Eviction of a landlord for personal use happens when the landlord, the landlord’s family members, or caregivers for the family members want to possess the rental complex. The right to evict also applies when the landlord has sold the rental complex, and the purchaser claims the possession.
To exercise the right to evict for personal use, the landlord shall meet the requirements under the Residential and Tenancies Act, 2006 (RTA). In this post, we are going to outline the key factors that will perfect an eviction.
Who is the family member?
Under the RTA, the following family members may claim personal use of the rental complex:
- The landlord,
- The spouse or common-law partner of the landlord,
- The parent of the landlord,
- The child of the landlord, and
- The caregiver for the above family members.
In a case there is a purchaser, the above categories of family members may also claim personal use.
Termination notice and Termination date
The notice of termination must be at least 60 days.
The termination date must be the last day of a rental period if it is a non-fixed-term tenancy. If it is a fixed-term tenancy, the termination date must be the last day of the entire term.
If the termination date is not correct, the notice of termination is defective. Furthermore, if the defective notice has been served to the tenant, the notice cannot be amended. Therefore, the landlord must give the tenant a new notice with the correct termination date.
The tenant, on the other hand, may terminate the tenancy early by giving a 10-day written notice to the landlord.
In all of the other cases, the tenant may not vacate the rental complex, and the landlord shall apply to the LTB for eviction. The RTA allows the landlord to file an application anytime after giving the termination notice but within 30 days after the termination date.
If the landlord needs to file an application with the LTB for eviction, the application shall include an affidavit sworn by the family member who claims the personal use of the rental complex for at least one year.
It is important to note that swearing untruthful affidavits is a criminal offence under the Criminal Code.
Personal use means the landlord or recognized family members residentially occupy the rental complex for at least one year consecutively. The following situations will not considered personal use:
- Occasional or infrequent residential use,
- Use as a business office,
- Leaving the rental complex empty,
It is important to note that some LTB and Court decisions have broadly interpreted “residential occupation.” Therefore, this becomes circumstantial when personal use is an issue.
If the caregivers claim the possession of the rental complex, the family members who receive the care must also live in the same premises consecutively for at least one year.
Notice of termination in Good faith
The landlord must be in good faith when giving the notice of termination for personal use. The burden of proof for good faith lays on the landlord, on a balance of probabilities. The case law¹ has provided that the motives of the landlord for claiming personal use are not relevant, and the only issue for the decision-maker to decide is the landlord’s genuine intention. Therefore, the LTB determines good faith by examining whether the landlord has a genuine intention to occupy the rental complex.
If it is the purchaser’s claim for personal use, the good faith requirement also applies to the purchaser.
As of September 1, 2017, the landlord who gives the notice of termination for personal use shall either give the tenant one month rent as compensation or offer the tenant another rental complex. The deadline for the landlord to fulfill this obligation is the termination date on the notice. If the landlord does not compensate the tenant or offer another rental complex, the LTB will not terminate the tenancy and order eviction.
The landlord’s obligation to compensate does not apply if the landlord exercises the right to evict for personal use on behalf of the purchaser.
Agreement of purchase and sale, if the purchaser claims personal use
This requirement only applies when the purchaser claims personal use.
Before the notice is given, the landlord and purchaser must have already entered into an agreement of purchase and sale. In other words, potential buyers do not have a right to claim the rental complex for personal use. Furthermore, if the agreement of purchase and sale does not specify the closing date, the landlord may not be able to evict the tenant for personal use on behalf of the purchaser.
- Fava v. Harrison, 2014 ONSC 3352