Rent Increase - Re: Exempt Units

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	1144
Page Categories:	[Payment of Rent (LTB)]
Citation:	Rent Increase - Re: Exempt Units, CLNP 1144, <https://rvt.link/ag>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2024/01/23

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

6.1 (1) In this section,

“addition” means, with respect to a mobile home park or land lease community, an expansion beyond the boundaries of the mobile home park or land lease community; (“rajout”)

“commencement date” means the day section 1 of Schedule 36 to the Restoring Trust, Transparency and Accountability Act, 2018 comes into force. (“date d’entrée en vigueur”) 2018, c. 17, Sched. 36, s. 1.

Buildings, etc., not occupied on or before November 15, 2018

(2) Sections 120, 121, 122, 126, 127, 129, 131, 132, 133, 165 and 167 do not apply on and after the commencement date with respect to a rental unit if the requirements set out in one of the following paragraphs are met:

1. The rental unit is located in a building, mobile home park or land lease community and no part of the building, mobile home park or land lease community was occupied for residential purposes on or before November 15, 2018.

2. The rental unit is entirely located in an addition to a building, mobile home park or land lease community and no part of the addition was occupied for residential purposes on or before November 15, 2018. 2018, c. 17, Sched. 36, s. 1.

Rental units in detached houses, semi-detached houses or row houses

(3) Sections 120, 121, 122, 126, 127, 129, 131, 132 and 133 do not apply on and after the commencement date with respect to a rental unit if all of the following requirements are met:

1. The rental unit is located in a detached house, semi-detached house or row house which, on or at any time before November 15, 2018, contained not more than two residential units.

2. The rental unit is a residential unit that meets all of the following requirements:

i. The unit has its own bathroom and kitchen facilities.

ii. The unit has one or more exterior or interior entrances.

iii. At each entrance, the unit has a door which is equipped so that it can be secured from the inside of the unit.

iv. At least one door described in subparagraph iii is capable of being locked from the outside of the unit.

3. The rental unit became a residential unit described in paragraph 2 after November 15, 2018.

4. One or both of the following circumstances apply:

i. At the time the rental unit was first occupied as a residential unit described in paragraph 2, the owner or one of the owners, as applicable, lived in another residential unit in the detached house, semi-detached house or row house.

ii. The rental unit is located in a part of the detached house, semi-detached house or row house which was unfinished space immediately before the rental unit became a residential unit described in paragraph 2. 2018, c. 17, Sched. 36, s. 1.

...

38 (1) If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (1).

(2) If the period of a daily, weekly or monthly tenancy ends and the tenancy has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it for another day, week or month, as the case may be, with the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (2).

(3) If the period of a periodic tenancy ends, the tenancy has not been renewed or terminated and subsection (2) does not apply, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy, with the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (3).

...

116 (1) A landlord shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the landlord’s intention to do so. 2006, c. 17, s. 116 (1).

(2) Subsection (1) applies even if the rent charged is increased in accordance with an order under section 126. 2006, c. 17, s. 116 (2).

(3) The notice shall be in a form approved by the Board and shall set out the landlord’s intention to increase the rent and the amount of the new rent. 2006, c. 17, s. 116 (3).

(4) An increase in rent is void if the landlord has not given the notice required by this section, and the landlord must give a new notice before the landlord can take the increase. 2006, c. 17, s. 116 (4).

...

118 A tenant who does not give a landlord notice of termination of a tenancy under section 47 after receiving notice of an intended rent increase under section 116 shall be deemed to have accepted whatever rent increase would be allowed under this Act after the landlord and the tenant have exercised their rights under this Act. 2006, c. 17, s. 118.

...

120 (1) No landlord may increase the rent charged to a tenant, or to an assignee under section 95, during the term of their tenancy by more than the guideline, except in accordance with section 126 or 127 or an agreement under section 121 or 123. 2006, c. 17, s. 120 (1).

...

