Why is there sometimes a moving problem? While a tenant who has terminated a lease must move out by midnight of the last day of the term (usually the last day of the month), it is often the case that the new rental unit they are moving is not available until the first of the following month. This means that moving out on the last day of the term will leave the tenant without a home for one evening. Often this problem is solved by the tenant simply not moving out on the last day of the month but instead they wait until the following day to vacate. When this happens, and the rental unit has been rented to a new tenant, you can have a situation where the old tenant is literally moving out while the new tenant is moving in. In these situations, landlords are often not doing any work in the turnover (paint, clean, repair, maintenance) and often there is no move in inspection done to determine the condition of the unit when the new tenant takes over. Nevertheless, these overlaps usually resolve themselves through cooperation and people just trying to get along and out of each other's way.
The more significant problem occurs when the tenant who was supposed to move out--fails to move out at all. In these circumstances, the new tenant arrives at the rental unit only to discover that they can not move in and that the sitting tenant is refusing to leave altogether. How long will it be before the sitting tenant is forced to get out? The answer is that unless they move out voluntarily--it will take the landlord several weeks to file an application with the Landlord and Tenant Board, get a hearing, and get the sheriff to enforce the eviction---presuming that the landlord wins! If you find yourself in such a situation it is reasonable to expect extended delays to the point that it makes more sense to find a different place to live (unless you are satisfied by representations from the landlord and sitting tenant that the unit will be available shortly).
What about the financial consequences for a new tenant, who has packed their worldly possessions into a rental truck (that likely has to go back tonight), and now has no place to live. Who is responsible for these costs? The answer to this question varies depending on the specific circumstances of each situation. One of the first places to look is in the offer to lease and the lease itself. Often times, a landlord will include a clause in the offer to lease or the lease itself that delays the commencement of the tenancy to the date that the unit is vacated by the sitting tenant. There are different versions of these clauses---with varying degrees of effectiveness. The point is that the landlord is seeking to transfer the risk of the sitting tenant not moving out to the new tenant moving in and thereby shifting the financial losses suffered by the new tenant to that tenant.
Sometimes, the lease, the offer to lease, or any of the paperwork surrounding the creation of the tenancy says absolutely nothing about a delay in the commencement of the tenancy. Sometimes the paperwork--or the oral or implied understanding--is clear that the tenancy begins on a fixed date without excuse. If the apartment is not ready or available under those circumstances there is a greater chance that the new tenant can recover the immediate financial losses they suffer from the landlord. This would normally be done in a claim in the small claims court if reasonable terms of settlement can not be worked out with the landlord. Good landlords will recognize the predicament that their new tenant is in and often will try to make good for the unfortunate circumstance.
Whether or not a landlord is liable for failing to provide a rental unit, on the date stipulated in a lease (oral, written or implied) depends entirely on the circumstances. Even if there is no clause limiting liability if a sitting tenant does not move out, you still have to analyze why the unit is unavailable. For example, if the night before the new tenant was to take over the unit the building burns to the ground, it is fairly clear that the landlord becomes unable to perform the lease contract and hence it is impossible to deliver the unit described in the lease. If your circumstance is similar to such a situation it is possible that your contract is "frustrated" (see frustrated contracts act). This act applies in the Residential Tenancies context and as a result you may find that there is no remedy for your particular situation.
Another avenue to consider, and depending on the circumstances, is an insurance claim if there is a tenant's policy in place. If the unit is unavailable due to flood, fire, or some other event, it is possible if a policy is in place for the insurer to provide temporary accommodation under the provisions of the tenant policy (most tenant policies contain terms that provide for temporary alternate housing in cases of emergency, repair, etc.).
All of this being said, if you have the experience of your unit not being ready you may wish to consider in the future to provide for this possibility when signing a new lease. There is nothing that prevents you from clearly setting out the consequences for the landlord if he, she, or it fails to deliver the unit. Of course, the landlord would have to agree to such conditions. Alternatively, maybe you plan to move to the new place a few days after the first of the month. This will allow the landlord to do some work, but also give you the comfort of getting the keys, looking around, and then move when you know that you are in possession of the unit and are satisfied with its condition.
Michael K. E. Thiele
Ottawa Lawyer
QTMG LLP
