Monday, 24 February 2014

Vitamin D, Seasonal Affective Disorder and renting a new Apartment.

How important is the location of your apartment to your mental health, enjoyment of life, vitamin D production, or even to treating seasonal affective disorder?  When renting an apartment (or buying a house for that matter) I suggest that there is one very specific thing that everyone should do, but which no one really does, to ensure that the precise location of your apartment and its orientation contribute to making you happy. 

The Sun
My statement in this regard makes an assumption that human beings, when exposed to the sun are more likely to be happy.  Vitamin D, seasonal affective disorder, and generally one's mood, is affected by exposure to daylight and to the length of our day (measured by light).  As regular readers of this blog know, I haven't recently run off and become a medical doctor or researcher and hence my statements about the importance of exposure to the sun are anecdotal.  That means I presume it to be true, from my own experience in liking access to sit in the sun, the impact on my mindset at sunrise, and from the same affirmation by many people about how much better the sun makes them feel.

So why this article?  Recently, I had the great pleasure of chatting with a good friend of mine who works for a very large property management company.   He works with the residential rental portfolio that consists of several thousands of rental units and great number of apartment buildings.  His job involves analyzing the portfolio and the buildings within the portfolio.  In his work he is looking for indicators that impact profitability and that includes apartment turnover, the amount of revenue generated by buildings, the costs of maintaining, upgrading of units etc..  How utterly boring you might think?  At least I thought so until he told me about a fascinating little fact about the turnover of apartments within apartment buildings.

Because he has all of the data in relation to an apartment building and the individual units, my friend was able to review a number of data sets--which included the date of rental, the length of a tenancy, the amount of rent charged, the costs of maintenance to a unit, legal costs in relation to a tenancy.  He took this data and then correlated those data sets to the exposure (North, East, South, West) of the rental units within the apartment buildings.  The results of this analysis are quite fascinating.  For the buildings to which he applied the analysis he found that the "sun" side of the building--where the windows and balconies of individual apartments got morning sun to early early afternoon sun--the rents were higher, the tenancies longer, and the costs to maintain the units was lower.  Complaints from the sunny side of the building were lower and the time to rent a vacant unit was lower.  These findings were apparent in the numbers over several years and over many buildings.

My friend's analysis of tenant turnover based on a unit's exposure to sun was quite fascinating to me as I immediately thought what an incredibly useful fact this is in the course of deciding what apartment to rent.  How many people when renting an apartment or house consider the exposure to the sun in deciding which unit to rent?  If, when renting, there are choices amongst vacant units then it would be worthwhile to consider how the sun tracks over the rental unit and the rental unit's windows.

Does considering how the sun moves mean you have to hang out at the building all day long?  Of course not! In the days when there is an app for everything there is a handy website at www.suncalc.net that allows you to enter a specific address and then it maps the track of the sun over that address.    This is a handy tool to use.  What you need to do though, to make use of what it shows, is orient the vacant rental unit that you are considering renting within the building so that the sun tracking data is useful to you.

I'd be interested to hear from anyone who has done this or who has moved based on sun exposure to hear of your anecdotal stories and experiences.

Michael K. E. Thiele

Friday, 21 February 2014

Tenant: How to terminate your apartment lease legally


I'm pleased to publish today an Article written by my assistant Heather.  As you have seen in prior Articles, Heather has developed a keen interest in Landlord and Tenant Law issues.  I'm pleased that she has written about how a tenant terminates a tenancy, legally, as far too many tenants still think that their tenancy automatically ends after a fixed term expires or that a simple phone call will do the trick.  As Heather discusses, termination of a tenancy, by a tenant, engages a formal process under the Residential Tenancies Act and a tenant is required to comply strictly with the law just as a landlord is required to do.  Thank you Heather for your interesting piece.  Michael K. E. Thiele
 
No-Fault Termination: A Tenant’s Notice of Termination by Heather Campbell
 
When you think of providing a “Notice of Termination,” there is distinct undertone of negativity, or if you’re in the least bit nerdy like me, you think of Arnold Schwarzener as a half-man half-robot. However, unlike Arnold, when a tenant gives a landlord a Notice of Termination, they are not planning on coming back. 

Life has a way of taking us to places that we never thought we’d go, especially at times when we are not at all prepared for such a substantial shift. Recently, a friend of mine gave me a call with just this type of situation.  After completing a university degree in English at Carleton and a college degree in the Library Technician program at Algonquin, she had been accepted to a Masters Program in Library Science at the University of British Columbia. The catch, she would be starting in the winter semester, meaning she had to be out of Ottawa and in Vancouver in less than three months.  As a result, she would need to give her landlord notice that she was leaving and she needed some guidance on what needed to happen and how to do it. So, I figured I would write a blog to share with you, in general terms, what I was able to share with her about tenants giving a Notice of Termination.

