TENANTS – A NEW EVICTION TRICK BY SOME LANDLORDS

Landlord and Tenant Disputes

Our office receives calls from Tenants who are bewildered after getting an eviction notice when they never got invited to a Hearing at the Landlord and Tenant Board.  They ask me if it is legal to do this.  My answer to this as always, is “it depends”.

I will often ask the Tenant if anything had taken place between them and the Landlord recently.  Was there a Board appearance, a mediation, or did they sign an agreement to terminate (N11)?  We have been told by Tenants that their Landlords put them to duress to sign a form to say they will move by a particular date.  Many Tenants are not aware of what these Forms are.  When I ask them if they signed any forms, they often say, “Yes, I did.  Did I do something wrong?”.

No.  As a Tenant, you did nothing wrong.   You probably did not know what you were signing.  Many Tenants have not planned to move from their rental units before their Landlords came in to get them to sign.  One concern is if the Tenant does not in fact leave by the date set in the form, they can be evicted.  There will be no Hearing.  There will be no opportunity to present their side of the issue to the Board.

What is an N11?  Do I have to sign one if my Landlord asks?

An N11 Form is an Agreement to Terminate a Tenancy.  This Form is useful with the new Standard Lease that is in place, especially when something unexpected happens.  A new job in a different City.  An acceptance to a university in a different province.  A Tenant gets married and wants to move in with their new spouse.  This Form is intended to give Tenants and Landlords an option to “break” a lease and allow the Tenant to move on.

Landlords are not supposed to use these Forms to address “buyer’s remorse” over a Tenant they just rented to.  Many Landlords might want to jack up the rent.  They may want to move a friend or other family member in.  Or they may simply want a way around creating vacant possession in order to sell their home.

As a Tenant, you do not have to sign ANYTHING your landlord gives you.  If you are on a fixed term lease, you do not have to move.  Your Landlord cannot accuse you of anything solely on the basis that you did not sign the N11.  They cannot get you evicted because of this.

Why is this Becoming an Issue?

Under the previous government’s Rental Fairness Act, S.O. 2017, it is more difficult for Landlords to use older tricks to get tenants to leave.  If a Landlord wants to move him or herself or family members into the unit, they have to actually move in the unit and to stay there for at least a year.  They must also pay the vacating Tenant a month’s rent in compensation.  Prior to these changes, Landlords can just serve an N12, wait until the Tenant leaves and then simply double or triple the rent.

Similarly, Landlords have done “renovictions”, which include serving an N13, with 120 days’ notice.  Once the Tenant leaves, a fresh coat of paint is put on the walls and the landlord will then jack the rent up.  Both of these tricks still take place, but Landlords know tenants are becoming wise to them.  Today, an N13 must be work that involves the requirement of a city permit and to a larger extent, cannot be completed while a tenant is residing in the unit.  There are rights to compensation and to reclaim the refurbished unit after completion in many cases.

How Can I Protect My Tenancy?

Many Tenants live in low cost rental units that were obtained quite some time back when rents were cheaper and housing easier to find.  As long as you remain a Tenant in your current rental unit, with some exceptions, your rent cannot increase apart from annual guidelines which are fixed to inflation.  The Rental Fairness Act, S. O. 2017 also extended rent controls to tenanted units that were built or used for residential tenancies to the present day.  Prior to this change, any rental unit built or used as a rental unit for the first time after 1991, was not subject to rent control.

Our new government has turned some of that around, whereby any new rental units built after November 2018, or used for the first time to rent to tenants (such as a Landlord that starts renting their basement unit for the first time) will not be covered by rent control.  If you are in a rent-controlled unit, stay where you are.  If you recently moved into a rental unit, you must have a Standard Lease and your tenancy is protected for the term of the lease.

Finally, if your Landlord suddenly asks you to sign something … anything … do NOT sign it.  If you are unsure of what it is, take the document to a legal professional to advise you about your options.  If you had already signed something and received an eviction notice in the mail, it is even more important for you to contact our office to help you fight to continue your tenancy.

Avoid Costly Errors at Your Next Eviction Hearing

What Often Happens at Hearings

I sit as an observer at the Landlord and Tenant Board.  I often do this when waiting for one of our firm’s cases.

Today’s hearing blocks were for matters of arrears of rent.  On rent arrears days, landlords often try to do ‘self-help’.  That is, I see many of them struggle, getting frustrated with the process and hurriedly filling out forms.  Despite their best efforts, the hearing officer often turns them away.  Many things can go wrong in an application process.  When this happens, a landlord can be denied their eviction and lose even more money.

