Home Office Space (N12 Personal Use)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2193
Page Categories:	[Personal Use Application (LTB)]
Citation:	Home Office Space (N12 Personal Use), CLNP 2193, <https://rvt.link/5k>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/05/04

TEL-01943 (Re), 2007 CanLII 75965 (ON LTB)

16. I found [Landlord’s name removed] to be a credible witness to the extent that I believe the Landlords genuinely want vacant possession of the rental unit. It is clear based on the history of proceedings at the Tribunal involving these parties that the landlord-tenant relationship has deteriorated, and the Landlords no longer wish the Tenant to occupy the rental unit. I understand Salter v. Beljinac to mean that once the landlord has established a genuine intention to reclaim the rental unit, the motive behind the landlord’s desire to reclaim the rental unit is irrelevant. Thus, the fact that [Landlord’s name removed] wishes to reclaim the rental unit because of his poor relationship with the Tenant does not detract from the finding that the Landlords genuinely intend to reclaim the rental unit. Similarly, the reasonableness of the Landlords’ reason for seeking to reclaim the rental unit is not relevant.

17. However, as set out above, not only must the landlord establish a genuine desire to reclaim the rental unit, but it must also be established that the landlord is reclaiming the unit for the purpose of residential occupation by the landlord. I find that the Landlords’ proposed use of the rental unit does not constitute “residential occupation”, as that term is used in subsection 48(1) of the Act. A broad array of conduct and activities in the rental unit are consistent with “residential occupation”. For example, as found in TSL-72600, using a portion of the rental unit as a home office/study may be consistent with residential occupation. However, simply leaving a rental unit empty, and not using it for any purpose, cannot be considered “residential occupation”. The plain meaning of these two words, when read together as single term, suggests to me that the unit must be occupied by a person engaged in activities or conduct that is residential, or primarily residential, in nature. This is not the Landlords’ stated intention for the rental unit in the instant application.

18. Subsection 57(1)(a) of the Act supports this interpretation of the term “residential occupation”. Subsection 57(1)(a) provides the tenant with the possibility of a monetary remedy in the event they vacate the rental unit as a result of being served a notice of termination for landlord’s own use (or an order is issued by the Board terminating the tenancy for this reason) and , “ . . .no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit”. If leaving a rental unit empty was considered to be “residential occupation”, then the remedy contained Subsection 57(1)(a) would be rendered meaningless and unavailable, as it would be impossible for a tenant to establish that the landlord or other specified person did not occupy the rental unit with a reasonable time.

TSL-72600 (Re), 2005 CanLII 91265 (ON LTB)

1. The rental unit in question is located in the basement of the house occupied by the Landlord and his spouse, PF. PF requires vacant possession of the rental unit as of June 30, 2005 for use as a study/home office. Professor F is retiring from her position as a Professor of Information Studies at the University of Toronto effective June 30, 2005 and must vacate her two offices on the university campus as of that date. Professor F testified that she is currently undertaking a major ongoing research project that requires the use of a considerable volume of archival materials. While two rooms on the second floor of the Landlord's house are currently used for the storage of books and scholarly materials, the Landlord testified that the volume of his wife's materials is such that vacant possession of the entire basement apartment is required. Professor F may hire research assistants at some point in the future to assist her with the project.

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10. The term "residential occupation" is not defined in the Act nor does there appear to be any relevant jurisprudence considering the meaning of this term in the landlord-tenant context.

11. The rental complex at issue is a residential home that consists of the rental unit in the basement occupied by the Tenant, and a unit comprised of the main floor, second floor and third floor of the house occupied by the Landlord and his spouse. I accept the Landlord's submission that it is common practice to have a home office/study located within a residential home in which scholarly, professional, business or other such activity is conducted. I find that use of a portion of a rental complex for such purposes is consistent with "residential occupation", so long as the scholarly, professional, business or other such activity does not constitute the predominant use of the rental complex as a whole. In the event a Landlord makes use of a rental complex as a whole predominantly for scholarly, professional or business purposes, then it is doubtful whether the Landlord can satisfy the "residential occupation" requirement found in subsection 51(1) of the Act. Also potentially relevant is whether the proposed use of the rental unit is consistent with any municipal zoning by-laws. No evidence relating to municipal by-laws was tendered in the instant case.

12. In the instant case, the proposed use of the rental unit as a home office/study is consistent with residential occupation, as it will not constitute the predominant use of the rental complex as a whole by the Landlord and his spouse. Therefore, I find that the Landlord in good faith requires possession of the rental unit for purposes of residential occupation, satisfying subsection 51(1) of the Act.