Landlord – Civil Litigations

Have You Offered a Payment Plan to your Tenant?

Every landlord should attempt to negotiate terms of payment for rent arrears with their tenant. If possible, the offer of terms of payment should be made in writing. The offer should be disclosed and filed with the board as evidence in advance of the hearing.

On every non-payment of rent application seeking an eviction during COVID-19, the board must consider to delay or deny an eviction based on section 83(6) of the Residential Tenancies Act, which states in part:

“…. in determining whether to exercise its powers under subsection (1) the Board shall consider whether the landlord has attempted to negotiate an agreement with the tenant including terms of payment for the tenant’s arrears.”

The board is required to consider delaying or denying an eviction if the landlord fails to attempt to negotiate with the tenant.

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Paralegal Representation

Every day our office receives calls from landlords across Ontario wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations

(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

When Should You Serve a Notice of Termination on your Tenant?

Every application to the Ontario Landlord and Tenant Board seeking to evict a tenant must start by serving the tenant with a Landlord and Tenant Board approved Notice of Termination.

There is currently a backlog at the Landlord and Tenant Board of six months or more to get a hearing date.

With that in mind, you should serve a notice of termination on your tenant on the first possible day to do so.

For example, if rent is due on the first of the month, and it the rent is not paid, I recommend serving the N4 Notice of Termination on the tenant of the second day of the month.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters. We are now representing at hearings all over Ontario.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Request to Expedite a Hearing

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:
a. the length of the delay, and the reason for it;
b. any prejudice a party may experience;
c. whether any potential prejudice may be remedied;
d. whether the request is made in good faith; and
e. any other relevant factors.”

With the backlog at the Landlord and Tenant Board, all landlords would like an expedited hearing to allow them to evict their tenant quicker at the Ontario Landlord and Tenant Board.

The LTB is receiving lots of requests for an expedited hearing from people who clearly do not qualify.

You should only file a Request to Shorten Time if you meet the eligibility requirements set out in Landlord and Tenant Board Rule 16.4

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:

the length of the delay, and the reason for it;
any prejudice a party may experience;
whether any potential prejudice may be remedied;
whether the request is made in good faith; and
any other relevant factors.”

A Request to Shorten Time may only be made once per file. If you do not meet the eligibility requirements at the time of filing your application you may be better off waiting to file the Request to Shorten Time. Your circumstances may change, and the Request to Shorten Time could be made later.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Major Changes to the Residential Tenancies Act under Bill 184

Bill 184 (Protecting Tenants and Strengthening Community Housing Act, 2020) was passed by the Ontario Legislature on July 21, 2020. The bill made many changes to the Residential Tenancies Act. Some of the changes to the RTA went into effect immediately upon passage of the bill, while other changes will come into effect at a later date.

There are too many changes to the RTA to list them all here. This is a list of the most important changes currently in effect that I want my landlord clients to know about.

Please note that although every effort was made to make sure these explanations are complete and accurate, it is very difficult to take complex legal language and explain it fully in layman’s language.

Please check the precise wording of the amendments made in the Residential Tenancies Act. It is recommended that you obtain proper legal advice on interpreting the RTA, and how it applies to you.

Here are the sections of the Residential Tenancies Act whose major changes are already in force:

Section 49.1(1)(2)

If an N12 Notice for Purchaser’s Own Use was given to the tenant after July 21, 2020, the landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant.

Section 52(2)

If an N13 Notice for demolition or conversion to non-residential use was given to the tenant after July 21, 2020, and the building contains fewer than five residential units, the landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant. This section applies if the demolition was not ordered to be carried out.

Section 54(3)(4)

This section applies if:

an N13 Notice for major repairs requiring vacant possession and a building permit was given to the tenant after July 21, 2020;
the building contains fewer than five residential units;
the tenant does not give notice to the landlord before vacating that the tenant is exercising their right of first refusal to move back in after repairs are made;
the major repair was not ordered to be carried out.

The landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant.

However, if the tenant does give notice before vacating that they plan to move back in after the repairs are completed, than the landlord shall pay the tenant the lessor of one month’s rent or the period the apartment was under repair or renovation.

