Eviction for Personal Use, Demolition, Repairs and Conversion
Interpretation Guideline G12

Interpretation Guidelines are intended to assist the parties in understanding the Board's usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making. However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.

Introduction

A landlord may apply to terminate a tenancy on the basis the rental unit is needed for use by the landlord, the landlord's family member, or a person who provides or will provide care services to the landlord or landlord's family. A landlord may also terminate a tenancy on the basis the rental unit is required for the personal use of a purchaser, the purchaser's family member, or a person who provides or will provide care services to the purchaser or purchaser's family.

A landlord may also apply to terminate a tenancy on the basis that the landlord: (1) will demolish the rental unit; (2) needs vacant possession to do extensive repairs or renovations; or (3) intends to convert the rental unit to non-residential use.

This Guideline discusses how the Landlord and Tenant Board (LTB) deals with these applications made under the Residential Tenancies Act, 2006 ("RTA"). Amendments were made to some of the RTA provisions on September 1, 2017 in Bill 124, An Act to amend the Residential Tenancies Act, 2006. Special transitional rules may apply to some notices and applications served before the amendments were proclaimed.

For general information about eviction applications, see Guideline 10, "Procedural Issues regarding Eviction Applications".

Personal use by the landlord or landlord's family

Section 48(1) of the RTA permits the landlord to give notice of termination to a tenant if the landlord, in good faith, requires the unit for residential occupation for a period of at least one year by the landlord, a family member or a caregiver. This notice is often referred to as a "Form N12".

Section 191 of the RTA and LTB Rule 5 set out the rules about how to serve documents.

Who can occupy the rental unit?

The Form N12 can indicate that any one of the following persons intends to occupy the rental unit: the landlord; the landlord's spouse; a child or a parent of either the landlord or the landlord's spouse; or a person who provides or will provide care services to the landlord or a family member of the landlord where the person receiving the care services resides or will reside in the building.

The notice of termination cannot include other family members who are not specified in section 48(1), such as a landlord's siblings. See for example: TSL-70431-16 (Re), 2016 CanLII 52813 (ON LTB); NOL-03484-10 (Re), 2011 CanLII 5985 (ON LTB).

Termination date

The termination date in the landlord's notice of termination must be at least 60 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, on the last day of a rental period. For example, if the current month is January and the lease expires on June 30 of the same year, the termination date should be June 30. If there is a month to month tenancy agreement and notice is provided to the tenant on January 20, the earliest the termination date on the notice can be is March 31 which is 60 days after the notice is given and on the last day of the monthly rental period.

A notice of termination with an incorrect termination date is defective. A defective notice cannot be amended after it has been given to the tenant. The LTB cannot issue an order terminating a tenancy on the basis of a defective notice of termination. See for example: CEL-02248 (Re), 2007 CanLII 75937 (ON LTB); TSL-72954-16 (Re), 2016 CanLII 44293 (ON LTB).

After being given the notice, the tenant is allowed to terminate the tenancy at an earlier date by giving give the landlord ten days written notice.

The landlord may apply to the LTB for an eviction order as soon as the notice has been given to the tenant, but section 69(2) of the RTA says that it may not be filed later than 30 days after the termination date in the notice. If the application is filed late, it will be dismissed. The LTB schedules a hearing to consider the landlord's application and all parties have a right to attend the hearing and provide relevant evidence and submissions.

Affidavit

Subsection 72(1) of the RTA requires the landlord to file 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 at least one year. The person who provided the affidavit is not required to testify at the LTB hearing, unless they have been summoned by one of the parties. However, as a general principle of law, oral testimony at an LTB hearing is given greater weight than testimony provide by affidavit.

Examples of LTB orders addressing the affidavit requirement include: TNL-86355-16; SWL-85060-16 (Re), 2016 CanLII 44343 (ON LTB); TSL-70431-16 (Re), 2016 CanLII 52813 (ON LTB).

If there is a conflict between the oral testimony and the affidavit it is up to the Member to decide what evidence is most persuasive: Sertic v. Mergarten, 2017 ONSC 263.

Requirement of good faith

At the LTB hearing the landlord must prove, on a balance of probabilities, that he or she in good faith requires the rental unit for the purpose of residential occupation by the person specified in the notice of termination. That means that the Member must decide whether it is more likely than not the landlord or family member will move into the unit within a reasonable time after the unit becomes vacant.

When deciding "good faith" the LTB must consider whether the landlord has a genuine intention to occupy the premises. Whether the landlord's plan is reasonable is not the test: Feeney v. Noble, 1994 CanLII 10538 (ON SC).

In Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC) the Divisional Court stated at paras 18, 26-27:

In my view, s.51(1) [now RTA s.48(1)] charges the finder of fact with the task of determining whether the landlord's professed intent to want to reclaim the unit for a family member is genuine, that is, the notice to terminate the tenancy is made in good faith. The alternative finding of fact would be that the landlord does not have a genuine intent to reclaim the unit for the purpose of residential occupation by a family member.

While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal stops short of entering into an analysis of the landlord's various options.

Once the landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s.51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s.51(1) standard.

In Fava v. Harrison, 2014 ONSC 3352, the Divisional Court affirmed that the motives of the landlord in seeking possession of the rental unit are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. The Court also stated the LTB can consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.

For example, a tenant may wish to prove that the same landlord gave a notice of termination for personal use of another unit earlier, obtained possession and then rented it to another tenant. This is not determinative evidence that the landlord lacks good faith, but it may be considered by the Member in weighing the landlord's evidence. Evidence of previous problems between the current tenant and the landlord may also be relevant to the genuineness of the landlord's intention to use the unit as stated in the notice.

Examples of LTB orders finding that the landlord has satisfied the good faith requirement: TEL-69842-16 (Re), 2016 CanLII 38802 (ON LTB); TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB); TSL-56775-14 (Re), 2014 CanLII 71671 (ON LTB); TSL-75867-16 (Re), 2016 CanLII 71599 (ON LTB).

Examples of LTB orders finding that the landlord has not satisfied the good faith requirement: TSL-76001-16 (Re), 2017 CanLII 28525 (ON LTB), EAL-59819-16 (Re), 2016 CanLII 88067 (ON LTB); TSL-55743-14 (Re), 2015 CanLII 9141 (ON LTB); TSL-09908-10 (Re), 2011 CanLII 13483 (ON LTB).

Allowable uses of the rental unit

The landlord must establish that the unit will be used for "residential occupation" as required by section 48 of the RTA. That term is not defined in the RTA but it has been considered in a number of LTB and court decisions.

Corporate landlords and shareholders of a corporation

On September 1, 2017 the RTA was amended to provide that section 48 only applies to rental units owned by landlords who are individuals. A corporate landlord cannot serve a notice under section 48 or obtain an eviction order under this section. Earlier decisions permitting some corporations to serve this type of notice are no longer valid.

Compensation

For notices under section 48 given to a tenant on or after September 1, 2017, the landlord must compensate the tenant in an amount equal to one month's rent or offer another rental unit acceptable to the tenant. This requirement must be met before the termination date on the notice of termination. The LTB will not issue an order ending the tenancy and evicting the tenant unless the landlord has satisfied this obligation. Under subsection 135(1.1) of the RTA, a landlord is deemed to have retained money in contravention of the RTA, if the landlord fails to pay the tenant the required compensation.

Personal use by a Purchaser or their family

Section 49 of the RTA permits the landlord to give notice of termination to a tenant on behalf of a purchaser of the rental unit if:

  1. the landlord has entered into an agreement of purchase and sale to sell a residential complex containing no more than 3 units, or a condominium unit; and
  2. the purchaser, in good faith, requires possession of the complex or the unit for residential occupation by the purchaser, his or her spouse, or a child or parent of one of them.

Agreement of purchase and sale

Before a landlord may give a notice under section 49, there must be an agreement of purchase and sale for the residential complex or condominium unit. The LTB may refuse an application if it is not reasonably certain that a completed sale will result from the agreement. If a term or condition of the agreement makes it uncertain that the deal will be completed, it may be appropriate to delay the application until the sale becomes more certain.

The LTB may also dismiss the application if satisfied the purchase is a pretence created for the purpose of evicting the tenant. For example, a transfer to a family member or a sale for much less than market value may raise questions. Section 202 of the RTA directs the LTB to look at the real nature of any transactions. See for example: SOL-01897 (Re), 2007 CanLII 75946 (ON LTB); CEL-61051-16 (Re), 2016 CanLII 88110 (ON LTB).

A landlord applying based on a notice under section 49 is well advised to submit a copy of the agreement of purchase and sale with the application, together with an explanation of the circumstances of the intended sale.

There is also a good faith requirement similar to that related to section 48 (see above). The requirement relates to the genuine intention of the purchaser and the person who declares they intend to occupy the unit (see subsections 49(1) and 72(1) of the RTA). See for example: TSL-76546-16 (Re), 2016 CanLII 71338 (ON LTB); TNL-27406-12 (Re), 2012 CanLII 27936 (ON LTB).

As section 49(1) states that a notice to terminate a tenancy for use by a purchaser or family member can only be served if the residential complex has no more than three residential units, an application concerning a residential complex with more than three units will be dismissed: TSL-80642-16 (Re), 2017 CanLII 28814 (ON LTB).

Personal use by a person who provides or will provide care services

Subsection 48(1)(d) and 49(1)(d) of the RTA permit a landlord to give notice of termination to a tenant if the landlord or purchaser, in good faith, requires the unit for residential occupation by a person who provides or will provide care services to the landlord or purchaser, or the landlord's or purchaser's spouse, parent, child, or spouse's parent or child. In the case of care services being provided to the landlord or the landlord's family, the caregiver must live in the rental unit for at least one year.

The person receiving the care must reside or intend to reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.

Under section 2 of the RTA, "care services" is defined as meaning "subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living". Care services are further defined in section 2 of Ontario Regulation 516/06.

Restriction on "co-ownerships"

Subsection 72(2) of the RTA contains special provisions that apply only to an unusual type of housing arrangement known as "co-ownership". This involves a number of individuals owning a building through a corporation or as tenants-in-common. Subsection 72(2) applies when such a building has been marketed as single units. This method of offering a building for sale on a unit basis avoids the rules of the Condominium Act. The co-owner has no rights to the unit they are apparently buying, except by agreement with the other co-owners. Their rights respecting the unit may include both the rent revenue from that unit and the right to occupy the unit.

Subsection 72(2) provides protection for tenants of units that have been sold in this way to co-owners. Even if the co-ownership agreement purports to give the "unit owner" the right to occupy the unit, they cannot do so unless: the building does not have more than four units, or; the landlord, the landlord's spouse, a child or a parent of either the landlord or the landlord's spouse, or 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 previously lived in the unit.

This section of the RTA does not apply to other types of rental units and is not a general prohibition on landlords of complexes with more than four rental units relying upon sections 48 or 49 of the RTA. See Seibert v. Juhasz, 2012 ONSC 5447.

Termination for demolition/renovation/conversion

Section 50(1) of the RTA allows a landlord to serve a notice of termination if the landlord intends to:

  1. demolish the rental unit;
  2. convert it to a purpose other than residential premises; or
  3. do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.

The termination date in the landlord's notice of termination must be at least 120 days after the notice is given and must be the last day of a fixed term tenancy, or if there is no fixed term, the last day of a rental period. This notice is often referred to as a "Form N13". Also see the above discussion about the consequence of an incorrect termination date on the notice.

After being given the notice, the tenant is allowed to terminate the tenancy at an earlier date by giving the landlord ten days written notice.

Demolition

If a tenant is given a notice because the rental unit is being demolished and is located in a residential complex that contains at least five residential units, the landlord must give the tenant an amount equal to three months' rent or offer the tenant another rental unit that is acceptable to the tenant. This requirement does not apply if the landlord has been ordered to demolish the residential complex.

Whether or not the intended activity constitutes "demolition" is discussed in these LTB orders: TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB); TSL-05299-10 (Re), 2010 CanLII 76078 (ON LTB).

Conversion

If a tenant is given a notice because the rental unit is being converted to a non-residential use and is located in a residential complex that contains at least five residential units, the landlord must give the tenant an amount equal to three months' rent or offer the tenant another rental unit that is acceptable to the tenant. See for example: NOL-07899 (Re), 2009 CanLII 77993 (ON LTB).

Whether or not the intended activity constitutes conversion to a non-residential use is discussed in these LTB orders: TSL-66897-15 (Re), 2015 CanLII 99152 (ON LTB); TSL-12596 (Re), 2009 CanLII 51178 (ON LTB).

Whether the landlord intends in good faith to convert the rental unit to a non-residential use is discussed in these LTB orders: TSL-66668-15 (Re), 2015 CanLII 94900 (ON LTB); SOL-14849-11 (Re), 2011 CanLII 34688 (ON LTB).

Renovation/repair

If a tenant is given a notice because of extensive repairs or renovations, the tenant can choose to move back into the rental unit after the repairs or renovations are complete. The rent must be the same as the rent before the tenancy was terminated. Before the tenant moves out, the tenant must inform the landlord in writing of their intent to re-occupy the rental unit. The tenant also has to keep the landlord informed in writing of any change in their address.

If the rental unit is located in a residential complex that contains at least five residential units and the tenant does not give the landlord a written notice stating that they want to move back after the repairs are completed, the landlord must give the tenant an amount equal to three months' rent or offer another rental unit that is acceptable to the tenant.

This requirement does not apply if the landlord has been ordered to do the repair or renovation.

If the tenant lives in a residential complex that contains at least five residential units and gives written notice that they will be moving back into the rental unit once the repairs are complete, the landlord must give the tenant an amount equal to the rent for the lesser of three months and the period of time that the unit is undergoing repairs or renovations. This requirement does not apply if the landlord has been ordered to do the repair or renovation.

Whether vacant possession is necessary for the landlord to do the repairs or renovations is discussed in these LTB orders: TSL-81965-17 (Re), 2017 CanLII 28702 (ON LTB); SOL-14870-11 (Re), 2011 CanLII 101419 (ON LTB).

Mobile Homes and Care Homes

If the landlord is giving the notice because the landlord will be converting, demolishing, repairing or renovating a site on which a tenant-owned mobile home or land lease community home is located, the landlord must give the tenant: (a) a minimum of one year's notice; and (b) compensation equal to one year's rent, or $3,000, whichever is less.

There are also special rules that apply to care homes, including a requirement that the landlord make reasonable efforts to find the tenant suitable alternate accommodation.

Application and issues the LTB will address at the hearing

The landlord may apply to the LTB for an eviction order as soon as the notice has been given to the tenant, but section 69(2) of the RTA says that it may not be filed later than 30 days after the termination date in the notice. If the application is filed late, it will be dismissed. The LTB schedules a hearing to consider the landlord's application and all parties have a right to attend the hearing and provide relevant evidence and submissions.

At the hearing the landlord must prove, on a balance of probabilities, that he or she in good faith intends to carry out the activity specified in the notice of termination. That means that the LTB must decide whether it is more likely than not the landlord will carry out the activity within a reasonable time after the unit becomes vacant.

The landlord must also prove that he or she has:

  1. obtained all of the necessary permits or other required authority or taken; or
  2. taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity, if it is not possible to obtain the permits or other authority until the rental unit is vacant. [See for example: TSL-81104-17 (Re), 2017 CanLII 28544 (ON LTB).]

LTB Order and relief from eviction

After holding a hearing, the LTB may issue an eviction order if the landlord has proven their case. The eviction enforcement date cannot be before the termination date in the notice.

Even where the LTB finds that the landlord or purchaser requires the unit in good faith or intends to carry out the activity described in the notice, under section 83 of the RTA the LTB must consider, having regard to all the circumstances, whether to refuse to grant the application or to postpone the eviction. In some cases, refusing or delaying the eviction is discretionary. See for example: NOL-15753-14-RV (Re), 2014 CanLII 57596 (ON LTB); TSL-71705-16 (Re), 2016 CanLII 71624 (ON LTB); TSL-70781-16 (Re), 2016 CanLII 39812 (ON LTB); TSL-12596 (Re), 2009 CanLII 51178 (ON LTB). In other cases, refusing the eviction is mandatory. See for example: SOL-53030-14 (Re), 2015 CanLII 16020 (ON LTB); TSL-51257-14-RV (Re), 2015 CanLII 22344 (ON LTB); TSL-60770-15 (Re), 2015 CanLII 69062 (ON LTB).

If the landlord does not provide the tenant with the required compensation, as discussed above, the LTB must refuse the eviction. If the landlord pays the tenant the required compensation and the LTB dismisses the landlord's application, the tenant may be ordered to re-pay the landlord.

See also Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), and Guideline 7: "Relief from Eviction - Refusing or Delaying an Eviction".

Landlord gave notice in bad faith

A former tenant may file an application with the LTB under section 57 of the RTA if the former tenant believes that:

  1. the landlord gave a notice to a tenant under sections 48,49 or 50 in bad faith; and
  2. the tenant moves out of the unit as a result of the landlord's notice or an application to the Board or an order by the Board based on such a notice; and
  3. no person specified under the appropriate subsection has occupied the unit within a reasonable time after the tenant vacated the rental unit, or the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the tenant vacated the rental unit.

The LTB holds a hearing to consider the former tenant's application and all parties have an opportunity to attend and provide relevant evidence and submissions. It is the tenant, as the applicant, who must prove all three elements of the test set out above.

Examples of LTB orders finding that the tenant has satisfied the three parts of the test contained in section 57 include: SWT-95207-16 (Re), 2017 CanLII 9457 (ON LTB); TST-77957-16 (Re), 2016 CanLII 88282 (ON LTB); TST-77144-16 (Re), 2016 CanLII 88292 (ON LTB); TST-72609-16 (Re), 2016 CanLII 71210 (ON LTB); TST-63263-15 (Re), 2015 CanLII 75856 (ON LTB); TST-68404-15 (Re), 2016 CanLII 40119 (ON LTB).

Examples of LTB orders finding that the tenant has not satisfied the three parts of the test contained in section 57 include: TET-67474-16 (Re), 2016 CanLII 52833 (ON LTB); TST-63837-15 (Re), 2016 CanLII 39762 (ON LTB); TST-62541-15 (Re), 2015 CanLII 59059 (ON LTB); TST-57328-14 (Re), 2015 CanLII 93464 (ON LTB); CET-33575-13 (Re), 2014 CanLII 71654 (ON LTB).

For applications based on a notice given under section 48 on or after September 1, 2017, it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave the notice of termination in bad faith if the landlord:

  1. advertises the rental unit for rent;
  2. enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;
  3. advertises the rental unit, or the building that contains the rental unit, for sale;
  4. demolishes the rental unit or the building containing the rental unit; or
  5. takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.

These provisions only apply during the period that begins on the date the landlord gave the tenant the notice and ends one year after the former tenant moves out of the unit.

Remedies the LTB may award

If the tenant proves all three elements of the test set out above, the LTB may order the landlord to pay:

  1. a specified sum to the tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit;
  2. reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur;
  3. an order for abatement of rent;
  4. an administrative fine not exceeding the greater of $25,000 and the monetary jurisdiction of the Small Claims Court; or,
  5. any other order that the LTB considers appropriate.

Who should be named as the respondent

In considering whether the tenant has satisfied the three parts of the test contained in section 57, the LTB must consider the conduct and knowledge of the landlord who served the notice of termination. If the tenancy was terminated as a result of a notice of termination for personal use of a unit by a purchaser, a family member of the purchaser, or a person who provides or will provide care services, it is the landlord who served the notice of termination who should be named as the respondent.



September 1, 2017
sjto.ca/ltb