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.

CEL-16026-11 (Re), 2011 CanLII 71561 (ON LTB)

4. I find that the Agreement of Purchase and Sale acts as an occupancy agreement for lot 10 since it grants the Landlord exclusive use of lot 10.

5. I define “building” in subsection 72(2)(a) of the Act to include the residential complex since section 2 of the Act defines a residential complex as “a building or related group of buildings in which one or more rental units are located. A residential complex is also defined as a mobile home park.

6. The definition of a rental unit as well as a residential unit in section 2 of the Act includes a site for a mobile home.

7. The mobile home park is a residential complex with 65 residential units. Therefore, the rental unit is not situated in a building/residential complex containing not more than four residential units.

8. There was no claim at the hearing that subsection 72(2)(b) applies or that any of the persons listed in that subsection have been a genuine occupant of the rental unit.

9. Since the Landlord is a co-owner; the Landlord’s interest in lot 10 is through an occupancy agreement; and the residential complex contains more than 4 residential units, subsection 72(2) of the Act applies and I can not terminate the tenancy under this application.

TSL-73651-16 (Re), 2016 CanLII 71300 (ON LTB)

1. At the outset of the hearing, both the Landlord and the Tenant raised preliminary issues. The Landlord requested to amend the application to reflect that the he collected the last month’s rent deposit from the Tenant on June 10, 2015. The Tenant did not object and the application was amended accordingly. The Tenant requested that the application be dismissed based on the wording of subsection 72(2) of the Residential Tenancies Act, 2006 (the “Act”). As I explained at the hearing, subsection 72(2) of the Act does not apply to this application because the Landlord’s claim is not based on an occupancy agreement involving co-owners of a building who hold the property as tenants in common. I proceeded to hear the application on its merits.

EAL-06676-10 (Re), 2010 CanLII 44305 (ON LTB)

1. One of the owners of the residential complex (SF) gave the Tenant a Notice to Terminate a Tenancy at the End of the Term For Landlord’s or Purchaser’s Own Use on January 26, 2010. On February 5, 2010, the same owner (SF) sent the Tenant a new lease with an unlawful monthly rent increase of close to $700.00. (SF) explained that the Tenant had agreed to the increased rent to offset the $5,000.00 cost of a damaged door and that it would take approximately one year for the door to be paid off.

2. In light of the illegal new lease offered to the Tenant only ten days after the notice of termination was served, I find that (SF) does not in good faith require possession of the rental unit for the purpose of residential occupation.

3. The Landlord is a numbered company with two shareholders, each holding a 50% interest in the numbered company.

4. The argument raised by the Tenant's representative that a numbered company owned equally by two shareholders does not meet the definition of “Landlord” in the Residential Tenancies Act 2006 (the 'Act') is a valid argument supported by recent case law. The only exception appears to be with respect to a company or corporation with a sole shareholder. Whether a sole shareholder can require possession of a rental property owned by a corporation for own use should be determined on a case by case basis according to current case law Edward Slapsys c/o 1406393 Ontario Inc. v. Abrams (June 22, 2009), Toronto, File No. 80/08(Ont. Div. Ct.) [Unreported].

5. In this case where the Landlord is a numbered company with two equal shareholders, I find that (SF) is not entitled to give notice for the Landlord’s own use.

6. The Tenant's representative was unsuccessful in convincing me that section 72 (2) of the Act applied to the Landlord’s application.