Section 55.1

If the landlord gives a notice of termination for landlord’s own use, purchaser’s own use, for renovation and repair, conversion to no residential use, or for demolition, any compensation the landlord is required to pay the tenant must be paid by the termination date set out in the notice of termination.

Section 78(1)(3)(4)(7)(12)

Section 78 allows a landlord to apply to the board for an eviction order, without a hearing being held if the landlord had previously applied to the board for an eviction order, and the board ordered that there would be no eviction if the tenant met certain conditions. The tenant failed to meet one or more of the conditions, and the order of the board permitted the landlord to apply for an eviction order under section 78 if the tenant failed to one or more of the conditions.

These amendments deal with the section 206. Now a landlord can also apply for an order evicting the tenant if the tenant fails to meet the conditions in the Payment Plan filed with the board.

Section 82(1)(2)(3)(4)

At a non-payment of rent hearing a tenant is entitled to raise any issue that could be raised in an tenant’s application (e.g.: maintenance, harassment,) as if they had filed an application and paid a filing fee to the board.

This new section now requires the tenant to give to the landlord and the Landlord and Tenant Board written notice of their intent to raise issues which could be raised if a tenant’s application had been filed. The proposed rules require the tenant to give a written description of each issue the tenant plans to raise, and to serve a copy of the issues and of all evidence the tenant plans to rely on at least five business days before the hearing.

However, the tenant may still be able to proceed with their claim if the tenant provides a satisfactory explanation to the board why they were unable to comply with this requirement.

Section 83(6)

The Landlord and Tenant Board is required on all eviction applications to use its discretion based on all the circumstances disclosed at an eviction hearing to determine whether it would be fair to delay or deny an eviction.

The new section deals with non-payments of rent applications where the rent owed in whole or in part is during the COVID-19 period starting on March 17, 2020. The Board is now required to consider whether it would be fair to delay or deny an eviction based on whether the landlord has attempted to negotiate an agreement or payment terms with the tenant.

Section 135.1

If a tenant pays an illegal rent increase for 12 consecutive months, and if the tenant does not make an application to the board challenging the illegal rent increase within 12 months of the date of the increase, then this rate becomes the legal rent payable.

This section applies to an illegal rent increase made before or after July 21, 2020, provided the board validity of the rent increase was not determined by the board prior to July 21, 2020.

This section removes the loophole that once an illegal rent increase was made, the tenant could dispute the lawful rent being charged years later.

Section 194(1)

The board always had mediators on site to assist the parties, if they voluntarily chose to speak with a mediator, to try come to their own solution to the application before the board.

This amendment now permits the board to order the parties to attend mediation or another dispute resolution process. Mediation may be forced upon the parties.

Section 206

If the landlord has filed an L1 application (non-payment of rent) with the Landlord and Tenant Board, and the landlord and the tenant agree in writing to a payment plan signed by all the parties on how the arrears are to be paid, this may be filed with the board in advance of the scheduled hearing. If filed, the board may order a payment plan without holding a hearing. If this happens, then no eviction will be ordered.

The agreement may include payment of the arrears of rent, NSF cheque fees incurred, and NSF administrative fees, payment of the LTB filing fee, and future rent that will become due during the period that the rent arrears are being paid off.

The board will issue an order that will contain a section 78 clause. If tenant fails any make payment as set out in the signed agreement, the landlord may within 30 days of that breach file an L4 application with the board setting out which terms were breached. The board may order an eviction without holding a hearing.

Alternatively, a landlord may file a request to reopen the application and have a hearing, even if a section 78 clause was included in the order.

A landlord or a tenant may file a request to reopen the application within 30 days of the L1 payment plan order being made alleging the other party coerced them or deliberately made false or misleading representations which had an effect on the agreement and the order issued as a result of the signed payment agreement.

Section 238(1)

The Rental Housing Enforcement Unit of the Ministry of Housing investigates and prosecutes contraventions of the Residential Tenancies Act.

The maximum fines for individuals (landlords or tenants) found guilty increases to $50,000.00. This is up from $25,000.00.

The maximum file for corporate landlords found guilty increases to $250,000.00. This is up from $100,000.00.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

A Case Management Hearing can be the Most Important Hearing

A Case Management Hearing at the Landlord and Tenant Board can be the most important hearing whether the case settles or not.

