Comments on: Can my lease keep telling me what to do after it's dead?

Question: Can my lease keep telling me what to do after it's dead?

Beardman — Thu, 02 Jul 2009 06:57:31 -0800

Can an Ontario lease stipulate that, once the lease is up and I switch to month-to-month tenancy, I still can't move out between October and April?

Background: my 2 year lease ends on August 31st. I want to get a different apartment, but for personal reasons I can't move in September. So I want to be a month-to-month tenant for September, and then move for October 1st.

However, my lease includes this clause: "The Lessee agrees that once he/she becomes a month to month tenant that he/she will not vacate the premises or move out during the months of October through April." Obviously this is because it's harder for them to find a new tenant during these months, although I know other tenants have moved in and out of the building during those months while I've lived here.

Is this clause void? Is it a month-to-month tenant's problem if the apartment is harder to rent in the fall, winter, and spring? It seems to me that it oversteps the bounds of a lease to say "And when this lease expires and you become month-to-month...you're still on a de facto lease for 6 months of the year!" However, I can't find anything about this (either way) in the tenancy act. All I know is that the people I'm renting from have stuck other clauses into the lease that I know are void, such as a "no pets" clause which is void in Ontario. I'm hoping this is another one.

By: maxpower

maxpower — Thu, 02 Jul 2009 07:10:12 -0800

My family was in a similar situation to you (but the opposite). We are the landlords and we didn't want people on a month to month lease leaving during the summer. Originally, we had a clause similar to what you have quoted above. What we now do to make it more enforceable is to basically make the tenant sign a new short term lease that covers the summer period.

As you pointed out with the pets thing, just because the contract says something doesn't mean it is enforceable. That all said, you want to move out by October at which time the clause activates, it appears as though this shouldn't even matter to you.

By: TypographicalError

TypographicalError — Thu, 02 Jul 2009 07:16:44 -0800

Internet lawyers won't help you when late September rolls around and you have to pay out rent through April. Find a lawyer in Ontario who can tell you with certainty.

By: Beardman

Beardman — Thu, 02 Jul 2009 07:17:45 -0800

Maxpower, thanks for your response. I take it you realized that such a clause isn't, as it stands, enforceable? Also, my interpretation of "October through April" is that it includes leaving on October 1st. If it said "after October" it'd be different...but maybe you're right. I guess I'll have to ask.

Any other experience with this?

By: hayvac

hayvac — Thu, 02 Jul 2009 07:27:33 -0800

The Ontario Landlord and Tenant Board can give you a definitive answer to this in 10 minutes. Call them.

By: Brockles

Brockles — Thu, 02 Jul 2009 07:46:25 -0800

Can you not just agree/tell them you will leave on September 30th? That leaves you with that clause being irrelevant. Leave your stuff in the truck/van overnight and stay at a hotel for one night if you have to, as that is a hell of a lot cheaper than 7 months rent.

By: Beardman

Beardman — Thu, 02 Jul 2009 08:07:46 -0800

OK, I called the Ontario Landlord and Tenant Board and the operator laughed off the clause. "No, it's not enforceable whatsoever. It's just like "no pets"." Thanks for your replies!

By: maxpower

maxpower — Thu, 02 Jul 2009 11:02:33 -0800

If I were in your shoes, and depending on how your landlord relationship is, I'd tell them in mid August that you are out at the end of September AND that you know the clause isn't valid. I still think that when you rent month to month, you rent one month at a time. IF you were to give notice near the end of August, and move out September 31st, you would have been fine.

Regardless, your landlord might get ornery and make things difficult. Start a journal...

By: geodave

geodave — Thu, 02 Jul 2009 11:37:05 -0800

Make sure your deposit comes back with interest ;)

By: evadery

evadery — Thu, 02 Jul 2009 13:41:26 -0800

IAAL, IANYL - Just because the clause IS unenforcable, doesn't mean you don't have to treat the situation seriously. Take notes about your call with the person from the OLTB and email them to yourself as a record. Hopefully you have the name, number and time. You might want to call back again to get this info just to do it right.

Regardless of if you are right or wrong, be prepared for your landlord to a) threaten to sue you, and b) withhold your deposit. To this, when you are providing notice, I would do so in writing and make sure their responses are in writing as well. Give them more than enough notice under your lease, and be prepared to state conclusively that this section is not allowed. Have the appopriate section of the code in your back pocket in case you need it; and it may be worth double checking the code just in case (I deal with operators like the one you mentioned in my practice, and while many are on the ball some are not, and you should make sure). If you do eventually have to go to court, this documentation will make your life significantly easier; and hopefully will make it easier to exit what may be an annoying lease to exit.

If you do feel like lawyering up, there are some cheap/free services that may be able to help you in Ontario. MeFi mail me if you want specifics.