Contents. Preface... v Table of Cases... xxvii

Transcription

1 Contents Preface... v Table of Cases... xxvii Chapter 1 Residential Tenancy Law in Ontario A Historical Perspective and Recent Developments BRIEF HISTORICAL OVERVIEW THE TENANT PROTECTION ACT, THE RESIDENTIAL TENANCIES ACT, REMEDIAL LEGISLATION LEGISLATIVE FRAMEWORK Chapter 2 The Landlord and Tenant Board INTRODUCTION NATURE OF THE BOARD JURISDICTION OF THE BOARD (a) General (b) Residential Tenancies (c) Monetary Jurisdiction (d) Constitutional Questions (e) Human Rights (f) In Possession (g) Small Claims Court POWERS OF THE BOARD (a) Jurisdictional Powers (b) Procedural Powers (i) General (ii) Adding and Removing Parties (iii) Joining and Severing Applications (iv) Amending Applications (v) Permitting Withdrawal of Applications (vi) Extending and Shortening Time (vii) Controlling the Proceedings (viii) Disclosure (ix) Compelling and Admitting Evidence (x) Granting Adjournments (xi) Ordering and Permitting Payment Into the Board (xii) Interim Orders (xiii) Pre-hearing Conferences (xiv) Stay of Proceedings (xv) Pre-screening of Applications (c) Investigative Powers (d) Fact-Finding Powers... 62

2 x Residential Tenancies (e) Substantive Powers (i) Declaratory Relief (ii) Monetary Compensation (iii) Administrative Fines (iv) Termination of the Tenancy (v) Eviction (vi) Injunctive Relief (vii) Equitable Remedies (viii) Costs (ix) Other Terms and Conditions (x) Transferring a Tenancy (xi) Preventing Abuse of Process (xii) Granting Relief from Forfeiture (xiii) Correcting Errors (xiv) Power to Review Decisions (xv) Order Prohibiting a Rent Increase (OPRI) PRINCIPLES OF NATURAL JUSTICE (a) Introduction (b) Bias (c) Language (d) Right to be Represented (e) Procedural Fairness (f) Persons under a Disability RES JUDICATA (a) Cause of Action Estoppel (b) Issue Estoppel (c) Abuse of Process by Re-litigation CHOICE OF FORUM APPLICATIONS TO DETERMINE WHETHER THE ACT APPLIES (s. 9) ACCESS TO BOARD DECISIONS Chapter 3 Landlords and Tenants INTRODUCTION LANDLORD TENANT TENANT IN POSSESSION PROTECTION FOR THE SPOUSE OF A TENANT (NEW) ROOMMATES SUBLETS AND ASSIGNMENTS (a) General (b) Sublets (c) Assignments SUPERINTENDENTS AND OTHER EMPLOYEES OF THE LANDLORD

3 Table of Contents xi 9. BOARDERS/LODGERS CONDOMINIUM PURCHASERS MORTGAGEE IN POSSESSION DEATH OF A TENANT BANKRUPTCY AND INSOLVENCY GUARANTORS LICENSEES LIFE TENANCY CO-OWNERSHIP Chapter 4 Rental Premises Governed by the Residential Tenancies Act INTRODUCTION RENTING AND RE-RENTING UNITS AS A BUSINESS RESIDENTIAL RENTAL PREMISES ON INDIAN LANDS CROWN LANDS COMPLETE EXEMPTIONS (a) Non-Residential Use and Mixed Use (b) Vacation and Seasonal Accommodations (c) Business/Agricultural Use with Accommodation Attached (d) Employees (e) Institutional Accommodations (i) Accommodation for Rehabilitative or Therapeutic Purposes (ii) Emergency Shelter (iii) Penal or Correctional Accommodation (iv) Other Specified Institutions (f) Non-Profit Co-Operative Housing Corporation (g) Accommodations at Certain Educational Institutions (h) Accommodations in Which the Tenant and Owner Share a Kitchen or Bathroom (i) Purchasers (j) Residential Complex in which the Crown has an Interest (NEW) PARTIAL EXEMPTIONS (a) Homes for Special Care (b) Accommodation Subject to the Developmental Services Act (c) New Units (d) Subsidized and Non-profit Public Housing (e) Non-Member Unit Provided by a Non-Profit Housing Co-operative (f) Educational and Religious Institutions

