Rent Increase Restrictions (LTB)

Residential Tenancies Act, 2006

6.1 (1) In this section,

“addition” means, with respect to a mobile home park or land lease community, an expansion beyond the boundaries of the mobile home park or land lease community; (“rajout”)

“commencement date” means the day section 1 of Schedule 36 to the Restoring Trust, Transparency and Accountability Act, 2018 comes into force. (“date d’entrée en vigueur”) 2018, c. 17, Sched. 36, s. 1.

(2) Sections 120, 121, 122, 126, 127, 129, 131, 132, 133, 165 and 167 do not apply on and after the commencement date with respect to a rental unit if the requirements set out in one of the following paragraphs are met:

1. The rental unit is located in a building, mobile home park or land lease community and no part of the building, mobile home park or land lease community was occupied for residential purposes on or before November 15, 2018.

2. The rental unit is entirely located in an addition to a building, mobile home park or land lease community and no part of the addition was occupied for residential purposes on or before November 15, 2018. 2018, c. 17, Sched. 36, s.

(3) Sections 120, 121, 122, 126, 127, 129, 131, 132 and 133 do not apply on and after the commencement date with respect to a rental unit if all of the following requirements are met:

1. The rental unit is located in a detached house, semi-detached house or row house which, on or at any time before November 15, 2018, contained not more than two residential units.

2. The rental unit is a residential unit that meets all of the following requirements:

i. The unit has its own bathroom and kitchen facilities.

ii. The unit has one or more exterior or interior entrances.

iii. At each entrance, the unit has a door which is equipped so that it can be secured from the inside of the unit.

iv. At least one door described in subparagraph iii is capable of being locked from the outside of the unit.

3. The rental unit became a residential unit described in paragraph 2 after November 15, 2018.

4. One or both of the following circumstances apply:

i. At the time the rental unit was first occupied as a residential unit described in paragraph 2, the owner or one of the owners, as applicable, lived in another residential unit in the detached house, semi-detached house or row house.

ii. The rental unit is located in a part of the detached house, semi-detached house or row house which was unfinished space immediately before the rental unit became a residential unit described in paragraph 2. 2018, c. 17, Sched. 36, s. 1.

(4) Subject to subsection (5), the exemption under subsection (2) or (3) does not apply with respect to a rental unit that is subject to a tenancy in respect of which a tenancy agreement was entered into on or before November 15, 2018. 2018, c. 17, Sched. 36, s. 1.

(5) Subsection (4) applies only with respect to the tenancy described in that subsection and does not apply with respect to any subsequent tenancy. 2018, c. 17, Sched. 36, s. 1.

(6) For greater certainty, in an application to the Board in which the application of subsection (2) or (3) is at issue, the onus is on the landlord to prove that the subsection applies. 2018, c. 17, Sched. 36, s. 1.

(7) The following rules apply on and after the commencement date with respect to a rental unit, if subsection (2) or (3) applies to the rental unit and the unit is subject to a tenancy in respect of which a tenancy agreement was entered into before that date but after November 15, 2018:

1. Despite subsections (2) and (3), sections 121 and 122 continue to apply with respect to an agreement that was entered into between the landlord and the tenant of the rental unit under section 121 before the commencement date.

2. Despite subsections (2) and (3), section 132 continues to apply with respect to an application that was made by the landlord or the tenant of the rental unit under that section before the commencement date and was not finally determined before that date.

3. Despite subsections (2) and (3), section 133 continues to apply with respect to an application that was made by the tenant of the rental unit under that section before the commencement date and was not finally determined before that date.

4. Despite subsection (2), section 165 continues to apply with respect to an assignment of the rental unit for which the landlord granted consent under section 95 before the commencement date or which was authorized by the Board under section 98 before that date. 2018, c. 17, Sched. 36, s. 1.

NOT-27664-17 (Re), 2017 CanLII 84916 (ON LTB)

7. The Landlords served a Notice of Rent Increase in March 2017. The Landlords served this notice based on the rental unit and the residential complex being exempt from rent rules under subsection 6(2)(c) of the Act.

8. Subsection 6 (2)(c) of the Act states in part: “Sections 104, 111, 112, 120, 121, 122, 126 to 133, 165 and 167 do not apply with respect to a rental unit if no part of the building, mobile home park or land lease community was occupied for residential purposes before November 1, 1991.”

13. In the case of Coburn v. 152 Concession 11 Road (Tenants of) the property was purchased to establish a trailer park in 1993. At the time of purchase there were abandoned buildings on the property, one of which had been used for residential purposes prior to 1991. The Landlord argued that since the property had not been a mobile home park prior to 1991 the exemption form rent control provisions in s. 6(2)(c) applied. The Board did not agree and this decision was upheld by the Divisional Court.

14. The totality of the evidence supports that the property which was acquired to create this mobile home park was used for residential purposes prior to 1991. The property is not exempt under subsection 6(2)(c) of the Act.

15. Subsection 6(2) of the Act was repealed by Bill 124, Rental Fairness Act, 2017 on May 3, 2017.

TNL-70307-15 (Re), 2015 CanLII 67892 (ON LTB)

6. Section 120 of the Act limits a landlord to a guideline increase unless the landlord successfully applies to the Board for an above-guideline increase. If a unit is exempt from the application of subsection 6(2) of the Act, there is no limit to a rent increase and a landlord can charge any amount that a tenant is willing to pay. There is no basis for reading into subsection 6(2) of the Act a limit where it expressly precludes one.

TSL-72945-16 (Re), 2016 CanLII 53015 (ON LTB)

2. There is no dispute that the Tenant’s unit is exempt from prescribed guideline increases because the unit is captured by the exemptions contained in subsection 6(2) of the Residential Tenancies Act, 2006. Subsection 6(2) of the indicates that certain rules relating to rent do not apply if “no part of the building, mobile home park or land lease community was occupied for residential purposes before November 1, 1991”.

4. While the unit may be exempt from the prescribed guideline rent increases, the requirements for notice of a rent increase set out in section 116 of the Act still apply; the relevant provisions of that section are:

116. (1) A landlord shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the landlord’s intention to do so.

(4) An increase in rent is void if the landlord has not given the notice required by this section, and the landlord must give a new notice before the landlord can take the increase.

10. I am unable to accept the submissions of the Landlord’s legal representative that, as the Landlord served the Tenant with a NORI to take effect on April 1, 2014 and April 1, 2016, on a balance of probabilities, the Landlord served a NORI to take effect on April 1, 2015. Needless to say, were I to make such a finding of fact, I would be doing so based on no evidence and/or speculation or conjecture and that would amount to an error of law.

11. As such, I am left with the Tenant’s affirmed and uncontradicted testimony that he was not served with a NORI 90 days prior to April 1, 2015 and, in the circumstances, I must accept the Tenant’s evidence as true: Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305.

14. The N4 notice served to the Tenant, and upon which the within application is grounded, is defective because it is based on unlawful rent for the rental periods where the Landlord claims a monthly rent in the amount of $1,050.00. Accordingly, the Landlord’s application must be dismissed.

15. Lastly, as the illegal rent increase at issue here is void by operation of s. 116(4) of the Act, in accordance with Price v. Turnbull’s Grove Inc., 2007 ONCA 408 (CanLII), it is not saved by s.136(2) of the Act.