Our Last Hope Is The Form N12 To Save Our Rental Businesses And Not Go Under

[Millennial LL]

Fellow landlords Ford and his trained seals (PC MPPS) have continued to disrespect us and trample on our rights.

Already at the LTB we are seeing NON-PAYING TENANTS WHO OWE MONTHS OF RENT ARE NOT BEING EVICTED AND GETTING LONG TERM "PAYMENT PLANS" instead.

Ford won't allow evictions because of political reasons.

Now NO RENT INCREASES for 2021. Of course Tony "the bottom" Liberace and his Chinese funded corporate buildings don't care because if they get rid of us (the competition) it's worth if for them.

Our last and best hope to deal with a corrupt government that is in "bed" (literally, ahem) with foreign funded corporate landlords is the N12.



Introduction

A landlord may apply to terminate a tenancy on the basis the rental unit is needed for use by the landlord, the landlord’s spouse, a child or parent of the landlord or the landlord’s spouse or a person who provides or will provide care services to the landlord or landlord's family.

A landlord may also apply to terminate a tenancy on the basis that the landlord: (1) will demolish the rental unit; (2) needs vacant possession to do extensive repairs or renovations; or (3) intends to convert the rental unit to non-residential use.

This Guideline discusses how the Landlord and Tenant Board (LTB) deals with these applications made under the Residential Tenancies Act, 2006 ("RTA"). Amendments were made to some of the RTA provisions on September 1, 2017 in Bill 124, An Act to amend the Residential Tenancies Act, 2006. Special transitional rules may apply to some notices and applications served before the amendments were proclaimed.

For general information about eviction applications, see Guideline 10, "Procedural Issues regarding Eviction Applications".

Personal use by the landlord or landlord's family
Section 48(1) of the RTA permits the landlord to give notice of termination to a tenant if the landlord, in good faith, requires the unit for residential occupation for a period of at least one year by the landlord, a specified family member or a caregiver. This notice is often referred to as a "Form N12".

Section 191 of the RTA and LTB Rule 5 set out the rules about how to serve documents.

Who can occupy the rental unit?
The Form N12 can indicate that any one of the following persons intends to occupy the rental unit: the landlord; the landlord's spouse; a child or a parent of either the landlord or the landlord's spouse; or a person who provides or will provide care services to the landlord or a family member of the landlord where the person receiving the care services resides or will reside in the building.

The notice of termination cannot include other family members who are not specified in section 48(1), such as a landlord's siblings. See for example: TSL-70431-16 (Re), 2016 CanLII 52813 (ON LTB); NOL-03484-10 (Re), 2011 CanLII 5985 (ON LTB).

Termination date
The termination date in the landlord's notice of termination must be at least 60 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, on the last day of a rental period. For example, if the current month is January and the lease expires on June 30 of the same year, the termination date should be June 30. If there is a month to month tenancy agreement and notice is provided to the tenant on January 20, the earliest the termination date on the notice can be is March 31 which is 60 days after the notice is given and on the last day of the monthly rental period.

A notice of termination with an incorrect termination date is defective. A defective notice cannot be amended after it has been given to the tenant. The LTB cannot issue an order terminating a tenancy on the basis of a defective notice of termination. See for example: CEL-02248 (Re), 2007 CanLII 75937 (ON LTB); TSL-72954-16 (Re), 2016 CanLII 44293 (ON LTB).

After being given the notice, the tenant is allowed to terminate the tenancy at an earlier date by giving give the landlord ten days written notice.

The landlord may apply to the LTB for an eviction order as soon as the notice has been given to the tenant, but section 69(2) of the RTA says that it may not be filed later than 30 days after the termination date in the notice. If the application is filed late, it will be dismissed. The LTB schedules a hearing to consider the landlord's application and all parties have a right to attend the hearing and provide relevant evidence and submissions.

Affidavit
Subsection 72(1) of the RTA requires the landlord to file an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for at least one year. The person who provided the affidavit is not required to testify at the LTB hearing, unless they have been summoned by one of the parties. However, as a general principle of law, oral testimony at an LTB hearing is given greater weight than testimony provide by affidavit.

