Lease Question

[mrbojangles]

I currently rent an industrial unit for which I would like to vacate Feb 1, 2012. I have given the owner 12 post-dated cheques up to May 1, 2012.

I had a 3 year lease which ended May 1, 2011. I did not sign a new lease. I approached the owner and said I want to leave Feb 1, 2012 but he said I can't leave until May1, 2012 because the 12 cheques I gave him is an implied 1 year lease.

Any lawyers hear wish to comment on this?

Thank you for your help.

 

[Ohyesuare]

Not a lawyer but the law is after the term of the lease is ended and a new one isn't signed it automatically switches to a month to month agreement with 60 days notice required to vacate. I very much doubt giving post dated cheques is an implied lease as it is illegal for the owner to ask you for post dated cheques. I would just give your 60 days notice in December and stop payment on the Feb to May 2012 cheques immediately as if he wants to be an ass he can cash them all now as the banks never really look at the date. I have had plenty of post dated cheques go through well before the date on the cheque.

 

[Petzel]

Yea, it's considered a month to month basis. Your landlord is just BSing you.

 

[fmahovalich]

You are good to go with required 60 day notice.

Inform him in writing....."Certified mail' if you have to of the date you are vacating...and also NOTIFY HIM that you have 'stopped' payment on the final few cheques.

if not....(He would be wrong) but he may try to put your cheques through, and when they bounce..he may report a fraud to the Police. I know its all civil stuff...but do it all in writing!

 

[oldjones]

Another non-lawyer [me] heard from: I believe the criminal issue underlying bad cheques and cheque fraud is that the guy writing the cheque is asserting the money is/will be in the account to match the cheque on its due date. By that standard, giving proper notice (which you might want to be able to prove) that the money will not be there makes the cheques meaningless paper, and doesn't expose you to danger of being accused of obtaining stuff by fraud.

Which will not necessarily stop your bank from honouring them if presented. But that's another question entirely.

 

[fmahovalich]

Thats is why I said to notify him in writing (Certified mail) is best.....and stop payment on the cheques.


If you only vacate the premise...which you have a right to do with 60 days notice....the cheques are sitting out there in limbo with a pissed off ex landlord. He may try to cash them!

If you don't STOP PAYMENT...now you have the fight of trying to get your money back.

If you do STOP PAYMENT...he may file a POLICE report.

All fo which is going to have you being in the right...but going through a lot of headaches!!!

 

[mrbojangles]

Thank you for your help. I have a good relationship with my landlord and have not approached him yet. I just wanted to get a sense of what the law is with respect to this. I will, of course do it in writing (registered mail) and put a stop-payment on all the cheques.

 

[KBear]

The laws for commercial leases are not the same as residential leases. Don’t believe the specific rules under the Residential Tenancies, like the 60 day notice, are relevant for commercial leases. This is more a contract law issue, when you write post dated cheques, does that imply some sort of agreement? I don’t know.

 

[sleazure]

The laws for commercial leases are not the same as residential leases. Don’t believe the specific rules under the Residential Tenancies, like the 60 day notice, are relevant for commercial leases. This is more a contract law issue, when you write post dated cheques, does that imply some sort of agreement? I as


don’t know.

That makes sense to me.

I'm not a lawyer either. A lease is a contract. It takes two to make a contract.

By giving him the postdated cheques, you've (kinda) made a promise to pay, but you didn't get anything in return from him. If there's nothing to stop him from giving *YOU* notice, how can there be anything to stop you from giving *HIM* notice? How can it be a contract if it binds you, but doesn't bind him?

 

[GPIDEAL]

The laws for commercial leases are not the same as residential leases. Don’t believe the specific rules under the Residential Tenancies, like the 60 day notice, are relevant for commercial leases. This is more a contract law issue, when you write post dated cheques, does that imply some sort of agreement? I don’t know.

BINGO. I was about to say this as well. I would advise the OP to read his commercial lease agreement carefully (if there is one). It will govern what happens when an initial term expires. A monthly tenancy is not unusual in such circumstances.

NOW, check your written lease agreement. IF it provides for a monthly tenancy after the initial or preceding fixed term has expired, AND if it provides that the agreement cannot be changed unless both parties agree to such in writing, then you may have an argument that the 12 postdated cheques you gave your landlord are not to be construed as extending the original lease by one year (because that is outside of the existing written agreement which governs the landlord/tenant relationship), and that your CURRENT notice* is more than sufficient if you have to leave at the end of February 2012.

