N12 Affidavit Requirements

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-19
CLNP Page ID:	1955
Page Categories:	N12 Affidavit Requirements
Citation:	N12 Affidavit Requirements, CLNP 1955, <r/7q>, retrieved on 2024-05-19
Editor:	P08916
Last Updated:	2022/07/11

Residential Tenancies Act, 2006

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year; or

(b) a notice of termination under section 49, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2017, c. 13, s. 13.

Nanko B.V. Holdings Inc. v Babasola, 2021 CanLII 139854 (ON LTB)

4. The first reason why this application must be dismissed is because the affidavit filed by the Landlord does not provide all of the information required by paragraph 72(1)(b) of the Act. In particular, to meet the requirements, the affidavit must certify that the purchaser requires “the rental unit” for his or her own personal use. The affidavit proffered by the Landlord does not provide this information.

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Date: 2021-10-18 File number: TNL-32121-21 Citation: Nanko B.V. Holdings Inc. v Babasola, 2021 CanLII 139854 (ON LTB), <https://canlii.ca/t/jltph>, retrieved on 2022-07-10

Order under Section 69

Residential Tenancies Act, 2006

File Number: TNL-32121-21

In the matter of:

1. 1 - BASEMENT, 2931 BUR OAK AVENUE MARKHAM ON L6B1E6

Between:

Nanko B.V. Holdings Inc.

Landlord

And

Abiola Babasola Krystal Babasola

Tenants

Nanko B.V. Holdings Inc. (the 'Landlord') applied for an order to terminate the tenancy and evict Krystal Babasola and Abiola Babasola (the 'Tenants') because the Landlord has entered into an agreement of purchase and sale of the rental unit and the purchaser requires possession of the rental unit for the purpose of residential occupation. The Landlord also claimed compensation for each day the Tenants remained in the unit after the termination date.

This application was heard by videoconference on August 5, 2021.

The Landlord's agent Vijay Kumar, the Landlord's legal representative Christopher Holder and the Tenanat Abiola Babasola attended the hearing.

Reasons:

1. These reasons explain why the Landlord’s application is dismissed.

1. The Landlord’s N12 Notice of Termination is given under subsection 49(1) of the

Residential Tenancies Act, 2006 (the ‘Act’), which provides, in part:

49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,

(a) the purchaser [.]

2. To obtain eviction under this provision, several requirements must be satisfied. First, the residential complex must have no more than three residential units. Second, there must be an agreement of purchase and sale. Third, in a case such as this where it is the

purchaser who intends to live in the rental unit, the purchaser must in good faith require possession of the residential complex or the unit for the purpose of residential occupation.

3. Additionally, paragraph 72(1)(b) and subsection 72(1.1) provide, in part:

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination under section 49, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use.

(1.1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination given under section 48 before the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use.

4. The first reason why this application must be dismissed is because the affidavit filed by the Landlord does not provide all of the information required by paragraph 72(1)(b) of the Act. In particular, to meet the requirements, the affidavit must certify that the purchaser requires “the rental unit” for his or her own personal use. The affidavit proffered by the Landlord does not provide this information.

5. The affidavit sworn by Mr. Veer Tharwani (the ‘Purchaser’) on April 29, 2021 does not refer to the residential complex or the rental unit. Although it refers to an agreement of purchase and sale (‘APS’), it does not reference the date of the APS or provide any other information upon which to link it to the APS filed by the Landlord. Additionally, as the Tenant pointed out, the APS itself references a different address than the Tenant’s: it refers to “2921 Bur Oak Avenue”, not “2931 Bur Oak Avenue”. Although the Landlord testified that the legal description found on the APS is correct, the Landlord provided no evidence to corroborate this assertion. The Purchaser did not attend to provide testimony on whether his affidavit was meant to refer to the rental unit in question. In these circumstances, I cannot find that the Purchaser’s affidavit satisfies or is substantially complaint with the requirements of paragraph 72(1)(b) of the Act.

6. The rental unit is also in the basement of the residential complex. As noted above, one of the requirements of subsection 49(1) of the Act is that the purchaser must in good faith require possession “of the residential complex or the unit for the purpose of residential occupation”. And, as noted above, the affidavit itself must certify that the purchaser “requires the rental unit for his or her own personal use”. Even if I am wrong to find that the affidavit is deficient for not specifying the rental unit or the residential complex, the affidavit in this case only states that the Purchaser “will be moving into the main level upon purchase for at least 12 months”. This affidavit gives no indication as to what use if any the Purchaser will make of the basement unit. When I gave the Landlord an opportunity to provide evidence on this issue, the Landlord testified that the Purchaser wanted to stay on the main level and that he was not sure about the Purchaser’s intentions for the basement. Once this issue became apparent, the Landlord then testified that the Purchaser previously told him that he would use other aspects of the residential complex for business purposes. I preferred the Landlord’s testimony before the issue became apparent and, in any event, subsection 49(1) of the Act requires “residential occupation” not occupation for business purposes. There was no basis upon which I could conclude that the substantive or affidavit requirements of the legal test were satisfied and the Landlord’s application must therefore be dismissed.