Illegal Additional Charges (Tenant Notice): Difference between revisions

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[[Category:Notice of Termination by Tenant (LTB)]]
[[Category:Notice of Termination by Tenant (LTB)]]
[[Category:Payment of Rent (LTB)]]
[[Category:Illegal Charges and Fees (RTA)]]
[[Category:Section 134 (RTA)]]
{{Citation:
| categories = [Payment of Rent (LTB)], [Notice of Termination by Tenant (LTB)], [Illegal Charges and Fees (RTA)], [Section 134 (RTA)]
| shortlink = 39
}}


==Residential Tenancies Act, 2006, S.O. 2006, c. 17<ref name="RTA"/>==
==Residential Tenancies Act, 2006, S.O. 2006, c. 17<ref name="RTA"/>==
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:::(a) any period after the tenancy has terminated and the tenant has vacated the rental unit;
:::(a) any period after the tenancy has terminated and the tenant has vacated the rental unit;


27. So with respect to the Tenant’s T1 application, the Tenant is entitled to the return of rent collected and charged for the period November 17 to November 30, 2018. The tenancy terminated November 16, 2018. The Landlord is not entitled to rent for the period after that.
27. So with respect to the Tenant’s T1 application, the Tenant is entitled to the return of rent collected and charged for the period November 17 to November 30, 2018. <b><u>The tenancy terminated November 16, 2018. The Landlord is not entitled to rent for the period after that.</b></u>


<ref name="TET-96296-18">TET-96296-18 (Re), 2019 CanLII 86878 (ON LTB), <http://canlii.ca/t/j2gmt>, retrieved on 2021-01-15</ref>
<ref name="TET-96296-18">TET-96296-18 (Re), 2019 CanLII 86878 (ON LTB), <http://canlii.ca/t/j2gmt>, retrieved on 2021-01-15</ref>
Line 65: Line 73:
6. The Landlord’s argument is based on the fact that the second-named Tenant above gave the Landlord an invalid notice of termination on October 15, 2019 for November 31st (sic), 2019.
6. The Landlord’s argument is based on the fact that the second-named Tenant above gave the Landlord an invalid notice of termination on October 15, 2019 for November 31st (sic), 2019.


7. The Landlord argues that the Landlord should be entitled to rent for the period ending December 31, 2019 because a valid notice of termination given by the Tenants on October 15, 2019 would have a date of termination on it no earlier than December 31, 2019.
<b><u>7. The Landlord argues that the Landlord should be entitled to rent for the period ending December 31, 2019 because a valid notice of termination given by the Tenants on October 15, 2019 would have a date of termination on it no earlier than December 31, 2019.</b></u>


8. That argument might be a compelling one if s. 88 of the Act applied to this situation but it does not.
8. That argument might be a compelling one if s. 88 of the Act applied to this situation but it does not.


9. The problem with the Landlord’s argument is that prior to the second-named Tenant above serving the invalid notice, the Landlord served its own perfectly valid notice of termination. That was on October 8, 2019. That notice purports to terminate the tenancy October 22, 2019. As the Tenants subsequently moved out and did not dispute the Landlord’s notice, the tenancy terminated effective October 22, 2019.
9. The problem with the Landlord’s argument is that prior to the second-named Tenant above serving the invalid notice, <b><u>the Landlord served its own perfectly valid notice of termination. That was on October 8, 2019. That notice purports to terminate the tenancy October 22, 2019. As the Tenants subsequently moved out and did not dispute the Landlord’s notice, the tenancy terminated effective October 22, 2019.</b></u>


10. This means that on October 23, 2019 the Tenants became “over-holding” tenants and only liable for daily compensation until vacant possession was returned to the Landlord. (See s. 87(3).)
10. This means that on October 23, 2019 the Tenants became “over-holding” tenants and only liable for daily compensation until vacant possession was returned to the Landlord. (See s. 87(3).)
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:::(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit.
:::(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit.


12. Given all of the above I see no reason to depart from the Board’s normal practice as set out in the Guideline. The Landlord’s request for an order for rent arrears and compensation up to December 31, 2019 is denied.
<b><u>12. Given all of the above I see no reason to depart from the Board’s normal practice as set out in the Guideline. The Landlord’s request for an order for rent arrears and compensation up to December 31, 2019 is denied.</b></u>