*Notice for a monthly tenancy under a commercial lease is at least one clear month (IOW, if your rental month begins on the 1st but you give notice on the 15th, then you can't vacate until the end of the next month, not the 15th of the next month, because you're supposed to give one full month's notice).

 

[GPIDEAL]

That makes sense to me.

I'm not a lawyer either. A lease is a contract. It takes two to make a contract.

By giving him the postdated cheques, you've (kinda) made a promise to pay, but you didn't get anything in return from him. If there's nothing to stop him from giving *YOU* notice, how can there be anything to stop you from giving *HIM* notice? How can it be a contract if it binds you, but doesn't bind him?

In the absence of a written agreement that could otherwise override an agreement that is verbal or manifested by the conduct of the parties, I could argue that 12 postdated cheques implies a fixed lease term of one year, and that the landlord cannot evict the tenant until after the one year is up. One can argue that if the landlord accepted the 12 postdated cheques, and allows the tenant to stay after the 1st term ended, then he has by his conduct & acceptance of the 12 cheques, agreed to an extension of one year.

 

[oldjones]

In the absence of a written agreement that could otherwise override an agreement that is verbal or manifested by the conduct of the parties, I could argue that 12 postdated cheques implies a fixed lease term of one year, and that the landlord cannot evict the tenant until after the one year is up. One can argue that if the landlord accepted the 12 postdated cheques, and allows the tenant to stay after the 1st term ended, then he has by his conduct & acceptance of the 12 cheques, agreed to an extension of one year.

Which would be fine if the OP was trying to avoid eviction, but a very poor argument if he was trying to vacate. Unless of course, it's being made by the landlord.

 

[fmahovalich]

Whoa Whoa Whoa Whoa WHOOAAA


Boys Boys Boys...you are in way too deep.

OP - Go back to my original post...and you are good to go!

Best of luck at your new place!!

The twelve cheques is simply an issue of convenience...it has nothing to DO with placing either party under ANY CONTRACT...verbal, written or otherwise!!!

 

[simon482]

lease was up in may 2011 so was your commitment. you are month to month, so just pack up and be out for when you want to be and put a stop payment on the cheques.

 

[oldjones]

Whoa Whoa Whoa Whoa WHOOAAA


Boys Boys Boys...you are in way too deep.

OP - Go back to my original post...and you are good to go!

Best of luck at your new place!!

The twelve cheques is simply an issue of convenience...it has nothing to DO with placing either party under ANY CONTRACT...verbal, written or otherwise!!!

And as you (and I) said, the proper, considerate, efficient thing to do is to notify the landlord, and tell him that cheques beyond your last day will be void. The proper thing for him to do would be to return them.

 

[gww]

I currently rent an industrial unit for which I would like to vacate Feb 1, 2012. I have given the owner 12 post-dated cheques up to May 1, 2012.

Rules around Residential leases are likely totally not applicable to a commercial. The 60 day notice pertains to a residential lease.

 

[RUBGURU]

I'm an industial landlord. The end date on your lease is the end date. Have a look at your lease and see if you have to notify him 30 or 60 days before but for the most part it just ends on that date. Mostly the only time you need to notify them in writing is when you want to renew or extend. Ask him for the cheques back when you return the keys if he doesn't give them to you just do a stop payment to be safe. Industrial and Commercial is so much more simpler than residential. Hopefully you are not one of my tenants but if you are I will soon find out.

 

[HOF]

Commercial Leases Ministry of Municipal Affairs & Housing

Leases
If a lease has expired and the tenancy is continuing on a month to month basis, do the rights and obligations set out in the old lease still apply?

No, the rights and obligations set out in a lease do not renew on a monthly basis when the lease expires.

If a landlord is not fulfilling the obligations set out in a lease such as maintenance or providing utilities, what options does a tenant have?

A tenant has two options in this situation: to take the landlord to Small Claims Court to recover costs, or to go to Superior Court of Justice and get a court order requiring the landlord to fulfil the conditions of the lease. In court, the tenant could also ask for compensation for losses incurred as a result of the landlord’s actions, such as lost business. Tenants should speak to a lawyer to evaluate the options.