123 (1) A landlord may increase the rent charged to a tenant for a rental unit as prescribed at any time if the landlord and the tenant agree that the landlord will add any of the following with respect to the tenant’s occupancy of the rental unit:

1. A parking space.

2. A prescribed service, facility, privilege, accommodation or thing. 2006, c. 17, s. 123 (1).

(2) Subsection (1) applies despite sections 116 and 119 and despite any order under paragraph 6 of subsection 30 (1). 2006, c. 17, s. 123 (2).

124 An agreement under section 121 or 123 is void if it has been entered into as a result of coercion or as a result of a false, incomplete or misleading representation by the landlord or an agent of the landlord. 2006, c. 17, s. 124.

125 A landlord shall decrease the rent charged to a tenant for a rental unit as prescribed if the landlord and the tenant agree that the landlord will cease to provide anything referred to in subsection 123 (1) with respect to the tenant’s occupancy of the rental unit. 2006, c. 17, s. 125.

...

128 (1) This section applies with respect to an order issued under subsection 126 (10), on an application made under subsection 126 (1) before the day subsection 22 (1) of the Rental Fairness Act, 2017 comes into force, permitting an increase in rent that is due in whole or in part to an extraordinary increase in the cost for utilities. 2017, c. 13, s. 23 (1).

(2) If a landlord increases the rent charged to a tenant for a rental unit pursuant to an order described in subsection (1), the landlord shall, in accordance with the prescribed rules, provide that tenant with information on the total cost of utilities for the residential complex. 2006, c. 17, s. 128 (2).

(3) If a landlord increases the rent charged to a tenant for a rental unit pursuant to an order described in subsection (1) and the cost of utilities for the residential complex decreases by more than the prescribed percentage in the prescribed period, the landlord shall reduce the rent charged to that tenant in accordance with the prescribed rules. 2006, c. 17, s. 128 (3).

(4) This section ceases to apply to a tenant of a rental unit in respect of a utility if the landlord ceases to provide the utility to the rental unit in accordance with this Act or an agreement between the landlord and that tenant. 2006, c. 17, s. 128 (4).

(5) Subsection (1), as it reads immediately before the day subsection 23 (1) of the Rental Fairness Act, 2017 comes into force, continues to apply with respect to applications for an above-guideline rent increase due in whole or in part to an extraordinary increase in the cost for utilities that are made before the day subsection 22 (1) of that Act comes into force and have not been finally determined before the day subsection 23 (1) of that Act comes into force. 2017, c. 13, s. 23 (2).

...

130 (1) A tenant of a rental unit may apply to the Board for an order for a reduction of the rent charged for the rental unit due to a reduction or discontinuance in services or facilities provided in respect of the rental unit or the residential complex. 2006, c. 17, s. 130 (1).

(2) A former tenant of a rental unit may apply under this section as a tenant of the rental unit if the person was affected by the discontinuance or reduction of the services or facilities while the person was a tenant of the rental unit. 2006, c. 17, s. 130 (2).

(3) The Board shall make findings in accordance with the prescribed rules and may order,

(a) that the rent charged be reduced by a specified amount;

(b) that there be a rebate to the tenant of any rent found to have been unlawfully collected by the landlord;

(c) that the rent charged be reduced by a specified amount for a specified period if there has been a temporary reduction in a service. 2006, c. 17, s. 130 (3).

(4) An order under this section reducing rent takes effect on the day that the discontinuance or reduction first occurred. 2006, c. 17, s. 130 (4).

(5) No application may be made under this section more than one year after a reduction or discontinuance in a service or facility. 2006, c. 17, s. 130 (5).

Opara v. Cook, 2008 CanLII 22923 (ON SCDC)

[6] A tenancy agreement came into effect on December 11, 2006 upon the agreement being reached between the parties and the deposit being paid. There is no real dispute that such an agreement was reached. Mr. Opara purported to unilaterally terminate that agreement on December 13, 2006. The only real issue is whether he was entitled to do so. In this regard, ss. 9(1) and 9(2) of the Tenant Protection Act are irrelevant as they deal only with when the “term” of the tenancy commences. This has nothing to do with whether either party can rescind the agreement prior to the date of occupancy. Ordinary rules of contract law apply. There is no unilateral right to rescind a contract that has been duly entered into by the parties simply because the effective date of the contract has not yet been reached.

