Refusal to Assign or Sublet Tenancy (LTB)

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

95 (4) A tenant may give the landlord a notice of termination under section 96 within 30 days after the date a request is made if,

(a) the tenant asks the landlord to consent to an assignment of the rental unit and the landlord refuses consent;

(b) the tenant asks the landlord to consent to an assignment of the rental unit and the landlord does not respond within seven days after the request is made;

(c) the tenant asks the landlord to consent to an assignment of the rental unit to a potential assignee and the landlord refuses consent to the assignment under clause (3) (c); or

(d) the tenant asks the landlord to consent to an assignment of the rental unit to a potential assignee and the landlord does not respond within seven days after the request is made. 2006, c. 17, s. 95 (4).

96 (1) A tenant may give notice of termination of a tenancy if the circumstances set out in subsection 95 (4) apply.

98 (1) A tenant or former tenant of a rental unit may apply to the Board for an order determining that the landlord has arbitrarily or unreasonably withheld consent to the assignment or sublet of a rental unit to a potential assignee or subtenant.

(2) No application may be made under subsection (1) more than one year after the day the alleged conduct giving rise to the application occurred. 2006, c. 17, s. 98 (2).

(3) If the Board determines that a landlord has unlawfully withheld consent to an assignment or sublet in an application under subsection (1), the Board may do one or more of the following:

1. Order that the assignment or sublet is authorized.

2. Where appropriate, by order authorize another assignment or sublet proposed by the tenant.

3. Order that the tenancy be terminated.

4. Order an abatement of the tenant’s or former tenant’s rent. 2006, c. 17, s. 98 (3).

(4) The Board may establish terms and conditions of the assignment or sublet. 2006, c. 17, s. 98 (4).

(5) If an order is made under paragraph 1 or 2 of subsection (3), the assignment or sublet shall have the same legal effect as if the landlord had consented to it. 2006, c. 17, s. 98 (5).

EAT-61174-16 (Re), 2017 CanLII 49011 (ON LTB)

1. KW indicated that she signed the lease as a guarantor. The rental unit was occupied by her son, M. W. (MW). The lease was for the period of April 1, 2016 to March 31, 2017 at an amount of $1,000 per month. The rental unit is a basement suite in a house, of which the main portion is occupied by the Landlord and his family. The Tenants paid a last month’s rent deposit and provided the Landlord with postdated monthly rent cheques for every month up to and including February 2017.

15. The Tenants were entitled by section 95 of the Act to assign their lease to another tenant with the approval of the Landlord. The Landlord had the right to refuse the assignment to a potential assignee. However, s.95(5) of the Act states that “[a] landlord shall not arbitrarily or unreasonably refuse consent to an assignment of a rental unit to a potential assignee”.

16. From the uncontroverted evidence presented at the hearing, it appears that the Landlord did act unreasonably in systematically refusing consent to every proposed assignment that was presented to him. Since the Landlord already had post-dated rent cheque payments in hand, he obviously saw little incentive to cooperate with the process of finding a new tenant.

17. The Tenants appeared to have been unaware of their right under s. 95(4) of the Act to terminate the tenancy on 30 days’ notice whenever the Landlord refused to accept a proposed assignee. Be that as it may, I conclude that the Landlord failed to comply with s. 95(5) of the Act and that the facts establish that he would have been unlikely to accept any assignee that was presented by the Tenants.

18. It also appears that the Landlord unlawfully locked out the Tenants at the beginning of December 2016 which is unlikely to be unrelated to the fact that he was unable to cash the Tenants’ cheque payment for December’s rent.

19. The Tenants have requested that the Board terminate the tenancy as of October 2, 2016, which is the date that MW moved out of the rental unit. They also have requested that the Board order that the Landlord reimburse to the Tenants the monthly rent payments for October and November 2016 as well as the cost of $37.50 to put stop payments on the remaining rent cheque payments as well as return the last month’s rent deposit. I find that this is a reasonable request under the circumstances

TNT-25678-11 (Re), 2012 CanLII 21999 (ON LTB)

1. The Tenant asked for the Landlord's consent to sublet the rental unit to M. G., who wanted to continue the lease, which ends on July 20, 2012.

