Exclusive Possession (Non-RTA)

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Date Retrieved:	2024-05-18
CLNP Page ID:	1975
Page Categories:	[RTA Exempt Tenancies], [Eviction (Commercial Tenancy)]
Citation:	Exclusive Possession (Non-RTA), CLNP 1975, <>, retrieved on 2024-05-18
Editor:	Sharvey
Last Updated:	2022/08/29

MacKinnon Estate v. MacKinnon, 2010 ONCA 170 (CanLII)

[46] In the end, as I see it, this case turns on the first of those questions, namely, whether Duke and Fanny occupied the property as tenants at will. The answer to that question lies in the nature of the relationship that existed between Duke and his sisters, Mercy and Flora, under the original arrangement by which Duke occupied the property and thereafter, the nature of the relationship that existed between Fanny and her sons, Charles and Warren, under the arrangement by which Fanny occupied the property.

[47] Did Duke and Fanny occupy the property as tenants at will or as licensees? The distinction between the two legal concepts is important in possessory title claims because a tenancy at will creates an estate or interest in the land, whereas a licence to use the land does not, although it may give rise to contractual rights (see Street v. Mountford, [1985] 2 All E.R. 289 at 291 and Errington at p. 154).

[48] For present purposes, s. 5(7) of the Act only comes into play if Duke and Fanny occupied the property as tenants at will. The right of recovery contemplated by that provision carries with it the notion that either the person or persons seeking recovery, or their predecessors, have conveyed an estate or interest in the land. If no such estate has passed, as is the case where the property is occupied pursuant to a licence, there is nothing to be reclaimed.

[49] What then is a tenant at will and what distinguishes a tenancy from a licensee? In Ocean Harvesters, at p. 686 Dickson J. explained that “[A] tenancy at will is created when one person permits another to occupy lands on the agreement, express or implied, that the tenancy is determinable at the will of either”. He further observed at p. 687 that “[E]exclusive possession by the tenant is essential to the demise and the statute will not bar the owner unless the owner is out of possession”.

[50] As for the distinction between a tenant and licensee, at pp. 687-88 Dickson J. adopted as correct the following statement of law expressed by Windeyer J. in Radiach at p. 222:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. If he was, he is a tenant. [Emphasis in original.]

Rahimi v. Regional Assessment Commissioner, Region No. 9, 1997 CanLII 12097 (ON SC)

Tenancy or licence

Notwithstanding the applicants' submission that I should expound the words "rented" or "leased" in their grammatical and ordinary sense, counsel referred me to no fewer than 15 legal authorities to assist the court with the interpretation of "leased" and several authoritative dictionary definitions and judicial pronouncements on the meaning of "rented". In my view, I need go no further on the question of tenancy than the decision of the House of Lords in Street v. Mountford, [1985] A.C. 809, [1985] 2 All E.R. 289 (H.L.), which establishes the test for a tenancy at common law. The hallmarks of a tenancy are exclusive possession for a term at a rent. But, as I read this case, the court there determined that if the agreement confers on the occupier exclusive possession, this is prima facie a grant of an interest in land. The question to be asked and answered is what is the fundamental right that the occupier has secured? The House of Lords adopted at p. 827 the summary of the issue as stated in a decision of the Australian High Court in Radaich v. Smith (1959), 101 C.L.R. 209 at p. 222:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course not inconsistent with the grant of exclusive possession. Subject to such reservations, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises . . .

In my view, Street v. Mountford stands for the proposition that, while the parties may call it otherwise, the grant of exclusive possession is the singular distinguishing feature between a licence and a lease. It is true that exclusive possession is not decisive. The court may well find exceptional circumstances which, notwithstanding exclusive possession, negative an intention to create the legal relationship of landlord and tenant: Errington v. Errington, [1952] 1 K.B. 290, [1952] 1 All E.R. 149 (C.A.); Booker v. Palmer, [1942] 2 All E.R. 674, 87 Sol. Jo. 30 (C.A.); Cobb v. Lane, [1952] 1 All E.R. 1199, [1952] 1 T.L.R. 1037 (C.A.). These cases are explained by Denning L.J. in Facchini v. Bryson, [1952] 1 T.L.R. 1386 at pp. 1389-90, 96 Sol. Jo. 395 (C.A.), as follows:

In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like to negative any intention to create a tenancy . . .

