Notice Law - N5 (Substantial Interference)

Unlawful Use of Common Space (Storage)

TNL-00728-17 (Re), 2018 CanLII 42594 (ON LTB)

Storage in the furnace room

4. The Landlord claims that the Tenants are storing some of their belongings in the furnace room, and that they are not permitted to do so under the lease. He states that this obstructs access to the furnace for service. He also states that they are keeping a stove in the common areas of the basement outside their rental unit.

5. The Tenants state that they store a bicycle and some empty boxes in the furnace room, that they have done so without objection since they moved into the rental unit, and that the upstairs tenants also store items in the furnace room. They also state that the additional stove in the common area is there because the stove provided by the Landlord does not work properly.

6. The Landlord states that the upstairs tenants have the right under their tenancy agreement to store items in a corner of the furnace room. He also denies that any issues regarding the functioning of the stove provided for use by the Tenants have been raised with him.

7. I am satisfied that the tenancy agreement does not entitle the Tenants to store their belongings in the furnace room, or to store appliances in the common areas of the basement, and that, by doing so, the interfering with a lawful right, privilege or interest of the Landlord.

It is ordered that:

1. The Tenants shall refrain from parking more than one vehicle on the driveway of the residential complex without the consent of the Landlord.

2. The Tenants shall refrain from storing their belongings in the furnace room or other areas for which they have not been granted the right to store their belongings without the consent of the Landlord.

3. If the Tenants fail to comply with paragraphs 1 or 2 above, the Landlord may apply under section 78 of the Act, within 30 days of the breach, without notice to the Tenants, for an order terminating the tenancy and evicting the Tenants.

4. The Tenants shall pay to the Landlord $190.00 for the cost of filing the application.

5. If the Tenants do not pay the Landlord the full amount owing on or before January 29, 2018, they will start to owe interest. This will be simple interest calculated from January 30, 2018 at 3.00% annually on the balance outstanding.

Moving Out According to the Notice

TST-25926-12 (Re), 2012 CanLII 36415 (ON LTB)

5. The Tenant moved out of the rental unit pursuant to such Form N-5 on November 5, 2011. In this application the Tenant requests return of a pro-rated portion of the November, 2011 rent.

6. The Landlord takes the position that the Tenant was wrong to move out in accordance with that Notice. The Landlord’s view is that the agreement to terminate takes precedence over the Landlord’s own and subsequent Form N-5 Notice. The Board cannot agree. If the Landlord intended to rely upon the original N-9 Notice and the agreement to terminate, then the Landlord ought not to have breached that agreement by serving a new Form N-5.

8. The Tenant was entitled to accept the Landlord’s breach and to move out of the rental unit on or before November 10, 2012. It was incumbent upon the Landlord not to serve a Form N-5 Notice to Terminate if it did not mean it.

12. This argument is incorrect for two reasons. First, there is no evidence that the Landlord had disclosed to the Tenant, on or before November 17, 2012, its intention to withhold the Tenant’s overpayment referable to the period after November 5, 2012. Therefore, the Tenant’s claimed had not crystallized. Secondly, that was a Landlord’s application for compensation for damage to the residential complex. The Tenant is not legally obligated to raise a claim of set-off for amounts otherwise in dispute between the parties in the context of any particular Landlord application and does not waive any rights by declining to do so. There is no issue estoppel here nor, of course, is the Tenant’s present claim res judicata.

Morguard Residential v Asboth, 2017 ONSC 387 (CanLII)

[39] The appellants submit that the Board erred in law by failing to apply s. 37(5) of the Act and failing to find that the termination provisions in the Colonnade tenancy agreements were void as contrary to that section. In addition, the appellants argue that in accordance with s. 4(1) of the Act, any contractual provision that is inconsistent with the Act is void.

[41] I am unable to conclude that the member or the reviewing member erred in law in their approach to this issue. Section 37(5) is designed to protect the security of tenure of tenants by ensuring that tenants cannot be induced to contract out of their rights at the time when they enter into a tenancy agreement. Specifically, having regard to the fact that landlords and tenants are often not in an equal bargaining position when leases are negotiated, s. 37(5) precludes landlords from extracting tenancy termination agreements at the time leases are signed. (See Clandfield v. Queen’s University (Apartment and Housing Services) (2001), 2001 CanLII 4969 (ON CA), 54 O.R. (3d) 475, 200 D.L.R. (4th) 475 (C.A.), which dealt with an identical provision in the predecessor Tenant Protection Act, 1997, S.O. 1997, c. 24.)

[42] But this case is quite different. The landlord and tenant relationship between the parties in this case pre-existed the tenancy agreement. It was suspended by the redevelopment of the Heathview, but the tenants had the right to return to the premises upon completion and continue the relationship. The landlord gratuitously offered to continue the landlord and tenant relationship in alternative accommodation at the Colonnade in the interim, at a reduced rent, and the tenants accepted the offer. The agreement to terminate the temporary tenancy when the redevelopment was complete was reached as part of this overall agreement, and not separately at the time the Colonnade tenancy agreement was entered into or as a condition of entering into it. The Colonnade tenancy agreement was not a stand-alone agreement. It cannot be interpreted in isolation from the overall relationship of the parties.