remains unpaid and there is no indication that the tenant is able to come up with the money any time soon. The tenant is asking the landlord to apply the Last Month’s Rent (LMR) deposit to the arrears saying that things are looking better for next month as the tenant hopes to get a big tax refund.
So, based on these facts, where does the landlord start? My experience with landlords who are not in the “landlord business” is that their first reaction is to empathize with the tenant . They feel sorry for the tenant and want to help and work with the tenant to solve the problem. Certainly, this is a noble response and very compassionate. It is also, the exactly wrong response unless (and this is a big “unless”) the landlord can truly afford to lose the rent money and is willing to take a loss in relation to this rental unit.
If the landlord is unable to afford the loss of the rent and is unwilling to simply “write it off”, then notwithstanding how sympathetic the landlord might feel towards the tenant, the only way to proceed is to proceed in accordance with the rights that the Residential Tenancies Act grants. You will see, as you read along, that the Residential Tenancies Act already grants numerous opportunities to the tenant to “fix” the problem and save the tenancy. The legal process already incorporates the exercise of discretion, payment plans, delays, and time for the tenant. When a landlord does not follow the procedures of the Residential Tenancies Act they then compound the extensions of time, voiding periods, and opportunity for the tenant to save the tenancy. The ultimate effect of this may be that the rent arrears instead of being a month or two can end up being many many more months depending on how long it takes the landlord to figure out that the tenant is unable to afford the rental unit.
Before you start thinking that I’m advocating a heartless and nasty approach to tenants I want to assure you that this is not the case at all. If a landlord follows the letter of the law there will still be plenty of opportunity to be generous and compassionate—even over and above what the law will require. However, what following the letter of the law does is that it stops the landlord from putting themselves in an unintended tough spot. It’s one thing to be ready to lose a month or two of rent. But, by being compassionate and patient you might end up losing months and months of rent because you did not follow the law.
FIRST AUTOMATIC THING THE LANDLORD SHOULD DO
If the rent is due on the first of the month, and by midnight on the first of the month the rent is not paid, the landlord should immediately on the 2ndof the month serve a Notice of Termination for Non-Payment of Rent. This notice comes in a specific legal Form and is call an N4 Form. You get this Form on the Ontario Landlord and Tenant Board (LTB) website and it is a free download. The LTB website has an instruction guide with the form that is mandatory reading for first timers and the bottom the N4 Form has very important information and instructions that are critical to read and understand as well.
The N4 Form starts the eviction process for non-payment of rent. As you read this, take note of the amount of time that this process takes. You will quickly realize that the non-payment of rent process will take well over two months from the date of service of the N4 to the date of evicting the tenant and that is presuming all goes smoothly.
THE N4 FORM
A massively frustrating reality for many landlords is discovering that the law allows absolutely zero mistakes in relation to Notices of Termination. The N4 Form must be perfectly correct in all of the technical details of the Form. The slightest error, no matter how obvious the error might be, is likely to make the Form void. A void Form N4 requires you to start over from scratch. Meaning you can add months of delay to the process just because of an innocent mistake.
So, what are the critical parts of the form? In fact, every blank spot on the form that you need to fill in is critical. However, most confusing is the termination date and how to calculate the notice period that the tenant is lawfully entitled too.
The termination date in an N4 is the date that the tenancy will end, for non-payment of rent. However, before that happens, the tenant is entitled to correct the non-payment and “void” the notice by paying. The period of time, granted to the tenant, is 14 days. That seems simple enough, but in giving the tenant 14 days you need to learn how to compute time in the way that the law says you must compute time.
For all computation of time in the Residential Tenancies Act you should always remember that you don’t count the day you do something, but you do count the day on which the event ends. Therefore, when giving a tenant 14 days of notice with an N4, you don’t count the date you give the notice, but you do count the 14thday after you start counting.
Wow, how confusing. How about this example to make the point. Rent wasn’t paid on the 1stof the month. You serve an N4 on the second of the month. The termination date (using the computation of time rules) is the 16thof the month.
The termination date is the 16th(serving on the 2nd), presuming that you are serving the tenant with the Notice in person, or by putting the notice under the door, or by putting the notice in the mailbox where mail is ordinarily delivered. The RTA and the Landlord and Tenant Board Rules of Practice (Section 191 RTA, and Rule 5—all available for you to read on the Landlord and Tenant Board website), set out all the specific and legal ways for you to serve a document on a tenant. Don’t get creative and think “I’ve got a better way”. The truth is that you don’t have a better way because the law will not easily recognize that “your way” is legitimate and hence it will be deemed invalid. The best example of this is when landlords decide to send something by registered mail as opposed to regular mail. You assume because the letter is sent “registered” that this is a better method of service. Unfortunately, that is only true if the tenant (or landlord), actually picks up the registered letter and signs for it. If the registered letter is never picked up then it is never served. Whereas, if you drop the same letter in the mail the law deems it served 5 days later whether the tenant reads the letter or not.
