1.
Compensation for issuing an N13
(RTA s. 52 & 54)
- if it's for extensive repairs / renovations and if, before vacating, the tenant does NOT provide a notice of his intent to exercise his right of first refusal under RTA section 53:
- if it's for extensive repairs / renovations and if, before vacating, the tenant provides a notice of his intent to exercise his right of first refusal under RTA section 53:
- an amount equal to the rent for the lesser of 1 month and the period the unit is under repair or renovation, if the unit is in a residential complex with fewer than 5 units (RTA ss. 54(4));
- an amount equal to the rent for the lesser of 3 months and the period the unit is under repair or renovation, if the unit is in a residential complex with 5 units or more (RTA ss. 54(2)).
2.
What qualifies as a "residential complex"?
10. The Tenants’ representative argued that the group of homes being converted to non residential use form a common residential complex. The Tenant’s representative requested that the Landlord be required to pay compensation in an amount equal to three months rent.
11. The Landlord’s representatives acknowledged that at least 5 rental units (detached individual homes) have been served with the Notice to Terminate a Tenancy at End of the Term For Conversion, Demolition or Repairs Form N13. The Landlord argued that each rental unit stands alone and noted that each unit has a unique residential address. The Landlord disputed the Tenants suggestion that the collective grouping of converted rental units form a residential complex of at least 5 units.
12. Sub-section 2(1) of The Residential Tenancies Act 2006 defines a rental unit to mean: “any living accommodation used or intended for use as rented residential premises...”
13. Sub-section 2(1) of The Residential Tenancies Act 2006 also defines a residential complex to mean: “(a) a building or related group of buildings in which one or more rental units are located...”
14. During the hearing it was disclosed that the Tenants’ rental unit does not have its own unique land registration. The Tenants’ individual home can not currently be sold alone. The Landlord’s advertised sale of the property identifies that all rental units are collectively included under the single property sale listing.
15. The Tenants’ rental unit does not have its own unique property assessment (MPAC) nor does it have a unique / separate municipal property tax bill. All of the rental units are grouped together under the same assessment for property tax purposes.
16. The Tenants’ representative identified that the common road that fronts each rental unit is owned and maintained by the Landlord. The Landlord also owns the water supply pump house and infrastructure that supplies water to the rental units.
17. The Landlord’s application contains correspondence from (former land owner) which identifies the rental unit housing site as former (PM) housing complex.
18. I determine that Tenants’ the rental unit, along with the other rental units being converted to non residential use, meet the definition of a ‘residential complex’ because they are a related group of buildings.
19. Pursuant to section 52 of The Residential Tenancies Act 2006, I find that the Landlord is required to pay $1,551.00 to the Tenants. This is an amount equal to three months rent."
3.
Right of First Refusal
(RTA s. 53)
4.
Remedies
(RTA ss. 57(3))
- 795 College Inc. is the landlord of an eight-unit apartment building.
- In late 2016, 795 College Inc. gave the tenants notice to end their tenancies to do extensive renovations.
- Tenants may have a "right of first refusal" to move back into the rental unit once renovations are complete by giving written notice to the landlord before moving out. The rent when the tenant moves back in must be the same as if there had been no interruption in the tenancy.
- Tenants in three rental units gave written notice to 795 College Inc. that they wanted to move back in once renovations were complete.
- In November 2017, 795 College Inc. rented the three units to different tenants at over three times the previous rent. The previous tenants did not move back in.
- In addition to the fines imposed by the Court, the Landlord and Tenant Board ordered 795 College Inc. to pay administrative fines totaling $75,000 for not letting the previous tenants move back in."
5.
Where is the exact line between extensive renovations and demolitions?
Two examples within the same building, where the same project resulted in renovation of some units but demolition of others
6. The same renovation is proposed for 105 and 106.
7. The second-floor units will also change but with the exception of unit 207 the front door will all remain in the same place though the interior of the units will be substantially altered.
8. The Landlord intends to entirely remove the three units located in the basement and convert the basement into a large communal kitchen featuring 4 full-sized stoves and large eating areas. The Landlord also intends to create a separate storage area in the basement.
9. The Landlord intends to maintain the façade and other elements of the building that make it unique in accordance with the City’s requirement.