First things first, when a tenant is considering giving their landlord a Notice of Termination of Tenancy, you’ll need to know what type of tenancy you have. For the sake of this blog, there are two general types, a fixed term tenancy or a month-to-month tenancy. A fixed term tenancy generally occurs for example when you begin a new tenancy and sign a lease for let’s say a one year term.  If you have signed a lease agreement and the original term in the agreement has not passed or if it was formally renewed, then you would likely have a fixed term tenancy. In the alternative, if the original term in your lease has passed and no steps were taken to renew the lease, you’re likely on a month-to-month tenancy.

Now for the big question, why does it matter what type of tenancy I have? For the answer, we look at Section 47 of the Residential Tenancies Act (RTA) which deals with tenants giving Notice to Terminate. Under the RTA, a tenant can give the landlord notice to terminate the tenancy at the end of the period or term of the tenancy (Sec 47). This means, if you’re in a fixed term tenancy, if you’re giving your landlord notice you’re leaving, you would have to wait until the end of your rental term to actually move out. For example, if you’re 9 months into a 12 month tenancy, you would have to give notice for the end of the 12 months. In the alternative, if you’re currently living on a month-to-month tenancy, then your end of term is considered to the end of the current month. If you need to terminate a fixed-term tenancy before the term ends, there is a process of that, however that is a whole other blog.

In the case of my friend, thankfully her tenancy was month-to-month so she was able to give notice right away. However there is a distinction between the date for notice and the date for termination. For an explanation we turn yet again to the RTA but this time we look at Section 44. Section 44 (1) looks at notice and termination periods for daily or weekly tenancies, under that section a landlord or tenant must be given at least 28 days notice before their tenancy is terminated under a Notice of Termination. In other words at least 28 days have to pass between the termination date on your Notice to Terminate and the day the landlord is given the notice for daily or weekly tenancies. Section 44 (2) looks at notice and termination periods of monthly or month-to-month tenancies, under this section a tenant wishing to terminate their tenancy would have to provide a landlord with at least 60 days notice. 

To go back to my friend, her flight to Vancouver was set for December 28, 2013. Up to that date, she would need access to her apartment. Given that she was on a month to month tenancy, the best termination date for her was December 31, 2013, as a termination date has to be at the end of term in this case the end of the month (Section 47). So now she had her termination date, she needed to know when she would have to give her landlord notice and how to do it. After looking at Section 44, she now knew she needed give her landlord at least 60 days notice, so now all she had to do count backwards. As a side note, the RTA and Landlord and Tenant Board have specific requirements when it comes to giving/ serving Notices, so you need consult the relevant sections to make sure you are counting any extra days that may be required based on your form of service.

My friend had a really good relationship with her landlord and wanted to give them as much notice as possible so she decided to give more than the 60 days notice required. Now all she needed now was to know how to give the notice. Section 43 of the RTA deals with what must be included in a Notice of Termination. The Landlord and Tenant Board has a form specifically for Tenant’s to use when giving landlords notice of their intention to move out, it is the N9-Tenant’s Notice to Terminate the Tenancy form. It is available from the Landlord and Tenant Board or can be downloaded from the LLTB website.

Section 43 states that all Notices of Termination shall be in a form approved by the Board. There are cases with other types of form have been accepted, however, save yourself a headache and just use the N9 if you are a tenant looking to end their tenancy. Again, giving the notice to the landlord (also known as service or serving) must be done in accordance with the RTA and Rules of the Landlord and Tenant Board, so please consult the relevant documents depending on your individual situation. Regardless of how you choose to serve the Notice, it is always prudent to complete a Certificate of Service, which is provided by the Landlord and Tenant Board. The Certificate of Service is used to prove that you have provided the landlord with the Notice should any issues come up and the matter proceeds before the Landlord and Tenant Board. This should be done right after serving the N9.
If you look at the N9 Form, Section 43, 44 and 47 of the RTA, there are many more issues that relate to tenants giving notice and situations and consequences of giving a landlord a Notice of Termination of Tenancy.  All of which, are unfortunately more than can be dealt with and explained in a blog. So if you have specific questions, please feel free to leave comments or to seek legal advice. I hope this blog has shed a little light on tenants giving notice to end their tenancy, and useful should you ever find life leading you on to new adventures.

Tuesday, 11 February 2014

An Abandoned Rental Unit----Landlords, what do you do?

Every once in a while I get a call from a landlord asking what they can or should do when they haven't see their tenant around for a while.  The rent is normally in arrears, the mailbox isn't being emptied, and the neighbours can't recall seeing the tenant around for a while.  There are many potential reasons for this--including that the tenant has died and is in the unit (unfound), the tenant is away on holiday, the tenant is hospitalized, or (and this is the focus of this article) the tenant has simply abandoned the rental unit.


