You’re a landlord in Ontario, and you’re facing a head-scratcher

Your tenant has seemingly disappeared. Rent continues to be paid, but you haven’t seen them in months, and you suspect they may be subletting the unit without your permission. This situation, while seemingly convenient at first glance, can quickly become complicated. Here’s a breakdown of what you should know and what steps you can take.

Understanding the Legal Landscape in Ontario

The key legislation in this context is the Residential Tenancies Act 2006 (RTA). This act governs the rights and responsibilities of both landlords and tenants in the province of Ontario. Misinterpreting or ignoring the RTA can lead to potential legal trouble, so it’s crucial to proceed carefully.

Is it Abandonment or Unauthorized Subletting?

The primary question is whether the tenant has abandoned the unit or sublet it without permission. While consistent rent payments suggest against abandonment, the extended absence points towards the possibility of unauthorized subletting.

• Abandonment: If a tenant abandons a rental unit, the landlord can take steps to terminate the tenancy. However, proving abandonment requires more than just their absence. Factors such as unpaid rent, removal of personal belongings, and termination of utilities are typically considered. Since the rent is being paid, proving abandonment will be very difficult.
• Unauthorized Subletting: Subletting occurs when a tenant rents out their unit to another person – a subtenant. They do so while still legally responsible for the original lease. Under the RTA, a tenant must obtain the landlord’s consent before subletting.

Why Unauthorized Subletting is a Problem for Landlords

• Unknown Subtenant: You don’t know who is residing in your property. This raises concerns about their background, potential for property damage, and adherence to the building’s rules and regulations.
• Enforcement Difficulties: If issues arise, dealing with an unauthorized subtenant is often more complex and legally challenging than dealing with your original tenant.
• Potential for Overcrowding or Illegal Activities: You have no control over the number of people living in the unit or the activities taking place there.

Investigative Steps You Should Take:

1. Document Everything: Start meticulously documenting every interaction and observation. Record dates, times, conversations (if any), and any evidence supporting your suspicion of subletting.
2. Attempt to Contact the Tenant: Make documented attempts to contact your tenant directly.  Clearly state your concerns and request a meeting to discuss the situation. Keep copies of all correspondence.
3. Observe and Gather More Information: Observe the property discreetly without trespassing or infringing on anyone’s privacy. Notice if different people are entering and exiting regularly, if there’s increased traffic or noise, or if new furniture/belongings have appeared.

Serve a Notice of Entry (with a Reason):

While you can’t just barge in, you can enter the unit with proper 24-hour notice for valid reasons, such as scheduled maintenance or repairs. This provides an opportunity to observe the unit and potentially confirm your suspicions. Be sure to specify the reason for entry in the notice.

Serve a N5 Notice of Termination

Consider Serving an N5 Notice (Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding).

The notice alleges that the tenant is substantially interfering with the landlord’s rights, privileges and interests. Use the notice to advise the tenant that they are subletting the unit without your permission. Ensure to include specific dates and times and a description of the events (proof).   The N5 Form will give you a date by which you can advise the tenant that the tenancy is over, and if they fail to leave the unit by that day, you will apply to the Landlord and Tenant Board for an eviction order.

Consult with a Legal Professional such as Lisa Barder:

She is a licensed paralegal who has been representing Ontario Residential Landlords for over a quarter of a century.
A paralegal or lawyer can advise you on the best course of action based on the specific details of your case and ensure you comply with all applicable laws.

Important Considerations and Cautions:

• Avoid Self-Help Eviction: You cannot simply change the locks or forcibly evict anyone, even if you suspect unauthorized subletting. This is illegal and could result in significant penalties.

• Refrain from engaging in any conduct that may be deemed harassment or a violation of privacy.

• Refrain from engaging in any conduct that may be deemed harassment or a violation of privacy.

• Familiarize yourself with the Landlord and Tenant Board processes and requirements.

