Termination for Personal Use - N12

Personal Use Applications

HOL-02388-18 (Re), 2018 CanLII 111837 (ON LTB)

13. The obligation of the Board in considering applications for Landlord’s own use is to consider the circumstances of each case in relation to the criteria laid out by the leading cases of the Divisional Court:

Beljinac v. Salter 2001 CanLII 40231 (ON SCDC), (2001) O.J. No. 2792 (Div. Ct.), (“Salter”) when referring to Justice Steele’s reasons in Feeney v. Noble (1994), 19, O.R. (3d) (Div. Ct.), stated that:

“…the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal.” 
And in the more recent decision of Fava v. Harrison, 2014 ONSC 3352 (CanLII) the Divisional Court, in considering this issue in the context of the Act found as follows:
         “We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely 
           irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property.  However, that 
          does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as 
          to whether the landlord desires, in good faith, to occupy the property.”

Macko v. Wasik 2003 CarswellOnt 5648, (2003) O.R.H.T.D. No. 140, 22 R.P.R. (4th) 225

1. Edward E. Macko, a tenant of 19 years at the above address, received a notice of termination of tenancy from his landlord Mary Wasik. The notice indicated that the landlord had entered into an agreement of purchase and sale and that the purchaser, Paul P. Soultanis, was going to move into the above address. Paul P. Soultanis did not move into the above address.

9. The question that remains is whether Landlord Mary Wasik can be held liable for the dishonesty of purchaser Paul P. Soutanis.

20. Each party to the real estate transaction got something. The landlord/ vendor received money, or the promise of money. The purchaser got the property. The tenant, who was not a party to the real estate transaction, received a notice of termination.

21. The Tenant Protection Act protects the tenant in this scenario. It is up to the landlord / vendor to protect herself when the purchaser enlists the landlord / vendor for service of the notice of termination. Perhaps some sort of warranty that survives closing should be obtained from the purchaser to the effect that the purchaser shall save harmless the vendor from the consequences of applications such as this. There may be other approaches. The real estate bar will figure something out.

22. The salient fact is that the tribunal will hold the landlord / vendor liable for the bad faith of the purchaser in these circumstances.

Conclusion
23 The monetary awards or penalties imposed by Order TET-03388 may only be imposed on Landlord Mary Wasik. They should be so imposed. The particulars of the monetary awards or penalties are set out in the order.

EAT-60372-16 (Re), 2016 CanLII 88188 (ON LTB)

4. "Bad Faith” may be defined as “… the opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or some contractual obligation, not prompted by honest mistake as to one’s rights or duties, but by some interested or sinister motive.” Term ‘bad faith’ is not simply bad judgment or negligence, but rather implies the conscious doing of a wrong because of dishonest purpose or moral obliquity ….”: See Black’s Law Dictionary, 6th Ed. St. Paul: West Publishing (1990), p. 139.

13. On any application before the Board, the burden rests on the applicant to prove their case on the balance of probabilities. In this case, the Tenants must prove on a balance of probabilities that they were given the notice of termination in bad faith, and moved out because of the notice of termination and the Landlord did not move into the unit within a reasonable time after the Tenants moved out.

EAT-69684-17 (Re), 2018 CanLII 86139 (ON LTB)

26. The evidence before me suggests on a balance of probabilities that what the Landlords really wanted to do was to raise the rent and to raise it unlawfully, and that they served the N12 as a means of obtaining more income from the rental unit when the Tenant refused to accept the Landlords’ demand for an illegal rent increase.

27. I do not accept Landlord S.T.’s evidence that he only wanted to meet with the Tenant to understand her intentions going forward and that he never discussed the rent. His testimony is inconsistent with his January 16, 2017 email to the Tenant which states the following:

“We sincerely appreciate your loyalty as one of our most valued residents and as a token of our appreciation, we are pleased to provide you with the lease renewal options and incentives.  I appreciate your patronage and would like to speak with you about a new term and a new lease.” 

