N12 outside LTB jurisdiction

THE FACTS

1. The landlord brought a N12/L2 application to terminate the tenancy and evict the tenant.
2. In attendance at the virtual hearing the Landlord with her legal representative and the tenant with his legal representative.
3. The tenant’s two daughters were not named in the lease as tenants but were named on a rental application as occupants. Neither daughters attended the hearing.
4. At the commencement of the hearing the tenant, raised two preliminary issues,
   1. the tenant claimed that he was not a tenant and signed the lease as tenant solely because he was renting the unit on behalf of his daughters; and
   2. the N12 notice was never properly served upon the tenant.
5. The Member found that the tenant was renting the unit on behalf of his daughters and as a result, there was a deemed assignment of the tenancy to the tenant’s daughters As a consequence of his finding, The Member dismissed the landlord’s application.

 FACT & LAW

6. The landlord submits that Member made an unreasonable finding of fact on a material issue which could potentially change the result of the order. In his finding, the Member characterizes the relationship between the tenant and his daughters as quite common in many circumstances where a parent signs a tenancy agreement on behalf of their child with no intention of living in the rental unit while also paying the rent on behalf of their child.
7. The landlord further submits that this analogy fails to address the rationale that forms the basis for these types of relationships. Parents sign on behalf of their children because children do not typically have the income or credit worthiness to provide a landlord with any assurance that the rent will be paid.  Parents sign these types of agreements as co-tenant or guarantor so that the landlord can hold the parent liable for any breaches of the lease including the obligation to pay rent.  In his finding, the Member overlooks this basic rationale and completely absolves the tenant from any liability under the lease.  The Member achieved this outcome in his determination that there was a deemed assignment of the tenancy notwithstanding the fact that none of the parties had made a request or applied for an assignment of the tenancy or raised this issue at the hearing.
8. The landlord further submits that it is an unreasonable finding of fact that the landlord would sign an agreement with the named tenant, then for no reason, simply absolve the tenant from any liability under the lease and replace him with his daughters without reviewing her creditworthiness or obtaining any assurance that she was able to pay the rent.
9. It is also an unreasonable finding of fact that the Member would take issue with the fact that the landlord failed to call her property manager to lead evidence with respect to the tenant renting the unit on behalf of his daughters yet accept the bald assertion from the tenant that his daughters were the tenants. The Member accepted this assertion without taking any issue with the fact that the daughters were not present at the hearing to protect her interest and that there was no corroborating evidence put before the Member to confirm that the tenant  had the authority to transfer the liability onto his adult daughters.
10. The daughters were not present at the hearing and were not named as a tenants on the lease agreement. The daughters were not respondents to the landlord application nor were they named as an interested party in the litigation.  Notwithstanding their non-status in the litigation, the Member, without any form of consent of agreement from the daughters, assigned the tenancy to them and by so doing, assigned all the obligations of the tenant on the lease to his daughters including the obligation to pay $5,000.00 per month in rent.  The landlord submits that this is an unreasonable exercise of discretion by the Member that was outside the usual range of remedies.  It is further submitted that the Member’s action in assigning all the obligations under the tenancy to a non-party without any notice being given to that non-party and without obtaining any consent or agreement from that non-party is an unreasonable exercise of his discretion.
11. The landlord submits that the Member unreasonably exercised his discretion in assigning the tenancy to the daughters has resulted in an order outside the usual range of remedies of the LTB.
12. The landlord submits that the Member erred in law in his reference to the definition of rent in support of his finding that rent was paid by the tenant on behalf of his daughters. The Member totally overlooked the fact that there was no evidence before him to support his assumption that the daughters had any intention to be named as  tenants on the lease nor was there any evidence before him the daughters or any other party was seeking an assignment of the lease.
13. There is no juristic reason to off load the obligation of the lease to the daughters without any notice to them or confirmation that it was their intention to be solely liable for the obligations of tenant under the lease including the obligation to pay $5,000.00 per month in rent to the landlord.
14. With respect to the issue of the tenant being named as a tenant in another unit and the assumption in paragraph 10 that states, “the tenant is not living in the rental unit and has not for quite sometime,” the landlord submits that there is no legal restriction barring an individual from holding the status as tenant on numerous rental unit. Further to this, if at some point in time the tenant ceased being a tenant in the rental unit, there should have been an expectation that the landlord would have received some kind of notice from the tenant.  No evidence was put forward by the tenant to validate the Member’s assumption.
15. In light of the arguments submitted herein, it is respectfully requested that the order of the Member be set aside and the application of the landlord be granted or in the alternative, that a hearing de novo be scheduled on the landlord’s application.