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How to evict a tenant in Ontario for “Own Use”

In Ontario, an N12 form is given to a tenant when the landlord or the landlord’s spouse or child requires the rental unit for their own full time residence for at least one year.

The form is also used when a purchaser or the purchaser’s immediate family member requires the rental unit for their own use. This blog focuses on a landlord requiring the unit for their own use. Although some requirements are the same for a purchasers own use application, some are not.

The termination date on the N12 must be at least 60 days after the tenant is served. The termination date set out in the notice must be the last date of the rental period or the last date of a lease term. Self-represented landlords often make a mistake when choosing the date. This is especially so when rent is not payable on the first of the month.

Once the N12 is served the landlord can immediately apply to the Landlord and Tenant Board for an eviction order. An L2 application is used.

These “own use” applications are often hotly contested. This can be the start of a long heated battle.

It is in both the landlord’s and tenant’s best interest to hire an experienced licensed paralegal ontario to represent them.

Do not ask landlord tenant board ontario staff for legal advice. They are trained in forms and procedures. They are not trained in the law.

The person who plans to move in must swear out an affidavit stating that they, “in good faith” intend to reside in the apartment for at least a year. Self-represented landlords often fill out the affidavit incorrectly.

The landlord must pay the tenant the equivalent of one months’ rent as compensation for bringing this application. This must be paid before the termination date set out in the N12 notice. The landlord must prove this money was paid.

Should the landlord or the family member who plans to move in testify at the hearing? Can an eviction be delayed or denied even if the landlord proves they “in good faith” require the apartment for their own use? Is it now easier for a former tenant to sue their former landlord if they moved out due to receiving an N12 notice which was given in bad faith?

You need an expert to represent and guide you through the process. At Civil Litigations we are experts who have been in business since 1996. Call us at 416-229-1479 or use the appointment tab on our website, www.CivilParalegal.com to book a 30 minute free consultation

Eviction at the LTB for Landlord’s Own Use

Effective September 1, 2021, a tenant can sue a former landlord who gave a “bad faith” N12 notice or the equivalent, for up to 12 months of rent which they were paying as general damages. The tenant does not need to prove they suffered any out of pocket loss.

There seems to be more of these applications being filed with the Ontario Landlord and Tenant Board lately.

Good Faith Intention to Move In

The real question is are these landlords and purchaser bringing applications to evict as they genuinely in good faith plan to move in or have an immediate family member move in and live there for at least a year, or is it a just a no fault eviction method so the landlord can increase the rent to market rate for a new tenant moving in?

T5 Application

Perhaps landlords and purchasers are unaware or willing to take the risk that a tenant will bring a T5 application later claiming the landlord or purchaser served them an N12 notice in bad faith and evicted then.

The law was changed to make it easier for a tenant to prove bad faith. The onus shifts to the landlord to prove the notice was not given in bad faith if the former tenant can prove the landlord did any of the following:

(a) advertises the rental unit for rent;

(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;

(d) demolishes the rental unit or the building containing the rental unit; or

(e) takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.

Evictions for landlord’s own use or purchaser’s own use are governed by the Residential Tenancies Act, applicable case law, and Landlord and Tenant Board Interpretation Guideline #12.

Landlord’s Own Use and N12 Form

A landlord’s own use application starts with serving an N12 notice correctly and giving the proper amount of notice. If a notice is served by mail it is deemed served five days after mailing.

An L2 application can be filed with the LTB starting the day after service of the N12. It makes sense to issue the application immediately. The person who plans to move in must swear out an affidavit that they in good faith require the property for their own use and plan to live there for at least a year.

Tenants often dispute the landlord or purchaser’s good faith intention. Therefore, I request from my clients the person who plans to move in attend the hearing and testify.

The test of good faith is whether the Landlord has a genuine intention to occupy the rental unit for his own use (Salter v Beljinac 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 Div Ct)
A landlord who is bringing this type of application is required to pay the tenant the equivalent of one month’s rent as compensation for bringing this application. The compensation must be paid before the termination date set out in the N12, and before the hearing, or the board will not grant an eviction order.

A purchaser must at a minimum produce a valid Agreement of Purchase and Sale at the hearing.

In file TNL-03124-18, http://canlii.ca/t/hsp9n the board refused to grant an eviction when the compensation was paid after the termination date. This decision was upheld on review.
Another change that came into effect in 2017, is that no longer can a corporation with a single shareholder bring a landlord’s own use application.

