Last updated: August 16, 2024
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Citation: Schell v. Clarke, 2020 ONSC 7169
File Number: 34/18
Tenancy End Date
Apr 2017
Hearing Date
Nov 2020
Order Date
Nov 26, 2020
The Divisional Court allowed the tenant's appeal of the LTB decision and referred the matter back to a new LTB Member. The new hearing is to determine whether the parties and premises changed sufficiently under the written agreement to meet the exceptions set out in the Honsberger case. If not, the LTB is to determine the amount owing for an illegal rent increase and whether the limitation period under s.135.1(2) of the RTA applies.
The tenant appealed a Landlord and Tenant Board (LTB) decision that dismissed her claim for reimbursement of monies allegedly paid due to an illegal rent increase. The LTB had ruled that there was an express agreement to the increase between the landlord and tenant, which was therefore not an illegal charge. The Divisional Court allowed the appeal and referred the matter back to the LTB for reconsideration in light of new case law.
The landlord asserted that the written agreement changed the oral agreement by allowing the tenant's spouse to be an occupant and allowing the tenant to rent the garage, which were not part of the oral agreement.
Landlord informed the tenant in February 2016 that he was planning to sell the house. Landlord negotiated a rental increase of $200 per month with the tenant. Landlord did not serve a notice of rent increase on the tenant.
Landlord did not serve a notice of rent increase on the tenant as required by law.
The tenant argued that the real substance of the transaction was to preserve the tenancy, not to end it. The fact that her spouse was not named as a tenant and no monetary value was attached to the use of the garage underscores that the written agreement was entered into to deter the landlord from selling, not to create a new tenancy.
Tenant offered to pay more rent to remain in the house when the landlord planned to sell it. Tenant signed a written lease agreeing to a rent increase from $650 to $850 per month.
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$650
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