Sunday, 28 April 2013

You won! Now (how to) collect the money

This week I have been asked a couple of times how one goes about getting the money that the Landlord and Tenant Board has ordered someone to pay.  There is a bit of surprise on the part of many people when they discover that the Landlord and Tenant Board may order a person to pay money to another person but when the person fails to pay--absolutely nothing happens.  The fact is, the non-payment of an Order or a Judgment does not cause the government--Federal or Provincial---to do anything.  There is no "office" that is in charge of making sure that people pay what they are ordered to pay.

The task of making sure that an Order of the Landlord and Tenant Board is complied with falls to the person who won.  So, if you are the landlord and the tenant has been ordered to pay you a sum of money (for rent arrears, damages, costs, or any other reason), and the tenant has failed to pay, it falls to you to actively pursue the payment of the money.  Otherwise nothing will happen.

The same is true for tenants.  If you have obtained a judgment against your landlord for the payment of money, for whatever reason, and the landlord refuses to pay, you must take active steps to collect the judgment.  Otherwise, absolutely nothing will happen.

So what are these steps?  To answer this question I will make one significant assumption.  That assumption is that you went through the process at the Landlord and Tenant Board and you have an Order from the Board that requires the opposing party to pay you money (for whatever reason).

Presuming that you want to try to enforce the Order yourself (as opposed to hiring a collection agency to collect your judgment), you will be taking the Order that you have, from the Landlord and Tenant Board, to the nearest Ontario Superior Court of Justice Small Claims Court.  The reason for this is that the Residential Tenancies Act does not have any built in enforcement mechanisms for its judgments.  To enforce an Order under the Residential Tenancies Act (even for eviction), you take the order to the Court for enforcement.

Money orders at the Landlord and Tenant will be for sums under $25,000 as this is the maximum jurisdiction of the Board.  It also happens to be the same maximum monetary jurisdiction as the Ontario Small Claims Court.  As such, I recommend that you enforce your money order through the small claims court as it is simpler (and cheaper) than enforcing it through the higher levels of the Superior Court of Justice (though you may do so if you wish).

Talking in big picture terms, what you will be doing with your Landlord and Tenant Board Order is that you will be converting it to a judgment of the Ontario Small Claims Court.  Once you've done that, you will enforce the Judgment in the same way that you enforce a Judgment of the Small Claims Court (i.e. garnishment, writ of seizure and sale, debtor examination, etc.).  Once you complete the conversion of the Order to a Small Claims Court judgment you will need to educate yourself on the mechanisms of enforcement as none of these things happen automatically either.

The conversion process is basically a paper shuffle.  You will need to have an original copy of your Landlord and Tenant Board Order and you will need to take it to the Small Claims Court counter.  There you will pay a small fee and you will then get a new Small Claims Court file number and the Board Order will be recognized as a Small Claims Court Judgment.  Once that is completed you will need to decide how you want to enforce the Small Claims Court Judgment and then there will be a number of other forms to fill out in accordance with your decision.  For example, if you decide to issue a garnishment to the tenant's employer, you will need to fill out the garnishment forms as set out under the Rules of the Small Claims Court.  My point here is that the enforcement process are now under the Rules of the Small Claims Court and not pursuant to any Rules of the Landlord and Tenant Board or the Residential Tenancies Act.

Enforcement of Judgments is a tedious and time consuming task.  Often, the debtor (person who owes you money) is difficult to find, broke, or hiding their assets.   To be successful in debt collection you will need to be patient, do some detective work, and frankly have a little bit of luck.  If this doesn't sound like something you would do, consider hiring a collection agency to pursue the Judgment for you as they will do all of the work for a percentage of the Judgment.

Michael Thiele, Lawyer
QTMG LLP
Ottawa, Ontario

Friday, 12 April 2013

Roommates, Boarders and the Risk of Sharing an Apartment

I've started to get calls from (student) tenants who are worried by the fact that their roommates are moving out at the end of the semester without any apparent concern for the ongoing obligations under the lease with the landlord.  Many of these callers are in for a truly nasty surprise.


