|
Return to Earlier Part
2. Formation of a Tenancy
(a) Overview
The terms "tenancy", "lease" and "tenancy agreement" are used here interchangeably. In the typical case of a negotiated tenancy there are no necessary special formalities required to establish it. I have often found clients to be quite insistent that they 'do not have a lease' if they do not have a written lease. However, this is quite wrong as the applicable legislation reads: RTA s.2(1)
"tenancy agreement" means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit;
Note:
There is a little-used potential argument that any lease purporting to transfer possession for a period of a year (perhaps three) or more must be in writing [Statute of Frauds, s.1,3], but the Statute of Frauds is antiquated law inconsistently interpreted by the courts and it is rarely advanced in argument. Both courts and tribunals resist legal arguments that render substantive relationships void for lack of technical compliance, and any such argument would likely be met with the counter-argument that RTA s.2(1) above supercedes the Statute of Frauds. Alternatively, (and at its highest) such an argument might only result in the arrangement being held to establish a monthly periodic tenancy, which is typically more advantageous to a tenant anyway. In any event, both written and "oral" agreements are typically effective in law to ground a lease. As well, tenancies are often acknowledged by the ongoing behaviour of the parties. This latter situation commonly occurs where another person moves in with the existing tenant and the landlord later accepts a rent cheque from the new occupant or otherwise deals with them as though they were a full tenant - thus creating a 'tenancy by estoppel' which the landlord would be hard-pressed to deny. Situations of shared accomodation, sub-let and assignment [see s.5: "Subletting, Assignments and Similar Arrangements", below] often require close examination of the behaviour of the parties before the legal arrangement can be definitely categorized.
Readers should also be aware of the creation of "statutory tenancies" [see s.2(f), below: "Statutory v Contractual Tenancies"?], which are brought about by operation of law in various circumstances.
(b) Licenses Distinguished
The above-quoted definition of "tenancy agreement" [Act s.2(1)] includes within it "a license to occupy a rental unit".
The common law views the landlord and tenant relationship as a possessory interest in real estate sufficient to exclude all others from possession and entry (ie. "exclusive possession"). It views a tenancy in land in the same general legal family as ownership, liens or holding a mortgage over land. A "license" on the other hand provides the "licensee" only with a right to use the subject premises - a contractual privilege of occupation.
The classic forms of a license are the "boarder" (receiving shelter and food) and the "lodger" (just shelter) who have rooms but share kitchen and bathroom facilities with others, be they fellow licensees or the owner. While formally these are distinct from tenancies in that they do not allow for the licensee to exclude the landlord from the occupied premises, practically privacy is usually respected in the main rented room - if only for market reasons.
That said, the RTA includes and governs such boarder and lodger arrangements as though they were "regular" tenancies - with an important exemption for when there is "sharing" of bathroom or kitchen facilities with the landlord or their immediate family: see Ch.2, s.2(j): "Special and Exempt Premises: Fully-Exempt Premises: Owner-Shared Accomodation"].
With necessary modification due to the slightly different nature of such arrangements, all provisions of the RTA apply to persons living in non-exempt boarding or lodging arrangements.
That said, the common law of "license" will have continuing application to some of the numerous fully and partially RTA-exempt categories discussed in Ch.2 where "exclusive possession" is not granted [again see Ch.2 "Special and Exempt Premises"], which - despite RTA s.2(1) above - are expressly excluded in whole or part from coverage under the RTA. It is beyond the scope of the present program to explore the law of "license" in great detail, but it is essentially contract law.
(c) Commencement
At common law a tenancy did not "commence" in law until actual possession of the "demised premises" (ie. the unit) was taken (this was called "interesse termini"). This doctrine is abolished by the RTA so that now: Act s.13(2)
A tenancy agreement takes effect when the tenant is entitled to occupy the rental unit, whether or not the tenant actually occupies it. Like much of the RTA this provision brings the residential L&T relationship more in accord with contract law, where enforceable rights arise at a time specified by the terms of the contract.
Due to RTA s.13(2), the dates at which a tenancy agreement are "entered into" (ie. executed either by signature, oral agreement or behavioural implication), and which it becomes "effective" (at the date the tenant is entitled to take possession) are now usually distinct. As will be seen in the rent control chapters [Chs.10-12], the "effective" date of a tenancy usually establishes the rent increase anniversary date for rent control purposes.
