What Can Be Done When a Tenant Persistently Pays the Rent After the Due Date?

A Landlord Can Take Legal Steps Seeking an Order to Evict.

A Helpful Guide For How to Understand When a Tenant May Be Evicted For Persistently Failing to Pay Rent When Rent Is Due

Notice to Evict A persistently late paying tenant can cause a landlord various troubles including financial difficulties, especially for a smaller landlord that relies on rent being on time to enable the landlord to pay the landlord's own bills.  When a tenant pays late, the tenant may make it difficult for the landlord to pay the mortgage, taxes, utilities, among other things, resulting in harm or hardship for the landlord.

It is notable that the first time a landlord seeks to evict for persistently late rent, the Landlord Tenant Board usually provides a last chance warning to the tenant. Of course, this is without intent to say that obtaining an Order to Evict will be impossible within a first proceeding; however, it is reasonable to anticipate that the Landlord Tenant Board, except in situations that would be severely unfair to the landlord, will provide some leniency as a last chance. Accordingly, even if the landlord is unsuccessful in obtaining an Order to Evict, by initiating a proceeding, the landlord establishes the details of payment delinquency by the tenant, on the record, with the Landlord Tenant Board. As such, a landlord should be prepared and expect that the Landlord Tenant Board is more likely to issue an Order requiring on-time payment than the likelihood of an Order to Evict.

Generally, the last chance Order, which is essentially a requirement that the tenant brings the rent arrears up to date in a reasonable period of time, and make all rent payments properly on the due date moving forward, is granted per the discretionary power held by the Landlord Tenant Board as per section 83(1) of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, which states:

83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

For a case where the Landlord Tenant Board provided opportunities for the tenant to resolve a rent arrears and persistently late payment problem, and then eventually ordering termination of the tenancy and eviction, the case of RPM v. RG and VATNL-83786-16 (Re), 2016 CanLII 72041 provides a good example, especially as an example of the importance of creating a track record with the Landlord Tenant  Board.  Within the RPM case, the Landlord Tenant Board said:

Procedural History

1.  This application was heard together with TNL-83939-16 respecting the same tenancy.

2.  The procedural history of these matters dates back to 2015.  The Landlord applied to terminate the tenancy because the Tenants had been persistently late in paying their rent.  On February 6, 2015, the Board issued order TNL-65178-14 requiring that the Tenants pay their rent on time until January, 2016.

3.  The Tenants did not comply with the order.  In fact, they fell into arrears.  The Landlord filed an application to terminate the tenancy because of the arrears, which resulted in order TNL-74983-15 issued on December 9, 2015.  That order required that the Tenants pay their arrears of $4,915.90 and new rent that came due according to a payment plan scheduled to end on February 29, 2016.

4.  The Tenants did not comply with that order either.  The Board issued ex parte orders terminating the tenancy for the breaches of orders TNL-65178-14 and TNL-74983-15.  The Tenants moved to set aside both orders, and the motions were heard together in January, 2016.  At that time, the Tenants’ arrears had increased to $7,209.90.  The Board issued an interim order requiring that the Tenants repay those arrears on a payment plan ending on May 6, 2016.  The Tenants complied with the interim order and paid all their arrears.  On July 14, 2016 the Board issued order TNL-76406-15-SA/TNL-77842-16-SA requiring that the Tenants pay their rent on time for the next 12 months.

5.  By the time order TNL-76406-15-SA/TNL-77842-16-SA was issued, the Tenants had already fallen into arrears again.  They have not paid any rent for July, August, or September 2016.

6.  The Landlord filed application TNL-83939-16 to terminate the tenancy for the breach of order TNL-76406-15-SA/TNL-77842-16-SA, and also filed the present application to terminate the tenancy for the new arrears of rent.  Application TNL-83939-16 was resolved by an ex parte order, which the Tenants moved to set aside.

7.  The Tenant’s motion was heard together with the present application.  There was no dispute regarding either the arrears owing or the breach of the prior order.  The only issue in either case was whether it would not be unfair to grant relief from eviction, pursuant to subsection 83(2) of the Residential Tenancies Act, 2006 (the ‘Act’) in the present application, and pursuant to subsection 78(11)(b) in the set-aside motion.  As the tests for relief under the two sections are identical, I have considered the issue of relief as a single question, the reasons for which are contained in this order.

Relief from Eviction

8.  The Tenant testified that she fell back into arrears because she lost her job, and the other tenant had to stop work due to a disability.  She has now started a new job, and the other tenant expected to start receiving disability benefits.  Based on their new expected income, the Tenant testified that they can pay roughly $125 per month towards the arrears.  They can pay more in February and March because those are three-paycheque months.  I calculate that the Tenant’s proposal would lead to the arrears being paid off in roughly four and a half years.

9.  I have considered all the circumstances, and I find that it would be unfair to the Landlord to permit a payment plan of that length.  The tenancy is not sustainable given the Tenants’ income.

10.  I find that it would not be unfair to delay eviction to September 30, 2016.  It was the Tenant’s uncontested evidence that the other Tenant suffers from a disability which will make it impossible for him to help pack or look for a new apartment.  The Tenant will have to do all the work of moving two people herself, while also caring for the other tenant because of his disabilities.  It is fair to give her to the end of the month to do so.  It would be unfair to delay eviction any further since that would lead to additional arrears owing for October.

11.  There is no prospect of the Tenants paying their full arrears by September 30.  However, if they do so, this order will be void.  I find that it would, in that case, still be unfair to set aside order TNL-76406-15-SA/TNL-77842-16-SA to permit the tenancy to continue.  The Tenants have been persistently late in paying their rent for years, despite being granted relief from eviction numerous times.  It would be unfair to the Landlord to permit the tenancy to continue where the Tenants’ income is simply not high enough for them to pay their rent on time.

12.  Therefore, even if the Tenants void this order, the tenancy will still terminate pursuant to order TNL-76406-15-SA/TNL-77842-16-SA, they stay of which will be lifted on October 1, 2016.

If a tenant persistently fails to pay the rent on time, DK Legal Practice may be available to help the landlord apply to the Landlord Tenant Board to evict the tenant at the end of the term of the tenancy. It is notable that what is viewed as "persistently" late rent is undefined; and accordingly, whether a tenant is "persistently" late with the rent depends on a variety of factors such as how many times the rent was late, how late was the rent eventually paid.  Without a precise definition of "persistently" late rent, professional advocacy from DK Legal Practice maximizes your chances for a successful outcome.

DK Legal Practice provides services for clients located in Oakville, Halton Hills, Mississauga, Toronto, Streetsville, among other places!

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