Archive for September, 2012
Readers may have noticed that many articles posted here are from Moneyville, a Canadian online magazine which covers all sorts of money related issues. I find it excellent and I encourage you to take a look. You won’t be disappointed.
Credit also to real estate lawyer Mark Weisleder whose articles are always so interesting and extremely informative. Thanks, Mark.
That’s it – just want to give credit where it’s due. Robert.
More about landlords and tenants from Mark Weisleder. Robert.
Reproduced from Moneyville
Ontario landlords and tenants may not need a lease since the law is clear and comprehensive
By Mark Weisleder |
Last week’s article about how illegal clauses creep into apartment leases generated a lot of emails about landlord and tenant rights. One of the questions is whether Ontario landlords and tenants need a lease since the law is clear and comprehensive.
It’s a good question. For landlords, it is far more important to properly qualify your tenant. If your tenant subsequently defaults or breaks the lease early, you won’t collect anything anyway. In addition, a landlord has a legal obligation to try and reduce damages by re-renting their unit, so it is unlikely you will be able to sue the tenant for anything more than the months the unit remained empty.
For tenants, unless it is a house or condominium, you should also consider monthly tenancies. In a larger apartment building, it is unlikely a landlord will be able to terminate your lease for family reasons. Therefore, as long as you pay your rent on time and behave yourself, you can stay as long as you want. If you ever want to leave, you will only have to give 60 days’ notice.
It answers the question of one reader this week who is nearing the end of a one year lease. He said the landlord is demanding that he sign a new one. The tenant wants to remain as a monthly tenant.
The law says the landlord can’t force him to sign another document. When the lease is over the tenancy will automatically continue as month-to-month. The landlord can only evict the tenant if he doesn’t pay the rent on time or behaves badly as mentioned, or the landlord wants the unit for his family or any buyer’s family. Another reason is that the landlord has permission to demolish, change the use or substantially renovate the property.
Here’s what else the law says:
- If tenants pay by the month, it is automatically a monthly tenancy;
- The most tenants can be charged before you move in is first and last month’s rent;
- Landlords have to properly maintain the unit;
- If a landlord harasses tenants, takes mail, removes the washing machine or dryer from the building, tenants can apply to reduce the rent;
- A landlord can only evict tenants for the reasons noted above;
- Tenants can bring a pet into the unit, unless a condo declaration says no;
- Tenants can vacate any time by giving the landlord 60 days’ notice.
- Tenants are responsible for any damage caused by themselves or their invited guests;
- Tenants need a landlord’s permission before subletting;
- Tenants can be charged $20 for any NSF cheque plus actual bank charges;
- Landlords can charge a tenant for keys or condo entry cards, as long as they are refunded when the tenant moves out;
Landlords and tenants like the security of a one-year lease, but in many cases it really isn’t necessary. These leases used to be the standard for residential landlords and tenants. The best way to go is to understand your rights before you sign any residential lease and you will benefit in the long term.
Mark Weisleder is a Toronto real estate lawyer. Contact him at firstname.lastname@example.org
Unless you are aware of these costs, they could punch you on the head with a hefty blow. Be prepared. The article here explains everything in great detail.
Mark’s column this week should be of interest to anyone renting an apartment or have sons and daughters who are doing so. Robert.
As the new school year begins, students and landlords are signing leases. There are lots of clauses put into them, but just because something is written into a lease, doesn’t make it legal.
Here are some examples:
First and last month’s rent: The most a landlord can ask from a tenant is the first and last month’s rent. I know of cases where tenants have been asked to pay as much as one year’s rent in advance. Anything more than two months is not legal, so if the landlord asks for that, move in and then go directly to the Landlord and Tenant Board and ask for the return of anything paid extra. The landlord has no right to evict you for doing so.
Security or damage deposits: Many landlords ask for an extra month’s rent to be applied as a deposit against any damages, or for the rental of any furniture that is in the unit. This is also illegal. Last month’s rent can only be applied to the last month’s rent. It cannot be used to correct any damages done by the tenant or their invited guests. Further, you can’t ask a tenant to pay the first $100 of any repair bill.
Rent discounts: You can give tenants a discount for paying the rent on time. This is a good incentive for tenants and assures a landlord that the rent will always be received in a timely manner. You cannot force tenants to give you postdated cheques. You can ask them and if they agree that’s fine.