KEEP COPIES
As you go through this process, make absolutely certain to keep multiple photocopies of the exact documents that you serve on the tenant. Eventually you will need an exact copy of what you served and you will feel pretty foolish if you gave the tenant the only copy of the N4 and didn’t keep a few exact copies for yourself. Note also, that the method of delivery of the Notices is recorded in a document called the Certificate of Service. Print that form from the LTB website as well and record the details there immediately after serving documents. Keeping copies of the Certificate of Service is also wise.
WHAT TO DO ONCE THE N4 is served
After the N4 is served there is absolutely nothing that the landlord can do for the 14 days of the notice period. It is illegal to threaten to change the locks, it is illegal to interfere with services (heat, water, electricity, etc,), and it is illegal to harass the tenant for the money—i.e. a landlord should not call the tenant every five minutes demanding payment nor should the landlord ambush the tenant repeatedly at the rental unit demanding payment. All of these behaviours can result in the tenant successfully bringing an application against the landlord for harassment.
During the 14 day notice period, the landlord must simply wait. This does not mean you need to avoid the tenant or that polite conversations are not possible or that making a deal is prohibited. Civility is always encouraged and the relationship between the tenant and landlord should by civil if possible.
AFTER THE 14 DAY notice period
If the tenant pays the rent arrears, plus any rent that has become due during the notice period, then the N4 notice is void and there is nothing further that can be done with this Notice. The tenancy is automatically reinstated and the termination as set out in the N4 is voided by the tenant’s payment.
However, if after the notice period the tenant has not paid all of the rent arrears plus the rent that has become due, (or has only paid a portion of the arrears), then the landlord may file an application to the Ontario Landlord and Tenant Board to terminate the tenancy for non-payment of rent.
The Form for such an application is available on the Ontario Landlord and Tenant Board website. It is the L1 Form. What is convenient now, presuming the landlord has a scanner and is able to digitize a copy of the N4 and the Certificate of Service is that you can file the application online and from the comfort of your office. A credit card and a computer will allow the landlord to file the application and get a hearing date quickly and efficiently and for a cheaper cost that if the landlord attended at an LTB office in person to file the application.
THE L1 APPLICATION
The L1 application is the document that starts the actual proceedings before the Landlord and Tenant Board. The L1 relies on the existence of a valid N4 form and proper service to bring the tenant before the Board to terminate, evict, and get an Order for rent arrears. While it is desirable to fill out the L1 correctly, the L1 may be amended if needed and a mistake is not so utterly critical as with the N4 form.
Once the L1 application is filed with the Board the LTB will cause a copy of the L1 Form and a Notice of Hearing to be mailed to the tenant. The Landlord does not have to serve the tenant with the Notice of Hearing nor the L1 itself. That being said, it is my standing practice and that of many commercial landlords to not rely on the Board’s service of the application (because it is too easy to claim that the document was lost in the mail). Therefore, a landlord may want to consider personally serving the L1 and Notice of Hearing on the tenant (and filling out a Certificate of Service), to head off the “lost in the mail” argument that might otherwise arise.
ON THE HEARING DAY (AND THINGS THAT MIGHT HAPPEN BEFORE THE HEARING)
It is important for a landlord to recognize that at any time prior to the hearing, even after the 14 day notice period, that a tenant has the right to pay off the rent arrears and void the eviction proceeding. However, once the application has been filed, the tenant will also need to pay the filing fee that the landlord paid to the LTB to void the eviction proceeding.
The tenant’s right to void the proceeding by paying the rent is rooted in a policy imperative that every Ontario government has followed since the Landlord and Tenant Act was amended to recognize residential rentals as unique from commercial rentals. The policy imperative recognizes the importance of security of tenure and the social harm caused by instability in housing. Ontario governments have decided that it is more important to maintain stable housing for tenants who may have difficulty paying rent or have other social problems than it is to facilitate the easy eviction of tenants from landlord’s properties.
On the day of the hearing the landlord should attend at the LTB with an L1/L9 update sheet (also available on the LTB website). This update sheet asks a series of standard questions that the adjudicator wants answered for the purposes of generating a standard Order. The questions on this sheet range from asking about any payments made since the application was filed, increases in rent since the application was filed, new rent due and owing, and also whether the LTB needs to be aware of any circumstances that reasonably should be considered in making an Order (i.e. section 83).