4 xii Residential Tenancies 7. TENANCY AT WILL MOBILE HOMES AND LAND LEASE HOMES DIPLOMATIC IMMUNITY Chapter 5 Tenancy Agreements INTRODUCTION WRITTEN AGREEMENTS ORAL AGREEMENTS IMPLIED AGREEMENTS WAIVER AND FORBIDDEN TERMS FRUSTRATION OF CONTRACT INFORMATION THAT MUST BE PROVIDED TO THE TENANT ON THE COMMENCEMENT OF A TENANCY (a) Requirements of Section (b) Requirements of Section INITIAL TERM AND RENEWAL UNILATERAL CHANGE OF TERMS FUNDAMENTAL BREACH AND MISREPRESENTATION (COVENANTS INTERDEPENDENT) COVENANTS RUNNING WITH THE LAND DUTY TO MITIGATE INTERESSE TERMINI DISTRESS JOINT AND SEVERAL LIABILITY AND THE EVOLUTION OF A TENANCY Chapter 6 Termination of a Tenancy INTRODUCTION DEATH OF THE TENANT TERMINATION BY AGREEMENT TERMINATION BY NOTICE OF TERMINATION (a) Form and Content (b) Service of the Notice (c) Timing (d) Notice of Termination from the Tenant (e) Notice of Termination from the Landlord (i) Choosing a Termination Date and Giving Adequate Notice (ii) Altering the Approved Forms (iii) Reasons and Details (iv) When Notice of Termination Becomes Void (v) Second Notices TERMINATION BY ORDER

5 Table of Contents xiii Chapter 7 Rent and Other Charges DEFINITION OF RENT OTHER CHARGES CHARGES FOR UTILITIES (a) General (b) Increasing the Rent Based on Utilities (c) Allocation of Utility Cost (d) Smart Meters (e) Hydro Sub-Metering LAWFUL RENT: HOW MUCH CAN THE LANDLORD CHARGE? (a) How is Lawful Rent Determined? (b) Deemed Lawful Rent (c) Determining the Amount of Rent Being Charged DISCOUNTS (a) Introduction (b) Discounts That Do Not Affect the Lawful Rent (c) Discounts that Affect the Calculation of the Lawful Rent PAYMENT OF RENT (a) Timing of Payment (b) Method of Payment (c) Proof of Payment EFFECT OF NON-DELIVERY OF TENANCY AGREEMENT SUBSIDIZED RENT IS THE DEPOSIT RENT? COMPENSATION WHEN PREMISES ARE NOT VACATED EFFECT OF OVERHOLDING TENANT PAYING RENT SOLICITORS DUTIES CONCERNING VERIFICATION OF RENT Chapter 8 Security Deposits INTRODUCTION PRE-PAYMENT OF RENT RENT DEPOSITS (a) Collection of the Rent Deposit (b) Amount of the Rent Deposit (c) Topping Up the Rent Deposit (d) Interest on the Rent Deposit (e) Applying or Refunding the Rent Deposit (f) Responsibility of Assignee of Landlord

6 xiv Residential Tenancies Chapter 9 Rent Increases INTRODUCTION (a) History of Rent Control (b) Challenges to the Constitutionality of Rent Regulation OVERVIEW: WHEN CAN THE RENT BE INCREASED AND BY HOW MUCH? EXEMPTION FROM RENT CONTROL (a) General (b) Social Housing Units (c) Institutional Units (d) New Units (e) Mobile Homes GUIDELINE INCREASE ORDERS PROHIBITING RENT INCREASES NOTICE OF RENT INCREASE AGREEMENT TO INCREASE RENT (a) In Exchange for Capital Expenditure or New/ (b) Additional Service (s. 121) In Exchange for Parking Space or Addition of a Prescribed Service, Facility, Privilege, Accommodation or Thing (s. 123) (c) Coerced Agreements (s. 124) LANDLORD S APPLICATION FOR ABOVE- GUIDELINE INCREASE (s. 126) (a) General (i) Grounds (ii) Changes Under the R.T.A (iii) Procedural Rules (iv) Tenants Who Are Not Affected (v) Non-Arm s Length Transactions (vi) Allocation (vii) Rebates, Refunds, etc (viii) Multiple Applications/Orders (ix) Serious Maintenance Problems (x) Other Considerations (b) Increase in Cost of Security Services (c) Extraordinary Increase in Operating Costs (d) Capital Expenditures (i) General (ii) Definition of Capital Expenditure (iii) Capital Work (iv) When Is the Work Complete? (v) When Is the Expenditure Incurred By the Landlord? (vi) Reasonableness

