Can a Landlord Evict a Tenant and Take Over the Rental Unit?

When Evicting a Tenant For 'Own Use' a Landlord Is Required to Show Good Faith With a Genuine Intent to Move In or to Move In a Close Family Member For a Period of At Least One Year. The Landlord Must Provide Sixty Days Notice and One Month Worth of Rent As Compensation to the Tenant.

A Helpful Guide to Understanding the Duty of Good Faith Required In An N12 'Own Use' By Landlord or Family Member Eviction

Notice to Evict for Own Use By Landlord or Family Member Document When a landlord seeks to evict a tenant for the 'own use' purposes of the landlord, or certain close family members of the landlord, the landlord must genuinely possess a good faith intent to do so; and to do so for a period of at least one year.  This good faith requirement ensures that a landlord is precluded from using the 'own use' process under false pretences, such as where a landlord may prefer to evict a tenant and lease to a fresh tenant at a higher rent.

The right to terminate the tenancy, when in good faith, for 'own use' purposes is provided within section 48 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 wherein it is said:

48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,

(a) the landlord;

(b) the landlord’s spouse;

(c) a child or parent of the landlord or the landlord’s spouse; or

(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.

(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.

(3) A tenant who receives notice of termination under subsection (1) may, at any time before the date specified in the notice, terminate the tenancy, effective on a specified date earlier than the date set out in the landlord’s notice.

(4) The date for termination specified in the tenant’s notice shall be at least 10 days after the date the tenant’s notice is given.

(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,

(a) the rental unit is owned in whole or in part by an individual; and

(b) the landlord is an individual.

Requirements
Proper Notice

As indicated per section 48 of the Residential Tenancies Act, 2006, the landlord is required to provide at least sixty (60) days notice to the tenant.

Compensation

Additionally, per section 48.1 of the Residential Tenancies Act, 2006, the landlord is also required to provide compensation to the tenant in an amount equivalent to one (1) month of the usual rent.  Specifically, section 48.1 says:

48.1 A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48.

Good Faith

As above, a landlord must have good faith intentions when evicting for 'own use'.  Of course, reading the mind of the landlord so to determine whether intentions are pure is an impossibility and therefore where there is a hearing at the Landlord Tenant Board the challenge for the adjudicator is to gauge whether the good faith requirement is genuine.  Per the case of K.M. (Landlord) v. J.N. and J.R.HOL-0238818 (Re), 2018 CanLII 111837:

13.   The obligation of the Board in considering applications for Landlord’s own use is to consider the circumstances of each case in relation to the criteria laid out by the leading cases of the Divisional Court:

Beljinac v. Salter2001 CanLII 40231 (ON SCDC), [2001] O.J.  No.  2792 (Div. Ct.), (“Salter”) when referring to Justice Steele’s reasons in Feeney v. Noble (1994), 19, O.R.  (3d) (Div. Ct.), stated that:

…the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal.

And in the more recent decision of Fava v. Harrison2014 ONSC 3352 (CanLII) the Divisional Court, in considering this issue in the context of the Act found as follows:

“We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property.  However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.”

As such, the reason why the landlord is seeking to occupy the rental unit is, generally, irrelevant and only the intent to occupy is under consideration; however, as indicated, the 'conduct and motives' of the Landlord may be indicators as to the truth of a stated intent to occupy.

Where certain facts fail to jive or where it is demonstrable that the landlord is untruthful about various things, such dishonourable conduct may be a strong indicator that the stated 'intent to occupy' is similarly disingenuous.

Summary Comment

When a landlord wishes to occupy a rental unit for residential purposes of the landlord, or certain family members of the landlord, the landlord may issue, and serve, a Form N12 - Notice to Evict For Own Use upon the tenant.  The Form N12 must provide at least sixty (60) days notice to vacate the rental unit.  Additionally, the landlord must provide the tenant with compensation equal to one (1) month of rent.  It is prudent that the landlord will provide the compensation when the tenant vacates and provides keys to the landlord.

If the tenant perceives that the eviction lacks good faith, meaning that the landlord is without genuine intentions to take possession of the rental unit for the purpose stated within the N12 Form, then the tenant may refuse to vacate and instead await a hearing of the Landlord Tenant Board.  At the hearing, if the Landlord Tenant Board agrees with the tenant, the tenant may stay in the rental unit.  If the Landlord Tenant Board sides with the landlord, the tenant will be ordered to vacate by a specified date.


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