The legal position of the tenant who remains in the unit depends on the nature of the relationship between/amongst the tenants and the relationship between the tenants and the landlord.   The kinds of relationships can include the following:

  1. The occupants of the apartment all signed the same lease, for a fixed term (usually a year), and all are listed as tenants.
  2. Of the occupants of the apartment only one signed as the tenant with the landlord.  Everyone else in the apartment is a roommate or is listed as an occupant on the lease.  There is an agreement between the occupants and the named tenant that deals with the obligations (i.e. rent etc.,) of the tenant towards the landlord.  This relationship often arises unintentionally amongst students as the lease gets signed incrementally and some of the intended tenants never get around to meeting with the landlord and signing the lease.
  3. Each of the occupants of the apartment has a separate agreement with the landlord respecting rent for a room in the house.  There are "rules" for the house.  It is run as a rooming house.

If the situation you are in is in the nature of #1 above, then you need to understand that the landlord has the right to enforce all of the obligations against all or any of the tenants named in the lease.  This means that the landlord can look to any one of the tenants for the entirety of the rent, for the entirety of the costs of any damage, or for any of the obligations under the lease or breaches thereof.  This applies regardless of whether there is an agreement amongst the tenants that each of them share in paying the rent equally.  The landlord does not have to concern itself with the agreement amongst the tenants and it is not a defence for any one tenant to say that they have paid their "share" of the rent.

If one of the tenants leaves early, pulls a midnight move, simply fails to pay their share of the rent, or causes damage etc., the landlord will look to be paid by the remaining tenant(s).  The landlord will normally look to the tenant who is in the best position to pay to recover what is owed.  The tenant who ends up covering the share or portion of the rent/damages of the tenant who disappeared may pursue a claim against the co-tenant--but not at the landlord and tenant board.

The Landlord and Tenant Board does not have the jurisdication to adjudicate claims as between co-tenants.  Hence, if the claim is worth less than $25,000.00 the appropriate forum in which to litigate the claim is the Small Claims Court.  Where there are co-tenants on a lease and the arrangement with respect to the obligations of that lease can be demonstrated (i.e. share rent equally, or some other proportion), and a breach of that arrangement can be demonstrated, then the Court will likely make an award against the breaching tenant---i.e. grant a judgment against the tenant who did not pay, pulled the midnight move etc..  The award will likely include an amount for costs and interest.

There is an interesting issue that can arise when a co-tenant absconds within a fixed term of a lease (for example--when there are 8 months left before a Notice of Termination can be given to the landlord).  Is the tenant who absconded automatically liable to the co-tenant for the full rent of the remaining term of the lease?  Or, is the remaining tenant required to mitigate losses (i.e. reduce the damages) by seeking a replacement roommate or perhaps even trying to sublet or assign the tenancy to someone who will cover the whole cost of the tenancy?  If the remaining tenant is required to seek a roommate (to reduce the damages)--how fussy can they be, what would constitute a reasonable mitigation?

There is some law that suggests that in a co-tenancy arrangement for a fixed term that a co-tenant may not terminate the tenancy before the expiry of the term.  The co-tenant who does not breach the lease may require the co-tenant to perform the obligations under the lease for the entire fixed term.  The logic for this position is that the co-tenants entered into the fixed term on a common venture and they agreed to be bound for this period of time to each other.

This changes when the fixed term expires and the lease continues on a month to month basis.  The law does not presume that co-tenants, after the expiry of a fixed term, intend to remain bound to each other for an indefinite period.  Therefore, in a month to month tenancy either or any of the co-tenants are permitted to give the requisite Notice of Termination of the Tenancy to the landlord to terminate the tenancy.   If the remaining tenants do not wish to remain in the property it is open to them to enter into a new landlord and tenant relationship with the landlord.

SCENARIO 2

If you are the tenant, described in scenario 2 above, then you are entirely and solely responsible under the lease to meet all of the obligations towards the landlord.  This includes rent, damage, ordinary cleanliness---basically everything that may be required of a tenant.  This is the case regardless of what your roommates do as it is no lawful excuse to say that you didn'd do it---it was your roommate.

Being the only named tenant in the lease imposes great obligations--only on you.  However, it also provides the benefit of being able to control the rented premises.  If any of your roommates misbehave, are unruly or simply unreliable, you can require them to vacate the premises on rather short notice simply by calling police and asking them to remove the roommate. 

