Let's clear up some common landlord-tenant issues

Joyce Blond Frank B.A., B.C.L., LL.M.

October, 2009

The incident described by Bonnie Sandler on Page 11 concerns an elderly man who found himself in a stressful situation, was intimidated by his landlord and unaware of his rights. How does the law help him? What tools are available for him?

When landlord-tenant problems cannot be resolved amicably, they are decided by the Rental Board. The board plays a crucial role in the relationship between the landlord and tenant. For example, the board provides form leases that landlords must use. A further document used by long-term care residences that covers services offered by such residences is also provided by the Rental Board, and its use is mandatory as well.

The most frequent problems that arise concern the yearly notices from landlords regarding rent increases and the notices given by tenants when they are obliged to move permanently to long-term care residences or foster homes. It was in this latter situation that Bonnie’s client found himself.

If it becomes necessary to move to a residence, the law permits you to break your lease, but there are conditions. Sometimes the landlord and tenant can come to an agreement as to a specific date by which the lease will end and the tenant will vacate. If there is no agreement, the lease, assuming it is a one-year lease, will end three months after a notice is given to the landlord. If the term of the lease is less than one year or if there is no definite term of lease, the notice is one month. The notice must always be accompanied by an official document attesting that the move is necessary. Having given the notice and still paying rent, the tenant has a right to remain in the apartment for three months. He can move before the delay expires, but it is his right to remain.

The landlord, who is obliged to break the lease, has a right to the three months’ notice and three months’ rent even if the tenant chooses to move before the delay is up.

Bonnie’s client was obliged to move to a seniors’ residence while his lease was still in force. He had given the required three months’ notice and therefore had a right to retain possession of the premises and to leave his things there for the full three months even though he had gone to live elsewhere.

Problems can also occur with the landlord’s notice of modifications to the lease, which may include a rent increase. To modify a one-year lease, the landlord must give the tenant at least three months’ notice and no more than six months. This provision has been held to be of public order. This means that notices given outside these delays are not valid. If no notice is given, the lease will automatically renew for one year with no changes. Two problems can arise here. Firstly, is the delay provided in the notice to be counted from the day the notice is sent or the day it is received? The current law is from the day it is received. Therefore, if you are the landlord, make sure your notice has been received by your tenant.

Second, what if the notice comes outside the delay, but you answer it and agree to a rent increase which is less than that proposed by the landlord? There are two possible answers to this question. One is that the notice was invalid to begin with and the lease was therefore automatically renewed at the same rent and on the same conditions. The other is that your response means you have tacitly accepted the notice as given thereby renouncing your right to three months of notice and agreeing to a certain amount of increase, although not the full amount suggested by the landlord. In either case, if the landlord is unsatisfied with the situation, he will have to go before the Rental Board to resolve it.

Some other things to remember are that the landlord must give you a copy of the lease within ten days of your signing it. He must also give you a written copy of any modifications to the original lease prior to the beginning of any renewal period. If you are renting for the first time, the landlord must advise you of the lowest rent paid for the premises within the preceding 12-month period or of the rent fixed by the Rental Board during that same period. If the rent he has demanded from you is excessive, you have the right to go to the Rental Board to have it reduced. If you are the spouse or relative of the tenant whose name appears on the lease, you can stay on if the tenant moves out, and the lease will be transferred to you – as long as you notify the landlord within two months.

In case of a tenant’s death, the lease can be cancelled by giving the landlord three months’ notice within six months of the death. A person who has been living with the deceased can have the lease transferred to himself by advising the landlord within two months of the death. If that person fails to give notice, the liquidator of the estate or an heir can give one month’s notice after the expiration of the two months in order to cancel the lease.

A final question to be addressed is what happens when the tenant is made to feel intimidated, as in the case of Bonnie’s client. Where fear induces someone to enter into a lease, that lease can be annulled. The law is specific: “Fear induced by an abusive exercise of a right or power or by the threat of such exercise vitiates consent.”

All contracts, including leases, as well as obligations undertaken, require valid consent be given. Where consent is obtained by intimidation it isn’t valid and any act performed as a result can be annulled by a court of law.