Prepayment of Rent

Residential Tenancies Act, 2006, S.O

106 (1) A landlord may require a tenant to pay a rent deposit with respect to a tenancy if the landlord does so on or before entering into the tenancy agreement.

(2) The amount of a rent deposit shall not be more than the lesser of the amount of rent for one rent period and the amount of rent for one month.

(3) If the lawful rent increases after a tenant has paid a rent deposit, the landlord may require the tenant to pay an additional amount to increase the rent deposit up to the amount permitted by subsection (2).

(4) A new landlord of a rental unit or a person who is deemed to be a landlord under subsection 47 (1) of the Mortgages Act shall not require a tenant to pay a rent deposit if the tenant has already paid a rent deposit to the prior landlord of the rental unit.

(6) A landlord of a rental unit shall pay interest to the tenant annually on the amount of the rent deposit at a rate equal to the guideline determined under section 120 that is in effect at the time payment becomes due.

(10) A landlord shall apply a rent deposit that a tenant has paid to the landlord or to a former landlord in payment of the rent for the last rent period before the tenancy terminates.

107 (1) A landlord shall repay the amount received as a rent deposit in respect of a rental unit if vacant possession of the rental unit is not given to the prospective tenant.

(2) Despite subsection (1), if the prospective tenant, before he or she would otherwise obtain vacant possession of the rental unit, agrees to rent a different rental unit from the landlord,

(a) the landlord may apply the amount received as a rent deposit in respect of the other rental unit; and

(b) the landlord shall repay only the excess, if any, by which the amount received exceeds the amount of the rent deposit the landlord is entitled to receive under section 106 in respect of the other rental unit.

135 (1) A tenant or former tenant of a rental unit may apply to the Board for an order that the landlord, superintendent or agent of the landlord pay to the tenant any money the person collected or retained in contravention of this Act or the Tenant Protection Act, 1997.

(1.1) Without limiting the generality of subsection (1), a landlord is deemed to have retained money in contravention of this Act, if the landlord is required to compensate a tenant under section 48.1, 52, 54 or 55 and fails to compensate the tenant as required.

(2) A prospective tenant may apply to the Board for an order under subsection (1). 2006, c. 17, s. 135 (2).

(3) A subtenant may apply to the Board for an order under subsection (1) as if the subtenant were the tenant and the tenant were the landlord.

SWT-01750-17 (Re), 2017 CanLII 51511 (ON LTB)

10. Pursuant to section 106 of the RTA, a Landlord may require a tenant to pay a rent deposit with respect to a tenancy if the landlord does so on or before entering into the tenancy agreement. However, section 106(2) provides:

(2) The amount of a rent deposit shall not be more than the lesser of the amount of rent for one rent period and the amount of rent for one month.

11. In the case before me, the Landlord clearly collected more than a month’s rent. However, the Divisional Court has held that the collection of a prepayment of rent is only illegal where the prepayment is not voluntary.

12. In Royal Bank of Canada v. MacPherson (2009) O.J. No. 3806, where the Tenant voluntarily prepaid rent, the Divisional Court agreed with the Board’s finding that the tenant was entitled to credit for a bona fide prepayment of rent and could not be evicted by a mortgagee in possession. In so doing, the Court held

i. the plain language of these sections does not make pre-payment by a tenant of a rent in excess of one month's rent illegal. It makes the act of a landlord demanding such prepayment illegal. [at para.27]

13. The approach was confirmed by the Divisional Court again in Corvers v. Bumbia, 2014 ONSC 985 (CanLII). The question before me then is whether the prepayment of rent in this case was voluntary.

Corvers v. Bumbia, 2014 ONSC 985 (CanLII)

[1] There was finding of fact that the rent deposit of $90,000 was voluntary. That finding of fact was based on the evidence before the application judge. There is no palpable or overriding error in that finding.

[2] It is our view that this case is consistent with Royal Bank v. MacPherson (2009), 311 D.L.R. (4th) 361 and that therefore the rent deposit was not “required” for the purposes of s. 106 of the Residential Tenancies Act. Therefore, there was no contravention under s. 135 of the Residential Tenancies Act. Therefore, there is no basis upon which we can interfere with the decision of the application judge.

Royal Bank of Canada v. MacPherson (2009) O.J. No. 3806

10 The respondent, John MacPherson, entered into a one-year written tenancy agreement to lease a house in Newmarket with Sandra Wilson, the owner. The lease was negotiated by a rental agency.

11 The rent was $2,000 per month, and the tenant was required to pay a deposit of $2,000. The tenant paid the deposit. The tenant also pre-paid the entire year's rent of $24,000, prior to taking possession on June 15, 2007. The tenant received a discount in the amount of $4,800.00 as consideration for pre-paying one year of rent.

21 The Board agreed with the tenant's submissions. It noted that the limits on security deposits were designed to protect tenants before they enter into a tenancy agreement from unreasonable demands of landlords, and it would be unfair not to give credit to the rental prepayment made in good faith. It held the prepayment was binding on the mortgagee-in-possession as a covenant running with the land.