In Conclusion:

Discovering your tenant has seemingly vanished and potentially sublet the property without your consent is a stressful situation. By taking a methodical approach, documenting everything, and seeking professional legal advice, you can protect your rights as a landlord and ensure you are acting within the bounds of Ontario’s Residential Tenancies Act. Remember, proactive communication and adherence to the law are crucial for a favourable outcome.

On February 22, 2021, Toronto joined three eastern Ontario regions in resuming eviction enforcement, and with restart dates eyed for the entire province now, landlords have drawn a collective sigh of relief. Of course, no landlord wishes for a situation that requires an action to evict, but when push comes to shove, and the tenant is costing an income loss, it’s definitely time to look at reducing or eliminating the problem – which sometimes can mean to evict. 

The initial eviction halt in the province of Ontario, has of course, been attached to the Premier Ford declared state of emergency and lasts or continues as long as a region is under stay-at-home orders. To that end, it is extremely important that affected landlords stay up to date on the status of their properties, as a return to an “emergency brake” could again be applied if Covid-19 cases once more spike, such as what happened in early January when modelling data was suggesting hospitals could become overwhelmed. 

Although various government housing critics have been urging that, due to the pandemic, there be some type of rental subsidy or relief to help lower rental arrears for tenants in need, to date there seems nothing on the horizon so it’s important to landlords that they be allowed to resume evictions, as no one is paying their bills and mortgages. It’s unfortunate of course, but for those landlords who happened to be saddled with “bad tenants”, out to just take advantage of the Emergency Act by ignoring their rent obligations and not working with landlords, it is essential landlords be allowed the ability to evict. One needs only look to a recent Toronto area couple who were criminally charged with fraudulently “renting” housing properties. This dynamic duo would pay first and last month’s rent and then not pay else anything afterwards, including rent or utilities, in all scamming landlords at 8 different properties over a 10-year period! Could the landlords have avoided that nightmare by simply doing due diligence? Likely. 

That’s not to say a landlord cannot or should not work with a tenant who is willingly making an effort and is agreeable to making a reasonable payment plan to get caught up, and of course it is in a landlord’s best interest to keep a respectful tenant, but for the “nightmare tenant” situation, it’s simply not fair to the property owner. And so, in those cases, there may be no reasonable expectation they will pay up before disappearing into the night, damaging the property, or making neighboring tenants lives miserable – which could also additionally cost a landlord from an action brought by that other tenant. 

And, of course, having an empty unit does no good to the landlord either, as it takes time and more money to put up ads, perform background and financial checks, and find a new suitable, trustworthy tenant which in this day and age is invaluable to do.  

So do your due diligence when prospecting for a tenant, otherwise it is you who ends up paying the price, and some. No one is going to do it for you in the end like you would, as no one has your best interests in mind better than – You! 

 

 

 

On July 30, 2020, the Landlord and Tenant Board (LTB) announced it is gradually expanding services in August. However, all in-person service counters remain closed until further notice.

Effective August 1, 2020, the LTB will begin to issue eviction orders that are pending, start to issue consent eviction orders which are based on landlord and tenants settling their dispute through an agreement, continue to hear urgent eviction matters related to health and safety that are scheduled,
Start to schedule hearings for non-urgent evictions, and conduct non-urgent eviction hearings starting in mid-August and into the fall.

Here is the Link Below

http://www.sjto.gov.on.ca/ltb-july-30-2020-landlord-and-tenant-board-expanding-services-while-keeping-ontarians-safe-during-covid-19-recovery/

You may also contact the writer of this blog, Landlord Paralegal Lisa Barder at (289) 788-4113 

NEW LAWS MAKE EVICTIONS A MINIMUM FIVE STEP PROCESS DURING COVID 19! – FIND OUT HOW TO GET TO THE NEXT STEP – Landlord Paralegal is Calling on all Landlords to Act Now!

