Landlord and Tenant

What is Bill 184? Bill 184 is comprised of at least in part changes to the Residential Tenancies Act, the law governing relations between residential landlords and tenants in Ontario. Prior to the Bill’s passage, many tenant groups protested and warned us all that thousands of tenants will be evicted without a hearing. In fact, nothing much at that end has changed, other than allowing landlords and tenants to make private arrangements outside the Landlord and Tenant Board that can be enforced in the same way as if they attended mediation on Hearing Day. Can a Tenant be Evicted Without a Hearing Under this New Law? First, we need to discuss facts about the existing Act before Bill 184 came into place. As someone that has represented hundreds of parties before the Board over the years of its existence, the Act always had an option for what is called an ‘ex parte’ hearing. The Landlord and Tenant go to a Hearing but, before the hearing they sort out their issues with the help of a Mediator. After they arrive at an agreement, they attend before the Adjudicator and ask for a consent order. A Consent Order is what makes the agreement enforceable and less likely to be overturned on review. In the Consent Order, for example, the Tenant promises to pay an extra amount over and above their regular rent to catch up on arrears. This is in exchange for the Landlord not evicting them. In effect, the parties are agreeing to a stay on the Tenant’s eviction as long as the Tenant keeps up with their end of the bargain. If the Tenant fails to pay what they promised or continues to be late with their rent, the Landlord has the option of using what was referred to as s. 78. How Did S. 78 Work Before Bill 184 was Passed? In the above scenario, the Landlord would then file an Application with the Board with a declaration that the Tenant failed to keep their end of the bargain. Many people called this being “a day late or a dollar short”. This Application would be filed with the Board and without a Hearing, an Adjudicator would sign an eviction order against the Tenant. The stay is lifted. A Tenant was always able to fight these orders, as they received the Order in the mail after it is granted. The Tenant can fix this in a number of ways, including requesting that the Order be set aside and the stay remain in place. The Tenant can review the Order if they feel there was a serious error in granting it. On an issue of law, it can be appealed to the Divisional Court. Many tenants have used these strategies before Bill 184 and will continue to be able to use them afterwards. What Changed Under Bill 184? The Landlord and Tenant can continue to avail themselves of mediation services offered by the Board and continue to make private arrangements the way they always have. What Bill 184 does is allows the Landlord and Tenant to meet at the kitchen table and come up with their own repayment plan and submit it to the Board to make it an enforceable Order. This repayment plan would be done after an N4 was served on the Tenant and failing to pay up the arrears, the Landlord files an L1. Often an eviction hearing is looming. So, instead of going to the Hearing that is scheduled , this gives the parties a chance to sort it out themselves without the involvement of the mediator at the Board. The Board would issue an Order based on this repayment agreement. If that repayment agreement is breached, the Landlord then has the same option they always had under s. 78.  There is nothing in Bill 184 that prevents the Tenant from using the tools already in place to set aside the ex parte order or to review it. This is just a way to shorten some of the line ups at the Landlord and Tenant Board, as our experience has proven that many parties do work these things out themselves.

Landlord and Tenant Disputes Our office receives calls from Tenants who are bewildered after getting an eviction notice when they never got 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 story 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 rent 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. You cannot get 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 old tricks to get tenants to leave. If a Landlord wants to move themselves or family into the unit, they have to actually move into the unit and to stay 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 added and then the Landlord jacks 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 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 (at the same rent) 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 unit, with some exceptions, your rent cannot be raised above the annual guidelines. 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 in November 2018. Any new rental units built or used as rental units after November 2018 will not be rent controlled. 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 already signed something or 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.

Landlording as a Business Many prospective investors have asked me if it was worth their while becoming a Landlord. They read the horror stories in the newspapers about tenants that overstay their ‘visit’ for months at a time. These tenants squat while their landlords continue to pay the bills. They read about tenants that have left their newly renovated properties in such a wreck that one wonders how they can find good tenants that would care for their property as they have done. Prospective landlords also want to know how much to ask for in rent, as they do not want to overcharge or lose money. Asking for too little over the long term might seem worth it to attract tenants, but over time expenses might absorb most or all of it. Asking too much might not attract many tenants, or it might put one at risk of tenants falling behind in payments. Striking that fine balance is a business decision all landlords have to make. It is important to know that most tenants are decent people who will treat your property with care and pay their rent on time. It is often only the ‘bad apples’ that we hear about when the media puts a spotlight on this issue. Outside of credit checks and direct references, there are many ways a landlord can protect themselves, at least at the first level from nightmare tenants. Red Flags There are a number of red flags prospective landlords should look for when selecting tenants. A ‘red flag’ is a sign that something is not as it should be, meaning perhaps this prospective tenant might not be your best choice . Some of the ‘red flags’ are: A prospective tenant approaches you in the middle of the month and tries to hand over a large amount of cash. Quite often, this is a sign that somebody else evicted them using the shortcut of paying them off to move from their former premises. The tenant claims to be ‘self-employed’, but does not appear to have visible signs of income or business ownership. Even home-based businesses usually have an outgoing message on their phone introducing themselves. If you contact them and they do not state their business name, you should wonder. Also, ask for a business card. References provided appear to be too enthusiastic in recommending the tenant. Do they just want to get rid of them? An employer reference’s telephone number is ‘out of service’. Your prospective tenant claims to have ‘handyman skills’ that they are willing to help you with in your rental properties. While it is tempting to have a built-in handy person, many times their ‘work’ becomes subject of a dispute. How to Protect Yourself As a prospective landlord, you need to take steps with every applicant to ensure you are not going to get duped. First, it might be helpful to ask for a copy of your prospect’s photo identification. This is not only to ensure that the person in front of you is who they claim to be, but the address on the identification should be noted. If your prospect has not provided you with a reference for that address, you can check the tax register at city hall. This can get the name and contact information for the landlord for that address. Google your prospective tenant’s name, as well as check any Facebook or Instagram accounts. See if your prospective tenant is saying things online that might concern you, particularly if they might have referred to an employer or former landlord in negative terms. Compare any employment or educational information with what they provide you. Take note of any license plates, as well as makes and models of any vehicles your prospective tenant might have drove in to come see you. This information would be useful in the event you need to find them after they trash your place in the future or make a midnight move. Get a credit check from strong prospects. If your prospective tenant does not wish to complete the credit/application process, you do not have to offer them the rental unit. Ensure Legal Advice is Available The life of a landlord can take many twists and turns. However, you need to remember that first off, being a landlord is a business. That means you have to treat your landlording services as you would in any other business. Disputes do arise from time to time and when this happens, you want to ensure you have access to the best legal advice you can get.  Invictus Legal LPP provides legal services to landlords to help them protect their investment and enjoy their properties. If you have any questions, do not hesitate to give us a call .

