Life Lease (RTA)

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Date Retrieved:	2024-05-29
CLNP Page ID:	1515
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)]
Citation:	Life Lease (RTA), CLNP 1515, <https://rvt.link/bt>, retrieved on 2024-05-29
Editor:	Sharvey
Last Updated:	2024/05/21

Residential Tenancies Act, 2006, S.O. 2006, c. 17

1 The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. 2006, c. 17, s. 1.

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2 (1) In this Act,

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“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,

(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and

(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

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“tenancy agreement” means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit; (“convention de location”)

“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”)

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18 Covenants concerning things related to a rental unit or the residential complex in which it is located run with the land, whether or not the things are in existence at the time the covenants are made. 2006, c. 17, s. 18.

O. Reg. 88/04: EXEMPTION(S) - FOR CERTAIN LIFE LEASE INTERESTS: under Land Transfer Tax Act, R.S.O. 1990, c. L.6

1. In this Regulation,

“life lease development” means land with self-contained units, organized as what is commonly known as a life lease project, where the right to occupy a unit is solely for the lifetime of an individual or for a term of at least 20 years;

“life lease interest” means the exclusive right to occupy a unit in a life lease development;

“non-profit organization” means a non-profit organization within the meaning of paragraph 149 (1) (l) of the Income Tax Act (Canada) and includes a municipality;

“registered charity” means a charitable organization registered under subsection 248 (1) of the Income Tax Act (Canada). O. Reg. 88/04, s. 1; O. Reg. 321/05, s. 1.

2. The Act does not apply to the acquisition after July 18, 1989 by one or more individuals of a life lease interest where sufficient information is provided to enable the Minister or any collector to determine that the following conditions are met:

1. The owner of the life lease development is a non-profit organization or a registered charity.

2. Each individual acquired the life lease interest in order to use the unit as his or her principal residence or as the principal residence of the individual’s parent or spouse. O. Reg. 88/04, s. 2; O. Reg. 321/05, s. 2.

Planning Act, R.S.O. 1990, c. P.13

50 (1) In this section and in section 53,

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(3) No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more unless, (...)

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(5) If land is within a plan of subdivision registered before or after the coming into force of this section, no person shall convey any part of the land other than the whole of any lot or block by way of a deed, or transfer, or grant, assign or exercise a power of appointment in respect of such part, or mortgage or charge such part, or enter into an agreement of sale and purchase of such part or enter into any agreement that has the effect of granting the use of or right in such part directly or by entitlement to renewal for a period of 21 years or more unless, (...)

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(8) Nothing in subsections (3) and (5) prohibits, and subsections (3) and (5) shall be deemed never to have prohibited, the giving back of a mortgage or charge by a purchaser of land to the vendor of the land as part or all of the consideration for the conveyance of the land, provided that the mortgage or charge applies to all of the land described in the conveyance. R.S.O. 1990, c. P.13, s. 50 (8).

(9) Nothing in subsections (3) and (5) prohibits the entering into of an agreement that has the effect of granting the use of or right in a part of a building or structure, including the use of or right in lands, which use or right is ancillary to the use of or right in the part of the building or structure, for any period of years. R.S.O. 1990, c. P.13, s. 50 (9); 2021, c. 25, Sched. 24, s. 2 (11).

(9.1) For greater certainty, subsection (9) applies to an agreement that has the effect of granting the use of or right in a part of a building or structure, including the use of or right in lands, which use or right is ancillary to the use of or right in the part of the building or structure, for the lifetime of an individual. 2021, c. 25, Sched. 24, s. 2 (12).

Phoenix Assurance v. Bird Construction, 1981 CanLII 78 (ON CA)

Although the statutory definition of "owner" in s. 1(1)(d) of the Act "includes any person", etc., it is not, in my opinion, an extended, but rather a comprehensive definition of an owner against whose estate or interest a lien may attach under s. 5 [now s. 6] of the Act. In Sanderson Pearcy & Co. Ltd. v. Foster (1923), 53 O.L.R. 519, Middleton J. said at p. 521:

"But this definition was only intended as a definition, and not as a means of fixing upon the owner some liability for a kind of lien not given by the statute. There are many cases in which several "own" land. The case of landlord and tenant is specially provided for, but joint ownership, tenancy in common, life-estates, etc., are not. The intention of the statute clearly is to prevent any one who has an estate or interest in lands upon which a lien may be claimed under secs. 6 and 8 [now ss. 5 and 7] from having liability imposed upon his estate unless there is on his part, first, a request, and, secondly, one or more of the alternative requirements mentioned."

