Assignment of Partial Interest in a Rental Unit or Lease (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2170
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)]
Citation:	Assignment of Partial Interest in a Rental Unit or Lease (RTA), CLNP 2170, <https://rvt.link/4q>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/02/28

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

44 (1) A notice under section 47, 58 or 144 to terminate a daily or weekly tenancy shall be given at least 28 days before the date the termination is specified to be effective and that date shall be on the last day of a rental period. 2006, c. 17, s. 44 (1).

(2) A notice under section 47, 58 or 144 to terminate a monthly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a rental period. 2006, c. 17, s. 44 (2).

(3) A notice under section 47, 58 or 144 to terminate a yearly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a yearly period on which the tenancy is based. 2006, c. 17, s. 44 (3).

(4) A notice under section 47, 58 or 144 to terminate a tenancy for a fixed term shall be given at least 60 days before the expiration date specified in the tenancy agreement, to be effective on that expiration date. 2006, c. 17, s. 44 (4).

(5) A tenant who gives notice under subsection (2), (3) or (4) which specifies that the termination is to be effective on the last day of February or the last day of March in any year shall be deemed to have given at least 60 days notice of termination if the notice is given not later than January 1 of that year in respect of a termination which is to be effective on the last day of February, or February 1 of that year in respect of a termination which is to be effective on the last day of March. 2006, c. 17, s. 44 (5).

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47 A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47.

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88 (1) If a tenant abandons or vacates a rental unit without giving notice of termination in accordance with this Act and no agreement to terminate has been made or the landlord has not given notice to terminate the tenancy, a determination of the amount of arrears of rent owing by the tenant shall be made in accordance with the following rules:

1. If the tenant vacated the rental unit after giving notice that was not in accordance with this Act, arrears of rent are owing for the period that ends on the earliest termination date that could have been specified in the notice, had the notice been given in accordance with section 47, 96 or 145, as the case may be.

2. If the tenant abandoned or vacated the rental unit without giving any notice, arrears of rent are owing for the period that ends on the earliest termination date that could have been specified in a notice of termination had the tenant, on the date that the landlord knew or ought to have known that the tenant had abandoned or vacated the rental unit, given notice of termination in accordance with section 47, 96 or 145, as the case may be. 2006, c. 17, s. 88 (1).

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96 (1) A tenant may give notice of termination of a tenancy if the circumstances set out in subsection 95 (4) apply. 2006, c. 17, s. 96 (1).

(2) The date for termination specified in the notice shall be at least a number of days after the date of the notice that is the lesser of the notice period otherwise required under this Act and 30 days. 2006, c. 17, s. 96 (2).

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145 (1) Despite section 44, a tenant of a care home may terminate a tenancy at any time by giving at least 30 days notice of termination to the landlord. 2006, c. 17, s. 145 (1).

TST-73724-16 (Re), 2017 CanLII 60140 (ON LTB)

22. Given the evidence presented, there is no doubt that the Tenant was a “tenant” of the unit during the material time as defined in the legislation. Indeed, the Landlord acknowledged this fact on cross-examination.

23. While, in the end, it may be immaterial if the tenancy was a joint tenancy or a tenancy in common, in my view, the tenancy was a tenancy in common. The Board’s Interpretation Guideline 21, which I am not bound by, but I choose to follow in this case, states, in part, as follows:

In a joint tenancy, there is a single tenancy agreement and the tenants are jointly and severally (individually) liable for the payment of the entire rent for the rental unit.

In the case of a tenancy in common, while all the tenants are occupying the same premises, each tenant in common has a separate tenancy agreement with the landlord even if all the tenants have signed one tenancy agreement. Each tenant in common is individually responsible for the payment of his or her share of the rent for the rental unit.

A joint tenancy can be severed by the actions of a tenant and/or the landlord. For example, if one of a number of joint tenants seeks to assign or sublet his share of the rental unit and the landlord consents to that assignment or sublet, the former joint tenancy will be severed and a tenancy in common will result.

24. The “Rental Contract / Agreement to Lease” executed by the parties on August 8 and 9, 2015 listing the Tenant and DO as tenants, the references in this document to “tenants and tenants’”, as well as the emails from the Landlord to the Tenant containing references to “you two” and “you two students”, suggests that the tenancy, at the outset, was a joint tenancy. The Tenant and DO simply had a private agreement about their respective shares of the payments to the Landlord. The fact that the Tenant’s share of the monthly rent and the last month’s rent deposit is greater than DO’s does not, in my opinion, militate against the tenancy being a joint tenancy at the start.

25. However, the Landlord through his actions, and the Tenant, through his acquiescence, and in all likelihood agreement, severed the joint tenancy in January 2016. On January 28, 2016, the Landlord provided the Tenant with a signed letter, for tax purposes, listing the Tenant’s monthly rent as $1,150.00. There was no reference in the letter to DO.

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29. In this case, the Landlord’s conduct, as described above, together with his testimony going to his intention, prior to April 30, 2016, to pay a significant portion of the monies at issue to the Tenant, has the appearance, on a balance of probabilities, of treating the tenancy herein, at least from January 28, 2016 onwards, as a tenancy in common.

SOT-10487-10 (Re), 2011 CanLII 5914 (ON LTB)

First of all, the tenants are tenants in common and not joint tenants. They all signed the same rental agreement and are therefore, jointly and severally liable. As the Tenant has rights and obligations under that contract she has the right to assign those to another person. Therefore I considered the reasonableness of the Landlord decision to refuse the assignment. I also considered whether or not it is a breach of the Human Rights Code to refuse the assignment on the basis of gender.

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Hence, if all the residential accommodation in the building, (other than the accommodation, if any of the owner of the building or his or her family), is restricted to women, pursuant to s. 21 (2) of the Code, the right under s. 2 of the Code to equal treatment with respect to occupancy of residential accommodation would not be infringed. The decision of the Landlord is not a contravention of the Code.

There was testimony that there are only women residing in the unit. The Landlord refused only after consulting the five female tenants that continued to reside there. They provided a letter stating they did not feel comfortable living with a male. I find that the Landlords refusal to assign or sublet the Tenant’s place in the unit was not unreasonable.

SWL-98259-17 (Re), 2017 CanLII 28732 (ON LTB)

31. I find that when A.A. gave notice at the end of August, during the term of the tenancy, her conduct reflected a tenant in common relationship. She no longer maintained an interest in survivorship. Then when the Landlord responded by offering to find an assignee for her for a fee of one month’s rent ( $500.00 ) not the full $3,000.00 it further supported the Tenant’s conversion to a common tenancy. The Landlord also responded by suggesting that she could end her arrangement with the Landlord by paying out the balance of her portion of the rent for the remainder of the lease. In other words she could end the tenancy by paying eight month’s rent at $500.00 per month. The Landlord treated the rental payment by A.A. differently than the other payments by separating the payment from the whole. By making this offer the Landlord is excluding the other five joint Tenants. In Murdoch v. Barry, (1976), 10. O.R. (2d) 626, “ A joint tenancy may be severed by mutual agreement or by conduct of the joint tenants.” I find that the conduct of A.A. coupled with the conduct of the Landlord convert A.A. portion of the tenancy to a tenancy in common leaving the remaining five Tenants as joint and several.