Keith Whitney Homes Society v. Payne, 1992 CanLII 7691 (ON SC)

The residents were required to sign a licensing agreement. The licensing agreement required the resident to pay rent monthly according to his or her financial capability and provided that if the rent was not paid on time this was deemed to be notice by the resident that he or she intended to vacate the premises. The agreement also contained rules of conduct.

The applicant applied for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that the licensing agreement with the respondent was not a tenancy agreement subject to the Act.

Held, the premises were not residential premises; the licensing agreement was a tenancy agreement.

The definition of "residential premises" in the Landlord and Tenant Act excluded "accommodation occupied by a person for rehabilitative or therapeutic purposes or for the purposes of receiving care". The applicant's premises qualified under this exclusion. The accommodation went beyond simple low-income housing. It was not necessary that the occupation of the premises be primarily for the purpose of rehabilitation. If the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, it would have said so.

The parties cannot turn a tenancy into a licence merely by calling it one. In determining whether there was a tenancy, the only intention that is relevant is the intention to grant exclusive possession for a term at a rent. The respondent was given exclusive possession of his room, and together with other members of his apartment, the kitchen, bathroom and living room, for so long as he paid the rent. The respondent was a tenant and the relationship between the parties was that of landlord and tenant.

APPLICATION by a landlord for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that its licensing agreement with the respondent was not a tenancy agreement subject to the Act.

...

The Landlord and Tenant Act [then R.S.O. 1980, c. 232] was amended in June 1987 by Bill 10 [S.O. 1987, c. 23, s. 1] which expanded the definition of "residential premises" to include rooming houses, boarding houses and lodging houses, making them subject to Part IV of the Act. In its report leading up to the introduction of Bill 10 the Ontario Task Force on Roomers, Boarders and Lodgers acknowledged that rooming and boarding houses providing "special needs" people with accommodation in association with "care" should be exempted from the Landlord and Tenant Act and that "care" should be broadly defined. The Task Force specifically recommended that what is now para. ( i) of s. 1 "residential premises" of the Act be added as an exemption to the definition of "residential premises". The report of the Ontario Task Force was filed in evidence in the applicants' book of authorities under Tab 24.

...

I am urged by counsel for the respondent to find that the occupation required by s. 1 "residential premises" ( i) must be primarily for the purpose of rehabilitation. That submission is made because of decisions of the Rent Review Hearings Board of this province pursuant to s. 4(1)( e) of the Residential Rent Regulation Act, R.S.O. 1990, c. R.29. That section is virtually identical to the section of the Landlord and Tenant Act that I have to consider, providing as it does that the Residential Rent Regulation Act does not apply to:

(e) living accommodation occupied by a person for penal, correctional, rehabilitative or therapeutic purposes or for the purpose of receiving care . . .

The Board has held that for the premises to be exempted, the occupation must be primarily for one of the purposes set out in the section.

I am not, of course, bound by a decision of the Rent Review Hearings Board but because of the similarity of the language, I must obviously take that Board's decision into consideration. I am persuaded that if the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, of the accommodation it would have said so as it did in para. (f)(i) of s. 1 "residential premises". In that paragraph an exemption is provided for an educational institution for accommodation provided to its students or staff where "the accommodation is provided primarily to persons under the age of majority" (emphasis added).

Giving the words of para. (i) their natural meaning, I conclude that if the accommodation is occupied for one of the listed purposes, it is within the exclusions to residential premises provided for in s. 1.

Upon the evidence before me, I must conclude that rehabilitation is a purpose of accommodation in the applicant's quarters. The system of involving the residents in the management of their living arrangements, the provision of facilitators/counsellor services on a 24-hour basis, and the recognition that the tenants are persons having special needs, satisfy me that the accommodation provided goes beyond simple low income housing.