THE HEARING DAY
The hearing day is often a mad rush and clearing house of a great many cases. A landlord may be surprised to find that the date and time of the hearing is not specifically for them. In fact, there are likely to be many dozens of cases all scheduled for the same time and location. The hearing room is likely to be a zoo with tenants, landlords, lawyers, paralegals, mediators, legal aid, and security, all swarming around. There is always a sign in process somewhere at the location. It varies depending on where in the province you are. The sign in sheets are used to track who is present and determines which cases may be sent to one room or another to be disposed of. Uncontested cases (where only one side shows up) are often dealt with differently than where both sides show up.
The Notice of Hearing will typically indicate an arrival time that is 30 minutes before the actual start time of the hearings. This arrival time is designed to allow people to sign in and for the staff to “organize” before the adjudicator enters the room. Note that there is a further 30 minutes grace period granted after the start of the hearings to allow for anyone caught in traffic etc..
THE HEARING STARTS
What is kind of fun about the LTB is that the exact protocol of how a hearing starts is a little bit different depending on each of the personalities of each of the adjudicators, mediators, and staff. Typically though, the adjudicator starts the hearing block with and introduction. That introduction deals with things like cellphones being turned off, admonishment not to talk in the hearing room, a requirement to tell the truth, and an explanation of the process that the adjudicator will follow that day. The description of the process will indicate what cases will be heard first and what cases will likely be heard last. The adjudicator will indicate that consents and adjournments will be considered as preliminary matters and be considered at the beginning of the hearing block. Contested adjournments (where one side does not agree) are also considered early in the hearing block.
The adjudicator will further introduce a mediator (an employee of the Board) and the mediator is likely to speak for a minute or two explaining the services provided. Mediation is incredibly effective (even for people who don’t think it will be), and I encourage both landlords and tenants to mediate. If the parties are willing to mediate there is a sign up process and the case will be stood down until the mediation process has finished. If mediation is unsuccessful then the case goes back before the adjudicator and it will be dealt with then as a contested case. There really is no reason not to try mediation if it is offered. It is always better to control the outcome of a case in a way that is less objectionable to you than it is to put the entire outcome into the hands of an adjudicator who may just find in favour of the other side.
Adjudicators “love” mediation! The reason is fairly simple. Dockets at the LTB are very full and caseloads are significant. Mediation lightens the caseload and further reflect an agreement between landlords and tenants. The adjudicator’s job is then easier and the serious consequence of eviction proceedings is something that the adjudicator does not have to focus on. For this reason, if parties successfully mediate most adjudicators promise to interrupt whatever case they are doing to take a consent Order and reward the successful mediation by sending the landlord and tenant home early.
A STANDARD ORDER
When the landlord (and the tenant) are finally called forward to present the case it is the landlord who will proceed first. The adjudicator will ask for the L1/L9 update sheet and review it to see if there is anything missing and ask any additional questions that she might have. The landlord proves the non-payment of rent by simply stating that the rent has not been paid. This may or may not be done under oath. Most often, the landlord simply sits at the table at the front of the room, with the tenant at the table beside the landlord.. The adjudicator asks questions of the landlord and then turns to the tenant and asks the tenant if they agree or not with the numbers presented by the landlord.
It is at this stage that the case can get interesting. The tenant may want to challenge the rent arrears or may want to raise other issues. Before allowing the tenant to get on with other issues the adjudicator will first want to determine whether the rent amount is agreed upon and whether it is agreed that the rent has not been paid in the amounts claimed by the landlord. If the tenant’s position is that the rent has been paid, or that payments have been made, it is up to the tenant to prove these payments with receipts or cancelled cheques or e-transfer confirmations. If the tenant’s position is that the rent was paid in cash and there are no receipts then it is going to be very difficult to prove payment if the landlord denies receiving cash. The burden of proof rests with the tenant to prove payment of rent once the landlord testifies that the rent has not been paid.
Absent any compelling reasons or explanations, the Landlord and Tenant Board will typically issue what is called a “standard order”. You will not find any reference to “standard order” in the Residential Tenancies Act nor anywhere else officially. However, it is understood by those who appear regularly at the Board that a standard Order allows a tenant 11 days to pay the rent arrears plus the application fee to void the termination and eviction. The 11 days starts from the day that the Order is written which is usually within a day or two of the hearing date. If the tenant pays within the 11 day period the eviction Order is void. If the 11 days straddles another month and additional rent becomes due during the voiding period the tenant will also have to pay the new rent that becomes due in Order to void the eviction Order. Note that sometimes you have an odd situation where the 11 days (within the standard Order) starts in one month and ends in the next. When that happens the tenant can void the Order by paying the full amount owing before the calendar finishes the first month OR they can void the Order by paying the rent arrears plus new rent within the 11 days that finish in the subsequent month.
IF NOT A STANDARD ORDER THEN WHAT?
