N12 and Conversion to Condominium (RTA Section 51)

 

RTA section 51 specifies when an N12 cannot be used in situations of conversion to condominium.

The simplified flow chart and the LTB rulings below can help with examples.

1. 1. RTA section 51
2. 2. Flow chart
3. 3. Examples of LTB rulings

I. RTA SECTION 51:

"Conversion to condominium, security of tenure

51 (1) If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description.  2006, c. 17, s. 51 (1).

PROPOSED UNITS, SECURITY OF TENURE

(2) If a landlord has entered into an agreement of purchase and sale of a rental unit that is a proposed unit under the Condominium Act, 1998 or a predecessor of that Act, a landlord may not give a notice under section 48 or 49 to the tenant of the rental unit who was the tenant on the date the agreement of purchase and sale was entered into.  2006, c. 17, s. 51 (2).

NON-APPLICATION

(3) Subsections (1) and (2) do not apply with respect to a residential complex if no rental unit in the complex was rented before July 10, 1986 and all or part of the complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act before the day that is two years after the day on which the first rental unit in the complex was first rented.  2006, c. 17, s. 51 (3).

ASSIGNEE OF TENANT NOT INCLUDED

(4) Despite subsection 95 (8), a reference to a tenant in subsection (1), (2) or (5) does not include a person to whom the tenant subsequently assigns the rental unit.  2006, c. 17, s. 51 (4).

CONVERSION TO CONDOMINIUM, RIGHT OF FIRST REFUSAL

(5) If a landlord receives an acceptable offer to purchase a condominium unit converted from rented residential premises and still occupied by a tenant who was a tenant on the date of the registration referred to in subsection (1) or an acceptable offer to purchase a rental unit intended to be converted to a condominium unit, the tenant has a right of first refusal to purchase the unit at the price and subject to the terms and conditions in the offer.  2006, c. 17, s. 51 (5).

SAME

(6) The landlord shall give the tenant at least 72 hours notice of the offer to purchase the unit before accepting the offer.  2006, c. 17, s. 51 (6).

EXCEPTION

(7) Subsection (5) does not apply when,

(a) the offer to purchase is an offer to purchase more than one unit; or

(b) the unit has been previously purchased since that registration, but not together with any other units.  2006, c. 17, s. 51 (7)."

https://www.ontario.ca/laws/statute/06r17#BK72

II. FLOW CHART (N12 in conversion to condo context):

III. LTB EXAMPLES:

1) SWL-01548-17 (Re), 2017 CanLII 48417 (ON LTB), <https://canlii.ca/t/h5332>

"[...]

Evidence:

3. The Tenant testified that she use to walk by the building when she was a child going to school and that it was a residential rental complex back then. That was over 40 years ago.  She said that she moved into the rental unit prior to the property being converted to condominiums in 2001 and was told by the previous Landlord that she had right of tenure under section 51.  The unit was sold to the current Landlord in 2014 and when she received the N12 Notice she told the Landlord that she thought section 51 applied to her.

4. The Landlord testified that she offered the Tenant the first right of refusal, but the Tenant didn’t want to purchase the unit.  The Landlord did not dispute that the property had been used as residential rentals since the Tenant was a child.

Analysis:

5. The Tenant is a person who was a tenant of a rental unit when it became subject to the registered declaration and description.  The Tenant had moved into the rental unit prior to the conversion of the rental unit into a condominium unit in 2001. Thus the tenancy falls within the scope of section 51(1) of the Act. Therefore the Landlord cannot serve the Tenant with a notice of termination under sections 48 or 49 of the Act for the Landlord’s own use or Purchaser’s own use.

6. However the exemption to section 51(1)of the Act must also be considered. That section provides that if no rental unit was rented before July 10, 1986 then section 51(1) does not apply.  In this case the rental unit was rented prior to July 10, 1986 because the Tenant testified that the property was a rental housing complex when she was a child going to school 40 years ago.   Without any evidence to the contrary I find that section 51(1) applies and the Landlord is not entitled to seve the Tenant with a N12 Notice to terminate the tenancy for purchaser’s own use and the application must be dismissed.