The respondent argues that whatever was the intent of the applicant in providing the accommodation, he was not in need of any rehabilitation, and he took the premises because they were affordable.

That may well be the case, but I do not feel that the respondent's individual and subjective view of the reasons for his occupancy can be the indicia to decide whether the applicant's housing operation is or is not subject to the Act.

I accordingly conclude that the applicant's premises are not residential premises within the definition of the Landlord and Tenant Act.

The second issue

The next issue that I must determine is whether the right of occupation given to Mr. Payne is in the nature of a licence or of a tenancy.

The law on the second issue

I have been referred to Donald Lamont's helpful work, Residential Tenancies , 4th ed. (Toronto: Carswell, 1983) where the author discusses at pp. 14-15 the distinction between the relationship of landlord and tenant on the one hand and licensor and licensee on the other. It is suggested that in considering this problem I must have regard to more than whether the resident has exclusive possession of the premises. In this case there is no question that the respondent has exclusive possession of his bedroom subject to the applicant's right to inspect on an annual basis. However, I must also consider whether the applicant is subject to rules restricting his use of the premises and, more fundamentally, the intention of the parties as expressed in the agreement which they have made.

In the case before me, the agreement between the parties which is to be found at Exhibit A to the affidavit of the respondent filed under Tab 8 of the application record is very much more than a lease. As previously noted, it provides for building rules and a host of other regulations, including an extensive section on conflict and dispute resolution.

I conclude that the agreement between the parties was intended to be an agreement for far more than the use by Mr. Payne of a designated room within the applicant's premises. It was an agreement whereby Mr. Payne would be admitted to a community, expected to participate in the decisions of the community and to be governed by its rules. To that extent the applicant and the respondent intended to create an agreement that was personal in nature.

...

The applicant has referred me to the decision of Doyle Co. Ct. J. in Maxwell v. Brown (1982), 1982 CanLII 2161 (ON SC), 35 O.R. (2d) 770 (Ct. Ct.) and the authorities and cases reviewed by him in that decision.

That case concerned whether the Act applied to the relationship between the occupant of a room in a rooming house and the owner of the house. The learned judge relied upon decisions of Lord Denning M.R. in Abbeyfield (Harpenden) Society Ltd. v. Woods , [1968] 1 All E.R. 325, [1968] 1 W.L.R. 374 (C.A.) and Marchant v. Charters , [1977] 3 All E.R. 918, [1977] 1 W.L.R. 1181 (C.A.), to support his conclusion that the occupant in the case before him did not have a sufficient stake in his room to bring him within the Act and was a mere licensee.

The troublesome question of tenancy or licence was reviewed thoroughly by the House of Lords in the recent case of Street v. Mountford, [1985] 2 All E.R. 289, [1985] 2 W.L.R. 877. Lord Templeman, with whose opinion the other members of the panel concurred, suggest that the decisions in Abbeyfield and Marchant were sustainable on the grounds that the occupier was a lodger and did not enjoy exclusive possession. At p. 299 All E.R. His Lordship said:

But in my opinion, in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether on its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

In dealing with the suggestion that it is the intention of the parties that is to be determined, His Lordship said at p. 300:

My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.

His Lordship was of the opinion that a tenancy arose whenever there was a grant of exclusive possession for a fixed or periodic term at a stated rent.

It was not suggested by the applicant that the respondent was a roomer. He was given exclusive possession of his room, and, together with other members of his "apartment", the kitchen, bathroom and living room, for so long as he paid the stipulated monthly rent.

It is clear that the parties cannot turn a tenancy into a licence merely by calling it one.

In this case, the parties called the agreement a licence, and it contained provisions not found in the usual form of lease. But it did give the respondent exclusive possession of accommodation for a term in return for rent, and applying the test in Street v. Mountford, supra, I find the respondent to be a tenant, and the relationship between the parties to be that of landlord and tenant.

I am prepared to hear submissions as to costs, but in the absence of an appointment being taken out for that purpose within ten days, costs shall be to the applicant.

Order accordingly.