FROM $25,000 to $35,000 as of JANUARY 1, 2020
The Ontario Landlord and Tenant Board has a monetary jurisdiction of $10,000 or the monetary jurisdiction of the Ontario Small Claims Court (which currently is $25,000). This is set out in section 207 of the Residential Tenancies Act.
There is a significant change coming on January 1, 2020, in that the monetary jurisdiction of the Ontario Small Claims Court is increasing to $35,000.00. You can find the Regulation that makes this change HERE. Because the Residential Tenancies Act creates a monetary jurisdiction that tracks the Ontario Small Claims Court (based on wording of section 207 RTA) one would presume that the monetary jurisdiction of the Ontario Landlord and Tenant Board will also be increasing to $35,000 starting on January 1, 2020.
An unanswered question that I have is whether the increased jurisdiction will apply only to new applications filed on or after January 1, 2020, or whether existing applications that have not yet been adjudicated can take advantage of the increased jurisdiction. I've looked for any kind of transition Rule or Regulation but as yet no luck. If anyone knows something I don't about this a comment below would be appreciated. Absent any direct guidance my guess is that the increased jurisdiction will apply to existing but not yet adjudicated applications as well as new applications. I have a very vague recollection of caselaw on point when the Small Claims Court has made the leaps in monetary jurisdiction and that being determined to be a procedural rather than a substantive issue meaning the jurisdiction at the time of hearing governs not the date of filing. Of course, I stand to be corrected if anyone knows any different.
I'm wondering if delaying filing applications for claims in excess of $25,000 but less than $35,001, is necessary or worthwhile. If there is no prejudice in a delayed filing this might be something to think about.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, quick question and I'm hoping you can help me. I'm purchasing an income condominium with vacant possession on closing. I'm three weeks out and the seller (current landlord) has informed me that the tenant has not found a place to live and vacant possession will not happen. I've purchased the unit well under market value and don't want to lose the property. The tenant has agreed to sign an N11 for 6 months fro now....but I'm not sure if my name OR the current landlords name should be on this. Is there any other way to press for vacant possession or does that jeopardize the whole deal falling apart? Thank you so much for your insight.
ReplyDeleteHi: I hope that you have an experienced real estate lawyer. That is where you should be seeking advice and strategy. It depends of course on the wording of your agreement of purchase and sale. If the vendor has agreed to deliver vacant possession on closing and there are no wiggle clauses then the vendor has a very big problem. Speak with your real estate lawyer, you have a right to insist on closing and the correct strategy may indeed be to force the issue by tendering and putting the vendor in the position of having to close--and perhaps not closing. An experienced real estate lawyer may then be able to talk to you about your remedies against the vendor. Losing the "deal" is by no means the first conclusion when the vendor can't close. There may be money damages, specific performance (forced sale to you), or other remedies that again an experienced real estate lawyer can tell you about (I am not an experienced real estate lawyer!). I do know that disputed real estate transactions, breaches, etc., are highly technical and the failure to do one thing or another can take an advantageous position and lose it. Hence, my urging for an experienced real estate lawyer.
DeleteThe focus of your question is RTA related and whether there are solutions in the RTA. Let's assume, for whatever reason, that you are not going to utilize your APS rights and real property law rights and that you're going to close and waive the requirement to deliver vacant possession (again, no comment on whether that is the wise course). If it is your intention to reside in the unit (or a qualified family member will), then you should have the vendor serve an N12 (Purchaser's Own Use) Notice immediately. I'd assume that one was already served but that may not be the case. Then, apply immediately to the Landlord and Tenant Board on the N12 using Form L2. What this will do is get you a hearing date--far too long down the road to be useful for closing on the scheduled date--however, that future date may be useful for delaying closing by agreement/extension to the APS.
Once the LTB hearing is scheduled and the Notice of Hearing is sent out to the tenant, the vendor could then be in touch with the tenant to "make a deal". If that is the 6 month deal--then fine, but that 6 months is perhaps costly to the vendor in damages to you. The N12/L2 application can then be resolved with a consent Order terminating the tenancy for the agreed upon fixed date. Note that the termination date in the N12 is 60 days to the end of term. If the tenant is on a month to month tenancy then the termination date is much sooner than 6 months. Ultimately, and absent an agreement between the parties, the LTB decides whether the termination is the date on the N12 or some future date. Typically, the LTB exercises some discretion in favour of the tenants. There are certain considerations--including length of tenancy being terminated, disabilities, children in household, etc., in determining exactly when the tenancy is terminated. It is not unusual for the LTB to allow a school aged child to finish a school year and not terminate a tenancy that would force the child to move.
DeleteIf the vendor has already served an N12 then you have a termination date that has likely passed or is upcoming. Note that the N12 voids if you do not apply to the LTB within 30 days of the termination date. You should not let this happen.
Let us say that the N12/L2 application is issued and a hearing is scheduled. You, the vendor, and the tenant, then agree to terminate as of a certain date. You would make a joint submission to the LTB to get an Order issued in accordance with that joint submission. An experienced LTB lawyer or paralegal ought to be able to get you that Order (on consent) prior to the hearing date. Now you have a date certain that the tenant will vacate or be evicted by the Sheriff. The big big question now is whether you close the transaction with the tenant in possession or delay the closing until the vendor can deliver vacant possession. If you close before vacant possession is delivered you will be a "landlord" for a period of time. How do you feel about that? This scenario, of having a consent Order with a termination date is "better" than closing with a tenant in place and an N11 signed. You at least have an enforceable Order and the likelihood is that the order will be enforceable when needed if the tenant does not move out (other highly unlikely but possible crazy things can happen that prevent the Order from being enforced--for example an appeal or review--neither of which should work, should be legally impossible, but sometimes do).