There are a whole bunch of things that can happen that will take a relatively straightforward case and turn it upside down. The first thing to talk about is the adjudicator’s discretion to give the tenant a chance to pay the rent arrears. This discretion arises under section 83 of the Residential Tenancies Act and it is this section that allows the tenant to make a pitch, to save their tenancy, based on terms that they can meet. The adjudicator is required by law to consider section 83 in every single case. The test that the adjudicator applies is to determine whether it would not be unfair to the landlord to refuse the eviction. Hence, as you can see, the law biases towards maintaining the tenancy and giving the tenant another chance or many chances.
So what kind of things can you expect in a section 83 argument? Section 83 takes into account all of the circumstances. So, if a tenant has fallen into arrears of rent because of a job loss, illness, family death, bad luck, or some other unusual or unexpected event then the Board can take that into account. The Board can decide that the tenant should be given more time to pay the arrears, or even that the tenant be given an extended payment plan to pay the arrears. Usually, payment plans require that future rents be paid in full and on time.
When the Board exercises discretion in favour of the tenant the conditions in the Order will provide that the tenancy is maintained so long as the tenant meets the conditions that the adjudicator imposes. The Order will also provide that if the tenant fails to meet a condition (for instance paying in accordance with a payment plan), then the landlord may apply to the Board for an eviction Order, in writing, using a Form L4.
At this stage, if you are a landlord and reading this, you will remember my earlier comment that a tenant is given many opportunities to maintain their tenancy due to the policy choice of “security of tenure”. Through these options---and the discretion power under section 83, you can see that it can take many months to evict a tenant and that success in doing so is by no means certain just because you have applied to the Board and the tenant is in arrears of rent.
TENANT ISSUES
It is entirely possible that the hearing goes smoothly and that the adjudicator is prepared to issue a “standard order” when all of a sudden the tenant advises that they have maintenance issues, harassment issues, or some other kind of problem with the landlord and that they want these issues heard. It can be a surprise to landlords to discover that a tenant has the legal right to bring up any kind of claim they could make, in defence to the L1/N4 application and that the tenant can insist that it be heard at the same time as the L1 application. Further, the tenant application can be asserted without filling out any actual application form. The tenant can simply state what they wish to pursue and away they go! The authority for this is section 82 of the Residential Tenancies Act.
In practice, adjudicators have different ways of dealing with section 82 applications. The ambush aspect of raising section 82 without any notice or disclosure runs counter to a fair hearing. Landlords will complain about being ambushed and feel that it is unfair that they had no knowledge of the complaints. With notice, many landlords say, they could have brought evidence, inspected, brought witnesses or simply have been ready to argue against the tenant’s allegations.
Of course, the answer to being ambushed is that you adjourn the hearing, get disclosure, and come back another day. Unfortunately, coming back another day is often the goal of the tenant who is seeking to buy time to raise the money for the rent arrears or is seeking to delay the eviction until they can find a new place to live. How this balances out is a bit of a trick. Often enough, tenants are not well prepared and their section 82 defence fails. The effect of proceeding without proper evidence is that the claim is permanently lost once it has been argued. For that reason, adjudicator’s often encourage tenants to file their own applications and to not proceed with the section 82 claims at the L1 hearing. That works when the tenant’s goal is to actually get the problems solved as opposed to trying to knock down the rent arrears to a lower amount with the hope of being able to afford the rent and void the eviction Order.
EVICTION WHEN THE ORDER HAS NOT BEEN VOIDED
If the ultimate eviction Order is not voided (i.e. because the tenant has not paid), the landlord may then take the Order to the Court Enforcement Office to have the Order enforced. It should be noted that in Ontario a landlord is not allowed to enforce the Eviction himself. The landlord may not hire an enforcer, a bailiff, the police, or anyone else to enforce the Landlord and Tenant Board’s Order. The only way to legally enforce the LTB Order is by applying to the Court Enforcement Office for the Sheriff to do so.
The Sheriff will charge a landlord around $350 to enforce an eviction Order. The exact amount of the fee varies depending on mileage from the Courthouse to the rental unit. When seeking to have the sheriff enforce an eviction Order you should get a copy of the Sheriff’s Requisition Form, a printed Google Map from the Courthouse to the Rental unit, and an original copy of the LTB Order. You will need all of these in Order to direct the local Sheriff to enforce the Order.
TIMING OF SHERIFF’S ENFORCEMENT
The Sheriff will not simply go out to the rental unit and evict the tenant. Once a landlord requisitions a sheriff to go out and enforce an eviction Order the sheriff will attend at the rental unit and post a Notice to Vacate on the door. The Sheriff, in that Notice to Vacate, will give the tenant several more days (typically 7) to vacate. The Sheriff will return on the date specified in the Notice to Vacate to enforce the eviction. At that time, the landlord should attend with the sheriff and have a locksmith on standby or be ready to change the locks themselves. The Sheriff will only cause the tenant and any other persons in the rental unit to be removed. Any personal property that is left behind must be made available to the tenant in accordance with the RTA after the eviction is enforced.