If you are the roommate of a tenant it is sometimes disquieting to discover that your tenant/roommate is rather arbitrary and imposes rules without consultation for his/her apartment and threatens to throw you out and change the locks when you leave the apartment.  If your tenant/roommate actually does throw you out there is very little to nothing you can do to get back into the apartment as you do not have a legal right to live in the unit--regardless of whether you have a written agreement with your tenant roommate.  The most you will have is the right to sue the tenant for her/his conduct in throwing you out.

As the tenant in this scenario it is important to consider the relationship with your roommates.  If the roommates are simply "company", a bit of fun to have around, and their financial contribution to the house is nice--but unnecessary (i.e. you don't care if they come or go from a contributing to the rent perspective), then the need for a carefully worded roommate agreement, though desirable, is less important.  In these circumstances it will be more important to draft an agreement where you retain the authority you have as a tenant in the property and not cede to much control--via contract--to your roommates.

If, however, you as the tenant need your roommates to help cover the rent and you can't make it without them then it is indeed necessary to have a tightly worded roommate agreement to ensure that the roommates obligations are clearly set out.   Roommates, who are not on the actual lease, will often take the position that they have no obligation to remain in the premises and hence simply have to pay for the space they use and pay nothing if they move out.  Because the Residential Tenancies Act imposes no obligations on "roommates" a roommate could in fact escape liability of the lease obligations if there is no clearly worded roommate agreement.

Even with the most strictly worded roommate agreement, the only person liable to the landlord is the named tenant.

In Scenario 1 your claim against an absconding co-tenant is clearer as the obligations are set out in the lease agreement and the responsibilities of each co-tenant under the lease are presumptively shared equally.  However, where there is only one tenant and all the rest are roommates there is no presumption that the roommates are on the hook to the end of the lease.  If it is the intention that the tenant and the roommates are sharing the responsibilities of the lease--to the end of the term---it is imperative that the tenant and the roommates sign a document setting out the expectations of the parties.  Without such a document no tenant can be sure of the responsibilities of their roommate.

A claim against a roommate (or by a roommate against a tenant) by the tenant would take place in the Small Claims Court for claims under $25,000.00.   There is no jurisdication in the Landlord and Tenant Board to adjudicate such claims.  Assessing how the case will turn out in the Court will depend greatly on what can be proven.  If there is no written agreement the Court will look to the evidence of what the parties did--for example copies of cancelled cheques, emails sent, messages sent, photographs, and basically anything that helps inform the issue.  If there is no written agreement, and the documentary evidence is inconclusive, the oral testimony is contradictory, and there is no obviously logical conclusion to be drawn, the Court may have to rely on the burden of proof to decide that the plaintiff (i.e. the person who is doing the suing) while entirely believable did not establish on a balance of probabilities that they are entitled to what they are claiming.

Without a written agreement the outcome may be rather harsh for the tenant who was relying on their friends and roommates to share the responsibilities.  To be clear, a written agreement is not only of benefit to the tenant.  A roommate who is asked to move out part way through a lease---for no good reason---or who is asked to pay an equal proportion for a benefit that was not equally receieved--may have little recourse in Court if they can't prove that there was an agreement that would only permit termination of the roommate arrangment on reasonable notice for good cause, or that they would pay a smaller portion of the rent because their room was the smallest in the house.  Suffice it to say that clearly written terms are desirable in litigation.

SCENARIO 3

In University and College towns this scenario plays out often enough.  To be clear, I'm not talking about purpose build rooming houses but larger houses where the landlord rents out the bedrooms and basically tells the tenants that they have to get along with with everyone and share the kitchen and bathrooms.  Sometimes that landlord will maintain the common areas and sometimes the landlord will require the tenants to make a schedule.  These informal rooming houses are most often unlicenced and sometimes just kind of happen without any clear direction or intention.  Sometimes a group of friends rent a house and the landlord deals with each person individually, receives rent from them individually, and assigns rooms individually. 

If that is the situation it is quite probable that the rent liability is capped for each occupant at what they pay for their room and not the global amount of the rent that the landlord expects for the whole unit.  A landlord could not, in this kind of relationship, expect the other tenants in the house to make up the shortfall if one of the tenants moves out.