No pets: Unless you are in a condominium where the declaration says no pets, any tenant is permitted to bring a pet into the unit. It doesn’t matter if the lease says that they can’t. The only way to evict a tenant for having a pet is if the landlord can prove that the pet is bothering other tenants or damaging the unit. Other reasons include the pet is dangerous or if the landlord who lives in the property is allergic to the pet. A tenant was evicted for having a pet snake. A tenant was not evicted with a pit bull terrier, even though other tenants came to the hearing saying they were afraid of it.
No smoking: You can include a no smoking clause in a lease; however, you cannot evict a tenant for smoking, unless you can prove that the smoke is either bothering other tenants or damaging the unit. In one case, a tenant was evicted for smoking because the building had a forced air system and the other tenants complained about the second-hand smoke entering their unit. In another case, the tenant rented a furnished suite with a no smoking clause and the landlord was able to prove that the smoke in fact damaged the furniture and the unit, and was able to evict the tenant on that basis. Smoking pot, on the other hand, is an illegal act which can get you evicted for that reason.
Shovelling snow, cutting the grass: The law says that this is the landlord’s responsibility, so you can’t make this an obligation of the tenant under the lease. However, you can agree in a separate agreement to pay the tenant, for example, $50 a month to do this. So if you do want this to happen, charge the tenant $50 more for rent in the lease and have them sign a separate agreement to shovel and/or cut the grass for the same amount.
No loud music, parties after 9 p.m.: This is a good idea to include in any lease. You will still need to prove that the tenant’s partying is bothering other tenants or other property owners in order to evict for this reason.
Condo rentals: Make sure you attach all of the condominium rules to the lease to make sure that the tenant follows them. In some cases, the tenant’s guests have caused damage to the condo building facilities and the landlord/owner was charged by the condominium corporation for all of the repairs.
Follow the rules when you sign leases in the first place and you will have less aggravation later.
– Mark Weisleder is a Toronto real estate lawyer. Contact him at email@example.com
I had never heard of “promissory estoppel” before I read this article by Mark Weisleder in Moneyville magazine. Really interesting case. Robert.
An Ontario judge has ordered that ownership of a farm and a cottage be transferred to two brothers based on a verbal promise made 25 years ago by their step-grandfather when they were teens.
The implication of the unusual ruling is that you should be careful when making promises about the disposition of property whether the promise is in writing or not. Changing your mind may be harder than you think.
The decision by Judge Wolfram Tausendfreund relates to a family feud over the assets of Gus Sorkos, who was born in Greece and came to Canada as a young man. In 1960, Sorkos met Victoria Cowderoy and they lived in a common-law relationship for 40 years.
The couple were financially successful. They sold several restaurants and bought a number of properties, including a farm in London, Ont. and a cottage in Kincardine. Gus had no biological children, but treated Victoria’s grandsons Paul and Mark Cowderoy, as if they were his own.
Paul started working for Gus in a restaurant when he was 12. The court heard that in 1985, when the brothers were 13 and 17, they had a breakfast meeting with Gus. He promised that if they helped with the farm and the cottage, he would leave them the properties and $350,000 in his will.
They took care of these properties for the next 25 years and also helped Gus with his businesses. Court heard the brothers had spent thousands of hours working without pay.
Victoria died in 2001, Gus remarried and then he died in 2009. At that point, the brothers discovered there were several wills. A 2001 will left the cottage and farm equally to them, along with $500,000 each. A December 2003 will left $250,000 to his second wife, $50,000 to Paul, $25,000 to Mark and the rest to Gus’s five siblings in Greece.
The brothers challenged the 2003 will, arguing they should be given the farm, cottage and $350,000, based on the verbal promise. The legal theory they argued was promissory estoppel. This means that when someone makes a promise and others rely on it and then he profits from their actions, he should not be able to later break his promise.
Mark and Paul faced other legal challenges. The agreement was verbal and the Ontario Statute of Frauds requires agreements to do with real estate to be in writing. Both were also minors when the agreement was made.
Many witnesses testified to the close relationship between the brothers and Gus and to the promises made by Gus over the years. It was also demonstrated that Gus had greatly benefited from the work done by both Mark and Paul.
Justice Tausendfreund decided that Gus had to stand by his promise. Even though the breakfast meeting discussion was not in writing, there was proof that the brothers kept their end of the bargain. The judge stated it would be “unconscionable” for them not to receive the properties. On the other hand, they didn’t get the promised cash. The Judge found that there was not enough proof to support this part of the promise.
Mark Weisleder is a Toronto real estate lawyer. Contact him at firstname.lastname@example.org