The LTB Ontario may schedule a Case Management Hearing to deal with an application. Most CMH hearings are scheduled for tenant applications. Case Management Hearings are subject to the Landlord and Tenant Board’s Practice Direction on Case Management Hearings, and Landlord and Tenant Board Rule 9. See the Landlord and Tenant Board’s website for its practice directions and rules.

The Landlord and Tenant Board Practice Direction on Case Management Hearings (CMH) set out the hearings purpose as:

“The CMH has two purposes. First, it provides an opportunity for parties to explore settlement of the issues in dispute, usually with an LTB Hearing Officer, who is trained in dispute resolution. Second, if parties are unable to resolve all the issues in dispute, the LTB will make directions to facilitate a fair, just and expeditious merits hearing, or in appropriate circumstances, make orders finally determining matters agreed to by the parties or not in dispute.”

In my opinion there are many other benefits of a Case Management Hearing.

The Landlord and the Tenant should attend the CMH. They can attend with a licensed paralegal or a lawyer representing them. No witnesses are permitted at the CMH.

If the issues raised in the application cannot be settled the Hearing Officer who conducts the hearing may draw the parties attention to issues to be considered so that if there is a full hearing on the merits it can held expeditiously and fairly.

Some issues that may be raised are:

facts and evidence that may be agreed upon;
the dates by which any steps in the proceeding are to be taken or begun;
the clarification and simplification of issues in dispute;
disclosure and production of materials arguably relevant to the issues in dispute;
the number and identity of witnesses each party intends to call, and discussion of whether all proposed witnesses are necessary; and
the amount of time necessary to complete the hearing.

If there is no settlement, the Hearing Officer will issue an interim order. It is very important that your licensed paralegal requests certain orders that will benefit you. Orders sought should focus on having a fair, just, and expeditious hearing, or an expedition settlement of the disputes.

Reasons why a CMH can be the most important hearing in a Landlord and Tenant Board case are:

The CMH is the place you and your paralegal can learn more about the application. Discussions at a CMH usually include specifics of matters only touched upon in the application(s). A good legal representative will use what they hear at a CMH to help them in preparation for a full hearing on the merits.

Listen to the opposing side. Try to see the case from their point of view. A good legal representative tries to see the case from their opponent’s point of view. This helps them better assess the strengths and weaknesses of their client’s case.

This is the only hearing where you have a chance early in a proceeding to try to settle the case, before you spend more time and money preparing for a full hearing on the merits.

The CMH Hearing Officer may give general information on how the Residential Tenancies Act applies to the application. The Hearing Officer cannot give legal advice.

The winning party after a full hearing before a Board Member needs to be aware that the losing party may file a Request to Review with the LTB or an appeal with the Divisional Court. An appeal is outside the scope of services a licensed paralegal is trained and permitted to represent. It can be very expensive to hire a lawyer to fight an appeal.

Full hearings on the merits can take an hour, several hours, or days depending on the complexity of the application, the number of witnesses, and the amount of relevant documents. You may have to wait around all day just for your hearing to start. Full Hearings are very stressful. A good settlement allows both parties to walk away a little unhappy.

The winning party represented by a lawyer or a paralegal at a full hearing on the merits usually does not get any representation costs awarded to them.

Costs, other than filing fees are generally only awarded when a party’s conduct in a hearing was unreasonable. See LTB Interpretation Guideline 3 for more information.

It is difficult to get witnesses to voluntarily attend a full hearing. People may say they will be witnesses now, but they might change closer to a hearing. You can request that the board issue a Summons to force a witness to attend and testify. That will cost time and money.

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Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

How to evict a tenant in Ontario has gotten harder.

Residential landlords have fewer rights in Ontario since the Wynne government passed the Rental Fairness Act last year. The changes have been coming in stages. Some of the changes include:

Rental units built after 1991 are no longer exempt from rent control. This includes many condominiums in Toronto. Previously, a landlord in Ontario could increase the rent as much as they wanted at the end of a lease provided they used the proper form and gave notice.