Shnier v. Begum, 2023 ONSC 5556 (CanLII)

[1] Mitchell Shnier appeals from two orders of the Landlord and Tenant Board pursuant to section 210 of the Residential Tenancies Act, 2006 (the “Act”). On February 7, 2022, LTB Member Greg Joy evicted the Appellant from residential premises he rented from the Respondent Syeda Begum.

[2] The Appellant requested a review of the eviction order. On May 10, 2022, LTB Member Dawn Wickett upheld the Eviction Order on review.

[3] The Appellant alleges three errors in law, two related to the eviction hearing before Member Joy, and a third, a denial of procedural fairness linked to the inadequacy of reasons on review before Member Wickett.

[4] For the reasons that follow, I conclude that the Board did not commit any errors in law at either stage of the proceedings. I dismiss the appeal.

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[16] The Appellant submits that the Board’s reasons show that it neither identified nor applied the relevant principles of contractual interpretation to the question of what the renewal provision in this lease meant. These include the principles of contra preferentum, seeking an interpretation which makes commercial sense and avoids absurdity or redundancy and the requirement that it reads the terms in the context of the whole agreement.

[17] The portion of the Board’s reasons concerning the renewal provision and the timing of the Respondent’s notice to reoccupy are as follows:

1. The Tenant submits that there is an agreement that the Tenant has the option to renew the tenancy agreement for a one-year term is [sic] he exercises his right to do so. The tenancy agreement under Schedule A states “The Landlord and Tenant agree that the lease may be renewed for a further period of one year on the same terms and conditions at a mutually agreed upon rent, with the Tenant having the option to terminate the Lease by giving 60 days notice to the Landlord. The 60 days period would be counted from the last day of the month”.

2. The Tenant argues that he provided the Landlord with 60 days notice and therefore the end of the term would be November 30, 2022 and not the termination date on the notice of November 30, 2021.

3. I note that the wording of Schedule A says the lease “may” be renewed. The word suggests that this is not mandatory for either party to agree to this renewal period. This Schedule also states that it is renewed at a mutually agreed upon rent which could be contrary to the provisions of the Residential Tenancies Act for a rent increase which the Act limits.

...

[20] The Board concluded that the renewal provision was clear. It is implicit in the Board’s reasons that it did not find this term to be ambiguous. That conclusion does not amount to evidence of a failure to apply the principle of contra preferentum, that is the principle that an ambiguous term will be resolved in favour of the person who has not drafted the contract. Rather, it is the logical result of the Board’s finding that the wording was clear, and supported the finding that the parties could extend the lease, on terms satisfactory to the parties for a further year period.

[21] The Appellant also submitted that the provision as interpreted by the Board is redundant and does not make commercial sense, because the parties did not need to stipulate that they could agree to a further term. Again, I disagree. The provision regularizes and recognizes the ability of the parties to agree to an extension, to agree on rent to be paid during the period of extension (leaving aside for now the potential for unlawful rent being agreed upon given Ontario’s legislated rent regime, which is discussed below) and permitted the tenant the ability to be relieved from the lease on 60 days’ notice.

[22] In reviewing the provision and the reasons, I conclude that there is no “extricable error in law” revealed by the Board’s decision. As the Supreme Court has noted in Sattva at para. 47, “the interpretation of contracts has evolved towards a practical common-sense approach that is not dominated by technical rules of construction.” On my reading of the reasons, the Board read and understood the provision in its ordinary and grammatical meaning, required by the case law: See Sattva at para. 46.

[23] Thus, I find that the Board did not err in law in making its findings on the meaning of the lease renewal provision.