You received an eviction notice for ‘illegal activity.’ Now what?

If a landlord believes a tenant is doing something illegal in their rental unit, it’s obvious they can take steps to evict them. The Residential Tenancies Act (RTA) lays out a specific procedure and reasons for such an eviction, but there are also steps renters can take to avoid losing their homes.

In such cases, a landlord has to serve an N6 notice to end the tenancy. They can do so if they believe illegal activity is occurring in the rental unit or residential premises and is being committed by either a tenant, occupant or someone they allowed on the premises.

“There doesn’t need to be a criminal charge or a criminal conviction, although that would certainly help [the landlord’s] case,” explains Karly Wilson, housing team lead at Don Valley Community Legal Services.

“It also has to be serious enough that it either substantially interferes with the reasonable enjoyment of other tenants, or that it affects the character of the premises.”

Reasons for an N6 notice

An N6 can be served for three main reasons:

• Reason 1: The landlord believes the tenant, someone living with them, or someone they permitted on the premises has committed an illegal act or is conducting an illegal business involving the production or trafficking of an illegal drug or is in possession of an illegal drug for the purpose of trafficking.
• Reason 2: The landlord believes the tenant, someone living with them, or someone they permitted on the premises committed some other illegal act or is conducting some other illegal business not described in Reason 1.
• Reason 3: The landlord believes a tenant living in a rent-geared-to-income rental unit has misrepresented their income or the income of family members living there.

The termination date by which time the tenant has to move out depends on the reason chosen on the form.

“The termination date for drugs and trafficking is 10 days after they serve the notice, whereas for anything else it’s 20 days,” explains Wilson.

‘Illegal’ vs. ‘criminal’

Wilson says it’s important to note that “illegal” does not necessarily mean “criminal.”

“Some examples that I’ve seen before have been somebody teaching music lessons out of their apartment. It’s technically a bylaw violation if they aren’t zoned properly or at least the landlord can claim it is.

Another type would be having your dog off-leash on the residential premises. Technically a bylaw violation depending on where you live,” she says.

Another example is teaching online courses from home.

“If it’s a violation of a bylaw, then it could be argued that it is an illegal activity,” she says.

However, she clarifies that simply working from home, as was necessitated for many during the COVID-19 pandemic, is not illegal.

“In my own circumstances, I work from home most of the time. I’m a lawyer — that doesn’t really disturb people. But if all of my clients were coming to my home to see me, or if I was a notary working out of my home and there was increased foot traffic to my house, then it could be considered a bylaw violation.”

Next steps for tenants

Wilson says tenants do not have to move out if served with an N6. As with most Landlord and Tenant Board (LTB) notices, they can choose to stay and await a hearing at the LTB.

“You do not need to move out by the termination date, ever. It’s a landlord’s ‘wish list’ – if you want to argue it, you have the right to,” she says.

However, she adds it is best to seek legal advice, for example from local community legal services, to clearly understand the seriousness of the issues stated in the eviction notice and decide the most appropriate next steps under legal guidance.

Unlike some other LTB notices, an N6 does not come with a grace period to correct the problem and cannot be voided even if the alleged illegal activity is stopped.

Landlords do not have to wait until the termination date has passed to file for an eviction hearing with the LTB and can do so immediately after the notice is served.

Wilson says it’s still worthwhile for tenants to take some proactive mitigating steps.

“I like to say that an eviction notice is like an incredibly blunt instrument to deal with an issue. And so if someone has an issue with your behaviour and they serve you an eviction notice, they’re escalating things. If you can find a way to de-escalate by correcting a behaviour that you didn’t know was wrong or you should have known was wrong, do that,” she says.

“Even though that won’t void the notice, once it goes to a hearing, that significantly improves your chances.”

Even if a hearing is scheduled, there are still avenues through which the tenant can try to resolve the issue, come to an agreement and preserve their tenancy.

“There are opportunities for online negotiations through the Landlord and Tenant Board portal, or you can wait until the hearing and go to mediation – there are a lot of options.”

She adds that if possible and necessary, tenants should try to work with the landlord and find a compromise rather than go to an LTB hearing.

“You can let them know that ‘I don’t intend to leave. I’d like to settle this in mediation if we can in advance of a hearing’ and just open that door,'” she says.

“The tricky thing about going to a hearing is that there’s never a guaranteed result and the landlord has to spend money to file the application [with the LTB]. It’s $186 for them to file it. And so if it was that you were doing something illegal and they file the application, you take it all the way to a hearing, you could be on the hook for that $186. So if you can nip it in the bud, I think that’s a good idea.”