2. The Landlord refused the assignment because M. G. is a homemaker/student, whose husband is a physician working in another country and the Landlord assumed that because she is making monthly payments for a BMW and did not disclose all financial records she had requested from her, apart from her credit rating, she is financially unreliable.

4. Section 95 (4) of the Residential Tenancies Act, 2006 (the 'Act') states clearly that;

5. If a tenant has sublet a rental unit to another person,(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and (b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy and further on a subtenant has no right to occupy the rental unit after the end of the subtenancy. s. 97 (5), which was made clear in the 7 months lease agreement with the subtenant.

6. By not taking into consideration that the Tenant still had full responsibility for the rental unit for the remainder of the lease, in case the subtenancy does not work out. I find that the Landlord acted unreasonably when withholding consent to the assignment.

TET-79769-17 (Re), 2017 CanLII 60357 (ON LTB)

1. This application raises a discrete legal issue of statutory interpretation with respect to subparagraph 95(4)(d) of the Residential Tenancies Act, 2006 (the 'Act'). That provision is about a tenant’s right to assign a tenancy agreement to another person. It says:

A tenant may give the landlord a notice of termination under section 96 within 30 days after the date a request is made if,

…

(d) the tenant asks the landlord to consent to an assignment of the rental unit to a potential assignee and the landlord does not respond within seven days after the request is made.

[Emphasis added.]

2. The Tenant takes the position that “the landlord does not respond within seven days” means the landlord must say yes or no to the potential assignment within the seven day period. The Landlord takes the position that it means the landlord cannot ignore the request and must respond within seven days to the request but the actual approval or denial may take longer than the seven days and that should be okay.

3. For the reasons stated below I find that the phrase “the landlord does not respond within seven days” in s. 95(4)(d) means a landlord must reply to the request within seven days by approving or denying the proposed assignment within the seven day period. Simply acknowledging receipt of it is not sufficient. However, the Tenant’s application is dismissed because the factual evidence does not justify the abatement remedy requested.

TST-06049-10 (Re), 2010 CanLII 52057 (ON LTB)

7. It is clear that the Tenants complied fully with what the Act requires. First, they asked for a general permission to assign the tenancy, even providing their e-mail address so that the response can be given in the short timeframe. Second, seven days later, in the absence of any response, they exercised their right to terminate the tenancy as provided in clause 95(4)(b).

8. I find for the applicants. The tenancy was terminated in accordance with the Act.

CEL-22872 (Re), 2010 CanLII 37605 (ON LTB)

13. There is no dispute that the Tenants gave the Landlords an N9 notice of termination on December 31, 2009. The termination date in the N9 notice is January 31, 2010. There is also no dispute that the Tenants vacated on that date.

14. However, there is a dispute regarding whether or not the N9 is a valid notice.

15. The Landlords argued that the N9 notice was invalid since there is a fixed term lease to April 14, 2010.

16. The N9 notice was served pursuant to section 96 of the Act. The Tenants exercised their statutory right to serve a 30 day notice of termination since the Landlords failed to respond within 7 days to the Tenants’ request to assign the rental unit.

19. The Landlords argued that the seven days to respond to the assignment request should run from the date they actually read the request, which was December 17, 2009.

20. However, that is not what the Act says. Subsection 95(4)(b) states that a tenant can give a notice to terminate the tenancy if the landlord does not respond within seven days “after the request is made”. The request was made on December 3, 2009.