(c.1) 'Agreements' to Enter into Tenancy Agreements
There is an unfortunate practice in commercial tenancy practice ('offers to lease'), which at times spills over into residential tenancy practice. Landlords, by way of a preliminary 'rental application', 'offer to lease' or 'agreement to lease' - purport to bind tenants unilaterally (ie. without any further negotiation of terms) to sign a later-presented full tenancy agreement which is typically undisclosed to them at the time that they execute the initial document. Essentially the initial agreement is one to 'agree' further later, or an 'agreement to agree'. The practice is commonly an attempt to impose lease terms unilaterally on the tenant, as invariably the terms set out in the tenancy agreement add to or conflict with those set out in the initial 'agreement to agree' (indeed, if they didn't then the two documents would be identical and the two stages unnecessary).
Tenants should exercise great care when asked to sign any preliminary document in a tenancy negotiation, however it is described. True and equal negotiation calls for all terms to be on the table at the same time, and a tenancy agreement requires only one signature from the tenant. When faced with such requests, tenants are well-advised to require the landlord to present their final, full tenancy agreement for review before *anything* is signed by the tenant (in which case negotiation might just as well be based on that one primary document) - or if that is refused to simply walk away.
Some unscrupulous landlords and agents will attempt to defuse tenant suspicion by saying that it's 'only a standard-form lease' - which is legal nonsense. There is no such thing as a standard form lease in residential tenancy practice, and attempts to convince a tenant otherwise are attempts to avoid true, informed negotiation between the parties.
(d) Transfer or Sale of Rental Property by Landlord
There is a general real estate law adage that "things run with the land". This means that duties and liabilities associated with the land generally accrue to any subsequent owners.
For example, if I buy property that has a mortgage without insisting that it be paid off, the mortgagee's (ie. the lender's) right to repossess the property upon default in payment of the mortgage survives, leaving me vulnerable to loss of the property for someone else's debt. Numerous other interests in land also "run" with it, such as liens, most restrictive covenants, easements, etc. Nowadays most such interests are required to be registered on title under either the Registry Act or the Land Titles Act. This is why lawyers do "title searches" before a house purchase, to ascertain whether title is clear from such "encumbrances".
The "running with the land" principle applies to residential tenancies, and to legal duties related to them (both in existence and promised), including those related to common areas associated with such rentals: Act s.18
Covenants concerning things related to a rental unit or the residential complex in which it is located run with the land, whether or not the things are in existence at the time the covenants are made. Thus a residential tenancy survives sale of the property to a new owner, and the tenant simply finds themselves with a new landlord who has 'stepped into the shoes' of the old landlord with no other change in mutual liabilities between them. That said, the "new" landlord may at this time wish to avail themselves of specific "personal possession" or "purchaser possession" termination and eviction procedures [see Ch.5, s.2: "Regular Terminations: Personal and Purchaser Possession"].
The special situation where the rental unit becomes subject to mortgage-grounded foreclosure or power of sale proceedings - and how those proceedings impact the tenant - is discussed in Ch.2, s.9: "Special and Exempt Premises: Mortgage Proceedings".
Further, the situation where a tenant's rights are transferred either permanently (assignment) or temporarily (sublet) is specifically dealt with below in s.5: "Subletting, Assignments and Similar Arrangements".
(e) Periodic v Term Tenancies
. Basics
A "periodic" tenancy is one that is agreed (expressly or by the behaviour of the parties) to automatically renew itself after the expiry of a fixed period of time - typically (though not always) - a month (for boarders and lodgers it is often a week). Partly due to the terms of "automatic renewal" rules contained in the RTA (discussed below), monthly periodic tenancies are quite common with smaller non-professional landlords.
A (fixed) "term" tenancy is one that is agreed to run for a specific fixed period of time, after which (at least at common law - see "Automatic Renewals", below) it expires and the relationship ends. As a matter of landlord practice, term leases tend to be required in writing. However, due to the automatic renewal rules the main implication of having a "term" tenancy is to determine the extent of a tenant's civil liability for abandonment of the premises (aka 'lease-breaking') [see Ch.16: "Civil Remedies"], and when certain types of landlord Notices of Termination may be served [see Ch.4, s.2(d): "Termination Basics: Notices of Termination: Notice Periods for Regular Terminations"].
Care must be taken when distinguishing periodic from term tenancies to not confuse periodic tenancy "periods" with rent-payment "periods" for a term tenancy (which are also typically monthly). A term lease of one year normally calls for monthly rent payments, but this does not make it a "periodic" tenancy.