28. I also do not accept the Landlord S.T.’s evidence that the Tenant’s email dated January 25, 2017 was an attempt to entrap him in the future. If the email was not an accurate reflection of Landlord S.T.’s intention regarding the rent, it would be reasonable to assume that he would have clarified the issue, particularly for an individual he described as a valued resident. Instead, he responded on January 26, 2017 with, “I will send you my answer with regard to the unit soon.” The following day the Landlords served the Tenant with a N12 notice.

29. For these reasons, I am satisfied that the notice was given in bad faith.

Compensation v. Betterment in Awarding Damages

TET-63210-15 (Re), 2015 CanLII 94892 (ON LTB)

22. Rent differential should reflect the additional rent that the Tenants have to pay but it should not require the Landlords to pay for any betterment in housing. One could argue that here there was no betterment because the Tenants no longer have a single family home where their family can all live together. On the other hand, the Tenants and their family now have two kitchens which is one more than they had before. Given all of the circumstances here it seems to me that a fair rent differential amount would take into account this additional kitchen, apportion a value to that kitchen and deduct it from the differential awarded.

Defects in the N12

SWL-12891-18 (Re), 2018 CanLII 88666 (ON LTB)

4. Section 48 of the Residential Tenancies Act, 2006 (‘the Act’) sets out that a Landlord may terminate a tenancy if the Landlord in good faith requires possession of the rental unit for the purposes of residential occupation by the Landlord. The section goes on to specify that the termination date on the Notice to Terminate at End of the Term for Landlord’s or Purchaser’s Own Use (Form N12) must be at least 60 days after the notice is given and must be the day a period of the tenancy ends.

5. The Landlord testified that the tenancy is month to month, and rent is due on the first of every month. This means the period of the tenancy is monthly, and the period of the tenancy begins on the first day of the month and ends on the last day of the month. Therefore, to be in compliance with section 48 of the Act, the termination date on the Landlord’s N12 notice must be the last day of the month. In this case, as the termination date of the notice was not the last day of the month, the notice is in contravention of section 48 of the Act.

9. Section 48.1 of the Act states that a landlord must compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant an N12 notice of termination of the tenancy under section 48.

10. Section 73.1 of the Act sets out that if a landlord compensates a tenant under section 48.1 after serving a notice of termination under section 48, and the Board refuses to grant the landlord’s application for an order terminating the tenancy and evicting the tenant based on the notice, the Board may order that the tenant pay back the compensation to the landlord.

11. In this case, I am satisfied that the Landlord compensated the Tenant as per section 48.1.

12. If the facts before me were that the Tenant was still in possession of the rental unit and the application was being dismissed because of invalidity of the N12 Notice, I would order the Tenant to refund the compensation to the Landlord. However, in this case, I am satisfied that the Tenant vacated on February 4, 2018, as a direct result of being served with the N12 notice. This is established by the fact that she contacted the Landlord on January 23, 2018 to advise that she could not move out by February 1 as demanded by the N12, but managed to secure new accommodations and vacated within the first week of February 2018. In my view, the intent of section 48.1 is to require a landlord to pay the tenant compensation equal to one month’s rent where the landlord obtains vacant possession of the rental unit for the purpose of residential occupation. That is exactly what happened in this case, and the Tenant is entitled to keep the compensation she was given by the Landlord.

13. I do not agree that just because the Tenant did not vacate by the termination date in the N12 (flawed as it may be), it follows that the Landlord is entitled to a refund of the compensation paid to the Tenant. There is nothing in the Act to support such an interpretation. In fact, the Tenant was entitled to stay in the rental unit past the termination date on the N12 notice and await a hearing of the Landlord’s application. The N12 notice itself indicates that the tenant may choose not to voluntarily move out of the rental unit by the termination date and can instead require the landlord to file an application at the Board and prove the merits of their claim at a Board hearing. Tenants who exercise this right do not lose their entitlement to compensation pursuant to section 48.1 of the Act.