Can my landlord really kick me out?

June 16, 2009 12:19 PM

My landlords want to kick me out and move into my apartment. They gave me the 60 days notice, but I have some questions about the validity of their notice.

I was checking out the Residential Tenancies Act, and it seems that there is a clause that says they can't move in unless they have previously lived there (72 b), which they haven't.

Also, they said they would rather take over the apartment of the guys who live upstairs, but can't because they have a lease until March 2010. Since we are on month-to-month, they said they could take over our place instead.

Are either of these things true? Could they in fact take the other apartment instead?

posted by krunk to law & government (17 comments total)

How many units are in the building?

If it's four or less it may be that they can otherwise my reading is that they can't unless they, or one of their children, parents, etc., has lived there as you noted.
posted by bz at 12:26 PM on June 16

Sorry to hear that. Did you read your contract carefully? Did it say anything about that?
posted by heather-b at 12:30 PM on June 16

The building has 4 units, ah, shit -- I read that as an "and" clause, not "or". Thanks for figuring out that one!

So, that part is out the window, but what about kicking the guys upstairs out instead?
posted by krunk at 12:34 PM on June 16

I was under the impression that with a month-to-month lease, your landlord is only required to give you one month's notice if he or she wants the apartment vacated. I suppose there could be more to it than that, depending on your particular agreement, but isn't this flexibility the whole point of a monthly (rather than yearly) lease?
posted by Jemstar at 12:36 PM on June 16 [2 favorites has favorites]

I am not your lawyer, but I believe you're misreading the Residential Tenancies Act. The previously-lived-there bit only comes into play when the landlord apply to the Board to end the lease and kick you out. Your situation is different. The landlord isn't applying to the Board, and as others have pointed out, you're on a month-to-month.

48 directly addresses landlords moving into their tenant's old digs once the lease is up. There's nothing about having lived there before.
posted by joyceanmachine at 12:39 PM on June 16

If you're in Canada I'm not sure, as the laws do vary widely even within the US, but there are several loopholes available to people in NY. Namely, rent stabilization. If you live in a rent stabilized unit, (paying less than $2,000 per month, and leased on before a certain, fairly recent, if I remember, date), the property vacation may be limited or made unlawful depending on the case and the building (such as the # of units noted above), especially if there are small children having to move schools.

That said, Landlord residency is a common evict reason, with little legal recourse, as it basically is their building, so once a lease is up there's no reason why you wouldn't be able to move in to something you own.

You can try taking it to Housing Court, if you feel that strongly about it, but you have to be aware that you will eventually lose against a determined landlord. Just the way the cookie crumbles.
posted by Debaser626 at 12:46 PM on June 16

Cool. Does this apply to the people who aren't on month-to-month? My landlord would actually prefer the other apartment, but thinks that they can't be removed due to their lease.
posted by krunk at 12:50 PM on June 16

I'm not a lawyer and am not offering anything resembling legal advice. However, would you want to live in an apartment where you know the landlord wants you out?

If it were me, I would talk to the landlord and see if they'll give you enough time to find a new place to live.
posted by theichibun at 1:14 PM on June 16

The landlords are actually nice, and we get along well. They're just moving back to Toronto and need a place to live. I think they'd get along better with us (married couple) than the other tenants (couple of young guys). The other apartment is bigger too, and they said they'd prefer it.
posted by krunk at 1:24 PM on June 16

The landlords cannot evict your neighbours until the end of their lease. You can try to appeal it, because they need to bring it to court to evict you, but that will just set you up to be in an bad relationship with them. The landlords can certainly ask if your neighbours would like to be released from their lease early, but they can't force it.
posted by jeather at 1:55 PM on June 16

Can you go to your neighbors independent of the landlord and say I'd like your apartment for somebody who's moving to town. Assuming I can get the landlord on board, how much would you want in order to end your lease early and move to a new building?
posted by willnot at 2:03 PM on June 16

You're on a month-to-month lease. I'm not sure why you think the landlords have an obligation to extend it.
posted by oaf at 2:33 PM on June 16

Interesting joyceanmachine.. 72 is in the "Application by Landlord After Notice of Termination" section, but 48 is in the "Notice by Landlord at End of Period or Term" section. I find that simply bizarre. It is as if they are saying that the landlord can give notice under 48, but that the board will not evict unless conditions under 72 are met. Also slightly unusual, 49 talks about not more than three units where 72 talks about not more than four (they are different sections dealing with different circumstances, but only slightly different).

Anyway, a friend of mine took an issue before the Landlord and Tenant Board here in Toronto, and it took at least 18 months to settle. In fact, it probably hasn't been completed yet, because I'm sure I would have heard something.. That makes it more like 22 months. I don't think landlords always win cases at the board, but.. Well, perhaps "everybody always loses" is more appropriate. It is a ridiculously arduous process for all parties involved.
posted by Chuckles at 2:40 PM on June 16

I'd definitely do as jeather suggests: see if the landlords will ask if the upstairs tenants to end the lease early. (If I was them I wouldn't, because we all know apt hunting in Toronto for September is teh suck, but it's worth a shot.)
posted by Beardman at 2:43 PM on June 16

It's always been my understanding (in Canada) that the landlord's right to move a family member into his own property would trump your rental aggreement.

72. (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 48 or 49 unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2006, c. 17, s. 72 (1).

..it's basically recognizing that the landlord's right to live in property that he personally owns supersedes anybody else's claim on it.

That said, I think a lot of landlords make use of that principle do boot people out, do renovations and then suddenly, "Oh, we don't need to move in after all! Well, I guess we'll just increase the rent and find a new tenant."
posted by bonobothegreat at 3:03 PM on June 16

If you're on a month-to-month, then that's your fault, dude. Even if you force them to let you stay, they can just not re-up your lease the next month.
posted by phrakture at 3:30 PM on June 16

Cool, thanks for all the helpful comments. Time to hit Craigslist :^)
posted by krunk at 4:26 PM on June 16