A Mandatory Residential Lease Form for Ontario

Breface:

The type and form of residential leases in Ontario has historically been a landlord’s game. Such leases could be oral but more often were written by landlords, their property managers, agents or lawyers. The terms were obviously written to suit landlord's interests subject to the limitations set out in the Residential Tenancies Act (RTA) and The Ontario Human Rights Code (OHRC). 

Such leases had then to be “observed” by unsophisticated tenants often to their detriment. Further, the Landlord and Tenant Board, in its role as dispute adjudicator, had to interpret these varied forms and types of leases leading to decisions which were not always consistent, binding or of much precedential value. 

Given this background the Ministry of Housing has created a mandatory new standard lease form for most private residential tenancies in Ontario. The goal is reduce the number of hearings and simplify the relationships between landlords and tenants. Whether these goals will be achieved is a definite uncertainty.

Effective Date & Exemptions:

The new standard form is effective as of April 30, 2018. It must be used, with some exceptions, for all new residential tenancy leases on or after that date. 

The exceptions are:

1.           Leases signed before the effective date and renewed automatically as a month to month tenancy (does apply where a new lease is negotiated);
2.           Co-Operative Housing;
3.           Other accommodation types that are exempt from the Act (see s.5 of the RTA);
4.           Care Homes as defined in the TAA;
5.           Mobile Home Parks and Land Lease Communities;
6.           Social & Supportive Housing that is exempt from the rent increase guidelines

Standard form leases for numbers 4,5 & 6 above are expected from the Ministry in the near future.

      

      Goal & Purpose:

The new form attempts to both simplify and standardize the terms of residential tenancy leases. It sets out the respective rights and obligations of the landlord and the tenant(s). Equally it sets out what the lease cannot deal with or rights that cannot be displaced. This is the Ministry’s attempt to reduce confusion and create certainty. The form is available at Service Ontario in the Central Forms Repository. It can be filled in electronically or printed and filled out manually.

Tenant Protections:

The form makes it clear that the Ontario Human Rights Code applies to residential housing and that the protections in the Residential Tenancies Act cannot be abrogated by anything in the lease. Otherwise the form sets out all the usual terms of a lease with instructions and cautions where needed.

Additional Terms:

Additional terms can be added to the lease as an appendix or attachment. Any additional terms cannot abrogate the standard terms or the Act or the lease form. If they do they are unenforceable. Examples of enforceable terms would be changes to be made by the landlord before the tenant moves in or providing rules for the use of common areas or amenities. Void terms would include no pets (except possibly in condominiums), prohibiting guests or roommates, or asking for deposits, fees or penalties not permitted by the RTA.

Presumably the parties will both have copies of the standard lease once signed failing which the tenant can demand a copy. If the form is not used the tenant can demand a copy of the lease in the standard form which the landlord must provide within twenty-one (21) days. If the landlord fails to comply the tenant may withhold one (1) month’s rent or give 60 calendar days’ notice to terminate a yearly or fixed term lease. Any other shorter periodic term could of course also be cancelled by its terms. 

A Copy of the Standard Lease:

If the tenant chooses to withhold rent the landlord has thirty (30) days to provide a standard form lease at which time the rent must be paid. If the landlord does not do so in time it appears that the rent need never be paid. However the rent withheld cannot exceed one month even if the landlord never provides a standard form lease. This seems odd in that a landlord could use a non-standard lease by giving up one month’s rent. Given rent controls that is however unlikely. The risk of providing the standard lease late (more than thirty (30) days after rent is withheld) is the loss of that rent.

The tenant also has the right upon receiving the standard form lease (where the original was non-standard) within twenty-one (21) days of the demand, to terminate the tenancy within thirty (30) days if they have not yet signed the new lease in standard form.

Outline of The Standard Form of Residential Lease:

1    1.      Sets out the parties;
2.      Provides for a description of the leased premises and the number of parking spaces if any. It also specifies if the unit is a condominium in which case the tenant must comply with its declaration, by-laws and rules;
3.      Contact information is recorded and the method of communicating;
4.      The term of the tenancy is to be specified and the tenant is advised that they do not have to move out at the end of a term;
5.      The amount of rent, when and how it is to be paid and any additional charges. It also advises the tenant that they need not agree to post-dated cheques or automatic withdrawals and  the amount of NSF fees;
6.      What services are included in the rent.  If the tenant is to pay electricity the landlord must provide the tenant with its cost over the last twelve (12) months in the appropriate form;
7.      Whether there is a rent discount and what it is;
8.      Whether a rent deposit is required and if so that it can only be for one rental period, the last one, and cannot be used as a damage deposit;
9.      Is a refundable key deposit required;
10.  Whether smoking is allowed and if so where and when. This presumably applies to both cigarettes and shortly marijuana subject to any application of the Human Rights Code;
11.  Whether there are tenant’s insurance requirements. This deals with liability insurance. Contents insurance is up to the tenant;
12.  What the tenant can do to decorate the unit without the landlords permission;
13.  Who is responsible for maintenance and repairs;
14.  Assignment or subletting is only done with the landlords consent which is not to be unreasonably or arbitrarily withheld;
15.  What additional terms there are and warnings about what is and is not permitted to be included in these additional terms;
16.  No changes are permitted except if consented to and reduced to writing;
17.  Signatures.

Appendix (meant as a guide not as legal advice)

A.     When the form is to be used;
B.      Impact of a change in landlords;
C.      Renewing a tenancy agreement;
D.     Ending a tenancy;
E.      Giving Notice;
F.       Rent;
G.     Rent Discounts;
H.     Deposits;
I.        Rent Increases and Decreases;
J.        Maintenance and Repairs;
K.      Vital Services;
L.       Harassment;
M.   Discrimination;
N.     Landlord’s rights of Entry;
O.     Locks;
P.      Assignment and Subletting;
Q.     Guests;
R.      Pets
S.      Smoking;
T.      Smoke and Carbon Monoxide Alarms;
U.     Resolving Disputes


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