Talk:Assignment of Partial Interest in a Rental Unit or Lease (RTA)

Properties v Northmore, 2018 CanLII 153456 (ON LTB)

17. Recently, the Legislature enacted sections 47.1-47.4 of the RTA, which provide for specific rules in circumstances where a tenant is experiencing domestic violence or abuse. The sections contain explicit provisions regarding joint tenancies. In enacting those provisions, the Legislature appears to have recognized that the common-law concept of joint tenancy still exists under the RTA. However, joint tenancies are not defined in sections 47.1-47.4.

18. Aside from section 47.1-47.4, the RTA still refers to tenants and tenancies exclusively in the singular. It is still necessary to look to the common law for the definitions of joint tenancies and tenancies in common.

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21. In the context of the RTA, a more important feature of a joint tenancy is that the co-tenants do not have separate shares of the rent. They are jointly and severally liable to the landlord for the entire rent, meaning that if the rent is not paid, the landlord may pursue any of them for the full amount. I am not aware of any common-law decisions that consider this aspect of joint tenancies, since the common law typically deals with property owners who do not pay rent. However, the Board has consistently held joint tenants to be jointly and severally liable for the whole rent, because the tenants share an interest the entire tenancy rather than holding partial shares of it.

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28. In CET-02200-10 (Re), 2010 LNONLTB 130 and SOT-68533-16-RV (Re) 2016 CanLII 44359 (ON LTB), the Board found that a single joint tenant could give notice to terminate a joint tenancy. In both cases, the Board relied on a United Kingdom decision, Hammersmith and Fulham LBC v. Monk [1992] AC 478 [Hammersmith] which held that one tenant’s notice was sufficient to terminate a periodic joint tenancy.

29. Respectfully, I am of the view that the Board has erred where it has applied Hammersmith to tenancies under the RTA. Hammersmith concerned a periodic tenancy which was to expire at the end of each period unless the parties agreed to renew it. Each party was deemed to have agreed to renew unless they gave a notice of non-renewal. In the words of the UK Court:

continuation beyond the end of each year depends on the will of the parties that it should continue or that, considered prospectively, the tenancy continues no further than the parties have already impliedly agreed upon by their omission to serve notice to quit.

30. Consequently, if any party gave a notice of non-renewal, then the agreement of all parties to renew would not exist, and the tenancy would expire.

31. The type of tenancy that was at issue in Hammersmith does not exist under the RTA. Pursuant to sections 37 and 38, a periodic tenancy under the RTA renews automatically and cannot be terminated except in accordance with the procedures set out in the RTA. Renewal does not depend upon the parties agreeing, explicitly or impliedly, to continue a tenancy; a party cannot end an RTA tenancy by allowing it to expire via non-renewal. A party can only end an RTA tenancy by following one of the termination procedures in the RTA.

32. Sections 37 and 38 are core provisions which enact security of tenure in its modern form. They are the provisions that protect tenants from having their tenancies terminated at will by their landlords. Consequently, RTA tenancies are fundamentally different from the tenancy considered in Hammersmith, which could expire at the end of a lease period at the will of any party. In that regard, it is also worth noting that if Hammersmith applied in Ontario, then a tenant could effectively evict their spouse or roommate without notice, without any grounds, and without their consent. That result would be contrary to the whole scheme of the RTA.

33. Furthermore, Hammersmith represents an exception which applies only to the specific type of tenancy at issue in that case. The more general common-law principle is set out in Soucy v. Milton Heights Inc, 2015 SKQB 126 (CanLII) [Soucy]:

Any legal act, eg., a conveyance or lease of the land, or a surrender of the lease requires the participation of all the joint tenants; one cannot dispose of it by himself, for he by himself has not the whole estate in it.