Most adjudicators are well meaning and attempt to ensure that parties before them get heard.  Today, the adjudicator at the Board spent most of his time explaining to the landlords what they did wrong.  He advised them how to correct it and why it is necessary to do things in a certain way.  I found him to be kind and gentle in his approach, although those appearing before him likely felt on edge.  His main point is that some errors can be fatal.

Common Fatal Errors in Your Eviction Application

Your Initial Notice to the Tenant is the Most Vital Step in Your Case

Errors can occur in different stages of the eviction process:

First, there is the original notice.  The notice is the most important part of your eviction process.  It is important that your notice to your tenant be filled out correctly.  Many landlords want to retain us to represent them at the hearing, but upon reviewing their notices, I immediately see a problem.  The math is added incorrectly.  Allegations are poorly spelled out and are not specific enough to meet the requirements of Ball v Metro Capital.   Specific infractions of the Residential Tenancies Act are not identified.  It is not enough to know what box to check off, but why.

Using the Correct Termination Date

Second, the timing may be wrong.   It makes a difference for the termination date, depending on how the notice is delivered to the tenant.  Even one less day than required, the notice can be void.  The law allows you to file an application with the Board after a certain number of days.  However, if the tenant stopped doing the offending act or paid all of their rent by the termination date in the notice, you cannot apply to the Board.  Many landlords have experienced this, but still want to evict their tenants anyways.  They often ask me if there are other ways to do this.  Sadly, no (unless the rent falls again into arrears or the tenant’s offending behaviour starts again).

Do Not Try to Use the N12 or N13 Unless You Really Mean It

Third, the notice may be in bad faith.   Are you really going to move into that rental unit, or move a family member there?  You may be aware there has been a crackdown of sorts on issuing N12 notices for personal use.  If you tell your tenant you are going to be moving in, you better be doing so, or there can be heavy penalties including a fine from the Board.  Seek legal advice if this becomes an issue in your case.  It is important to do this right, so if this is in your plans, your legal advisor can ensure you will be able to do this.

Know When and How to Fill Out the Application

Fourth, mistakes can be made in the application.  If you are claiming arrears, there has to be clear connection between the amount stated on the notice and the amount on the application.  Don’t worry if your hearing is scheduled for the following month.  You can update the Board at the time you appear before them.  A common error is that landlords forget to bring a completed L1/L9 Update Form to the Hearing, or they complete them wrong.  This form is an important part of your evidence and your eviction will not be carried out without a properly completed form.

Fifth, if you are granted an eviction and your tenant has not moved out, you can only enforce it through employing the Sheriff at your local courthouse.  At this point, we cannot use private bailiffs for residential evictions.  The Sheriff’s office will give you a time and date when he/she will be at the property to carry out the eviction.  You are advised to bring a locksmith and to secure the premises after the tenants are led out of the unit.

The Importance of Seeking Legal Advice

Because of the large numbers of landlords attempting to appear before the Board on their own, and having their evictions denied, it is important that they seek legal help.  The Board may appear to be easy to navigate on your own, but many have found issues along the way.  Browne & Associates Legal Services Professional Corporation has an active team of paralegals that can guide you through the process to ensure you maintain full control of your property and minimize your losses.

 

Landlord and Tenant Matters (General)

What is the Landlord and Tenant Board

Like many of Ontario’s administrative tribunals, the Landlord and Tenant Board has a direct impact on the lives of many people.  Its functions include arbitrating disputes between landlords and tenants, governing over rent increases and enforcing the Residential Tenancies Act.  This Board stands out more than most of other tribunals because of the number of people it impacts.

For tenants, it is about where they live, how safe and habitable their housing is and how affordable the rent.  For landlords, it’s often a major investment, a supplement to their retirement income and a part-time job.  However, when disputes arise, this affects everything, from having to spend money, hire a legal representative or be forced to understand a maze of rules and regulations to follow.  A crucial factor in dealing comfortably with these realities for both sides involves obtaining expert advice.

Browne and Associates Legal Services  is proud to provide skilled and experienced representation in this field.

Who is a Tenant?

 

Many people believe that anybody that rents from somebody else is a tenant within the meaning of the Residential Tenancies Act.  This is not true, as these rights and protections do not cover all landlord and tenant relationships.

