Kevin Breitner (00:05)
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Morning everybody. Here we are again for another episode for Ontario Landlords. Today we’re just going to have some conversation about two situations, maybe three if we have enough time, that were brought up in some groups that people were going through and we just want to talk about some odd situations that could come up and how we have to deal with them or what the best way to move forward with them is. Today we’re joined again with Mr. Robert Di Lisi from Stonegate Legal Services. Good morning, how are you?

Rob Di Lisi (00:34)
Good morning, Kevin. Thanks for having me on again.

Kevin Breitner (00:37)
Yeah, no, for sure. As always, your expertise and insight to these issues is great information for all of our listeners out there. So let’s start with something like abandonment. You know, this is something that we’ve heard a little bit about as people are vacating units. How do know they vacated for sure? Did they give you the proper notice? Probably not. Now they’re just keys being left there or whatever the different situations are. I’m going to break into this one that was brought up in one of our

landlord groups that I belong to this is a question asked and I’m just gonna read it as it goes here so the tenant they believe the tenant has left the tenant on the lease has left their unit but left behind her pregnant underage granddaughter of 16 and the granddaughter’s boyfriend of 15 the rent is still getting paid and I see the lady every once in a while one or two times a month come in to check on them the unit though has been destroyed there’s holes in the walls there’s

dog faces everywhere up against glass. They’ve been smoking in units, breaking windows, unplugging all the smoke alarms. So now there’s an issue of hazard that way as well. And supposedly they’re causing problems with other tenants in the building. What is this landlord to do? What are her options? Obviously with safety issues, other tenants, and then again, just this one unit as well.

Rob Di Lisi (01:59)
Okay, so this is not a bandit bent, just so you know. And the first thing that I’m gonna say is occupancy has nothing to do with tenancy. So you said something important. You said that the rent is still being paid even though the person on the lease is not living there. You said I believe the niece is living there, is that correct?

Kevin Breitner (02:19)
was a granddaughter but yeah same thing someone who wasn’t originally on the lease is now staying there.

Rob Di Lisi (02:24)
Okay, so those people that are staying there are considered occupants, guests. So I don’t see anything illegal or wrong here from what you’re telling me. For abandonment, there’s a two-part test that you need to consider. Number one, are there belongings there? And number two is the rent being paid? So in this situation here, even though the tenant is not residing there, the rent is still being paid and there is someone occupying the property.

So in regards to what the landlord can do, your options are quite limited. If they’re making a disturbance in the property, you can give a notice for disturbing the other people there. However, just remember to get to the board these days, you’re looking at four to six months and then two months to get the order. So I’m not sure if that’s gonna be a plausible option, but this is not abandonment. Abandonment would be something.

Kevin Breitner (03:20)
And there’s no issues with a 16 and a 15 year old living there. Neither one is an adult, but I guess because she’s checking in or still paying rent, everything is okay there.

Rob Di Lisi (03:29)
So they may not be of the majority of age, but the thing is, again, is that you don’t know what the situation is. They say that they don’t see that the tenant is there often and that they’re checking in. You don’t know. All right, so again, the people that are living there are not tenants, they’re occupants. Now, because they’re of underage, you can call the, what is it called, family services or whatever it’s called to do a checkup, but.

I don’t see a problem here.

Kevin Breitner (04:02)
Okay. No, it like you said, the rent’s being paid. They definitely have belongings behind there, right? As her granddaughter is still there.

Rob Di Lisi (04:11)
then the rent is being

paid, so that’s the main thing.

Kevin Breitner (04:15)
All right, I’m gonna throw a quick, easy one at you, nice short answer. But let’s say the tenants have left the place, they moved out and they leave belongings behind. Let’s even say some stuff in the unit, but a car on the driveway as well. It’s been weeks since they’ve already turned over keys and the place has been vacant. How long do we have to wait? What’s the process to do with any of this type of stuff?

Rob Di Lisi (04:38)
Okay, so what’s got to be important is that because you jumped around a bit, were the keys surrendered to the landlord?

Kevin Breitner (04:46)
No, left behind in the unit.

Rob Di Lisi (04:48)
Okay, so you have to be careful because again, for this to be abandonment, you have to consider the two part test. Is there belongings there and is the rent being paid? Again, well, let me give you a scenario. What if they just went on vacation? They went to Europe. You don’t know if they’ve really abandoned the unit. So the landlord should exhaust all efforts to try to get ahold of the tenant.

The last thing that you want to find out is you guys change the locks, you remove their belongings, and they come back and say, no, we went to Italy for a couple of months and I didn’t have access to my phone. So now the landlord would be responsible for those belongings. So that would not be considered abandonment. More importantly, we cannot arbitrarily say this is abandonment. Technically, the board has to determine abandonment.

and they will go through the two part tests. if there’s belongings there, they’re paying the rent, then you don’t know if they’ve really abandoned the unit. So I want landlords to know, be careful because if you’re gonna do that, there could be some liability.

Kevin Breitner (06:01)
Okay, so this one I think is gonna take a little bit more to dive into. There’s gonna be some parts about this one. But let’s say a landlord has signed the lease with a new tenant where they’re gonna move in December 1st and they required last month’s rent as a deposit before moving in. On December 1st, they’re then told by the tenant that they don’t plan on moving in until January 1st, but they would still like the keys because as the lease that everybody signed said December 1st.

Or it’d be their right to the property because that’s what the lease says and they would call locksmith is the tenants threat if they don’t get the keys from the landlord But they haven’t paid a penny no last month’s rent and no rent for December as well What’s the process there? How would they go about doing that properly?