It is ordered that:

1. The Landlord’s application is dismissed.

[...]"

2) CEL-76563-18 (Re), 2018 CanLII 88413 (ON LTB), <https://canlii.ca/t/hv7fx>

"[...]

2. It was uncontested that the Tenants’ tenancy commenced on September 1, 2003.  According to the Tenants, the rental unit was converted to a condominium in July 2004.  It was uncontested that a conversion to condominiums took place at this residential complex. Therefore, the Tenants submit that the Landlord was not entitled to serve a notice under section 48 of the Act.

3. The Landlord is the recent purchaser of the rental unit.  She purchased the unit with the intention at some point for her son to move into the unit. The Landlord submitted that she was not aware that the Tenants she inherited with this unit were subject to subsection 51(1) of the Act. She was simply told they were month-to-month Tenants.

4. The Tenants submitted that they were aware that the unit was for sale and posted notice in the unit regarding their tenancy and subsection 51(1) of the Act.  There was no dispute that the Landlord never viewed the unit.

5. Given that there was no dispute the Tenants were occupying the rental unit when the conversation to a condominium took place back in 2004, I am satisfied that in accordance with subsection 51(1) of the Act, the Landlord was not entitled to serve a notice of termination pursuant to section 48 of the Act.   Consequently, the application is dismissed.

[...]"

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.

Can one file against former occupants for nuisance at the Condominium Authority Tribunal? (Diwa v. Toronto Standard Condo Corp No. 2166, 2022)

 

Here is a recent CAT ruling which might be of interest for condo owners:

Diwa v. Toronto Standard Condominium Corporation No. 2166 et al., 2022 ONCAT 14 (CanLII), <https://canlii.ca/t/jmh93>

"[5] The CAT Rules of Practice define an occupant as “an individual or legal entity that occupies a unit that they do not own. This includes residential and commercial tenants.” Under section 1.36 (2) of the Act, applications can be filed against a condominium corporation, an owner of a unit, and/or an occupant of another unit.

[6] I conclude that the Act and the CAT’s Rules refer only to current owners and occupants. There is no dispute that the Intervenor was no longer a tenant when the application was filed. Accordingly, as this as-yet unidentified Intervenor was not an occupant of the unit when the case was filed, they should not be listed as an Intervenor in this case."

_____________________________

"[...]

[1]      An application was filed under the Condominium Authority Tribunal’s (CAT) jurisdiction related to nuisances. The issues in dispute relate to the conduct of a tenant. This order deals with procedural matters to ensure that the parties in the case are correctly identified. It does not make any finding as to the merits of the dispute before the CAT.

[2]      When the CAT accepted this case, the CAT was under the impression that the issues in dispute relate to the conduct of a current occupant of a unit owned by Anh Lam in Toronto Standard Condominium Corporation No. 2166.

[3]      Anh Lam, a Respondent in this case informed the CAT’s staff on February 2, 2022, that the issues in dispute do not relate to any current tenant / occupant of their unit and instead relate to a former tenant / occupant.

[4]      The CAT issued a notice of intent to remove the Tenant from the case. The Applicant confirmed that the case was about the conduct of a former tenant. The Applicant further asserted that although section 1.36 (2) of the Condominium Act, 1998 (the “Act”) states that “an owner or a mortgagee of a unit may apply to the Tribunal for the resolution of a prescribed dispute with the corporation, another owner or an occupier or a mortgagee of a unit,” it does not specify that the tenant must be a current occupier.

[5]      The CAT Rules of Practice define an occupant as “an individual or legal entity that occupies a unit that they do not own. This includes residential and commercial tenants.” Under section 1.36 (2) of the Act, applications can be filed against a condominium corporation, an owner of a unit, and/or an occupant of another unit.

[6]      I conclude that the Act and the CAT’s Rules refer only to current owners and occupants. There is no dispute that the Intervenor was no longer a tenant when the application was filed. Accordingly, as this as-yet unidentified Intervenor was not an occupant of the unit when the case was filed, they should not be listed as an Intervenor in this case. 

ORDER

[7]      The Tribunal orders that the unidentified tenant occupant of the unit owned by Anh Lam be removed as an Intervenor from this case.