SUMMARY

If you have a roommate or co-tenant who has moved out, caused damage, or is somehow not pulling their weight, or you are the roommate (i.e. not the tenant) and your tenant roommate is defaulting on the rent to the landlord or has wrongfully kicked you out, it is most important to examine the legal nature your relationship with the roommate, tenant, or landlord.  Your responsibilities (to pay) and your ability to be paid vary greatly depending on how the legal relationship is characterized.

You should note that in the scenarios described above, the difference in the legal relationship is not necessarily apparent in how people are living in the rental unit.  In fact, most often, there is very little in the outward form of how people are living in the unit that would give any clue of whether they are a tenant, a roommate, or a boarder.  A careful analysis of all of the facts and documents is necessary to defintively conclude what all of the responsibilities are.


Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada

Tuesday, 9 April 2013

Schizophrenia, Mental Health problems, Landlord and Tenant Evictions

This article is intended to be of help to family members of tenants, who suffer from various mental health problems such as schizophrenia, bi-polar disorder, and varying other disorders that may manifest behaviours that are considered antisocial and inconsistent with living in rental accommodation.


The issue that I am seeking to explore is best described in the context of an example.   Let us imagine a situation of a tenant suffering from a mental health condition.  That tenant is capable of independent living and for the most part is compliant with medication and treatment.  When the tenant is on medication and perhaps receiving support in the community they are able to live in their apartment without incident.  However, this same tenant, from time to time stops taking medication, or at other times of the year the medication seems to be less effective or somehow the mental health condition is more pronounced.  Whatever the reason, in these times the tenant will do (one or all of the following):  mutter to themselves in public spaces raising safety concerns for other tenants; behave oddly in elevators with other tenants present, shout intermittently for no apparent reason in common areas and in the rental unit thereby disturbing other tenants, throwing their own property out of their unit, re-organizing their unit very loudly, making repeated telephone calls to management raising complaints that are unfounded, filling up the voice-mail of the superintendent with rants--often religious in nature; complaining of being wronged in some way--illegally, contrary to the Residential Tenancies Act, harassment, etc., fixating on a tenant and interfering with that person in the building (notes, telephone calls, constantly knocking at the door).  Sometimes the behaviours are self destructive and disturbing for other tenants to watch or hear and may included calling police, writing to the landlord extensively, posting notices in the building etc..

The tenant, as described, is understood to be acting or behaving in the manner that they are because of a mental health problem.  When the condition is under control, the complained of behaviours stop.  However, when the condition is not controlled you get the kinds of behaviours described--which in varying degrees range from being an annoyance to other tenants to becoming issues of impaired safety or even illegal conduct.

In circumstances where the conduct complained of substantially interferes with the reasonable enjoyment of the premises, impairs safety, or is an illegal act, the Landlord is in a position to serve a Notice of Termination in Form N5, N6, or N7 respectively.  These Notices of Termination would ultimately lead to a hearing which would normally lead to an eviction Order based on the conduct described.

 I say "normally" because the behaviour complained of is not acceptable behaviour in a rental complex and the Residential Tenancies Act (Ontario) allows a landlord to terminate a tenancy where this kind of conduct takes place.   However, in situations where this kind of behaviour exists because of a mental health condition it is possible to avoid eviction and maintain the tenancy on the basis of Human Rights law, specifically the Ontario Human Rights Code (OHRC).

I'm going to write about the OHRC applying to the landlord and tenant law in broad general terms in the hope that the interaction between the two becomes clear. 

As a general statement it is true to say that tenants or a landlord of a rental complex do not need to suffer continued interference with their reasonable enjoyment of the premises, illegal acts, or impaired safety regardless of whether the perpetrator of the act is disabled.  Being disabled---suffering as our example sets out---from a mental health condition, is not a licence to annoy, impair safety, or commit crime.  Sometimes landlords and other tenants react to the applicaiton of human rights law as requiring such tolerance.  In fact, when tempers cool, it is clear enough that Human Rights law does not impose such a burden.

What a person's disability may require under the Residential Tenancies Act, is an accommodation or an adjustment of how things are done, to assist that person in not committing the behaviour complained of.  What this means is that the tenant's disability requires an understanding on the part of landlords and tenants that some of the conduct that bothers them is caused by a condition beyond the tenant's control.   In order for the disabled tenant to enjoy the benefits of continuing to live in the apartment building other tenants and/or the landlord may be asked to assist or accommodate the disabled tenant so that the complained of behaviours can be controlled, minimized, or stopped.

