Illegal Basement Unit (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-01
CLNP Page ID:	1527
Page Categories:	[Zoning & Bylaws (RTA)]
Citation:	Illegal Basement Unit (RTA), CLNP 1527, , retrieved on 2024-11-01
Editor:	Sharvey
Last Updated:	2021/10/31

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CET-43033-14 (Re), 2014 CanLII 57295 (ON LTB)

1. The rental unit is not licensed with the City of Mississauga making it an illegal basement rental unit under the City by-laws. This is undisputed.

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8. The Tenant contacted the City of Mississauga to report her illegal basement after she provided her notice to the Landlord to terminate the tenancy effective August 31, 2014. It is unreasonable to believe that the Tenant was forced to move out when she did not know she might have to pursuant to the City Order against the Landlord at the time she gave her notice. Therefore, I find that the Tenant’s evidence demonstrated, on the balance of probabilities, that she was not forced to move out because of the City of Mississauga Order made against the Landlord to comply with the by-law to either convert the rental unit or license it.

TNT-85168-16 (Re), 2016 CanLII 104357 (ON LTB)

19. The Tenants take the position that the Landlord is interfering with their reasonable enjoyment of the premises by living in an “illegal basement.” However, the concept of an “illegal basement” has no meaning in the Residential Tenancies Act, 2006 (the ‘Act’). The real basis of the Tenants’ complaint is that, because the basement is being used as a dwelling, it is subject to more stringent Fire Code regulations than would apply to an unfinished basement. The Tenants allege that the Landlord is not complying with the Fire Code’s requirements.

TET-92081-18 (Re), 2018 CanLII 113788 (ON LTB)

23. No evidence was led that the basement unit is an illegal unit and even if it is, there is no automatic correlation between that fact and a finding that the Landlord breached ss. 22 or 23. It is not harassment to rent to someone an illegal basement unit nor does it necessarily constitute substantial interference with reasonable enjoyment. Plenty of tenants live happily in illegal basement units.

TEL-87359-18-SA (Re), 2018 CanLII 111792 (ON LTB)

32. When the Landlords found out they were operating an illegal rooming house, what they should have done is serve the appropriate notice to terminate. In circumstances such as these most landlords serve an N5 alleging the illegal rooming house is substantially interfering with a lawful interest of the landlord because the municipality is threatening prosecution for the zoning infraction. Some landlords serve an N6 alleging the tenants are committing an illegal act by occupying an illegal rooming house.

33. That being said, there is nothing wrong with a landlord in this situation asking tenants if they would be willing to terminate the tenancy by agreement. But that is not what the Landlords here actually did.

34. Their letter of November 5, 2017 says the Tenant has to move out by December 5, 2017 because the police gave them 30 days to clear the basement. In other words, the Landlords falsely informed the Tenant he had to sign the N11 form. As the Tenant clearly did not realise that was untrue, he did not give informed or voluntary consent to terminate his tenancy. To refuse to set aside the eviction order in that situation would be fundamentally unfair.

35. I would also observe that it is not entirely clear that the Landlords are still in violation of the local zoning by-law. If they are then they have the option of serving the appropriate notice to terminate.

TSL-80995-17 (Re), 2017 CanLII 28549 (ON LTB)

1. This application concerns a unit on the ground floor of a building in the Kensignton Market area of Toronto.

2. The Landlord’s position is that the unit is situated in a building which is zoned commercial pursuant to City of Toronto Zoning By-law 569 2013 (as amended) (“the bylaw”) (which was tendered into evidence) and is being illegally used as a residence. This illegal use constitutes an illegal act for the purposes of s.61(1) of the Residential Tenancies Act, 2006 (“the Act”)

3. The Tenant’s position is that he currently lives in the unit as a residence and that the unit has been used in this manner for the past 6 years. The Tenant has claimed he has done nothing to change the unit’s character and therefore, he has not committed an illegal act for the purposes of the Act.

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23. It is plain from my review of the by-law that this property is zoned as commercial.

24. The issue in this application is whether or not the Tenant’s residential occupancy in this commercial building constitutes an “illegal act” for the purposes of s.61(1).

25. Guideline 9 “Eviction for an illegal act or business” assists my understanding of an “illegal act” for the purposes of the Act. It reads in part:

“The term illegal is not defined in the RTA but would indicate a serious violation of a federal, provincial or municipal law. If the illegality is trivial or technical, the act or business or occupation might not be considered serious enough to warrant eviction.

An illegal act will be serious if it has the potential to affect the character of the premises or to disturb the reasonable enjoyment of the landlord or other tenants. The seriousness of the ground can be seen in the fact that there is no opportunity in s.61 for the tenant to avoid termination by rectifying the illegal act.

The fact that a tenant or another occupant may have devised a fraud in the unit, written a bad cheque or failed to file a tax return does not create a threat to the other tenants in the building or a problem for the landlord. By contrast, drug offences may bring the risk of harmful effects upon the occupants of the complex.” [emphasis added].

26. Based upon the totality of the evidence presented, I am not persuaded that the Tenant’s residence in the commercial building constitutes a sufficiently serious violation of the law so as to constitute an “illegal act” for the purposes of s.61(1).

27. First in this respect, I am unconvinced that the “act” in question – in this case – the Tenant moving in and living – is an act of sufficient extremity or gravity so as to properly considered “serious” for the purposes of Guideline 9 or the Act.

28. Further, in my view, this is technical, rather than substantive violation of the by-law. The Tenant is indeed living in a commercially zoned space; I do not see the Tenant’s actions, per se, to be serious enough to come within the meaning of “illegal act” for the purposes of the Act.

