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Full-Time Own Use Need: The Requirement of Year-Round Occupancy by the Substitute Occupant
Question: Does a landlord need to occupy a rental unit full-time for at least one year to reclaim it for personal use under the N12 eviction process?
Answer: Yes, a landlord must demonstrate a good faith intention to occupy the unit full-time for a minimum of one year, as temporary or part-time occupancy does not meet the requirements set out in Residential Tenancies Act, 2006, [S.O. 2006, Chapter 17] and clarified in case law.
Does the Intention of a One-Year Occupancy When Seeking to Displace a Tenured Tenant Via the N12 Process Require a Full-Time Occupant?
A Landlord Seeking to Reclaim a Rental Unit for Personal Use Purposes Must Hold An Intention to Occupy the Unit Full-Time for at Least One-Year.
Understanding the Full-Time Occupancy Requirement Applicable to the Intentions Within the N12 Own Use Eviction Process
A landlord who seeks to displace a tenured tenant so that the landlord can reclaim the residential rental unit for the own use of the landlord, or certain prescribed family members of the landlord, must hold a good faith intention to occupy the reclaimed rental unit for one-year or more. The requirement of an intended one-year occupancy involves an understanding that the occupancy will be a full-time without an interim use or seasonal use or some other intermittent purpose that involves less than a full-time occupancy intention.
The Law
A landlord may take back or reclaim a rental unit in limited circumstances such as where there landlord requires the rental unit for personal occupancy by the landlord or certain family members of the landlord. This right to take back a rental unit for certain own use purposes is prescribed by the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, wherein it is said:
48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.
(3) A tenant who receives notice of termination under subsection (1) may, at any time before the date specified in the notice, terminate the tenancy, effective on a specified date earlier than the date set out in the landlord’s notice.
(4) The date for termination specified in the tenant’s notice shall be at least 10 days after the date the tenant’s notice is given.
(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,
(a) the rental unit is owned in whole or in part by an individual; and
(b) the landlord is an individual.
Requirements
Intended Full-time Occupancy
Upon review of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, it will be noted that details on what constitutes as a one-year occupancy are lacking; however, case law decisions state that the intended occupancy must be for a full-time purpose. Accordingly, a landlord that wishes to displace a tenured tenant for a purpose that is less than a full-time occupancy by the landlord or certain prescribed family members of the landlord, will likely be unable to use the N12 eviction process and may need to pursue another avenue such as a cash-for-keys arrangement. The full-time occupancy intent requirement was at issue in Kohen v. Warner, 2018 ONSC 3865, and was addressed by the Divisional Court, subsequent to a decision of the Landlord Tenant Board, and wherein it was stated:
[9] The Landlord submits that the Member erred in law in determining that he was bound to dismiss the application by virtue of the decision in MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which he said was “binding precedent providing that occasional occupation is not what is intended” by s. 48(1) of the Act.
[10] The Landlord submits that the proposed occupation of the unit by the landlord’s daughter in MacDonald was a temporary 4 month occupation only and that this use was distinguishable from the case at bar, as Sedat would be living in the unit occasionally (on weekends during the school year and during the summer months) for 5 years. Amicus agrees with the Landlord that the Member was not bound by the MacDonald case, which involved temporary occupancy. Amicus submits that Sedat’s indefinite part-time occupancy may well fit within the Landlord’s s. 48(1) rights if that use is regular and structured.
[11] In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act.
Conclusion
A landlord seeking to take back a rental unit for own use purposes via the N12 eviction process, must have an intention to occupy the rental unit for at least one-year on a full-time basis. If a landlord wishes to displace a tenured tenant from a rental unit and subsequently use the unit for merely a seasonal purposes, the landlord may be found as improperly using the N12 eviction process.