Bory v Bory, 2016 ONSC 526 (CanLII)

[23] As already mentioned, the Board found that the provision was contrary to the Act and, therefore void, as it took away the Landlord’s right to terminate the tenancy under sections 48, 49, 50 and 58 of the Act. All of the sections in question grant landlords the right to terminate tenancies at the end of the term of those tenancies under certain prescribed conditions: the landlord requires possession of the unit for his own use or that of his child, parent or spouse (s. 48), the landlord has sold the premises (s. 49), the landlord needs to demolish, convert or do extensive repairs to the premises (s. 50), and other additional grounds set out in s. 58 such as the tenant’s right to occupy the premises was tied to an employment relationship with the landlord that has ended.

[24] In this case, the end of the term of the tenancy is the date of death of the Tenant. On such date, the tenancy shall be deemed to be a monthly tenancy pursuant to section 38(1) of the Act and the Landlord will have the right to regain possession of the premises on any of the above bases. The fact that there may be no need for notice as the tenant would no longer be in occupation of the premises may be to the Landlord’s advantage. It does not, however, contradict the Act, which otherwise operates in accordance with the scheme contemplated by the provisions referred to above. Therefore, I find that the Board’s interpretation of the Act is also unreasonable insofar as it based that conclusion on a finding that residential tenancies for the lifetime of the tenant are contrary to the Act because they take away a substantive right of a landlord under the Act.

Oliver v. Harvey, 1974 CanLII 911 (SK KB)

[1] WALKER D.C.J.:—The appellants, as landlords, by an applications for order for possession under s. 35 of The Residential Tenancies Act, 1973 (Sask.), c. 83, hereinafter referred to as “the Act”, applied to Wedge J.M.C. for an order for possession of certain “residential premises” let to and occupied by the respondents, as tenants, under a written “tenancy agreement” dated and entered into 31st August 1971, hereinafter referred to as “the lease”. The ground upon which the appellants relied to entitle them to the order for possession was the expiry of a notice under s. 23(1) (a) (ii) of the Act which reads, in part, as follows:

“23.—(1) Notwithstanding anything in condition 20 of section 16 or in sections 18 to 22, a landlord may terminate a tenancy agreement upon seven days’ notice to the tenant if:

“(a) the tenant, after written notice: . . .

“(ii) of a contravention of condition 8 of section 16 served on him by the landlord within a reasonable time after the contravention or, where the contravention is a continuing one, during, or within a reasonable time after the cessation of, the contravention, again contravenes condition 8 of section 16 or continues to contravene that condition, as the case may be.”

[2] Wedge J.M.C. on 16th August 1974, dismissed the application.

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[10] In my view, the Act does not apply to the lease. Section 2(i) cannot without more be read in conjunction with s. 3(1) and s. 16 (con. 8) as suggested by the appellants. Section 2 (i), containing as it does the word “tenancy”, must first be read with s. 2(h) and when this is done one encounters the words “for a term that may be terminated by the landlord or tenant only in accordance with the provisions of this Act”. These words refer to the provisions of the Act as such, namely, ss. 18 to 22 inclusive, and not the statutory condition set out in s. 16 which are “deemed to be part of every tenancy agreement” and are to be printed on every written tenancy agreement. “Provisions” in this context, in my view, means provisions of the Act as such and not the statutory conditions which, when they fall to be utilized, are utilized outside the Act and as part of a tenancy agreement. The construction contended for by the appellant is, with every respect, somewhat contrived.

