How to Evict a Tenant for Non-Payment of Rent

This process starts with serving a form called an N4. This form is specifically to evict a tenant due to Non-Payment of Rent.

So, you wish to serve your tenant with an N4 notice to End your Tenancy because of Non-Payment of Rent

This process seems simple enough, however many independent landlords who try to complete an N4 often end up with errors in the application that would prove to be fatal at a hearing. 

What is a form N4?

Firstly, what is an N4? An N4is a notice you can serve on your tenant to evict the unit for one reasons:

1. The tenant has not paid their rent when they were supposed to 

   1. e.g. Tenant normally pays on the 1st of every month, but they do not pay on the 1st of this month

The N4 may only be used in the above case. If you have a tenant who is continuously paying rent late, you c an serve a form N8 instead, with a trail of N4s to prove that they were paying rent late. 

How do I Serve an N12?

The landlord must only serve an N4 in the above to situations. In addition to that, there is a notice period for every N4 that is served. The tenant must be given at least 14 days notice before the following application, an L1, can be filed with the Landlord and Tenant Board. 

The notice must also be served in one of a few different ways. Leaving/taping the notice to the door is not acceptable and would not be accepted at a hearing with the Landlord and Tenant Board. 

Here are the following ways an N4 notice may be served:

1. Hand it directly to the tenant or to an adult in the rental unit;

2. Leave it in the tenant's mailbox or where mail is ordinarily delivered;

3. Place it under the door of the rental unit or through a mail slot in the door; 

4. Send it by fax to a fax machine where the tenant carries on business or to a fax machine in their home;

5. Send it by courier; or 

6. Send it by mail. 

The notice can not be taped to, or left at a door. It must be served using the one of the above methods.

Also important to note: If you send the form through mail, you must add an extra 5 days before it can be considered to be served. You must add 1 extra day if sending it by courier. You may only serve it via email if your lease agreement allows it to be served by email. 

How to Apply to the Landlord and Tenant Board

It is important that you keep a copy of the notice you give your tenant. You can apply to the Landlord Tenant Board (LTB) for an order to terminate the tenancy immediately after giving the notice to the tenant. To make this application, you need an Application to End a Tenancy and Evict a Tenant (Form L1). You will also need to file a copy of the Notice to End your Tenancy (Form N4) you gave the tenant, and a Certificate of Service to tell the LTB when and how you gave the notice to the tenant. 

You must apply no later than 30 days after the termination date you put in this notice. 

Can the Tenant Void the Notice?

Yes. The tenant may void the N4 notice if they pay before the notice period is over.  At an LTB Hearing, it is also likely that the tenant will be allowed to pay the missing rent within 30 days to void any eviction orders.

Can I Charge 'Late Fees'?

No. As a Landlord, you can not charge any late fees for missing rent.

What is the Possible Outcome at a Hearing?

There are many possible outcomes at an LTB hearing. Ultimately, if the tenant did not pay rent, and does not pay any rent after, they will likely be evicted. However you require the proper evidence to prove that they have not paid rent. This requires the original N4 notice, and possibly items like 'bounced' cheques if relevant. 

Once a hearing has concluded and the adjudicator issues their order, there are likely two outcomes:

1. An eviction order that can be voided if the tenant pays within a certain amount of time

2. A 'Payment plan' order for the tenant to pay the missing rent back over a certain period of time

If a tenant breaches either of these orders by not paying, the landlord may apply to the LTB for an expedited application to evict the tenant without a hearing for breaching the order's conditions.

What are the Defenses to Non-Payment of Rent?

There is a defense for Non-Payment of Rent. This comes under Section 83 (1) of the Residential Tenancies Act. This is because a Landlord has an obligation to the tenant to keep the unit in good repair. If a tenant is withholding rent due to a landlord's refusal to complete repairs, the LTB will take that into consideration. If this is found to be the case, the tenant will not be evicted but will be ordered to pay the rent back on the condition that the landlord fixes issues in the unit.

If a hearing is held, the Board must review and consider all the circumstances to determine whether or not to exercise its discretion to refuse an eviction. For example:

• in a case involving an allegation of tenant "fault" (such as eviction for arrears or illegal act), consider whether the reason is serious enough to justify eviction,

• in a case involving a landlord's allegation of interference with reasonable enjoyment, consider whether refusing to evict the tenant would result applications against the landlord by other tenants for interference with their reasonable enjoyment, or

• consider whether refusing to evict the tenant would result in an unreasonable financial hardship to the landlord.

In "having regard to all the circumstances" the Member shall consider the relevant circumstances of the tenant and landlord and the impact on other occupants in the residential complex in delaying or denying eviction. Therefore, if the tenant's request presents a possible reason for refusal, the landlord may then explain why the refusal to evict would be unfair to them or to other occupants in the residential complex.

Where the Board exercises its discretion to refuse to evict a tenant, the Board may attach conditions to such an order that one or both parties must follow.

How Can I Get Help?

If you are a Landlord who has a tenant who is not paying rent, consider hiring a professional. Kaufman Paralegal Services has extensive experience in this area. Any small error in your forms or application can lead to dismissal of your matter; don't give it up to change. Hire an experienced paralegal who will complete your matter right, the first time. 

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Michael Joseph Kaufman

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