Notice Law - N13 (Notice for Renovation or Repair)
52 A landlord shall compensate a tenant in an amount equal to three months rent or offer the tenant another rental unit acceptable to the tenant if,
- (a) the tenant receives notice of termination of the tenancy for the purposes of demolition or conversion to non-residential use;
- (b) the residential complex in which the rental unit is located contains at least five residential units; and
- (c) in the case of a demolition, it was not ordered to be carried out under the authority of any other Act. 2006, c. 17, s. 52.
53 (1) A tenant who receives notice of termination of a tenancy for the purpose of repairs or renovations may, in accordance with this section, have a right of first refusal to occupy the rental unit as a tenant when the repairs or renovations are completed.
- (2) A tenant who wishes to have a right of first refusal shall give the landlord notice in writing before vacating the rental unit.
- (3) A tenant who exercises a right of first refusal may reoccupy the rental unit at a rent that is no more than what the landlord could have lawfully charged if there had been no interruption in the tenant’s tenancy.
- (4) It is a condition of the tenant’s right of first refusal that the tenant inform the landlord in writing of any change of address.
73 The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 50 unless it is satisfied that,
- (a) the landlord intends in good faith to carry out the activity on which the notice of termination was based; and
- (b) the landlord has,
- (i) obtained all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, or
- (ii) has taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, if it is not possible to obtain the permits or other authority until the rental unit is vacant. 2006, c. 17, s. 73.
Compensation under s. 48.1, 52, 54 or 55
73.1 (1) If the landlord compensated the tenant under section 48.1, 52, 54 or 55, as the case may be, in connection with a notice of termination under section 48 or 50 and the Board refuses to grant an application under section 69 for an order terminating the tenancy and evicting the tenant based on the notice, the Board may order that the tenant pay back the compensation to the landlord. 2017, c. 13, s. 14.
 The landlord also raised the issue of set-off on the request to review. The Board member questioned whether the Board had jurisdiction to make such an order and then concluded that this was an issue for the enforcement stage.
 In my view, this was an error in law and an unreasonable conclusion. The Board was being asked to award compensation to the tenants for amounts that the landlord improperly retained. While the tenants were entitled to $3,000.00 in compensation because of the N13 Notice, the landlord was owed more than $3,000.00 by them at the time of their application. The amount owing for arrears of rent should have been taken into consideration in determining the amount of compensation owing. Had that been done, the Board would have had to conclude that the tenants were owed nothing in compensation at the time of the application because of the set-off.
 This conclusion is in keeping with the purposes of the Act set out in s. 1, which include “to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.” I note that counsel for Marineland acknowledged that should it seek to pursue any remaining amounts owing from the tenants, it would be required to set off the $3,000.00 of compensation that it owed to the tenants.
14. The Tenant testified that there are nine units in the residential complex. She submitted a real estate listing from Express Realty Inc. which describes the complex as waterfront townhomes and vacation homes. The listing indicates that there are nine units for sale. She also said that six of the units were occupied by tenants.
15. The crux of the issue is whether there are at least five residential units in the residential complex to bring the Tenant’s claim within the ambit of section 52 of the Act.
16. I first note that there do not have to be at least five “rental units” covered by the Act in order for section 52 to apply. Section 52 uses the term “residential unit” as opposed to “rental unit”. The term “residential” unit is not defined under the Act. However, that term must include not only rental units that are covered by the Act but also other units not covered by the Act that are occupied for residential purposes, or intended to be occupied for residential purposes.
17. I am satisfied that the residential complex contains at least five residential units, and that pursuant to section 3 of the Act, this Act applies to this tenancy. The Tenant submitted a copy of the real estate listing for the complex. This listing advertises the complex as a vacation home. There are nine units listed. The real estate listing indicates that all nine units are available for sale for residential occupation purposes. The fact that some of the units are currently vacant does not mean that are not residential units
18. The Landlord did not provide sufficient evidence to support a determination that use of some of the units for Airbnb purposes removes those units from the meaning of residential units. Despite the zoning of the complex, the Landlord does not dispute that units were rented for residential occupation and has advertised the complex for sale for the purpose of residential occupation.
19. The nine units in question are contained in related groups of buildings in close proximity to each other, meaning they satisfy the definition of residential complex is as set out in subsection 2(1) (a) of the Act.
20. Therefore, the Tenant is entitled to compensation for termination of the tenancy due to conversion of the rental unit pursuant to section 52 of the Act.
4. I find that the Tenant was entitled to the compensation because all three conditions in section 52 of the Act were met, namely:
- The Tenant received notice to terminate the tenancy for the purpose of demolition.
- The residential complex contains at least five units. The Tenant testified that there are five units in the complex.
- The demolition was not ordered to be carried out under the authority of any Act. Although the N13 Notice references the findings of a fire inspector, Fire Services’ Notice of Violation (issued two months before the N13 Notice was prepared) does not require that any part of the residential complex be demolished including the rental unit.
5. The Tenant moved out of the rental unit on September 3, 2018. The Tenant testified that at the time he moved out he had a zero balance in his rent account. The Tenant paid the rent up to the end of June, 2018. The Landlord “inherited” the Tenant’s two-month rent deposit from the previous owner of the building pursuant to section 18 of the Act, which the Landlord should have applied to the Tenant’s rent for July and August, 2018.
6. The Tenant’s monthly rent was $610.00. Therefore, the Landlord owes the Tenant $1,830.00 in compensation under section 52 of the Act.