7 Table of Contents xv (vii) Apportionment of the Expenditure Amongst Tenants (viii) Useful Life Chapter 10 Rent Decreases and the Return of Amounts Collected or Retained Illegally INTRODUCTION AGREEMENT TO DECREASE RENT (s. 125) RENT REDUCTION AS A RESULT OF A PROPERTY TAX DECREASE (a) Automatic Rent Reduction (s. 131) (b) Notice of Automatic Rent Reduction (c) When Rent Reduction Is Not Automatic (s. 133) (d) Calculating Rent Reduction (e) Application to Vary the Amount of the Rent Reduction (s. 132) (i) Introduction (ii) Other Charges (iii) 20% Factor (iv) 15% Factor (v) Mistake in the Notice (vi) Change in Taxes after Notice Issued (vii) Procedure REDUCTION OR DISCONTINUANCE OF A SERVICE OR FACILITY (s. 130) RENT REDUCTION RELATED TO AN AGI ORDER ( COSTS NO LONGER BORNE ) (a) Introduction (b) Utilities (s. 128) (c) Capital Expenditures (s. 129) TENANT S APPLICATION TO RECOVER MONEY COLLECTED OR RETAINED ILLEGALLY Chapter 11 Maintenance Obligations of Landlords INTRODUCTION GOOD STATE OF REPAIR AND FIT FOR HABITATION HEALTH, SAFETY, HOUSING AND MAINTENANCE STANDARDS COMMON MAINTENANCE ISSUES (a) Inadequate Heat (b) Leaks, Floods and Sewer Back-ups (c) Mould (d) Pests

8 xvi Residential Tenancies 5. MAINTENANCE RESPONSIBILITIES IN MOBILE HOME PARKS AND LAND LEASE COMMUNITIES LIMITS ON A LANDLORD S LIABILITY (a) Liability of a New Landlord (b) Tenant s Responsibility for Cleanliness and Damage (c) Notification of the Landlord (d) Objective vs. Subjective Standard (e) Forseeability (f) Mitigation (g) Where Tenant Agrees to Perform Routine Maintenance PROCEDURE REMEDIES FOR BREACH (a) General (b) Terminate the Tenancy (c) Withholding Rent (d) Abatement of Rent (e) Authorize Repairs by Tenant (f) Order Landlord to Do Repairs (g) Damages (h) Order Prohibiting a Rent Increase (OPRI) (i) Any Other Order the Board Considers Appropriate Chapter 12 Other Obligations of Landlords INTRODUCTION TENANT S RIGHT TO PRIVACY vs. LANDLORD S RIGHT TO ENTER THE UNIT OBLIGATION NOT TO ALTER THE LOCKING SYSTEM WITHOUT GIVING KEYS TO THE TENANT (ILLEGAL LOCKOUTS) OBLIGATION NOT TO WITHHOLD OR INTERFERE WITH THE SUPPLY OF VITAL SERVICES OBLIGATION NOT TO INTERFERE WITH THE REASONABLE ENJOYMENT OF THE UNIT/ COMPLEX (a) General (b) Interference with Enjoyment Caused by Repairs/ Maintenance OBLIGATION NOT TO HARASS, OBSTRUCT, COERCE, THREATEN OR INTERFERE WITH A TENANT OBLIGATION NOT TO GIVE A NOTICE OF TERMINATION IN BAD FAITH