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. Invictus Legal LLP 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.

The Standard Residential Lease 2018 and Section 15, Additional Terms and 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 (hereinafter referred to as “the 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? In a political scramble to accomplish its legislative agenda, the Liberal government of the day made multiple changes to the RTA amid much fanfare. The RTA faced substantial changes in apparent response to media attention on rental issues, with Toronto facing low vacancies and soaring rents. An old exemption on rent controls for new construction, brought about in 1991 for five years and later, extended indefinitely, found itself getting front page news coverage, with renters facing huge year over year rent increases. And a series of articles appeared to be showing economically disadvantaged tenants in horrific situations being pursued for “Rent” after being evicted. There was political hay to be made and legislation was quickly enacted. Ironically, the original exemption from rent control for post 1991 construction was to encourage new construction and provide more rental properties to ease the vacancy rate. Fast forward to 2017 and the policy is withdrawn due to the issues it created. Will the removal of the exemption for new construction further restrict the rental supply? Was it a failed policy that will have no impact? Did the surging population alter the landscape beyond the ability of the any legislation tweaking to correct? And does it matter? The Rental Fairness Act came into being and after April 17, 2018, the exemption was removed. Additional changes addressed the issue of pursuing tenants for “rent” after termination. And in what was likely a planned industry change, the new Standard Lease came into being. How the Standard Lease does help Landlords and Tenants It’s not all political gamesmanship. A standard lease, and in particular, this Standard Lease, seeks to educate all the parties and make the relationship between Tenants and Landlords more professional and less acrimonious. Knowledge of the rules, at the onset of a tenancy, can only assist in having those rules followed. Like colouring, if both parties to the lease stay within the lines, the end result is likely to be more pleasing. So, what are the elements of the new Standard Lease and who is exempt? A good starting point is to assume that the Standard Lease applies to your situation, with the following exemptions: Care Homes, Mobile Home sites, Land Lease communities, member units in Co-ops, Social and Supportive Housing and other exemptions as set out in Section 5 of the RTA. Most residential tenancies will require the Standard Lease. Who’s responsible to provide the Standard Lease? The Landlord must provide the executed Standard Lease. If a Landlord fails to do so, a Tenant may request same and the Landlord must provide same within 21 days. What happens if a Landlord doesn’t provide same? Well, initially, the Tenant can withhold one months rent, and if the Landlord doesn’t provide the executed Standard Lease within 30 days, the Tenant gets to keep that money. So, essentially, Landlords deliver the lease in a timely fashion or…. And there are other penalties involved for the Landlord. In essence, as a Landlord the message is clear. Thou shalt provide thine Tenants with a Standard Lease or thou shall feel the wrath of the LTB and that wrath shall attach itself very firmly to your pocketbook. Take a moment to consider the underlying business relationship between Landlord and Tenants, it is a business relationship with the terms set out in writing to help both sides. Ontario Standard Lease The Standard Lease is available here , at the government website. Simply cut and paste the address into your web browser….and click on the download. It also has a link to a free adobe download if you need it. Simply by filling in the blanks, it will assist both parties in considering many of the issues in a tenancy that no one considers in the first blush of the new relationship. In that initial warm glow, the apartment is perfect, the Landlord and the Tenant are most agreeable and eager to establish a solid, functioning relationship. Now is the time to consider the nuts and bolts of the actual business relationship between the parties while there is goodwill and good communications. The form itself deals with many of the standard issues, like parking, utilities, contact information, rent deposits, key deposits and, even Tenant Insurance. Some issues are partly addressed, such as smoking and changes to the rental unit with specific reference to the possible addition of additional terms under section 15. Other issues, such as the use of Marijuana, either recreational or medical, the growing of marijuana on the premises, permitted use of unit (such as in residential purposes only), cleanliness, the use of written work orders in maintenance requests, reporting of additional occupants, reporting of pets on premises, appliances included and not included, Laundry rules, etc. are not addressed at all. The parties to the Standard Lease are optimistic and looking for a solid business relationship at the commencement of the Lease. The Landlord and the Tenant both have a vested interest in maintaining this relationship. One way to ensure this happens is to have a clear understanding of what the relationship should look like. When a new tenancy commences and the Standard Lease is introduced, perhaps the KEY section to a successful tenancy for both parties is Section 15, additional terms. While the bloom is on the roses, so to speak, the Section 15 Additional Terms can set the tone for a solid, respectful working relationship between the parties.  As an additional resource, we have put together some sample “additional terms” that can be utilized in new tenancies. The use of these Sample Additional Terms does not constitute legal advice, nor is there any guarantee, implicit or implied, in the legality of the clauses provided.