N12 in Ontario or N4/L1 Eviction

[donksky]

My Barrie tenant´s always paid late though he used to be paid up by month end but now he´s backed up that he hasn´t even paid anything for September. 1) If there´s no maintenance issues is there anything else he can "countersue" for (as he´s threatened to do) if I proceed with L1? I already issued him an N4 deadline of sept. 21 for rent owing for Sept. & part of August - & Sept. 21 he paid up $60 remaining from August and says he´ll "try his best to pay Sept. total" next Wednesday. I doubt this as he´s always paid in bi-weekly installments b4 or more and am not even sure if he got a full-time job as he claims - he`s been on UI since December 2009 and then had a temporary job lately.
2) Would it be easier if I just do an N12 - can I use this if I plan to use the place as a weekend home "for a few months" or does it have to be a full move-in??
3) I can`t chase him for monies as I don´t know where he works or even if he works at all.
4) Should I just put the place up for sale for a higher-than-market price to force him out?
5) Is it a bad or a good thing that I`ve issued several N4 in the past - coz the difference this time is he´s rent will be overdue by over a month now unlike before.

 

[invst4profit]

Do not attempt to use the N12. If you can not prove you or a relative intend to live there full time you will not win.
As far as the previous N4s are concerned this is a good thing for your case.
Go ahead with the L1 it is your best option.
At the board you will be asked to mediate, try it if you want but if what you really want is to evict make that point and refuse mediation as it will not help you.
Maintenance issues should be the only thing his duty council will pull out of his sleeve. If your tenant has not made any written requests for repairs then his case may be poor.
I suggest you do a personal inspection with 24 hr notice prior to the hearing to find out if there are any issues, take along a friend as a witness, and at the conclusion of the inspection have your tenant sign off on the inspection. Fix what needs fixing etc prior to the hearing. Bring along all the evidence you have on latest, maintenance etc (and your witness).

In the end the adjudicator will ask you to agree to keeping the tenant and have him make catchup payments on the arrears.
Refuse if you truly want to get rid of this tenant. The adjudicator may force the payment plan on you but if your tenant misses a payment by even $1 in the future you can apply for an immediate eviction.

Be extremely well prepared and take the process very seriously otherwise the tenants duty council will make you look like a fool and you will walk away from the board wondering why you wasted you time. Then you can go home put the place up for sale and let the next owner deal with your dead beat tenant.

The process is heavily slanted in the tenants favour so hope for the best but be prepared for the worst.

 

[housingrental]

Greg has written a good post that I second

 

[ShannonMurree]

I`m not going to tell you what to do but the process/steps of what I do:

* 1st time late - N4 Notice to Terminate immediately the next day. Notice voided if paid in full. If not, the day after termination date is marked I make an application to the Landlord and Tenant Board. If paid in full, no problem but keep this N4 and Certificate of Service in my records for any future mishaps so I`ve created documentation and history

2nd notice - N8 - Notice to terminate tenancy at end of term (mark for persistant lateness). This notice will not be null and void even when payment is paid in full. Most people don`t realize that this notice can still be served if tenants have been late and paid what they owed. The Landlord can immediately apply for an order after the termination date if the tenant hasn`t moved out.

If you don`t want to serve a notice to evict a tenant but want to get an order from the Board for him/her to pay you can apply for an L9 which is an application to collect rent for money owing. HOWEVER, keep in mind that if the tenant still doesn`t pay as agreed that you can not use that Order as an eviction and then have to start with the Notice To Terminate anyway. So start with N4 right from the start to avoid any delay. Ahhh...lovely Ontario Laws.

If you have a year lease in place, then all of the above is irrelevant. You have to serve notice to terminate for the end of the lease term and not the 14 (N4) or 60 (N8) days notice to end tenancy. This is why I do most of my lease agreements on a month-to-month basis. However, I have high filters in place so this fortunately has now been kept to a minimum.

 

[ShannonMurree]

PS....NEVER, EVER, EVER, lie or misrepresent because this will nip you in the butt. Always do your best to work in within the confinements of the Law and Rules given. If you`re not successful then call in the Professional Paralegals that deal specifically in enforcement.

You can also try to make it easier and sweeten the pot with honey and say you`ll let him move out early at the end of the month without paying if he signs the N11. this forms means that you both mutually agree to terminate the tenancy. If he doesn`t move out by that date then you can immediately apply for an Eviction order.

Under the new RTA, at a hearing, the tenant can bring up ANY maintenance deficiency claim. The claim does not have to be valid and the tenant does not have to inform the landlord of their intention the “deficiency” prior to the hearing. (Unlike the landlord who must properly deliver all notices of intention to the tenant prior to the hearing).

When the tenant makes a maintenance claim, the landlord can attempt to defend him/herself at the hearing. If he/she is unable to satisfy the adjudicator of the falseness of the claim, the adjudicator can actually make a monetary ruling in favor of the tenant at that hearing. This can and does happen when landlords are trying to evict for non-payment of rent. If the landlord instead chooses to ask for a new hearing date, so that he/she may properly prepare an argument against the accusations, the tenant continues to live rent-free in the property.

 

[Al Verwey]

QUOTE (ShannonMurree @ Sep 23 2010, 04:11 PM) If you have a year lease in place, then all of the above is irrelevant. You have to serve notice to terminate for the end of the lease term and not the 14 (N4) or 60 (N8) days notice to end tenancy. This is why I do most of my lease agreements on a month-to-month basis.

Shannon,

The N8 does not restrict you to terminating a lease only at the end. Rather, it says that the termination date must be at the end of a term. So if the rent is paid monthly, then you can seek to terminate the lease at the end of the month, at least 60 days from when the notice is served.

Al Verwey
Penta V Holdings
Newmarket, ON

 

[ShannonMurree]

QUOTE (AlVerwey @ Sep 23 2010, 07:40 PM) Shannon,The N8 does not restrict you to terminating a lease only at the end. Rather, it says that the termination date must be at the end of a term. So if the rent is paid monthly, then you can seek to terminate the lease at the end of the month, at least 60 days from when the notice is served.

Al Verwey
Penta V Holdings
Newmarket, ON

Yes, agreed any eviction is a long process and not timely by any means. Yes, under the RTA the tenant can bring up maintenance and make up lies if he/she wanted to unfortunately. So one-sided.

If you have a year lease you an only evict to the end of that fixed term, not 60 days notice. 60 days applies to month-to-month tenancy. I have learned this from personal experience and April Stewart of Landlord Legal.

Under the RTA:

Period of notice, monthly tenancy
(2) A notice under section 47, 58 or 144 to terminate a monthly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a rental period. 2006, c. 17, s. 44 (2).

Period of notice, yearly tenancy
(3) A notice under section 47, 58 or 144 to terminate a yearly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a yearly period on which the tenancy is based. 2006, c. 17, s. 44 (3).

Period of notice, tenancy for fixed term

(4) A notice under section 47, 58 or 144 to terminate a tenancy for a fixed term shall be given at least 60 days before the expiration date specified in the tenancy agreement, to be effective on that expiration date. 2006, c. 17, s. 44 (4).