So, you want to serve an N12?
*This article is intended for those Landlords already own the property and want an N12 for Personal Use*
This simple devious form appears to be an easy Notice to Serve a Tenant, it's only 2 Pages yet, this simple but complex process causes a lot of grief to Landlords, and I mean a lot of grief. I can’t count the number of Hearings I have been to where a Landlord’s N12 has been dismissed for the simplest of issues:
Ø Not a Proper Relative;
Ø In correct Termination Date;
Ø Compensation not provided;
Ø Declaration not filed;
Ø Served in Bad faith.
Ø These are just a few of the reasons why I see N12’s denied.
Firstly, you can’t just choose any relative to move in and expect the N12 to be successful. I don’t know how many Tenant Posts I read that indicate they are being Evicted because the Landlord wants to move in their Great Second Cousin Billy Joe from this magical distant island where unicorns reside, and the Landlord actually expects this to be successful. It won’t be successful, the relative is invalid. In fact, there are only a few select relatives that can be named in a valid N12, and the general rule of thumb is one generation up, and one generation down.
The LTB from their own practice directions state the following:
Who can occupy the rental unit? *1
The N12 notice can indicate that any one of the following persons intends to occupy the rental unit: the landlord; the landlord's spouse; a child or a parent of either the landlord or the landlord's spouse; or a person who provides or will provide care services to the landlord or a family member of the landlord where the person receiving the care services resides or will reside in the building.
The N12 notice cannot include other family members who are not specified in section 48(1), such as a landlord's siblings. See for example: TSL-70431-16 (Re), 2016 CanLII 52813 (ON LTB); NOL-03484-10 (Re), 2011 CanLII 5985 (ON LTB).
There are some exceptions to this, a Caregiver who is going to provide care services to the family can qualify for an N12, and as does a purchasers Parent, Spouse, Child, Spouses Parents, Spouses Child.
In fact, the form makes it very easy to determine who qualifies and who does not qualify for an N12 Eviction. If there isn’t a spot to check off the person intending to reside in the residential unit, that means the person isn’t qualified under the eviction of an N12, and the application will be denied.
Secondly, this form shouldn’t be abused as the consequences on a T5 are enormous, we are talking about an Administrative Fine and compensation to the tenant up to 12 months of rent difference; not including any other Order the Landlord and Tenant Board deems justified in the circumstances.
For the Hellcat Dragon Breathing TarTars of the group demanding an authority to be relied upon here is an excerpt from the Landlord and Tenant Board’s Practice Directions regarding damages on a Bad faith N12 Application:
Remedies the LTB may award
If the tenant proves all three elements of the test set out above, the LTB may order the landlord to pay:
a. a specified sum to the tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit;
b. reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur;
c. an order for abatement of rent;
d. an administrative fine not exceeding the monetary jurisdiction of the Small Claims Court;
e. general compensation not exceeding one year of rent paid by the former tenant for the rental unit. The former tenant does not have to have incurred any actual expenses to request this remedy, or
f. any other order that the LTB considers appropriate, including an order allowing the tenant to move back into the rental unit if it has not already been rented to another tenant.
Furthermore, if a landlord evicts an individual on an N12 and that person does not move in, it is the Landlord’s responsibility to prove exceptional circumstances as the Board deems bad faith as assumed. What this means, is that you must prove the notice was not served in Bad faith. If the Board Member does not accept your arguments, the N12 will be considered Bad faith, and the tenant will succeed on their T5 Application resulting in you potentially paying some serious consequences.
Now that we have the ins and outs of an N12, let’s get into some more serious reasons why this simple form causes so many landlords great headaches:
One of the biggest reasons I see Landlord N12 Applications being dismissed is an Improper Termination Date. The Termination date must be at least 60 days and the end of the rental term. Even if the Tenant is on a month-to-month agreement, they are still in a term-- a month-to-month term. This means the notice must be dated for the last day of the term which ever day that might be. If the Termination Notice is not the last date of the term, I can promise you, your application will be dismissed, and there is no saving it. These Adjudicators at the Landlord and Tenant Board will not hear why you made the mistake, and quite frankly they don’t care, there is just no saving the application as notices cannot be amended. Therefore, if you did not pick the correct termination date, your application is doomed to fail.
Interpretation Guideline 12:
A N12 notice with an incorrect termination date is defective. A defective notice cannot be amended after it has been given to the tenant. The LTB cannot issue an order terminating a tenancy on the basis of a defective notice of termination. See for example: CEL-02248 (Re), 2007 CanLII 75937 (ON LTB); TSL-72954-16 (Re), 2016 CanLII 44293 (ON LTB).