So what exactly does that mean?  At the landlord and tenant board you may very well hear an adjudicator refer to a "duty to accommodate".  What that means is that a landlord or other tenants have an obligation under the law to help a disabled person ( to the point of undue hardship) overcome the things that are causing that person to behave in the way that allows the landlord to serve the Notice of Termination.  It can be said that the Notice of Termination imposes a harsh consequence for certain types of behaviour---and perhaps appropriately so where the tenant who committs that behaviour does so voluntarily.  However, where the behaviour is involuntary (because of disability), the availability of serving a Notice of Termination against that disabled tenant may be too readily available without first requiring an investigation into alternative courses of action.

Lets look at the example where a tenant's medication is being adjusted.  In that period of time while the medication adjustments are happening the tenant becomes verbally aggressive and confrontational towards other tenants and landlord staff.  The verbal aggression and confrontation is real, scary, and disturbing to other tenants and the landlord.  However, unlike a situation where the behaviour is intentional, the tenant in this example can provide medical reports and explanation from a treating phsyician explaining what is happening, why it is likely happening, and most importantly that the behaviour is temporary.  The physician provides an opinion that the tenant poses no real physical threat.  In light of this information, the tenant's spouse, family member, asks the landlord and other tenants for understanding, asks for some patience, and advises that all should be well within a month or two.  Is this an unreasonable outcome?  What if the tenant's spouse says to anyone with a concern or problem to please call her/him immediately if anything is happening so that he/she can take care of it?

The duty to accommodate forces landlords, tenants, and the Landlord and Tenant Board to investigate how and why certain things are happening.  If these things are happening because of something falling under the Human Rights Code then there is a positive obligation to look for alternatives to the traditional penalty of eviction and termination of a tenancy.   In other words, there is a duty to accommodate the tenant who is behaving in a certain way because of a disability.

The "duty to accommodate" is something that the HRCode imposes on all landlords.  Some landlords greatly resist this obligation citing their view that they are not social workers and that they have no obligation to look after the tenants beyond collecting rent and maintaining the units as per the lease and the RTA.  The reality is that this view is simply wrong and it is inconsistent with the actual law.

The duty to accommodate (to the point of undue hardship) can take many forms.  Sometimes it involves providing grab bars for physical infirmities or even extra sound proofing to deal with extra noises.  Sometimes wood floors need to be carpeted, sometimes tenants need to be moved to higher or even lower floors.  Sometimes the tenant has difficulty going outside and can't pay rent at an office across town and hence the landlord has to go and pick it up or accept it late.  The point of accommodating a person with a disability is to seek out a way to help the tenant maintain their tenancy by dealing with the conduct that arises from the disability that could lead to termination of the tenancy.

What an accommodation looks like depends entirely on the circumstances of the disabled tenant and what is within the power of a landlord to provide.  The obligation is not without limits but at the same time relucatance based on artificial limits will not absolve a landlord from providing assistance to the disabled tenant.

How do you require accommodation of a disability from a landlord?  The simple answer is that you ask for it, and preferably in writing.  If a tenant suffering from some kind of disability needs accommodation they should be forthright with the landlord and ask for that assistance.  Whether the landlord provides the requested accommodation is not a matter of "being nice".  It is a matter of law and legal obligation much in the same way as is the duty to maintain and repair the rental unit.  Presuming that the request for accommodation is proper and demonstrably required, the landlord's only way of avoiding the obligation to provide it is by demonstrating that the request is  too big, too expensive, and beyond what the landlord could reasonably be expected to do (i.e. to the point of undue hardship).    Ultimately, it is the Landlord and Tenant Board that will decide whether the landlord's refusal to provide the requested accommodation is reasonable or not.

What if a tenant has substantially interfered with the reasonable enjoyment of the premises by other tenants and the landlord has filed a Notice of Termination and applied to the Landlord and Tenant Board for eviction.  What does the tenant do then?

