Matrimonial Home (Possession)

CEL-75051-18-RV (Re), 2018 CanLII 88534 (ON LTB)

4. Although the Landlord’s L3 application is based on a written agreement to terminate, I am not satisfied that there is a genuine tenancy or that the Board has jurisdiction to resolve the dispute between the Tenant and the Occupant over the property (the Occupant claims it is the matrimonial home).

18. In accordance with section 202 of the Act, I am not satisfied that the Landlord and the Tenant are acting in good faith. The real substance of the agreement they signed to terminate the alleged tenancy is an attempt to remove the Occupant from the home to sell the property and/or benefit the Tenant’s position in the family law proceeding.

19. Furthermore, even if there was a genuine landlord/tenant relationship, then subsection 104(4) of the Act would be applicable. That subsection deems an assignment of the tenancy to an occupant if a landlord does not take certain steps within 60 days.

20. The Landlord has been aware since at least September 2017 that the Tenant is no longer living at or in possession of the property. He is not permitted to access the property due to the domestic dispute. The Landlord claims he has not paid any “rent” since that time. Therefore, he has not maintained a connection to the property by paying the “rent”. He has no current ability to access or control the property. Therefore, he is no longer in possession of the property.

HOL-01347-17 (Re), 2017 CanLII 60040 (ON LTB)

6. Pursuant to s. 47.2(3) such a notice must be given to the Landlord at least 28 days before the date of termination specified on the face of the notice. Here, the Tenant back-dated her notice meaning she delivered it to the Landlord after the date of termination on it. So it is not valid and the second named Tenant has not severed the joint tenancy agreement that is the subject of this application.

7. The second named Tenant also argues she is no longer a tenant because she moved out. Section 47.2 would be meaningless if any tenant could simply sever a joint tenancy by the unilateral act of moving out. Rather, what she is trying to argue is that she is no longer in possession so the Board has lost jurisdiction over her.

8. The concept of being in possession is fact based. If a tenant moves out, severs all connection to a unit, no longer has any control over the comings and goings in that unit and sufficient time has passed, the Board may well make a finding that a tenant is no longer in possession.

9. That is not what has happened here. The Tenants have experienced marital breakdown and separated. The second named Tenant appears to be staying with family, her children still live in the unit, and she is still paying some of the bills associated with the unit. More importantly perhaps, there is no separation agreement between the parties so there has been no legal disposition of the matrimonial home.

10. Given the fact situation here both Tenants remain in possession of the rental unit within the meaning of the Act.