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[14] The Landlord and Tenant Act, R.S.S. 1965, c. 348, does, in my view, apply to the lease. Some of the remarkable results of the enactment of the Act contended for by the appellants might have followed had The Landlord and Tenant Act been in whole or in part repealed. Since it has not s. 3(1) of the Act, with its use of the phrase “all tenancy agreements”, cannot be looked on as a “catch all” for tenancies not specifically dealt with in ss. 16 to 22 inclusive of the Act. Since it has not, s. 3(1) of the Act with its use of the phrase “all tenancy agreements”, cannot be used to make the statutory condition in s. 16 apply to life tenancies in the fashion contended for by the appellants — precise language would be required to bring about this result.

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[16] For the reasons set out above, the appeal is dismissed The judgment of Wedge J.M.C. that the application for an order for possession be dismissed, is affirmed. The respondents will have their costs of and incidental to this appeal.

TNL-66611-15 (Re), 2015 CanLII 29774 (ON LTB)

1. Throughout this order I refer to the following:

• the Tenant Protection Act, 1997 (the TPA);

• the Residential Tenancies Act, 2006 (the Act);

• the Planning Act (the PA);

• 1086891 Ontario Inc. v. Joe Barber, 2007 18734 (ON SCDC) (Barber);

• Pasternak v. 3011650 Nova Scotia Limited 2014 ONSC 1012 (CanLII), 2014 ONCS 1012 (Pasternak);

• Richard A. Feldman Residential Tenancies Tenth Edition, Carswell 2014 (Feldman);

• Jack Fleming Residential Tenancies in Ontario Third Edition, LexisNexis 2015 (Fleming).

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2. The parties are siblings. On October 30, 2014 the Landlord issued a notice of termination, known as Form N12, in which he informed the Tenant that she shall vacate the rental unit on or before December 31, 2014. The reason given is that SB’s child wishes to move into the unit.

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10. On the issue at hand, SS submitted that the Act does not recognize or permit life tenancies and that the lease provision is not enforceable. He examined the Act and concluded that it contemplates either periodic or term tenancies and a life tenancy is neither. Life tenancies were a part of the common law tradition, which was discarded once Ontario tenancies became regulated by the historical Landlord and Tenant Act.

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26. Feldman, at page 150, devotes more attention to life tenancies. He states that under the Act a lease for life under the terms of a will “precludes notice of termination being given”. Whether this means a notice of any kind (for, say, non-payment of rent) or just at end of term is not clear. However, the opinion that a life tenancy is outside the jurisdiction of the Act cannot be tested because it is unsupported by any analysis.

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29. As to Barber the Court speaking about the primacy clause in the TPA concluded “The policy rationale behind s. 2(1) is to treat tenants and landlords equally. The subsection is designed to prevent parties from bargaining away or waiving their statutory rights no matter what the circumstances.” I would add that under the current Act this rationale becomes even more pronounced because of the clear description if its purpose in section 1.

Real Property Limitations Act, R.S.O. 1990, c. L.15

1 In this Act, ...

“land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency; (“bien-fonds”)

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39 The time during which any person otherwise capable of resisting any claim to any of the matters mentioned in sections 30 to 35, is a minor, is incapable as defined in the Substitute Decisions Act, 1992, whether or not the person has a guardian, or is a tenant for life, or during which any action has been pending and has been diligently prosecuted, shall be excluded in the computation of the period mentioned in such sections, except only in cases where the right or claim is thereby declared to be absolute and indefeasible. R.S.O. 1990, c. L.15, s. 39; 2006, c. 19, Sched. B, s. 20 (2); 2009, c. 33, Sched. 2, s. 63 (2).

40 Where any land or water upon, over or from which any such way or other easement, water course or use of water has been enjoyed or derived, has been held under or by virtue of any term of life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before-mentioned during the continuance of such term shall be excluded in the computation of the period of forty years mentioned in section 31, if the claim is, within three years next after the end or sooner determination of such term, resisted by any person entitled to any reversion expectant on the determination thereof. R.S.O. 1990, c. L.15, s. 40.

Giroux v. I.O.O.F. Senior Citizen Homes Inc., 2013 ONSC 8006 (CanLII)

[7] The parties agree that there is no specific legislative regime that applies to Life Lease Occupancy residences that would be similar to the Condominium Act or Residential Tenancies Act. The Life Lease Occupancy Agreements set out the terms and conditions under which residents are able to occupy their respective units and use the common facilities.