Examples of LTB orders addressing the affidavit requirement include: TNL-86355-16 (Re), 2017 CanLII 51474; SWL-85060-16 (Re), 2016 CanLII 44343 (ON LTB); TSL-70431-16 (Re), 2016 CanLII 52813 (ON LTB).

If there is a conflict between the oral testimony and the affidavit it is up to the Member to decide what evidence is most persuasive: Sertic v. Mergarten, 2017 ONSC 263.

Requirement of good faith
At the LTB hearing the landlord must prove, on a balance of probabilities, that he or she in good faith requires the rental unit for the purpose of residential occupation by the person specified in the notice of termination. That means that the Member must decide whether it is more likely than not the landlord or family member will move into the unit within a reasonable time after the unit becomes vacant.

When deciding "good faith" the LTB must consider whether the landlord has a genuine intention to occupy the premises. Whether the landlord's plan is reasonable is not the test: Feeney v. Noble, 1994 CanLII 10538 (ON SC).

In Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC) the Divisional Court stated at paras 18, 26-27:

In my view, s.51(1) [now RTA s.48(1)] charges the finder of fact with the task of determining whether the landlord's professed intent to want to reclaim the unit for a family member is genuine, that is, the notice to terminate the tenancy is made in good faith. The alternative finding of fact would be that the landlord does not have a genuine intent to reclaim the unit for the purpose of residential occupation by a family member.

While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal stops short of entering into an analysis of the landlord's various options.

Once the landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s.51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s.51(1) standard.
In Fava v. Harrison, 2014 ONSC 3352, the Divisional Court affirmed that the motives of the landlord in seeking possession of the rental unit are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. The Court also stated the LTB can consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.

For example, a tenant may wish to prove that the same landlord gave a notice of termination for personal use of another unit earlier, obtained possession and then rented it to another tenant. This is not determinative evidence that the landlord lacks good faith, but it may be considered by the Member in weighing the landlord's evidence. Evidence of previous problems between the current tenant and the landlord may also be relevant to the genuineness of the landlord's intention to use the unit as stated in the notice.

Examples of LTB orders finding that the landlord has satisfied the good faith requirement: TEL-69842-16 (Re), 2016 CanLII 38802 (ON LTB); TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB); TSL-56775-14 (Re), 2014 CanLII 71671 (ON LTB); TSL-75867-16 (Re), 2016 CanLII 71599 (ON LTB).

Examples of LTB orders finding that the landlord has not satisfied the good faith requirement: TSL-76001-16 (Re), 2017 CanLII 28525 (ON LTB), EAL-59819-16 (Re), 2016 CanLII 88067 (ON LTB); TSL-55743-14 (Re), 2015 CanLII 9141 (ON LTB); TSL-09908-10 (Re), 2011 CanLII 13483 (ON LTB).

Allowable uses of the rental unit
The landlord must establish that the unit will be used for "residential occupation" as required by section 48 of the RTA. That term is not defined in the RTA but it has been considered in a number of LTB and court decisions.

Occasional or infrequent use of the rental unit does not constitute residential occupation: TSL-80318-16 (Re), 2017 CanLII 14304 (ON LTB), upheld by the Divisional Court; Kohen v. Warner, 2018 ONSC 3865; TSL-65943-15 (Re), 2015 CanLII 94908 (ON LTB); CET-33575-13 (Re), 2014 CanLII 71654 (ON LTB); NOL-09721-12 (Re), 2012 CanLII 74622 (ON LTB); TSL-08570-10 (Re), 2010 CanLII 76079 (ON LTB).
Using the rental unit as a business office so that the landlord can meet with tenants of the building and have access to a bathroom was found to be inconsistent with the purpose of subsection 48(1): TSL-24120-12 (Re), 2012 CanLII 21575 (ON LTB).
Leaving the rental unit empty after the tenant vacates was found not to be residential occupation: TEL-01943 (Re), 2007 CanLII 75965 (ON LTB).
Using the basement rental unit for storage of items the landlord uses for her profession and to construct a recreation room was found to be residential occupation: TSL-62768-15-RV2 (Re), 2015 CanLII 100191 (ON LTB), upheld by the Divisional Court, Sertic v. Mergarten, 2017 ONSC 263.
Using a basement rental unit as home office/study where the landlord lives on the upper floors was found to be "residential occupation" so long as the scholarly, professional, business or other such activity does not constitute the predominant use: TSL-72600 (Re), 2005 CanLII 91265 (ON LTB).
Corporate landlords and shareholders of a corporation
On September 1, 2017 the RTA was amended to provide that section 48 only applies to rental units owned by landlords who are individuals. A corporate landlord cannot serve a notice under section 48 or obtain an eviction order under this section. Earlier decisions permitting some corporations to serve this type of notice are no longer valid.

