First N5 Form
Typically, an N5 form is served on the tenant for certain types of bad conduct issues. In the notice the landlord alleges the tenant is seriously and substantially interfering with the reasonable enjoyment of another tenant or seriously and substantially interfering with the landlord’s lawful rights, privileges and interests.
Conduct issues that may disturb other tenants include but are not limited to: making too much noise, smoking cigarettes or marijuana, odors emanating from the apartment, etc.
Landlord’s Lawful Rights
There is also conduct that substantially violates a landlord’s lawful rights, interest or privileges. These include, but are not limited to breaching a lease term that significantly affects the landlord’s rights. The lease term violated must be an enforceable lease term; one that is not contrary to the Residential Tenancies Act (RTA). Many leases contain illegal terms that the Landlord and Tenant Board will not enforce.
An N5 notice can be served on the tenant(s) in accordance with section 64(1(2)(3)) of the Residential Tenancies Act. The RTA states:
“64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
(2) A notice of termination under subsection (1) shall,
(a) provide a termination date not earlier than the 20th day after the notice is given;
(b) set out the grounds for termination; and
(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice. 2006, c. 17, s. 64 (2).
Notice void if tenant complies
(3) The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.”
A first N5 notice is served on the tenant. They then have seven days to stop the bad behavior. If the notice is served on the tenant by mail, then they have twelve days to stop the activity. If they stop the bad activity during the seven or twelve day period that is the basis for the N5, then there cannot be an eviction application to the Landlord Tenant Board Ontario.
If the tenant does not stop the bad behavior within seven days, then the landlord can apply to the Landlord and Tenant Board for an eviction order.
Second N5 Form
However, if the tenant did stop the activity within seven days, but starts up doing the same bad behavior within six months, the landlord may serve a second N5 notice to the tenant. Once served, the landlord can immediately apply to the Landlord and Tenant Board for an eviction order.
Common Errors made by self represented landlords in preparing the N5 notice include: not serving the notice(s) correctly in accordance with the Residential Tenancies Act and its rules, not proving enough details in the N5 in violation of the principals set out in the important Divisional Court case of Ball v. Metro Capital, failing to count the days properly, failing to fully and properly identify the rental unit. These errors can be fatal to the landlord’s case. If the board determines the notice was prepared improperly, the board will not issue an eviction order. See the Landlord and Tenant Board’s Interpretation Guideline #10 for more information.
It is important to obtain the legal representation of a paralegal Ontario early.
The majority of people who come in to see me for a consultation have an N5 that was prepared incorrectly. When representing a tenant, I seek to have the application dismissed on that basis alone. When I represent a landlord, I urge them to have me re-do and re-serve the N5 properly, or face the likely outcome of their application being dismissed.
At the hearing of an L2 application based on an N5 notice, the landlord must prove the contents of their notice(s). This often means calling another tenant, property manager, superintendent or other person to testify at the hearing. When in doubt whether the witness will testify voluntarily, a Summons should be issued and served on that person.
I started the article by stating typically an N5 notice is given to the tenant for bad behavior. However, if the building contains three units or less the landlord may choose to use an N7 form instead.
Section 65(1)(2)(3) of the Residential Tenancies Act states:
“65 (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord. 2006, c. 17, s. 65 (1).
(2) A notice of termination under this section shall set out the grounds for termination. 2006, c. 17, s. 65 (2).
Non-application of s. 64 (2) and (3)
(3) Subsections 64 (2) and (3) do not apply to a notice given under this section. 2006, c. 17, s. 65 (3).”
There are two main benefits of a landlord using an N7 LTB notice, if applicable, over the N5 form. First, the tenant is not given a period of time to stop the bad behavior.
Secondly, a landlord can apply to the Landlord and Tenant Board immediately after serving the N7 notice on the tenant. There is no required waiting period as there is with an N5 form.
With so much on the line for both landlords and tenants in these types of notices and applications, it would be wise to obtain the representation of an experienced Ontario 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 http://stage.civilparalegal.com/services/landlord-and-tenant-board/