Our readers will probably know that a minimum notice of termination for month-to-month tenancies is 60 days with the termination date falling on the last day of the rental period.
However, some people don't know that a month-to-month tenancy can also be assigned / transferred, just like a tenancy with a fixed lease term. See RTA section 95(9):
"Application of section
(9) This section applies with respect to all tenants, regardless of whether their tenancies are periodic, fixed, contractual or statutory, but does not apply with respect to a tenant of superintendent’s premises. 2006, c. 17, s. 95 (9)."
Please see LTB rulings below (*) that demonstrate it. If the tenancy agreement prohibits assignment, it would be a void clause (see RTA section 4), since it would go against RTA section 95.
The advantage that this provides is that, if the tenant has been living in the same unit for many years, but wants to vacate with a shorter notice, he can actually still request assignment. If the landlord declines (in general) or does not reply within 7 calendar days, the tenant can then issue a 30 days' N9 notice of termination, and the termination date does not even have to fall on the last day of the rental period then. The tenant would have up to 30 days after his assignment request to make that decision (see RTA subsection 95(4)).
Some landlords would refuse an assignment in general / in principle (which is their right), because starting a new tenancy allows to set higher rent, whereas assignment legally has to be done for the same rent amount. Besides, landlords cannot decline specific assignees "arbitrarily or unreasonably" (see RTA subsection 95(5)), and this limits landlords' ability to control who could end up being the next tenant, whereas starting a new tenancy allows landlords to decline applicants without even stating why.
If the landlord accepts assignment, the tenant can proceed with proposing potential assignees or could still choose to terminate in some other way, if he prefers.
Some other methods of early termination:
1)
Asking for an N11 mutual agreement of termination: many landlords would sign an N11, especially if they have other plans for the property, or if current rent is below market rent, or if there are concerns about the tenant's ability to pay rent going forward, or if the relationship is acrimonious, or if the landlord is expecting the tenant to file with the Board or to involve bylaws enforcement, etc.
2)
Or, if there are major maintenance issues, a tenant could request Remedy 8 (early termination of the tenancy agreement) on a T6 application about maintenance, alongside other possible remedies.
Early termination is also one of the available remedies on a T2 application about tenant rights (Remedy 4).
Often a landlord would be happy to sign an N11 mutual agreement of termination if he believes that the tenant will be filing with the Board and asking for remedies anyway.
3)
And if the tenant doesn't use any of the legal methods of termination and just vacates with a short written notice, the landlord can sue for loss of rental income, but he would have to show that he actually minimized his losses for the tenant's breach (RTA section 16, RTA subsection 88(4)) by trying to re-rent the unit right away. As soon as a new tenant is found, the previous tenant's obligation would stop since "double dipping" is not allowed, i.e. the landlord cannot collect rent from more than one tenancy for the same leased premises for the same period of time (RTA subsection 88(3)).
For example, if the tenant vacates with a written notice stating that he is vacating on the same day, and if the landlord finds another tenant for Day 15, the landlord can sue for loss of rental income only for 14 days (pro-rated based on per diem calculation). In fact, if the landlord still holds Last Month's Rent (LMR) deposit from the tenant, a portion of that LMR deposit would be paying for these 14 days (pro-rated), and the landlord would have to return the remainder of the LMR deposit to the tenant to prevent "double dipping". If the landlord failed to do so, the tenant could file a T1 application at the LTB to claw back the funds. Please get legal advice if you find yourself in a situation of a short notice.
4)
If a notice of termination was already issued, could another (shorter) notice of termination still be issued, and could the new notice be used to vacate earlier?
The answer is probably "yes".
See an LTB example below:
"1. The Tenant served an N-9 Notice to Terminate Tenancy upon the Landlord with a termination date of November 30, 2011.
2. The Landlord accepted such notice by letter dated October 4, 2011.
3. The Landlord and Tenant thereby entered into an agreement to terminate the tenancy pursuant to which the Tenant agreed to move out of the rental unit on or before November 30, 2011. The Tenant’s last month’s rent deposit was to be applied against rent otherwise due for the month of November, 2011.
4. Subsequently, the Landlord served a Form N-5 Notice to Terminate a Tenancy Early upon the Tenant. The termination date set forth on such notice was November 10, 2011.
5. The Tenant moved out of the rental unit pursuant to such Form N-5 on November 5, 2011. In this application the Tenant requests return of a pro-rated portion of the November, 2011 rent.
6. The Landlord takes the position that the Tenant was wrong to move out in accordance with that Notice. The Landlord’s view is that the agreement to terminate takes precedence over the Landlord’s own and subsequent Form N-5 Notice. The Board cannot agree. If the Landlord intended to rely upon the original N-9 Notice and the agreement to terminate, then the Landlord ought not to have breached that agreement by serving a new Form N-5.
7. The Landlord submits that the Tenant “unilaterally” moved out of the rental unit after receipt of the Landlord’s Form N-5. On the contrary, it was the Landlord who acted unilaterally.
8. The Tenant was entitled to accept the Landlord’s breach and to move out of the rental unit on or before November 10, 2012. It was incumbent upon the Landlord not to serve a Form N-5 Notice to Terminate if it did not mean it.
9. This case is distinguishable upon its facts from Pajelle Investments Ltd. v. Braham [1993] O.J. No. 261, a decision of Chapnick, J. submitted in argument by the Landlord. In that case, decided under the now-repealed residential tenancy sections of the Landlord and Tenant Act R.S.O. 1980, c. 232 as amended, the court found that the Landlord was entitled to prospective rent in lieu of notice.
10. In this case, the Tenant simply accepted the Landlord’s new Notice of Termination. The Landlord is entitled to compensation up to the date that the Tenant moved out of the rental unit.
