Condominium Conversion (Re: Personal Use Application)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	1823
Page Categories:	[Personal Use Application (LTB)]
Citation:	Condominium Conversion (Re: Personal Use Application), CLNP 1823, <54>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2024/11/22

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

1 The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. 2006, c. 17, s. 1.

...

51 (1) If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description. 2006, c. 17, s. 51 (1).

(2) If a landlord has entered into an agreement of purchase and sale of a rental unit that is a proposed unit under the Condominium Act, 1998 or a predecessor of that Act, a landlord may not give a notice under section 48 or 49 to the tenant of the rental unit who was the tenant on the date the agreement of purchase and sale was entered into. 2006, c. 17, s. 51 (2).

(3) Subsections (1) and (2) do not apply with respect to a residential complex if no rental unit in the complex was rented before July 10, 1986 and all or part of the complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act before the day that is two years after the day on which the first rental unit in the complex was first rented. 2006, c. 17, s. 51 (3).

(4) Despite subsection 95 (8), a reference to a tenant in subsection (1), (2) or (5) does not include a person to whom the tenant subsequently assigns the rental unit. 2006, c. 17, s. 51 (4).

(5) If a landlord receives an acceptable offer to purchase a condominium unit converted from rented residential premises and still occupied by a tenant who was a tenant on the date of the registration referred to in subsection (1) or an acceptable offer to purchase a rental unit intended to be converted to a condominium unit, the tenant has a right of first refusal to purchase the unit at the price and subject to the terms and conditions in the offer. 2006, c. 17, s. 51 (5).

(6) The landlord shall give the tenant at least 72 hours notice of the offer to purchase the unit before accepting the offer. 2006, c. 17, s. 51 (6).

(7) Subsection (5) does not apply when,

(a) the offer to purchase is an offer to purchase more than one unit; or

(b) the unit has been previously purchased since that registration, but not together with any other units. 2006, c. 17, s. 51 (7).

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Evelyn Vanderhoof -and- Kazi Javed Sakhawat ONLTB LTB-L-068590-23

1. Upon review of the parties submissions, both oral and written, with respect to the application of subsection 51(1) of the Act, I have made the following findings.

2. The Landlord has served the Tenant with a N12 Notice of Termination (‘N12 Notice’) for Landlord’s own use with the LTB seeking possession of the unit for themselves.

3. It is uncontested that the ‘original’ landlord, Ken Tsui (‘KT’), was an individual who held an interest in the rental property as a life-lease holder with the former Owner of the life-lease building, Rose of Sharon (Ontario) Retirement Community (‘ROS’).

4. It is uncontested that the former landlord KT leased the rental unit to the Tenant through a Rental Agreement, with the tenancy beginning on April 1, 2011. The original Rental Agreement was for a one-year term and the tenancy has continued on uninterrupted since that time.

5. It is uncontested that the ROS encountered financial difficulties and was placed into receivership. The Receiver caused the condominium corporation to be registered on May 18, 2022, and individual units in the life-lease building were sold to individual purchasers, including the rental unit, pursuant to an Approval and Vesting Order issued by the Superior Court of Justice, dated July 27, 2022.

Analysis

10. Having withdrawn the request to rely upon the terms and conditions of the Vesting Order, and noting that I did not none-the-less have verification of the Court’s specific considerations or determinations regarding the existing tenancy that would confirm whether the receivership granted a continuation or the termination of the tenant, I find the Landlord failed to prove on a balance of probabilities that the tenancy was “vested out” at the time of the Superior Court’s receivership conclusion.

11. I find that there was incomplete evidence before me regarding the effect of that receivership and whether a prior life lease impacted the tenancy in the condominium conversion. This determination should not be made in a vacuum, to act as if there was not a prior proceeding in the Superior Court that dealt specifically with this tenancy and based on extensive supporting documentation that the Receiver would have received and considered. To withdraw the Vesting Order and seek not to rely on the determinations of the higher court, which the Landlord previously stated were applicable in this case, leaves me with incomplete information on the Court’s final ruling in this tenancy – and in a position that a contradictory order may be made by this Board.

...

14. The Act applies to all rental units in all residential complexes unless specifically exempted (s. 3 of the Act). I find that there is no applicable exemption under s. 5 of the Act that would remove this tenancy from the Act as the parties meet the Act’s definitions of landlord and tenant and it is a rental unit in a residential complex, for which this tenant pays rent.