21. As a result, the N9 notice of termination was a valid notice and the tenancy terminated on January 31, 2010.

TST-65625-15 (Re), 2016 CanLII 39746 (ON LTB)

10. I find that it is more likely than not that the Landlord received the Tenant’s e-mail of June 17, 2015 which contained her request to assign the rental unit. The Landlord’s testimony that he did not receive the e-mail of June 17, 2015 does not have a ring of truth about it, given his response e-mail of June 29, 2015. If the Landlord did not receive the June 17, 2015 e-mail, one would expect the Landlord to address this issue in his e-mail of June 29, 2015. In that e-mail he was responding to the Tenant’s e-mail of the same date in which the Tenant asserts that she may serve the Landlord with a notice of termination because the Landlord did not respond to the Tenant’s e-mail of June 17, 2015. The Tenant’s e-mail of June 29, 2015 provides a copy of the e-mail of June 17, 2015. After reading the Tenant’s e-mail of June 29, 2015, if the Landlord had not received the e-mail of June 17, 2015, one would expect him to say, in his response, something about not having received the e-mail of June 17, 2015. Rather, the Landlord’s response is silent about allegedly not receiving the June 17, 2015 e-mail and instead states that the Tenant is not permitted to give short notice. Under these circumstances, the Landlord’s silence about allegedly not receiving the Tenant’s e-mail of June 17, 2015 does not make sense.

13. Subsection 95(4) of the Residential Tenancies Act, 2006 (the ‘Act’) provides that a tenant may give the landlord a notice of termination under section 96 within 30 days after the date a request is made if,

…

(b) the tenant asks the landlord to consent to an assignment of the rental unit and the landlord does not respond within seven days after the request is made….

14. Section 96 of the Act allows a tenant to give notice of termination of a tenancy if the circumstances set out in subs 95(4) apply and also states that the date for termination in the notice shall be at least 30 days (or earlier if the notice period allowed for in the Act is less).

15. As per subs. 95(4) and s.96 of the Act, when the Landlord did not respond to the Tenant’s request of June 17, 2015 within 7 days, she was permitted to give 30 days’ notice of termination of the tenancy. The Tenant’s notice of termination was dated 9 days after her request for consent and she gave over 30 days’ notice to the Landlord.

16. The tenancy shall therefore be terminated as of the date that the Tenant gave in her notice of termination.

TNT-93635-17 (Re), 2018 CanLII 120937 (ON LTB)

22. In their email of April 24, 2017, the Tenants asked whether the Landlord would allow the Tenants to assign the rental unit. This was a general request under subsection 95(2) that the Landlord consent to an assignment (as opposed to a request to assign the unit to a particular potential assignee under subsection 95(3)).

23. In her response on April 24th, SE stated that the Landlord would accept a sublease if the Tenants could find a new tenant acceptable to the Landlord.

24. The Tenants had not requested consent to a sublease. They took the Landlord’s response as either a failure by the Landlord to respond to the request to assign the unit or a refusal of consent to an assignment. A subsequent letter from a real estate salesperson acting for the Landlord confirmed the Tenants’ understanding that the Landlord was willing to accept a sublease but was not willing to accept an assignment that would relieve the Tenants from liability for the remaining term of the lease.

25. The Tenants then notified the Landlord that they were exercising their right to give a notice of termination under section 96 of the Act, which states:

96(1) A tenant may give notice of termination of a tenancy if the circumstances set out in subsection 95 (4) apply.

(2) The date for termination specified in the notice shall be at least a number of days after the date of the notice that is the lesser of the notice period otherwise required under this Act and 30 days.

26. On May 1, the Tenants gave the Landlord a notice of termination effective on June 30, 2017, and moved out on June 30, 2017.

27. The Landlord disputed the entitlement of the Tenants to give notice of termination. SE relied on the decision of the Board in NOL-10521-12 in which the Board, found on the evidence before it that the Landlord had not refused consent to an assignment. That decision (which is not binding upon me) is distinguishable because in this case, the Landlord clearly rejected the idea of an assignment.

28. The Landlord also argued that she is not a “professional” landlord, and she should not be held to a standard of perfection in relation to compliance with the Act. There is no merit in that argument. The Act does not distinguish between professional and non-professional landlords; it applies equally to both.