Hi Michael, I am a student that has been living at a resident with other students for 2 years now and when we first moved in, the landlord requested a security deposit from everyone living there which equalled the same as the monthly rent, we now found out that it was illegal for him to demand/get a security deposit from us even though it was on the lease he provided. At the time we did not know that and we did give him security deposits but now that we found out it is illegal we are wondering what our options are to get that money back. is it possible to not pay last month's rent before our tenancy is terminated since the security deposit is similar to last month's rent?
ReplyDeleteHi: It is a little unclear from your question what the exact nature of the security deposit is. The only deposit permitted, in Ontario, is a Last Month's Rent deposit. This deposit is often called a "security deposit" though that is just a misnomer and is permitted so long as the deposit is used for the last month's rent. To review the law on deposits take a look at section 105 and 106 of the Residential Tenancies Act. This short statutory provisions clearly lay out the law.
DeleteIf you have indeed paid an illegal security deposit the RTA gives you the ability to file an application to the Landlord and Tenant Board for the return of the deposit paid. The application you would use is a T1 application (available on the LTB website). The statutory authority for the application starts at section 135 RTA if you want to look it up.
Aside from the T1 application (which is the way the RTA directs you to get a remedy), I personally favour the self help remedy when it comes to illegal deposits. As long as you don't mind the potential for elevated emotional eruptions from your landlord I see no problem with reimbursing yourself the illegal deposit from rent that becomes due. The landlord would likely object. You would then write a clear letter explaining why you have reimbursed yourself the illegal deposit from the rent. You could then invite the landlord to take legal action if he wished. You might then receive an N4 (Notice of Termination for Non-Payment of Rent). When you don't pay, you end up at the LTB at a hearing. Pursuant to section 82 RTA you are entitled to demand a refund of the illegal deposit at that hearing. The process nets out to zero owing and the landlord loses his application fee of $175.00.
If you have screwed it up somehow and the Board disagrees with you then you are always given the option (by law) of paying and staying. Your costs exposure (if you lose terribly) is the application fee of $175.00.
In my experience, most landlords who charge an illegal security deposit know it. When confronted they simply refund or accept the deduction because they know they can't win. Just make sure that the deposit you are complaining about is actually illegal (I wonder because you indicate that there is no Last Month's Rent deposit).
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Thank you for the reply! the lease clearly states that the security deposit is for any repairs or damages caused by the tenants, and mentions nothing of last months rent so I will most likely reimburse myself by using it as the last months rent. Thanks a lot!
DeleteHello Michael,
ReplyDeleteagain, thank you for your fantastic blog. I have a question. I had to evict my current tenants through LTB hearing. I got the order, they left and they owe me 2 months worth of rent. They are now out and they did not pay. I have to take them to Small Claims Court. Now, I live in Toronto, the property they rented was in Barrie and they moved to North Bay. Which SCC do I file the claim in?
Petra
Hi. This is a great question---and I am going to skillfully avoid answering it. The reason being, that every time I go through this it seems like the rules are slightly different and the steps I need to take are just a little different than they were the day before. Ultimately, my answer is that you're going to have to take guidance from the Court staff at your local Courthouse.
DeleteI have never tried to enforce a Board Order from the LTB's East Region of Ontario (a huge area that doesn't follow the same boundaries as Court regions) outside of the East Region. Though I suspect that the Court doesn't really notice or care which office of the LTB that the Order issues out of. Perhaps you can therefore issue the LTB Order out of any courthouse that you wish (i.e. get a Small Claims Court file number on your LTB Order so that you can use the Court's enforcement tools). That should be easy enough to figure out by simply going to the Court and trying to issue.
What does seem fairly likely and certain to me is that the enforcement tool that you use (garnishment, writ, etc.), wherever it is issued, must be lodged through the Court Enforcement office in the judicial district where the enforcement is happening. Hence, whatever you do, the Court Enforcement Office in North Bay will have to be involved.
Good luck with the enforcement. It can be frustrating and expensive work.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael, great article.
ReplyDeleteI have been issued a N5 notice from the landlord saying I have interfered with their rights to sell the property. I was never late on my rent and take really good care of the premises.
We have been having multiple showings, with text message 24 notices only. I, as a tenant, decline to engage in conversation with realtors/prospective buyers, limiting my questions to "Can I have a business card?" so I know who is entering my house. I do not talk or respond to any of their questions.
Landlord had a open house event, when I was told by his representative that "I am here to to the open house, you guys gotta leave", to which I responded "I do not gotta leave", but did not refuse any of the showings that day. I stayed home and the representative walked in with prospective buyers not problem.
