Notice Law - N12 (Landlords Own Use (Family))

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.