The unit you’re renting has been deemed ‘illegal.’ Now what?

If a rental unit in Ontario is found to be “illegal” in some way, tenants could face eviction – but they still have rights and proper procedures must be followed.

What makes a unit “illegal”?

Kevin Laforest from Scarborough Community Legal Services says a unit can be deemed illegal if it fails to meet certain city or fire code standards.

“The two common things that we’ll see is either the fire department has come in to do an inspection and found concerns with respect to the fire code – could be that there aren’t proper egresses in and out of a unit, especially for basement units. It could be that the fire systems are not up to code. Or the city has actually come in and said that part of the unit was built without proper permits and therefore it has to be reverted back to its original state,” he says.

The city or fire department will then issue the landlord an order detailing the infractions and the work required to rectify the issues.

Tenants may not have access to those reports and may have to file a freedom of information (FOI) request or contact the city to get copies.

What happens to tenants if work needs to be done in the “illegal” unit?

Laforest says there is no need to panic if a tenant is informed that their unit is illegal. They are not required to vacate immediately.

“Municipal bylaw does not have the power to evict people. The fire department does not have the power to evict people,” he says.

“A bylaw infraction, a building code infraction or a fire code infraction is not an eviction order. You do not have to move and the landlord is required to follow the process that’s laid out at the Landlord and Tenant Board (LTB).”

That process involves issuing an N13 notice of eviction to perform renovations.

The N13 form details two reasons why the tenant is being asked to move out:

• Demolition of the unit
• Repairs or renovations so extensive that they require a building permit and the rental unit must be vacant to do the work

Laforest says tenants do not need to move out when they receive an N13 notice and can follow LTB procedures and await a hearing if they so choose.

If the LTB issues an eviction order following the hearing, the tenants must move by the date on the order or the Sherriff can enforce the order.

However, tenants have the right to present evidence at the hearing as to why they believe they do not need to move during renovations.

To that end, Laforest advises that tenants carefully scrutinize the details of the work that needs to be done listed on the N13.

“You really have to be doing quite extensive, very invasive renovations to really require people to move. Oftentimes there are workarounds, there are ways that people can be accommodated or adjusted for while this work is going on,” he says.

“I’ve seen instances, for example, of units requiring new plumbing where the landlords were found not to need vacant possession and the tenants could stay.”

Citing a report published by volunteer-run project RenovictionsTO titled Renovictions: Displacement and Resistance in Toronto, Laforest says evicting for renovations, whether required or not, has become an avenue some landlords are using to their advantage.

“We have seen time and time again across the city that landlords will say, I have a city order, I have to do this work only to see units being re-listed for rent at much, much higher rates once those tenants have moved out,” he says.

That would be considered a bad-faith eviction.

“I recall one case from the west end of Toronto where it wasn’t from the city, it was actually the insurance company that came in and said, ‘we can’t insure this building because there was knob and tube (wiring).’ The landlord brought that up [at the LTB hearing] and said, ‘we are very concerned about the wellbeing of our residents. We have to get these people out to do this work,'” Laforest explained.

“When that application failed, they were unable to evict people — probably going on four or five years now, they’ve never done the work. And so I would be highly skeptical of the reasoning that these landlords have at times for saying that they need to do this work.”

If tenants suspect that they are being evicted in bad faith, Laforest says they should “sit tight, talk to their neighbors, talk to people they live with, see if other people are experiencing this and reach out to their community legal clinics to get legal support.”

Should tenants report an “illegal” unit?

If tenants believe the unit they are renting is illegal, they may report it to the relevant authorities but do not have any obligation to do so.

“Tenants are under no responsibility to make those reports themselves,” says Laforest.

He adds that many may choose to ignore or avoid bringing attention to any problems for fear of losing their home, but encourages tenants to use their discretion and prioritize their health and safety.

“I would never, ever tell a tenant that if they feel unsafe not to tell someone. If they have genuine concerns about their safety, about their ability to live in their unit, that something might happen, absolutely please report it to the appropriate authorities, whether that’s municipal licensing and standards or whether that’s the fire department.”