Celebrity Flooring Systems Ltd. v. One Shaftesbury Community Association, 2006 CanLII 33474 (ON SC)

[18] In late 1997 and early 1998, Roy Hogg, as Chairman of the Finance Committee, was successful in arranging a construction loan from the TD Bank. The TD Bank commitment letter, dated April 29, 1998, is found at Ex. 30. The construction loan was initially for $7.5 million. It was to be secured by a demand first mortgage on the land, and by various other security agreements, and by $3 million in personal guarantees from the Founders and First Circle Members, and by the assignment of all Binding Letters of Intent (i.e., the offers to purchase) and of all Right-to-Occupy Agreements, also called “Life Leases” (the deeds). Each purchaser, when they closed their purchase, paid their money to 124 who in turn paid most of the money to TD Bank to pay down the mortgage. The purchasers would get a “Life Lease”, also called a “Right-to-Occupy”, from the Association who, initially, owned all the units. The TD Bank had also agreed to provide any long-term mortgage financing to any individual purchaser who required a mortgage for their unit.

General, O Reg 282/98, under the Assessment Act

3. (1) The residential property class consists of the following:

1. Land used for residential purposes that is,

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x. land with self-contained units, organized as what is commonly known as a life lease project, in respect of which individuals (referred to in this subparagraph as “purchasers”) have each entered into an agreement to purchase a right (referred to in this subparagraph as the “life lease interest”) to occupy a unit for residential purposes within the project, if,

A. the term, not including renewals, of the life lease interest is equal to or greater than 20 years or is equal to the lifetime of the purchasers,

B. the purchasers have made one or more payments to the owner of the land on account of the purchase, and

C. the purchasers have a right to sell, transfer or otherwise dispose of the life lease interest in a manner determined under the terms of the agreement for the purchase,

NOT-07689-12 (Re), 2013 CanLII 41381 (ON LTB)

17. The Landlord’s legal representative made reference to several decisions. In Londry v. Dean the principle issue was whether or not a base for life constituted a contravention of the PA. The lease was found to be void for contravention of Section 50(3) of the PA and because there was no lease there was no tenancy.

Landlord’s Brief of Authorities – Tab 5 (Londry v. Dean (1994), 1994 CanLII 7339 (ON SC), 21 O.R. (3d) 157 (Gen. Div.))

18. In Beer v. Beer the Court followed the reasoning in Londry.

Landlord’s Brief of Authorities – Tab 6 (Beer v. Beer, [1997] O.J. No. 2876 (Ont.Gen.Div.)

19. In Parker v. Yundt the parties argued that the residential leases contravened the PA. The Court distinguished both Londry and Beer and stated that the RTA was paramount and both cases had been decided before the enactment of the RTA. The Court states at paragraph 48: “The Court of Appeal in Beach v. Moffat, supra, and the Divisional Court in Canada Trustco Mortgage Co. v. Park (2003), 2003 CanLII 49385 (ON SCDC), 63 O.R. (3d) 789 (Ont. Div. Ct.) support the paramountcy of the RTA when the issue is termination of lease.”

Tenants Submission – Paragraph 54

Tenants Brief of Authorities – Tab 4

20. I agree with the Tenants submission that the Landlord’s argument regarding the effect of subsection 50(3) of the PA on the relationship between the parties is in direct conflict with the security of tenure protection provisions under the RTA.

21. I do not accept the Landlord’s argument that the Court’s comments in Parker are confusing or that it can be distinguished because it refers to termination of the lease and not voiding the lease.

22. The Landlord also submits that if the leases are void under Section 50 of PA, there is no tenancy, and the parties’ relationship is therefore not protected by the RTA. Although the Landlord is not seeking to evict the Tenants the result would give them the right to do so.

23. The Court of Appeal in the Matthew’s decision refers to the legislative purpose of the RTA to protect residential tenants from unlawful rent increases and evictions and rules of statutory interpretation and the remedial nature of the RTA its provisions must be interpreted liberally to realize its objectives.