Changes were made to the eviction process in Ontario regarding a landlord requiring the property back as they or an immediate family member requires the property for their own use. First, the landlord bringing this application must be an individual. Prior to the change a corporation with one shareholder could bring this application.

The landlord must now pay the equivalent of one months’ rent to the tenant as compensation for serving the tenant with notice to vacate. The landlord must pay this compensation to the tenant before the eviction date set out in the notice. If the landlord is unsuccessful at the hearing in obtaining an eviction order, the act now states the Landlord and Tenant Board may order the one month’s compensation to be returned to the landlord.

The person who intends to move in now confirms in an affidavit or a declaration that they in “good faith” they intend to live in the apartment for at least one year. Previously, the Residential Tenancies Act was silent on how long the landlord or family member was required to live there.

The law has changed to give a former tenant more rights. If a tenant moved out because they received the proper form stating that as the landlord or their family member planed to move in, and the landlord or their family member didn’t move in, the tenant can file an application. At the hearing it is now the landlord’s onus to prove that the notice to vacate was given in “good faith.” Previously it was the tenant who had to prove bad faith.

Starting April 30, 2018 all new tenancies will require prior to the beginning of the tenancy for the landlord to use the new standard lease form. If not provided prior to the start of a tenancy, the tenant can demand the landlord provide this standard lease form. If the landlord fails to do so within 21 day of the demand, the tenant can withhold up one month’s rent.

If the landlord does eventually provides the standard lease form within 30 days of when the rent was first withheld, the landlord may require the tenant to re-pay any rent withheld. However, if the landlord takes longer than 30 days from when the rent was withheld to produce the standard lease, the tenant may keep the money.

Why would the Wynne government make these dramatic changes favoring tenants? It is simple really. There are more potential tenant voters in Ontario, then potential landlord voters.

Our office receives calls everyday from landlords looking to hire me for representation or legal advice.

If you need to hire an experienced paralegal, contact me:

Marshall Yarmus

Civil Litigations (416)-229-1479 or (343) 600-7722 https://www.civilparalegal.com/our_services/landlord-and-tenant-board/

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

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/

Common Landlord and Tenant Ontario Myths Part 2

Myth: Section 108 of the Residential Tenancies Act prevents a landlord from demanding post-dated cheques or having such a clause in a lease. A tenant may voluntarily provide post-dated cheques to the landlord if it is for the tenant’s convenience.

A landlord can demand post-dates cheques from a tenant if it is a term in the lease.

Section 3 of the RTA makes a clause in a lease which is contrary to the RTA void and unenforceable.

A landlord does not need a reason to evict a tenant.

Myth: A landlord may only evict a tenant where the Residential Tenancies Act applies for one of the reasons set out in the Residential Tenancies Act. The Landlord and Tenant Board has a brochure titled “How a Landlord can Evict a Tenant.” This sets out the various types of eviction applications. Here is the link:

http://www.sjto.gov.on.ca/d ocuments/ltb/Brochures/How%20a%20Landlord%20Can%20End%20a%20Tenancy%20(EN).pdf

The tenant is properly given 24 hours written notice by the landlord to enter the apartment for one of the reasons permitted under the act. Despite this, the tenant refuses to allow the landlord to enter the apartment. There is nothing the landlord can do.

Myth: First and foremost, the landlord should contact the Rental Enforcement Unit. This is part of the Ministry of Housing. There is no cost to file a complaint with them. The Rental Enforcement Unit will take steps to try to resolve the issue. If that fails, the Rental Enforcement Unit can investigate and prosecute. If convicted of an offence under the Act, the penalty is a fine of up to $25,000 for an individual and up to $100,000 for a corporation.

Contact the Rental Enforcement Unit at:
Telephone: 416-585-7214
Toll-free telephone: 1-888-772-9277
http://www.mah.gov.on.ca/page142.aspx

A lease can require that a tenant cut the grass or shovel snow.

Myth: Section 20 of the Residential Tenancies Act requires the landlord to keep the building and the residential unit in a good state of repair, and fit for habitation and for complying with health, safety, housing and maintenance standards.
Cutting grass and shoveling snow are maintenance obligations that are solely that of the landlord.