<ref name="TEL-07150-19">TEL-07150-19 (Re), 2019 CanLII 143745 (ON LTB), <http://canlii.ca/t/j9dv7>, retrieved on 2021-01-15</ref>
<ref name="TEL-07150-19">TEL-07150-19 (Re), 2019 CanLII 143745 (ON LTB), <http://canlii.ca/t/j9dv7>, retrieved on 2021-01-15</ref>
==TSL-95335-18, RVGP 236 (ONLTB)<ref name="TSL-95335-18"/>==
<b><u>13. YG gave direct evidence that she had not had keys to the unit since May 2, 2018, she had not been to the unit since May 2, 2018, and she had only some overnight clothes in the unit since at least May 2, 2018.</b></u> The Landlord's evidence does not contradict YG's evidence. The fact that VN's mother did not mention to VN that she did not see YG at the unit is not very probative. VN's mother did not testify and so she could not be cross-examined. Even if this fact is correct, it does not reasonably lead to a conclusion that YG still lived in the unit at the unspecified times that VN's mother visited. Further, <b><u>it is not relevant that YG gave no notice to the Landlord that she intended to leave or that she left.</b></u>
14. Based on YG's testimony, the material parts of which were not credibly contested, I find, on a balance of probabilities, that YG did not have access to, use of, or occupation of the unit after May 2, 2018. I further find, based on YG's testimony, that YG unequivocally, completely and permanently vacated the rental unit on May 2, 2018. She had another home in Toronto, she did not have keys to the unit after May 2, 2018, she has not been back to the unit after May 2, 2018, and she left a negligible amount of possessions in the unit after May 2, 2018.
15. I therefore find, based on Bakker, that YG was not in possession of the rental unit on the date that this application was filed.
<ref name="TSL-95335-18">TSL-95335-18, RVGP 236 (ONLTB), <https://caselaw.pub/r/v>, retrieved on 2021-08-09</ref>


==References==
==References==

Latest revision as of 04:42, 15 February 2023


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-11-27
CLNP Page ID: 1143
Page Categories: [Payment of Rent (LTB)], [Notice of Termination by Tenant (LTB)], [Illegal Charges and Fees (RTA)], [Section 134 (RTA)]
Citation: Illegal Additional Charges (Tenant Notice), CLNP 1143, <39>, retrieved on 2024-11-27
Editor: Sharvey
Last Updated: 2023/02/15

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Residential Tenancies Act, 2006, S.O. 2006, c. 17[1]

134 (1) Unless otherwise prescribed, no landlord shall, directly or indirectly, with respect to any rental unit,

(a) collect or require or attempt to collect or require from a tenant, prospective tenant or former tenant of the rental unit a fee, premium, commission, bonus, penalty, key deposit or other like amount of money whether or not the money is refundable;
(b) require or attempt to require a tenant or prospective tenant to pay any consideration for goods or services as a condition for granting the tenancy or continuing to permit occupancy of a rental unit if that consideration is in addition to the rent the tenant is lawfully required to pay to the landlord; or
(c) rent any portion of the rental unit for a rent which, together with all other rents payable for all other portions of the rental unit, is a sum that is greater than the rent the landlord may lawfully charge for the rental unit. 2006, c. 17, s. 134 (1); 2017, c. 13, s. 24 (1).
(1.1) No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of,
(a) any period after the tenancy has terminated and the tenant has vacated the rental unit; or
(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit. 2017, c. 13, s. 24 (2).

[1]

TET-86273-17 (Re), 2018 CanLII 42610 (ON LTB)[2]

8. After the hearing held on December 14, 2017, the new subsection 134(1.1) of the Act came to my attention. It is arguably relevant to the Tenant’s T1 application but was not raised at the hearing.

9. As a result the Board issued interim order TET-86273-17-IN on December 21, 2017. It says:

The Board shall reconvene the hearing of this application via teleconference to consider the impact of the new s. 134(1.1) of the Residential Tenancies Act, 2006 (the 'Act') which reads as follows:
No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of,
(a) any period after the tenancy has terminated and the tenant has vacated the rental unit; or
(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit.

[2]

TNT-02295-18 (Re), 2018 CanLII 113931 (ON LTB)[3]

10. The Landlord’s legal representative argued that the Statutory Declaration was effectively a new contract between the Landlord and the Tenant. Specifically, in consideration for the Landlord not filing the Eviction Order with the Sherriff before November 16, 2017, the Tenant agreed to pay the Landlord an additional $639.92. I disagree.

11. Subsection 134(1.1) of the Residential Tenancies Act, 2006 (the ‘Act’), which came into force May 30, 2017, states, in pertinent part:

“No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of, (a) any period after the tenancy has terminated and the tenant has vacated the rental unit; or (b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit.”

12. Thus, the Landlord was prohibited by the Act and the Eviction Order from charging the Tenant any amount that exceeds the per-diem amounts ordered by the Board.

13. I therefore find that the Landlord charged the Tenant an illegal amount of $639.92, contrary to the Act and the Eviction Order.


[3]

TET-96296-18 (Re), 2019 CanLII 86878 (ON LTB)[4]

24. So by serving the N4 on the Tenant the Landlord terminated the tenancy effective November 16, 2018.

25. Pursuant to s. 106(10) a last month’s rent deposit must be applied to the rent due for the last month of the tenancy. So the deposit here must be applied to the rent due for the month of November, 2018.