25 The Bank argues that the term for the pre-payment of rent is void and unenforceable by the tenant because of ss. 105 and 106 of the RTA, which prohibit rental deposits of more than one month's rent.

26 I disagree with this argument for two reasons.

27 First, the plain language of these sections does not make pre-payment by a tenant of a rent in excess of one month's rent illegal. It makes the act of a landlord demanding such prepayment illegal. Moreover, s. 234(d) of the Act makes it an offence for a person to require or receive a security deposit from a tenant contrary to s. 105. The tenant does not commit an offence in paying more than one month's rent in advance.

28 Second, even assuming that ss. 105 and 106 mean that any prepayment of rent falls within the definition of a security deposit and therefore any amount paid over one month's rent is prima facie illegal, this does not mean that the tenant is precluded from relying on his prepayment of rent when faced with a demand for rent by the mortgagee-in-possession.

32 The goal of ss. 105 and 106 of the RTA, as recognized by the cases, is to protect tenants from landlords demanding large sums of money to be paid in advance in order to secure housing: Mullings, supra at para. 5.

33 In this case, the tenant voluntarily negotiated the terms of a lease for the pre-payment of rent which suited his personal circumstances to prove that he had stable accommodation for his child for a one year period, and provided him with a significant discount as compensation for pre-paying his rent

36 It is noteworthy that s. 135(1) of the RTA provides a remedy to a tenant against a landlord who has collected money in contravention of the Act. It allows the tenant to apply to the Board to recover such funds. This provision shows that the Legislature did not intend a tenant to be without recourse where a provision of a tenancy agreement, such as a requirement for prepaid rent, is contrary to the Act.

37 Given the terms of s. 135(1), it would be consistent with the purpose of the Act to allow a tenant to rely on the terms of a tenancy agreement against a landlord who had received rent payments in advance if the landlord were to argue that the agreement was illegal and unenforceable.

TNT-98867-17 (Re), 2017 CanLII 142686 (ON LTB)

2. One of the terms of the lease required the Tenant to pay $9,000.00 to the Landlord at the outset of the tenancy. The provision in the lease, which is a term or condition of the Agreement states in part as follows:

“The Tenant delivers upon acceptance by negotiable cheque payable to [Landlord’s agent] in the amount of Nine Thousand Canadian Dollars (CDN$9,000.00) as a deposit to be held in trust or security for the faithful performance by the Tenant of all terms, covenants and conditions of the Agreement and to be applied by the Landlord against the 1st, 8th, 9th, 10th, 11th and last month’s rent.”

3. The Tenant paid $9,000.00 to the Landlord’s agent by money order on August 24, 2017.

4. The Landlord’s representative contended that this amount was a voluntary prepayment of rent by the Tenant and therefore was not contrary to the provisions of the Residential Tenancies Act, 2006 (the ‘Act’), relying on the Divisional Court decision in Corvers v. Bumbia 2014 ONSC 985.

5. I do not agree.

6. S. 105(1) of the Act prohibits a Landlord from collecting a security deposit other than a rent deposit not to exceed one month’s rent.

7. “security deposit” is defined in S. 105(2) to mean “money…given by or on behalf of a tenant of a rental unit to a landlord or to anyone on the landlord’s behalf to be held by, or for the account of the landlord as security for the performance of an obligation or the payment of a liability of the tenant…”

8. It is clear from the language in the tenancy agreement that the money paid by the Tenant was a “deposit to be held in trust or security for the faithful performance by the Tenant of all terms, covenants and conditions of the Agreement…”. Thus by the terms of the parties’ own agreement, the amount paid is a deposit in an amount which is contrary to the Act. A provision in a tenancy agreement that is inconsistent with the Act is void.

9. Moreover, the correspondence between the Tenant’s agent and the Tenant on August 22, 2017 makes it clear that the Landlord or the Landlord’s agent required a deposit of 6 months’ rent in order to consider the Tenant’s offer to rent the unit. The Tenant, whose wife was well along in her pregnancy at the time, felt that he had no option but to pay the deposit requested to secure the rental unit. This does not constitute a voluntary pre-payment of rent by the Tenant.

10. I find, based on the evidence that the Landlord collected an illegal deposit from the Tenant, contrary to the Act.

CET-47401-15 (Re), 2015 CanLII 33128 (ON LTB)

12. The Tenant asserts that the Landlord required the Tenant to pay three months additional rent as a deposit, totalling $4,200.00. The Tenant filed an application requesting the three month deposit be returned to him.

13. Section 105 permits a Landlord to collect a rent deposit so long as it complies with section 106 of the Act. Section 106 of the Act permits a landlord to require a tenant to pay a rent deposit with respect to a tenancy. It further states that the amount of the rent deposit shall not be more than the lesser of the amount of rent for one rent period and the amount of the rent for one month. Moreover, section 234(d) of the Act makes it an offence to require or receive a rent deposit contrary to section 105.

15. Pursuant to section 135(1) of the Act, a tenant may apply to collect monies paid to a landlord which are collected or retained in contravention of the Act. Clearly the legislature did not intend a tenant to be without recourse where a provision of the tenancy agreement is contrary to the Act.

