If you have a client who is interested in buying a property, but it has a tenant, make sure to extend the closing date. Sixty days of written notice is required to terminate a tenancy.*
Another glitch: the date the tenancy ends must coincide with the end of term or rent period. This could result in a full year passing before your client can move in.
For example, if the tenant’s lease ends Dec. 1, 2018, your buyer can’t move until Dec. 1, 2018 even if the closing date is Nov. 1, 2017. And if you’re thinking of “fudging the dates” by giving less notice than is required, don’t! If the termination date is so much as a day off, the notice is invalid, and you’ll have to start all over again.
Previously, landlords have not been required to compensate the tenant if the landlord gave proper notice and acted in good faith. That’s no longer so. Section 48.1 of the RTA requires that the landlord compensate the tenant equal to one month’s rent. This amount has to be paid prior to the termination date specified on the N12 notice. This means a tenant can take the money and still refuse to leave!
Some real estate salespeople have encouraged investor buyers to buy a place and evict a tenant under the pretense that the buyer, or her family member, is moving in. Under the new rules, if the buyer gets caught, she can be fined up to $25,000. This fine can also be levied if the buyer decides to move out before 12 months are up following the date of eviction, rent it to her cousin and charge rent or demolish the place.
Given these rules, it’s important that you get a copy of the tenant’s lease. This way, you can gauge when your buyer can move in and how much she’ll have to pay the tenant to move out. It’s also important that you always use the updated forms found on the Landlord and Tenant Board’s website, because the previous forms are no longer valid.
To avoid extortion by the tenant – a practice whereby tenants demand money in order to move – make sure that your buyer, once she becomes the landlord, files an L2 application and obtains an order terminating the tenancy pursuant to the notice prior to the termination date. Ensure that the order references the payment so that it is documented that you will be providing the tenant with proper compensation. Getting an order in place speeds up the process if the tenant refuses to move following the notice date and prevents the tenant from extorting the landlord by demanding more and more money in order to move out.
While affordability is an issue and the housing reforms attempted to solve this matter, the reforms have disproportionately hurt landlords and those who are scrimping and saving to buy a home. As such, buyer agents, as well as seller agents, must be aware of these financial and practical changes. They can destroy a deal.
- This story has been updated from the original posting, which incorrectly said the term for written notice had been changed from 30 days.
Natalka Falcomer is a lawyer, real estate broker and Certified Leasing Officer who started her real estate career in private equity. She created, hosted and co-produced a popular legal call-in show on Rogers TV and founded and recently sold Groundworks, a firm specializing in commercial leasing law. She is currently the Chief Real Estate Officer of Houseful.ca, leading the development and expansion of the company’s personalized home buying and selling experience for the Canadian market. She sits as an advisor on NAR REACH Canada and is the former multi-year board member of the Ontario Trillium Foundation.