29. I am alive to the fact that Guideline 9 as quoted above raises the possibility that acts by a Tenant which may “…affect the character of the premises” may be “serious”. Here, I do not see the Tenant as engaging in such acts as used in Guideline 9. Indeed, I accept has credible his evidence that he was not the first residential user of the unit; and therefore, I accept that the Tenant’s acts, on their own, did not in themselves shift the use of the unit from commercial to residential for the purposes of Guideline 9.

30. I am comforted in this position by the content of the City order, which, in my view, instead of placing emphasis on the seriousness of the Tenant’s violation of the bylaw in light of the commercial zoning, directs the Landlord to take the steps necessary to continue the unit for ostensibly residential occupancy.

31. I have reviewed the case law provided by the Landlord, including the decision of Member Ruth Carey in TEL-70371-16, which concluded that “…continuously breaching the City’s zoning by-law is an illegal act within the meaning of subsection 61(1).” Member Carey’s decision is not binding on me and I do not find it persuasive in this context, particularly as it is distinguishable on its facts.

32. Accordingly, I conclude that the Tenant has not committed an illegal act for the purposes of s.61(1) of the Act. Therefore, this application should be dismissed.

CET-14799-11-RV (Re), 2012 CanLII 98057 (ON LTB)

The Tenant also applied for an order determining that (KS) (the 'Landlord') harassed, obstructed, coerced, threatened or interfered with her, entered the rental unit illegally, altered the locking system on a door giving entry to the rental unit or residential complex without giving her replacement keys, substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of her household and withheld or deliberately interfered with the reasonable supply of a vital service, care service, or food that the Landlord is obligated to supply under the tenancy agreement.

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Issues

1. Was there an error in law related to whether the Board had jurisdiction over the parties regarding the Landlord’s conversion of the dwelling into a single dwelling unit to comply with the City of Brampton zoning bylaws?

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Analysis

I do not find that there is an error in law relating to the issue of the Board’s jurisdiction. The Member’s findings on the Tenant’s applications clearly establish that there was a landlord tenant relationship. Her findings that the Landlord’s actions violated the Residential Tenancies Act, 2006 (the ‘Act’) show that she turned her mind to determine whether the Landlord violated the Act when the Landlord converted the dwelling into a single dwelling unit. As such, I do not find that an error of law exists on this issue.

TSL-62768-15 (Re), 2015 CanLII 100189 (ON LTB)

1. The City of Toronto witness testified that after the Landlord applied for a building permit he determined that the rental unit could not be used as a dwelling unit because such use did not comply with the zoning by-law. He testified the Landlord had two choices: apply for a variation of the zoning by-law to the Committee of Adjustment, during which process the Tenant could remain in possession, or obtain vacant possession of the rental unit.

2. The Landlord in her affidavit swore that “I advised the tenant of my predicament but she has rejected my request” and that “I therefore have no choice but to seek an official order.”

3. The Tenant’s motion to dismiss the application that followed was granted. It may well be that the Landlord intended to use the rental unit for her own use but in her affidavit she indicated that “the basement was not legal for habitation” and that “this basement can only be used for purposes such as storage etc…”

4. Subsection 48(1) of the Residential Tenancies Act, 2006 (the ‘Act’) provides that a landlord can serve notice for own use if the landlord “requires possession of the rental unit for the purpose of residential occupation.” Residential occupation means just that, not substituting a residential use with a use other than residential such as storage.

5. The Landlord’s primary motivation in serving the N12 was not to evict the Tenant for the Landlord’s own use but to comply with the zoning by-law that provides that the rental unit is not habitable. Therefore, instead of proceeding with the N12, the Landlord should have proceeded with an N13 notice of termination indicating the Landlord intended to convert the unit into a non-residential use, a notice that also carries with it a longer notice period.

6. The L2 is therefore dismissed.

7. The Landlord’s request to withdraw the L9 application was granted as was the Tenant’s request to dismiss the T2 application on a without prejudice basis.

CET-66922-17 (Re), 2017 CanLII 48760 (ON LTB)

51. The Tenants seek moving costs and increased rent because they want to move out as soon as they find another place.

52. At the hearing, the Tenants repeatedly said the basement was “illegal”. They submitted a copy of a City Zoning Notice of Non-Compliance dated May 26, 2017. This notice indicates that the presence of a second dwelling unit contravenes the second unit registration by-law. The Landlord is required to remove the second unit or register it by June 26, 2017.

53. I explained to the Tenants that the illegality of their unit does not fall under the jurisdiction of the Board.

54. I believe that the Tenants are requesting moving costs and increased rent on the basis of the City notice. This request is premature. I can only make findings based on the issues claimed in these applications and any remedies ordered must flow from the issues claimed. The Tenants’ applications are not about the City of Brampton notice.

55. In any event, to order termination of the tenancy, moving costs and higher rent I must find that the Tenants’ were induced to move out based on the Landlord’s conduct in accordance with subsection 31(2) of the Act. Lack of access to do laundry and loud music are not issues that would induce the Tenants to move out. The repair issues regarding the lights in the unit are minor and not enough to warrant termination of the tenancy.

CET-70868-17 (Re), 2018 CanLII 41829 (ON LTB)

31. The Board must still apply the legal test to the exemption raised on a case by case basis while acknowledging that there is other legislation, namely the zoning By-Law that may be applicable for the same property. For example, there is a municipal By-Law for the City of Brampton that requires a secondary unit in a single family dwelling to be registered. Very often parties enter into occupation/tenancy agreements regarding a basement unit in this municipality that is not registered. It would be absurd for the Board to accept that because the unit does not conform to this By-Law the tenancy created is exempt from the Act. In this scenario presented, the property may be zoned Tourist Commercial but it doesn’t mean that the Act doesn’t apply to this occupancy.