10. The Landlord’s proposed changes also entail significant reconfiguration of each unit on the upper three floors:
a. Removing the kitchenette from each rental unit and installing a 3-piece bathroom in each unit, except for proposed unit 101 which may have two bathrooms although that has not yet been decided.
b. Many of the interior walls will be knocked down and moved to accommodate the new bathrooms;
c. The floor joists, plumbing and electrical will be removed and replaced to accommodate the new layout and two of the units will lose a substantial percentage of floor space to accommodate the new bathrooms;
d. Those units that previously had a closet will be losing their closets.
e. Removal of the existing radiant heat system and replacing it with individual heat pumps for each unit.
f. The square footage of each unit will change.
11. The changes proposed on the ground floor would result in demolition of the existing 8 units and turning them into 6 units. The four units at the front of the property will be combined into two much larger units.
12. This particular unit is 205 which is being expanded such that its existing kitchenette is removed, and some internal walls removed to allow for a 3-piece bathroom. However, its main door and rest of the livable space will continue to exist.
[...]
25. In this case the Tenant is interested in securing a right of first refusal once the work is finished, and my decision to amend the notice to include renovation accomplishes exactly that. It will also provide the parties to have certainty and ensures that everyone’s resources are utilized in the most efficient and proportionate manner.
26. I have no doubt that had I dismissed the application in summary fashion, the Landlord would file it again claiming both demolition and renovation. While this would provide the Tenant with more time, the result would almost certainly be the same in the end.
Is the proposed work a Renovation or demolition?
27. The Tenant called J K (JK) who works in the City Planning Division. He testified that he would characterize the work as a significant interior alteration. He explained that such an alteration would necessitate a building permit and almost always as in this case, would require vacant possession because the work will be extensive and will require disconnecting plumbing and electrical shafts as well as the demolition of load bearing walls. JK confirmed that the Landlord had obtained the correct permit for the type of interior alternation they described.
27 JK also noted that there is a separate permit for demolition, which the Landlord has not obtained. The scope of the work covered by a demolition permit is different from that contemplated by the Landlord. A demolition permit would be required if the Landlord planned to demolish the entire structure of the building and start afresh from the ground up.
28 The Landlord’s witness, their general contractor, J M R (JMR) asserts that the work, as contemplated, will result in the deconstruction and demolition of internal supporting walls and reconfiguration of the space in some of the units such they will no longer exist, or will be so altered that they are substantially different.
Analysis
29 Whether or not the work the Landlord intends to perform is a “renovation” or a “demolition” is of significance. If the work is correctly characterized as a renovation, the Tenants have a right of first refusal to the rental unit once the renovations are complete as per sections 50(3) and 53 of the Act. There is no such right if the unit is instead demolished. Neither of these terms is defined in the Act.
30 This very question was recently considered by the Divisional Court in Two Clarendon Apartments Limited v. Sinclair, 2019 ONSC 3845 (CanLII). I provided a copy of this decision to the parties’ legal representatives.
31 In Two Clarendon Apartments the Landlord’s work to the tenant’s unit involved extensive alterations that included the replacement of the floor joists, replacement of the plumbing system, removal and replacement of some of the unit’s walls, floors and ceilings, the conversion of the two-bedroom apartment into a one-bedroom unit, changing the location of the kitchen and the creation of a second bathroom. However, the work would keep the outer boundary of the unit intact and the front door of the unit in about the same position.
32 The key issue before the Board was whether the work constituted a renovation or a demolition for the purposes of s. 50(1) of the Act. The Board concluded that there was a renovation because the unit would be available in the same floor space, albeit reconfigured and extensively rebuilt. The Board considered the language of s. 50, especially the right of first refusal of a tenant pursuant to s. 50(3) if a unit is renovated. The Board also considered the purpose of this section, especially the tenant protection goal underlying s. 50(3).
33 The Board found as follows at paras. 13 and 14 of its order:
13. In a situation where the rental unit continues to exist, albeit in an extremely altered form, it is possible for the tenant to exercise a right of first refusal, because the rental unit is still there: the tenant may move back and continue the tenancy. In a situation where the rental unit is gone, it is not possible for the tenant to exercise a right of first refusal: the rental unit is no longer there and so the tenant cannot move back. The fact that the Act distinguishes renovations and demolitions by the tenant’s right of first refusal shows that the intention of these sections of the Act is to preserve tenancies where it is possible to do so.
14. Accordingly, a project will be defined as a renovation under the Act in a case where it is possible for the tenant to move back into the unit and a project will be defined as a demolition where it is not possible for the tenant to move back into the unit.
34 The Divisional Court upheld the Board’s decision and concluded at paragraph 10 that “. the Board’s approach to the definition of demolition was reasonable and consistent with the Act and modern principles of statutory interpretation.”