Legally, both the period of a "periodic" tenancy and the "term" of a term tenancy commence when the tenant's right of occupancy commences, despite possession not yet having taken place [Act s.13]. This is consistent with the abolition of the doctrine of "interesse termini" [discussed above in s.2(c)].
. Automatic Renewals
As noted above, the significance of having a "term" tenancy (say one year) is limited by the operation of "automatic renewal" provisions of the RTA: s.38(1)
If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. Essentially this means that residential tenancies no longer terminate merely by the expiry of any agreed time periods, as they can do in the commercial law situations. Landlord-initiated terminations under modern Ontario residential L&T law are only allowed for listed reasons or "causes" [see Chs.4-7] (and expiry of a term lease is not one of these listed reasons). Subject to the landlord's regulated right to increase rent, such tenancies otherwise automatically renew under the same terms as the original tenancy.
Similarly - daily, weekly and monthly periodic tenancies are automatically renewed for daily, weekly and monthly periods (respectively) [Act s.38(2)] - though this would have been inferred under the common law anyway. Note however that "periodic" tenancies of any other "period" (ie. other than daily, weekly or monthly) duration renew as monthly periodic tenancies [Act s.38(3)].
As alluded to above, a major implication of the conversion of a term tenancy into a periodic tenancy is that the landlord has a broader range of termination "reasons" [see Ch.5: "Regular Landlord Terminations"] available to terminate a tenancy at the end of each period. These causes tend to be less pressing than the other "causes for early termination" [see Ch.6: "Early Termination for Cause"] (eg. illegal activities, damage to premises) that can be used DURING the running of a period or term (ie. anytime).Case Law: Jesan Real Estate Ltd. v. Doyle
In Jesan Real Estate Ltd. v. Doyle (Ont CA, 2020) the Court of Appeal applied the RTA's 'non-waiver' provision to bar the issuance of a common law writ of possession [the RTA provides that after a term lease expires, barring some 'cause' termination that must be heard by the Landlord and Tenant Board, tenure is preserved and the lease renews as a statutory month-to-month lease]:[59] The OA provides for a three year lease term ending on February 28, 2017. Under the heading “Applicable Law”, there is a handwritten statement that “This is not a tenancy under the Landlord and Tenant Act of Ontario.” This addition is not initialed.
[60] Regardless of the validity or effectiveness of the handwritten addition, the bigger problem is that the agreement is, in fact, a residential lease governed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”).[1] The RTA does not allow contracting out of its provisions: ss.3(1), s.4; Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, 102 O.R. (3d) 590, at para. 24, leave to appeal refused, [2010] S.C.C.A. No. 369. Although this issue was not addressed by the application judge or referred to by the parties in their factums, the provisions of the RTA regarding security of tenure govern the issue of eviction: see. RTA, Part V. Since the Landlord and Tenant Board has exclusive jurisdiction to determine applications between landlords and tenants under the RTA, Jesan and the respondents must have their possessory rights determined before that Board: ss.168(2). (f) Statutory v Contractual Tenancies
While most tenancies are created through some conscious act of both landlord and residential tenant, this is not always the case. The extensive regulation of the relationship has created several instances where it, or at least it's option, is established by operation of law. These are sometimes referred to as "statutory tenancies".
'Automatic renewal' (discussed above) after expiration of a term lease is one such situation. Another is the assumption of a tenancy by the spouse of a deceased tenant [see s.4: "Spousal Assumption of Tenancy on Death or Abandonment", below].
A further example of a "statutory tenant" is the overholding occupant who - after the unchallenged expiration of 60 days of known 'illegitimate' occupation - is converted to a 'legitimate' tenant [see s.5(f): "Subletting, Assignments and Similar Arrangements: Unauthorized Assignments and Overholding Subtenants", below].
A line of case law developed under previous legislation struggled with whether such "statutory tenants" had the full rights granted to contractual tenants: Lifshitz v Forest Square Apartments Ltd (1982) 36 OR (2d) 175 (Div Ct) (there they were denied the right to assign the tenancy), though the distinction has been questioned by Lamont Residential Tenancies, 5th ed (Carswell, 1993) and later cases. Given the extensive efforts in the present RTA to establish and accomodate the status of such "statutory tenants" (this is not a term used regularly in the legislation) there appears to be no further purpose in maintaining "statutory tenancies" as a separate, vague and inferior class of tenancy.
