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RTA - Personal and Purchaser Possession (3). Vanderhoof v. Sakhawat [condo conversion exemption to personal/purchaser possession - RTA 51]
In Vanderhoof v. Sakhawat (Ont Div Ct, 2025) the Ontario Divisional Court dismisses a landlord's RTA 210 appeal, here where the LTB refused "to terminate the tenancy between the parties because the relevant provision of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (Act or RTA), s. 51(1), did not apply to the tenancy. Subsection 51(1) prevents a landlord of a residential complex that is converted to a condominium building from giving notice that they require the unit for their own use.":[5] The landlord brought an application before the Board seeking a termination of the tenancy because she “in good faith required possession of the rental unit for the purpose of residential occupation for at least one year.” In its November 22 order, the Board found the tenancy was not exempt from the RTA. The Board started by finding there was incomplete evidence regarding the effect of the receivership and whether the life lease impacted the tenancy in the condominium conversion. It went on to conclude that: (1) s. 51(1) of the RTA prevented the termination of the tenancy on conversion to a condominium building and (2) the parties met the definition of landlord and tenant. In the Board’s view, there was no exemption that would remove the tenancy from the RTA. The Board also relied on Bory v. Bory, 2016 ONSC 526 to find a life lease did not render a tenancy exempt from the Act.
[6] The Board denied the landlord’s request for review. In that decision, the Board stated that there were no binding court decisions providing that life leases are not governed by the Act. The Board was satisfied that the member’s conclusion that there was no provision exempting the tenancy from the Act was a viable interpretation of the Act.
[7] In this court, the landlord submits the Board erred in the threshold determination of the applicability of the RTA. In her submission, life leases are a form of ownership interest that are unregulated, including by the RTA. She states the Board erred in failing to consider this threshold issue and by imposing on the landlord the burden of proving an exemption in the RTA. The landlord also submits the Board erred in conflating “life leases” with “leases for life” as discussed in Bory v. Bory.
[8] For the following reasons, the appeal is dismissed.
Did the Board err by finding the Act applied to protect the tenancy on conversion to a condominium building?
[10] In the landlord’s submission, life lease buildings are unregulated. She therefore submits s. 51(1) of the Act, which addresses the conversion of a residential complex to a condominium building, cannot apply because the building was not a residential complex covered by the Act in the first place.
[11] Subsection 51(1) prevents a landlord from giving a tenant notice under s. 48 of the Act if the tenant was a tenant of a rental unit when the building was converted to a condominium building. Section 48 permits the landlord to give notice of termination of the tenancy if they in good faith require the unit for their own use, which is what happened here. Subsection 51(1) provides: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. [12] I disagree that the Board erred in applying this provision to the circumstances before it. The starting point was that the Act applied. The landlord brought a s. 48 application, which is an application under the Act that a “landlord” may, by notice, terminate a “tenancy.” The terms “landlord,” “tenant,” and “tenancy agreement” are defined in s. 2 of the Act. The landlord agrees that these terms applied. This is why she brought her application before the Board.
[13] I am not persuaded by the landlord’s submission the Board erred in accepting the building was a “residential complex” for the purpose of s. 51(1). The Act is remedial legislation that must be interpreted with a tenant protection focus: Elkins v. Van Wissen, 2023 ONCA 789, at para. 42. Subsection 3(1) of the Act provides that, subject to exceptions not applicable here, the Act “applies to all rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.” Subsection 3(4) emphasizes that the Act prevails over other legislation, stating: “If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.”
[14] The Board reasoned that the Act applies to all rental units in all residential complexes unless specifically exempted: Act, s. 3. “Residential complex” is defined in s. 2 of the Act to mean, in part: “a building or related group of buildings in which one or more rental units is located.” The landlord agrees the current arrangement between the landlord and tenant is a rental unit. At a minimum, it is beyond dispute that the building was a residential complex at the time of the application before the Board.
[15] Given the application of the Act to the tenancy, and considering the landlord had brought the application, it was the landlord’s burden to prove the arrangement between the parties was not covered by s. 51(1).
[16] I would not interfere in the Board’s determination that the landlord did not meet that burden. Although the question of whether life leases generally are covered by the RTA may be a question of law, that was not the question before the Board in the circumstances of this case.
[17] The Board was not satisfied it had sufficient evidence or information to displace the starting point that it was dealing with a rental unit in what was at that point a residential complex. First, the terms of the interest between Mr. Hui and ROS were not in evidence. There was a general reference to the building being a “life lease building,” but no specific information on what that meant. The Board had only the rental agreement between the tenant and Mr. Hui, which was a standard residential tenancy agreement.
