Need Help....I am a landlord breaking a lease!

[deedles]

I need some legal advice here about the breaking of an apartment lease.

I am currently renting an apartment in a building, and have been here for over a year. I am on a month to month lease. Back in September, I signed a new roomate to a one year lease. I am sub-leasing the room in my apartment.

My new roomate is an immigrant from Mexico who lost his job in late October, because he was working with a student visa. He ran into some financial trouble, and had to borrow money from a friend to cover the December rent. As it turned out, he ended up going back to Mexico for the month of December. He said that if he went back home for a month, and then came back to Canada, he would be able to get his work visa. He had no money, so I agreed to use his last month's rent (that he paid back in Sept) to cover his January rent to help out.

In early December, I decided that I was going to move out of the building and move in with a friend. I emailed my roomate in Mexico (on Dec 1) and gave him the notice that we were moving out on Jan 31. He just got back today, and is upset that he has to move out.

Legally, I signed him to a one year sub-lease (Sept 04 - Sept 05), but already gave the building the 60 days notice and we must leave by Jan 31. He told me that he is upset that he has to move, but will probably move out anyway. But he did mention that he may look at small claims court to settle the dispute. What are my chances of winning if he did take me to court?

I know that technically, I did break the lease that I signed him to, but at the same time, he was a guy who left the country because he was working illegally, could not pay rent and I had to use his deposit to cover January rent.....would any of that hold up in court if he decided he wanted to take action?

Is there any way out of this for me?? Any help would be appreciated! Thanks

 

[Keebler Elf]

I'm not a lawyer, but I think his case would hinge on whether or not he's here legally now. If not, he'd never take you to court b/c you could just report him to immigration. If he is, I would suspect you could be on the hook for some damages due to breaking the sub-lease. Of course, it may be that illegal immigrants are unable to enter into a legal lease agreement in the first place, so if he was illegal at the time the lease was signed it may be ruled null and void. But what's he going to sue you for? What are his damages? The cost of finding another apartment? That's not going to be $5,000...

 

[deedles]

Keebler,

Good point about signing the lease at the time he was working illegally.

Apparently, he now has his papers and everything is OK, so I guess he is here legally. Damages would not be much. Probably wouldn't even be worth going to court in the first place!

 

[KBear]

The chance that he would take you to court is somewhere between slim and none. It would take too much time and effort on his part with little to gain.

If you are sharing a room, then this may fall under a different act, (Innkeepers Act?) and you would not have to give him much notice to vacate, 2 weeks maybe. However, because you do have a contract signed it may become more legally complex. Also he did not pay the rent, left the country, and you would not know when he would be coming back, or if he would come back at all. What else are you to do, hold the room for this illegal immigrant, who may not be permitted back into the country, indefinitely.

 

[deedles]

It is a 2 bedroom apartment, and I have subleased a room out to him, so he does have his own room.

He told me that he would be coming back, I just wasn't sure exactly when. I agreed to help him out with the January rent, so not sure if that would hold up. But you are right KBEAR, there would be little or nothing to gain by taking me to court.

 

[KBear]

Because you are sharing the kitchen, this would not fall under the Tenant Protection Act. So, not sure how the contract was written, but it is a different set of rules that apply, and you can not sign away your rights, as an Innkeeper? in this case, under the law.

Could tell him the courts are a great place to settle disputes, and ask him the name of his lawyer, so that your lawyer will know who to expect notice from. Then take his shit, throw it out into the hallway, and change the locks jk, sort of..

He is just trying to squeeze you for some money. Dont worry about it.

 

[wop]

Don't sweat it...just try and learn from it.
You were both trying to manipulate the situation for your own best advantage without showing much regard for the other party...so why not call it even?
Sounds like you are trying to guarantee his commitment to you without keeping your obligation to him. It is rare to have your cake, and eat it too, without wearing some on your chin.
As was previously stated, I am not even sure if a "Lease" between roommates is enforceable, I think you need something more like a contract or agreement, in which case the Landlord and Tenant Act rules do not apply.
Next time, if you are on a month to month(which requires 60 days written notice anyway), why not put your roommate on a month to month too?
It seems that being truthful with each other could have avoided the whole thing.

 

[zzap]

What kind of rental agreement did you have with him? Since you’re subletting you would have had to have been first granted permission from the building owner under the Tenant Protection Act, 1997 Ontario, or you would have been in violation of your own lease.

http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/97t24_e.htm
Subletting rental unit

#18. (1) A tenant may sublet a rental unit to another person with the consent of the landlord. 2000, c. 26, Sched. K, s. 6 (5).
Same
(2) A landlord shall not arbitrarily or unreasonably withhold consent to the sublet of a rental unit to a potential subtenant. 1997, c. 24, s. 18 (2).
Charges
(3) A landlord may charge a tenant only for the landlord’s reasonable out of pocket expenses incurred in giving consent to a subletting. 1997, c. 24, s. 18 (3).
Consequences of subletting
(4) If a tenant has sublet a rental unit to another person,
(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and
(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy. 1997, c. 24, s. 18 (4).
Overholding subtenant
(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy. 1997, c. 24, s. 18 (5).

 

[joebear]

I'm not a lawyer, but I think his case would hinge on whether or not he's here legally now. If not, he'd never take you to court b/c you could just report him to immigration. If he is, I would suspect you could be on the hook for some damages due to breaking the sub-lease. Of course, it may be that illegal immigrants are unable to enter into a legal lease agreement in the first place, so if he was illegal at the time the lease was signed it may be ruled null and void. But what's he going to sue you for? What are his damages? The cost of finding another apartment? That's not going to be $5,000...