[...]"

Update:

A recent CAT ruling published on CanLII briefly addresses the following question:

Can a tenant file with the Condominium Authority Tribunal?

Walsh v. London Condominium Corporation No. 39, 2022 ONCAT 25 (CanLII), <https://canlii.ca/t/jn8pp>

"[7] Section 1.36 of the Act stipulates that owners, and condominium corporations can apply to the Tribunal for the resolution of disputes. Occupants, or tenants do not have standing before the CAT to bring a case. Therefore, since the Applicant and her common-law spouse are not currently owners of the unit in question, they do not have standing to file an application with the Tribunal."

_____________________________

"[1] The Applicant filed an application with the Condominium Authority Tribunal (CAT). The case proceeded to Stage 1 - Negotiation.

[2] Under Rule 19.1 of the CAT’s Rules of Practice, the CAT can close a case in Stage 1 - Negotiation if the CAT determines that that it has no legal power to hear or decide upon the dispute.

[3] The Application was filed by Allison Walsh regarding compliance with provisions in the condominium corporation’s governing documents related to pets; and the reasonableness and/or consistency of the corporation’s rules.

[4] The Respondent submitted a motion to request the CAT dismiss this case because Allison Walsh is not a unit owner of London Condominium Corporation No. 39, and therefore is not entitled to file an application with the CAT under section 1.36 of the Condominium Act, 1998 (the “Act”).

[5] The CAT gave both parties an opportunity to make submissions.

[6] The Applicant confirmed that she is an occupant of the unit. She is in a common-law relationship with a relative of the owner of the unit. The Applicant further confirmed that they are in the process of having the ownership of the unit transferred to her partner’s name. The Applicant submitted that, since the ownership was changing, and they are in a common-law relationship, they should be able to continue this case.

[7] Section 1.36 of the Act stipulates that owners, and condominium corporations can apply to the Tribunal for the resolution of disputes. Occupants, or tenants do not have standing before the CAT to bring a case. Therefore, since the Applicant and her common-law spouse are not currently owners of the unit in question, they do not have standing to file an application with the Tribunal.

[8] The Applicant does not have standing to continue this application. Therefore, the Respondent’s motion to dismiss this application is granted. Accordingly, I order that this case be dismissed.

ORDER

[9] The Tribunal orders that:

1. This case is closed in Stage 1 - Negotiation under Rule 19.1 of the CAT’s Rules of Practice.

2. Any documents and messages that have been shared for this Case in Stage 1 - Negotiation are private and confidential. That means that the Users cannot share, or tell anyone about, messages or documents they received from other Users during these stages without the permission of the other User.

3. The Users may share a copy of any document they received during the course of this case if required by law, such as to a government organization or a court."

More information on filing with CAT:

Condominium Authority Tribunal (CAT) expanding jurisdiction on January 1, 2022

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.

A case of concurrent proceedings at the LTB and the Superior Court in condo context (Frontenac Condominium Corporation No. 6 v. McCauley, 2021)

 

A interesting new addition on CanLII that touches on situations of parallel proceedings by a condominium corporation against a tenant and a condo owner against the same tenant, seeking essentially the same relief.

"[8] While the applicant is encouraged by the reports that Ms. McCauley is once again attempting to obtain an eviction order from the Landlord and Tenant Board, it believes that pursuant to its obligations under the Condominium Act, 1998, S.O. 1998, c. 19, and in particular its duty to comply with the Act, the condominium declaration, its bylaws and rules, it has the right, and, indeed, is obliged to, pursue its own remedies to require compliance by the respondents.

[9] Section 134 of the Condominium Act authorises certain parties to seek a compliance order and for the court to grant such relief as is fair and equitable in all of the circumstances.

[10] The court has the express power to grant an order terminating a lease of a unit for residential purposes if it is satisfied that the lessee is in contravention of an order that has been made under section 134.

[...]