35 The Divisional Court also found that the Board’s decision in Two Clarendon Apartments was consistent with the result in Corbett v. Lanterra Developments, 2014 ONSC 3297 (CanLII) (Div. Ct.), at para. 14, where there was a demolition permit, and the construction resulted in different units from those demolished, so that the tenant could not move back into the rental unit.
36 In this case, the work proposed at the residential complex will result in some of the units ceasing to exist in any form, while other units will continue to exist after the work has been completed albeit their exact configurations and amenities will have been altered.
37 With respect to this particular unit, I find that the Landlord’s proposed work constitutes an extensive renovation, and not demolition, because the work proposed is a substantial alternation of the rental unit but will result in the unit continuing to exist, such that a Tenant can still walk in and occupy it afterwards.
38 Having found that the Landlord’s intended work constitutes extensive renovations requiring a building permit and vacant possession, I must consider whether the Landlord has met all of the other requires of s. 73.
39 I am satisfied on the totality of the submission of both parties that the Landlord intends in good faith to carry out the renovations as required by s.73(a) of the Act. This is evident by the fact that the Landlord has already started work on the 3rd floor of the residential complex.
40 I am also satisfied that the Landlord has obtained the necessary permits for this work as mandated by s. 73(b) of the Act. The Landlord supplied a copy of the permits issued by the City of Toronto Permit’s office.
41 On the evidence of both parties, I am also satisfied that the Landlord requires vacant possession to proceed given the scope of the work and its impact upon the rental unit.
42 I am also satisfied that the Landlord has paid the compensation equal to at least three months rent as required section by 54 of the Act. The Landlord initially provided the Tenant with compensation and notice in or about the month of October 2018. The Tenant declined to cash the cheque issued by the Landlord and as a result the cheque was likely staled dated by the date of the first appearance before me which was June 11, 2019. The Landlord has replaced the cheque. There is no dispute that the Landlord paid $1827.00 in compensation to the Tenant on June 26, 2019 which is equal to 3 month’s rent.
43 Therefore, the Landlord is entitled to an order terminating the tenancy because it intends to do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit
Section 83 Considerations:
44 The Tenant says that’s she would vacate but she requires money for first and last because she is broke. She also like to remain in the rental unit because it is 20-30 minutes to get to work and would ideally like to stay.
45 I note that these parties have been before the Board on five occasions now. The building is mostly vacant. The Landlord has obtained permits and the Tenants have been aware since at least October 2018 that the Landlord wished to undertake the work.
46 The Tenants went to extraordinary measures to forestall the proposed including lobbying their MPP and City Councillor. They also applied unsuccessfully to have the property designated a heritage building by the City Heritage Committee. Thus, the Tenant has already benefitted from a lengthy delay in the termination of the tenancy.
47 I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until August 31, 2019 pursuant to subsection 83(1)(b) of the Act."
19. JK also noted that there is a separate permit for demolition, which the Landlord has not obtained. The scope of the work covered by a demolition permit is different from that contemplated by the Landlord. A demolition permit would be required if the Landlord planned to demolish the entire structure of the building and start afresh from the ground up.
20. The Landlord’s witness, their general contractor, J M R (JMR) asserts that the work, as contemplated, will result in the deconstruction and demolition of internal supporting walls and reconfiguration of the space in some of the units such they will no longer exist, or will be so altered that they are substantially different.
21. There is no dispute that the Landlord paid $1740.00 in compensation to the Tenant on June 26, 2019 which is equal to 3 month’s rent.
Analysis
22. Whether or not the work the Landlord intends to perform is a “renovation” or a “demolition” is of significance. If the work is correctly characterized as a renovation, the Tenants have a right of first refusal to the rental unit once the renovations are complete as per sections 50(3) and 53 of the Act. There is no such right if the unit is instead demolished. Neither of these terms is defined in the Act.
23. This very question was recently considered by the Divisional Court in Two Clarendon Apartments Limited v. Sinclair, 2019 ONSC 3845 (CanLII). I provided a copy of this decision to the parties’ legal representatives.
24. In Two Clarendon Apartments the Landlord’s work to the tenant’s unit involved extensive alterations that included the replacement of the floor joists, replacement of the plumbing system, removal and replacement of some of the unit’s walls, floors and ceilings, the conversion of the two-bedroom apartment into a one-bedroom unit, changing the location of the kitchen and the creation of a second bathroom. However, the work would keep the outer boundary of the unit intact and the front door of the unit in about the same position.
