Posted by FJ on 10/4/2011, 15:05:19, in reply to "guests or number of occupants"
I've just completed some dealings surrounding a similar matter. The issue of roommates vis-à-vis an RTA tenancy is thus fresh.
In terms of enforceability it is POSSIBLE that the condition is enforceable. However, there are two avenues to travel to investigate such a possibility - both of which you ought to explore and both around which you ought to do an analysis in order to answer that question.
The first avenue involves an analysis as to whether the matter gives rise to a clear and direct enforcement mechanism within the RTA. An example would be if a specific section in the RTA clearly were to state that if you do X, then Y is what the landlord may do.
The second avenue involves an analysis as to whether the matter gives rise to an indirect enforcement mechanism within the RTA. Such would involve a less clearly defined remedy or remedies. For instance, might non-payment of the $10 per month rise to the level of interference with the landlord’s rights so as to then trigger an invocation of the section 64 remedy? It’s unlikely to trigger 64, yet possible. Or might it simply give rise to the possibility of a money damage remedy under the broad authority given the LTB under section 168 of the RTA?
AVENUE 1
First, the terms "occupancy" and "occupy" are found in numerous sections of the RTA. These terms have legal meaning requiring the exercise of principles of statutory interpretation. The legal meaning (or meanings, if a court should feel more than one meaning ought to be assigned), must be derived using those principles of statutory interpretation. This happens to be an exercise that is a matter of law - not one of mixed fact and law. On review of a matter of the LTB’s interpretation of a statutory provision in the RTA, the LTB is not entitled to deference.
To be clear, that is not to say that a court HAS to decide this in a particular matter. However, a tenant who appeals an LTB decision on the ground that an incorrect legal interpretation was given to the term by the LTB, will trigger the Divisional Court's jurisdiction. The Divisional Court would then have its latitude in determining whether to hear the appeal. If it decides to do so, it would interpret the term according to prior jurisprudence governing statutory interpretation. Once it does so, and unless overturned on further appeal, the meaning the court interprets would have to be used by the LTB for all future matters (not distinguishable on the facts), in which the respective term requires consideration by the LTB.
So, the first question here ought to be what meaning has the Divisional Court, or the Court of Appeal (whatever the case may be), already assigned to the term, "occupant", "occupancy", or whatever term we are dealing with in the RTA. That is the starting point. You can easily research that on canlii.org.
Second, based on the declaration of the Divisional Court or Court of Appeal with respect to the proper meaning of the term, you would ask, ‘does this capture my fact scenario?’ For instance, if the Court has decided that the term "occupancy" as used in section 104 of the RTA (for example, that is), is such that it means occupancy of the entire unit defined in a tenancy, the term “occupancy” in the RTA could not then hence apply to capture a fact scenario such as the use of a single room in the unit.
Some in the landlord/tenant world refer to roommates as "co-tenants". I would respectfully disregard such a characterization. Roommates are not tenants. Roommates have access to your food, your living space, and your person, absent the obligations that come with holding tenure. Different provisions therefore clearly need to – and in fact do – apply to govern these types of relationships. If roommates actually were tenants, the RTA would have to be interpreted such as to apply landlord provisions to both the actual landlord AND the tenant of the actual landlord – who would then be a second “landlord”. You’d have two landlords for the same floor space. To prevent such an absurd interpretation from being issued by the ORHT, the Legislative Assembly put the nail in the coffin on that possibility by amending the definition of the term “landlord” in the old TPA. This amended definition was carried forward into the present RTA.
Legally speaking, a roommate is far more likely to be a "licensee" than any permutation of tenant. In any event, these distinctions are largely irrelevant in your situation as they trigger no legal consequence in terms of the question of the $10 per month contract matter.
AVENUE 2
This is where it gets interesting.
If you satisfy yourself that your roommate is not captured within the legal meaning ascribed to the respective term in the RTA that you are dealing with (ie. “occupant”, “occupancy”, etc), in accordance with the result of the first part of this analysis, you ought to next look at the contract itself.
If the contract permits a $10 charge for an "occupant", using a definition that the contract assigns to the term "occupant", such constitutes a matter that is an entirely separate issue. What I mean to say is that you will now be dealing with a matter that COULD be enforceable based on breach of contract.
The principles of contractual interpretation would hence apply to the contract - to the extent that the RTA does not remove the matter from enforcement. Thus, if the contract were to say "no pets", the principles of contractual interpretation are ousted to the extent that the provision in the contract prohibiting pets would be given no meaning. That is so because section 14 of the RTA declares that such a provision is void.
Interpreting your agreement with the landlord, and any particular provision in the agreement with the landlord, is going to be extremely fact specific. The contract is likely to be - especially if your landlord is somewhat sophisticated - fairly legally sound. However, that is not to say that you would not be availed of arguments militating against enforceability of the particular term you are dealing with. For instance, enforceability would depend on things such as whether the contract is considered an adhesion contract (given the different principle applying to the term’s interpretation in such a case), whether there was actual agreement (legal acceptance of a valid offer, that is) to that specific term, whether the landlord has legally engaged in an act of waiver in respect of demanding compliance with the term, and so forth. Terms in contracts can be attacked on many grounds.
Let's now jump forward and suppose that what you are doing IS a breach of a valid term in the tenancy agreement. That is itself a legal question which would need to, of course, first be answered in the affirmative based on your particular facts. However, let's make the leap to this point in order to save a lot of screen real estate.
The landlord would have two possible remedies if he or she establishes breach of a contractual term.
The first remedy would be available if the breach is found to be something that constitutes substantial interference with the lawful right, privilege or interest of the landlord. If it does constitute that, the landlord can move for the remedy of eviction using section 64 of the RTA. However, there is very little jurisprudence from the courts in terms of what types of breaches of contract, aside from those the RTA directly deals with, would trigger the availability of section 64. Suffice it to say that this question is one in which the Divisional Court has had very little engagement. Since eviction is a very serious remedy, it is unlikely that a section 64 remedy was what the legislature intended, in enacting that section, as the answer to a $10 per month disputed liability.
Therefore the other remedy available to the landlord would be to ask the LTB to grant it an order of another kind, such as money damages for the breach. The courts have said that the LTB should hear, and grant remedies for, simple contract breaches of tenancy agreements in which the tenancy is governed by the RTA. This was done so that these types of disputes don't end up straining the small claims court system.
--Previous Message--
: My lease has a clause that sets the rent based
: on the number of occupants is this
: legal/enforceable? The landlord is asking
: for an extra 10 for everyroomate.
:
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