[17] As to the issue of concurrent proceedings before this court and the Landlord and Tenant Board seeking similar relief, as has been pointed out by counsel for the applicant, the applicant is not a party to those proceedings and, as the history of this matter has shown, has little if any ability to influence, let alone direct those proceedings or the outcome of those proceedings. It seems to me that the applicant has been more than patient with both Ms. Warwick and Ms. McCauley. While it is always a matter of concern to have what are effectively parallel proceedings before different tribunals, seeking essentially the same relief, the two sets of proceedings are brought by different parties with different interests and different responsibilities. In the case of the applicant it has, as has been pointed out, clear and unequivocal obligations under the Condominium Act, 1998 to ensure compliance with not only the Act, but the condominium declaration, the rules of the condominium and its bylaws. Under those circumstances I see no justification in further delaying the ability of the applicant to obtain relief because of the ongoing proceedings in front of the Landlord and Tenant Board.

[18] The easy answer to the concerns raised by Ms. Warwick is that she now complies with the behaviour that the relief sought by the applicant invites. If she does, then the next step concerning compliance will not have to be taken, and any other consequences that may arise from her behaviour to date will be left to be dealt with by the Landlord and Tenant Board. But if on the other hand she is non-compliant, the applicant should be at liberty to seek further relief from this court."

_____________________

Frontenac Condominium Corporation No. 6 v. McCauley, 2021 ONSC 8181 (CanLII), <https://canlii.ca/t/jlbc6>

"[1]               On today’s motion the applicant condominium corporation seeks orders relating to the conduct of the respondent Sara Warwick, and her continued occupancy as a tenant of the unit owned by the respondent Marilyn McCauley.

[2]               The substantial record filed by the applicants contains an extensive list of incidents and complaints about Ms. Warwick. Over 200 complaints have been logged and her alleged conduct has resulted in over 60 police visits. 

[3]               Since 2018, Frontenac Condominium Corporation No. 6’s lawyers and its condominium manager have contacted Ms. McCauley at least twenty-seven (27) times by way of telephone or written communication to either advise of Ms. Warwick’s non-compliant behaviour and/or to discuss how to resolve matters.

[4]               The applicant claims to have unsuccessfully sought effective action by Ms. McCauley to address concerns about her tenant’s behaviour. Although perhaps as many as ten eviction applications under the Residential Tenancies Act have been brought, none of them have concluded with a decision.  As recently as 11 May 2021, Ms. McCauley withdrew applications for orders to terminate the tenancy and evict Ms. Warwick for wilfully or negligently causing undue damage to the premises, substantially interfering with the reasonable enjoyment or lawful right, privilege or interest of Ms. McCauley or another tenant, and seriously impairing the safety of any person.

[5]               The nature of the complaints made against Ms. Warwick include her screaming and yelling obscenities, banging on doors, punching walls, threatening physical harm, and exposing herself. While the applicant’s factum “recognizes that Sara suffers from schizo-affective disorder”, there is no medical evidence to confirm that.

[6]               An application by the condominium corporation, within which the present motion is brought, seeks relief against both Ms. McCauley and Ms. Warwick requiring the complained of behaviour to cease and, should the behaviour continue, the eviction of Ms. Warwick.

[7]               Counsel for Ms. McCauley confirmed that there are two pending proceedings before the Landlord and Tenant Board arising from unpaid rent and Ms. Warwick’s alleged behaviour. A hearing in respect of the “rent” application is scheduled for 15 February 2022. There is not yet a hearing date for the “behaviour” application.

[8]               While the applicant is encouraged by the reports that Ms. McCauley is once again attempting to obtain an eviction order from the Landlord and Tenant Board, it believes that pursuant to its obligations under the Condominium Act, 1998, S.O. 1998, c. 19, and in particular its duty to comply with the Act, the condominium declaration, its bylaws and rules, it has the right, and, indeed, is obliged to, pursue its own remedies to require compliance by the respondents.

[9]               Section 134 of the Condominium Act authorises certain parties to seek a compliance order and for the court to grant such relief as is fair and equitable in all of the circumstances.

[10]           The court has the express power to grant an order terminating a lease of a unit for residential purposes if it is satisfied that the lessee is in contravention of an order that has been made under section 134.

