Calling All Landlords, Landowners and Real Estate Investors
We need to change the Landlord and Tenant Board, we need our voices heard by the people who are making decisions about our properties. These people are not landlords or real estate investors nor have they suffered through going to a hearing, nor have they had to pay for repair and damages that “Unhappy tenants” felt it was their right to do, and we can’t collect for damages!!
I’m asking all the landlords, landowners and real estate investors and real estate professionals, lawyers, paralegals, mortgage brokers, insurance brokers and banks to please send out this letter and let our voices be heard!!
The Honourable Peter Milczyn
Minister of Municipal Affairs and Housing
777 Bay St., 17th Floor
I am writing you as a small landlord and member of the 15,000 strong group of landlords, of the Canadian Real Estate Investors Association, and our Sister Associations from across Canada, the USA and the World, who look to each other for assistance in navigating Ontario’s difficult and complicated residential tenancy laws. We are millions in numbers and up until now we haven’t been heard or listened to. We need to change how the Landlord and Tenant Boards conducts business, and we need to have their files made public.
The quasi-judicial agency overseeing rental housing in Ontario, the Landlord and Tenant Board (‘LTB’), is broken. The heavy load at the provincial Board combined with the automatic right of appeal of a Board decision to the courts routinely delays justice. The inconsistency of decisions by adjudicators at the Landlord and Tenant Board is shocking. Most of their mistakes come from the lack of common sense, the overly strict interpretation of the wording of the statute without giving regard to the purpose of the statute or the real substance of the disputes.
The appellate body, the Divisional Court, almost always fixes the problem with common sense decisions but that’s a slow and VERY expensive process that most landlords can’t afford. Glaring drafting errors and oversights have not been fixed through statutory amendment.
More than once the Divisional Court has suggested that the Tribunal and the government get its act together and fix the problems.
Over the last two decades the appellate courts have made a number of decisions modifying the generally accepted interpretation of the law. For instance, a recent appellate decision has confirmed that lease-breaking parties are legal, negating the purpose of lease term as a benefit to the landlord.
A decision in 2007 from the Ontario Court of Appeal, Price v. Turnbull’s Grove Inc., 2007 ONCA 408 (CanLII) struck down a section of the RTA that deemed unlawful rent to be lawful if a year had passed and the tenant had not disputed the lawfulness of the rent. This was a result of inadvertent drafting.
This decision has thrown rent disputes into disarray. Evictions for non-payment can’t happen unless the lawful rent can be determined. Successive governments have had over 10 years to fix the problem and to this point have ignored it despite the occasional updating of the Act.
Serious confusion now exists between the jurisdiction of the Landlord and Tenant Board and the Ontario Small Claims Court with regards to utilities as well as for damage or rent owed after a tenant has moved out. The issue of a landlord’s claims for damages that are legal in nature, not physical damage where something could be repaired or replaced, is also a grey area in terms of the LTB’s jurisdiction.
Now this April, this government has further shifted the balance, discouraging small landlords and driving us out of the business of creating housing, much of it affordable through basement second suites. The Ontario government and non-profit agencies practically beg landlords to rent out units despite the terrible risk landlords take and the unattractive rental environment the government has created.
The 2011 Strong Communities Through Affordable Housing Act, and the recently passed Promoting Affordable Housing Act, 2016 which promote inclusionary zoning are honest efforts to create more accessory suites and affordable housing. But it won’t work and landlords won’t open up their homes until some of the risk is mitigated, the playing field levelled and the confusion eliminated.
The LTB’s Rules of Practice need amendment related to serving notices of entry. Email is not allowed, yet fax is permitted. Currently, a landlord with a home in Burlington and a rental in Oshawa wanting to change a furnace filter on the weekend, would have to drive from Burlington to Oshawa on Thursday or Friday to serve a notice of entry, return home, and then make the trip again on the weekend to change the furnace filter. In a day and age when most faxing is done via email and e-fax, it is ludicrous that the RTA Rules permit service of notices of entry to tenants by fax and not by email. Our tenants generally do not have fax machines, and they all have email.
We urge you to re-consider the elimination of the s.6 exemption on rent increases. Those of us who are investors in condominiums will have no choice but to charge higher rents to mitigate the risk of increasing condominium fees or special assessments which cannot be recovered. Above Guideline Increases can not recover costs incurred through these types of aggregated expenses.
I am asking specifically for eight changes to the Residential Tenancies Act that would assist landlords, restore some balance and create efficiencies:
1. Reconsider the proposed elimination of the s.6 guideline exemption
2. Streamline the LTB process to have matters resolved more quickly, ensuring that rent is paid into the Board by the tenant if disputes are protracted
3. Fix the confusion currently existing between the Small Claims Court and the LTB regarding jurisdiction for utilities and post-occupation claims at Small Claims Court for damage and rent.
4. Amend the RTA provisions regarding “damage” to make it clear that the LTB is the forum for legal, monetary damages, not just physical damage, arising in the rental complex. That will go a long way in resolving the LTB vs Small Claims Court confusion.
5. Allow service of notices of entry (not termination notices) by email if the parties agree in the lease that communication may be by email and if they have provided their respective address in the lease.
6. Lease term has become meaningless. Jurisprudence since the Act came into force has confirmed that lease-breaking parties are legal, negating the purpose of lease term as a benefit to the landlord. This needs fixing. A notice to terminate that can be remedied (rent N4’s for instance) should not end the tenancy thereby ending any statutory or common law obligations related to term.
7. Fix the problem caused by Price v. Turnbull’s Grove. Governments never intended sections 136 and 116(4) of the Act to operate in this conflicting manner.
8. While theoretically tenants with a non-smoking lease can be evicted for smoking, the legislation should be more specific. This is especially important with the impending legalization of marijuana. In addition, Ontario should specifically ban the proposed “4 plant” rule from all rentals.
In summary, I am asking that the government consider fixing, clarifying and modernizing the Act to make it more balanced, instead of just amending with the April 20th amendments which will simply drive more landlords out of the business.
Yours very truly,
cc: Premier Kathleen Wynne
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