9 Table of Contents xvii 8. OBLIGATIONS WITH RESPECT TO EVICTED TENANT S PROPERTY PROCEDURE REMEDIES (a) General (i) Remedies for Breach of Sections (ii) Special Provisions Relating to Illegal Lockouts (iii) Remedies for Bad Faith Notice (s. 57) (iv) Remedies Where Evicted Tenant Is Denied (v) Access to Property (s. 41) Seeking Different Remedies Than Those Listed in the Application (b) Terminate the Tenancy (c) Prohibit Conduct (d) Abatement of Rent (e) Damages (i) Introduction (ii) (iii) Compensation for Lost or Damaged Property and Out-of-Pocket Expenses Moving Expenses and the Difference in Rent (iv) Exemplary and Punitive Damages (v) Aggravated Damages (f) Administrative Fine (g) Any Other Order the Board Considers Appropriate Chapter 13 Obligations of Tenants and Common Applications by Landlords OBLIGATIONS OF TENANTS NON-EVICTION APPLICATIONS (a) General (b) To Determine if the R.T.A. Applies (c) Tenant has Changed Locks (d) For Arrears of Rent (e) Compensation for Damage to the Unit/Complex (f) Abandonment SELECTED EVICTION APPLICATIONS (a) General (b) Unauthorized Occupant (c) No-Fault Grounds for Termination of the Tenancy (i) Landlord Requires Unit (ii) Purchaser Requires Unit (iii) Demolition, Conversion and Renovation

10 xviii Residential Tenancies (d) (iv) (v) A. DEMOLITION B. CONVERSION TO NON- RESIDENTIAL USE C. MAJOR REPAIRS OR RENOVATIONS Termination of Employment of Person Living in a Superintendent s Premises Where there is an Agreement to Terminate or the Tenant has Delivered a Notice of Termination (s. 77) (vi) Other No-fault Grounds (s. 58) A. TENANT CEASES TO MEET QUALIFICATIONS FOR GOVERNMENT HOUSING B. EMPLOYEE NO LONGER EMPLOYED C. INTERIM OCCUPANCY OF CONDOMINIUM Fault Grounds for Termination of the Tenancy (i) Persistent Late Payment of Rent (ii) Non-payment of Rent (iii) Illegal Act (iv) Misrepresentation of Income (v) Impaired Safety (vi) Undue Damage A. TYPICAL CASE B. FAST-TRACK (vii) Interference with Reasonable Enjoyment, etc A. TYPICAL CASE B. FAST-TRACK (viii) Overcrowding (ix) (x) (xi) Applications Based upon a Second Notice of Termination Within Six Months Applications Based upon the Presence of an Animal Breach of a Term of an Order or Mediated Agreement (s. 78) Chapter 14 Relief for Tenants (or How to Avoid Being Evicted ) INTRODUCTION VOIDING A NOTICE TO TERMINATE (FORM N5) BY COMPLIANCE VOIDING A NOTICE TO TERMINATE (FORM N4) BY PAYMENT

11 Table of Contents xix 4. VOIDING AN APPLICATION OR EVICTION ORDER (BASED UPON ARREARS OF RENT) BY PAYING ALL AMOUNTS OWING (s. 74) (a) General (b) Payment Before Eviction Order Becomes (c) Enforceable Payment After Eviction Order Becomes Enforceable (NEW) THE PROVINCIAL RENT BANK PROGRAM RELIEF FROM FORFEITURE (a) General (b) Waiver (c) Subsection 83(1) (i) Refusal of Eviction (ii) Terms and Conditions (iii) Delay of Eviction (d) Subsection 83(3) (e) (i) Serious Breach by the Landlord (s. 83(3)(a)) (ii) Retaliatory Application (s. 83(3)(b), (c), (d)) (iii) Presence of Children (s. 83(3)(e)) Subsections 83(4) and 83(5) Relief When Compensation Has Not Been Paid (f) Setting Aside Ex Parte Orders (g) Preventing Abuses of Process (h) Courts of Justice Act EXPIRATION OF AN EVICTION ORDER Chapter 15 Human Rights Issues In Rental Housing INTRODUCTION (a) What is the Human Rights Code? (b) Recent Amendments to the Human Rights Code (c) 2007 Housing Consultation (d) Role of the Landlord and Tenant Board FREEDOM FROM DISCRIMINATION AND HARASSMENT IN HOUSING (a) What is Discrimination in Rental Housing? (b) What is Harassment Under the Code? (c) Relevant Provisions of the Code (d) Constructive Discrimination (e) Examples of Discrimination in Rental Housing DISCRIMINATION IN THE SELECTION OF TENANTS ACCOMMODATING TENANTS (a) Duty to Accommodate

