Tenant Wins Motion to Set Aside Eviction Order: Hazelview Properties v Alluker 2023
Tenant wins motion to set aside eviction order after landlord failed to withdraw application as agreed
Summarized by RentZenLast updated: September 12, 2024
Case Summary
2870 Cedarwood Dr, Ottawa, ON K1V8Y5
Decision in favor of
tenant
Previous Order
Overturned
Dispute Categories
Notices Sent
Agree with the ruling?
Timeline
Application Date
Jul 2023
Hearing Date
Sep 2023
Order Date
Oct 16, 2023
Dispute Summary
Landlord applied to terminate the tenancy and evict the Tenant due to failure to pay rent. The application was filed after serving a valid Notice to End Tenancy Early for Non-payment of Rent (N4 Notice), which the Tenant did not void by paying the arrears. The Landlord obtained an ex parte order terminating the tenancy and evicting the Tenant. The Tenant filed a motion to set aside the order.
Determinations
- Tenant breached conditional order
- Landlord filed L4 application
- Landlord made offer to Tenant to resolve breach
- Tenant accepted offer and paid outstanding amount
- Landlord failed to withdraw L4 application as agreed
Case Study
The Tenant breached the conditional order by failing to pay the July 1, 2023 rent in full and on time. The Landlord was entitled to file the L4 application. However, the Landlord made an offer to the Tenant to resolve the breach, which the Tenant accepted by paying the outstanding amount. The Landlord then failed to withdraw the L4 application as agreed, which was unfair to the Tenant.
Arguments and Actions
Landlord
Arguments
The Tenant breached the conditional order and the Landlord was entitled to file the L4 application. The Landlord's offer to the Tenant was conditional on the Tenant making all future payments as ordered.
Actions
The Landlord filed the L4 application after the Tenant failed to pay the July 1, 2023 rent in full and on time. The Landlord then made an offer to the Tenant to resolve the breach, which the Tenant accepted by paying the outstanding amount. However, the Landlord did not withdraw the L4 application as agreed.
Procedural Errors
The Landlord failed to disclose the agreement reached with the Tenant to the Board.
Tenant
Arguments
The Landlord's interpretation of the agreement is unreasonable and the Landlord's conduct was unfair to the Tenant.
Actions
The Tenant paid the outstanding amount of $36.72 on July 11, 2023 as agreed with the Landlord, but the Landlord did not withdraw the L4 application.
Decision Summary
The ex parte order terminating the tenancy and evicting the Tenant is set aside. The Landlord's L4 application is dismissed.
Reason for Eviction Relief
The Landlord did not act fairly towards the Tenant by failing to withdraw the L4 application after the Tenant paid the outstanding amount as agreed.
Adjudicator Details
LTB Member
Total Orders
288
Landlord Favorable
83.3%
Tenant Favorable
10.1%
Mutual Agreement
6.6%
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