What does the new RTA mean for Tenants

November 20, 2006ONPHA Educational ProgramGrace Vaccarelli and Kristina BrousalisAdvocacy Centre for Tenants Ontario

Residential Tenancies Act:

RTA removes the default process: hearing scheduled and held for (almost) all matters

Where a tenant ‘not reasonably able to participate in the proceeding’ matter may still be reviewed [s.209(2)]

Tenant Rights Security of tenure Unit in good state of repair and fit for

habitation Quiet enjoyment Free from harassment Rent only subject to certain increases while

living in unit Any tenant may file an application with

the Board if any of the above rights have been violated within ONE YEAR of the problem occurring.

Tenant Obligations pay rent on or before the 1st of the

month maintain ordinary cleanliness of unit not interfere with other tenants or the

landlord not commit illegal acts or run illegal

businesses on the premises

Eviction Eviction only for reasons set out in

the RTA Must follow procedure in RTA Only Sheriff can physically evict a

tenant – landlord cannot change locks 72 hours to remove belongings after a

legal eviction – new!

Reasons for Eviction Mid tenancy

arrears of rent – can result from failure to report change in income or other SHRA related reasons

substantial interference **changes from TPA

impairing safety damage ** changes from TPA

illegal act misrepresentation of income overcrowding

Reasons for Eviction (con’d) End of tenancy

persistent late payment of rent landlord’s own use (“approved” family member OR

[new] caregiver)

purchaser’s own use demolition & conversion

Forms for Eviction First Notice

Will be required for most grounds for termination of tenancy

Current form numbers may change Application

Current form numbers may change Board to send information about

upcoming hearing to defending party

Eviction: Step 1 Landlord must give Notice of

Termination (in most circumstances) Notice of Termination sets out a

« termination date » Tenant does NOT have to leave by the

termination date in the Notice of Termination

Eviction: Step 2a (voidable notices) Tenant can « void » or cancel the

Notice of Termination by: Paying all arrears owing under the notice

within 14 days Stopping behaviour outlined in the

Notice **with new exceptions – see next slide

Fixing damage or paying for it to be fixed within 7 days **with new exceptions – see next slide

* some notices CANNOT be cancelled…

Eviction: Step 2b (non-voidable, fast track eviction notices) Tenant does not have the option to

void or cancel certain notices: Illegal act Substantial interference where owner

lives in complex and where complex has 3 or less units (new)

Wilful and Undue Damage or use of the unit in a way which might lead to extreme damage (new, example: grow ops)

Eviction – Step 2b – fast track evictions

In the case of: Willfully caused damage Using the residential unit in a manner

inconsistent with residential use that could reasonably be expected to cause damage

Impaired safety

The Board has the jurisdiction to order a tenantevicted even before the termination date in thenotice

Eviction: Step 3 Landlord may apply at the Landlord and

Tenant Board for an eviction hearing Landlord must give Notice of Hearing to the

tenant The most important change under the

RTA is that now EVERY tenant will have a hearing. A problem with the RTA is that it does not provide for a set aside motion.

Eviction: Step 4 – Agreement to Settle Matter

If parties can agreed to a payment plan for arrears owing, they can file their settlement with the Landlord and Tenant Board who may issue a consent order based on that agreement

Consent order can only include payment of arrears, NSF charges, rent and fees

Consent order cannot include a termination of the tenancy

Eviction: Step 5 - The Hearing Day (1 of 2)

A. Mediation Tenant may ask for mediation on the

hearing day If landlord agrees, there will be a

mediation. Tenant can try to work out a payment plan

or other solutions with landlord in mediation

Mediated agreement can include a termination of the tenancy

Eviction: Step 5 - The Hearing Day (2 of 2)

B. The HearingProve rent already paid

Receipts, bank records, cheques Pay all rent owing and application fee (unknown at

present) before hearing day; OR Prove tenant did not do what landlord claims

witnesses, documents, photographs Ask for relief against eviction – the Board can order a

payment plan or make any other condition in an order if not unfair in the circumstances

Eviction: Step 5 - The Hearing Day,Adjudicator’s considerations

The Board is now required to review all the circumstances and consider whether or not to grant the eviction

Unlike under the TPA, the Board may now hear set-off arguments from tenants about their own issues at an eviction hearing.

Eviction – Step 5 – Determining arrears at the hearing

Under the RTA the Landlord and Tenant Board shall not make determinations or review decisions concerning eligibility for rent-geared-to-income or the amount of geared-to-income rent payable

There is still no independent review of a subsidy revocation

Eviction: Step 6 – After the Hearing (1 of 2)

If tenant is unhappy with a decision made by the Board, tenant has 30 days to: REVIEW: ask Board to review the

decision internally Serious error in law or in MATERIAL fact

APPEAL: go to a higher court Error in law only*** Tenant should get legal advice first

Eviction: Step 6 – After the Hearing (2 of 2)

Tenant may void an eviction order for arrears by paying the amount ordered before the termination date in the order.

Where tenant has been ordered to pay arrears, tenant may avoid eviction by paying all monies owed plus costs to the landlord any time before the Sheriff attends.

This provision can only be used once in any tenancy.

Eviction - Step 7 – After Enforcement of Eviction

RTA extends time to reclaim possessions to 72 hours from time eviction order enforced

Landlord must provide tenant access between 8:00 a.m. and 8:00 p.m.

RTA gives Board express jurisdiction to hear tenant application’s respecting landlord’s failure to provide access

Reality for Tenants Facing Eviction for Non-Payment at the Board There is no limitation in the RTA as to

when landlord can apply for arrears If tenant does owe money, tenant

must be able to repay, often within 7 to 11 days of the hearing

Tenant Applications harassment, illegal lock-out, denial of

vital services, interference with reasonable enjoyment (currently T2 form – may change)

repair & maintenance (currently T6 form – may change)

rebate of illegal rent or deposits already paid (currently T1 form – may change

Limitation Dates Tenant must apply within 1 year of

incident There are some exceptions

Evidence on Tenant Application Evidence

Expert reports witnesses photographs documents & letters

Tenant must prove allegations See T2 & T6 Tip Sheets (for now) Check www.acto.ca for updated tip

sheets

The Top 5 Problems with the RTA

Lack of set aside provision Tenant is now responsible for the

repair of “undue damage” Lack of protection for family members

who are not named in the agreement The Board will not take jurisdiction

over calculation of rent subsidies Apportionment of utility costs

Helpful Websites www.acto.ca for tenant tip sheets www.cleo.ca for pamphlets on tenant

rights and responsibilities and other issues

Common Tenant Myths I can’t get evicted in winter. I can hold back rent if the landlord doesn’t

make repairs. If I signed a lease that says I accept the

place « as is », the landlord does not have to do work in my unit.

I am not allowed to have guests, children or pets in my unit.

The landlord can charge me extra if I have guests