How do you evict your tenant for seriously interfering with the reasonable enjoyment of other tenants or seriously 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 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, odours emanating from the apartment, etc.

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.

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 N5s 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.

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

 

 

 

Common Landlord and Tenant Ontario Myths Part 2

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

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.

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/documents/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.

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/ 

COMMON LANDLORD AND TENANT MYTHS IN ONTARIO PART 1

A landlord cannot evict a tenant in the winter

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.

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 www.CivilParalegal.com

Sample Letter to new Minister of Housing Steve Clark

Another paralegal Ontario has posted a “sample letter” recommending that landlords who are unsatisfied with the Residential Tenancies Act and the landlord tenant board Ontario write to the new PC Minister of Housing, Steve Clark using his template.

I share many of the views of Harry Fine. Here is the link to his blog which you can copy and paste:

http://landlord-law-ontario.blogspot.com/2018/07/sample-letter-to-new-minister-of.html

 

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

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 that 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.
Lease terms no longer matter. New section 134(1.1) effectively takes away a landlord’s right to sue in small claims court for the balance of the lease term. If a tenant vacates prior to the end of the lease, a landlord can now only sue for unpaid rent up to the date the tenant vacated.

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.