Is this Apartment Abandoned?
If the suspicion is that the tenant is seriously ill or in need of assistance a landlord should feel free to consider the situation an emergency, access the unit and call for the appropriate emergency services.  However, if there is no reason to suspect an emergency, then the only thing to do is to give a 24 hours notice of entry to the tenant (mailbox or under the door) and enter the unit for an inspection at the appropriate time.

Often such an inspection will reveal a rental unit that looks like a tornado hit it.  The unit is messy, things are scattered everywhere. On closer examination, it becomes clear that there are few if any truly personal effects, things of value are not in the unit, and most of the things that are not obvioulsy garbage are large items that are not easy to move.  An inspection like this makes you question whether the tenant continues to occupy or reside in the rental unit.  If this is your situation what do you do?

One way to proceed would be to seek to terminate the tenancy for non-payment of rent. One could serve a Notice of Termination for Non-Payment of Rent, in Form N4 (section 59 RTA), wait the required 14 days and then seek to file an application under section 74 in Form L1.  That application would seek a termination of the tenancy as well as an Order for rent arrears.  At first blush, this seems like a safe way to proceed and to get the return of the rental unit in a lawful manner.

Unfortunately, proceeding on the basis of non-payment of rent, where it looks like the tenant is no longer in possession of the rental unit, creates a jurisdictional problem with respect to the awarding of rent arrears.  Section 87 of the Residential Tenancies Act provides: (1) A landlord may apply to the Board for an order for the payment of arrears of rent if, (a) the tenant has not paid rent lawfully required under the tenancy agreement; and (b) the tenant is in possession of the rental unit.   

It is interesting to note that section 74 (Non-Payment of Rent), which follows on the general authorization to file an application if a Notice of Termination has been served (section 69 RTA) is silent on the issue of the tenant being in possession of the rental unit as a condition of filing such an application.  The section (s. 74) states that: (1) A landlord may not apply to the Board under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 before the day following the termination date specified in the notice.

The balance of section 74 deals with mandatory discontinuance of an application if rent is paid and further provides than an Order of the Board, issued pursuant to such an application is void if the tenant pays the amount specified in the Order.  There are additional provisions that would void the Order if the amounts specified are paid.

Nothing in section 74 seems to expressly require the tenant to be in possession of the rental unit at the time of the application and therefore I do think it is possible to apply to the Board, based on an N4 when the tenant is not in possession.  However, in that application one could not get an Order for the rent arrears.  What it means, I think, is that a landlord could get an Order that could only be voided by the payment of rent arrears but which Order, at the same time, could not form the basis of a judgment for the same rent arrears.

Given the delays imposed by the 14 day period under an N4--why would you proceed in this way?  One reason might be, that the abandonment has not been discovered until after the expiry of the 14 day period in an already served N4 and therefore the choice to proceed with an application in Form L1 (based on N4) is available to the landlord.  

Presuming that the Board would allow the application to proceed, the Order that would issue should terminate the tenancy, set out what the tenant needs to do to void the Order, and provide an enforcement mechanism to the Sheriff if the Order is not voided.  The Order could not, provide the landlord with a Judgment for the rent arrears.  If this is the situation, query then the timing of the disposal of the abandoned property in the rental unit and whether the provisions of section 41 (Disposal of Abandoned Property if Unit Vacated), apply to this situation.   If one can argue, successfully, that section 41 does apply, it may be that a landlord could gain the right to clean up the unit and throw things out faster than in the alternative process contemplated under the RTA

THE WAY YOU ARE INTENDED TO PROCEED

Where a landlord discovers that a tenant is not in possession, as in the original scenario described at the beginning of this article, the thought that one should have is "abandonment".    One of the operative sections of the RTA in dealing with abandoned units is section 79.  It provides: If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy.

That application (under section 79) is brought in Form L2 and the boxes to check off are on the second page.  There is no Notice of Termination to serve and it is an application that can be filed directly with the Board.  There is no mechanism in the application to obtain rent arrears or other compensation.

The issue does not end there though, as the landlord may be tempted to just re-enter the unit and take it back and not bother with the application contemplated by section 79.  Afterall, if the tenant is gone, why spend $170 on an application fee to obtain an Order that simply confirms what the landlord already knows--i.e. the tenant abandoned the unit.  The question then may be---how illegal is it to simply re-enter and take possession of what appears to have been an abandoned rental unit?

That a landlord may simply re-take possession of an abandoned rental unit (without an order from the Board) is implied in section 42 of the RTA where the issue of the Disposal of Property in an Abandoned Unit is dealt with.  That section provides that a landlord may dispose of property in a rental unit that a tenant has abandoned if (a) the landlord obtains an order terminating the tenancy under section 79; OR (b) The landlord gives notice to the tenant of the rental unit and to the Board of the Landlord's intention to dispose of the property.