[...]
13. The portion of the Tenant’s November, 2011 rent attributable to the period after November 5, 2011 was wrongly withheld by the Landlord and must be repaid to the Tenant. Otherwise, the Landlord would be unjustly enriched to that extent. There is no juridical basis for such enrichment.
14. The Landlord collected rent in excess of the amount allowed by the Act.
15. The per diem rate of compensation owing to the Landlord is $38.01 per day ($1,159.32 X 12 months divided by 366 days equals $38.01).
16. The Tenant owed $190.05 in compensation to the Landlord for occupancy of the unit for the first 5 days of November, 2011.
17. The Landlord must repay the Tenant $969.27 ($1,159.32 – $190.05 = $969.27.)"
There are other ways to move out early:
____________________________
LTB examples that show that month-to-month (or other periodic) tenancies can be assigned:
1)
"4. The Tenant was absolutely correct in that she had the right to make this request to the Landlords. The only mistake she made was to say she wanted to assign her tenancy for 12 months. Assignment means that a new tenant takes the place of the Tenant and the tenancy agreement remains exactly the same; the new tenant steps into the place of the old and the tenancy agreement itself simply continues. Here the Tenant has an indefinite month to month tenancy so assigning it for twelve months makes no sense. The assignment could only be for a month to month indefinite term because that is what the Tenant has under the tenancy agreement.
[...]
11. That is why subsection 95(1) gives tenants the right to assign their rental unit. This right to assign is subject to the landlord’s consent. Where the landlord refuses consent the tenant has the right to terminate the tenancy on 30 days’ notice.
12. Where the requested consent is to assign to a specific named individual, the Act gives additional rights to the requesting tenant. Subsection 95(5) says that a landlord shall not arbitrarily or unreasonably refuse consent to a potential assignee. So where a tenant goes to the trouble of finding a replacement tenant, the landlord has a positive obligation to act reasonably in response. At a minimum, this means giving the potential assignee an opportunity to apply for the rental unit."
2)
"[15] The rules for assigning a rental unit are found in section 95 of the Act. The Tenant could have assigned the rental unit to a potential assignee, U.K., on June 1, 2009, but for an unreasonable policy decision made by the Landlord that effectively withheld consent to the assignment of the rental unit to the potential assignee, contrary to subsection 95(5) of the Act.
[16] As far as the Tenant was aware, her rent deposit was applied to the June 2009 rent. Pursuant to paragraph 4 of subsection 98(3) of the Act, the Tenant is entitled to an abatement of rent totalling $764.65, which is the rent for June 2009."
3)
"4. On July 12, 2017, the Tenant provided the Landlord with a written request to assign the tenancy, effective August 1, 2017. The Tenant’s request to assign was accompanied by a reference letter, employment contract and credit score letter for the prospective assignee. The Tenant’s letter further states, in the event his request to assign is denied, he intends to give the Landlord a 30-day notice of termination from the date the assignment request was received.
5. On July 12, 2017, the Landlord replied stating the Tenant cannot assign the tenancy as he is a month-to-month Tenant. The Landlord goes on to point out there are two leaseholders, the Tenant and NH, and asks if NH is also vacating the unit. The Landlord also states both leaseholders must provide a sixty-day written notice of termination.
6. The Landlord’s July 12th reply illustrates a confusion about the rights accorded to tenants in the Residential Tenancies Act, 2006 (the 'Act') where a tenant requests consent to assign the tenancy. I agree with Vice-Chair Carey’s pronouncement in TST-79414-17, where she states, in part, as follows:
“This reply by the Landlords reflects a common problem with a lack of understanding about the difference between assignment or subletting. To put it simply, assignment is where the tenancy continues unchanged except for the identity of the tenant; subletting is where the tenant remains in control of and responsible to the landlord for the rental unit but someone else lives there for a fixed period of time and is responsible to the tenant until the fixed period ends and the tenant moves back in. “
7. As Vice-Chair Carey stated at paragraph 4 in TST-79414-17, and in the instant case, “[t]he assignment could only be for a month to month indefinite term because that is what the Tenant has under the tenancy agreement.”
8. Had the Tenant here asked for the Landlord’s consent to sublet, as the tenancy agreement between the parties was, as at July 12th, a month-to-month tenancy, meaning that its period or term is only one month, the only sub-tenancy the Tenant could offer a prospective subtenant would be for, in this case, less than a month.
[...]
11. Subsection 95(1) gives tenants the right to assign their rental unit and this right to assign is subject to the landlord’s consent. Where the landlord refuses consent, as was the case here, the tenant has the right to terminate the tenancy on 30 days’ notice. In this case, the impact of the Landlord arbitrarily or unreasonably refusing to consent to an assignment of the unit as at July 12, 2017, when the Landlord initially responded to the Tenant as outlined in the preceding paragraph, is that it triggered section 96 of the Act, which states:
(1) A tenant may give notice of termination of a tenancy if the circumstances set out in subsection 95 (4) apply.
(2) The date for termination specified in the notice shall be at least a number of days after the date of the notice that is the lesser of the notice period otherwise required under this Act and 30 days.
12. Accordingly, the Tenant had the right to give the Landlord a notice of termination on July 12, 2017 with a termination date of August 11, 2017."
1. If the tenant vacates early and the landlord re-rents for lower rent, is the tenant on the hook for the difference in rent for the fixed lease term?
2. How many months of loss of rental income can be claimed realistically?
3. How would a landlord prove minimization of losses?
4. What if the unit requires painting before being rented out?
5. Can the landlord charge administrative expenses?
6. Can the tenant pay for an N11 agreement?
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