Saturday, November 24, 2012

Certainty in Law Important, But Also a Double Edged Sword

I teach part-time at Humber College, a variety of legal courses to aspiring paralegals.  While I am not teaching Landlord and Tenant Law this semester, students from my other classes come to me with questions because of my long history in this field.  And I'm always happy to oblige.

One thing this has taught me is how hard L&T law is to learn, or to teach for that matter, as it's exacting, specific, unintuitive, and the statute, the Residential Tenancies Act, is massive.

One of my favourite sections of the Residential Tenancies Act has always been s.3 which sets out that the statute applies, notwithstanding ANY waiver or agreement to the contrary.  So no provisions of the lease or a private agreement that contravene the Act are enforceable.  This includes agreements on rent increases, damage deposits, who will shovel the snow and cut the grass, pets etc.

But sometimes s.3 when combined with case law from the Courts comes back to bit you.  I had an interesting case this past week with one of my clients who went to the Board on their own.  A very problematic tenant in social housing had decided to move out after some urging by the landlord, and provided the landlord with an LTB form N9, a notice to end the tenancy.  The N9 was signed and dated for October 31st.  The N9 was given to the landlord on October 15th.  The landlord accepted the notice, thrilled that this problematic tenant was finally moving on.

But the tenant didn't leave, so the landlord filed an L3 application to the Board, and several weeks later the tenant and landlord faced an adjudicator, the landlord wanting the Board to enforce the LTB notice, while the tenant now wished to stay.  Important legally was the fact that the landlord had provided some relief in the form of money, consideration, in return for the tenant's signing of the N9.  This would normally solidify an agreement offered and accepted, assuming it was made in good faith.

But the Member, not incorrectly, refused to enforce the N9 and end the tenancy.  She did this because the Act clearly sets out that when a tenant gives notice, it must be at least a 60 day notice effective the last day of the rental period.  In this case, it was just 15 days.  A case from the Ontario Divisional Court in 2002 set out that a notice from a tenant wishing to terminate a tenancy, must meet the same strict requirements of a landlord's notice, that is.....perfection.  Other decisions make it crystal clear that you can't contract out of the statute, even when the parties agreed to do so.  So short notice equaled dead notice.  The case was dismissed.

There are two lessons here for landlords.  First, when a tenant comes to you and gives you an N9 notice to move out and you want certainty so that you can re-rent the unit, you can't rely on a notice that is not 60 days in length and effective on the last day of a rental period (or last day of a lease term, if term remains).  If you want to be able to rely on the notice, you must ask the tenant to sign an LTB form N11 jointly with you, as this Agreement to Terminate the Tenancy is not a notice and therefore not covered by the same rules as a notice which are set out in ss. 37, 43 and 44 of the Act.

One other lesson.  A good paralegal would have argued that despite the outward appearance of the N9 notice, that it was really in essence an N11 agreement.  After all, there had been an offer, acceptance, consideration, capacity, legality etc.  The Residential Tenancies Act and the Legislation Act set out that substantial compliance with forms and their contents is sufficient.  And finally, the Residential Tenancies Act in s.202 directs the Member to turn his or her mind to the true nature of all transactions and activities when making any finding of fact. 

3 comments:

Greg Lafontaine said...

Very interesting thoughts, thank for that.

The Landlord said...

If one has a signed LTB form N11 will the police enforce it? Or do you still have to jump through the expensive and ridiculously stupid hoops at the Landlord and Tenant Board to get an eviction order that the Sheriff will enforce if and when he feels like it?

I would be interested in a response to this question, as unless this form is actually enforcable, we are DONE.

And people wonder why there is so little affordable housing in Ontario!

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