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RTA - Other Rent Proceedings. Amstar Pool LLP v. Boothe
In Amstar Pool LLP v. Boothe (Div Court, 2024) the Divisional Court commented on the similarity between RTA s.121 ['Agreements to Increase Rent on Capital Expenditures and Other Service Increases'] and s.123 ['Changes in Rent on Agreement to Change Prescribed Services etc']:[7] In relation to the substantive appeal, Amstar argues the Board applied the wrong legal test when deciding whether Amstar overcharged Mr. Boothe. Amstar points to the fact that the Board referred to the wrong section of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 when deciding whether Mr. Boothe had been overcharged and should be reimbursed.
[8] One of the issues the Board considered was whether Mr. Boothe’s rent was lawfully increased because he was given use of a parking space. Section 123(1) of the Act says a landlord may increase the rent charged to a tenant at any time if the landlord and the tenant agree that the landlord will add a parking space to the tenant’s occupancy of the rental unit. The Board found, “there is no evidence before me that the Tenant agreed to increase the rent charged for a parking spot.” The Board referenced s. 121(1)(b) of the Act, not s. 123(1) of the Act.
[9] Amstar argues that s. 121(1)(b) of the Act has no application in this case and it was a legal error for the Board to refer to s. 121(1)(b) instead of s. 123(1). I do not agree.
[10] Substantively, sections 121 and 123 of the Act are similar. Both provisions deal with circumstances in which the landlord can increase the rent in exchange for an additional service or amenity that is being or will be provided. Importantly, both provisions require proof of an agreement between the landlord and tenant and proof of an addition service or amenity. Section 121(1)(b) says a landlord and tenant may agree to increase the rent above the guidelines prescribed in the Act if the landlord has provided or undertakes to provide “a new or additional service in exchange for the rent increase.” Section 123 allows the landlord to increase the rent at any time if the landlord and tenant agree that access to a parking space (or another prescribed service) will be added to the rental agreement.
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