Notice of Personal Use - Re: 4 or Fewer Units

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

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;

(b) the purchaser’s spouse;

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

(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1).

(2) If a landlord who is an owner as defined in clause (a) or (b) of the definition of “owner” in subsection 1 (1) of the Condominium Act, 1998 owns a unit, as defined in subsection 1 (1) of that Act, that is a rental unit and has entered into an agreement of purchase and sale of the unit, the landlord may, on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by,

(a) the purchaser;

(b) the purchaser’s spouse;

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

(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (2).

(3) The date for termination specified in a notice given under subsection (1) or (2) 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. 2006, c. 17, s. 49 (3).

(4) A tenant who receives notice of termination under subsection (1) or (2) may, at any time before the date specified in the notice, terminate the tenancy, effective on a specified date earlier than the date set out in the landlord’s notice. 2006, c. 17, s. 49 (4).

(5) The date for termination specified in the tenant’s notice shall be at least 10 days after the date the tenant’s notice is given. 2006, c. 17, s. 49 (5).

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.

(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. 2017, c. 13, s. 13.

(2) 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 under section 48 or 49 where the landlord’s claim is based on a tenancy agreement or occupancy agreement that purports to entitle the landlord to reside in the rental unit unless,

(a) the application is brought in respect of premises situate in a building containing not more than four residential units; or

(b) one or more of the following people has previously been a genuine occupant of the premises:

(i) the landlord,

(ii) the landlord’s spouse,

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

(iv) a person who provided care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse. 2006, c. 17, s. 72 (2).

NOL-09468-12 (Re), 2012 CanLII 86910 (ON LTB)

14. CL argued that the Landlord’s notice of termination of termination is invalid pursuant to sub-section 72(2) of The Residential Tenancies Act 2006 which states: “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 under section 48 or 49 where the landlord’s claim is based on a tenancy agreement or occupancy agreement that purports to entitle the landlord to reside in the rental unit unless, (a) the application is brought in respect of premises situate in a building containing not more than four residential units”.

15. Subsection 72(2) applies where co-owners of buildings (with four or fewer rental units) hold the properties as tenants in common and each owner purports to have the right to occupy a specific unit based upon an agreement between all of the owners. Sub-section 72(2) does not apply to the circumstances in this application.

TST-05146-10 (Re), 2011 CanLII 101406 (ON LTB)

[9] Richard A. Feldman, in his treatise Residential Tenancies, 9th ed. (Toronto: Carswell 2009), at pages 147 to 150, provides a summary of the history of co-ownership agreements. The effect of co-ownership agreements on residential tenancies and specifically security of tenure was litigated in the 1970s and early 1980s. A decision by the Divisional Court in Medeiros v. Fraleigh (1983), 1983 CanLII 1723 (ON SC), 40 O.R. (2d) 793 resulted in an amendment to the Landlord and Tenant Act, then in force, and that amendment has been incorporated into each subsequent residential tenancy statute up to its current incarnation is subsection 72(2) of the Residential Tenancies Act, 2006 (the ‘Act’). Subsection 72(2) of the Act places restrictions on co-owners as landlords in applications to terminate a tenancy for landlord’s own use, but in all other respects, the Act treats co-owners like any other landlord.

[10] Furthermore, section 3 of the Act provides that the Act applies with respect to rental units in residential complexes despite any other Act and despite any agreement or waiver to the contrary. What this means is that the Landlord is not exempt from section 8 of O. Reg. 516/06 just because her co-ownership agreement says she owns a share in the co-ownership that owns the balcony and the rental unit, rather than owning the balcony or the rental unit. Co-owners cannot create by agreement a situation where they are not responsible as landlords under the Act.