Tenants Submission – Paragraph 55

24. The Landlord’s submission argues that subsecction 50(3) of the PA applies because of the renewal of leases provided in Section 38 of the RTA. I agree with the Tenants submission that the plain reading of subsection 50(3) specifically refers to “agreements”. It does not say that it applies to a statutory provision for security of tenure.

25. The Landlord’s submission means that if the leases between the parties are void then the Tenants lose the protection of the RTA and these applications would be dismissed. I agree with the Tenants submission that even if the lease agreements are void this does not mean there is no tenancy. The Court of Appeal, the Divisional Court, and this Board have all stated that even in the face of a contravention of other laws, e.g., zoning by-law or building codes, the relationship of the parties continues to be subject to the RTA.

Beach v. Moffatt, 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383, (Ont. C.A.) -

436235 Ontario Limited and Mountfort, [2002] O.J. No. 4551, (Ont.Div.Ct.) -

Peragine v. Mangel (9 June 1997), File L2133-96 (Ont.Div Ct.)

26. In TST-01512, Vice-Chair Savoie relied on Peragine and Mountfort :

“There is no statutory authority for the argument that the failure of the Landlord to comply with any other enactments (like the Building Code, Fire Code, or property standards) places the tenancy outside the protection of the Act. This argument is effectively blocked by operation of subsections 3(1) and 3(4) of the Act which provide that where there is a conflict with another Act, with the exception of the Human Rights Code, the Act will prevail.”

27. The Landlord’s failure to comply with the requirements of the PA, which is not a result of any failure to act by the Tenants, does not have the immediate effect of placing the tenancies outside the protection of the RTA.

28. This Board’s jurisdiction is to make findings pursuant to the RTA and the paramountcy provisions in subsections 3(1) and (4) are binding. The RTA addresses the rights of parties in a landlord and tenant relationship and cannot be overridden by other legislation except for the Human Rights Code. As pointed out by the Tenants’ legal representative the PA does not confer rights but provides a procedural framework to address the orderly development of land in the province.

29. The rental units are land lease homes as defined in the RTA and in the Matthew’s decision. The tenancies cannot be terminated except in accordance with the Residential Tenancies Act, 2006.

Camston Ltd. v. Volkswagen Yonge Ltd. et al., 1968 CanLII 380 (ON SC)

It was contended on behalf of the applicant that as the lease provides for a monthly rent, it could be terminated by a month's notice. I do not think this is so even in a case of a tenancy arising by operation of law such as a tenancy from year to year: See Re Sons of England Benefit Society and Ezrin, [1962] O.W.N. 42. It certainly is not the case if there is a valid subsisting lease for a term of years.

It is therefore necessary to decide if the lease here is valid. Of course it was not made by the registered owners of the property who probably had no knowledge of it. The general rule is a lease made by the owner of a life estate in lands is terminated by the death of the lessor before the expiry of the term granted. (Williams, Landlord and Tenant, 2nd ed., p. 12). On behalf of the respondent, it is argued however, that the paragraph of the agreement quoted above is sufficiently wide to authorize the granting of a lease effective after the death of the life tenant. In my view, this is not so. I feel, however that it fell to the remainder men to either affirm or repudiate the lease when it came to their knowledge. There can be no doubt that they became aware of its terms immediately after the death of its life tenant. A case which is helpful is Hunter v. Doan, [1942] O.W.N. 291. Urquhart, J., says at p. 293:

I am of the opinion that acceptance of rent in an ordinary case by the remainderman after the death of the life tenant would operate to create a tenancy between the tenant and the remainderman by which the remainderman would be bound . . .

If there were special terms in a lease, of which both knew, and rent was accepted, it would be inferred that the remainderman intended by the acceptance of rent to be bound, but if the remainderman did not know of the special terms, then the Court would be unable to say that he agreed to the holding on such special terms.

Here I am of the opinion that the acceptance of rent by the predecessors to the applicant was referrable to the registered lease. The notice given was therefore ineffective to terminate the tenancy. For these reasons, the application must be dismissed with costs fixed at $75.

Application dismissed.