Tips to Defeat an N4
| Caselaw.Ninja, Riverview Group Publishing 2021 © | |
|---|---|
| Date Retrieved: | 2024-05-03 |
| CLNP Page ID: | 2056 |
| Page Categories: | [Payment of Rent (LTB)], [Bankruptcy] |
| Citation: | Tips to Defeat an N4, CLNP 2056, <https://rvt.link/2y>, retrieved on 2024-05-03 |
| Editor: | Rstojni |
| Last Updated: | 2023/01/22 |
Overview
It goes without saying that the best option you have if you receive an N4 is to pay any rent owing. However, there are times when paying all the rent owing in full is not an immediate option. Other solutions need to be found to avoid homelessness. The purpose of these tips is to assist a tenant in buying time to recover financially and, hopefully, get caught up on their rent arrears. On the flip side, a landlord can use these tips to know what to look out for when doing an N4.
The following is NOT legal advice and you should consult with a paralegal or a lawyer about your unique situation before deciding if you will use any of the following tips. It is important to note that just because an application is dismissed by the LTB does not automatically mean the rent is not owing. Except for when the tenant becomes bankrupt, defeating an N4 at the LTB simply means the landlord will have to start the process all over again. The rent remains owing.
Apply the LMR Interest
Before the landlord serves you with an N4, send the landlord a message stating that you are applying any unpaid interest the landlord owes you from your Last Month's Rent deposit. That way, if you do get an N4, it is likely that the N4 calculations will be off and you will avoid eviction if the matter goes to a hearing.
See section 104 (9) of the Residential Tenancies Act, 2006
- 104 (9) Where the landlord has failed to make the payment required by subsection (6) when it comes due, the tenant may deduct the amount of the payment from a subsequent rent payment. 2006, c. 17, s. 106 (9).
Identify the Rental Unit
Make sure that the N4 correctly identifies the rental unit. If there is a unit number, the unit number or identifier MUST be on the N4. In the case of a rooming house, each room must be identified; both on the N4 and on the physical door of the room in the rental unit. A failure to identify the rental unit will void the N4 and prevent an eviction.
Review the Calculations
The N4 shows the rental charges for each period of the rental term. Make sure the amount charged within each term is the correct amount of rent. Make sure that the amount the landlord is claiming to have received is also correct. If the landlord has failed to account for any payments made in the relevant rental period, then the N4 is most likely defective and eviction can be avoided.
Even if the calculation is off by as little as $1.00 the N4 will still be found to be void.
Make sure that the rent being claimed is the LAWFUL RENT that your landlord can charge.
Review the Rental Period
Not all rental periods run from the 1st of the month to the last of the month. If your rental period started on a different day of the month then the 1st (say for example the 15th), then the N4 must reflect this. If the rental periods in the N4 do not match the rental periods in your rental agreement, then the N4 could be found to be void and eviction avoided.
Caution: If your rental periods are different in your rental agreement than in your N4, BUT you are paying your rent in accordance with the periods reflected in the N4, then the N4 may still be found valid (SEEK LEGAL ADVICE).
Review the Termination Date
The termination date MUST be at least 14 days from the date the N4 was actually served. When counting days:
- Service by mail is effective on the 5the day of mailing, not including the date the N4 was given to Canada Post.
- Service in person or any other permitted method is effective the first day after the N4 has been given or otherwise deliver to the tenant(s)
If the termination date is less than 14 days from the date that service was effective then the N4 is void and eviction can be avoided.
Signature Missing
Make sure the N4 is actually signed by the Landlord or an authorized agent of the Landlord. If the signature is missing then the N4 will be deemed void and eviction can be avoided.
Missing Tenants
An N4 must list ALL of the tenants of the rental unit. If there are tenants missing, then the N4 may be found to be defective. Keep in mind that it is possible to have tenants that need to be listed on the N4 even if that tenant does not live in the rental unit. What matters is that the landlord (or the tenant) can establish a contractual obligation for each given tenant to pay the rent owed.
Illegal Charges or Fees
The landlord cannot include fees that are not permitted by the RTA in the rent calculations. If the landlord has included any of the following charges or fees in the N4, then the N4 may be found void and eviction avoided:
- Late payment fees,
- Utility charges where the amount charged varies by actual consumption,
- Utility charges that exceed the lawful amount permitted by regulation (SEEK LEGAL ADVICE),
- Payment processing fees
Local Rental Housing By-Laws
Some local rental housing by-laws require that a landlord must obtain a license prior to being permitted to charge rent. If you live Kitchener-Waterloo, Hamilton, or London, then you will need to see if your landlord is licensed to provide rental housing, and if a license is required. If the landlord is required to be licensed and you discover they are not, it is possible that a completely valid N4 will be thrown out if the landlord is found to be in breach of the municipal rental housing license by-law.
Note: This theory has not been tested as of yet, if you find yourself in this situation feel free to reach out to our firm.
Consumer Proposals or Bankruptcy
If you are at the point that a hearing is coming up and you are in SIGNIFICANT ARREARS then this option should be considered. If you file for a consumer proposal or for bankruptcy prior to an LTB hearing or before the termination date set out in a standard order then the eviction is voided.
Note: SEEK LEGAL ADVICE BEFORE YOU CONSIDER THIS OPTION!!
Things to consider before taking this option:
- Can you afford your rent moving forward if you no longer have arrears?
- Do you have assets that will be taken by a bankruptcy trustee (Such as a fully paid-off vehicle worth more than $7000)?
- Do you have other options such as the ability to borrow from other sources?
- Is having a good credit rating important to you?
- Do you have retirement savings or other investments that can be accessed?
- Can you afford to pay for the Consumer Proposals or Bankruptcy service, fees are usually around $200 a month.
Consumer Proposals or Bankruptcy are options of last resort and should be treated as such.
See: Bankruptcy (LTB)
Section 83(1), and (3) Considerations
If the landlord is in SERIOUS violation the RTA or the lease agreement then the board is required to deny the landlord an eviction, reasons can include:
- Serious outstanding maintenance,
- A failure of a landlord to pay, or otherwise comply with, a previous order issued by the board.
