Rent Relief Requests and Other Residential Real Estate Tenant/Landlord Issues

April 4, 2021

With Canada’s labour market experiencing layoffs as Covid-19 forces the shutdown of major industries, over a million Canadians have applied for unemployment benefits. Many tenants will have to make due with less income. At the same time the real estate market is hot and investors with rental properties want to sell now to maximize the return on their investments.

We have been flooded with calls from landlords, tenants and investors alike, all concerned about the unknown which surrounds the Covid-19 pandemic. Homeowners wanting to sell tenanted homes and tenants wanting to know their rights as these homes are sold. I am going to share with you our top Frequently Asked Questions and some resources:

Does rent still have to be paid? Yes! Tenants who can pay their rent must do so and landlords have the right to and are entitled to collect the ‘per diem’ rent from a tenant whom they have received an order to evict.

What if my tenant has informed me that they can’t pay the rent? Communication is key! We highly encourage and recommend that landlords and tenants keep the lines of communication open and discuss other methods of relief if tenants are not able to pay the rent in full.

What are some relief options for tenants if they can’t pay their rent?

Here are 3 relief options:
1. Payment plan – landlords who offer to put the tenant on a payment plan to “discount the rent or give free months” could find that they have permanently lowered lawful rent. The wording must be very clear in your payment plan;

2. Rent bank – provides limited, interest free loans to anyone facing an eviction or difficulty paying the rent. The maximum loan is 2 months rent. They also provide first and last month’s rent deposit loans to those tenants who want to move from their existing rental units to a more affordable rental unit;

3. Credit card – can be used to pay the rent, provided that the landlord is set up to receive payment via credit card.

I am a tenant and I was unemployed temporarily, got behind in my rent but have been trying to catch up, can the landlord evict me? The Protecting Tenants and Strengthening Community Housing Act, 2020 (known as Bill 184) encourages landlords to try to negotiate a repayment agreement with a tenant before seeking eviction if rent has not been paid during COVID-19. When a landlord applies for an eviction order for rent arrears, the Landlord and Tenant Board must now consider whether the landlord tried to work with the tenant to catch up on rent before seeking eviction. This is to encourage repayment agreements so evictions can be avoided.

Can the last month’s rent (LMR) be used to cover the month that the tenant cannot pay? It is not recommended that the last months rent be used for anything except for- the last months rent! Landlords can collect a rent deposit only at the start of a new tenancy and it cannot be for more than the one months rent amount. If the landlord does agree to use the LMR for the month that the tenant is experiencing difficulty, then the landlord can risk not getting paid for the last month of the tenancy.

Can a landlord still issue notices to the tenant like an N4 (non-payment of rent notice) ? Yes, landlords can still issue notices.

Can landlords still apply to the Landlord and Tenant Board (LTB) for a hearing? Most notices must be filed with the board within 30 days of the termination date set out in the notice. The LTB counter services are closed at the present time. However, the common notices and applications can still be filed online.

What is going on with hearings at the LTB? As of March 16, 2020, all in-person hearings related to eviction applications are suspended until further notice, except for emergency disputes or illegal acts and safety concerns will proceed with an in-person hearing.

Can a landlord evict a tenant in the middle of their lease? A landlord can evict a tenant in the middle of their tenancy agreement in certain situations– usually where the tenant or someone the tenant let into their building, has done something wrong. For example, the tenant has not paid their rent or has damaged the rental property.

The reasons for evicting a tenant are explained in the brochure: A Guide to the Residential Tenancies Act.

Can landlords serve an eviction notice during the COVID-19 pandemic?
Yes. A landlord can serve a tenant with a Notice of Termination, whether urgent or not.

If a landlord serves a valid Notice of Termination, they can file an application for eviction with the LTB (Landlord and Tenant Board).

I heard that evictions are paused. What does that mean? Enforcement of residential eviction orders is temporarily paused. Eviction orders will be postponed for the duration of a stay-at-home order. Only the Sheriff (also known as the Court Enforcement Office) can evict a tenant from a rental unit if the tenant does not move out after the Landlord and Tenant Board has issued an eviction order. On April 8, 2021, the Government of Ontario made a new regulation (O.Reg. 266/21) which says that the Sheriff cannot enforce any LTB eviction order unless the order specifically asks the Sheriff to expedite the eviction. The Sheriff can resume enforcing all eviction orders after the Government removes the regulation.