12 xx Residential Tenancies (b) Responsibilities of Person with a Disability (c) Responsibilities of Landlord ROLE OF THE LANDLORD AND TENANT BOARD (a) Jurisdiction (b) Choice of Forum (c) Onus of Proof (d) Remedies (e) Cases Chapter 16 Proceedings Before the Landlord and Tenant Board INTRODUCTION NOTICES OF TERMINATION SERVICE OF DOCUMENTS (a) Methods of Service (b) Timing of Service of Notice of Termination (c) Timing of Service of the Application and Notice of Hearing (d) Proof of Service THE APPLICATION REPRESENTATION (a) Legal Representation and Self-representation (b) Litigation Guardians PREPARING FOR THE HEARING (a) General (b) Implications of Section NEGOTIATION AND MEDIATION ADJOURNMENTS THE HEARING (a) Types of Hearings (b) Recording Proceedings (c) What to Expect on the Day of the Hearing STANDARD OF PROOF ORDERS AND REASONS REVIEWS (a) Authority of the Board to Review its Decisions (b) Purpose (c) Who Can Request the Review of a Decision? (d) Time Limit (e) Procedure (f) Subsequent Requests for Review (g) Proposed Changes to the Review Process APPEALS (a) Right of Appeal (b) Time Limit (c) Automatic Stay (d) Question of Law

13 Table of Contents xxi (e) Appeals Brought for Improper Purposes (f) Standard of Review (g) Examples (h) Powers of Divisional Court JUDICIAL REVIEW Chapter 17 Enforcing an Eviction Order WHAT IS ENFORCEMENT? WHEN CAN AN EVICTION ORDER BE ENFORCED? PROCEDURE URGENT EVICTIONS ONE LAST CHANCE TO SAVE THE TENANCY WHAT HAPPENS ON THE DAY OF THE EVICTION? WHAT HAPPENS TO THE TENANT S PROPERTY AFTER THE EVICTION? IS THERE ANY WAY A TENANT CAN LEGALLY REGAIN POSSESSION ONCE AN EVICTION ORDER HAS BEEN ENFORCED? Chapter 18 Disposing of Abandoned Property INTRODUCTION UPON DEATH OF TENANT (s. 92) WHEN UNIT ABANDONED (s. 42) MOBILE HOMES AND LAND LEASE HOMES IN ALL OTHER CIRCUMSTANCES (s. 41) REMEDIES AND THE EXPANDED JURISDICTION OF THE LANDLORD AND TENANT BOARD Chapter 19 Penal Sanctions INTRODUCTION (a) General (b) Purpose (c) Onus (d) Types of Offences (e) Attempts (f) Limitation Period (g) Evidence (h) Penalties and Factors Considered on Sentencing (i) Recent Developments (j) Trial Within a Reasonable Period of Time ILLEGAL CHANGE OF LOCKS AND UNLAWFUL RECOVERY OF POSSESSION (a) Unauthorized Change of Locks by Tenant

14 xxii Residential Tenancies (b) Unauthorized Change of Locks by Landlord INTERFERENCE WITH VITAL SERVICES DISTRESS (UNLAWFUL SEIZURE OF GOODS) FAILURE TO COMPLY WITH SECTIONS 52, 54 and FURNISHING FALSE OR MISLEADING INFORMATION (a) False or Misleading Information Given to Board (b) by Landlord False or Misleading Information Given to Board by Tenant ILLEGAL ENTRY FAILURE TO DO WORK OFFENCES RELATED TO SECURITY DEPOSITS (a) Illegal Security Deposit (s. 234(d)) (b) Failing to Repay Deposit (s. 234(g)) FAILURE TO PROVIDE RECEIPT CHARGING ILLEGAL RENT HARASSING OR INTERFERING WITH THE REASONABLE ENJOYMENT OF THE TENANT FAILING TO MAKE AN EVICTED TENANT S PROPERTY AVAILABLE FOR RETRIEVAL NEW OFFENCES UNDER THE R.T.A OFFENCES RELATED TO NON-PROFIT HOUSING CO-OPERATIVES Chapter 20 Mobile Homes and Land Lease Homes INTRODUCTION (a) Definition of Mobile Home (b) Definition of Land Lease Home (c) Application of the R.T.A PARK/ COMMUNITY RULES INFORMATION ABOUT PROPERTY ASSESSMENT TENANT S RIGHT TO SELL (a) General (b) Landlord s Right of First Refusal (c) Advertising ASSIGNMENT OF THE SITE RESTRAINT OF TRADE PROHIBITED LANDLORD S ADDITIONAL MAINTENANCE OBLIGATIONS DISPOSAL OF THE TENANT S HOME AND PERSONAL PROPERTY (a) On Termination of the Tenancy (b) Where Home Abandoned (c) On Death of the Owner