16. The court in C v. B, 2014 ONSC 985, (Divisional Court) noted that there was a finding of fact that the rent deposit of $90,000.00 was voluntary. The court noted that “[i]t is our view that this case is consistent with RB v. M (2009), 311 D.L.R. (4th) 361 and that therefore the rent deposit was not ‘required’ for the purposes of s. 106 of the Residential Tenancies Act. Therefore, there was no contravention under s. 135 of the Residential Tenancies Act. Therefore, there is no basis upon which we can interfere with the decision of the application judge.

17. I do not find that the Tenant’s three month deposit in the amount of $4,200.00 was voluntary. I find that the Landlord required this amount to be paid by the Tenant.

19. The Landlord testified that he was skeptical to lease to the Tenant because the Tenant was new to the country, did not have any bank/credit history, and had just started a new job. The Landlord’s reluctance to lease to the Tenant was communicated by the Landlord’s real estate agent to the Tenant’s real estate agent. It is the Landlord’s evidence that the Tenant’s agent offered an additional two months. The Landlord rejected the Tenant’s offer of an additional two months, and asked instead for a three months deposit. These three months were in addition to first and last month rent deposit.

20. In paragraph 15 of Schedule A to the Lease Agreement it notes that the tenant willingly offered to pay the landlord a three month deposit. I find that paragraph 15 is consistent with the Landlord’s evidence above. It shows that the Tenant’s offer to provide an extra two month deposit was rejected by the Landlord, and that the Landlord required a three month deposit instead. Upon observation of the paragraph, you see the type written ‘two’ month deposit is crossed out and in hand-writing, the word ‘three’ was added, to reference that a three month deposit is being given. Also, ‘and 9th’ was added to show that the deposits were to be applied to the 10th and 11th and 9th month’s rent.

21. Based on the facts presented at the hearing, I find that the present case is distinguishable from C v. B. In particular I do not find that the three month deposit was voluntary. The Landlord, once he rejected the Tenant’s voluntary offer of two additional months, changed the voluntary aspect of the extra two month deposit, and made it a requirement that the Tenant provide the Landlord a three month deposit.

22. The Landlord here required an amount greater than permitted by the Act. The Landlord collected three additional months as a deposit from the Tenant as a security deposit. The Landlord required this amount to be paid in order to satisfy the Landlord to enter the lease agreement. This is prohibited by the Act.

SWT-01750-17 (Re), 2017 CanLII 51511 (ON LTB)

1. The rental unit is in a 4 story building with seniors residing on the first and second floors. The 4th floor on which the rental unit is located is used by the Landlord to rent to students for two university semesters. The 3rd floor houses students who are staying for one semester.

2. The parties entered into a tenancy agreement commencing September 12, 2016 for a fixed term. The end date of the tenancy was April 23, 2017. At the commencement of the Tenancy, the Tenant paid to the Landlord $9,503.80.

3. In October 2016, the Tenant decided to move back to British Columbia. The total amount collected by the Landlord at the commencement of the tenancy was $9, 503.80 which includes payment for occupation of the rental unit for two semesters in the amount of $4,751.90 per semester and $800.00 for a cleaning.

4. The Tenant is seeking the return of $4,751.90, the amount of money he paid for occupying the rental unit for the second university semester, during which time he never resided in the rental unit. The Tenant alleges that the Landlords collected money illegally from the Tenant and he is seeking the return of the second semester charge. Although the Tenant vacated during the middle of the first semester, his claim does not include anything paid for the first semester. The Tenant is also requesting the return of a cleaning deposit of $800.00. The Landlords consented to refund the $800.00 for the cleaning deposit but argue that they are entitled to retain the second semester’s prepayment as there was no lawful termination of the tenancy.

5. There is no dispute the Landlord charges rent by the semester and the Tenant signed a lease agreement for two semesters. The rent for each semester was $4,751.90.

8. Given these facts, I find that the end date of the lease term is April 23, 2017 and the Tenant was obligated under the contract to pay rent until the end of the lease term. The Tenant vacated prior to the end of the lease term, October 23, 2016. I find that the Tenant failed to give lawful notice to the Landlord and is responsible for rent for the duration of the lease.

9. Since there was no proper termination in this case, even if I find that the pre-payment of rent is illegal, the Tenant would only be entitled to the return of the money paid towards the second semester if the Landlord failed to minimize losses pursuant to s. 16 of the Residential Tenancies Act,2006, S.O., 2006 c.17.(“RTA”)

19. As set out above, the Tenants would only be entitled to a refund if the Landlords failed to minimize losses since there was no valid termination of the tenancy in this case.

25. I find that the Landlords did not comply with section 16 because they failed take reasonable steps to minimize their losses flowing from the Tenant vacating the rental unit without first serving a notice of termination in accordance with the Act’s requirements.

26. Given the Landlords have failed minimize their losses, I find that the prepaid rent collected for the second semester must be returned to the Tenant, since, given the failure of the Landlords to minimize losses, the money cannot be applied to the rent for the second semester.