Clearly, to dispose of a tenant's property in an abandoned unit a landlord would need to re-enter the unit and take possession of it.  As section 42 sub A or B is disjunctive, there is a clear choice contemplated that a landlord might re-take possession without the Order contemplated under section 79.  So, to that end, it would appear that the RTA condones the re-taking possession of an abandoned unit without first obtaining an Order terminating the tenancy.  Therefore it is not "illegal" to assume control of an abandoned unit without an Order of the Board.  That it isn't illegal, however, should not be interpreted as meaning that doing so will not result in some penalties should the tenant return to the unit, try to take possession and be refused, and then apply to the Board alleging an illegal entry on the part of the landlord.  The reason for this is that while the RTA contemplates that a landlord may assume control of an apparently abandoned unit, the RTA does not validate the recovery of the rental unit in this way nor does assuming control terminate the tenancy and give lawful possession to the landlord.  Hence, if a landlord just re-enters the unit because it appears to be abandoned, they better be right about it.

THE ABANDONED PROPERTY

So what is the story with the stuff in the unit?  On an abandoned basis, and presuming that 42(A) or (B) are followed; section 42(2) & (3) provide timelines for dealing with the property.  The Landlord may sell, retain, use, or otherwise dispose of any items if 30 days have passed after obtaining the order referred to in 42(1)(a) or giving the notice contemplated by 42(1)(b).  If within the 30 days the tenant indicates a desire to remove the property the landlord must make it available to the tenant--though some charges may be levied to the tenant pursuant to section 42(6) for storage, moving, securing etc..  

If that were not enough, the RTA then provides that if within 6 months after granting of the Order or the Notice was given, the tenant claims any of the property that the landlord has sold, the landlord must pay the tenant the proceeds less any reasonable expenses for moving, storing, securing and selling the property and any arrears of rent.

How is dealing with abandoned property in a unit that has been "abandoned" different than dealing with abandoned property where a tenant moves out after being Ordered to move out?  And for this example I mean dealing with abandoned property that remains in a unit after a tenant is served with an N4 (Non-Payment of Rent) and an Order is made under section 69.

The applicable section appears to be section 41 which covers--Disposal of Abandoned Property if Unit Vacated.   This section provides:  A landlord may sell, retain for the landlrod's own use or otherwise dispose of property in a rental unit or the residnetial complex if the rental unit has been vacated in accordance with, (a) a notice of termiantion of the landlord or the tenant; (b) an agreement between the landlrod and the tenant to terminate the tenancy; (c) subsection 93(2); or (d) an order of the Board terminatng the tenancy or evicting the tenant..

In a situation where a voidable order issues under sections 59,69,74, and that Order is not voided within the time provided in the Order, can it be argued that the unit has been vacated pursuant to the Order (as the tenant has chosen not to void the Order?).  If this is a reasonable interpretation of the section, you can see that there is no 30 day obligation to make the property available and no obligation to pay the proceeds of the sale of that property to the tenant within the 6 month window allowed in section 42 dealings with abandoned property.  Without a doubt, depending on the circumstances, there appears to be a significant difference in how abandoned property can be dealt with under the Act depending on how the landlord proceeds to the Board.

The reality is that most of the time, the abandoned property will be pure garbage and not worth anything.  However, there are exceptions and I have certain handled cases where tenants have walked away from fully furnished units containing valuable electronics, furniture, antiques etc..  In such circumstances, a landlord may want to avoid the sale provisions and the obligation to pay money over to the tenant for the property sold.  Query whether in circumstances in which the proceeds have to be paid over to the tenant (within 6 months) that the landlord has a duty to maximize recovery and to sell the items for a reasonable price.   Is it possible that a landlord could be successfully sued for selling abandoned property for too little and therefore not having sufficient money to pay to the tenant for the sale of the items?

CONCLUSION

Dealing with abandoned units, abandoned property, and the lawful assumption of possession of the rental unit is not an entirely straightforward process.  Different rules will apply depending on the circumstances and duties may be imposed that are not immediately apparent based on the known facts at the time.  One last thing to be aware of, and it runs counter to the explicit provisions of the RTA absolving the landlord or third parties from liability for disposing of abandoned property, is that the Superior Court (Small Claims Court) has on many occassions continued to hold the landlord liable for disposing of items after the timelines set out in the RTA.  Especially when it comes to sentimental items like photo-albums and keep-sakes that are clearly priceless and at the same time worthless.   The Court has held that Landlords should preserve those items and make sure to retain them for the tenant regardless of the timelines set out in the RTA and that the failure to do so (in a decent manner) will lead to damages being awarded to former tenants.

Michael K. E. Thiele
ottawalawyers.com








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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.