Implied Tenancy

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-03
CLNP Page ID:	1908
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB)
Citation:	Implied Tenancy, CLNP 1908, <6u>, retrieved on 2024-05-03
Editor:	Smcgrory
Last Updated:	2023/02/16

CET-59387-16 (Re), 2016 CanLII 88088 (ON LTB)

8. Section 2(1) of the Act defines tenant as “includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives…”.

(...)

12. Section 202 requires that the Board ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit. In doing so, the Board may disregard the outward form of a transaction and may have regard to the pattern of activities relating to the residential complex or the rental unit.

13. There is evidence before the Board that may indicate the creation of an implied tenancy. Specifically, the Applicant pays rent in return for the right to occupy the unit, interacts with the Landlord and has continuously lived in the rental unit for one year.

SOT-66425-16 (Re), 2016 CanLII 57313 (ON LTB)

14. Turning to the question of whether there is an implied tenancy, the Divisional Court recognized that at the prior hearing of this application, there was the following evidentiary indicia of an implied tenancy, which was again put forward at the re-hearing:

- EE has paid rent directly to the Respondent Landlord for more than two years;

- EE has lived in the rental unit for more than two years; and

- The Respondent Landlord was aware that EE resided in the rental unit accepted his rent payments, and approached him about filling out an "occupancy form."

15. It is worth noting that implied tenancies usually arose where, before the continuation of expired leases on a month to month basis was made automatic by statute, tenants continued to occupy rental units and continued to pay rent after fixed term tenancies had ended. However, implied tenancies could also arise where tenants moved out or died, but other persons paid rent to landlords for the right to remain in rental units.

16. In my view, consideration of the evidence in its full context in the current case did not support the creation of an implied tenancy between EE and the Respondent. The evidence did not show that EE paid rent for continuation of a lapsed or terminated tenancy. He testified that he has lived in the rental unit, and paid the rent, since the commencement of his son's tenancy, which is still in effect. The tenancy with AE has never lapsed or terminated. The Landlord's staff members have approached EE about being added in writing as an occupant, not a tenant. These facts comfortably support a conclusion that EE has lived in the rental unit as an occupant by benefit of his son's tenancy, that he has paid rent on behalf of his son, and that he has never become a tenant himself.

TEL-91666-18 (Re), 2018 CanLII 113064 (ON LTB)

14. There is no dispute between the parties that the original relationship was that of a vendor and purchaser. It is clear in the Agreement that the parties entered into the Agreement with the purpose of the Tenant buying the property at the end of the three year term.

15. The issue before the Board is whether that relationship changed into one of landlord and tenant once the Agreement expired. I believe it did for the following reasons.

16. It is clear by the lack of documentation provided by both parties and the testimony of both parties that there was no written extension of the Agreement. In fact, the Agreement addresses a default by the purchaser, the Tenant, with the following provision:

In the event the Vendor agrees not to terminate this Agreement upon a default by the Purchaser, the Vendor may permit the Purchaser to re-instate the agreement by obtaining written consent of the Vendor and paying to the Vendor a penalty for the default attendance in an amount to be determined by the Vendor at his sole option. Any such re-instatement shall not prejudice the Vendor for acting on behalf as he sees fit in the future.

[Emphasis added.]

17. Although this provision seemingly deals with a default of payment, it is clear that any re-instatement of the Agreement would require written consent. This provision in tandem with the expiry date of the Agreement leads me to understand that if the parties wished to continue with the terms of the Agreement, it must be in writing and on consent at the time of the Agreement expiring. As no consent was granted in writing at this time an implied tenancy agreement (s. 2(1)) began.

18. Furthermore, once the Agreement expired the Tenant continued to pay money to the Landlord. By the Landlord’s own testimony, the Tenant paid compensation for the right to occupy the premises.

TST-84147-17 (Re), 2017 CanLII 60760 (ON LTB)

7. This means that, regardless of whether the Tenant was paying rent to the Family, they were not her landlord because the Act prevents them from being both a tenant and a landlord at the same time. At the hearing, the Tenant repeatedly referred to the Family as the “sub landlord” but there is actually no such thing under the Act. The Family was a tenant and the Tenant was their guest or “undertenant”. The two parties had a contractual relationship that is not governed by the Act.