[18] Second, the evidence before the Board included notices from the receiver to the tenant, regarding the landlord’s “assumption of the Tenant’s month to month lease,” together with directions to make monthly rent payments to the landlord after the closing date. The directions did not suggest there was a new type of arrangement or tenancy being created.
[19] Third, despite its requests, the Board was not provided with detailed information about the Superior Court proceedings and how a prior life lease impacted the tenancy in a condominium conversion. The landlord originally had submitted to the Board that the vesting order explicitly ended the existing tenancy. The Board asked the parties to seek clarification from the court regarding the vesting order and title order, because the Board was of the view this information was necessary to determine the application.
[20] The landlord subsequently advised she was no longer relying on the vesting order. However, that put the Board in the position of not having evidence regarding the impact of the court proceedings on the tenancy. Ultimately, the Board was unable to determine how a prior life lease may have impacted what appeared to be an existing tenancy. The Board stated at para. 11 of its reasons:I find that there was incomplete evidence before me regarding the effect of that receivership and whether a prior life lease impacted the tenancy in the condominium conversion. This determination should not be made in a vacuum, to act as if there was not a prior proceeding in the Superior Court that dealt specifically with this tenancy and based on extensive supporting documentation that the Receiver would have received and considered. To withdraw the Vesting Order and seek not to rely on the determinations of the higher court, which the Landlord previously stated were applicable in this case, leaves me with incomplete information on the Court's final ruling in this tenancy - and in a position a contradictory order may be made by this Board. [21] Overall, the Board relied on the evidence before it to conclude the tenancy between the landlord and tenant fell within the scope of the Act. I agree with the tenant that, given the nature of the reasoning, which was not that life leases generally are governed by the Act, but that the evidence before it did not displace the Act, this was a question of mixed fact and law that falls outside the jurisdiction of the court.
[22] Because the Board did not err in finding the Act applied, there also was no error in its conclusion that, to avoid the protections of the Act, the landlord would have been required to demonstrate an exemption under s. 5.
[23] For related reasons, there was no error in the Board’s reliance on Bory v. Bory. That case involved an agreement by which the tenant had the right to occupy the premises for a lifetime. The court found s. 48 did not apply because it could only authorize the landlord to regain possession of the unit at the end of the term of the tenancy, which would mean only on the tenant’s death. The Board relied on the case to say a lifetime tenancy was not exempt from the Act. Because the Board had no specific information about the nature of the interest between the parties prior to conversion, but knew it was being referred to as a “life lease,” the court’s treatment of a lifetime tenancy was not irrelevant. In any event, the reference to this case does not affect the Board’s conclusion that the landlord had failed to establish the tenancy fell within an exemption in the Act. . Kim v. Leung
In Kim v. Leung (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from three related orders.
Here the court considers 'good faith' in the context of an RTA s.48 ['Notice, landlord personally, etc., requires unit']:[14] .... As the Board member stated, the test for determining whether a landlord intends to occupy a unit as his residence does not consider whether his intended use is reasonable, but only whether it is genuine: Salter v. Beljinac, 2001 CanLII 40231 (ON SCD). The Board member had heard evidence on why the particular unit was desirable to the landlord and his ownership of the other properties were therefore of limited relevance. . Mason v. Azubalis
In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".
The court considered the good faith 'personal possession' termination [RTA s.48] provisions, and that the 'good faith' must be that of the landlord themselves (and not that of the proposed occupant):[26] On the first ground of the appeal, I find that the Board confused the test as to whether the good faith intention needed to be that of the Landlord or the Landlord's son, and therefore committed an error of law. The appeal is permitted on this ground.
[27] At the start of the decision the Board identified the Landlord as Anna Azubalis. However, thereafter, they seem to indiscriminately interchange the Landlord and the Landlord's son. In the context of the decision, it cannot be submitted that it was simply a typographical error.
[28] The heading used by the Board after paragraph 6 provides "Does the Landlord's child genuinely intend to move into the rental unit?". In their analysis under this heading, the Board states as follows:16. ... Rather the issue on an application like this is whether or not the Landlord genuinely intends to move in.
17. I accept the Landlord's evidence that living in close proximity with so many different individuals has the potential to cause conflict. I accept that the Landlord's require the rental unit for additional space and therefore also find that they have a genuine intention to move in. [29] In this context, when using the word "Landlord" the Board was really referring to the Landlord's son.
[30] At paragraph 27 of the decision, the Board concludes "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in. Although the timing of the events are close in proximity, the Landlord complied with the investigation and corrected the deficiencies." Again, it is the Landlord's son that will be moving in, not the Landlord.