Section 3 of the Residential Tenancies Act states the act applies despite any agreement to the contrary.

A tenant can demand that a landlord use the last month’s rent deposit at any time to cover arrears of rent.

Myth: Section 105(10) of the Residential Tenancies Act makes it mandatory that a last month’s rent deposit can only be applied to the last month the tenant lives there.

Paralegal Representation

Do you need help determining myth from fact? If you are a landlord or a tenant that needs representation at a Landlord and Tenant Board hearing in Toronto and the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or https://www.civilparalegal.com/home_services/landlord-and-tenant-board/

Eviction for interfering with the reasonable enjoyment or interfering with the landlord’s lawful rights?

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

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.

Notice

(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.

Paralegal Representation

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/

Eviction For Persistent Late Payment of Rent

The Landlord and Tenant Board sees lots of N8 Persistent Late Payment of Rent applications. Most self-represented landlords think they will get an eviction order as a result of this L2 application based on an N8. Chances are they will not.

N8 Form and L2 Application

An N8 notice can be served with at least 60 days notice at the end of a lease term or served on a month to month term. The notice must be properly completed so that the tenant knows the case she has to meet.

Failure to Provide Enough Details in the N8 Form

The board may dismiss the application if the N8 notice fails to give enough details. See Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div Ct.)
An application is filled with board under section 58(1) of the Residential Tenancies Act. The RTA states:

“58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

The tenant has persistently failed to pay rent on the date it becomes due and payable.”

How many times is the tenant required to pay rent late to bring this application? As you can see there is no definition in the RTA of how many late payments constitute persistent late payment of rent.

Landlords are encouraged to serve an N4 every time the rent is late. These N4s can be used as evidence in a Persistent Late Payment of Rent application.

In TEL-80574-17 (Re), 2017 CanLII 94082 (ON LTB) the board found that rent paid late nine of the last 11 months constitutes Persistent Late Payment of Rent.

In TEL-78434-17-RV (Re), 2017 CanLII 60063 (ON LTB) the board found:

“5. The Tenant has also been persistently late paying the rent. Since July of 2016 the Tenant has never paid rent on time and in full. Between September of 2016 and March of 2017 she was continuously in arrears. The Rent Bank cleared the arrears then owing on March 28, 2017. Since then new arrears have accumulated.

17. An order shall issue terminating the tenancy on May 31, 2017 pursuant to the notice of termination for persistent late payment of rent.”

Eviction in Ontario is a Last Resort

Eviction is supposed to be the last resort to deal with applications. Board adjudicators are reluctant to evict a tenant on a first Persistent Late Payment of Rent application.

The typical order the LTB will make on a persistent Late Payment application is to order the tenant to pay rent on the first business day of the month for the next 12 months. If the tenant makes all the payments, then no problem and the tenancy will continue. However, if the tenant fails to pay the rent in full and on time, the landlord can come back to the board without notice to the tenant to seek an eviction based on a single default of the order.
The Landlord and Tenant Board Interpretation Guideline 7 gives some information of discretionary refusal of an eviction due to an N8 Persistent Late Payment of Rent. Guideline 7 reads in part:

“Circumstances Justifying Discretionary Refusal

“In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time. The eviction may be refused despite the earlier months of late payments, due to the tenant’s good conduct. In such circumstances, the Member may order that on-time rent payments are to be made, by the tenant to the landlord, for a specified number of months following the hearing.

A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord). Other relevant factors may include whether the current reason for eviction has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.”

A non-payment of rent notice is voidable by the tenant paying all the rent that is owed. A persistent late payment of rent notice N8 is not voidable. Once served, the tenant cannot fix their behavior to avoid an L2 eviction application and a Notice of Hearing.

Hearings at the Landlord and Tenant Board can be complicated. This is especially true if you are not familiar with the forms, applications, rules of the Landlord and Tenant Board, the board’s Interpretation Guidelines, case law, and evidence necessary to win your case.

If you need representation at the Landlord and Tenant Board I encourage you to hire an experienced licensed paralegal Ontario.