(g) Negotiating a New Tenancy
. Overview
The RTA establishes the following rules and procedures relating to the negotiation and commencement of a tenancy.
. Factors Which May be Assessed by Landlords
Firstly, when selecting prospective tenants, "landlords may use, in the manner prescribed in the regulations made under the Human Rights Code, income information, credit checks, credit references, rental history, guarantees, or other similar business practices as prescribed in those regulations." [Act s.10]:
Human Rights Code, Reg 290/98: Business Practices Permissible to Landlords in Selecting Prospective Tenants for Residential Accomodation
These factors would also generally apply to the decision of whether to consent to a sublet or assignment as well [see s.5: "Subletting, Assignments and Similar Arrangements", below].
These provisions try to ensure that decisions to deny accomodation to people are not based on any Human Rights Code-prohibited ground of discrimination.
Human rights law and Ontario tenants are discussed in more detail at this Isthatlegal.ca link:
Human Rights Law (Ontario) Guide: Ch.2, s.3: Protected Actvities: Accomodation
. Rent Deposits Refunded if Not Applied
Where the landlord takes a rent deposit from a prospective tenant and subsequently "vacant possession of the rental unit is not given to the prospective tenant" [Act s.107(1)], the rent deposit must be refunded (ie. it must not be retained as some sort of non-refundable "application fee").
Such rent deposit may however be applied towards the rent deposit for any replacement unit provided, presuming of course that the tenant has agreed to this [see Ch.10, s.5(d): "Rent Basics: Non-Rent Charges and Security Deposits: Security Deposits: Where Possession Not Taken or Tenancy Transferred"].
. Documentation Required
As discussed in Ch.3 [see s.2(b): "Tenant Rights and Remedies: General Rights and Responsibilites: Documentation on Commencement of Tenancy"], the landlord must provide certain documentation to tenants at the commencement of a tenancy, as follows:- an information package regarding "the rights and responsibilities of landlords and tenants, the role of the [Landlord and Tenant] Board and how to contact the Board" "in a form approved by the Board", at or before the date the tenant is entitled to take possession [Act s.11];
Information for New Tenants
With Bill 184 [s.4], the information package is not required for new tenancies beginning on or after 21 July 2020, and if the standarized RTA leases applies to the tenancy [see (g.1) below] [RTA 11(3)]. A tenancy begins ("takes effect") when the tenant is entitled to take possession (whether or not the tenant actually occupies it then) [RTA 13(2)], but if the agreement to form a tenancy (which is usually prior) is dated before 21 July 2020, the exemption still applies [RTA 11(4)].
- where there is a written tenancy agreement, it "shall set out the legal name and address of the landlord to be used for the purpose of giving notices or other documents under this Act", and the "landlord shall give a copy of the agreement, signed by the landlord and the tenant, to the tenant within 21 days after the tenant signs it and gives it to the landlord" [Act s.12(1,2)];
- where there is no written tenancy agreement, "written notice of the legal name and address of the landlord to be used for giving notices and other documents under this Act." [Act s.12(3)].
Case Note: Houle v Hayes (Div Ct, 2010)
In what may be one of the most bizarre rulings I have ever read, the Divisional Court quashed a tenant's appeal which was grounded on the landlord's providing of a false name in the tenancy agreement. Section 12(1) of the RTA requires that any written tenancy agreement "set out the legal name and address of the landlord" and s.12(4) allows the tenant to withhold rent until such time as the landlord is in compliance, at which time the withheld arrears as well will come due. Despite the use of the false name in the written tenancy agreement, the court found that the tenant knew of the landlord's real name, and concluded that the tenant's reliance on s.12(4) was a "technicality" only because the error could have been corrected (but wasn't) easily by the landlord. On this basis the court not only quashed the appeal as non-meritorious but found the tenant's litigation efforts to be frivolous and vexatious.
A further ground relied on by the court was that the appellant should not be allowed on appeal to raise issues (the false name issue) that he did not raise below. This conclusion is patently against an admission by the landlord, quoted from their affidavit by the court itself, that the tenant did raise the issue but that the Board held it to be irrelevant.