Can I sell my rental property with tenants in it? Yes it is possible to sell a tenanted property in Ontario, but like most things, there is a right way and a wrong way to go about doing so. A landlord does, at any point, have the right to put their rental property up for sale, but the landlord must do the following:

  • Send a written notice (Form N12 – Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit)
  • Ask the Landlord and Tenant Board to evict them with Form L2 – Application to End a Tenancy and Evict a Tenant – and send the tenant a copy, as well as the date of the hearing with the Board
  • Offer the tenant another acceptable rental property to move into OR pay the tenant at least one month’s rent
  • Provide 24 hours’ notice to tenants before showing any potential buyers the home
  • Give tenants 60 days’ notice from the first month that their tenancy will be ending
  • Wait until the lease agreement is over in order to sell the home
  • Attending every hearing with the Board

Ultimately, maintaining a good relationship with the tenants is one of the best things a landlord can do. It can definitely be awkward between tenants and the property owner when it comes to selling the property, but having a good or bad relationship can be what makes or breaks the process. By maintaining a good relationship, keeping the tenants up to date with what’s going on with the sale, being honest with them, and even helping them find another rental property can really make all the difference in the world.

What are my rights as a tenant when the landlord is selling the property? Just as a landlord has their own rights, so do tenants. While the landlord may be able to sell their rental property, it must be in good faith and done according to the rules laid out by the Landlord and Tenant Board.

The tenant’s rights include:

  • The right to stay if their fixed-term lease agreement hasn’t ended yet
  • The right to stay if they believe the landlord is not selling the property so a family member can move in (aka, they’re tricked into leaving which is also referred to as a bad-faith eviction)
  • Signing a new lease agreement with the new property owners
  • Attending hearings with the Board
  • Being given a 30-day window to move out after the home is sold if the original lease states a lease termination due to sale clause
  • Knowing they are not legally obligated to leave the property during showings (and also ensure their landlord gave them the proper 24 hours’ notice).

After receiving the Form N12 from the landlord, you do not have to move out just because you get this notice. If you do not move out and the Board does not evict you, the person who buys your place, the “purchaser”, will become your new landlord.

But if you do want to move, you can give your landlord as little as 10 days’ notice, instead of the usual 60 days.

Can a landlord take pictures without a tenant’s consent? Landlords are not allowed to take pictures of their property while it’s being occupied. This is to protect tenants against the possibility of private, confidential belongings ending up online for the whole world to see.

Exceptions exist, however, if the tenant explicitly agrees (either by signing a lease agreement permitting photography or after the fact).

Can tenants be kicked out due to the property sale? If you’re worried about getting evicted because your landlord is selling their house in Ontario, you can rest easy. The Residential Tenancies Act does not allow landlords to evict tenants solely because the property is being sold if they have a lease.

In fact, the new property owner will need to uphold any lease agreement that hasn’t expired prior to their taking possession of the home. Even if the new owner has no intention of extending the lease, they’ll need to provide the standard 60-day notice before asking the tenant to leave.

This rule also applies to monthly rental agreements in Ontario; 60 days notice must be given, regardless of who owns the property.

What happens when your landlord sells the property? Landlords are responsible for ensuring the new buyer intends to honor whichever part of your lease agreement extends beyond the sale date. New owners do not have any special powers to evict you without proper notice.

Should I tell my tenants I am selling? It’s considered courteous to inform your tenants when you sell the property although this is not legally required in Ontario. You can sell at any time without telling the tenant as long as you follow rules regarding passing their lease onto the new owner and informing them when you intend to show the home to a prospective buyer.

Can a tenant be evicted if the landlord sells the house or building and the person who bought it wants to move in? Yes, but only if the building has 1-3 units, there is no existing lease, they provide reasonable written notice and the person buying the building needs the rental unit for:

  • their own use and not renting it out
  • the use of an immediate family member
  • the use of a person who will provide care services to the landlord or a member of the landlord’s immediate family, who is living in the same building or complex

Once the landlord gives the tenant a notice terminating the tenancy for one of these reasons, they can apply to the LTB for an order evicting the tenant. The tenant can only be evicted if the LTB issues an eviction order.

