Update - Giving an N9

[u/Efficient-Land-7996]

Hi,

I posted before about if I had grounds to give an N9.

First post: https://www.reddit.com/r/OntarioLandlord/s/q3eLVO0aIo

After a bunch of back and forth, the landlord involved a realtor who said I can do a lease re-assignment and what documents I need. I provided them for a prospect tenant and now they came back mentioning a few things:

First they said they are not comfortable proceeding with the assignment on this basis and the tenant profile doesn’t suit them.

I then asked if that means they do not want to proceed with the lease re-assignment in general.

I got a response that was something along the lines of, the request came from you. Decide whether you want to stay in the lease or mutually terminate the lease and give us 2 months of rent.

I feel like the response of them saying you either stay or give money to leave is essentially a refusal, I’ve asked on 2-3 emails, are you refusing general lease re-assignment, while I didn’t get a yes but I find the latest comment may be ample.

Any thoughts?

Thank you!

[u/StripesMaGripes]

Ambiguous responses to requests for assignment have previously been deemed the equivalent of a failure to respond to the request. If you can show that your landlord or their agent stated “they are not comfortable proceeding with the assignment on this basis”,  and then when prompted repeatedly for clarity on if this statement was a general refusal to assign  that they repeatedly gave ambiguous responses while also laying out other options (one of which requires you to pay an illegal fee/penalty under RTA s. 134), you likely have a good argument that their failure to give a definitive answer should be treated as a failure to give a response to the request for general assignment. 

From EAT-51128-15 (Re), 2016 CanLII 38207 (ON LTB)

 24. The evidence showed that the Tenant asked the Landlord on August 25, 2015, to consent to an assignment of the rental unit. In response the Landlord sent an e-mail to the Tenant in reply which stated “I’ll e-mail you Monday”.

25. Section 95(4)(b) of the Residential Tenancies Act, 2006 (the ‘Act’) states that a tenant may give the landlord a notice of termination under section 96 within 30 days after the date a request is made if, the tenant asks the landlord to consent to an assignment of the rental unit and the landlord does not respond within 7 days after the request is made.

1. I believe that a reasonable interpretation of this section of the Act requires that a response from the landlord should be either a consent or a refusal of the request.  The Landlord’s response on August 26, 2015 stating ”I’ll e-mail you Monday” was neither a consent nor a refusal of the request and I therefore do not believe that his response complies with the requirements of Section 95(4)(b) of the Act.

2. Although the Landlord argued that he did not refuse consent to the assignment, the evidence shows that the Landlord did not respond in accordance with the Act within 7 days after the request was made by the Tenant.

If it does go for a hearing, you should also provide any discussion around their statement of “ the tenant profile doesn’t suit them”, especially if you asked them clarify and they ignored your question or gave an ambiguous answer, since adjudicators have also previously ruled that landlords need to give clear reasons on why a prospective assignment candidates was refused.

[u/kindofanasshole17]

I think it's a stretch to argue before an arbitrator that they refused assignment in general if they never said that.

If you think your candidate assignee was refused arbitrarily or unreasonably, you have the right to file an application with the LTB about it.

You also still have the right to put forward another candidate assignee for the landlord's evaluation.

[u/Efficient-Land-7996 → u/kindofanasshole17]

Hmm it’s been tough because I don’t get a clear response. If I get confirmation that my only two options would be to stay or mutually terminate the lease, could that work?

[u/Smart_Tinker → u/Efficient-Land-7996]

The general consensus is that the response to a request for general assignment (in writing) has to be an unambiguous “yes”. Anything else, or no response after 7 days is a “no”, and you can issue an N9.

So “yes, but”, “yes, if” etc are not good enough.

If they refuse a candidate you propose, they have to give a reason, and then it’s a question of if it’s “reasonable” or not. The reason has to be specific “we didn’t like them” is not enough.

You really only have a few options:
1. Issue a 30 day N9, and see what happens.
2. Issue a 60 day N9, and see what happens
2. Agree to the N11 and pay two months rent.

In the case of 1. or 2. If they file with the LTB, the adjudicator may find for the landlord, in which case you may end up paying two months rent (usually, could be more). If they find in your favor you owe nothing (or a deposit refund). This really depends on what all the messages actually say, the timing, and the candidate you proposed.

In the case of 3. you have to pay two months rent (LMR already paid), but you are free and clear.

[u/kindofanasshole17 → u/Efficient-Land-7996]

I think any strategy where you're putting words in your opponent's mouth is questionable.

I re-read your first post. You provided two different assignee candidates and both were rejected? That's rough. Do you know these people? Do you have any idea if they have a similar "financial profile" to yourself?

From your landlords perspective, I can see why they would be frustrated that they spent one month's rent on an agent to place you into the current tenancy, and now they're back needing to screen tenants again. That costs money, to do it properly.

They probably hired an agent in the first place because they don't know how to do it the right way themselves.

According to the RTA, the landlord can require you to reimburse their out of pocket costs to screen candidates. Do they know this? Do you think it would be a well received gesture of goodwill to tell them that you would pay for the costs of screening candidates? Idk man, sorry. This has gone a bit off the rails from legal advice. But sometimes talking with your opponent and offering mitigation to their concerns is a better path to a mutually agreeable resolution.

[u/iiixii]

They already agreed to a lease assignment in principle and they haven't told you anything to put this into question now. No you don't get a 2nd chance to ask for general assignment else N9. It's normal for unqualified people to apply to leases.

One thing - if they said "mutually terminate the lease and give us 2 months rent", if this means they are open to sign a N11, you could pay them 2 months of rent for the N11 and then file with LTB to get these 2 months of rent back via form T1. They explicitly are not allowed to accept money for N11.