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There are two possible notices of eviction you can serve to your tenant:

The first notice is Form N5– Notice to End your Tenancy Early for Interfering with Others, Damage or Overcrowding. You can serve this notice to your tenant if your other tenants in the building are complaining, damage is being caused in the rental unit, the condo management is complaining about the constant turnover of people in your unit, or your tenancy agreement does not allow the tenant to rent the unit on a short-term basis. This notice is a 20 day notice to end the tenancy, but it allows the tenant to correct the situation within seven (7) days.  If they do not correct the situation in seven (7) days, you can file an application with the Landlord and Tenant Board as early as the 8th day.

If you can find proof that the tenant is collecting more rent from the Airbnb tenants than what they are paying you each month for rent, this is considered an illegal act. In this case, you can serve your tenant with Form N6– Notice to End your Tenancy for Illegal Acts or Misrepresenting Income in a Rent-Geared-to-Income Rental Unit.  This notice is also a 20 day notice to end the tenancy (Reason 2), however, the tenant is not given an opportunity to correct the situation.  You can file an application with the Landlord and Tenant Board right after you provide your tenant with this notice.

In either case, you should collect as much evidence as possible.  For example, print-outs of the advertisements on the Airbnb website showing your unit, proof of what the tenant is charging to rent out your unit and complaints from other tenants or condo management.  It is important to fill in as much detail as possible about the tenant’s behaviour in the Details About the Reasons for this Notice section of each form.

Your situation is quite complicated, because it deals not only with the rights and remedies of landlords and tenants under the Residential Tenancies Act, but also with both the Ontario Human Rights Code and the Condominium Act. Where the rights of an individual unit owner within a condominium complex come up against the rights of the Condominium Board, it is generally advisable to hire legal counsel specializing in this area of law.

Your problem is not just about noise and damage being done or experienced in or on the property, but it may also leave the condominium corporation vulnerable to insurance claims or other legal liability because minors are being locked out of the building by the adults in your unit.

Due to your situation involving children, you must also consider the landlord’s duty under the Human Rights Code to accommodate a tenant to the point of undue hardship. Therefore, the need to hire legal counsel specializing in these areas of law is even more urgent. The Landlord and Tenant Board is generally very reluctant to order eviction when children are involved, unless they are satisfied that the landlord did all they could to accommodate the tenant’s situation.

An option that you can explore in the meantime is approaching the tenant about the possibility of termination of the tenancy by mutual consent by signing an N11 agreement to terminate: http://www.sjto.gov.on.ca/documents/ltb/Other%20Forms/N11.pdf

Your options would depend on whether or not the tenant is required to share a kitchen or bathroom with your daughter. If your daughter was living in the property before the tenant moved in, and the tenant was required to share a kitchen or bathroom with her, then you will have more options.

If this is not the case then your situation would be covered by the Residential Tenancies Act, and you must then follow the rules accordingly.

This would mean serving an N5 Notice to Terminate Early for Interference with Others. The N5 must list the dates and times of the disturbances, and gives the tenant 20 days to vacate, or 7 days to void the notice by correcting the behaviour during that time period.

The forms and instructions for both the notice, and the application to the Landlord and Tenant Board if the tenant fails to correct the behaviour, are available on the Board website here: http://www.sjto.gov.on.ca/ltb/forms/

Noise complaints by one tenant against another are difficult to resolve at the best of times. Where the noise is coming from a child or children, there are really very few real options for the landlord. The Ontario Human Rights Code places a duty on landlords to accommodate the needs of a tenant that is covered under one of the Code grounds; one such ground is family status.

In your situation, even where the tenant (with the child) may not yet have asked you to accommodate her situation, the law expects you to anticipate such a claim. One way you could do this is to offer to install some sort of floor covering (at your cost) that would help to lessen the sound travelling between the units.

In that way you could, along with the record of your conversation with the tenant about her child’s activities, show the Landlord and Tenant Board that you have tried to balance the rights of both tenants in the best way that you know how. You are expected to communicate with both tenants about options. The complaining tenant may not like what you have to say, but you should explain that the law limits your options in this situation.

The Residential Tenancies Act does not take precedence over the Ontario Human Rights Code, and both work together to ensure the protection of tenants from eviction due to noise related to the tenant’s family situation.

In any case, you should not serve an N5 notice of termination for disturbances.

First, you should speak to each tenant to find out for sure what is going on. Ask them to write down all of their complaints with specific details such as the dates and times of all the noise incidents. If you believe one tenant is causing the most problems then you may have to serve that tenant with a Form N5 detailing all the issues. The N5 is a 20-day notice in which they have the first seven days to correct the situation. If it is not corrected after seven days, then you would file an L2 application with the Landlord and Tenant Board.  In some cases where both tenants are equally disruptive the N5 may have to be served to both tenants. 

Deciding whether or not to serve a notice for disturbances usually comes down to how current the problems are, and how willing the affected tenant is to be a witness at the Board Hearing. If problems are recent, and/or ongoing, then they still may not have been corrected by the tenant, which could trigger the service of notice. This is not easy to explain, because there are always subjective opinions about how serious the noise or smell was, and then whether or not those problems were resolved.

As to the complaining tenant, if they are willing to be a witness at the hearing, then you should explain that this means they have to provide you with a detailed log of dates and times when the smoke bothered them, and how, and when they were woken up by the offending tenants, and if they had spoken to the offending tenants about the noise, what was the reaction. All of these details will typically end up in the details section of the N5. If the matter goes to a hearing, then the tenants may be cross-examined about their evidence.

