Life Lease (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-06-09
CLNP Page ID:	1515
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)]
Citation:	Life Lease (RTA), CLNP 1515, <https://rvt.link/bt>, retrieved on 2024-06-09
Editor:	Sharvey
Last Updated:	2024/05/13

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”)

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.

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,