Rob Di Lisi (06:45)
So

contractually, you have a lease agreement starting, you said December 1st, but part of that would be collecting first and last month’s rent. So even though they’re not planning to move in until they think you said January 1st, if they wanna take possession December 1st, that’s fine, but they have to give first and last month’s rent upfront. That’s it, it’s very simple. Why are you gonna let them in if they haven’t paid first and last month’s rent? Contractually speaking, yes.

they have the right to move in, but you’re not gonna let them in until, and it’s not just first and last month’s rent. This is the time that if they claim that they’re gonna have insurance, you make sure they have an insurance, they make sure they have the utilities set up, everything set up before they enter the property. Because once they’re in the property, they are considered a tenant. Before they enter the property, it’s not a tenancy, you now have a contract.

Kevin Breitner (07:38)
So let’s just add on something here just while we’re on that topic of utilities and stuff like that. How can we enforce that? What can happen if tenants aren’t paying bills, different things like water, obviously we can’t shut off water or gas if they’re not paying these bills. Even though the lease agreement says these are the tenants responsibility, how does that affect the landlord if the tenant doesn’t keep up there into the bargain with those type of utilities?

Rob Di Lisi (08:00)
Right, so I hear this all the time. I’m Italian, so a lot of my Italian clients say, well, if they’re not paying the utilities or the rent, I’m gonna shut off the gas or electricity. You cannot do that, those are considered vital services. So if you have a tenant that is not paying their bills, the first thing that you should be doing is notifying them of the bill and letting them know how much it is and a copy of the bill. That would be step number one.

It’s important that you let them know what is owed. If they still do not do anything, you can pursue an application to the board for non-payment of utilities. This is separate from non-payment of rent. So a non-payment of rent would be the N4, the non-payment for utilities would be the N5. The unfortunate part is you’re still looking at four to six months to get to the board and then two months to get the order, so forth and so on.

What I’m seeing, and this is just my personal thing, on utilities, it doesn’t always get you an eviction. So if the goal here is to get an eviction, the N5 might not necessarily get you that goal. And I want everyone to know that. All right?

Kevin Breitner (09:18)
The N5 and the N4, just because this is what you just mentioned here, do they counteract? Like let’s say we have a tenant who’s not paying rent, they’re behind anyways a month or two months behind in rent, whatever it is. But now they also have a massive water bill, let’s say, which again is a must have utility for anybody, right? It is definitely a way of life. Can’t live without water, can’t live without heat in Canada, that’s for sure. So the water bill is huge. They haven’t paid rent in a couple of months. Landlord serves the N4.

or the N5, can they do them both at the same time? Can they do them differently? Do they counteract? Do they even matter?

Rob Di Lisi (09:52)
No, you can do them both at same time. One is for non-payment of rent and the other one is for utility. So you can do them at the same time. It’s not a problem. What I see some landlords do is on the N4 for non-payment of rent, they’ll add the utilities. That’s incorrect. There are separate applications or notices and even your order will be different. Like I said, on the N5, it doesn’t necessarily guarantee you an eviction. Where on the N4, it is a factual notice, it’s a factual application.

and hopefully you do get an eviction. One thing I will note is that if you don’t pay the utilities, a lot of utility companies are now putting it on the property taxes or onto the landlord. However, I’m gonna say this, cause you just said this, is in the winter time, you want the gas working because what you don’t want is your pipes to freeze. So it’s in the benefit of the landlord, believe it or not, to make sure that heat is working. Now, is it fair? No, it’s not fair.

but you’d have to go through the proper channels of going to the board. And again, that could be four to six months, unfortunately.

Kevin Breitner (10:58)
Yeah, no, process is the process, right? And until that process gets corrected or adjusted so that it is a little bit more balanced and fair for everybody, these are going to be the issues that we’re constantly faced with. But as you said, the process is the process. We have to follow the right course of action in different situations to make sure that we are doing what is necessary and proper as landlords so that everything is, when the time does come, the adjudicators are going to look at everything that this has been done properly on our.

and hopefully side with the landlord in a situation like this.

Rob Di Lisi (11:32)
Yep, and at the end of the day it is the adjudicator’s decision. So even what we’re talking about now, someone watches and says, well Rob said, well it doesn’t matter what I say, it’s what the adjudicator decides out of hearing.

Kevin Breitner (11:45)
And they’re all individuals, right? all can, from what I, one might say yes, one might say no, from what I’ve been around and experienced so far with the exact same situation.

Rob Di Lisi (11:56)
Yeah, and that’s the problem that we are seeing is that there are good adjudicators and then there’s not so good adjudicators and some of them take it upon themselves. They don’t always follow the rule of the law and they interpret it their way.

Kevin Breitner (12:13)
Sadly, that’s like everything, right? They say 20 % is good, 80 % is bad or average at every single profession. Oh yeah, yep. But that’s just the way it is.

Rob Di Lisi (12:23)
Right

Kevin? It’s people.

Kevin Breitner (12:26)
Exactly, no and we’re here to help guide advise and consult so that everybody understands at least what their options are in different situations so they can make the best informed decision for themselves and their specific situation

I hope you guys got a little bit of something from that today about where we are with landlords and what we have to do with a couple of not so common or unique situations. as always, Rob, thanks so much for joining us and sharing. We’ll talk to you guys soon. Bye for now.

Rob Di Lisi (12:53)
My pleasure.

Take care.

Narrator (12:59)
Please remember, while we are professionals, this podcast is for informational and entertainment purposes only. The advice shared may not apply to your unique situation. Always seek personalized advice from a qualified professional before making any investment decisions.

Kevin Breitner (13:14)
Hey everybody, thanks so much for joining us this week. I hope you enjoyed the episode. If you’re finding it informative and useful, make sure to like, subscribe, share with a friend so that we can keep getting the information out there to Ontario landlords and keep on joining us. We’ll see you next time.