25. The key issue before the Board was whether the work constituted a renovation or a demolition for the purposes of s. 50(1) of the Act. The Board concluded that there was a renovation because the unit would be available in the same floor space, albeit reconfigured and extensively rebuilt. The Board considered the language of s. 50, especially the right of first refusal of a tenant pursuant to s. 50(3) if a unit is renovated. The Board also considered the purpose of this section, especially the tenant protection goal underlying s. 50(3).
26. The Board found as follows at paras. 13 and 14 of its order:
13. In a situation where the rental unit continues to exist, albeit in an extremely altered form, it is possible for the tenant to exercise a right of first refusal, because the rental unit is still there: the tenant may move back and continue the tenancy. In a situation where the rental unit is gone, it is not possible for the tenant to exercise a right of first refusal: the rental unit is no longer there and so the tenant cannot move back. The fact that the Act distinguishes renovations and demolitions by the tenant’s right of first refusal shows that the intention of these sections of the Act is to preserve tenancies where it is possible to do so.
14. Accordingly, a project will be defined as a renovation under the Act in a case where it is possible for the tenant to move back into the unit and a project will be defined as a demolition where it is not possible for the tenant to move back into the unit.
27. The Divisional Court upheld the Board’s decision and concluded at paragraph 10 that “ .. the Board’s approach to the definition of demolition was reasonable and consistent with the Act and modern principles of statutory interpretation.”
28. The Divisional Court also found that the Board’s decision in Two Clarendon Apartments was consistent with the result in Corbett v. Lanterra Developments, 2014 ONSC 3297 (CanLII) (Div. Ct.), at para. 14, where there was a demolition permit, and the construction resulted in different units from those demolished, so that the tenant could not move back into the rental unit. where the they deemed the proposed work to be a renovation because the Tenant could walk back into essentially the same unit.
29. Conversely therefore, any substantial alteration of the rental unit which results in the rental unit ceasing to exist will be a demolition. See TSL-51257-14-RV at paragraph 27.
30. In this case, the work proposed at the residential complex will result in some of the units ceasing to exist in any form, while other units will continue to exist after the work has been completed albeit their exact configurations and amenities will have been altered.
31. With respect to this particular unit, I find that the Landlord’s proposed work constitutes a demolition, because the work proposed is a substantial alternation that will result in the rental unit ceasing to exist after the work is completed. It will be impossible for the current tenants of the affected units to “walk: back into their units as they will be gone.
32. I am satisfied that the Landlord intends in good faith the demolition as required by s.73(a) of the Act. This is evident by the fact that the Landlord has already started work on the 3rd floor of the residential complex.
33. I am also satisfied that the Landlord has obtained the necessary permits for this work as mandated by s. 73(b) of the Act. the Landlord supplied a copy of the permits issued by the City of Toronto Permits office.
34. On the evidence of both parties, I am also satisfied that the Landlord requires vacant possession to proceed given the scope of the work and its impact upon the rental unit.
35. I am also satisfied that the Landlord has paid the compensation equal to at least three months rent as required by section 54 of the Act. The Landlord initially provided the Tenant with compensation and notice in or about the month of October 2018. The Tenant declined to cash the cheque issued by the Landlord and as a result the cheque was likely staled dated by the date of the first appearance before me which was June 11, 2019. The Landlord has replaced the cheque.
36. Therefore, I am satisfied that the work contemplated by the Landlord constitutes a demolition as contemplated under s. 50(1)(a) of the Act and the work is so that they require a building permit and vacant possession of the rental unit.
Section 83 Considerations:
37. This Tenant has resided in the rental unit for 16 years and anticipates some difficulty in finding suitable alternative dwelling. He is seeking up to six months to find somewhere else to live.
38. He explained that there are very few vacant units in his budget and would rather not have to move.
39. I note that these parties have been before the Board on five occasions now. The building is mostly vacant. The Landlord has obtained permits and the Tenants have been aware since at least October 2018 that the Landlord wished to undertake the work.
40. The Tenants went to extraordinary measures to forestall the proposed including lobbying their MPP and City Councillor. They also applied unsuccessfully to have the property designated a heritage building by the City Heritage Committee. Thus, the Tenant has already benefitted from a lengthy delay in the termination of the tenancy.
41. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until August 31, 2019 pursuant to subsection 83(1)(b) of the Act."
6.