DeleteThe N11 you mention. I would not recommend that path. The N11 is just a piece of paper representing a promise. If the tenant does not move out in accordance with the N11 you would apply to the Board (in fact you can apply immediately to the Board on a signed N11 form). That hearing can result in the tenant stating that their signature was coerced, that the signature was obtained under threat, duress, or other things. I've had N11's challenged on the basis of disability and lack of comprehension (what is called a non est factum argument if you want the latin). On top of that the Board always retains a discretionary section 83 power to delay, deny, extend the termination date. Therefore, the N11 is only useful if you convert it to an Order of the LTB. It is true that if you apply on the N11 the Board will consider the application on an ex parte basis (no notice of hearing and no hearing). The Board will simply issue an Order based on the signed N11. Sounds good, except that the tenant can file a motion to set aside the ex parte Order. The filing of that motion will automatically "stay" the enforceability of the eviction Order and a hearing will be scheduled. At that hearing the tenant can argue all the things I set out above. The umpf of the argument to terminate in your favour is less clear on an N11 (in my view) than the argument arising from the underlying facts supporting an N12 for purchaser's own use. If you have followed the time line of both the N12 and N11 you can see that they both can work out about the same if the adversarial aspect of the legal process is engaged.
There are many factors/circumstances that are not disclosed in your question. Whether your financing is stable, whether you can afford to wait to close for "other" reasons I don't know. But assuming waiting versus closing is fine either way--then in my opinion the better course is to keep the vendor in the picture until the vendor is in a position to deliver vacant possession via the Order and enforcement of it through the Sheriff. I'd avoid becoming a "landlord" even if just for a short time--who wants that headache? Also, going back to what I said at the beginning, you have rights vis a vis the APS that you need to clarify with your real estate lawyer. If your position is strong you can leverage that strength to compel the vendor to deal with the tenant (sooner than later) and perhaps pay the tenant to leave or pay you to assume the headache of the tenant being in possession on the date of closing.
Good luck with this. I do strongly urge you to get together with your real estate lawyer to discuss the proper steps to take if the vendor can't close on the scheduled date.
Michael K. E. Thiele
www.ottawalawyers.com
P.S. Until you are the actual owner and landlord the name used on the forms (and the N11) would be the current landlord.
DeleteHi Michael, your blog is very informative so I thought you might have an answer to this question. I have been an occupant in an apartment for over two years, paying rent to my roommate who then pays the landlord. About halfway through this time, the landlord began treating me like a tenant. She procured my number from my roommate, the tenant, and began directly communicating with me, asking me about conditions of the apartment, requesting permission to enter on multiple occasions, and otherwise bypassing the tenant in their dealings with me. They asked me to relay messages to my roommate when they made contact with me, and vice-versa when they contacted my roommate, and treated us as equal tenants. I have texts proving these scenarios. Now my roommate is moving out and I want to stay. They are willing to rent to me, but at a substantial rent increase. I know that if I'm considered an occupant I have no grounds, so my question is this: when the landlord bypassed my roommate, the tenant (whose lease has expired and is on a month-to-month), did that constitute the recognition of a landlord-tenant relationship that the RTA would also recognize?
ReplyDeleteThanks a lot,
denver
HI Denver: You ask "did that constitute the recognition of a landlord-tenant relationship that the RTA would also recognize". The answer is "possibly" and "yes" with a big heap of "it depends". If your roommate in a moment of forgetfulness had left the window open in -40 degree weather, froze a pipe, flooded the place and caused $$$$ damages, would you have considered yourself a tenant? Or just a roommate? I ask this question because your answer should be the same whether it is to have the benefit of a low rent or the liability of a massive judgment---not that your belief governs the day (legally speaking) but it is a factor that an adjudicator would consider. If you can't say that you believed yourself to actually be a tenant then the case gets tougher to make. You would most certainly be expected to have an answer to this question. Indicia of your belief would be helpful to have--the emails and texts are good. How about paying rent directly to the landlord would have been great (alas that didn't happen). Did you buy tenant insurance--go half with the roommate as co-tenants? Did you represent in any third party documentation that you were a tenant (as opposed to a roommate)? There will be a suspicion that your "personal view" of the situation is formed based on your advantage--hence the need for corroborating evidence.
DeleteThe caselaw goes both ways and it is perhaps useful to read some of the cases. Unfortunately, the definition of tenant is in section 2(1) of the Residential Tenancies Act and that section provides the definitions for many many words and phrases. Hence, getting only cases defining tenants is not as easy as finding caselaw on other sections. That being said, you can do the following. Go to www.canlii.org. Select Ontario. Then, in the top box that says "document text" type the following: tenant /2 defin! & roommate. That search will bring up up a slew of cases and you can see how the LTB has thought about roommates being tenants by definition. I haven't had one of these cases in a long while but my sense of the matter is that in the early days of the RTA (and Tenant Protection Act) it was fairly easy to characterize a roommate as a tenant. Currently, I think, it is fairly difficult to get the rights of a tenant if you started as a roommate unless there is something truly overt that demonstrates an intent to change the status from occupant to tenant. For example, in recent years the payment of rent by a roommate has been interpreted as being a payment made as agent for the tenant whereas at one time, if a roommate could get the landlord to cash a cheque, even inadvertently, they could get tenant status.
So, short answer---it all depends.
Michael K. E. Thiele
www.ottawalawyers.com