The Notice of Termination will contain statements as to the alleged conduct that justifies (from the landlord's perspective) the termination of the tenancy.  The tenant--or the tenant's family or lawyer---will consider the nature of the allegations and reach a conclusion that the complained of behaviour arises from a mental health condition, a disability, or something covered under the Human Rights Code.   The tenant, the family member, lawyer, or social worker, will recognize that the issue complained of did in fact happen or that some version of what is complained of did happen.  They will recognize that whatever did happen, should not have happened, and that it will be necessary to try to prevent a re-occurence of the event.

It is in the prevention of a re-occurence that the tenant or his family member, social worker, lawyer, or friend, may discover that the method of preventing a further re-occurrence of the behaviour requires some action, some support, or the doing or not doing of something by the landlord or other tenants in the building.   The landlord will be asked to do these things as part of the "duty to accommodate" the tenant.  The tenant's lawyer will assert the position that if the tenant is accommodated in this way that the chance of a re-occurence is greatly reduced and perhaps even eliminated.  Therefore, the tenant's lawyer will ask the Board to deny a termination of the tenancy and eviction notwithstanding that what the landlord alleges happened--did indeed happen, and that under other circumstances a termination of the tenancy would have followed.

The Landlord and Tenant Board will very carefully consider such proposals and in the appropriate cases grant the tenant the relief requested.  It is important to note that the duty to accommodate and the application of HRL to specific cases is not something that is simply or easily done.  Some parties subject to eviction hearings seem to think that simply having a disability is somehow an excuse for any kind of anti-social behaviour and that the Human Rights Code automaticaly prevents eviction.  Nothing could be further from the truth.

Adjudicators will require disabled persons to make the link between the complained of behaviours and the disability.  Just because a person suffers from a disability does not mean that their behaviour is involuntary or the result of that disability.  When a disabled person makes voluntary choices to behave in a way that would result in the eviction of a non-disabled person they should not be surprised if the same thing happens to them.

The foregoing is also a warning to those tenants, and the family members of those tenants, who are facing eviction proceedings because of conduct arising from a disability.  It is not enough to simply show up and claim that the complained of behaviour arises from a disability.  The Board will require evidence, supporting documentation, medical reports, expert evidence, testimony from support workers, family members, and the like to clearly demonstrate and prove that the circumstances arise from a disability.  Without such evidence you could expect the Board to be highly skeptical of any claim no matter how "obvious" it seems to the tenant or the family of that tenant.

Presuming a situation where the Board accepts that the complained of behaviours are as a result of a disability, and that the plan of action to prevent reoccurrence is reasonable, the Board will likely refuse to terminate the tenancy on the condition that the plan of action be implemented and that the complained of behaviour ceases or substantially changes.  The Order will normally provide that if the condition is not met--that the Landlord may apply to the Board under section 78 of the RTA to terminate the tenancy.  The Order will, also recognize the landlord's duty to accommodate, and any accommodation that the tenant has requested and which the Board has found reasonable for the landlord to provide.

In many cases involving mental health issues a single hearing can not permanently solve the problems suffered or caused by a disabled person.  One would hope that the landlord would proceed with a greater understanding before returning to the Board.  However, if the landlord still does not respond reasonably, and instead proceeds to obtain an eviction Order under section 78, the tenant may need to set aside that eviction Order on motion and again establish that the "new" objectionable conduct does not "substantially" interfere with reasonable enjoyment or that the behaviour should not be the basis for an eviction as it is within the bounds of what the landlord and other tenants could reasonably be expected to tolerate under the circumstances.

As I re-read this article I'm hoping that I have helped you understand the inter-play between Human Rights laws and the Ontario Residential Tenancies Act.  There are many sub-issues and lots of nuance that I did not even come close to exploring in this article.  If you are interested in reading more about this topic you may wish to consider reviewing some the Board case law on point for examples of how the HRC is applied in specific circumstances.

Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario
Lawyers
 

Thursday, 4 April 2013

My Apartment isn't Ready on the Move in Date!

When moving into a new apartment tenants presume that the rental unit will be ready for them when they arrive in their rental truck--all set to take over the unit and get settled.  Sometimes, this process does not go as smoothly as one would hope.  The problem, most often, arises when an existing (sitting) tenant, fails to vacate the unit in accordance with the lease end or a notice to terminate.

