Condominium Corporation as Landlord (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1208
Page Categories:	[Contract Law, Leases, & Sub-Letting (LTB)], [Section 2 (RTA)]
Citation:	Condominium Corporation as Landlord (RTA), CLNP 1208, <https://rvt.link/3s>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/02/15

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Condominium Act, 1998, S.O. 1998, c. 19

10 Units and common elements are real property for all purposes. 1998, c. 19, s. 10.

11 (1) Subject to this Act, the declaration, the by-laws and the rules, each owner is entitled to exclusive ownership and use of the owner’s unit.

(2) The owners are tenants in common of the common elements and an undivided interest in the common elements is appurtenant to each owner’s unit.

(3) The proportions of the common interests are those expressed in the declaration.

(4) The ownership of a unit shall not be separated from the ownership of the common interest and an instrument that purports to separate the ownership of a unit from a common interest is void.

(5) Except as provided by this Act, the common elements shall not be partitioned or divided.

...

23 (1) Subject to subsection (2), in addition to any other remedies that a corporation may have, a corporation may, on its own behalf and on behalf of an owner,

(a) commence, maintain or settle an action for damages and costs in respect of any damage to common elements, the assets of the corporation or individual units; and

(b) commence, maintain or settle an action with respect to a contract involving the common elements or a unit, even though the corporation was not a party to the contract in respect of which the action is brought. 1998, c. 19, s. 23 (1).

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

2 (1) In this Act,

...

“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,

(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and

(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; (“locateur”)

York Region Condominium Corp. No. 639 v. Lee 2013 ONSC 503 (Divisional Court)

1. The applicant appeals two orders of the Landlord and Tenant Board ("Board"). The first is an order dated March 22, 2012 made by Member Karol Wronecki dismissing an application made by the applicant, as landlord, pursuant to section 48 (1) of the Residential Tenancies Act, 2006 S.O. c. 17 ("the Act"). The application was for an order terminating the tenancy of the respondents at the end of the term of their tenancy on the ground that the applicant required possession of the respondents' unit for the purpose of its own residential occupancy. The second is an order dated April 20, 2012 made by Member Vincent Ching pursuant to Rule 29 of the Board's Rules of Practice declining the applicant's request to review the previous order, confirming it and declaring that it "remains unchanged". Although the notice of appeal states that the appeal is from only the second order, the applicant's factum states that it is from both orders and no objection limiting the scope of this appeal was made.

2. The respondents were not represented in this appeal by counsel. The respondent, Norbert Lee, appeared in person and made brief oral submissions. His spouse, the respondent, Frances Lee, did not appear. The Board has intervened in this appeal pursuant to section 210 (3) of the Act and, as a result, we have had the benefit of the able assistance of its counsel, who confined his submissions to the issue of what the applicable standard of review ought to be.

Background

1. York Region Condominium Corporation #639 (CC) has owned a building in Markham, Ontario, since 1986. All units (approximately 150) but one are owned by individual members. Unit 118 is owned by CC as a common element and until 2007 it was occupied by a resident superintendent.

2. From April 2007 the owners decided to rent unit 118 to the present Tenants. The building is being serviced by an off-site superintendent. After work hours owners have acted as on-call residents for emergency purposes.

3. In 2012 the corporation decided to again employ an on-site superintendent who will reside in the building. They wish to return to the pre-2007 status of unit 118 and gave the Tenants, who have lived there since 2007, a notice of termination (so-called Form N12). There actually have been two notices, the applicant relies on the amended one dated January 30, 2012. It states that CC needs the unit for "a person who provides or will provide care services to...the Corporation". The date of termination in the notice is April 10, 2012.

11. It is clear from Member Wronecki's Reasons that he approached the application before him by concluding that the Court of Appeal in Slapsys v. Abrams [2010 CarswellOnt 7831 (Ont. C.A.)] had effectively decided that "a large corporate entity of some 150 shareholders "could not style itself to be a landlord for the purpose of own occupation for residential use" (see Reasons, para. 13) and "that, as a rule, a corporation cannot assume the position of landlord in the meaning of section 48 of the Act". That consideration alone was sufficient for him not only to dismiss the application but to hold that the notice of application was "void".

12. In my view, by interpreting and applying Slapsys as he did, the Member fell into error. In Slapsys, the Court of Appeal upheld the right of the sole shareholder and officer of a corporation that owned a rental property to invoke section 48 (1) to successfully obtain possession for the purpose of his own personal occupation. This appeal, in contrast, involves the right of the corporation that owns a rental property to obtain possession for its own occupation. The question of whether a corporation can ever "possess" a rental unit for "the personal use of the landlord", the issue in this appeal, was not addressed by the Court of Appeal.

23. On the authority of Slapsys, it is clear that the applicant could, on the evidence, reasonably qualify as a "landlord" within the definition set out in the Act. The only remaining question is whether the applicant, a body created pursuant to statute, is capable of acquiring possession of the rental unit for the purpose of residential occupation by itself. In my view, it is.

24. There is a legal presumption that rights conferred by statute are available to natural persons and corporations unless the statute states otherwise and there is no provision anywhere in the Act that limits its application only to natural persons. The Act refers to persons governed by the Act throughout in generic-neutral terms such as "landlord" and "tenant". Even if the Act had been worded to refer to them in "gender-specific" terms such as "he" or "she", section 68 of the Legislation Act would apply to provide that "Gender-specific terms include both sexes and include corporations (emphasis added)". A priori, if generic-specific terms include corporations, generic-neutral terms must include corporations as well.

25. The apparent reason why it is sometimes considered that section 48 (1) cannot apply to corporations is because corporations, being entities created pursuant to statute without any physical mass, do not have the capacity to occupy a rental unit in the same manner as a natural person. However, it is not necessary that a corporation have the same characteristics as a natural person in order to rely on section 48 (1). Rather, a corporation can occupy a rental unit in the same way that it does everything, namely, through the actions of its officers, directors, employees and other agents. If a corporation can occupy a rental unit for the purpose of maintaining or operating an office, store, factory, warehouse and other kinds of realty, it must surely also be able to occupy a rental unit for the purpose of residential occupation incidental to its status as a landlord.

26. In the context of this appeal, it is my view that when a corporation that is the landlord of a building occupies a rental unit for the purpose of engaging and requiring one or more natural persons to reside in the unit because on-site residency is reasonably incidental to their functions on behalf of the corporation, the residential occupation of those natural persons is also that of the corporation. In such circumstances it is open to the landlord to invoke section 48 (1) to attempt to regain possession of the unit for that purpose.

27. It matters not that a corporation cannot have a spouse, child or parent and clearly cannot meet the requirements of section 48 (1) (b) or (c) of the Act. This, however, does not disqualify a corporation from relying solely on section 48 (1) (a) of the Act as the applicant does.

35. Order to go:

a) allowing the appeal and setting aside the orders made March 22, 2012 and April 20, 2012;

b) granting the application and giving the applicant vacant possession;

c) the respondents shall provide possession of the unit to the applicant no later than February 28, 2013;

d) no costs.

Appeal allowed.