Can the landlords force the tenant to prepare the home for viewing? While landlords are well within their rights to expect that tenants will maintain a basic level of cleanliness, they can’t specifically demand the residence be staged for showing.

This is in keeping with the general principle that the sale process should have a minimal impact on a tenant’s ability to use and enjoy the home they’re paying to occupy.

Can a tenant be evicted if the landlord wants to use the unit themselves? Yes, if there is no existing lease and the landlord provides reasonable written notice a tenant can be evicted if a landlord requires the unit for:

  • their own use and not renting it out
  • the use of an immediate family member
  • the use of a person who will provide care services to the landlord or a member of the landlord’s immediate family, who is living in the same building or complex

Starting September 1, 2017, the landlord must either give the tenant the equivalent of one month’s rent or offer the tenant another unit that the tenant accepts.

Only individual landlords, not corporations nor real estate agents, can give notice of termination for this reason.

Once the landlord gives the tenant a notice terminating the tenancy for one of these reasons, they can apply to the LTB for an order evicting the tenant. However, a tenant can only be evicted at the end of their tenancy and only if the LTB issues an eviction order.

Can landlords trick tenants into leaving? Per a tenant’s rights when their landlord is selling the house, they cannot be tricked into leaving. One common scenario would be a landlord getting the tenant to leave by falsely claiming they intend to move in. The motivation may be to evoke a more sympathetic response from the tenant than would arise if they knew the landlord’s true intentions of actually selling the place.

What some landlords don’t know is that, when issuing such an eviction notice (known as an N12), they actually need to occupy the property for at least one year.

If they do just about anything else with the property (including renting it to someone else, tearing it down, or selling it), they can be slapped with a $25,000 fine and ordered to pay damages to the tenant, per rules introduced in 2017.

New rules under the Protecting Tenants and Strengthening Community Housing Act, 2020 (known as Bill 184) and existing rules under the Residential Tenancies Act, 2006 help to ensure that tenants’ rights are protected.

Under the new law, the maximum fine for an offence under the Residential Tenancies Act, 2006 has doubled and can be up to:

$50,000 for an individual
$250,000 for a corporation

I’m a landlord. An eviction order has already been issued for my rental unit. Can the tenant be evicted? Only the Sheriff can evict a tenant from a rental unit if the tenant does not move out after the LTB has issued an eviction order. On April 8, 2021, the Government of Ontario made a new regulation (O.Reg. 266/21) which says that the Sheriff cannot enforce any LTB eviction order unless the order specifically asks the Sheriff to expedite the eviction.

If your order asks the Sheriff to expedite the eviction, then it can be enforced by the Sheriff.

If the order does not include a request to the Sheriff to expedite the eviction, the Sheriff cannot enforce the eviction until the Government removes the regulation. The LTB does not know when the when the Government will remove the regulation.

I am a tenant. The LTB has issued an eviction order. Do I have to move out? I heard that evictions are on hold. If the LTB has issued an eviction order, you are required to vacate the rental unit by the deadline in the order. If the order terminates the tenancy because of rent arrears, you can void the order and continue the tenancy by paying the amount ordered by the deadline in the order.

If you do not vacate the rental unit by the deadline in the order, the landlord can file the order with the Sheriff for enforcement. As a result of a new regulation (O.Reg. 266/21) made by the Government of Ontario on April 8, 2021, the Sheriff cannot enforce any LTB eviction orders unless the order asks the Sheriff to expedite enforcement. The Sheriff can resume enforcing all eviction orders after the Government removes the regulation.

In what kind of situations would the LTB ask the Sheriff expedite the eviction? Section 84 of the Residential Tenancies Act, 2006 says that the LTB must ask the Sheriff to expedite the eviction if the tenant is being evicted because they:

  • willfully damaged the rental unit
  • used the unit in a way which is inconsistent with residential use and caused, or is likely to cause, significant damage
  • committed an illegal act in the unit involving the production or trafficking of illegal drugs
  • seriously impaired someone’s safety
  • substantially interfered with the landlord’s reasonable enjoyment – in cases where the landlord and tenant live in the same building and the building has 3 or fewer residential units

There is an exception to that rule. If the adjudicator orders that the enforcement should be postponed under section 83(1)(b) of the Residential Tenancies Act, the LTB does not have to ask the Sheriff to expedite the eviction, even if the tenant is being evicted for one of the reasons above.

