You’re behind on rent and your landlord wants you out. Now what?
Posted September 25, 2023 10:42 pm.
Last Updated October 19, 2023 1:49 pm.
As per Ontario’s Residential Tenancies Act (RTA), if a tenant doesn’t pay rent, it follows that a landlord has the right to evict them.
But there are steps a tenant can take to avoid losing their home and the Landlord and Tenant Board (LTB) can exercise its discretion when considering the case.
Monica Moran-Venegas, staff lawyer at Kensington Bellwoods Community Legal Services, says the first step is to keep communications lines with the landlord open and work at setting up a payment plan if possible.
“Make a realistic payment plan, something that you can actually complete. If your income is $2,000 a month and your rent is $1200 — no, you can’t afford to pay an extra $500 over the next two months,” she says.
“You have to eat, you [may] have kids — whatever it is. And longer payment plans with smaller payments are way better than just feeling like, ‘oh, I’m going to get this done really quickly.'”
Moran-Venegas says even if the landlord does not agree to a payment plan, it is in the tenant’s best interest to try and make instalment payments regardless.
“Anything you can do to create a paper trail for yourself is just going to help you in the long term,” she says.
What happens when the landlord wants to evict
If the landlord wants to evict the tenant for non-payment of rent, they first have to issue an N4 eviction notice.
Tenants and landlords should keep the following in mind regarding N4s:
- It must be issued at minimum after the day the rent is due — a tenant has until midnight on the due date to pay rent.
- The notice must have the correct termination date — 14 days notice if rent is paid monthly or yearly and seven days notice if paid daily or weekly.
- If there is more than one tenant on the lease, each one should be named on the notice.
- The notice should be signed and dated — if not, it could be invalid.
“The first thing I recommend is actually reading [the notice] in full. It looks very scary, so make sure that you absorb all the information given,” says Moran-Venegas.
“You’ll see in the notice itself that it does contain a provision that if you pay up all the arrears within 14 days, then basically the notice goes away.”
If the tenant cannot pay by the end of the 14-day period, the landlord can then apply to the Landlord and Tenant Board for an eviction and a hearing will be scheduled.
Moran-Venegas says it’s best to get advice from community legal services when preparing for a hearing.
“You do have rights at the hearing to speak, to be heard, to explain your situation, explain what happened, discuss what led to the arrears and what steps you have taken from that day to today. Have you made any effort to make payments since then?”
This is where an existing paper trail of attempts to pay in instalments is beneficial and can play in favour of the tenant.
“That way when you get to the board, you can show, ‘look, I was making efforts, I was trying at least,'” she says.
At the hearing, the LTB member will make a decision on whether to grant the eviction. A section of the RTA says they must do so while “having regard to all circumstances” — this allows them to use their discretion based on the individual situation.
“It was very common for people to have lost their job during COVID. Have you since gotten a job back? Is the tenancy sustainable? Is this a freak thing that happened or was it an illness? [You might say] ‘since then I am out of hospital, I just need time,'” she says, explaining the various circumstances a board member might consider.
Other variables that could be looked at include whether the tenant has a disability or the likelihood of finding another suitable rental.
“What is the likelihood that if the LTB member orders your eviction, you will immediately be homeless? It’s very typical, especially for our low income tenants, that the difference between a long-term repayment plan and homelessness is a decision by the member,” says Moran-Venegas.
If the eviction is denied, the tenant will still owe back rent and the LTB might order the tenant to repay the landlord within a stipulated time frame.
If the tenant moves out by the termination date, the tenancy will end, however the money is still owed and the landlord can take the tenant to small claims court to recover it.
What happens if the LTB grants the eviction
If the LTB grants the landlord an eviction for non-payment of rent, the board will issue what’s called a “standard order.”
At this point, there’s still a small window of time for the tenant to take some steps to avoid eviction.
“A standard order provides that you have up to 10 days tp to pay up all the arrears owing,” says Moran-Venegas.
This includes amounts like owed rent and the fees the landlord paid to file for eviction.
If the tenant is able to pay the entire amount within 10 days, the eviction order is not automatically void as in the case of the N4 notice. The tenant has to file what’s called a “tenant’s motion to set aside” with the LTB.
“In these cases specifically, it’s important to get the paperwork in. Do not just pay the money and think that everything’s fine,” says Moran-Venegas.
“Make sure that when you do pay, ideally you get proof of payment and contact your community legal clinic. We can help you with filing these set-aside motions.”
If the tenant cannot pay by the 10-day deadline, the landlord then files an application with the court enforcement office.
“It’s actually the sheriff that does the evicting. So the landlord doesn’t, and neither does the Landlord and Tenant Board. The police aren’t involved either. It’s strictly the court enforcement officer,” she says.
The sheriff will send notice by mail informing the tenant of when they will be coming to carry out the eviction.
“The absolute worst case scenario, they come on that day and you haven’t moved — they’re not a moving company. Their job is strictly to make sure that you’re physically out of the unit, you’ve turned over your keys.”
Thereafter, the landlord must provide the tenant with reasonable access to the unit for another 72 hours to collect any remaining belongings. After those 72 hours, the eviction is considered complete.
Suspending rent payments
Apart from strained and extreme circumstances which may make it impossible to pay rent, Moran-Venegas says tenants should not and cannot deliberately withhold rent for any reason.
“This can be a confusing situation for people because they think like, ‘well, if my unit is flooded and I can’t use it, what am I paying for?’ So there are a lot of situations in which it seems culturally confusing that you would pay rent for a unit you can’t use,” she says.
As per the RTA, lack of repairs or inability to use the unit as intended is not reason enough to stop paying rent. There’s only one scenario that allows a tenant to temporarily suspend payments.
“If you know you have an agreement, you’ve moved in and the landlord still hasn’t provided you with a signed copy [of the lease], you have to request it in writing — email or text message, WhatsApp, whatever you’re using,” says Moran-Venegas.
“Then 21 days after you’ve made that request, if the landlord still hasn’t provided you with the signed copy of the rental agreement, your obligation to pay rent has been suspended.”
That suspension doesn’t mean the tenant no longer owes the rent. Once a signed copy of the lease is provided, the landlord can request back-rent, so she advises that it is best to have it set aside.