Now that the Landlord & Tenant Board is resuming hearings starting in August 2020, hundreds of thousands of Landlords across Ontario are waiting for the Board send out a Notice of Hearing, attend the hearing and obtain an eviction order. However, with the recent changes to the Residential Tenancies Act, a landlords chances of obtaining an eviction order at the first hearing are slim. The Board Member will be required to determine whether the landlord has attempted to enter into a “Payment Agreement”

Learn How to Obtain a Flawless “Payment Agreement Order” from the Landlord & Tenant Board Without Having to Wait for Your Hearing and Propelling Yourself One Step Ahead in the Process to Obtaining Your Eviction Order During the Pandemic.

Step 1 – N4

Step 2 – File L1 Application

Step 3 – Payment Agreement

Step 4 – L4 Application

Step Five – Obtain Order and File Order with Sheriff!

It is Important that Your Paperwork and Legal Strategy is Flawless or Your Tenant May Prevail in the Process and Put you Back to Step One.

There is No Time to Wait – Act Now – Contact Landlord Paralegal Lisa Barder at (289) 788-4113 to schedule your free half-hour consultation

According to a July 20, 2020 government news release (https://s3.amazonaws.com/tld-documents.llnassets.com/0020000/20170/ontario-moving-more-regions-into-stage-3%20(1).pdf ) Hamilton is included in the list of Public health units permitted to join the other 24 public health regions that entered stage 3 on July 17, 2020.

What do the Ontario Legislature’s executive branch, the judicial branch, the Landlord & Tenant Board (LTB), and Landlords all have in common? They have set the wheels in motion before the legislature in the passing of Bill 184 https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-184 and creating the legal foundation for a Landlord to finally make a claim at the LTB for Utility Costs and Property Damages up to one year after the Tenant Vacates or is evicted from the rental unit.

After years of lobbying and numerous arguments over jurisdiction put before the courts, finally, new hope that Landlords will not find themselves before the Small Claims Court spending extraordinary time and expense arguing for jurisdiction, tracking down their former tenants’ whereabouts, filing voluminous court documents, arguing motions, and litigating at trial.

But for Mike Harris’s government, failing to ensure equal rights of landlords and tenants in the passing of Bill 96 – Tenant Protection Act, 1996, a Landlord, over the past almost 20 years could have simply filed their application at the Landlord and Tenant Board after paying the application filing fee, locate and serve the Tenant and have their claim for utility costs and property damages heard within the exclusive jurisdiction of the Landlord and Tenant Board rather than the extensive task of having to go before courts.

It is well-known knowledge that utility costs and damages don’t usually crystallize until after the tenant has vacated the property, and why should the Landlord have to cover costs for their former tenant’s hydro, gas, and water consumption or have the unpaid water levied on property tax and spend a considerable amount of time and money in litigation before the Small Claims Court to obtain judgement? Why shouldn’t a landlord have a similar right of jurisdiction before the LTB that a tenant has? The lobbying has reduced the “gap” in the legal system and the solution rests in the passing and enactment of the provisions set out in Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020 before the Ontario legislature.

You see, up until now, Tenants may file a claim against their former Landlord up to one-year after they vacate the rental property, but (surprisingly) former landlords are not granted a similar right to file against their former tenants. This naturally, has created a variety of complications for both Landlords and Tenants. For example; landlords and tenants having to split their cases before the LTB and Small Claims Court and the landlord having the grueling tasks of arguing jurisdiction and the provisions of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 alongside common law principals of contract law before the Small Claims Court, and the former tenant having the jurisdiction to have their claim heard separately by making claims for rent abatement, harassment, interference, and human rights violations before the government-appointed executives and specialized Members of the LTB under the umbrella of “Social Justice.”

The Executive Branch of government has come along way in the past 76 years in its efforts in obtaining the control and exclusive jurisdiction over all landlord and tenant disputes after being forced by lobbying businesses to repel rent regulation in Ontario under the National Housing Act 1944 in under a decade (https://en.wikipedia.org/wiki/Rent_control_in_Ontario).