Therefore, if you use a wrong termination date, understand that no matter how much you beg, plead, scream, cry, get upset, or yell and tell the system what BS this is, it isn’t going to change the outcome of your hearing. You will be provided two options. Option #1: Your Application is dismissed by the Adjudicator OR; Option #2: You with draw your application voluntarily.
If your termination date is good, and you’re double sure it is good, you must also compensate the Tenant 1 months’ rent compensation before the Termination Date as listed on the N12 Notice. I see more applications than I can count where a self-represented landlord who wants the unit for their own use attends the hearing, and the Board member asks when compensation is paid, and the Landlord states that it isn’t paid yet. Well, in many cases, the 60 days’ notice is well past, and the Board member denies their application for failure to compensate the tenant. More often than not, the Landlord pleads that they can compensate the tenant right now, but the Board member does not care and simply dismisses the application. You must compensate the tenant 1 months’ rent by money instrument, agreement for a free month, another agreeable compensation method acceptable to the tenant or a suitable unit to the tenant before the end of the Termination Date on the N12 Notice. If the Landlord fails to compensate the Tenant before the date of termination, the application will be dismissed.
Here is what the Board has to say about Compensation:
For N12 notices given to a tenant under section 49 the landlord must compensate
the tenant in an amount equal to one month's rent or offer another rental unit acceptable to the tenant. The obligation to pay the compensation belongs to the landlord who served the notice on the tenant, not the purchaser of the rental unit. The compensation must be paid by the termination date on the N12 notice. The LTB will not issue an order ending the tenancy and evicting the tenant unless the landlord has satisfied this obligation. Under subsection 135(1.1) of the RTA, a landlord is deemed to have retained money in contravention of the RTA, if the landlord fails to pay the tenant the required compensation
Once you have overcome these hurdles, the Board member expects to see a declaration that the property will be used in goodfaith. Currently, your application won’t be filed unless you completed the Affidavit or Declaration. Ensure that you have a Declaration in the file, or you simply won’t get a Hearing Date.
Finally, if the Tenant challenges the N12 Notice be prepared to attend the hearing and make your oral arguments and evidence as to why the Application is in goodfaith and that you require the Residential Purposes for the reasons stated in the N12. It is not enough to attend the Board and say it is in goodfaith, this is your application, and if challenged, you need to prove your application on a Balance of Probabilities which is 51%. The Board has the right to refuse or deny your eviction if they don’t believe your application is in good faith.
The idea that the Tenant can challenge the application comes as a surprise to many novice Landlords, and they cannot understand that the Tenant can simply stay beyond the Notice of Termination. Well, the N12 is just a Notice, and only the Board has the authority to evict a tenant, and that means, if the tenant does not agree with the notice, they can challenge the notice and remain in the Residential Unit until the application is heard and a decision for eviction is made.
The N12 Notice is simply just a notice that needs to be followed up with by a L2 Application if the Tenant remains in the unit beyond the termination date. The Landlord should be prepared with a fulsome correct application, and the necessary legal arguments to prove their application.
I am a Paralegal practicing in the RTA for over 6 years as a Paralegal. I have seen a ton of these applications, and if you’re intending to evict your Tenant on an N12 Application, give me a call and we can go for a your Notice, the Application, and with my Self-Representative Package, you can get Summary Legal Advice, Tutorial Videos, and a legal opinion at an affordable rate, and if you want me to attend your Hearing, I have Full-Representation Legal Services available as well. My theory is that Legal Help shouldn’t cost thousands of dollars, and every landlord should have an opportunity for affordable legal advice even if they don’t hire me to fully represent them at the Board. That is why I have the Self-Represented 1 Hour Personal Consult, Form Packages and Legal Tutorial Videos at an affordable rate for all Landlord Budgets.
If you’re considering an N12 Application for Personal Use, take seriousness in this application, and complete your research before completing any forms. It is always best to get legal representation even on a Summary Legal Basis through a few Consults to fully understand your legal rights and obligations. Don’t take these applications lightly as they have serious consequences and require the rules to be fully followed as some mistakes are critical and fatal to the process and application.
All of the information in this article was sourced from experience, opinion or at: https://tribunalsontario.ca/documents/ltb/Interpretation%20Guidelines/12%20-%20Eviction%20for%20Personal%20Use.html
For Professional Legal Advice for Full-Representation or Summary Legal Advice, please see: https://www.legalenforcement.ca/
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