As more universities announce distance learning for spring and summer terms, this article will discuss options that may be available to students to terminate their tenancy early.
Universities, including Brock University, Carleton University, and The University of Waterloo have announced that they will be delivering spring and summer sessions through distance learning only.
Generally, a tenant can end their tenancy in the following ways:
- Landlord Agreement;
- Assigning your place to a new tenant;
- Giving Proper Notice; or
- Application to the Landlord and Tenant Board to end your tenancy.
Option 1: Landlord-Tenant Agreement
- A tenant and the landlord can agree to terminate the tenancy at any time by agreeing on a termination date.
- It is best practice to document the agreement in writing by using Form N11: Agreement to Terminate a Tenancy.
- A candid discussion between the tenant and landlord is a good starting point.
- Landlords that are financially established may be more amenable to terminating the tenancy early. However, given the difficult financial circumstances experienced by many Canadians, the landlord may also be experiencing financial difficulties and may not be agreeable. In this case, assigning the tenancy may be a better option for all parties.
- Alternatively, the tenancy agreement may also contain a force majeure or act of god clause that provides for early termination of the tenancy in unexpected situations. Some agreements may contain specific references to "pandemics" or "epidemics" as force majeure or acts of god events.
- There is caselaw to suggest that when there is an “act of god”, the landlord should bear the burden and not the tenants. In the Divisional Court decision in Bramar Holdings v. Deseron  O.J. 1013 (Ont. Gen. Div), the Court ordered an abatement of rent in an “act of god” situation because the tenant’s quiet enjoyment was affected. The Court said,“It is the landlord who must bear the burden and not the tenants”.
- Section 19 of the Residential Tenancies Act may also allow for early termination of the tenancy. This section states that the doctrine of frustration and the Frustrated Contracts Act apply with respect to tenancy agreements.
- If you are going to use a contractual clause or the doctrine of frustration to terminate your tenancy early, it is a good idea to get legal advice to help you interpret the contract.
Option 2: Assigning the Tenancy
Assignment vs Sublet Agreement
- In an assignment, the person that moves into the rental unit takes over the agreement. That person is called the assignee. Everything that is included in the tenancy is the same for the assignee. The assignee is responsible for paying the landlord the same rent as the tenant and they should have the same things included in their tenancy as the tenant.
- An assignment is not a sublet. In a sublet agreement, the tenant remains responsible to the landlord for any non-payment of rent or damages caused by the subtenant.
First, get your landlord's approval for an assignment, it is best to get it in writing.
- The landlord can refuse to allow you to assign the tenancy.
If the landlord refuses to let you assign:
- If the landlord refuses to let you assign the rental unit, or does not reply within 7 days of your request to assign, you can end your tenancy early by giving your landlord a form N9: Tenant's Notice to Terminate the Tenancy.You must give at least 28 days notice to the landlord if the tenancy is daily or weekly. Or you must give at at least 30 days if the tenancy is anything other than daily or weekly. The termination date does NOT need to be the last day of a rental period of the last day of a fixed term.
- You must give the landlord this notice no more than 30 days after you made your request.
If the Landlord agrees to let you assign, find a person to rent the unit and ask the landlord to accept this person.
- If the landlord does not reply within 7 days of your request to assign the rental unit to a specific person, you can end your tenancy early by giving your landlord a form N9: Tenant's Notice to Terminate the Tenancy. You must give at least 28 days notice to the landlord if the tenancy is daily or weekly. Or you must give at at least 30 days if the tenancy is anything other than daily or weekly. The termination date does NOT need to be the last day of a rental period of the last day of a fixed term.
- The landlord has the right to refuse to let this person become a new tenant but cannot refuse arbitrarily or unreasonably. If you do not think your landlord was justified in refusing the person, you can ask the Landlord and Tenant Board to authorize the assignment, end the tenancy, or order the landlord to pay a rent rebate. Use form A2: Application about a Sublet or an Assignment.