15 Table of Contents xxiii 9. TERMINATION FOR DEMOLITION, CONVERSION OR REPAIRS RENT AND OTHER CHARGES (a) Rent Increase Permitted on Assignment of Site (b) Permitted Charges (c) Exemption from Usual Cap on Rent Increase Above Guideline Based upon Certain Types of Capital Expenditures (d) Collecting Municipal or Local Services Taxes RENTING A MOBILE HOME OR LAND LEASE HOME FROM THE OWNER Chapter 21 Care Homes INTRODUCTION DEFINITIONS APPLICATION OF THE R.T.A CREATING THE TENANCY TENANT PRIVACY ASSIGNMENT/SUBLETTING EXTERNAL CARE PROVIDERS TRANSFERRING THE TENANT RENT AND CHARGES FOR CARE SERVICES TERMINATING THE TENANCY (a) Termination by the Tenant (b) Termination on Death of Sole Tenant (c) Termination by the Landlord (i) General (ii) Termination Based on Agreement (iii) Termination Based on s (iv) Termination Based on Demolition, Conversion or Repairs Chapter 22 Suite Meters (Sub-metering of Electricity) and Apportionment of Utility Costs SUITE METERS (s. 137) (a) Background (b) As of January 1, APPORTIONMENT OF UTILITY COSTS (s. 138) (a) Background (b) As of January 1, Chapter 23 Non-Profit Co-operative Housing INTRODUCTION SITUATION PRIOR TO PROCLAMATION OF BILL IMPETUS FOR CHANGE

16 xxiv Residential Tenancies 4. EFFECTIVE JUNE 1, (a) General (b) Overview of Procedures for Applications under Part V (i) Introduction (ii) Serving and Filing a Complete Application (iii) Notice of Hearings (iv) Service of Notice of Hearings (v) Serving and Filing a Complete Response (vi) The Case Management Hearing (vii) The Merits Hearing (viii) Representation at Hearings (c) Service of Documents (d) Applications Where Notice is Required (i) Introduction (ii) Persistently Late Payment of Housing (e) (iii) Charges Ceasing to Qualify for Specified Housing (iv) Non-payment of Housing Charges (v) Material Misrepresentation of Income (vi) Illegal Act (vii) Undue Damage Normal (viii) Undue Damage Fast-track (ix) Substantial Interference with Reasonable Enjoyment (x) Impaired Safety (xi) Overcrowding (xii) Second Notice Applications Made Without Notice to the Unit Member (i) Introduction (ii) Application under s (iii) Breach of Order or Mediated Agreement (s ) (f) Relief from Eviction (g) Powers of Board (remedies) Appendix 1 Feldman s Quick Reference Guide Appendix 2 Residential Tenancies Act, Appendix 3 Ont. Reg. 516/06 General Ont. Reg. 517/06 Maintenance Standards Ont. Reg. 394/10 Suite Meters and Apportionment of Utility Costs Appendix 4 Forms, Office Locations and Contact Information for the Landlord and Tenant Board

17 Table of Contents xxv Appendix 5 Principles of Conduct for Members of the Landlord and Tenant Board Appendix 6 Mediator s Code of Ethics and Professional Conduct Appendix 7 Landlord and Tenant Board Rules of Practice Appendix 8 Landlord and Tenant Board Interpretation Guidelines and SJTO Practice Directions Appendix 9 Statutory Powers Procedure Act Appendix 10 Mortgages Act Appendix 11 Ont. Reg. 282/98 General Regulation Appendix 12 Human Rights Code Ont. Reg. 290/98 Business Practices Permissible to Landlords in Selecting Prospective Tenants for Residential Accommodation Appendix 13 Ont. Reg. 373/06 Table of Operating Cost Categories for Appendix 14 Annual Rent Increase Guidelines: 1975 to Appendix 15 Parental Responsibility Act, Index