Rental Unit - Re: Subject to Condo Declaration

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-08-11
CLNP Page ID: 1823
Page Categories: [Personal Use Application (LTB)]
Citation: Rental Unit - Re: Subject to Condo Declaration, CLNP 1823, retrieved on 2022-08-11
Editor: Sharvey
Last Updated: 2021/12/06



Residential Tenancies Act, 2006, S.O. 2006, c. 17

51 (1) If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description. 2006, c. 17, s. 51 (1).

(2) If a landlord has entered into an agreement of purchase and sale of a rental unit that is a proposed unit under the Condominium Act, 1998 or a predecessor of that Act, a landlord may not give a notice under section 48 or 49 to the tenant of the rental unit who was the tenant on the date the agreement of purchase and sale was entered into. 2006, c. 17, s. 51 (2).
(3) Subsections (1) and (2) do not apply with respect to a residential complex if no rental unit in the complex was rented before July 10, 1986 and all or part of the complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act before the day that is two years after the day on which the first rental unit in the complex was first rented. 2006, c. 17, s. 51 (3).
(4) Despite subsection 95 (8), a reference to a tenant in subsection (1), (2) or (5) does not include a person to whom the tenant subsequently assigns the rental unit. 2006, c. 17, s. 51 (4).
(5) If a landlord receives an acceptable offer to purchase a condominium unit converted from rented residential premises and still occupied by a tenant who was a tenant on the date of the registration referred to in subsection (1) or an acceptable offer to purchase a rental unit intended to be converted to a condominium unit, the tenant has a right of first refusal to purchase the unit at the price and subject to the terms and conditions in the offer. 2006, c. 17, s. 51 (5).
(6) The landlord shall give the tenant at least 72 hours notice of the offer to purchase the unit before accepting the offer. 2006, c. 17, s. 51 (6).
(7) Subsection (5) does not apply when,
(a) the offer to purchase is an offer to purchase more than one unit; or
(b) the unit has been previously purchased since that registration, but not together with any other units. 2006, c. 17, s. 51 (7).


[1]

CEL-76563-18-RV (Re), 2018 CanLII 88412 (ON LTB)[2]

5. The reasons for the dismissal of the application are set out in the order and are due to subsection 51(1) of the Act. The order reveals a reasonable basis for the determinations made by the Member and the dismissal. Reasonable determinations will not be interfered with on review.

6. As set out in the order, the Landlord was not aware that this tenancy was subject to the restriction of subsection 51(1) of the Act when she purchased the property. Yet, as set out in the order, the Tenants posted notice of this fact in the unit while it was for sale but the Landlord never viewed the unit prior to purchasing it. The Landlord’s lack of awareness of the restriction in subsection 51(1) of the Act does not amount to a serious error in the order or the Board’s process.

7. The Landlord does not identify a serious error in the order or the Board’s process in her review request. Her concerns relate more to the very existence of subsection 51(1) of the Act and her frustration with the fact that the building was converted to a condominium from a rented residential premise years ago means that she cannot serve a notice of termination for the Landlord’s own use of the unit. Her plans for the unit when she bought the property have been frustrated by subsection 51(1) of the Act.

8. The Board applies the law, which is the Act, to the facts in each case. The Landlord’s frustration is understandable. However, the Board cannot overlook the section of the Act that the Landlord is unhappy with. The Board also cannot change or re-write the Act. Only the government has that authority.


[2]

CEL-76563-18 (Re), 2018 CanLII 88413 (ON LTB)[3]

1. The N12 notice of termination at the root of this application was served on the Tenants pursuant to section 48 of the Residential Tenancies Act, 2006 (the ‘Act’). The Tenants submit and rely on subsection 51(1) of the Residential Tenancies Act, 2006 (the ‘Act’) which states:

If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description.

2. It was uncontested that the Tenants’ tenancy commenced on September 1, 2003. According to the Tenants, the rental unit was converted to a condominium in July 2004. It was uncontested that a conversion to condominiums took place at this residential complex. Therefore, the Tenants submit that the Landlord was not entitled to serve a notice under section 48 of the Act.

3. The Landlord is the recent purchaser of the rental unit. She purchased the unit with the intention at some point for her son to move into the unit. The Landlord submitted that she was not aware that the Tenants she inherited with this unit were subject to subsection 51(1) of the Act. She was simply told they were month-to-month Tenants.

4. The Tenants submitted that they were aware that the unit was for sale and posted notice in the unit regarding their tenancy and subsection 51(1) of the Act. There was no dispute that the Landlord never viewed the unit.

5. Given that there was no dispute the Tenants were occupying the rental unit when the conversation to a condominium took place back in 2004, I am satisfied that in accordance with subsection 51(1) of the Act, the Landlord was not entitled to serve a notice of termination pursuant to section 48 of the Act. Consequently, the application is dismissed.

6. The Tenants’ Legal Representative’s request for costs is denied. Costs are only awarded in cases unreasonable conduct in the proceeding. Despite the Tenants’ Legal Representative advising the Landlord after his clients’ receipt of the N12 notice regarding their submission under subsection 51(1) of the Act. I find that it was not unreasonable for the Landlord to file this application with the Board and request a determination.


[3]

SWL-01548-17 (Re), 2017 CanLII 48417 (ON LTB)[4]

5. The Tenant is a person who was a tenant of a rental unit when it became subject to the registered declaration and description. The Tenant had moved into the rental unit prior to the conversion of the rental unit into a condominium unit in 2001. Thus the tenancy falls within the scope of section 51(1) of the Act. Therefore the Landlord cannot serve the Tenant with a notice of termination under sections 48 or 49 of the Act for the Landlord’s own use or Purchaser’s own use.

6. However the exemption to section 51(1)of the Act must also be considered. That section provides that if no rental unit was rented before July 10, 1986 then section 51(1) does not apply. In this case the rental unit was rented prior to July 10, 1986 because the Tenant testified that the property was a rental housing complex when she was a child going to school 40 years ago. Without any evidence to the contrary I find that section 51(1) applies and the Landlord is not entitled to seve the Tenant with a N12 Notice to terminate the tenancy for purchaser’s own use and the application must be dismissed.

[4]

References

  1. Residential Tenancies Act, 2006, S.O. 2006, c. 17, <https://www.ontario.ca/laws/statute/06r17#BK72>, retrieved 2021-12-05
  2. 2.0 2.1 CEL-76563-18-RV (Re), 2018 CanLII 88412 (ON LTB), <https://canlii.ca/t/hv7fw>, retrieved on 2021-12-05
  3. 3.0 3.1 CEL-76563-18 (Re), 2018 CanLII 88413 (ON LTB), <https://canlii.ca/t/hv7fx>, retrieved on 2021-12-06
  4. 4.0 4.1 SWL-01548-17 (Re), 2017 CanLII 48417 (ON LTB), <https://canlii.ca/t/h5332>, retrieved on 2021-12-05