- A landlord can charge for any reasonable costs related to approving the assignment, such as the cost of doing a credit check on the person you want to assign the unit to. The landlord cannot charge for more than actual costs so it is best to get receipts.
Option 3: Give Proper Notice
First, establish your type of tenancy - Fixed-Term or Non-Fixed Term:
- In a fixed-term tenancy, the landlord and tenant agree that the tenancy will last for a specific period of time and the agreement includes the start and end date. This means that the landlord's and the tenant's rights and obligations are fixed for the term of the tenancy. For example, in the case of a one-year fixed term tenancy, the landlord has to provide a rental unit for the full year and the tenant has to pay rent for the full year.
- After the period of a fixed-term tenancy ends, you do not have to move out. The fixed-term tenancy agreement will automatically convert to a monthly, weekly, or daily tenancy (a non-fixed term tenancy).
Non-Fixed Term Tenancy
- In a non-fixed-term tenancy, the landlord and tenant have not agreed on an end date. If the rent is paid every month, this is often called a "month-to-month" or monthly tenancy. If the rent is paid every week, it is often called as a weekly tenancy. If the rent is paid every day it is often known as a daily tenancy.
In a non-fixed-term tenancy, the agreement continues until:
- the landlord and tenant agree to end it
- the tenant gives a notice to end it, or
- the LTB issues an eviction order.
Next, determine the termination date and give proper notice:
- The termination date is the last day you plan to have possession of the unit. A landlord may move to evict the tenant from the rental unit after the termination date if you change your mind.
- To give proper written notice you must use form N9: Tenant's Notice to Terminate the tenancy.
Fixed Term Tenancy Termination Date and Proper Notice:
- If you have a fixed-term tenancy, like a one year lease, then you must give notice at least 60 days before the end of the lease. The termination date cannot be before the last date of the fixed term. If you do not give notice, the tenancy continues as a non-fixed term tenancy.
- Example: You have a fixed-term tenancy May-May. You pay rent on the 1st of each month. The last day of your lease is May 31. The earliest possible termination date you could put in the notice is May 31. Your termination notice should be given March 31, at the latest. If you give your termination notice earlier than that, the earliest termination date possible is still the last day of the fixed-term tenancy, in this case, May 31.
Non-Fixed Term Tenancy Termination Date and Proper Notice:
- Monthly, no fixed term: If you pay rent monthly and you are not in a fixed term tenancy, then you must give at least 60 days' notice and the termination date has to be the last day of a rental month.
- Example: You have a month-to-month tenancy and pay rent on the first day of each month. You give the landlord notice on April 15. The earliest possible termination date you could put in the notice is June 30.
- Weekly, no fixed term: If you pay rent daily or weekly, and you are not in a fixed term tenancy, then you must give at least 28 days' notice and the termination date has to be the last day of a rental week.
- Example: You have a weekly tenancy and pay rent on the first day of each month. You give the landlord notice on April 15. The earliest possible termination date you could put in the notice is May 31.
- Calculating the number of days
To count the correct number of days for the notice:
- Do not count the day that you mail or deliver the notice to the landlord
- Count the termination date.
- If you mail the notice to the landlord instead of delivering it by hand you must give an extra 5 days – 65 days instead of 60 or 33 days instead of 28.
Option 4: Application to the Landlord and Tenant Board (LTB)
As with anything related to COVID-19, things are constantly changing and updating. The Landlord and Tenant Board has been posting operation updates on its website. Please check here for updated information.
You can apply to the LTB for an order to end your tenancy agreement early if your landlord has not met their obligations under the Residential Tenancies Act (RTA). For example, if your landlord:
- is not maintaining the rental property
- unlawfully enters the rental unit
- alters the locking system without giving you replacement keys
- withholds or deliberately interferes with a vital service
- interferes with your reasonable enjoyment of the rental property
- harasses you
- unreasonably withholds consent to assign or sublet the rental unit
You will have to prove to the LTB during the hearing that the landlord has not met their obligations under the RTA and ending the tenancy is a reasonable under the circumstances.
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