26. Pursuant to s. 134(1.1):

No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of,
(a) any period after the tenancy has terminated and the tenant has vacated the rental unit;

27. So with respect to the Tenant’s T1 application, the Tenant is entitled to the return of rent collected and charged for the period November 17 to November 30, 2018. The tenancy terminated November 16, 2018. The Landlord is not entitled to rent for the period after that.

[4]

TEL-07150-19 (Re), 2019 CanLII 143745 (ON LTB)[5]

5. Contrary to this normal practice the Landlord seeks an order for arrears up to December 31, 2019 rather than arrears of rent and daily compensation up to the day the Tenants moved out. For the reasons that follow, the Landlord’s request is denied.

6. The Landlord’s argument is based on the fact that the second-named Tenant above gave the Landlord an invalid notice of termination on October 15, 2019 for November 31st (sic), 2019.

7. The Landlord argues that the Landlord should be entitled to rent for the period ending December 31, 2019 because a valid notice of termination given by the Tenants on October 15, 2019 would have a date of termination on it no earlier than December 31, 2019.

8. That argument might be a compelling one if s. 88 of the Act applied to this situation but it does not.

9. The problem with the Landlord’s argument is that prior to the second-named Tenant above serving the invalid notice, the Landlord served its own perfectly valid notice of termination. That was on October 8, 2019. That notice purports to terminate the tenancy October 22, 2019. As the Tenants subsequently moved out and did not dispute the Landlord’s notice, the tenancy terminated effective October 22, 2019.

10. This means that on October 23, 2019 the Tenants became “over-holding” tenants and only liable for daily compensation until vacant possession was returned to the Landlord. (See s. 87(3).)

11. This conclusion is reinforced by subsection 134(1.1) which says:

No landlord shall, directly or indirectly, with respect to any rental unit, collect or require or attempt to collect or require from a former tenant of the rental unit any amount of money purporting to be rent in respect of,
(a) any period after the tenancy has terminated and the tenant has vacated the rental unit; or
(b) any period after the tenant’s interest in the tenancy has terminated and the tenant has vacated the rental unit.

12. Given all of the above I see no reason to depart from the Board’s normal practice as set out in the Guideline. The Landlord’s request for an order for rent arrears and compensation up to December 31, 2019 is denied.

[5]


TSL-95335-18, RVGP 236 (ONLTB)[6]

13. YG gave direct evidence that she had not had keys to the unit since May 2, 2018, she had not been to the unit since May 2, 2018, and she had only some overnight clothes in the unit since at least May 2, 2018. The Landlord's evidence does not contradict YG's evidence. The fact that VN's mother did not mention to VN that she did not see YG at the unit is not very probative. VN's mother did not testify and so she could not be cross-examined. Even if this fact is correct, it does not reasonably lead to a conclusion that YG still lived in the unit at the unspecified times that VN's mother visited. Further, it is not relevant that YG gave no notice to the Landlord that she intended to leave or that she left.

14. Based on YG's testimony, the material parts of which were not credibly contested, I find, on a balance of probabilities, that YG did not have access to, use of, or occupation of the unit after May 2, 2018. I further find, based on YG's testimony, that YG unequivocally, completely and permanently vacated the rental unit on May 2, 2018. She had another home in Toronto, she did not have keys to the unit after May 2, 2018, she has not been back to the unit after May 2, 2018, and she left a negligible amount of possessions in the unit after May 2, 2018.

15. I therefore find, based on Bakker, that YG was not in possession of the rental unit on the date that this application was filed.

[6]

References

  1. ↑ 1.0 1.1 Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17#BK206>, reterived 2021-01-15
  2. ↑ 2.0 2.1 TET-86273-17 (Re), 2018 CanLII 42610 (ON LTB), <http://canlii.ca/t/hs0cn>, retrieved on 2021-01-15
  3. ↑ 3.0 3.1 TNT-02295-18 (Re), 2018 CanLII 113931 (ON LTB), <http://canlii.ca/t/hwbml>, retrieved on 2021-01-15
  4. ↑ 4.0 4.1 TET-96296-18 (Re), 2019 CanLII 86878 (ON LTB), <http://canlii.ca/t/j2gmt>, retrieved on 2021-01-15
  5. ↑ 5.0 5.1 TEL-07150-19 (Re), 2019 CanLII 143745 (ON LTB), <http://canlii.ca/t/j9dv7>, retrieved on 2021-01-15
  6. ↑ 6.0 6.1 TSL-95335-18, RVGP 236 (ONLTB), <https://caselaw.pub/r/v>, retrieved on 2021-08-09
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