In general, if somebody is renting a self-contained apartment or room in a ‘rooming house’ or an attached/detached dwelling, this is a tenant.  However, the Residential Tenancies Act exempts many types of rental units.  For example, the Act only covers residential tenancies.  If you are a business owner renting space in an office building or industrial unit, you do not have rights under this Act.  The Act also excludes certain types of social service accommodations, such as shelters or halfway houses.  Hotel/motel units that are rented to seasonal or temporary guests, as well as most vacation facilities are exempt.  If a tenant shares the kitchen and/or bathroom with the owner and/or his family, this arrangement is also exempt.

Who is a Landlord?

 

In most cases, a landlord is the person or company that owns the residential unit and/or complex that is rented to tenants.  However, in some cases, somebody else can be deemed by the Board to be a landlord.  For example, a large company that owns numerous properties may employ full-time property management staff.  These people interact directly with tenants and ensure the property is cared for and maintained.  In some cases, a tenant that rents a large home, but sublets to others might also be considered a ‘landlord’ in specific cases.  Sometimes, there is more than one landlord to a property, such as the owner, a property manager or a superintendent that is employed full-time to manage a complex.

What are Some of the Issues That Come to the Board for Landlords and/or Tenants?

In most cases, landlords and tenants get along.  This might surprise many of you that read this, especially if you are a tenant or a landlord who is facing a conflict with the other party.  The Board handles complaints about tenant rights, conflicts with landlords, maintenance standards and illegal evictions for tenants and provides remedies.  For landlords, the Board adjudicates above guideline rent increases, terminates tenancies for cause (unpaid rent, noise, willful or neglectful damage) and without cause (extensive renovations, own use, purchaser’s own use).  In any case, only the Board can force an end to a tenancy.  Landlords and tenants can still agree between themselves to end a tenancy, but the Board gets involved when the parties don’t agree.  The Board can also make other orders, such as ordering repairs to be completed or for certain types of conduct to stop.  A party can be fined for certain types of conduct, such as evicting a tenant for own use, but not actually moving in.

How Can Browne & Associates Legal Services Assist Landlords and Tenants?

Because the Board is an adjudicative tribunal and not a court, its members may not be fully cognizant of the law as it deals with specific situations.  Members receive training and are mentored by legal staff that work for the Board, but mistakes are often made.  Because Browne & Associates Legal Services knows the case law that the courts bind to Board decisions, we are able to make a stronger argument on your behalf.  We are trained in the rules of procedure used by the Board and are not intimidated by the forms and acronyms used.  We also utilize mediation skills to help arrive at appropriate legal solutions to resolve the conflict.  We are also familiar with all the forms and can fill them out correctly.  Many times, self-represented landlords or tenants have their applications dismissed for what may seem like minor reasons.  With strong legal representation, Browne & Associates Legal Services can help prevent this from happening.

Where Can I Learn More About My Rights and Obligations?

The best step would be to contact us and book a consult. If you want to learn more prior to calling us, please check our Resources Page.

The New Standard Lease for Residential Tenancies- Additional Terms for use

How the Standard Lease came to be….

The New Standard Lease, a solution in search of a problem, came into being April 30, 2018.   For most folk in the industry, Landlords and Tenants alike, this was not an issue. It wasn’t a pressing issue, it just wasn’t an issue at all. Industry players and pundits alike were take aback by the introduction of a new industry wide lease. That is because any lease or tenancy is, and
was, subject to the Residential Tenancies Act (RTA) and the rules therein. In practical terms,  every tenancy within the RTA was subject to the same rules, regardless of the language in the individual lease agreements. The RTA is the one ring that rules them all.

So why a new lease? Are there any benefits to this new lease? Doesn’t it resolve issues that weren’t previously addressed? And, most importantly, how can Landlords and Tenants use it to assist themselves? Read more… “The New Standard Lease for Residential Tenancies- Additional Terms for use”

Resource – Sample Additional Clauses for the Standard Lease for Landlords and Tenants

Sample Additional Terms for potential use in Section 15 of the Standard Lease,  Residential Landlord and Tenant issues in Ontario

PLEASE NOTE – legal disclaimer, these are sample clauses designed to demonstrate the types of clauses that can be used to upgrade and personalize the Standard Lease.  The sample clauses do not and are not meant to capture every possibility or to be an exhaustive list. The sample clauses are not intended for use by any party and not designed for any particular situation or any landlord or tenant.   No liability can attach to the author for any use of these clauses.

Read more… “Resource – Sample Additional Clauses for the Standard Lease for Landlords and Tenants”