15. In 2016 the Divisional Court in Bory v. Bory, 2016 ONSC 526, considered the application of s. 48 to a life lease and found that a life lease could not be terminated, as the end of the term of the tenancy is the date of death of the tenant. Therefore, a life tenancy can be terminated under the Act but not where the notice is of a type that requires the date of termination be the last day of the term of the tenancy. This is because until the tenant dies, the end of the term of the tenancy is unknown. I note this case here solely for the proposition that the Divisional Court did not find such a tenancy exempt from the Act itself, but rather from use of end of term termination notices. I find that there was no exemption that removes this tenancy from the Act; the Act therefore applies.

16. In having considered that the tenancy continued after the conversion to a condominium, and having considered the uncontested fact that the Tenant was in possession when the condominium was converted, I find on a balance of probabilities that s. 51(1) of the Act applies, the tenancy cannot be terminated. Therefore, the application is denied.

CEL-76563-18-RV (Re), 2018 CanLII 88412 (ON LTB)

5. The reasons for the dismissal of the application are set out in the order and are due to subsection 51(1) of the Act. The order reveals a reasonable basis for the determinations made by the Member and the dismissal. Reasonable determinations will not be interfered with on review.

6. As set out in the order, the Landlord was not aware that this tenancy was subject to the restriction of subsection 51(1) of the Act when she purchased the property. Yet, as set out in the order, the Tenants posted notice of this fact in the unit while it was for sale but the Landlord never viewed the unit prior to purchasing it. The Landlord’s lack of awareness of the restriction in subsection 51(1) of the Act does not amount to a serious error in the order or the Board’s process.

7. The Landlord does not identify a serious error in the order or the Board’s process in her review request. Her concerns relate more to the very existence of subsection 51(1) of the Act and her frustration with the fact that the building was converted to a condominium from a rented residential premise years ago means that she cannot serve a notice of termination for the Landlord’s own use of the unit. Her plans for the unit when she bought the property have been frustrated by subsection 51(1) of the Act.

8. The Board applies the law, which is the Act, to the facts in each case. The Landlord’s frustration is understandable. However, the Board cannot overlook the section of the Act that the Landlord is unhappy with. The Board also cannot change or re-write the Act. Only the government has that authority.

CEL-76563-18 (Re), 2018 CanLII 88413 (ON LTB)

1. The N12 notice of termination at the root of this application was served on the Tenants pursuant to section 48 of the Residential Tenancies Act, 2006 (the ‘Act’). The Tenants submit and rely on subsection 51(1) of the Residential Tenancies Act, 2006 (the ‘Act’) which states:

If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description.

2. It was uncontested that the Tenants’ tenancy commenced on September 1, 2003. According to the Tenants, the rental unit was converted to a condominium in July 2004. It was uncontested that a conversion to condominiums took place at this residential complex. Therefore, the Tenants submit that the Landlord was not entitled to serve a notice under section 48 of the Act.

3. The Landlord is the recent purchaser of the rental unit. She purchased the unit with the intention at some point for her son to move into the unit. The Landlord submitted that she was not aware that the Tenants she inherited with this unit were subject to subsection 51(1) of the Act. She was simply told they were month-to-month Tenants.

4. The Tenants submitted that they were aware that the unit was for sale and posted notice in the unit regarding their tenancy and subsection 51(1) of the Act. There was no dispute that the Landlord never viewed the unit.

5. Given that there was no dispute the Tenants were occupying the rental unit when the conversation to a condominium took place back in 2004, I am satisfied that in accordance with subsection 51(1) of the Act, the Landlord was not entitled to serve a notice of termination pursuant to section 48 of the Act. Consequently, the application is dismissed.

6. The Tenants’ Legal Representative’s request for costs is denied. Costs are only awarded in cases unreasonable conduct in the proceeding. Despite the Tenants’ Legal Representative advising the Landlord after his clients’ receipt of the N12 notice regarding their submission under subsection 51(1) of the Act. I find that it was not unreasonable for the Landlord to file this application with the Board and request a determination.

SWL-01548-17 (Re), 2017 CanLII 48417 (ON LTB)

5. The Tenant is a person who was a tenant of a rental unit when it became subject to the registered declaration and description. The Tenant had moved into the rental unit prior to the conversion of the rental unit into a condominium unit in 2001. Thus the tenancy falls within the scope of section 51(1) of the Act. Therefore the Landlord cannot serve the Tenant with a notice of termination under sections 48 or 49 of the Act for the Landlord’s own use or Purchaser’s own use.

6. However the exemption to section 51(1)of the Act must also be considered. That section provides that if no rental unit was rented before July 10, 1986 then section 51(1) does not apply. In this case the rental unit was rented prior to July 10, 1986 because the Tenant testified that the property was a rental housing complex when she was a child going to school 40 years ago. Without any evidence to the contrary I find that section 51(1) applies and the Landlord is not entitled to seve the Tenant with a N12 Notice to terminate the tenancy for purchaser’s own use and the application must be dismissed.