Permits, allowable use, good faith claim, other considerations
"Termination for demolition/renovation/conversion
Section 50(1) of the RTA allows a landlord to serve a notice of termination if the landlord intends to:
- demolish the rental unit;
- convert it to a purpose other than residential premises; or
- do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
The termination date in the landlord's notice of termination must be at least 120 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, the last day of a rental period. This notice is often referred to as a "Form N13". Also see the above discussion about the consequence of an incorrect termination date on the notice.
After being given the notice, the tenant is allowed to terminate the tenancy at an earlier date by giving the landlord ten days written notice.
Demolition
If a tenant is given a notice because the rental unit is being demolished and is located in a residential complex that contains at least five residential units, the landlord must give the tenant an amount equal to three months' rent or offer the tenant another rental unit that is acceptable to the tenant. This requirement does not apply if the landlord has been ordered to demolish the residential complex.
If on or after July 21, 2020, a tenant is given a notice because the rental unit is being demolished and is located in a residential complex that contains fewer than five residential units, the landlord must give the tenant an amount equal to one months' rent or offer the tenant another rental unit that is acceptable to the tenant.
No compensation is required if the landlord has been ordered to demolish the residential complex.
Whether or not the intended activity constitutes "demolition" is discussed in these LTB orders: TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB); TSL-05299-10 (Re), 2010 CanLII 76078 (ON LTB).
The requirement to pay compensation does not apply to most social housing rental units. See section 7 of the RTA.
Conversion
If a tenant is given a notice because the rental unit is being converted to a non-residential use and is located in a residential complex that contains at least five residential units, the landlord must give the tenant an amount equal to three months' rent or offer the tenant another rental unit that is acceptable to the tenant. See for example: NOL-07899 (Re), 2009 CanLII 77993 (ON LTB).
If on or after July 21, 2020, a tenant is given a notice because the rental unit is being converted to a non-residential use and is located in a residential complex that contains fewer than five residential units, the landlord must give the tenant an amount equal to one months' rent or offer the tenant another rental unit that is acceptable to the tenant.
The requirement to pay compensation does not apply to most social housing rental units. See section 7 of the RTA.
Whether or not the intended activity constitutes conversion to a non-residential use is discussed in these LTB orders: TSL-66897-15 (Re), 2015 CanLII 99152 (ON LTB); TSL-12596 (Re), 2009 CanLII 51178 (ON LTB).
Whether the landlord intends in good faith to convert the rental unit to a non-residential use is discussed in these LTB orders: TSL-66668-15 (Re), 2015 CanLII 94900 (ON LTB); SOL-14849-11 (Re), 2011 CanLII 34688 (ON LTB).
Renovation/repair
If a tenant is given a notice because of extensive repairs or renovations, the tenant can choose to move back into the rental unit after the repairs or renovations are complete. The rent must be the same as the rent before the tenancy was terminated. Before the tenant moves out, the tenant must inform the landlord in writing of their intent to re-occupy the rental unit. The tenant also has to keep the landlord informed in writing of any change in their address.
If the rental unit is located in a residential complex that contains at least five residential units and the tenant does not give the landlord a written notice stating that they want to move back after the repairs are completed, the landlord must give the tenant an amount equal to three months' rent or offer another rental unit that is acceptable to the tenant.
If on or after July 21, 2020, a tenant is given a notice because the rental unit is being repaired or renovated and is located in a residential complex that contains fewer than five residential units and the tenant does not give the landlord a written notice stating that they want to move back after the repairs are completed, the landlord must give the tenant an amount equal to one month’s rent or offer another rental unit that is acceptable to the tenant.
If the tenant lives in a residential complex that contains at least five residential units and gives written notice that they will be moving back into the rental unit once the repairs are complete, the landlord must give the tenant an amount equal to the rent for the lesser of three months and the period of time that the unit is undergoing repairs or renovations.
If on or after July 21, 2020, a tenant is given a notice because the rental unit is being repaired or renovated and is located in a residential complex that contains fewer than five residential units and the tenant gives written notice that they will be moving back into the rental unit once the repairs are complete, the landlord must give the tenant an amount equal to the rent for the lesser of one months’ and the period of time that the unit is undergoing repairs or renovations.
Compensation is not required if the landlord has been ordered to do the repair or renovation or if the tenant resides is a social housing rental unit.
Whether vacant possession is necessary for the landlord to do the repairs or renovations is discussed in these LTB orders: TSL-81965-17 (Re), 2017 CanLII 28702 (ON LTB); SOL-14870-11 (Re), 2011 CanLII 101419 (ON LTB).