Compensation
For notices under section 48 given to a tenant on or after September 1, 2017, the landlord must compensate the tenant in an amount equal to one month's rent or offer another rental unit acceptable to the tenant. This requirement must be met before the termination date on the notice of termination. The LTB will not issue an order ending the tenancy and evicting the tenant unless the landlord has satisfied this obligation. Under subsection 135(1.1) of the RTA, a landlord is deemed to have retained money in contravention of the RTA, if the landlord fails to pay the tenant the required compensation.

Personal use by a Purchaser or their family
Section 49 of the RTA permits the landlord to give notice of termination to a tenant on behalf of a purchaser of the rental unit if:

the landlord has entered into an agreement of purchase and sale to sell a residential complex containing no more than 3 units, or a condominium unit; and
the purchaser, in good faith, requires possession of the complex or the unit for residential occupation by the purchaser, his or her spouse, or a child or parent of one of them.
Agreement of purchase and sale
Before a landlord may give a notice under section 49, there must be an agreement of purchase and sale for the residential complex or condominium unit. The LTB may refuse an application if it is not reasonably certain that a completed sale will result from the agreement. If a term or condition of the agreement makes it uncertain that the deal will be completed, it may be appropriate to delay the application until the sale becomes more certain.

The LTB may also dismiss the application if satisfied the purchase is a pretence created for the purpose of evicting the tenant. For example, a transfer to a family member or a sale for much less than market value may raise questions. Section 202 of the RTA directs the LTB to look at the real nature of any transactions. See for example: SOL-01897 (Re), 2007 CanLII 75946 (ON LTB); CEL-61051-16 (Re), 2016 CanLII 88110 (ON LTB).

A landlord applying based on a notice under section 49 is well advised to submit a copy of the agreement of purchase and sale with the application, together with an explanation of the circumstances of the intended sale.

There is also a good faith requirement similar to that related to section 48 (see above). The requirement relates to the genuine intention of the purchaser and the person who declares they intend to occupy the unit (see subsections 49(1) and 72(1) of the RTA). See for example: TSL-76546-16 (Re), 2016 CanLII 71338 (ON LTB); TNL-27406-12 (Re), 2012 CanLII 27936 (ON LTB).

As section 49(1) states that a notice to terminate a tenancy for use by a purchaser or family member can only be served if the residential complex has no more than three residential units, an application concerning a residential complex with more than three units will be dismissed: TSL-80642-16 (Re), 2017 CanLII 28814 (ON LTB).

http://tribunalsontario.ca/documents/lt ... 20Use.html

Personal use by a person who provides or will provide care services
Subsection 48(1)(d) and 49(1)(d) of the RTA permit a landlord to give notice of termination to a tenant if the landlord or purchaser, in good faith, requires the unit for residential occupation by a person who provides or will provide care services to the landlord or purchaser, or the landlord's or purchaser's spouse, parent, child, or spouse's parent or child. In the case of care services being provided to the landlord or the landlord's family, the caregiver must live in the rental unit for at least one year.

The person receiving the care must reside or intend to reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.

"Care services" are defined in s. 2 as "health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living". Care services are further defined in section 2 of Ontario Regulation 516/06.

[exlandlord]

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