Landlord now claims I have been sarcastic and made it difficult from him to sell the house because I am not cooperating with open houses/showings, and things like I left a towel in the stair railings, have boxes and musical instruments at sight, keep my kitchen countertop full with computers and other stuff we use on a daily basis on it during the showings, have diaper genie bag sealed but at sight - MEANING I STILL LIVE THERE! AM I SUPPOSED TO STOP LIVING? He said I am supposed to leave the house at professional show home quality level and it is better if I am not home - which I do not agree.
We are done with them. We want to leave one day after the date on the N5, but want to have no showings whatsoever until then. We are trying to negotiate this with them.
My question is: Is there a release document I can make them sign the day I leave stating I do not owe any monies, the house is empty and in acceptable condition (less regular wear and tear), utilities are not my responsibility past the day I leave and that they are NEVER EVER going to contact/chase/make claims against us?
Much appreciated
Hi: The N11 Form from the Landlord and Tenant Board would be a good document to agree as to your termination date. That would certainly terminate your ongoing obligations from that day forward. For everything else you are looking for a generic release that captures everything arising from the tenancy. That would have to be encompassed in a Release or, short of that, a written agreement signed by the landlord confirming the scope of the release. Unfortunately, the landlord and tenant board does not have a release of this nature. It is a document that you would draft (or alternatively have a lawyer or paralegal draft).
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you for your valuable knowledge.
Could you please share with us the processing time of the steps from landlords submit L1 form until tenants are completely forced to move out, assuming the tenants are evicted for non-payment of rent.
Thanks!
Hi Peter:
DeleteThe question you ask is impossible to answer with precise timelines. There are many reasons why a precise answer is impossible. The reasons include the fact that the scheduling of hearings and availability of resources varies widely across the province. The speed of hearings being scheduled is not consistent across the province and frankly it isn't consistent in the same region. Other variables include the decision making process and the time an adjudicator takes to write a decision and further the adjudicator's power to exercise discretion and allow more or less time depending on the unique circumstances of every case. Then of course, there is the possibility of adjournments or rescheduling due to hearing blocks being over-booked. Tenants can also use procedural strategies to delay the hearing. The Residential Tenancies Act allows a tenant to raise in defence any kind of application they might have brought independently. This can result in lengthy delays--especially if the tenant is well prepared. Beyond that, even when an eviction Order is granted for non-payment of rent, the tenant has the right to seek a Review of the Order and further to appeal the Order to the Divisional Court if the tenant believes the Order contains an error of law. All of these variables mean that predicting the timeline for eviction on an L1 application is effectively impossible. The best you are going to get is estimates--with the qualification that those estimates could be wildly inaccurate depending on the strategies employed, location of the hearing, and disposition of the adjudicator.
That being said, below is a typical time line out of the Ottawa Office (East Region) for a case to be heard at the downtown offices (as opposed to Cornwall, SmithsFalls, Pembroke, etc., where the timelines will be different).
1. Once the L1 is filed you can expect a hearing date to be scheduled within 2-3 weeks.
2. At the hearing, if it is unopposed (and presuming it is properly put together), the adjudicator will grant you a "standard" Order. The standard order is normally written within a few days of the hearing. That standard Order will grant the tenant 11 days to pay the Order and void the eviction.
3. If the tenant does not pay off the Order within the 11 days, and doesn't take any steps to set it aside or challenge it, then on the 12th day you can file the Order with the Sheriff (Court Enforcement Office). Typically, the Sheriff will post a Notice to Vacate on the tenant's door on the day following your filing and directing the Sheriff to enforce the eviction.
4. The Sheriff's Notice to Vacate will allow the tenant a further 7 days to vacate the unit. If there are holidays the tenant gets the benefit of a few extra days (the time line is not shortened).
5. Once in a tenancy a tenant can pay the amount owing after the Order has become enforceable but before the Sheriff has enforced the Order. If the tenant exercises this right they will typically bring a motion to void which stops the eviction process and hearing is scheduled to determine if the Order actually has been voided. The scheduling and hearing of this motion can take several weeks.
6. Presuming that the tenant does not bring a motion to void, does not seek a Review, and does not Appeal, the Sheriff will return on the 7th day as listed in the Notice to Vacate and provide you with vacant possession. Vacant possession means that the sheriff removes the people--not the personal property. You have additional obligations with respect to the tenant's personal affects.
DeleteSo, from the date of the L1 being filed to the date that the sheriff returns vacant possession you can reasonably expect the process to take about 6 weeks if everything goes very smoothly. However, as I indicated, there are many bumps that might happen which can stretch the process out much longer.
In different parts of the Province the time line is different for reasons that you might not expect. In the smaller centres the Landlord and Tenant Board does not sit as frequently. Hence, if you go to file the application right after the Board has sat or just before the sitting date and there isn't enough time to give notice so the matter can be added to the upcoming list, you can easily wait a month just to get a hearing date. The "standard order" will be the same, however, the enforcement of Orders in some of these regions is slower and the 7 day notice provided by the sheriff is longer and/or it takes the sheriff much longer after directing enforcement to actually attend the rental unit to post the Notice to Vacate. In some parts of the province the Sheriff is so backed up that it can take weeks for the Notice to Vacate to be posted.