If a landlord believes that an eviction order should include a request to the Sheriff to expedite enforcement, but the application is not based on any of the grounds contained in section 84 of the RTA, the landlord may raise this issue during the hearing. The adjudicator may consider whether the tenant is responsible for an urgent problem such as a serious and ongoing health or safety issue at the residential complex or a serious illegal act that occurred at the residential complex. The tenant can make submissions on this issue if they are at the hearing.

I am a tenant and my landlord wants to evict me to do renovations. What are my rights? Your landlord must compensate you if they evict you from your unit to:

  • renovate
  • repair
  • demolish

They must give you the right of first refusal to move back into the unit following the renovation. You must notify your landlord in writing before you leave that you want them to offer you the unit when they complete the renovation.

Under the new rules, if your landlord fails to provide you a right of first refusal, you will have two years, rather than one, to file a claim with the Landlord and Tenant Board for compensation

What can I do if my landlord gives me a Notice of Termination? Read the notice to see why and when the landlord is asking you to leave. You may want to:

  • talk to the landlord about the notice and correct any problems, if possible.
  • leave the unit.
  • stay in the unit and see if the landlord files an application with the LTB. You will have a chance to explain the situation at a hearing.
  • You have the right to stay in your unit until the LTB issues an eviction order.

What can I do if I feel my landlord has wrongfully evicted me ? Landlords must act in good faith when evicting a tenant for reasons that are not the tenant’s fault. This means the landlord must have honest intentions to use the rental unit for the purpose stated on the eviction notice. Landlords will also be required to disclose their past use of no-fault evictions when applying for no-fault evictions. This will give the board more information to consider when determining whether the application was made in good faith and if an eviction order should be issued.

If the board determines that a landlord has given a notice of termination in bad faith, they may make an order requiring the landlord to pay the former tenant the sum of:

  • the difference between the last rent charged to the former tenant and the former tenant’s current rent in their new unit for up to a one-year period
  • up to 12 months of the last rent charged to the former tenant, and
  • reasonable out-of-pocket moving, storage and other expenses that the former tenant has incurred or will incur.

This applies to all bad faith evictions, including:

  • where the landlord does not allow the tenant to move back into the unit after repairs or renovations
  • where the landlord or purchaser does not move into or use the unit themselves

Are tenants allowed to interfere and not allow prospective buyers to view the property for sale? Landlords/sellers who are selling a “tenant” occupied home are encouraged to avoid in-person showings as landlords have a duty to accommodate their tenants.

Can I refuse to let the landlord in if the landlord wants to enter my unit? If the landlord has a valid reason (as allowed by the Residential Tenancies Act) for entering your unit, you cannot refuse to let the landlord in. If you don’t let the landlord in, the landlord can give you a notice of termination claiming that you are interfering with their lawful rights and you could be evicted. Also, interfering with a landlord’s lawful right is an offence under the RTA.

Hearings for Eviction Applications Have Resumed

On March 19, 2020, the Ontario Superior Court issued an order suspending residential evictions. At that time, the Landlord and Tenant Board suspended hearings related to eviction applications unless the matter related to an urgent issue such as an illegal act or a serious impairment of safety.

On August 1, 2020, the LTB resumed hearing all types of applications, including those related to evictions.

Notice of Termination
In most cases, serving a Notice of Termination is the first step before a landlord can apply for an eviction order from the LTB.

Tenants
If your landlord gives you a Notice of Termination to end your tenancy, you do not have to move out of your unit. You have the right to stay in your rental unit until the Sheriff’s Office enforces an eviction order issued by the LTB.

Landlords
If you served your tenant with a valid Notice of Termination, you can file an application for eviction with the LTB. For more information, see the LTB brochure: How a Landlord Can End a Tenancy.

For more information on temporary changes to residential rental processes and where landlords and tenants can get more help, you can visit: Ontario.ca/rent  Landlord and Tenant Board    and  Residential Tenancies Act

*** Nothing contained in this blog constitutes legal advice and no solicitor-client relationship and/or privilege forms between any parties. If you are in need of any legal advice, please contact a legal professional. ***