Why is there sometimes a moving problem?  While a tenant who has terminated a lease must move out by midnight of the last day of the term (usually the last day of the month), it is often the case that the new rental unit they are moving is not available until the first of the following month.  This means that moving out on the last day of the term will leave the tenant without a home for one evening.  Often this problem is solved by the tenant simply not moving out on the last day of the month but instead they wait until the following day to vacate.  When this happens, and the rental unit has been rented to a new tenant, you can have a situation where the old tenant is literally moving out while the new tenant is moving in.  In these situations, landlords are often not doing any work in the turnover (paint, clean, repair, maintenance) and often there is no move in inspection done to determine the condition of the unit when the new tenant takes over.  Nevertheless, these overlaps usually resolve themselves through cooperation and people just trying to get along and out of each other's way.

The more significant problem occurs when the tenant who was supposed to move out--fails to move out at all.  In these circumstances, the new tenant arrives at the rental unit only to discover that they can not move in and that the sitting tenant is refusing to leave altogether.  How long will it be before the sitting tenant is forced to get out?  The answer is that unless they move out voluntarily--it will take the landlord several weeks to file an application with the Landlord and Tenant Board, get a hearing, and get the sheriff to enforce the eviction---presuming that the landlord wins!  If you find yourself in such a situation it is reasonable to expect extended delays to the point that it makes more sense to find a different place to live (unless you are satisfied by representations from the landlord and sitting tenant that the unit will be available shortly).

What about the financial consequences for a new tenant, who has packed their worldly possessions into a rental truck (that likely has to go back tonight), and now has no place to live.  Who is responsible for these costs?  The answer to this question varies depending on the specific circumstances of each situation.  One of the first places to look is in the offer to lease and the lease itself.  Often times, a landlord will include a clause in the offer to lease or the lease itself that delays the commencement of the tenancy to the date that the unit is vacated by the sitting tenant.  There are different versions of these clauses---with varying degrees of effectiveness.  The point is that the landlord is seeking to transfer the risk of the sitting tenant not moving out to the new tenant moving in and thereby shifting the financial losses suffered by the new tenant to that tenant.

Sometimes, the lease, the offer to lease, or any of the paperwork surrounding the creation of the tenancy says absolutely nothing about a delay in the commencement of the tenancy.  Sometimes the paperwork--or the oral or implied understanding--is clear that the tenancy begins on a fixed date without excuse.  If the apartment is not ready or available under those circumstances there is a greater chance that the new tenant can recover the immediate financial losses they suffer from the landlord.  This would normally be done in a claim in the small claims court if reasonable terms of settlement can not be worked out with the landlord.  Good landlords will recognize the predicament that their new tenant is in and often will try to make good for the unfortunate circumstance.

Whether or not a landlord is liable for failing to provide a rental unit, on the date stipulated in a lease (oral, written or implied) depends entirely on the circumstances.  Even if there is no clause limiting liability if a sitting tenant does not move out, you still have to analyze why the unit is unavailable.  For example, if the night before the new tenant was to take over the unit the building burns to the ground, it is fairly clear that the landlord becomes unable to perform the lease contract and hence it is impossible to deliver the unit described in the lease.  If your circumstance is similar to such a situation it is possible that your contract is "frustrated" (see frustrated contracts act).  This act applies in the Residential Tenancies context and as a result you may find that there is no remedy for your particular situation.

Another avenue to consider, and depending on the circumstances, is an insurance claim if there is a tenant's policy in place.  If the unit is unavailable due to flood, fire, or some other event, it is possible if a policy is in place for the insurer to provide temporary accommodation under the provisions of the tenant policy (most tenant policies contain terms that provide for temporary alternate housing in cases of emergency, repair, etc.).

All of this being said, if you have the experience of your unit not being ready you may wish to consider  in the future to provide for this possibility when signing a new lease.  There is nothing that prevents you from clearly setting out the consequences for the landlord if he, she, or it fails to deliver the unit.  Of course, the landlord would have to agree to such conditions.  Alternatively, maybe you plan to move to the new place a few days after the first of the month.  This will allow the landlord to do some work, but also give you the comfort of getting the keys, looking around, and then move when you know that you are in possession of the unit and are satisfied with its condition.

Michael K. E. Thiele
Ottawa Lawyer
QTMG LLP

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.