Relief from Eviction

The tenant may also seek relief from eviction under section 83 of the Residential Tenancies Act.

Section 83(1) requires the board on every eviction application to decide based on all the circumstances of the parties whether it would be fair to delay or deny an eviction.

Section 83(3) makes it mandatory for the board to refuse an eviction if the tenant proves any of the following:

a)the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Both landlords and tenants risk a lot in asking the board adjudicator also called a member to make a decision.

Mediation services are available at the board if both parties are willing to come to a compromise such as an agreed extension of the time before the tenant has to vacate, or the landlord paying the tenant more money than the landlord is required to pay as compensation to bring this application.

With so much on the line for both landlords and tenants in this process, it would be wise to obtain the representation of an experienced licensed paralegal to represent you.

If you are in Toronto or the GTA and you require representation, please contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at https://www.civilparalegal.com/home_services/landlord-and-tenant-board/

civillitigations: October 28, 2018 eviction, L2, landlord tenant board, N12 Eviction, Landlord and Tenant Board, landlord tenant act Ontario, Ontario paralegal

COMMON LANDLORD AND TENANT MYTHS IN ONTARIO PART 1

Myth: Tenants can be evicted at any time if the year. If the Residential Tenancies Act applies only the sheriff can evict and force a tenant out. The sheriff will not act until the landlord has obtained an eviction order from the Landlord and Tenant Board.

A landlord cannot evict a tenant in the winter

All residential tenancies in Ontario are covered by the Residential Tenancies Act.

Myth: Section 5 of the RTA lists many situations where the Residential Tenancies Act does not apply.

A tenant is permitted to withhold rent if the landlord has not done repairs.

Myth: Tenants are never permitted to withhold rent.

A tenant can be required to pay all or part of the cost of repairs if the lease contains that clause.

Myth: Section 20 of the RTA makes the landlord solely responsible for repairs to the apartment and residential unit due to normal wear and tear. A landlord is further required to meet all health and safety laws. Section 3 of the RTA states that a provision of a tenancy agreement that contradicts the RTA is void.

Section 34 of the Residential Tenancies Act makes a tenant liable for repairs only if the landlord can prove the tenant or someone the tenant allowed in the apartment willfully or negligently caused damage to the apartment.

The tenant must vacate the apartment at the end of a lease term.

Myth: Section 37 of the RTA states that at the end of a lease term the tenancy automatically renews on the same terms. If rent is paid monthly, the tenancy becomes month to month. A tenant is permitted to stay in the apartment as long as they want. A tenancy can only be terminated if the tenant gives the landlord notice to vacate, the landlord and tenant agree to terminate the tenancy, or the Landlord and Tenant Board makes an order terminating the tenancy and evicting the tenant.

The landlord can prevent the tenant from having overnight guests if that is a term of the lease

Myth: A landlord is not permitted to stop a tenant from having overnight guests.

The landlord can restrict the people living in the apartment to the people named in the lease.

A landlord is not able to restrict the number of people living in an apartment or state that only people named in the lease may live there. However, there are a couple exceptions.

The tenant cannot have more people living in the apartment then the municipal by-law permits. This is considered overcrowding.
The tenant cannot sublease or assign the tenancy without seeking the consent of the landlord.

Do you need help with a case before the Landlord and Tenant Board? If you are in Toronto or the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or https://civilparalegal.com/home_services/landlord-and-tenant-board/

Is the LTB too complicated for landlords to self-represent?

Too many small to medium sized landlords learn the hard way that you need to know a lot to bring an eviction application to the Landlord and Tenant Board. The Ontario Residential Tenancies Act, Notices of Termination, and case law are not easy to understand.

It may not be enough.

Application Dismissed for Technical Reasons

Most landlord applications are preceded by a Notice of Termination served on the tenant; such as an N4, N5, N6, N7 N8, N12, and N13. If the Notice of Termination is missing key information the board should dismiss your application.

Sections 43(1) and 43(2) state the information required in a Notice of Termination. It states:

“43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,

(a) identify the rental unit for which the notice is given;

(b) state the date on which the tenancy is to terminate; and

(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,

(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);

(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and

Too often self-represented landlords fail to properly identify the rental unit. They forget to add an apartment number, or state basement apartment. Sometimes, no one mentions during the hearing that tenant rents a certain apartment number. In that case, the landlord may get an eviction order, but may find that the sheriff is unwilling to enforce the eviction order.