If the tenant expects you to resolve this problem without their involvement, then you can explain to them that this is not how the Board goes about evicting tenants for cause.

 

You can give an N5 Notice to Terminate a Tenancy. Currently, if the (first) N5 is given to vacate in 20 days, the tenant can void the notice by correcting all of the issues that appeared on the notice within 7 days. If so, this opens up the possibility within 6 months of serving a second notice for disturbances or damages, which would be for a 14-day termination date with no chance to void the notice.

In many cases, the tenant does not correct all of the problems on the first notice within 7 days of serving it the landlord may apply to the Board on the 8th day but no later than 30 days after the termination date.

If your tenant did not correct all of the problems on the N5 you gave (within 7 days), you can apply right away.

If the tenant correct some or most of the problems you can still apply based only on the outstanding problems on the form (which may be a weak case).

If you wish to add the other noise and disturbance problems into the mix, you may do so by starting again with a new first N5 form listing all of the unresolved issues. Chances are you will be applying to the Board with noise problems, damage to property if you feel that you can prove this was negligence on the part of the tenant. You would be applying based on the notice not being corrected with the 7 days if many of the issues remain outstanding.

We suggest that the tenant who is affected should keep a log of all the dates and times that the smoke smell is bothering him or her, and to ask someone else to be a witness. This will be helpful if they ask you to serve the offending tenant notice for interfering with the affected tenant’s enjoyment.

In the meantime you should treat it more as a problem that may require you serving an N5 notice for interference with enjoyment, rather than on the possible illegal activity of the other tenant smoking a controlled substance. When it comes to considering eviction, the Landlord and Tenant Board may be sympathetic, but they tend to focus more on the ongoing annoyance and interference factor than on the illegality side of smoking marijuana.

The N5 form is here: http://www.sjto.gov.on.ca/documents/ltb/Notices%20of%20Termination%20&%20Instructions/N5.pdf

I do not think that the Landlord and Tenant Board will order termination based on an N7 in the case you are describing. An application based on a correctable N5 has a much better chance of succeeding, especially if another tenant is being affected by the behavior. Either way, you will require one or more witnesses to attend if you want to present your case well.

If the matter proceeds to the Board, it may be in your best interests to hire a paralegal or lawyer to represent you at the hearing.

The most effective way to proceed is to serve the proper notice of early termination which is a Form N5 detailing all of the problems caused by this tenant. If the situation is not corrected within seven days then you will have to file the application with the Landlord and Tenant Board to go to a hearing and have the matter decided by an adjudicator. To ensure that your case is persuasive, you should have other tenants come to the hearing to testify in person about the disturbances, a written statement may not be accepted as proper evidence. The process of eviction can usually take about six to eight weeks and it costs $190.00 to file with the Board and the other costs you may incur is the Sheriff’s fees which range from $318-$333. The Sheriff’s fees include a flat fee plus a mileage charge for each kilometer the Sheriff has to travel.

If the noisy tenant is interfering with the other tenants reasonable enjoyment of the premises, you may issue a Form N5 – Notice of Termination. This form can be downloaded from the Landlord and Tenant Board’s website at http://www.sjto.gov.on.ca/ltb/forms/. In order for the notice to be effective, it will have to include a detailed account of the disrupting events and behaviours including the times, dates and duration of each incident. You will need the co-operation of your other tenants to obtain this information. Once the tenant has received the Form N5, they have a seven day period to correct the problems. If the tenant does not correct the problems you can file an application to the Landlord and Tenant Board to have the tenant evicted.

You can give the upstairs tenant an N5- Notice to Terminate a Tenancy Early. When you issue the N5, you have to be as detailed as possible when describing the issues and include dates and times when the incidents are occurring. The N5 is a 20-day notice but the tenants have the first 7 days to correct the problems, otherwise you can file an application with the Landlord and Tenant Board to go to a hearing and ask for the termination of the tenancy. If you have to go to the Board, it’s very important to bring witnesses to the hearing so you should speak with your other tenants and ask them if they would be willing to come to the hearing to testify to what is going on.

You can give the offending tenant an N5- Notice to Terminate a Tenancy Early. When you issue the N5, you have to be as detailed as possible when describing the issues and include dates and times when the incidents are occurring. The N5 is a 20-day notice but the tenants have the first 7 days to correct the problems, otherwise you can file an application with the Landlord and Tenant Board to go to a hearing and ask for the termination of the tenancy. If you have to go to the Board, it’s very important to bring witnesses to the hearing so you should speak with your other tenants and ask them if they would be willing to attend the hearing to testify to the occurrences.

When a tenant is disturbing another tenant in the house, the landlord can serve that tenant with a legal notice (Form N5- Notice to Terminate a Tenancy Early). This notice is a 20-day notice where the landlord has to describe, in detail, what the problems are and when they occur. The tenant will then have seven days to correct the situation, otherwise the landlord can file an application with the Landlord and Tenant Board to go to a hearing and seek termination of the tenancy. Based on all the issues you have described, the Form N5 would be the appropriate notice to serve the tenant. Forms can be obtained from the Landlord and Tenant Board’s website at http://www.sjto.gov.on.ca/ltb/forms/

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