Tenancy at Will (Non-RTA)

Re Villa Otthon Management and Bamboulis, 1987 CanLII 4417 (ON SC)

Notwithstanding the use of the word "tenancy" in Judge Locke's endorsement, as to the tenant's possession of Apt. 404, it is our opinion that in all the circumstances no true tenancy of Apt. 404 was ever created. We would repeat the words of Chief Justice McRuer as they are reported in Lippman et al. v. Lee Yick et al., 1953 CanLII 111 (ON SC), [1953] O.R. 514, [1953] 3 D.L.R. 527, particularly at pp. 524-5 O.R., pp. 537-8 D.L.R.:

In Booker v. Palmer, [1942] 2 All E.R. 674, Lord Greene M.R., giving the judgment of the Court of Appeal, held that where the defendant had been given the right of occupancy of a cottage rent-free for the duration of the war the relationship of landlord and tenant was not created. At p. 676 he said: "Whether or not parties intend to create as between themselves the relationship of landlord and tenant, under which an estate is created in the tenant and certain mutual obligations arise by implication of law, must in the last resort be a question of intention."

The judgment of Denning L.J. in Errington v. Errington and Woods, [1952] 1 K.B. 290, is a most useful contribution to the law on the subject of how far an agreement for exclusive possession is to be taken to create the relationship of landlord and tenant. At pp. 296 and 298 the learned lord justice said:

"The difference between a tenancy and a licence is, therefore, that, in a tenancy, an interest passes in the land, whereas, in a licence, it does not. In distinguishing between them, a crucial test has sometimes been supposed to be whether the occupier has exclusive possession or not. If he was let into exclusive possession, he was said to be a tenant, albeit only a tenant at will (see Doe v. Chamberlaine (1839), 5 M. & W. 14, 16 [151 E.R. 7] and Lynes v. Snaith, [1899] 1 Q.B. 486) whereas if he had not exclusive possession he was only a licensee: Peakin v. Peakin, [1895] 2 I.R. 359. This test has, however, often given rise to misgivings because it may not correspond to realities ... Now, after the lapse of a hundred years, it has become clear that the view of Lord Abinger was right. The test of exclusive possession is by no means decisive. ...

"The result of all these cases is that, although a person who is let into exclusive possession is prima facie to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege, with no interest in the land, he will be held to be a licensee only. In view of these recent cases I doubt whether Lynes v. Snaith, and the case of the gamekeeper referred to therein, would be decided the same way today."

The Corp. of the City of London v. Ordinal, 2010 ONSC 1998 (CanLII)

[27] Rosenblood was applied in Hubbard v. Hamburgh, 1993 CanLII 5500 (ON SC), [1993] O.J. No. 2972 (Gen. Div.). This was not an expropriation case, but does serve to confirm the continued existence of the concept of “tenancy at will”. At para. 24, Rapson J. adopted the following definition from Black’s Law Dictionary, 5th ed.:

Tenant at Will: One who holds possession of premises by permission of owner or landlord but without a fixed term. Where land or tenements are let by one man to another, to have and to hold at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called “tenant at will” because he has no certain nor sure estate, for the lessor may put him out at what time it pleases him.

Symphony Place Corp. v. Angelini, 1992 CanLII 7548 (ON SC)

Since Clarke was not a tenant of the landlord under the lease, I find that he is a tenant at will without the permission of the vendor who is now the landlord of the premises. I am of the view that the tenancy arose collateral to Angelini's agreement of purchase and sale with the vendor of a proposed unit within the meaning of s. 110(3)( e) of the Act. That agreement was terminated by Angelini's failure to close. The unit in question is a "proposed unit" as described in the Condominium Act.

In his book, Residential Tenancies, 4th ed. (Toronto:Carswell, 1983), Donald H.L. Lamont, Q.C., states at p. 118 under the heading "Rights of Re-Entry by Landlord" that interim occupancy of the condominium unit can cause confusion as the proceedings to regain possession from a purchaser who has gone into occupancy and the offer to purchase has been terminated. Mr. Lamont further states at p. 119:

One would hope that a sensible interpretation would permit the vendor landlord to proceed under s. 113 as soon as the offer to purchase has been terminated. Most interim occupancy agreements provide that upon termination of the offer to purchase the interim occupancy agreement is likewise terminated and provide for vacant possession forthwith.

It is noted that s. 2(2) of the Residential Tenancies Act makes the Condominium Act applicable to a tenancy prior to registration of the condominium and recognizes that such a tenancy is temporary and interim. It is possible that a judge hearing the application for possession might accept that 60 days notice was not necessary in order to terminate the monthly tenancy of an interim occupant.

I agree with Mr. Lamont's reasoning. The occupant of the unit when the notice of termination was delivered was Clarke, a, "person permitted in the residential premises" by Angelini under the provisions of s. 109(1)( c) of the Act. Clarke was substantially interfering "with the reasonable enjoyment of the premises for all usual purposes by the landlord". The vendor was now the landlord upon Angelini's failure to close the purchase, and as vendor/landlord, its "usual purposes" was to sell the unit to a member of the public, not to rent the premises to tenants. A tenant at will under these circumstances has the same characteristics as a trespasser.