29. I find that the Tenants made a general request for the Landlord to consent to an assignment under subsection 95(2) of the Act, that the Landlord refused to consent to an assignment, and that the Tenants gave a valid notice of termination in accordance with subsections 95(4)(a) and 96(1) of the Act.

30. Therefore the tenancy was terminated on June 30, 2017.

EAT-51128-15 (Re), 2016 CanLII 38207 (ON LTB)

24. The evidence showed that the Tenant asked the Landlord on August 25, 2015, to consent to an assignment of the rental unit. In response the Landlord sent an e-mail to the Tenant in reply which stated “I’ll e-mail you Monday”.

25. Section 95(4)(b) of the Residential Tenancies Act, 2006 (the ‘Act’) states that a tenant may give the landlord a notice of termination under section 96 within 30 days after the date a request is made if, the tenant asks the landlord to consent to an assignment of the rental unit and the landlord does not respond within 7 days after the request is made.

26. I believe that a reasonable interpretation of this section of the Act requires that a response from the landlord should be either a consent or a refusal of the request. The Landlord’s response on August 26, 2015 stating ”I’ll e-mail you Monday” was neither a consent nor a refusal of the request and I therefore do not believe that his response complies with the requirements of Section 95(4)(b) of the Act.

27. Although the Landlord argued that he did not refuse consent to the assignment, the evidence shows that the Landlord did not respond in accordance with the Act within 7 days after the request was made by the Tenant.

28. The evidence shows that the Tenant provided the Landlord with a notice of termination (Form N-9) within 30 days after the request for the Landlord to consent to the assignment of the rental unit. The termination date in the notice is October 31, 2015. I find that the Tenant’s notice of termination complies with the requirements of section 96 of the Act and is therefore a valid notice of termination.

29. I find that the Landlord’s refusal to acknowledge the validity of the Tenant’s notice of termination represents a substantial interference with the Tenant’s reasonable enjoyment of the rental unit.

30. I therefore find that it would be reasonable to terminate the tenancy according to the Tenant’s request as of October 31, 2015.

EAT-61174-16 (Re), 2017 CanLII 49011 (ON LTB)

15. The Tenants were entitled by section 95 of the Act to assign their lease to another tenant with the approval of the Landlord. The Landlord had the right to refuse the assignment to a potential assignee. However, s.95(5) of the Act states that “[a] landlord shall not arbitrarily or unreasonably refuse consent to an assignment of a rental unit to a potential assignee”.

16. From the uncontroverted evidence presented at the hearing, it appears that the Landlord did act unreasonably in systematically refusing consent to every proposed assignment that was presented to him. Since the Landlord already had post-dated rent cheque payments in hand, he obviously saw little incentive to cooperate with the process of finding a new tenant.

17. The Tenants appeared to have been unaware of their right under s. 95(4) of the Act to terminate the tenancy on 30 days’ notice whenever the Landlord refused to accept a proposed assignee. Be that as it may, I conclude that the Landlord failed to comply with s. 95(5) of the Act and that the facts establish that he would have been unlikely to accept any assignee that was presented by the Tenants.

TST-79414-16 (Re), 2017 CanLII 9504 (ON LTB)

10. The primary purpose of the assignment provisions of the Act is to ensure that tenants have an avenue to legally end their tenancy when some sort of unexpected event occurs that leaves them unable to give proper notice or complete the lease term. The other possible avenue to resolve this problem is a consent agreement to terminate between the landlord and the tenant; but if a landlord refuses consent, assignment is the tenant’s only option other than abandonment.

11. That is why subsection 95(1) gives tenants the right to assign their rental unit. This right to assign is subject to the landlord’s consent. Where the landlord refuses consent the tenant has the right to terminate the tenancy on 30 days’ notice.

12. Where the requested consent is to assign to a specific named individual, the Act gives additional rights to the requesting tenant. Subsection 95(5) says that a landlord shall not arbitrarily or unreasonably refuse consent to a potential assignee. So where a tenant goes to the trouble of finding a replacement tenant, the landlord has a positive obligation to act reasonably in response. At a minimum, this means giving the potential assignee an opportunity to apply for the rental unit.