(...)

9. In September 2016, the Family sent an email to the Tenant telling her that they had sold their business interest and would no longer be renting the commercial unit on the ground floor. At the hearing, the Tenant provided the Board with a copy of this email. The email also said that the Family had ended their tenancy agreement with the Landlord regarding the third floor unit and the Tenant would now have a direct relationship with the Landlord and would pay rent directly to the Landlord. In the interim, the Family told the Tenant that, because they still had 3 months’ worth of her post-dated rent cheques, they would simply forward her $1,000.00 in rent to the Landlord for her. The Tenant says that, as of the date of that email, she believed that she was in a landlord/tenant relationship with the Landlord because she believed that her rent cheques were being sent to him. The Tenant says she then began to contact the Landlord directly with any repair or maintenance concerns.

(...)

12. The Tenant believes the Landlords were her Landlords in September of 2016 because of the e-mail from the Family. But the Landlord says nothing changed for him until January of 2017 when he started receiving the Tenant’s rent of $1,000.00 directly from her.

(...)

14. This means that I am satisfied that the parties have a landlord/tenant relationship under the Act but it did not commence until January of 2017. The Tenant was paying rent directly to the Landlord by that point in time and they were communicating with each other regarding any repair or maintenance issues. This created an implied tenancy agreement.

TNL-06682-18 (Re), 2018 CanLII 113848 (ON LTB)

13. The Act defines “Tenant” as “a person who pays rent in return for the right to occupy a rental unit, and includes the tenant’s heirs, assigns and personal representatives”.

14. The Putative Tenant agreed at the hearing that he is not named as either a tenant or as an occupant in the October 24, 2017 written tenancy agreement between the Landlords and the previous, deceased tenant.

15. Although the Putative Tenant advised the Landlords that he wishes to remain at the rental unit, and that he completed and submitted a rental application to the Landlords in July 2018, the Landlords did not accept the application, and did not enter into a tenancy agreement with the Putative Tenant.

16. The Landlords did not collect rent from the Putative Tenant. Instead, the Putative Tenant testified that the last rental payment to the Landlords was the previous tenant’s May 1, 2018 post-dated rent cheque, payable from the previous tenant’s bank account. When the Putative Tenant advised the previous tenant’s bank that the previous tenant had passed away, the bank froze the previous tenant’s account, causing the previous tenant’s June 1, 2018 post-dated rent cheque to be returned as NSF.

17. It is apparent that the Putative Tenant has not paid rent in return for the right to occupy the rental unit. Instead, the evidence shows that the Landlords refused to accept rent from the Putative Tenant, and denied the Putative Tenant’s July 2018 application to possess and occupy the rental unit.

TSL-72954-16 (Re), 2016 CanLII 44293 (ON LTB), <https://canlii.ca/t/gsk5w>, retrieved on 2023-02-16

13. KS further testified that every year, since the outset of the tenancy, FT asked the Tenants for twelve post-dated cheques “as a renewal of the lease”. In November 2015, FT asked the Tenants for twelve post-dated cheques for the rent payments for the months of January 2016 to December 2016. KS stated that when he spoke with FT in November 2015, he understood that the parties agreed to a “one-year renewal” and he had no “reason to suspect that the lease was terminated”.

14. The Tenants provided a copy of the initial tenancy agreement between the JS and FT. On cross-examination, KS acknowledged that there was no subsequent written tenancy agreement between the Tenants and FS. The initial tenancy agreement states, in part, that the Tenants will provide the landlord with twelve post-dated cheques for the rental period of March 2007 to February 2008.

15. In response to my questions, KS testified that, while the Tenants entered copies of the cheques for the rent payment for March and May of 2016, the Tenants provided twelve cheques to the Landlord for the rent for the months of January 2016 to December 2016.

24. Pursuant to section 48 of the Act:

(1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by,

    (c)   a child or parent of the landlord or the landlord’s spouse

(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.