Notice (Landlord Requires Possession)

Residential Tenancies Act, 2006

49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,

(a) the purchaser;

(b) the purchaser’s spouse;

(c) a child or parent of the purchaser or the purchaser’s spouse; or

(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1).

TSL-62768-15-RV2 (Re), 2015 CanLII 100191 (ON LTB)

10. It is my belief that the Legislature intended to use the term “residential occupation” in section 48 of the Act to apply to those situations where the rental unit will either be lived in by the landlord or becomes incorporated into the landlord’s main living quarters. If a landlord is living in a house in which the basement of the complex is rented out, I am satisfied they are entitled to effectively reclaim use of the entire house by seeking possession of the rental unit for residential storage. It is not uncommon in many single family homes to have the basement used in whole or in part for storage of property owned by its occupants. Where the intended purpose of the rental unit is to become incorporated into the landlord’s main living quarters there is no change of use, it is residential occupation. “Residential occupation” cannot reasonably be restricted in these circumstances to only include that portion of a house used for activities such as sleeping, cooking or entertaining. To suggest otherwise would mean that a landlord would have to effectively abandon the remainder of the house and live solely in the basement in order to establish an intention to use a basement for residential occupation.

TST-94128-18 (Re), 2018 CanLII 123282 (ON LTB)

17. The law is clear that “residential occupation” as it is used in s.48(1) of the Act (under which the Landlords served the N12) does not include temporary full-time use.

18. The Ontario Divisional Court in the case of MacDonald v. Richard [2008] O.J. 6076 (Ont. Div. Ct.) (“MacDonald”), ruled that temporary full-time occupancy of a residential unit (which in MacDonald was four months) does not constitute “residential occupation” as contemplated in s.48(1) of the Act. MacDonald has been followed by the Board in a number of decisions, including TSL-2128-11; TSL-52712-14; TSL-62689-15; TSL-76374-16; and TSL-80318-16.

TSL-80642-16 (Re), 2017 CanLII 28814 (ON LTB)

15. I agree with the Tenant that vacancy does not change the status of a residential unit. If the Landlord had used the vacant units for a purpose that was not residential (storage of the Landlord’s property, for example), the status of the units may have changed. However, choosing to keep units unoccupied does not, in itself, convert the units from residential to otherwise. Residential units may remain residential whether they are occupied or not. Thus, there continue to be four residential units in the residential complex.

16. This interpretation is also consistent with the objective of the Act. In Matthews v. Algoma Timberlakes Corp., [2010] O.J. No. 2710 (C.A.) (‘Matthews v. Algoma’), the Court of Appeal states, at paragraph 22: “Given the remedial nature of the [Residential Tenancies] Act, its provisions must be interpreted liberally to ensure the realization of its objectives.” At paragraph 32, the Court concludes: “The purpose of the legislation is to provide protections to tenants.”

CEL-61051-16-RV (Re), 2016 CanLII 100338 (ON LTB)

1. The basic facts of this case are undisputed. The Landlord entered into an agreement with his employee and was supposed to transfer a half interest in the property to his employee. This change or addition to title of a second owner was supposed to be completed on November 1, 2016.

2. The application was filed on September 15, 2016 prior to the planned change in title.

3. At the review hearing, it was confirmed that the sale of a half interest in the property or addition to title did not occur. The employee does not want to buy a portion of the property unless he is sure he can move into it. The Landlord's Legal Representative stated the planned sale of a half interest in the property is on hold until the review request is resolved.

13. The Member’s determination in paragraph 16 of the order that section 49 of the Act was intended to apply to a situation where the property was fully sold and the Landlord would no longer be the owner of the property is a reasonable interpretation of section 49. Since the property has not been sold, the requirements of section 49 have not been met.

18. Even if the review were granted and I interpreted section 49 in a different manner than the hearing Member, relief from eviction under section 83 of the Act would be granted in the current circumstances of this case. The potential addition of a second owner to title is tentative and uncertain at this point in time.

It is ordered that:

1. The Landlord’s review request is denied.

NOL-01991-10 (Re), 2010 CanLII 48821 (ON LTB)

2. On the date that the Notice To Terminate a Tenancy at the End of the Term For Landlord's or Purchaser's Own Use Form N12 was served to the Tenant, the applicant Landlord had already purchased the residential complex and was already the ‘Landlord’.

3. The Landlord had not entered into and agreement of purchase and sale at the time notice of termination (for use by the purchaser’s spouse) was served to the Tenant.

4. The Landlord’s notice of termination is defective.

TSL-08570-10 (Re), 2010 CanLII 76079 (ON LTB)

4. In Wiazek v. Arnstrong [1994] O.J. No. 2737 (Gen. Div) involved a case where the Landlord wanted the house to store his personal possessions but planned to continue to live in his girlfriend’s house and would therefore only be at his own house part of the time. The court dismissed the landlord’s own use application as the landlord would not be residing on a full time basis.

Kohen v. Warner, 2018 ONSC 3865 (CanLII)

[10] The Landlord submits that the proposed occupation of the unit by the landlord’s daughter in MacDonald was a temporary 4 month occupation only and that this use was distinguishable from the case at bar, as Sedat would be living in the unit occasionally (on weekends during the school year and during the summer months) for 5 years. Amicus agrees with the Landlord that the Member was not bound by the MacDonald case, which involved temporary occupancy. Amicus submits that Sedat’s indefinite part-time occupancy may well fit within the Landlord’s s. 48(1) rights if that use is regular and structured.

[11] In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act.

MacDonald v. Richard 2008 CarswellOnt 638

1 For purposes of this decision we will accept, without specifically deciding, that the standard of correctness will apply, as that is the standard more advantageous to the appellant. We are of the view that the Review Decision by Member Ellacott on June 19, 2007 that "temporary full-time occupancy for four months does not constitute the purpose of residential occupation as contemplated by the Residential Tenancies Act, 2006" is correct. That conclusion is supported by case law directly on point that has held that a landlord is not entitled to evict an existing tenant in order to provide accommodation for his daughter on summer break from university: Wiazek v. Armstrong, (1994) O.J. No. 2737 (Ont. Gen. Div.) . See also, McDonald v Smith, (1993) O.J. No. 1680 (Ont. Gen. Div.) . It is also an interpretation that is consistent with the intention of the legislation, which is remedial in nature and directed towards the protection of tenants, including protecting the security of tenure for tenants. Accordingly, this appeal is dismissed. Costs fixed at $ 1000.00 payable by the appellant.