What are the options if a tenant wants to get out of a lease agreement?

According to contract law, a tenant is obligated to pay for the full term of a lease agreement, unless the lease has a clause allowing the tenant to end the tenancy early. However, tenants are allowed to sub-let or assign a lease to someone else, unless the lease prohibits it. As well, a landlord could choose to work out an agreement with the tenant, such as requiring rent payments until the unit is re-rented. If the tenant vacates before the end of the lease, it is expected that the landlord will try to find a new tenant. If the landlord cannot find a new tenant, or loses any money because of the breach of the lease, the landlord may be able to sue the tenant.

If a tenant pays taxes, maintenance, and/or insurance is he/she entitled to documentation of the actual costs?

The landlord should show the tenant these costs, but if the information is not given, the tenant should seek legal advice as to the best available remedy.

Where can I get a lease?

There is no standard government issued lease. The contents of a lease are up to the landlord and the tenant to negotiate. Landlords and tenants may wish to seek legal advice.



--------------------------------------------------------------------------------

Landlord and Tenant Responsibilities
If something is broken and needs to be replaced, such as a furnace, is the landlord responsible for replacing it?

It depends on what the lease says. If the issue is not addressed in the lease, then the tenant is likely responsible, because landlords are generally only responsible for maintaining the structural elements of the building, including the roof and walls.

Is a landlord required to provide heat, water and other utilities to a rental unit?

It depends on what the lease says. If the issue is not addressed in the lease, the tenant is generally responsible. If the service has been provided in the past but has recently been discontinued, the tenant may want to seek legal advice.

Who is responsible for maintenance/repairs if there is no lease?

When there is no lease, the tenant is generally responsible for maintenance/repair of the rental unit, with the exception of the building’s structure (walls and roof). In this situation, the tenant can either try to persuade the landlord to make repairs, take care of the problem themselves, or end the tenancy.


--------------------------------------------------------------------------------

Evictions
How does a landlord change the locks to evict a tenant if the tenant is always in the unit?

A landlord may choose to hire a bailiff for assistance; they are private companies and are generally listed in the Yellow Pages.

Can a landlord evict if the tenant has breached their obligations in the lease?

A breach of the lease by a tenant may be grounds to evict. The landlord should consult a lawyer or apply to the Superior Count of Justice to have a judge decide if the tenant has breached the lease, and if so, to have the lease terminated and the tenant evicted.

If a lease allows the landlord to evict if the lease is breached, what does the landlord have to do to proceed with the eviction?

The landlord must serve a notice of forfeiture and a reasonable amount of time must be provided for the tenant to vacate the unit.

Can a landlord evict a tenant from a commercial unit if the tenant is living in the rental space?

It depends upon the facts. If there is any question about whether the tenancy is residential or commercial, the Landlord and Tenant Board will hold a hearing and make a decision. Either the landlord or the tenant may apply to the Board. The Board can be reached at: 416.645.8080 or 1.888.332.3234.

At the hearing, the Board will consider the terms of the lease as well as look at all the circumstances. For example, despite what is in the lease, the landlord may have consented to a residential arrangement or encouraged the tenant to use the premises for residential purposes. If so, the landlord may be bound by the provisions of the Residential Tenancies Act, 2006.

However, a tenant may be living in a commercial space with a commercial lease in contravention of the terms of the lease or in contravention of city by-laws or other applicable laws, without the landlord's knowledge or consent. In this case, the landlord would likely be able to pursue the remedies available under the Commercial Tenancies Act or applicable common law.

Can a tenant be evicted for illegal activities within a rental unit?

If a tenant is breaking the rules of the lease, the landlord can serve a notice of forfeiture demanding that the illegal activities stop. The length of time for the tenant to fix the problem should be based on the seriousness of the breach: immediate eviction may be appropriate for serious problems. Landlords may apply to the Superior Court of Justice for an order ending the tenancy, and a “writ of possession” to evict the tenant.

If the lease does not prohibit illegal activities then the landlord may have no recourse, except for informing the police. Landlords should talk to a lawyer to evaluate their options.


--------------------------------------------------------------------------------

Rent and Deposits
Is last month’s rent or a security deposit required under the Commercial Tenancies Act?

