Mortgagee in Possession (LTB)
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”)
TET-58197-15 (Re), 2015 CanLII 94894 (ON LTB)
8. Mortgagee as mortgagee-in-possession: The first issue to be determined is when does a mortgagee become a mortgagee-in-possession. In Bank of Montreal v. Smith, 2008 CanLII 28435, the Court described the test as, being when the mortgagee “[d} eprives the mortgagor of the control and management of the mortgaged property.” Further in Patakay v. Legace, 2003 CarswellOnt 1589, the former Ontario Rental Housing Tribunal indicates that a mortgagee takes possession when, “it can properly be said that [the mortgagee} has taken upon himself to intercept the power of the mortgagor to manage his estate, and has himself so managed and received the rents as part of the management of the estate.”
10. Mortgagee-in-possession as landlord: Section 2 of the Act defines the term “landlord” as “the owner of a rental unit or any other person who permits occupancy of a rental unit other than a tenant…” Therefore, as the entity allowing occupancy of the rental unit as of February 6, 2015, C.W.T.C., through its personnel, meets the definition of landlord under the Act.
TET-63730-15 (Re), 2016 CanLII 38789 (ON LTB)
A mortgagee in possession meets the definition of “landlord” as set out under section 2 of the Act. As such, the Landlord’s responsibility in this case was not only to collect rent, but to maintain the property and ensure that the Tenants were provided with uninterrupted vital services, which in this case included electricity to the common areas of the building and hot water to the rental unit/complex.
TET-63727-15 (Re), 2016 CanLII 38791 (ON LTB)
8. A mortgagee in possession meets the definition of “landlord” as set out under section 2 of the Act. As such, the Landlord’s responsibility in this case was not only to collect rent, but to maintain the property and ensure that the Tenants were provided with uninterrupted vital services, which in this case included electricity to the common areas of the building and hot water to the rental unit/complex.
9. The Landlords failed to restore hydro service when they were notified in September. By allowing the electricity to remain disconnected for at least a 1-month period after they were apprised of the problem, constitutes a finding of interference with vital electricity to the common areas; and hot water service to the rental units. As well, the new “landlord” also assumed the responsibilities/problems of the previous landlord.
11. The Landlords will therefore be required to provide the Tenant with a rent rebate/abatement of 30:00% of the monthly rent for a one-and-a-half month period covering approximately August 15 to October 7, 2015. This amounts to $315.00 ($1,050.00 X 30:00%).
