Evicting a Tenant from Newly Purchased Property

Posted on: Monday, March 20th, 2017

What to do when the property you are purchasing has a tenant?

If your purchaser wants to move in, the landlord can provide notice to the tenant if the purchaser legitimately intends to use the property as his or her own residence, or for the use of their spouse, same-sex partner, child, parent, or in-law. The applicable legislation that outlines the processes to be followed and the requirements for eviction in Ontario is the Residential Tenancies Act, 2006, S.O. 2006, c.17 (“RTA”).

What is the eviction process and how long does it take to get an order to evict a tenant?

In order to evict a tenant the landlord must follow a process that is set out in the RTA. First, the landlord must provide the tenant with a written ‘notice to vacate’ which outlines the grounds for termination and sufficient details of the situation. This is addressed in section 44 of the RTA which outlines that 60 days written notice is required. It is important to note that the landlord cannot force a tenant to leave until the end of the tenancy agreement. If the lease agreement is for a fixed term (for example one year), then legally the tenant is not required to leave until the termination of the lease. If the lease is not for a fixed term (for example month-to-month), the tenant must still be provided with the 60 day notification period.

If the landlord wishes to accelerate the process and the tenant is agreeable, the landlord can obtain and submit an Agreement to Terminate Tenancy, referred to as Form N11. This form allows the landlord to specify a date that is earlier than the 60 day notice period that is typically required, and can be enforced if both parties sign and agree to the terms outlined in the agreement.

If the notice to vacate expires and the tenant has not vacated the premises, the landlord could then submit an application to the Landlord and Tenancy Board (the “Board”) in order to schedule a hearing for an eviction order.

If a landlord is concerned that the tenant will not vacate on the notice deadline, they can pay a fee of $190.00 (or $175.00 if filed electronically) to pre-file a request for a hearing to obtain an eviction order so that they do not have to wait until after the deadline has passed. For more information on filing and fees click here.

Once an eviction order is issued by the Board the tenant is required to vacate the premises, as the Board’s order is a legally binding decision. If the tenant fails to leave by the date set out in the eviction order then the landlord can take the matter one step further and file the eviction order at the Court Enforcement Office.

What happens when the eviction order is filed at the Court Enforcement Office?

The landlord must present a certified order issued by the Landlord and Tenant Board to the Enforcement Office, and must also fill out an eviction information request sheet, which is provided by the Enforcement Office. At the Court Enforcement Office, the landlord will be required to pay a fee of $315.00 for the Sheriff to force the removal of the tenant from the property.

The Sheriff will provide the tenant with a notice that instructs the tenant to leave the rental property on or before a specified date and time. If the tenant indicates that they will not vacate the premises by the date listed on the notice provided by the Sheriff, the landlord should contact the Sheriff in order obtain their assistance for the eviction. The landlord will be informed of the date and time the Sheriff will attend at the rental property to enforce the eviction order. The landlord will be required to pay a mileage fee to the Sheriff at 58 cents/km.

Once the Sheriff enforces the order and the tenant is evicted from the rental property then the landlord has full possession of the rental property and should take the necessary steps to change the locks. The landlord is required to wait an additional 72 hours following the eviction before they can attempt to sell, retain, or dispose of any of the evicted tenant’s personal property.

The Enforcement Office of the Superior Court of Justice is located in Barrie at 75 Mulcaster Street, 3rd floor. The phone number is (705) 739-6111. There is also an online directory for court services and various Enforcement Office locations across Ontario which can be accessed by clicking here.

Case Study:

A recent case, Renee v. Simonetti out of the Ontario Superior Court of Justice (the “Court”), involved a tenant who had been living in a property which was sold by her landlord on December 3, 2015. In preparation for closing, the landlord submitted an application to the Board for an order terminating the tenancy due to the upcoming sale and the fact that the purchaser required possession of the tenant’s apartment for personal use.

On September 28, 2015 the Board made the termination order which required the tenant to vacate the property by October 9, 2015. It was further held that if she failed to leave the property by that date, she would be required to pay a daily rate of $49.32 for staying in the unit. As you may expect, the tenant did not leave the property by the October deadline and no daily compensation was provided. As such, by the date of the most recent hearing in relation to this matter (February 9, 2017) the tenant had lived rent free for over 15 months.

What had happened in the interim was that the tenant requested a review of the termination order, which was subsequently confirmed by the Board on December 17, 2015. Once this decision was made, the tenant was able to appeal the decision based on section 210 of the RTA. As soon as a tenant appeals under this section, the eviction order is stayed which thus allowed the tenant to live-rent free until the appeal was heard.

When hearing the initial appeal, the Court had to consider whether the tenant’s motion for extending the appeal “for perfection” should be granted. This was based on the tenant’s claim that in order to perfect the appeal, transcripts from all or part of the proceedings before the Board were required. The tenant provided the Court with a letter from an Official Examiner stating that they had been “minimally retained by [the tenant] to produce the transcript” but that the request was not able to be fulfilled until funds were received. In considering this letter, the Court determined that it was not sufficient proof that the transcripts had been ordered meaning the tenant had not produced enough evidence to extend the appeal. As such, the appeal was quashed as it had not been perfected and costs in the amount of $2,500 were awarded to the plaintiff.

On February 9, 2017 the Court heard a further motion from the tenant for an order staying the decision to quash the appeal. The Court dismissed this motion. In its decision, the Court stated that “the balance of convenience tilts significantly in favour of the landlord, who requires the premises for her own purposes, and who has been denied that right for more than fifteen months, at the instance of a tenant who is not paying rent.” As such, the Court was not prepared to grant any further extensions because the tenant had failed to indicate why an extension was needed or why one should in fact be granted in light of the history of the matter.

The Court dismissed the motion and awarded further costs in the amount of $1,000. Due to the dismissal, the initial order to terminate the tenancy would be reinstated and the tenant would finally be required to vacate the premises.

In one of our recent newsletters we wrote about a similar situation in which the tenant was able to live rent-free for 18 months, arguably by exploiting loopholes in the system. Thus, it appears that tenants continue to abuse the system which may present difficulties for landlords seeking eviction. The article from this newsletter can be accessed by clicking here.

The content of this Blog is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

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