LTB Order LTB-L-024271-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: B. v P., 2023 ONLTB 15051 2023 ONLTB 15051 (CanLII) Date: 2023-01-16 File Number: LTB-L-024271-22 In the matter of: 198 SHERIDAN ST BRANTFORD ON N3S4P8 Between: L.B. Landlord A. S.P.A.C.L. Tenants L.B. (the 'Landlord') applied for an order to terminate the tenancy A. evict C. L. A. S. P. (the 'Tenants') because the Tenants did not pay the rent that the Tenants owed. This application was heard by videoconference on January 4, 2023. The Landlord A. C. L. attended the hearing. I heard evidence from the Landlord A. Mr. L.. I also reviewed A. considered a post-hearing legal submission from the Landlord, which I requested. Determinations: 1. The Landlord served Mr. L. with a valid Notice to End Tenancy Early for Non-payment of Rent (N4 Notice). Mr. L. did not void the notice by paying the amount of rent arrears owing by the termination date in the N4 Notice or before the date the application was filed. As of the hearing date, Mr. L. was still in possession of the rental unit. 2. There is no dispute that: (a) the monthly rent payable by Mr. L. A. S. P. was $1,100.00; (b) from the beginning of the tenancy ODSP paid $700.00 to the Landlord for Mr. L. A., until July of 2021, Mr. P. paid $400.00 directly to the Landlord; A. (c) Mr. Phillip did not pay rent after July of 2021 A. died on November 18, 2022. 3. The issue I must determine on this application is whether what existed between Mr. L. A. Mr. P. was a joint tenancy or a tenancy-in-common. In a joint tenancy, there is a single tenancy agreement A. the tenants are jointly A. severally liable for the payment of the entire rent for the rental unit. By contrast, in the case of a tenancy-in-common, although there may be a single tenancy agreement A. the tenants may occupy the same premises, each tenant has a separate tenancy with the landlord, A. each is individually responsible for the payment of his or her share of the rent for the rental unit. [Nasser Zabian 11849622 On Inc v Janisse, 2021 CanLII 75547 (ON LTB)] Order Page: 1 of 3  File Number: LTB-L-024271-22 4. In a joint tenancy all tenants are jointly A. severally liable to pay rent A. if one of the tenants fails to pay rent, the other tenant(s) is/are responsible for that payment. This is true even if the tenants have an agreement amongst themselves about how rent payment is to be divided. [Nasser Zabian 11849622 On Inc v Janisse, 2021 CanLII 75547 (ON LTB)] 2023 ONLTB 15051 (CanLII) 5. Mr. L. asserts that the tenancy was in-common A. that he was (A. is) required to pay only $700.00 per month A. Mr Philips was required to pay $400.00 per month. The Landlord asserts that the tenancy was joint A. Mr. L. is was (A. is) responsible for the entire $1,100.00. 6. The applicable tenancy agreement, which was prepared by the Landlord, is a single-page document that says: 2. The agreed rent is $1100 per month, due on or prior to the first of every month. This is paid jointly, C. paying $700 monthly directly from ODSP, A. S. will pay $400 monthly. This includes all utilities. 7. Pursuant to section 202 of the Residential Tenancies Act, 2006 (the ‘Act’), I am required to ascertain the real substance of the lease agreement. For that purpose, I am permitted to disregard the outward form of a transaction A. may have regard to the pattern of activities relating to the residential complex or the rental unit. 8. Four ‘unities’ are required for a joint tenancy: unity of title, time, interest, A. possession. In other words, the tenants must: (a) take possession under the same tenancy agreement; (b) must have entered into the tenancy agreement at the same time; (c) take the same ‘estate’; A. (d) take possession of the undivided whole of the rental unit. [See Moore v Greenhalgh, 2020 CanLII 119284 (ON LTB) A. Nasser Zabian 11849622 On Inc v Janisse, 2021 CanLII 75547 (ON LTB)] 9. I find that the tenancy was joint A. that Mr. L. is responsible for the entire rent of $1,100.00, although he may have a claim against Mr. P.’ estate for his share of the rent up until November 18, 20221.. There is no dispute that Mr. L. A. Mr. P.: (a) both took possession of the rental unit under the tenancy agreement; (b) signed tenancy agreement at the same time; (c) had the same ‘estate’—a tenancy; A. (d) both took possession of the whole of the rental unit. I accept the Landlord’s assertion that the division of the rent as between Mr. L. A. Mr. Philips in the tenancy agreement was a matter of convenience because ODSP was paying Mr. L.’s rent. 10. Based on my finding, Mr. L. owes an additional $400.00 per month to the Landlord going back to July of 2022. I am not, however, prepared to terminate the tenancy A. evict Mr. L. based on the arrears 11. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act, A. find that it would not be unfair to grant relief from eviction subject to the conditions set out in this order pursuant to subsection 83(1)(a) A. 204(1) of the Act. 1 It is unclear under what circumstances Mr. P. stopped paying rent A. his obligation to pay rent may have ended before his death. That issue was not before me. Order Page: 2 of 3  File Number: LTB-L-024271-22 12. Mr. L.’s only source of income is ODSP. He receives $1,800.00. While it will no doubt to be struggle financially, Mr. L. asserts that if I determine that the tenancy is joint, he can (A. will) pay the $1,100.00 rent A. can pay an additional $300.00 per month against the arrears. 2023 ONLTB 15051 (CanLII) 13. I am going to preserve the tenancy A. order that Mr. L. pay to the Landlord an additional $300.00 per month until the arrears are paid. 14. I appreciate that I am providing Mr. L. with a very long period to repay the arrears. However, I accept that Mr. L. had a genuine belief that he was responsible for only $700.00 based on the form of tenancy agreement prepared by the Landlord. 15. I also accept Mr. L.’s evidence that he attempted to reach an agreement with the Landlord to pay the full rent A. to pay something against the arrears, but the Landlord indicated he was not prepared to enter into any agreement with Mr. L. because he wanted to see what would happen at this hearing—whether the LTB would terminate the tenancy A. evict Mr. L.. 16. There was no evidence from the Landlord as to any prejudice that he will suffer as a result of Mr. L. paying the arrears over an extended period. Based on Mr. L.’s evidence as to his financial situation, it is more likely than not that the Landlord would recover little, if any, of the arrears were I to terminate the tenancy A. evict Mr. L.. It is ordered that: 1. The lawful rent payable by Mr. L. is $1,100. 2. Mr. L. owes the Landlord $7,786.00 as at January 1, 2023, inclusive of the filing fee. Assuming that Mr. L. paid $700.00 A. not pay $1,100.00 on February 1, 2023, he now owes the Landlord $8,186.00. 3. Beginning on March 1, 2023 A. continuing for 27 months, Mr. L. shall, in addition to the monthly rent, pay to the Landlord an additional $300.00 on the 1st day of each month A. on the 1st day or the 28th month, Mr. L. shall pay to the Landlord $86.00. 4. If Mr. L. fails to make any one of the payments in accordance with this order, the outstanding balance of any arrears of rent A. costs to be paid by Mr. L. to the Landlord pursuant to this order shall become immediately due A. owing A. the Landlord may, without notice to Mr. L., apply to the Board pursuant to section 78 of the Act for an order terminating the tenancy A. evicting Mr. L. A. requiring that Mr. L. pay any new arrears, NSF fees A. related charges that became owing. February 6, 2023 Date Issued E. Patrick Shea Vice Chair, Landlord A. Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page: 3 of 3