In addition to the overtly erroneous treatment of evidence by the court, and the glossing over of a plain violation of statute, the court gave no consideration to difficulties the tenant would face in obtaining an enforceable order had they sought some remedy from the LL [the clear policy target of s.12(1)], or the public policy consideration of the court assisting a fraudulent enterprise. . "Serious Breach" Notice, If required
If the premises are under a "serious breach" Order [see Ch.3, s.5(c): "Tenant Rights, Responsibilities and Remedies: Tenant Rights Applications: Serious Breach Orders"], a serious breach Notice as explained in Ch.12, s.6: "Other Rent Proceedings: 'Serious Breach' Rent Increase Restriction Orders and New Tenants" is required for a new tenant.
(g.1) New 2017 Standarized RTA Leases
. Overview
In 2017 the province moved to standardized leases. The concept was pretty simple really - ostensibly 'mandatory' standardized leases were drafted and promulgated - but in the sure assumption that people wouldn't know that it was the law, the old regime for leases ('written, oral or implied') was preserved even for ongoing, new tenancies [see s.2(g): "Negotiating a New Tenancy: Documentation Requirments"] [Act 12.1(11,12)]. In effect that makes them 'optional' standardized, rather than the 'mandatory' standardized that they are presented as.
There is a half-hearted incentive system (tenants can hold back one month's rent until the landlord complies) in place to encourage parties to abide by the new system, but other than that the province didn't want to jeopardize the legality of whatever leases are in place - past, present or future.
The standardized leases require that the leases "shall be signed by the landlord and the tenant on or before the day the tenant is entitled to occupy the rental unit under the tenancy agreement" [Act 12.1(2)] which wasn't required in the old lease regime [see 'Documentation Required', above].
Any renewal of a lease [or deemed renewal of lease as a 'statutory renewal': see s.2(e) "Automatic Renewals"], even if done after the 'prescribed date' of the new regime, need not be in the standarized form [Act 12.1(3)]. The standardized RTA lease does not apply to sub-tenancies [Reg 9/18, s.5].
. Tenancies to Which the Standardized Lease Requirement Applies
The standardized RTA lease applies to any tenancies to which "all or part of the Act" (RTA) applies, except [Reg 9/18, s.1]:- care homes tenancies [Ch.2, s.3];
- tenancies solely for mobile home sites [Ch.2, s.4];
- tenancies solely for land lease community sites [Ch. 2, s.4];
- tenancies under the Homes for Special Care Act and "accommodation that is a supported group living residence or an intensive support residence under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008" [Ch.2, s.6];
- rental units in social housing [Ch.2, s.8] or any "for which the tenant pays rent in an amount geared-to-income due to public funding".
Note:
The standarized lease does not apply to non-profit co-op housing agreements, primarily because they are not tenancies [Act 94.1(2)]. . The 'Mandatory' Standardized Lease Regime
The RTA standardized lease is linked here [Reg 9/18, s.3]:
RTA Standardized Lease
The lease [Act 12.1(1), Reg 9/18, s.4]:- must "set out, in their entirety and in substantially the same format as in the prescribed form ... all the contents of the prescribed form", which are:
- an introductory note, which sets out general information about the agreement and about legislation governing landlords and tenants;
- sections, which set out all the mandatory terms of the agreement and provide information or instructions respecting the mandatory terms;
- an appendix, which sets out general information relating to the rights and responsibilities of landlords and tenants.
- and may "include additional terms but only if those terms are not inconsistent with the mandatory terms set out in the prescribed form ... and any such additional term included in the tenancy agreement that is inconsistent with those mandatory terms is void".
The new standardized leases only take effect on and after 30 April 2018 [Reg 9/18, s.2].
. 'Irregular' Leases
. Overview
As mentioned, even if the standardized lease is not complied with for new leases (ie. ones after the 'prescribed date') then the lease is still valid much as it was before this new regime. I call these 'irregular' leases.
. Forcing Compliance
If the tenant to such an 'irregular' lease wants to compel the landlord to shift to a standardized lease then [Act 12.1(4-10)]:- the tenant may, in writing, 'demand' compliance ("once" only, apparently) by the landlord providing a signed standardized lease for occupancy of the same rental unit [Act 12.1(5)];
- if, 21 days after the making of the demand the landlord has not complied, the tenant may "withhold rent payments that become due after the expiry of that 21-day period" to a maximum of one month's rent [Act 12.1(6,7)];
- the tenant may not withhold rent payments after the day the landlord complies with the demand [Act 12.1(8)];
- the landlord may require the tenant to pay the withheld rent, but only if they provide a signed standardized lease within 30 days after the first rent withholding [Act 12.1(9)].