[31] It is unclear from reading the decision whether the Board's analysis on good faith was with respect to the Landlord, the Landlord's son, or both. There may very well have been sufficient evidence before the Board to conclude that the Landlord in good faith required possession of the rental unit for occupation by her son, but the Board's error in law cannot be saved in this case.
[32] It is only in the review decision that the Board turns its mind to whether the Landlord's son was the de facto Landlord.
[33] At paragraph 15 of the review decision, the Board states that "[b]oth the Landlord and her son would fall under the Act's definition of Landlord for the rental unit given that the Landlord's son has acted as agent for the Landlord over the course of the tenancy." The Landlord's son could act as an agent for the Landlord. But this was not dealt with by the Board in their initial decision. The notice was signed by Anna Azubalis and not her son. The Board identified her as the Landlord, and did not address whether the son was or could be considered a Landlord. The decision of the Board seems to interchange the son and his mother as the Landlord, without providing any reason for same or clarifying whether their finding of intent was for the son, his mother, or the son as the Landlord.
[34] This confusion flows through in the Board's decision with respect to s. 83(3), discussed below.
[35] I find that the Board erred in law by determining that the good faith intent of the Landlord's son to move into the unit satisfied the test under s. 48(1) and not that of the Landlord. The decision of the Board in the review decision does not adequately address this error in law. . Mason v. Azubalis [good faith evidence]
In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".
The court considered the good faith 'personal possession' termination [RTA s.48] provisions, here whether direct evidence from the LL was required on the issue of good faith:Section 48(1)
[19] Section 48(1) of the RTA provides that a landlord may terminate a tenancy, if a landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by, (c) a child of the landlord.
[20] The Tenant submits that the Board erred in law because:(a) in determining s.48(1), they considered whether the Landlord's son genuinely intended to move into the rental unit, and not whether the Landlord had a good faith intention. The Tenant submits that whether the son wished to move into the unit does not answer the question of whether the Landlord gave notice in good faith.
(b) there was no evidence from the Landlord on which the Board could draw its conclusion, and it was therefore an error of law. The Landlord's son and her niece provided testimony. The Landlord did not attend at the LTB hearing. [21] Starting with the latter issue, the Landlord's son and her niece provided testimony. The Landlord did not attend the hearing. Whether the Landlord herself gave testimony is not determinative of the issue. Further, the Landlord's son's evidence was required to be before the LTB.
[22] The requirement under s.48(1) is whether the Landlord had a good faith intention for her son to reside in the property. The motive in seeking possession is largely irrelevant, however, the Board can consider the conduct and the motives of the Landlord in order to draw inferences as to whether the Landlord desires, in good faith, possession of the rental unit for her son to reside in the property: see Fava v. Harrison, 2014 ONSC 3352, at para. 17.
[23] Section 72(1) of the RTA provides that the Board shall not order eviction unless the landlord has filed an affidavit, sworn by the person who personally requires the rental unit, certifying that the person in good faith requires the rental unit for their personal use.
[24] There is no question that it was important for the Board to determine whether the Landlord's son genuinely intended to move into the unit. The Landlord's good faith would be meaningless if the son did not intend to move into the unit. It is for this reason that the affidavit or evidence from the Landlord's son was mandatory.
[25] In support of the position that there was no evidence upon which the Board could have reached its conclusion that the landlord in good faith required possession of the unit for her son, the Tenant relies solely on the failure of the Landlord to testify. However, a landlord does not necessarily have to testify to succeed under s. 48. There is no reason why, in appropriate circumstances, a landlord’s intention could not be inferred from the evidence of other witnesses. I therefore reject this ground of appeal. . Reid v. Shewen
In Reid v. Shewen (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 landord's appeal, this from "the Review Decision of the Landlord and Tenant Board (“LTB”), ... that declined to grant a review", here where the decision "found that that Appellant gave the Respondent/tenant a N12 [SS: 'Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit'] notice, that she required the unit for her own use, in bad faith and ordered the Appellant to pay the Respondent $35,000, which included $24,000 in general compensation".
The tenant vacated the unit on the strength of the Notice of Termination, and - on learning that it was issued in bad faith - applied successfully to the LTB [under RTA 57(3)] for bad faith remedies:[12] The Appellant was ordered to pay $35,000 in compensation to the Respondent broken down as follows:. $5,832.00 for increased rent the Tenant has incurred for the one-year period from April 2022 to April 2023.
. $1,000.00 for the reasonable moving, storage, and other like expenses that the Tenant has incurred as a result of having to move out of the rental unit.
. $24,000.00 in general compensation
. $4,186.00 for cost of additional time and travel to and from work
. $53.00 for the cost of filing the application.
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