Author: Marshall Yarmus
Date Posted: July 03 2019
I wasn’t expecting to be doing another blog on Common Landlord and Tenant Myths so soon. The following are myths I have had to debunk when asked by clients or prospective clients in past few weeks.
A Tenant can vacate the apartment whenever they want without consequences
Myth: If a tenant has a lease term, they cannot leave until the end of the term. Whether on a lease term or month to month basis a tenant is required to give at least 60 days written notice of their intention to leave. If rent is paid on the first of the month, the notice should indicate that the tenant will leave on the last day of a month. The written notice should be in the form of an N9 form.
If the tenant fails to give the proper written notice, the landlord may be able to sue the former tenant for loss of rent.
A landlord in Ontario is entitled to collect a security deposit to cover damages
Myth: I thought this would not fall under common myths, but the subject of security deposits has come up in my practice twice in the past few weeks. A landlord is never permitted to collect a security deposit or a damage deposit.
A landlord is not permitted to accept rent payments in advance
Myth: There is a lot of confusion regarding pre-paid rent. A landlord is not permitted to demand that rent be paid in advance. However, with the shortage of rental units in the Toronto area a tenant is permitted to offer to pay many months worth of rent in advance if the landlord will accept their rental application. It is legal for the landlord to accept this offer. This is attractive to landlords who are real estate investors.
If the tenant agrees to a provision in a tenancy agreement, it is enforceable.
Myth: Landlords and tenants cannot agree to a term in a tenancy agreement or lease which is contrary to the Residential Tenancies Act. Section 3 of the Residential Tenancies Act deems such terms as void and unenforceable.
A Landlord can email or text a tenant about a rent increase
Myth: Unless the proper Landlord and Tenant Board N1 Form is used and served to the tenant by a method specified in the Rule 3 of the Landlord and Tenant Board Rules any rent increase is void.
Let that sink in. If the landlord fails to use the proper Landlord and Tenant form for rent increases, and fails to serve the Notice of Rent Increase properly, the notice is void, and the rent increase is void.
A landlord may not worry as the tenant starts to pay the rent increase anyway. The landlord should worry, because at any time during the tenancy, the tenant can do any of the following:
- Bring a T1 application claiming the landlord illegally raised their rent, and they want all of the illegal increase ever paid to the landlord be returned to them. This could be months or even years worth of the illegal rent having to be refunded.
- On any application to the LTB to terminate a tenancy, the board must consider section 83 of the Residential Tenancies Act. Sub-section 83(3) requires the board to refuse an eviction if the landlord is in serious violation of their duties under the RTA. If thousands of dollars of illegally collected rent increase was paid, a licensed paralegal representing a tenant could argue that the landlord is in serious violation of their duties under the act, and therefore could argue to the board, relying on the appropriate case law, that the eviction application must be dismissed.
- There are two arguments a tenant can make on a non-payment of rent application. The tenant’s licensed paralegal, quoting case law, can argue because of the illegal rent increase the amount the landlord claims is owed is incorrect, and as such the landlord’s eviction application must be dismissed.
- Also on a non-payment of rent application section 82 of the RTA allows a tenant to pursue any issue which they could have brought their own application. Put another way, a tenant can bring an application in defence to a non-payment of rent application without paying a filing fee, without preparing an application, and without telling the landlord in advance of the hearing date of the issues they plan to raise.
- On a non-payment of rent application a tenant’s licensed paralegal can argue relying on proper case law, that a due to an illegal rent increase a net amount of rent is outstanding to the tenant. They can ask for an order that the landlord pay them this net rent amount to the tenant. The board can make this order as if a T1 Application had been filed with the LTB.
A landlord can email or send a text message to the tenant of a notice of entry
Myth: At least most of the time.
Sections 26 and 27 of Residential Tenancies Act deal with entry to the rental unit.
Section 26(3) of the RTA states:
A landlord may enter the rental unit without written notice to show the unit to prospective tenants if, (a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other; (b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and (c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so.” If section 26(3) of the act applies, it could be argued, that email or text message notice is sufficient as the landlord is only required to “makes a reasonable effort to inform the tenant of the intention to do so.
Section 27 of the RTA allows a landlord to give a notice of entry if:
27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:
- To carry out a repair or replacement or do work in the rental unit. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
- To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Actor a certificate of practice within the meaning of the Architects Actor another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
- To carry out an inspection of the rental unit, if, the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and it is reasonable to carry out the inspection.
- For any other reasonable reason for entry specified in the tenancy agreement.
(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. “
Under sub-subsections 27(1) or 27(2) of the RTA can a landlord text a tenant with twenty-four hours notice?
No. A landlord is never legally permitted to text a tenant a notice of entry.
Under sub-subsections 27(1) or 27(2) of the Residential Tenancies Act can a landlord email a tenant with twenty-four hours notice?
Sometimes. The LTB Rules were changed in December 2018 so that a landlord can email a notice of entry but only under two circumstances.
If the tenancy was entered into using the new Ontario Standard Lease and the section of the lease that asks whether the tenant will accept certain notices by email was answered with a yes.
The only other legal service by email is by the tenant signing a Landlord and Tenant Board form called“Consent to Service by Email.”
It is important to note that under no circumstances, can a Notice of Termination be served on a tenant by email.