Mobile Homes and Care Homes
If the landlord is giving the notice because the landlord will be converting, demolishing, repairing or renovating a site on which a tenant-owned mobile home or land lease community home is located, the landlord must give the tenant: (a) a minimum of one year's notice; and (b) compensation equal to one year's rent, or $3,000, whichever is less.
There are also special rules that apply to care homes, including a requirement that the landlord make reasonable efforts to find the tenant suitable alternate accommodation.
Application and issues the LTB will address at the hearing
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.
At the hearing the landlord must prove, on a balance of probabilities, that he or she in good faith intends to carry out the activity specified in the notice of termination. That means that the LTB must decide whether it is more likely than not the landlord will carry out the activity within a reasonable time after the unit becomes vacant.
The landlord must also prove that he or she has:
- obtained all of the necessary permits or other required authority or taken; or
- taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity, if it is not possible to obtain the permits or other authority until the rental unit is vacant. [See for example: TSL-81104-17 (Re), 2017 CanLII 28544 (ON LTB).]
LTB Order and relief from eviction
After holding a hearing, the LTB may issue an eviction order if the landlord has proven their case. The eviction enforcement date cannot be before the termination date in the notice.
Even where the LTB finds that the landlord or purchaser requires the unit in good faith or intends to carry out the activity described in the notice, under section 83 of the RTA the LTB must consider, having regard to all the circumstances, whether to refuse to grant the application or to postpone the eviction. In some cases, refusing or delaying the eviction is discretionary. See for example: TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB); NOL-15753-14-RV (Re), 2014 CanLII 57596 (ON LTB); TSL-71705-16 (Re), 2016 CanLII 71624 (ON LTB); TSL-70781-16 (Re), 2016 CanLII 39812 (ON LTB); TSL-12596 (Re), 2009 CanLII 51178 (ON LTB). In other cases, refusing the eviction is mandatory. See for example: SOL-53030-14 (Re), 2015 CanLII 16020 (ON LTB); TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB).
If the landlord does not provide the tenant with the required compensation, as discussed above, the LTB must refuse the eviction. If the landlord pays the tenant the required compensation and the LTB dismisses the landlord's application, the tenant may be ordered to re-pay the landlord.
See also Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), and Guideline 7: Relief from Eviction: Refusing or Delaying an Eviction.
Landlord gave notice in bad faith
A former tenant may file an application with the LTB under section 57 if the former tenant believes that:
- the landlord gave a notice to a tenant under sections 48,49 or 50 in bad faith; and
- the tenant moves out of the unit as a result of the landlord's notice or an application to the Board or an order by the Board based on such a notice; and
- no person specified under the appropriate subsection has occupied the unit within a reasonable time after the tenant vacated the rental unit, or the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the tenant vacated the rental unit.
The LTB holds a hearing to consider the former tenant's application and all parties have an opportunity to attend and provide relevant evidence and submissions. It is the tenant, as the applicant, who must prove all three elements of the test set out above.
Examples of LTB orders finding that the tenant has satisfied the three parts of the test contained in section 57 include: SWT-95207-16 (Re), 2017 CanLII 9457 (ON LTB); TST-77957-16 (Re), 2016 CanLII 88282 (ON LTB); TST-77144-16 (Re), 2016 CanLII 88292 (ON LTB); TST-72609-16 (Re), 2016 CanLII 71210 (ON LTB); TST-63263-15 (Re), 2015 CanLII 75856 (ON LTB); TST-68404-15 (Re), 2016 CanLII 40119 (ON LTB).
Examples of LTB orders finding that the tenant has not satisfied the three parts of the test contained in section 57 include: TET-67474-16 (Re), 2016 CanLII 52833 (ON LTB); TST-63837-15 (Re), 2016 CanLII 39762 (ON LTB); TST-62541-15 (Re), 2015 CanLII 59059 (ON LTB); TST-57328-14 (Re), 2015 CanLII 93464 (ON LTB); CET-33575-13 (Re), 2014 CanLII 71654 (ON LTB)."
7.
Examples where it was considered whether vacant possession was necessary
7 In support of his evidence, the Landlord submitted a copy of the Inspection Report issued by the City of Hamilton dated November 9, 2010.
8 A review of paragraph 9 of the Inspection Report however shows that the Landlord is required to obtain building permits from the City of Hamilton Building Department for all work that the Landlord was required to carry out in order to comply with the City’s order.