Wrong. Being an Illegal or as an immigration lawyer would say a person with no status would not bar him from suing you in small claims court. You are equating having no immigration status as having no standing to sue someone in court. Two different concepts at law. For a person to have no standing means basically he is not a party to the action. (eg sufficient nexus between the alleged tort and the party trying to sue)

There is another concept called forms conveniens (or what ever the latin term is) that says you are in the wrong jurisdiction to sue ( eg suing someone in Ontario for an accident that happened in New York). But that does not apply here.

If you were an illegal in Canada and the immigration officers beat the living shit out of you in the detention cell, don't you think you would be able to sue for that ?

You did mention that he had a student visa. I assume the student visa was valid at the time of signing the sub-lease. When his student visa was about to expire he did the right thing to leave the contry temporarily to correct his legal immigration status in Canada. If he overstayed his student visa he would have a much harder time getting back into the country. It seems this guy is not stupid. Mexico is part of NAFTA and it is pretty easy to get a TN visa, trade nafta visa. or a work permit in one of the allowed categories.

I forget there is a hotline for landlords for free legal advice in Toronto. google landlords helpline or look at the ontario legal aid website for legal clinics.

I think you would be on hook for all of his expenses of finding another place. This guy is out his 1st and last months rent, previous damage deposit, moving expenses, time off for work to look for another place, it will add up.

I am surprised that you were allowed to sub-lease the original lease as many leases prohibit that.

 

[joebear]

Landlord's Self-Help Centre
477 Richmond Street West
Suite 609
Toronto M5V 3E7
Telephone: (416) 504-5190
Fax: (416) 504-1932
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http://www.landlordselfhelp.com/


Advocacy Centre for Tenants Ontario
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Telephone: (416) 597-5855
Fax: (416) 597-5821

http://www.acto.ca/

 

[zzap]

I’ve seen a case on Judge Judy where the guy didn’t have his rent money and asked the landlord to use his last months rent deposit. After that the Landlord wanted him evicted… Judy said that since he had asked that his last months rent be use to pay his rent that this constituted his last rental month and a termination of the rental agreement what ever it was from that point on. Bottom line is … you never ask that your last months rent deposit be used to cover any months rent or you basically NOT paying your rent. Last months rent should only ever be used to pay the last month rent upon leaving a apartment.

You should have a strong case against him... be sure to tell him that and also be sure to counter sue him for something if he dares to sue you.

 

[2fast]

Before anything else, did you have the right to sublet to him in the first place according to your own lease? If not, then your sublet is illegal and can not be enforced in court plain and simple.

 

[zzap]

Before anything else, did you have the right to sublet to him in the first place according to your own lease? If not, then your sublet is illegal and can not be enforced in court plain and simple.

Thats what I was thinking... but who become liable for this? Is it the fault of the Mexican dude for not checking?

 

[joebear]

Even if it is an illegal sublet he still has legal remedies as landlord created an expectation that Speedy Gonzales would have a roof over his head. He may not a have a remedy under the landlord tenant act but he still have a valid contract.

Landlord was stupid to allow Speedy to use last months rent as current rent because legally all his rent is paid up. Now legally he may owe you money for a loan but I think that is a stretch as you allowed him to use last months rent as the current rent. He is all paid up.

 

[joebear]

Thats what I was thinking... but who become liable for this? Is it the fault of the Mexican dude for not checking?

It is landlords fault as he offered something he could not deliver, he created an expectation of a roof over Speedy's head and he did provide one.

Landlord is not going to have any claim against Speedy, and for what ? last months rent ? dont think so.

 

[joebear]

Bottom line is … you never ask that your last months rent deposit be used to cover any months rent or you basically NOT paying your rent. Last months rent should only ever be used to pay the last month rent upon leaving a apartment.

You should have a strong case against him... be sure to tell him that and also be sure to counter sue him for something if he dares to sue you.

Your case against him is weak and his is strong. You allowed him to use last months rent as current rent, there is no rent outstanding as last months was paid up and you allowed him that same rent to apply to the new month. You gave him free rent for a month.

 

[chunkylover53]

I've -heard- that there's no legal basis for a landlord to require the last month's rent in advance. In addition, the renter is entitled to interest on any such deposit given. I wonder if that a)is true b)has any effect in this case?

 

[zzap]

I've -heard- that there's no legal basis for a landlord to require the last month's rent in advance. In addition, the renter is entitled to interest on any such deposit given. I wonder if that a)is true b)has any effect in this case?

When I rented an apartment in Toronto they always gave us the interest made on the deposit once per year.

 

[joebear]

When I rented an apartment in Toronto they always gave us the interest made on the deposit once per year.

landlord is suppose to hold that money in a trust account earning interest.

 

[antaeus]

regarding contract:

Agreement, deal, lease, written, verbal, implied, whatever; as long as it fulfills "offer-acceptance-consideration" it is a contract. An illegal contract is for illegal activities, signed under duress, while intoxicated or with a minor. Only other grey area is one sided contracts such as Julio living on street jacked by crackheads and you show up with a get-off-street contract, or software eula, take your pick.

Based on your description you entered a legal contract with Julio. You are in a legal contract with your landlord: different cases, different contracts. Unless your contract with Julio spelled out terms and conditions, Julio using "last months rent" probably does not constitute ending habitation.

Probably only liability for damages in court would be x months rent until Julio can find reasonably similar alternate living arrangement. Small claims court is generally for actual loss, not anticipated loss or punitive damages claims.

You signed a contract, it reads like you want out of it because it's no longer convenient for you and you're trying to find supportive reasons (Julio illegal, short on cash...), you gotta live up to it, that's the essence of a contract.

Best advice though was previous poster - be very nice to Julio, help him out and document your efforts. Mitigate your losses. CYA.