In any event, the right of recovery accrues "even if the tenant does not enter into the proposed tenancy agreement" [Act 12.1(10)].
. Termination by Tenant
In addition, if a tenant makes a demand to comply with the new standardized leases, and the landlord does not comply within 21 days, then the tenant may terminate a yearly or term lease on 60 days notice ending at the end of a period [Act 47.0.1(1,3)].
If the landlord has complied with the demand within 21 days, but the tenant has not accepted the offer, then the tenant may terminate within 30 days after the offer was provided by the landlord. That means that the giving of the notice of termination must be within 30 days of the landlord providing the standardized lease, but that the notice period is at least 60 days and it must be at the end of a period [Act 47.0.1(2,3)].
Notices of termination by a tenant follow normal rules, requiring specification of the unit, termination date and being signed by the tenant or their agent - and if the termination date is at the end of February or March it still counts as 60 days [Act 47.0.1(4,5)].
(h) 'Illegal' Tenancies
The effect of 'illegality' on a tenancy's status under residential landlord and tenant law was considered directly in the case of Fraser v Beach (Ont CA, 2005). While decided under the old Tenant Protection Act (TPA), it's result is equally applicable under the present RTA.
In the case the court was faced with an appeal, by the tenants of an illegal rooming house, against a common law Superior Court injunction which ordered the landlords to close it down. The tenants were not party to the original proceedings and a subsequent Tribunal application brought against them to terminate and evict was dismissed. The neighbours, the moving parties in the original injunction, then sought and obtained an order within the original Superior Court proceedings - on notice to the tenants - that the tenants must vacate. It was this order that the tenant's appealed to the Court of Appeal.
In granting the tenants' appeal the court dismissed several arguments from the neighbours, including one that the 'illegality' of the tenancies undermined their status as tenants under the TPA. This argument was firmly rejected by the court as follows: [10] There is no doubt that the Tenant Protection Act applies to the rooming house and the relationship between its inhabitants and the landlords, despite the fact that it is operated contrary to the city's bylaw. Subsection 2 (1) specifies that the Act "applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary." The Act defines "rental unit" as "any living accommodation used or intended for use as a rented residential premises." The definition specifically includes, in subparagraph (b), a room in a rooming house. A "tenant" is defined to include "a person who pays rent in return for the right to occupy a rental unit" and "tenancy agreement" means "a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit ..." The rooming house itself falls within the definition of "residential complex" as it is a "building in which one are more rental units are located."
[11] These definitions, which are clear, do not exclude an illegal rooming house from their application. Not only does the text of the Act provide no basis for holding otherwise, it would be inconsistent with the purpose of the Act to withhold the protections it provides from residents of the illegal residential units leaving them at the mercy of landlords. I conclude that the Act applies to the relationship between the landlords and the tenants in this case. There is little doubt that the reasoning used in this decision is broadly applicable to a range of other 'illegalities', particularly zoning, licensing and other municipal by-law violations. Note that more serious issues of illegal tenant behaviour are addressed as termination and eviction matters in Ch.6, s.2: "Early Landlord Termination for Cause: Illegal Acts".Case Note: Pasternak v. 3011650 Nova Scotia Limited (Div Ct, 2014)
In this case the landlord's argument was that the RTA did not apply to a tenancy because of a Planning Act provision [s.50(3)] which renders void alienation of property for a period of more than 21 years unless certain criteria are met (none were here). The plots here were subject to 20-year land leases (used for residential cottages) which the landlord argued were void when the automatic statutory renewal provisions of the RTA were applied (which have the legal effect of extending the leases past 21 years). As such, the landlord argued, there was no valid alienation and thus no lease to which the RTA could apply.
The court held against the landlord, stating:[22] In my view, the Board correctly interpreted s. 50(3) and correctly observed that the Landlord’s interpretation of the subsection would lead to an absurd result. The wording of section 50(3) is directed at the parties entering into an agreement that has the effect of directly or indirectly providing for the use of the land for more than 21 years. In other words, for a lease to be void, it is the agreement entered into by the parties, not a statutory provision, that must have the effect of providing for a term of usage of more than 21 years. ... While the result turned on a (imho strained) interpretation of the Planning Act provision, which located the illegal effect in the statute rather than the lease itself, the result is entirely consistent with the purpose of the RTA to broadly governs most residential tenancies.
Continue Chapter Here |