9 The Tenant testified that he had retained the services of a licensed contractor who has over 31 years experience in renovating residential units or complexes in inhabited buildings to review the Fire Safety Inspection Report and the Notice of Non-Compliance issued against the Landlord by the City of Hamilton.
10 The Tenant’s testimony is that after reviewing the two orders, the contractor was of the opinion that the Landlord did not require vacant possession of the Tenant’s unit to bring it into compliance with the City’s By-laws and that the Landlord required to obtain permits from the City before he could commence repairs to the Tenant’s unit and to the residential complex. In support of his testimony, the Tenant submitted a copy of the contractor’s letter dated May 20, 2011. The letter confirms the contractor’s professional opinion as testified
to by the Tenant. It is noted that the contractor holds repair licenses and or certifications from the City of Hamilton Building Buildings Department.
11 On December 30, 2010, the Landlord served the Tenant with the Notice to terminate a tenancy at the end of the term for conversion, demolition or repairs (Form N13). The N13 is a standard form produced by the Board. The standard wording of the N13 states “I require the unit to be vacant in order to do repairs or renovations that are so extensive they require vacant possession and a building permit”.
12 The Landlord however altered the wording on the N13 that he served on the Tenant by adding the words “may require”. The altered N13 reads as follows: “I require the unit to be vacant in order to do repairs or renovations that are so extensive they may require vacant possession and a building permit”.
13 Section 50(1) of the Residential Tenancies Act, 2006 (the 'Act') on which the N13 notice served on the Tenant by the Landlord is based, provides that “a landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to
…(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant passion of the rental unit”.
14 Section 50(1) of the Act therefore only allows landlords to give a tenant an N13 in cases where repairs or renovations are so extensive that they require a building permit and where vacant possession is required.
File Number: SOL-14870-11
15 I find that inserting the words “may require” alters the requirements that the legislators had set out when they drafted section 50 (1) of the Act. The altered N13 form conveys the impression that the Landlord probably did not need a permit.
16 Therefore I find that the N13 that the Landlord served on the Tenant does not comply with the N13 that the Landlord was required to serve on the Tenant. I also find that the N13 served on the Tenant is inconsistent with the provisions of the Act which specifically states that a building permit is a requirement when an N13 is given.
17 Guideline 10 of the Board’s Interpretation Guidelines provides that the Notice of Termination is an essential step in the landlord’s process of evicting a tenant and that the Board will not terminate a tenancy and order eviction of the tenant unless the tenant has received a valid Notice of Termination. The Guideline also provides that if the document given to the tenant is defective, in most cases this will result in dismissal of the application or the denial of the eviction portion of the application. The Guideline further states that “even adding a claim to a legitimate ground may confuse the Notice”.
18 In addition, the order to comply from the City directed the Landlord to obtain permits from the City for the work that was needed to provide access and egress from the third floor. The Landlord has not taken any steps to obtain the said permits.
19 The order from the City of Hamilton did not state that vacant possession of the Tenant’s unit was required before the Landlord could commence work to the Tenant’s unit. Therefore, I am not persuaded that the Landlord requires vacant possession of the rental unit in order to comply with the orders from the City to provide the Tenant’s unit with adequate heat in the unit and to provide a second exit on the third floor of the residential complex.
• Open a door in 2nd floor room
• Block a door in 2nd floor room, by dry wall
• Make a balcony at back of 2nd floor, and open a door to exit
• Make a stair from 1st floor to basement
• Reinstall smoke alarm for every floor
• Remove basement kitchen and one of 2nd floor kitchen
• Remove 1st floor laundry and one of 2nd floor laundry
• Make some closets.
9. At the hearing, SZ testified that some of the work listed in the N13 has already been completed. The work that remains outstanding involves the second floor, specifically: sealing the entrance to the small second floor unit, construction of a balcony outside the small second floor unit; construction of a closet in the small second floor unit and construction of a door joining the small second floor unit and the rental unit.
The legal test: subsection 50(1) of the Act
10. Pursuant to subsection 50(1) of the Act, the Landlords have the burden of proving on a balance of probabilities (i.e. that it is more likely than not) that the following two facts are true:
• A building permit is required to do the work at issue; and
• Vacant possession is required to do the work.
