Thursday, 10 December 2015

Landlord's Own Use: Delaying the takeover.

Tenants in Ontario are fairly secure in their tenancy during the course of a fixed term.  The only legal grounds to terminate a tenancy during a fixed term (the typical fixed term is the one year lease that people sign at the beginning of the tenancy), is for cause.  "Cause" includes termination for non-payment of rent, willful or negligent damage, illegal act, impaired safety, and a few other specified grounds in the Residential Tenancies Act (RTA).  The security of a tenancy is almost as strong after a fixed term ends.  Unless a renewed fixed term is entered into, after the expiry of a fixed term a tenancy continues on a month to month basis.  This is automatic, there is nothing that either party needs to do.  A landlord can not object or refuse the continuation of a tenancy on a month to month basis.

As in fixed term tenancy, a month to month tenant can be evicted for "cause".  The cause grounds are largely the same in the month to month context as they are during the fixed term of a tenancy.   What is a bit different is that in a month to month context the landlord has the ability to terminate a tenancy at random times and unexpected times so long as notice is given under the RTA.   The type of notice I'm talking about in this article is termination for landlord's own use and for the purpose of this article I'm assuming that the N12 Notice of Termination is given in good faith and that the landlord is entitled to termination. 

A notice of termination for landlord's own use requires that a landlord give a tenant 60 days notice with the final day of the notice ending on the last day of the term (usually the day before rent is paid).   In a fixed term tenancy the Notice of Termination can not specify a termination date that is sooner than the end of the fixed term.  Hence, if a tenant has a one year or multiple year lease the tenant is protected from being evicted for landlord's own use before the expiry of the fixed term.  The end date of a fixed term tenancy is known and hence the tenant has the comfort of knowing that their tenancy is "safe" from termination until at least the end of the fixed term for landlord's own use.

In the case of a month to month tenancy, a landlord can serve a Notice of Termination any time; and so long as 60 days notice is provided the tenancy can be terminated at any time of the year.  For some tenant's this can be quite unsettling.

Consider for a moment the impact of receiving a Notice of Termination for Landlord's Own Use (Form N12) and only having 60 days to find a new place to live.  Certainly, if a tenant is young, footloose and fancy free, healthy, with minimal responsibilities, a termination in 60 days may indeed be reasonable.  However, imagine a tenant who has lived in the same unit for a great number of years, may be suffering from health problems, may have a lot of stuff in their unit, may be going on a trip, may have kids in a local school, may be financially unstable and may have dependents or responsibilities that make finding a new place in 60 days an impossibility.  What happens to the tenant who can't move or can't find a place within 60 days?  Does that tenant become homeless?

The fact is that 60 days notice in the Form N12 is only a minimum notice period.  One would hope that a landlord would take into account the circumstances of a tenant when serving the N12.  Unfortunately, it is my experience that many landlords read the 60 day notice provision as creating an inviolable right to evict without regard to a tenant's personal circumstances.  Thankfully, we have section 83 of the Residential Tenancies Act that allows the Landlord and Tenant Board to consider an appropriate termination date based on all of the circumstances.  The Landlord and Tenant Board can indeed recognize the hardship that 60 days notice causes and the adjudicator can delay the termination for longer or even deny it.

Here is an example of an actual case.  In the case of Tarsitano v. Duff, the landlord of a small apartment building established that he (age 66) did indeed require the apartment of the tenants (age 78).  The landlord was living in a 3 bedroom apartment with his wife, and three other people.  The pictures of the unit showed that the landlord's living space was very cramped and that he clearly needed more room. Hence, taking over the apartment of the tenants was considered to be something that the landlord needed to do. 

The tenants on the other hand had been in possession of their apartment, on a month to month basis, for over 15 years.  The tenants were elderly, on a fixed income, and the husband was undergoing cancer treatment and was terminally ill.   There was a recognized shortage of affordable housing (this case was in Toronto) and there was no doubt that finding a new place to move to would impose hardship on the tenants.

The Judge in this case considered the landlord's need (recognized as legitimate) and considered the circumstances of the tenants (very sympathetic).   In considering the respective positions of the parties the Judge was free to disregard the 60 day notice of termination.  He had the authority under the law of that time to exercise his discretion and do what would be considered fair.

In this case the Judge decided that the tenants should be given more time to find a new place to live.  He delayed the eviction of the tenants by 5 months thereby giving the tenants more time to make reasonable arrangements to move.  Whether 5 months is enough, not enough, or too much, is not the point.  The point is that the Judge has discretion to decide based on the circumstances of the parties.

If you are facing eviction for landlord's own use, or if you are a landlord planning to evict for own use, it is important to recognize that the Landlord and Tenant Board has the authority and jurisdiction to delay or deny eviction for landlord's own use.   It is not automatic nor guaranteed.  Hence, if you are a landlord I recommend that you meet with the tenants, deliver an N12 based on 60 days of Notice, but at the same time discuss with the tenants or invite the tenants to propose a satisfactory timeline that works.  If you can agree to a termination date sign off on a Form N11 that is available from the Landlord and Tenant Board website.

If you are a tenant and your landlord is being entirely inflexible with respect to the termination date go ahead and prepare for a hearing.  Be ready to show the Board why moving within 60 days is simply not possible.  Have copies of medical records, school reports, travel documents, pictures, and whatever else you have the establishes the reasonableness of the delay of eviction that you are asking for.  If a child is in a school district with a special program and termination and moving would deny the child continued access to the program collect that evidence and be prepared to present it.  Don't assume that simply saying it will be enough.   Be prepared to tell the Board what your plan is, the timing, and the reasons.  If your reasons are compelling the adjudicator certainly has the power to grant you the time you need to leave.

[Note that this article was in relation to landlord's who served an N12 in good faith and there are no issues respecting a substantial breach of obligations under the RTA.  If there is reason to challenge the landlord's desire to occupy the premises then there are a whole other set of considerations and defences.]

Michael K. E. Thiele
www.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.