Tuesday, June 1, 2010

Evicting Residential Tenants

When asked about residential evictions, most people who know what they're talking about will start off with something to this effect: The Residential Tenancies Act, 2006 provides for certain circumstances in which a tenant can be evicted.

It's true, but it's also the beginning of a potentially misleading explanation. The better starting point is one that questions whether or not the RTA applies in the first place.

The RTA specifically disclaims application under a number of circumstances. A tenancy relationship where the tenant shares a kitchen or bathroom with the landlord isn't subject to the RTA. Also exempt are temporary accommodations like hotels, residences maintained for farm workers, among others. In fact, there is a whole list of exemptions at section 5 of the RTA.

Aside from the express statutory exemptions, there are situations arising in the jurisprudence where Courts and Tribunals have found that the RTA isn't engaged: An owner of a house sells the house; the transaction closes, but the vendor doesn't give vacant possession when he is supposed to. This often will not constitute a tenancy agreement under the RTA. Likewise if a homeowner is gratuitously letting a person stay without charging rent, this will not create a landlord/tenant relationship such that the tenant incurs security of tenure. The key on these is that some relationships simply don't meet the definition of a tenancy under the RTA. I've even seen some lawyers miss this; when asked whether or not an overholding vendor is subject to the RTA, a lawyer might just look at the s.5 exemptions and say "an overholding vendor isn't here; the RTA must apply."

And I've seen tenants receiving bad advice, based on the assumption of application of the RTA, that they have certain rights and entitlements, when the reality is that they don't because the RTA doesn't apply to their situation.

The Residential Tenancies Act is a double-edged sword. It gives tenants a long list of procedural and substantive rights; on the other hand, it also provides a relatively expedient and cost-effective venue for a landlord to pursue a remedy against a tenant. When the RTA doesn't apply, and the tenant isn't cooperating (due, sometimes, to procedural rights he mistakenly thinks he has), then the landlord has to go to Court to obtain recourse. This will most likely require a lawyer, and can be expensive, by contrast to the Landlord Tenant Board.

Subject to the terms of the contract, a landlord in a relationship to which the RTA doesn't apply can evict a tenant on relatively little notice, and doesn't need a reason to do it. Further, he doesn't have to go through all of the RTA formalities (using the appropriate series of forms, ensure proper filing and service, making sure that the notice coincides with the end of 'period of the tenancy' for non-fault terminations, etc).

Here's the real potential challenge: You get a non-RTA tenant, given notice of termination in a way that wouldn't be RTA-compliant (not in the correct form, not sufficient notice, not for a permissible reason, termination doesn't take effect at the end of a period of tenancy, etc.), and the tenant then gets told that, under most circumstances, they can't be legally evicted except under conditions x, y, and z. True, but misleading; the tenant then thinks "I can't be evicted because those conditions aren't met." Tenant then refuses to leave, and the landlord is forced to incur substantial expenses to obtain a Court Order for the removal of the tenant, as well as enforcement costs. Not good for the tenant, either, who may get hit with a pricy costs award. (Not usually going to be the full amount of the legal fees, or even close to that, but still enough to be a burden to many tenants.)

For a landlord who is comfortable with the requirements of the RTA, the process for terminating an RTA tenancy is more straightforward. You have to be sure that you do things right, and cleanly, but if the landlord can navigate the process (or retains somebody who knows how), then...well, adjudicating tenancy disputes is the entire raison d'etre of the Landlord Tenant Board. It can be pretty unpredictable at times, but in the run-of-the-mill matters (eviction for non-payment of rent, or eviction for the personal use by a purchaser), the Board is quite accustomed to dealing with such situations.

The Landlord Tenant Board website provides a great deal of useful information for both landlords and tenants, including when and how a legal eviction can be performed.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment