A common challenge for landlords are termination notices. When to give them, how to give them, the information listed in them, and what do if they make a mistake.
One of the most common mistakes that our firm encounters at the Landlord and Tenant Board or when a Landlord comes to meet with us for a consultation is service of notices. I don’t mean the tenant is claiming they didn’t receive the notice, I mean the notice was served by a well meaning real estate agent or property manager and as a result the notice was dismissed for improper service when all other aspects of the notice were correct.
When a notice is served, it can only be served by the Landlord themselves, or a Licensee of the Law Society of Ontario. The reason for this is that the Landlord and Tenant Board interprets service as providing legal services. This means the LTB could say because a portion of the eviction process was handled by an unlicensed person, it voids the whole eviction process.
In The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391. Mr. Chiarelli offered property management services and would often attempt to represent his clients as part of his service. The board found him to be providing legal services while unlicensed and banned him from appearing before the LTB. The LTB now interprets this case to mean that a real estate agent or property manager does not meet the definition of "Landlord", and their notices would also be void and have no affect.
(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”)
When a tenant already owes you 4 months of rent, having to start all over again can be devastating.
The method of service is also important. The litigators in our office always suggests mailing the notice. If the letter is not returned it is deemed served and only adds 5 days to your termination date. We NEVER recommend sending a letter by registered mail. If your tenant is having financial difficulty, or is just plainly irresponsible, they simply won’t pick it up or will refuse to sign for the notice. This means they can dispute ever having been served in the first place.
This notice is used when a tenant has not paid their rent. One of the biggest mistakes small landlords make is to give non-paying tenants time to “catch up”. It is always recommend that a landlord complete an N4 the very first day after a rent payment has been missed. If you are worried that the tenant may become angry, explain to them that they have many opportunities to pay their arrears and stay, but that you need to protect yourself should they continue to not pay their rent.
On the notice make sure the rental amount is correct. If the tenant is paying $1599 don’t say $1600. Yes, 1 dollar will make a difference. NSF charges, interest, rent increases not done on a Form N1, should also not be included on the notice. To be clear, if the amount is wrong, even by a single dollar, the notice will be deemed void by the member.
The notice should NOT include occupants, even if they are adults, and should only include the tenant(s) who have signed the lease. Make sure to put their complete address. If it is a basement, upper unit or apartment it must be specified on the notice. The reason for this is simple, the Sheriff can refuse to carry out an eviction if they feel the order is too general and could cause damages to people not listed on the order. For example, you forget to put "basement" on your notice/application and get an order for 123 Anywhere Street. When the sherif arrives, he may evict and give vacant posession of the whole address, or refuse as the order includes units not covered in the application, and you will need to start all over again.
Our office uses the N8 as a "strategic" notice, it RARELY results in an eviction. The reason we use it is to get something called a “Section 78” or “Pay on time” order. When you have a tenant who is late, and who shows a pattern of being late, a pay on time order means they must pay on time and in full on the day their rent is due, or you as the landlord can apply to the Landlord and Tenant Board without further notice to the tenant and get an eviction order. The tenant does have the ability to stay the order (and in most cases does), but a properly prepared Defence to the stay can secure an eviction.
The major benifit is that for 12 months you will not have to serve N4 notices for non-payment of rent. As long as you apply for the ex-parte within 30 days of the breach you will get an order in the mail. Perhaps one of the most important parts of a "pay on time" order is that the landlord does not induce a breach. For example, if the landlords practice is to collect rent by knocking on the tenants door when the rent is due, and after they receive the order they don’t go and knock on the door, the Landlord and Tenant Board could determine the Landlord induced the breach by not doing what they normaly do, and will not order an eviction.
The N5: Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding
This is perhaps the most common self-represented notice we see, and it also the notice we see fail the most. Many of the self-represented N5’s we see fail should have succeeded. The reason they failed can be found in the case Ball v. Metro Capital Property  O.J. No. 5931. Ball established that for an application to be successful the tenant needs to know the specific allegations so they can defend against them; to decide whether to dispute the allegations made against them; or to consider whether to stop the conduct or activity or correct the omission within seven days and thereby void the notice. The notice must be specific with at least a date (preferably a date and time) of the occurrence being spoken about in the notice. For instance, if the tenant has been denying you entry into their rental unit, you would not write “Tenant refuses to let landlord in”. You would say, On January 26 at 11am, after providing the tenant with proper notice, the landlord attended the rental unit as was refused entry. On January 27 at 4PM after providing the tenant with proper notice, the landlord attended the unit again and was refused entry”, etc., etc. The same principle would apply to all other allegations.
Our office usually includes a provision to the affect of:
" According to the Residential Tenancies Act, Section 27(4) a landlord has the right to enter and inpect their unit, you must contact them and arrange entry within the next 7 days to void this notice".
This way there is no doubt that the tenant was not only aware of what allagations were made, but they know EXACTLY how to void the notice if they chose to.
Another important point to remember is that at a Landlord and Tenant Board hearing, a Landlord will be restricted to only the dates mentioned in their N5 notice and will only be able to speak about incidents they personally witnessed. The adjudicator MAY allow you to speak about incidents if you have a log of emails and text message complaints, but your strongest and most convincing evidence will come from your other tenants who are able to appear before the board and speak as witnesses to their own evidence.
In closing, notices when accurate and properly used are the most important tool in the Landlords arsenal. For more information on notices, we provide a free 15-minute phone consultation. We also offer a limited scope retainer and can provide our services al a carte.