11. Based on the evidence before me, I am satisfied on a balance of probabilities that a building is required to do the remaining work in the N13. The Landlords submitted a building permit that they obtained, which describes the project as “2 unit – semi-detached; second suite (new)”. The permit was issued based on a drawing of the second floor, which was prepared by a design company and approved by an engineer. The drawing identifies the outstanding work from the N13 described above. Therefore, I find that the renovations at issue required a building permit and the Landlord obtained the necessary permit. The Tenants did not dispute that the Landlords satisfied the building permit requirement of subsection 50(1) of the Act and the central issue at the hearing was whether the Landlords satisfied the vacant possession requirement.
Vacant possession not required to do the work
12. Based on the evidence before me, I am not satisfied on a balance of probabilities that the Landlords require vacant possession of the rental unit to do the outstanding renovations.
13. I find that vacant possession of the rental unit is not required because the rental unit will not be substantially impacted by the renovations. In the Landlords’ drawing of the second floor, the small second floor unit is highlighted. The outstanding renovations from the N13 are labelled as occurring in and around the small second floor unit. None of the renovations appear to be scheduled to take place in the rental unit.
14. In his testimony, SZ confirmed that the only outstanding work that will directly affect the rental unit is the creation of a door in the small second floor unit that will swing into the rental unit and join both units into one apartment (the “connecting door”). SZ testified that he believes the creation of the connecting door would take approximately a day to complete, although he was not certain how the contractors will fit it into their construction schedule.
15. SZ was asked why the construction of the connecting door requires the rental unit to be vacant, given that his testimony suggests that it is a relatively minor and fast project to complete. SZ testified that he is concerned about the noise and dust from the other work that will be done in the small second floor unit entering the rental unit. SZ testified that he is also concerned that the work on the second floor will pose safety hazards for the Tenants for which he is not prepared to assume liability.
16. With respect to his safety concern, SZ could not identify any specific safety risks to the Tenants that would be caused by the renovations on the second floor. When I asked SZ if he had any evidence of a possible safety risk (and particularly, one that could not be safeguarded against by the contractors), he answered that he did not and that “it was just common sense”. However, absence any objective, concrete evidence to the contrary, I am not prepared to find that the construction of the connecting door (which SZ testified he anticipates will only take one day to complete) or any of the intended wok on the second floor poses a safety risk to the Tenants that merits ordering vacant possession of the unit.
17. With respect to SZ’s concern about noise and dust from the construction, the Tenants testified that they are willing to put up with these disturbances while the renovations on the second floor are being completed. The Tenants testified that they have already been living with noise from the other renovations to the other floors in the building, which began in November, 2016. The Tenants submitted the decisions in Lincoln Apartments Limited v. Houtman and Sarre (1981, County Court of the Judicial District of York) and SOL-56776 (2005, Rental Housing Tribunal). These decisions were also made in relation to applications for eviction due to extensive repairs. In these decisions it was determined that the work at issue did not require vacant possession of the units. The court and the tribunal considered the tenants’ willingness to put up with a certain amount of noise, dust and inconvenience during the work as part of their decisions to dismiss the applications. Similarly, in the case at bar, I find that the Tenants’ expressed willingness to continue to put up with the noise and dust during the renovations on the second floor, indicates that vacant possession of the rental unit is not required to shield the Tenants from these disturbances during the work.
18. SZ also testified that he wants vacant possession of the rental unit because he would like to re-rent the unit to other tenants at a higher rent after the renovations are complete to help pay for the cost of the work. However, this evidence does not establish that vacant possession is necessary for the renovations to be completed as must as it indicates that the Landlords have an ulterior motive for wanting the Tenants to leave. The Act does not permit termination of a tenancy to allow a landlord to charge a higher rent for a unit. Further, if the application was granted, the Tenants would be entitled to a right of first refusal to reoccupy the rental unit at the same rent the Landlords were charging them when they moved out under section 53 of the Act.
19. The Landlords did not present any evidence from the contractors or any of the people who will be performing the renovations that they require the rental unit to be vacant to complete the renovations on the second floor. Without this evidence and considering the other reasons listed above, I am not satisfied on a balance of probabilities that the Landlords require vacant possession of the rental unit to complete the work. Since one of the requirements of subsection 50(1) is not met, the application is dismissed.
Landlords’ request for unlimited access to the rental unit
20. SZ requested that if the application is denied, that I include in the order a requirement that after the renovations are completed the Landlords can access and/or use the space formerly occupied by the small second floor unit at their discretion. However, I am not prepared to make this order. If the renovations result in this space becoming part of the rental unit, the Landlords will have to abide by the sections of the Act that pertain to when and how a landlord can enter a unit with respect to all parts of the rental unit.
It is ordered that:
1. The application is dismissed."
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