Even when the Progressive Conservative government of Mike Harris in June of 1998.^[3] took the control of rent increases, eviction, arrears, and dispute resolution from the Ontario court system (the judicial branch of government) and assigning jurisdiction to a newly created quasi-judicial body (the executive branch) the Ontario Rental Housing Tribunal.^[5] (the now Landlord and Tenant Board), claims for utility costs and, damages and arrears that crystallized after a tenant vacates a property remained within the exclusive jurisdiction of the small claims court, the Landlord and Tenant Board does not (currently) have the jurisdiction or authority to hear any of these cases.

It appears now, however, some 70 years later, with the anticipated passing and enactment of Bill 184, (in terms of all landlord and tenant disputes under $35,00.00) will finally be 100% within the “Exclusive Justification” of the executive branches Landlord and Tenant Board and upon the current Conservative Government enacting the provisions of Bill 184, the Landlord and Tenant Board by virtue of section 168 of the Residential Tenancies Act, 2006, S.O. 2006, C. 17 will, indeed, finally have “Exclusive Jurisdiction” to determine all landlord and tenant legal disputes and finally all matters (both landlord and tenant) can all be heard together at one government agency.

Landlords have the power to file, up to one year after the tenant vacates (not the usual two years before the small claims court) the following applications;

1. File a claim for arrears of rent after a tenant vacates, including the rent that accrues after a tenant breaks a fixed-term lease or fails to give proper 60 days’ notice.
2. File a claim for general damages after a tenant vacates for interfering with the landlord’s reasonable enjoyment, lawful rights, privileges or interest.
3. File a claim for compensation after the tenant vacates for outstanding utility costs.
4. File a claim for property damage after the tenant vacates.

The legislature, however, has passed the buck with regard to service of the Notice of Hearing and Application to Landlord. In the proposed Bill, the RTA will also be amended to include a provision that the landlord must give the tenant or former tenant a copy of the application and a copy of any notice of hearing issued by the Board and must, in specified circumstances, file with the Board a certificate of service.

This is an important point of the new proposed law to remember; If you do not know where your tenants moved to, and you do not serve them, you may have difficulties convincing a Board Member to give you judgment. After all, this is an Administrative Board functioning within a democratic system and all citizens have the right to be heard and make full answer and defense before any court and Administrative (quasi-constitutional) Board.

Collecting information, at the outset of the tenancy from prospective tenant(s) and requesting updated information as the tenancy progresses is also important in collecting outstanding utility costs and damages at a later date. Obtaining plate numbers, and copy of your prospective tenant’s driver’s license, personal and emergency references, accepting rental payment made by cheque and retaining a copy of that cheque, and gathering updated employment information are some very important things to do in increasing your chances of collecting bad debt.

My advice to each and every landlord out there file at the LTB, at the time of your “cause of action,” and when (hopefully) the tenant is still in possession, file your application, and should the Board not have a process in place whereby a landlord can update the utility costs at the hearing (similar to arrears of rent L1/L9 Update Form) you can always seek to amend your application to include all accrued utility costs and or property damages as they crystallize once the tenant moves out.

In Ontario’s current system, there are many challenges landlords face in obtaining a judgment, and collecting against former delinquent tenants. Has the enactment of Bill 184 made those challenges easier? As a matter of procedure and having a “one-stop-shop”for all landlord and tenant disputes before the LTB, I would say, yes. However, without knowing the tenants whereabouts, a landlord will be out of luck once the strict one year limitation period expires.

Lisa Barder is a Licensed Paralegal and has been providing legal services for Landlords since 2001 and has collected hundreds and thousands of dollars and evicted tens of thousands of tenants in her career as a paralegal.  To schedule a one hour consultation with Ms. Barder, you may contact Lisa Barder at barder@landlordparalegal.com or by phone (289) 788-4113.