If you are in Toronto or the GTA and require the services of an experienced licensed paralegal, please contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

Common Landlord and Tenant Myths Part 3

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

The Residential Tenancies Act (RTA) only applies if you have a written lease

Landlords can include a “not pet” provision in the lease

Myth: A no pet provision in a lease is void. Section 14 of the Residential Tenancies Act states:

“No pet” provisions void

14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void. 2006, c. 17, s. 14.”

However, case law dealing with condominiums have found otherwise. If the tenant lives in a condominium, the landlord must provide the tenant a copy of the condominium corporation’s declarations and by-laws. If the condominium corporation has made a declaration or by-law that there are no pets allowed in the entire building that may be enforceable against a tenant as it is against ever unit owner in the building.

A landlord can arbitrarily refuse the subletting or assignment of a tenancy

Myth: The RTA permits a tenant to sublet or assign their lease. The tenant must request permission from the landlord to do so; however the landlord cannot unreasonably refuse the sublet or assignment request.

These terms subtenant and subletting are often misused by landlords and tenants in Ontario. Section 2(2) of the Ontario Residential Tenancies Act (RTA) defines subletting as:

“2(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,

(a) the tenant vacates the rental unit;

(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and

(c) the tenant has the right to resume occupancy of the rental unit after that specified date. 2006, c. 17, s. 2 (2).”

Section 97(4) and (5) of the RTA state:

“Consequences of subletting

(4) If a tenant has sublet a rental unit to another person,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy. 2006, c. 17, s. 97 (4).

Overholding subtenant

(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy. 2006, c. 17, s. 97 (5).”

If the landlord rented the apartment with an “As is” clause in the lease the tenant cannot complain about maintenance issues which existed before they moved in.

Myth: Section 3 of the RTA states the act applies despite any waiver or agreement to the contrary. Section 20(1) and 20(2) of the RTA state:

“Landlord’s responsibility to repair

“20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. 2006, c. 17, s. 20 (1).

Same

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement. 2006, c. 17, s. 20 (2).”

The Human Rights Code does not apply to Ontario tenancies covered by the Residential Tenancies Act

Myth: Every landlord has a duty to accommodate a tenant’s code related ground, such as a disability, to the point of undue hardship. To do so the tenant must advise the landlord of disability, and seek accommodation from the landlord.

Even if the tenant does not tell the landlord about the disability, the landlord cannot be willfully blind. If a disability is obvious, the landlord will be considered to have constructive knowledge of it and therefore should have attempted to address the issue with the tenant prior to taking steps to evict the tenant.

Landlord’s obligations to accommodate under the Human Rights Code are complicated. This is just an overview of the law.

See Landlord and Tenant Board Interpretation Guideline 17 for more information.

Interpretation Guideline 17 states in part:

“Relief from eviction

In Walmer Developments v. Wolch¹⁵ the Divisional Court held that the Ontario Rental Housing Tribunal (now the Board) must consider and apply the Code when exercising its authority to grant relief from eviction. A Member considers such relief pursuant to section 83 of the RTA. Section 83 states that the Member must have regard to all the circumstances to determine whether it would be unfair to refuse the landlord’s eviction application or postpone the enforcement of the eviction order.

If the Member determines that the landlord has failed to accommodate a tenant covered by one or more of the categories contained in subsection 2(1) of the Code up to the point of undue hardship, the Member must consider relief from eviction in accordance with clause (a) of subsection 83(1) of the RTA. However, even if relief is granted, the Member may still consider whether other types of conditions and requirements should be ordered to address the conduct or problem at issue. The authority to make such orders comes from subsection 204(1) of the RTA.”

My lease has expired. My tenancy is now on a month to month basis. Terms of the expired written lease no longer apply

Myth: At the expiry of a written lease the tenancy continues on a month to month basis indefinitely on the same terms and conditions contained in the written lease. Evictions based on behavior of the tenant that are contrary to the written lease can still be the subject of an eviction application to the Ontario Landlord and Tenant Board (LTB).

Landlord and tenant applications to the LTB can be complicated. Even cases that start out as straight forward can become complicated at a hearing. Whether you are a landlord or a tenant bringing or defending an application at the Landlord and Tenant Board your best weapon to hire an experienced licensed, trained, and insured Paralegal Ontario.

Paralegal Representation

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

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;

(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.

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.