The Commercial Tenancies Act does not have rules about last month’s rent or security deposits; it is up to the landlord and tenant to negotiate. The amount of a security deposit can exceed the amount of one month’s rent.

Can a last month’s rent deposit or security deposit be used to pay the rent?

No, unless the landlord agrees to it, or it was allowed under the terms of the lease, the deposit can only be used for its specified purpose, and the tenant is still expected to pay rent. Usually landlords require a security deposit that is returned when the tenant vacates the unit.

If a tenant does not have a lease and the landlord increases the rent, does the tenant have to pay the increased rent if the tenant decides to end the tenancy?

No, the tenant can give proper notice that he/she intends to leave, and pay the original rent for the final month.


--------------------------------------------------------------------------------

Tenants Moving Out
Can installed fixtures be removed when a tenant moves out of a unit?

Fixtures that are attached to the unit, regardless of who installed them, must stay with the property unless there is an agreement otherwise. Items of personal property that are movable can generally be removed from the property. If there is a dispute, it can be resolved in Small Claims Court for items worth $25,000 or less and in the Superior Court of Justice for amounts that exceed $25,000.

Fixtures are not detailed in the Commercial Tenancies Act. Whether items are fixtures and how they are to be dealt with have been established through the courts. Each case must be decided on its own merits. Legal advice should be sought.

When a tenant moves out what is the required condition of the unit?

Unless the lease states otherwise, a tenant is generally required to leave the rented premises in the same condition as when they moved in, minus reasonable “wear-and-tear”. If a tenant renovates a unit according to a requirement in the lease or with permission of the landlord, they will usually be able to leave the premises in the renovated condition, as long as there is no unreasonable damage to the property.

In general, fixtures installed by the tenant become the property of the landlord. However, if the lease stipulates that a tenant must remove fixtures, the tenant is usually responsible for ensuring that any damage due to installation or removal is repaired. If the tenant damages the property, leaves the premises in a condition that causes the landlord a financial loss, or does not comply with the terms of the lease, the landlord may be able to sue the tenant.

If a tenant leaves property behind after moving, does the landlord have to keep it?

There is no legislation that deals with abandoned property. Generally, if the property is of no value, then it may be acceptable for the landlord to dispose of it. If the property has value, the landlord should make all reasonable attempts to inform the tenant that it should be retrieved. If the landlord throws it away or sells it too soon, the landlord may be at risk of being sued by the tenant. Landlords may wish to consult a lawyer for advice.



--------------------------------------------------------------------------------

Other
Who is responsible for maintaining the unit to Ontario Fire Code standards?

The law provides that the responsibility rests on both the landlord and the tenant. The lease may provide some guidance in this respect but legal advice should be sought.

Does a landlord have the right to a key to a tenant’s rental unit?

No, the landlord does not have a right to a key or to enter the rental unit unless the tenant agrees to it or the lease has addressed this issue. The police or fire department will force entry in cases of emergency.

Can a landlord give a tenant 24 hours notice to enter the unit for showings or inspections?

No, unless the tenant agrees to it or the lease has addressed this issue.

Does the Commercial Tenancies Act cover storage units?

No. The Repair and Storage Liens Act does. It allows storage providers to seize personal property for non-payment. For information on the Act you can call 1-800-268-1142.

Can a landlord or a lease force a tenant to be open for business on a statutory holiday?

No, the Retail Business Holidays Act takes precedence over a lease.

Can a tenant hold back rent if a landlord has not met the lease obligations?

No, this would put a tenant in a position to be evicted. A tenant may apply to court if a landlord fails to meet obligations.

Can a landlord charge GST?

Yes, if a landlord is registered for GST, the landlord can collect GST from the tenant. Even if the lease does not stipulate that the tenant must pay GST, the landlord can ask the tenant to pay it. For more information on GST requirements you can contact the GST Information Line of the Canada Customs and Revenue Agency toll-free at 1-800-959-5525.

Will the government assist me in a commercial tenancy matter?

The provincial government does not intervene in commercial landlord and tenant disputes.

The Law Society of Upper Canada runs a lawyer referral service at 1-900-565-4577. For a charge of $6 the Law Society will provide the name of a lawyer who will provide a free consultation of up to 30 minutes.

http://www.mah.gov.on.ca/Page4913.aspx