13. Here, although the Landlords stated he was welcome to apply at the same time as other prospective tenants, they were not willing to consider him as a potential tenant until the Tenant gave the full 60 days’ notice and terminated her tenancy. As the primary purpose of the assignment provisions is to help tenants avoid that result, this was not a reasonable response on the part of the landlords. Rather they should have asked the tenant to get NH to fill out their standard application form and screened him as a potential tenant.

14. Where a landlord unreasonably refuses consent to assign to a tenancy to a specific prospective tenant like here, the Tenant has an additional right. She can file an application with the Board pursuant to s. 98(1). That is what the Tenant has done here.

15. So given all of the above, I am satisfied that the Landlords unreasonably refused consent to assign to NH.

CET-46077-15 (Re), 2015 CanLII 22322 (ON LTB)

11. The Landlord’s evidence is that AD did not provide information requested by the Landlord’s agent, BP, including a completed rental application, which would detail AD’s identity, employment and income, etc. AD asked for and received a copy of the Landlord’s standard lease agreement and application. Some discussion took place, including of the clause that postdated cheques be provided ‘as a courtesy’. BP then discovered AD was already under an agency agreement with another agent, and as such, he could not discuss anything further with him until that agreement was up, the next day. BP felt that AD’s responses were vague, he was trying to negotiate the terms before applying for the unit and did not provide asked for information. As such, the Landlord decided not to enter into any further discussions with AD and on December 9, 2014, informed AD by email “thanks for your interest, but we won’t be exploring this further with you at this time.”

12. I am unable to conclude that the Landlord arbitrarily or unreasonably refused to assign the unit to AD. The issue of post-dated cheques was raised in AD’s email, so were other issues. The Landlord determined on the basis of the initial communications that AD was not a suitable candidate. AD did not appear as a witness. As such, the best evidence before me of the communications between the parties and the reason they did not proceed to an offer or agreement is the direct evidence of the Landlord’s witnesses.

SOT-57911-15 (Re), 2015 CanLII 69074 (ON LTB)

6. On February 2, 2015, the parties executed an Assignment Agreement (Exhibit 5), and the Tenant paid the required $150.00 fee to the Landlord to cover the advertising and administrative costs involved in the assignment of the unit. The Tenant alleges, and the Landlord did not dispute this evidence, that, on February 2, 2015, he was told to advertise the unit at a monthly rent of $1,145.00 and to “forget about [his] lease”.

9. The Landlord’s representative submitted that Exhibit 5 shows that the Landlord consented to the assignment of the unit. The Landlord’s representative further submitted that Section 95 of the Residential Tenancies Act, 2006 (the ‘Act’) does not state that a landlord cannot place conditions on its consent to an assignment and, as such, it was not unreasonable for the Landlord to insist that a prospective assignee sign a tenancy agreement for one year at a higher monthly rent.

10. The Tenant’s claim is that, by demanding that the unit be advertised at a higher rate and requiring AS to sign a new tenancy agreement for one year, the Landlord arbitrarily or unreasonably refused his request to assign the unit.

12. Subsection 95(8) says, in part: “If a tenant has assigned a rental unit to another person, the tenancy agreement continues to apply on the same terms and conditions and… the assignee is liable to the landlord for any breach of the tenant’s obligations… if the breach or obligation relates to the period after the assignment…” (emphasis added)

14. Based on the evidence presented, while I find that on the surface, the Landlord clearly was agreeable to providing its consent to assign the unit, the fact that the Landlord insisted on a higher monthly rent and required that AS execute a new one-year tenancy agreement as part of the condition for assigning the unit, in my view this had the same effect as if the Landlord had not granted consent to assign the unit.

15. I find that by imposing the higher monthly rent and the requirement that a prospective assignee sign a new one-year tenancy agreement, the Landlord, in essence, unreasonably withheld consent to the assignment of the unit.