In the case of Ball v. Metro Capital Property and Lockhurst (December 19, 2002), Toronto Docket No. 48/02 (Div. Ct.), the Divisional Court determined that an N5 notice of termination was defective as the notice failed to give the tenant enough information to know the case against her, and to be able to correct the behavior within seven days. The case also stated that the notice must contain specific dates and times when bad behaviour occurred.

An LTB adjudicator called a Member is required to strictly interpret the law.

The LTB provides mediation services if both the landlord and tenant are willing to work out a deal. A mediator is not restricted by technical errors in completing the forms.

A landlord may be able to get around any technical errors in the notice of termination by coming to a mediated settlement.

A Landlord and Tenant Board adjudicator will usually ignore these technical errors in the notice of termination if the landlord and the tenant come to a consent on how to resolve the application. The board adjudicator will prepare a consent order.

Relief from Eviction

On every application the board is required to consider all the circumstances disclosed to determine whether it would be fair to delay or deny an eviction.

If the tenant can prove any of the following, then the board must refuse an eviction.

(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Many self-represented landlords are unaware of these requirements. Often self-represented landlords fail to put forward any evidence of how the board delaying or denying an eviction will affect them.

Worse, landlords are not prepared to ask questions of the tenant or the tenant’s witnesses on this point.

Witness Letters

Many self-represented parties plan to prove vital facts by producing a witness letter. They are unaware that virtually ever board member’s view is that witness letters carry no weight.

If you choose not to hire an experienced Ontario licensed paralegal to represent you, you may find your application dismissed for technical reasons, or you may not be aware what you are required to prove and how to prove it.

Paralegal Representation

Our office receives calls from small landlords everyday who have had their cases dismissed. Sometimes the small landlords don’t even understand why their case was dismissed.

If you are in Toronto or the GTA and you need to hire a paralegal for an LTB case, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

Are you an Ontario Landlord defending an Application Concerning Tenant’s Rights also known as a T2 Application?

If the tenant does not receive 100% of what they bargained for in renting their apartment, a tenant (current or former) can file a T2 application against their Ontario residential landlord claiming money damages up to $25,000.00, as well as other remedies.

This is one of most common tenant applications that a landlord may have to defend.

The T2 application is also called an Application Concerning Tenant’s Rights. It is filed with the Ontario Landlord and Tenant Board. Section 29(1) sub-paragraphs 2 to 6 of Ontario Residential Tenancies Act sets out the grounds that a tenant or a former tenant can file an Application Concerning Tenant’s Rights. The grounds include the landlord, superintendent or agent has:

withheld or deliberately interfered with the reasonable supply of any vital service, that it is the landlord’s obligation to provide

substantially interfered with the reasonable enjoyment of the apartment or residential complex by the tenant or a member of the tenant’s household

harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the apartment

has altered the locking system to the apartment or residential complex during the tenant’s occupancy of the apartment without giving the tenant replacement keys

illegally entered the apartment

If the tenant proves the landlord did any of the above, the Residential Tenancies Act allows the Landlord and Tenant Board to order the landlord:

to stop the activity

to pay money to the tenant to repair or replace an item that landlord damaged

to pay reasonable out of pocket expenses of the tenant

to pay an abatement of rent

to pay a fine to the board

to terminate the tenancy

to make any other order the Board considers appropriate

If the landlord has interfered with the tenant’s reasonable enjoyment of the apartment, and the Board agrees, then the landlord would be ordered to pay an abatement to the tenant. (A percentage of the rent returned to the tenant.) For example, if a problem persisted for three months, the Board may order the landlord to pay the tenant 25% of the monthly rent times three months to compensate the tenant for their loss of enjoyment.

The order will usually state if the money is not paid by a certain date, than the tenant may deduct the abatement from the monthly rent.

If the tenant was induced by the conduct of the landlord to vacate the apartment, the Ontario Landlord and Tenant Board may also order the landlord to pay the subsequent increased rental expenses that the tenant will or has to incur for a one-year period after the tenant left the apartment. The Board may also order reimbursement for moving and storage expenses.

Paralegal Representation

Our office receives calls from small landlords, and commercial real estate investors, who self-represented themselves and lost their case involving an Application Concerning Tenant’s Rights. Sometimes these small landlords don’t even understand why they lost. Often, they mistakenly thought defending a T2 application is simple, and would not require the skill of a paralegal. They learned the hard way that a skilled Toronto paralegal can make all the difference.

If you are a landlord needing to defend a T2 application in Toronto or the GTA you need to hire an experienced, licensed, Ontario paralegal. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

You can rely on his 23 years of experience.