So that is a typical timeline that is subject to many many possible detours. I note that you only asked from the date of the L1 being filed with the Board. You did not mention the time from the first service of the N4. The N4 being the document that starts the eviction for non-payment of rent process. The N4, presuming it is properly done, automatically gives the tenant 14 days from the date of service to "pay and stay". The landlord can not do anything until this 14 day period expires. Hence, it is very important to serve the N4 immediately upon the tenant being late in rent as the 2 week notice period added to all of the other time lines can really stretch an eviction for non-payment of rent to several months.
I hope that is the information you were seeking.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Dear Micheal,
ReplyDeleteI searched your blog far and wide (and being impressed by the scope of knowledge and even more by the willingness to share it) but couldn't find the answers to my specific situation.
Synopsis:
On compassionate grounds I took a person under my roof (separate bsmt apt.) a day before she would end up on the streets , shelters of Toronto.
She's ~40 years old, destitute, not a penny to her name, massive for her circumstances debts - to banks, CCs, collection agencies, CRA, HST, and many individuals who helped her over the years.
She obviously lives rent free, I buy her food, meds, found her a Doctor in the area (I live around 60km from her last address) to take care of her health issues. She is not in the right state of mind (the new physician referred her to psychiatrist).
My nephew (lives in Vancouver and who's family that person been a friend) and I want to help her to regain some of the footing she has completely lost, by addressing her health needs, getting her social assistance (welfare, disability), resolve, or at least make transparent, issues with the institutions mentioned above, help her with the documents she needs - (proof of citizenship, SIN #, birth certificate, that she claims were stolen) etc.
What makes the task additionally challenging is that she reluctantly cooperate with me , avoiding the practicalities that need to be addressed.
It's obvious she need help with her mental issues.
As much as I want to help I want to protect my interest, I put off the sale of the house till next spring to give her and us some time to sort things out. But the house sale is imminent next year and I need to know how to position myself that the sale won't be hampered, delayed by an obstinate 'tenant', guest(?)who wont leave on her own, and where would she go?, without job, money, in poor health..
My nephew and I have a contingency plan of paying for three months rent in AirB&B for her and some seed money to help her.
So now after this lengthy introduction my question is how to navigate this 'troubled waters'?.
Welfare office wants me to give a letter that she lives at my address and draft a tenancy agreement, stating the rent terms, should I enter into such an agreement, if so,charge rent or not?
Any attempt to advance her case with any institution would require her using my address, and my understanding is that she would de facto become my tenant, tenancy agreement or not.
I'm guessing I should keep a good record of events and action, receipts, communications etc.
I would appreciate and be grateful for your advise.
Kaz O.
Well, may God bless you kazo for your charity and good will. It reminds me of the story of the Samaritan and while we all have our reasons for walking past we have to be thankful for people like you who also have a reason to pass but stop to help.
DeleteThe risk to you, in time, is that your guest is recognized as a tenant under the Residential Tenancies Act. Such a recognition will give the guest security of tenure (i.e. rights to occupy). This matters because any need to involve police to remove the individual will usually be me with the refrain " this is a civil matter" and a suggestion that you need to go to the Landlord and Tenant Board or the Court for an Order. There is nothing inherently wrong with needing to go to Court as that is where disputes are resolved. The problem though is that it takes a very long time to get through the system and it might impair your ability to sell your house (especially if the purchaser is expecting vacant possession on closing).
How do you ensure that your guest is not a "tenant"? The most concrete way of doing so is to apply to the Landlord and Tenant Board on an A1 application and get an Order from the LTB confirming that the Residential Tenancies Act does not apply. Having this Order, in hand, should make it clear to any police officer that you enlist to remove the guest, should she refuse to leave, that she is a trespasser without rights to be on the property.
The request that you have received from OW for a lease and confirmation of residency is problematic. You shouldn't create a legal document that declares an RTA covered tenancy and not expect that to come back and haunt you in the future. I think it reasonable that you confirm your guests occupancy of an apartment at your property on the terms you describe. You can confirm this as her permanent address and her home for the time being. If they can't understand your generosity, then you could perhaps describe her presence in the home as a "non-RTA covered tenant with a licence to be in the property". Hopefully that will satisfy them to at least open a file for your guest and start her benefits etc..
You indicate that you do not charge rent and I think this is key to maintaining a non-RTA relationship with this person. If you start charging rent (or even pretending to with OW), then the likelihood of creating an RTA tenancy grows exponentially. Your charity otherwise is equally strong evidence of a non-RTA relationship as this is not the role of a landlord under the RTA. Keep evidence of this charity (receipts etc.) as you may need these for your LTB hearing on the A1 application.
