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Full-Time Own Use Need: The Requirement of Year-Round Occupancy by the Substitute Occupant
Question: Can a landlord evict a tenant using the N12 process if planning to use the unit intermittently?
Answer: Under the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, a landlord must intend to occupy the rental unit, or have a qualified family member do so, on a full-time basis for at least one year to validly use the N12 eviction process. Part-time or seasonal use does not meet this legal requirement. For assistance navigating your tenancy matters, contact (416) 229-1479 today.
If a Landlord Wants to Take Back a Rental Unit for Personal Use Via the N12 Eviction Process, Can the Landlord Have Plans to Only Use the Unit Intermittently?
A Landlord Wanting to Reclaim a Rental Unit for Personal Use Must Intend to Occupy the Unit Full-Time for at Least One-Year.
Understanding the Full-Time Occupancy Requirement Applicable to the Intentions Within the N12 Own Use Eviction Process
A landlord who seeks to displace a tenured tenant so that the landlord can reclaim the residential rental unit for the own use of the landlord, or certain prescribed family members of the landlord, must hold a good faith intention to occupy the reclaimed rental unit for one-year or more. The requirement of an intended one-year occupancy involves an understanding that the occupancy will be a full-time without an interim use or seasonal use or some other intermittent purpose that involves less than a full-time occupancy intention.
The Law
A landlord may take back or reclaim a rental unit in limited circumstances such as where there landlord requires the rental unit for personal occupancy by the landlord or certain family members of the landlord. This right to take back a rental unit for certain own use purposes is prescribed by the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, wherein it is said:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’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.
(2) The date for termination specified in the notice 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.
(3) A tenant who receives notice of termination under subsection (1) 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.
(4) 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.
(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,
(a) the rental unit is owned in whole or in part by an individual; and
(b) the landlord is an individual.
Requirements
Intended Full-time Occupancy
While the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, lacks explicit detail on this point, case law decisions show that the occupancy by the landlord, or by the close family member of landlord, must be a full-time occupancy. Accordingly, a landlord that wishes to evict a tenant for the purpose of a part-time occupancy, such as for the use of a son or daughter while attending college or university on a less than year-round basis, may find difficulty with an eviction intended for such a purpose. The full-time occupancy intent requirement was at issue in Kohen v. Warner, 2018 ONSC 3865, and was addressed by the Divisional Court, subsequent to a decision of the Landlord Tenant Board, and wherein it was stated:
[9] The Landlord submits that the Member erred in law in determining that he was bound to dismiss the application by virtue of the decision in MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which he said was “binding precedent providing that occasional occupation is not what is intended” by s. 48(1) of the Act.
[10] The Landlord submits that the proposed occupation of the unit by the landlord’s daughter in MacDonald was a temporary 4 month occupation only and that this use was distinguishable from the case at bar, as Sedat would be living in the unit occasionally (on weekends during the school year and during the summer months) for 5 years. Amicus agrees with the Landlord that the Member was not bound by the MacDonald case, which involved temporary occupancy. Amicus submits that Sedat’s indefinite part-time occupancy may well fit within the Landlord’s s. 48(1) rights if that use is regular and structured.
[11] In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act.
Conclusion
A landlord who wishes to reclaim a rental unit for the personal own use of the landlord or certain prescribed family members of the landlord, and seeks to displace an existing tenant via the N12 eviction process, must hold an intent to occupy the reclaimed unit full-time for at least one-year. If a landlord wishes to displace a tenured tenant only for a seasonal purpose, such as where the landlord intends to occupy the reclaimed unit seasonally while living away during winter months, such circumstances may be found as improper use of the N12 eviction process and the attempt to do so may be denied by the Landlord Tenant Board.