[11]           This motion is the first step towards obtaining an order terminating the lease between Ms. McCauley and Ms. Warwick in the event that Ms. Warwick continues to engage in the sort of conduct that has led to the many complaints that have been made concerning her. Specifically, the applicant seeks:

An order requiring the respondent, Sara Warwick, to cease and desist from engaging in dangerous, threatening, harassing and/or other non-compliant behaviour while on the applicant’s property that contravenes section 117 of the Condominium Act 1998, SO 1998, c 19 [“Condominium Act”] and/or the applicant’s governing documents, which behaviour includes but is not limited to the following:

                                i.            Engaging in conduct that necessitates police intervention;

                              ii.            Engaging in conduct that interferes with the safety and security of the applicant’s residents and guests;

                           iii.            Engaging in conduct that results in excessive noise and/or disturbance to other residents and guests; and

                           iv.            Engaging in conduct that is likely cause damage to the condominium property.

[12]           In the event that Ms. Warwick does not comply with this order, the applicant asks to be at liberty to bring a further motion for an order pursuant to section 134(4) of the Condominium Act, 1998 evicting Sara Warwick from residing in Marilyn McCauley’s unit and terminating her lease.

[13]           Ms. Warwick opposes the motion. She seeks a stay of this proceeding until the Landlord and Tenant Board has heard Ms. McCauley’s eviction applications. She also argues that many of the issues raised by the applicant have already been determined as a result of the order made by the Landlord and Tenant Board on 11 May 2021, and reported at 2020 CanLII 119104 (ON LTB), consenting to the withdrawal of the previous applications made by Ms. McCauley.

[14]           Ms. McCauley does not oppose the relief sought in this motion.

[15]           I am satisfied that the applicant’s concerns and complaints are valid. On multiple occasions Ms. Warwick has acted in an antisocial and disruptive manner that has substantially interfered with the reasonable enjoyment of other unit holders and the occupants of those units. At times her conduct has given rise to valid concerns about the safety and well-being of other occupants, their visitors, the applicant’s staff and agents. Such conduct violates the requirements of the Condominium Act as well as the applicant’s rules and bylaws.

[16]           The circumstances of this case are not dissimilar to those considered by this court in Toronto Standard Condominium Corporation No. 2395 v. Wong, 2016 ONSC 8000. In that case the court granted injunctive and declaratory relief as part of a compliance order under s. 134(1) of the Condominium Act, 1998.  As Akbarali J. noted, at para. 36, “people who move into a condominium must be prepared to live by the rules of the community that they are joining. The Act, the declaration, by-laws and rules are vital to the integrity of the title acquired by the unit owners…”

[17]           As to the issue of concurrent proceedings before this court and the Landlord and Tenant Board seeking similar relief, as has been pointed out by counsel for the applicant, the applicant is not a party to those proceedings and, as the history of this matter has shown, has little if any ability to influence, let alone direct those proceedings or the outcome of those proceedings. It seems to me that the applicant has been more than patient with both Ms. Warwick and Ms. McCauley.  While it is always a matter of concern to have what are effectively parallel proceedings before different tribunals, seeking essentially the same relief, the two sets of proceedings are brought by different parties with different interests and different responsibilities.  In the case of the applicant it has, as has been pointed out, clear and unequivocal obligations under the Condominium Act, 1998 to ensure compliance with not only the Act, but the condominium declaration, the rules of the condominium and its bylaws.  Under those circumstances I see no justification in further delaying the ability of the applicant to obtain relief because of the ongoing proceedings in front of the Landlord and Tenant Board. 

[18]           The easy answer to the concerns raised by Ms. Warwick is that she now complies with the behaviour that the relief sought by the applicant invites.  If she does, then the next step concerning compliance will not have to be taken, and any other consequences that may arise from her behaviour to date will be left to be dealt with by the Landlord and Tenant Board.  But if on the other hand she is non-compliant, the applicant should be at liberty to seek further relief from this court.

[19]           The balance of the application is adjourned to a date to be fixed by the trial co-ordinator.

[20]           An order will therefore go in accordance with these reasons. Ms. Warwick’s approval as to the form and content of my order arising out of this motion is not required."

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.