If you don't get an Order from the LTB determining that the RTA does not apply then you are simply "hoping for the best" come time for the sale. If the guest won't move out--what would you do? Presumably you would call the police. They would likely attend and state that this is a civil matter and they won't do anything without a Court Order. You then might try to persuade the guest yourself or heaven forbid you consider self help and try to lock her out. This only invites legal trouble and I don't recommend it.
DeleteAt this stage you would call a lawyer and the lawyer would recommend (I think) two paths: 1) apply to LTB on an A1 for determination that the RTA does not apply and then hope that a police officer will regard the guest as a trespasser once looking at that Order, or 2) apply the Superior Court of Justice (if the police won't help) for a Writ of Possession which will allow you to direct the Sheriff to evict the guest (physically if necessary).
The problem with both of these options is that they take time. Both options can be expensive, the 2nd much much more than the first. While you can do the A1 application yourself, given what is potentially at stake you might want to have legal representation to make legal argument and not just the factual argument that self represented persons are inclined to make. The second option is effectively impossible for a self represented person to prepare and execute.
The second option, if you literally started today (July 29) could not be scheduled before a Judge sooner than November 19 based on the published first available date calendar. That's three and half months--and there is no guarantee that this first appearance solves the issue. Your location may be faster or slower.
What I think you need to take from this is that the legal status of the guest needs to be determined, by Order, sooner than later. An LTB Order may motivate police to assist you if it is necessary (though they still might say get a Writ of Possession). A way to know for sure is to get the Order and then go down to the police station and ask to speak with a Sgt. to see what the police position would be.
The other things you speak about in making provision for the guest at an Airbnb is lovely, and providing money (more than 2 denari I'm sure) to help her along is also commendable. However, these arrangements don't help you with the legality and willingness of the governmental authorities to Act to remove your guest should you ask or need her to leave.
I hope that helps. If you need clarification please feel free to get in touch with me directly.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael,
DeleteI most likely will get in touch with you.
Kaz
Hi, thank you for your generosity in sharing your knowledge. I have a tenant who will not be able to pay his December rent. He notified me of this earlier in November. Since then, his roommates have left because of his verbal abuse, confrontations (e.g., alleging roommates dirtied the toilet to harass him) and troubling behaviour (he twists things they say and accuses them of harassing him). He sent me a picture of this toilet, but it looked just fine. He has mental health challenges. I am afraid that this will make it even more certain that he won't be able to afford rent going forward as it will be challenging for him to find roommates.
ReplyDeleteI will certainly follow the steps you described here. However, days before, given the lengthy process and the unlikely chance of recovering rent arrears, I tried to negotiate with him an early termination date by the end of December, plus a cash incentive (equivalent to 1/3 of the full rent), so that he can avoid rent arrears for December and eviction (the LMR would be applied to December - which would then be the last month of the joint tenancy). He was very confrontational throughout the face-to-face discussion, calling my attempt to offer him another option to his situation as harassment. He refused to allow me to explain the implications of having his roommates leave suddenly, fearful of their safety because of him (i.e., wanting their portion of the deposit returned since they already paid their portion of the November rent, and that they will keep their bedrooms locked for December if they will not receive their portion of the LMR). I tried my best to calmly explain but he was loud, condescending, aggressive and interrupted my every attempt. He pointed out he was a protected class (person with a disability) and I was harassing him on a protected ground. He ended by demanding, yelling that I leave and I was uninvited, alleging that I was interfering with his enjoyment of his property.
Will a section 83 consideration favour this tenant and give him security of tenancy? In early November, he mentioned that he is looking for employment and will be filing tax returns that will give him over $2500 which he expects to receive within weeks of filing (as of late November he has not completed the filing). Are these the considerations adjudicators take into account when considering section 83? How will his disability factor into the section 83 consideration?
Clearly he is unable to afford a 3-bedroom apartment all by himself, but given his mental instability, it is very unlikely that he can find roommates to share the rent. Does the adjudicator consider the ability to pay moving forward in the section 83 consideration?
Have persons with a disability been granted security of tenancy even though they clearly cannot afford the rent?
Between now and the hearing, what are expectations on this tenant and on myself to mitigate the damages?
Thank you so much for your time and generosity.
Hi: Ultimately, rent is rent and it must be paid. Section 83 will not be used to reduce or discount the rent. Regardless of his personal circumstances the rent must be paid. What section 83 (discretion section) may do is delay termination or create a payment plan based on the circumstances. The chances for the exercise of discretion under section 83 is greatly reduced when it is perfectly evident that the tenant has no hope of paying and that delay would not help him raise the money to preserve the tenancy.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com