Schwartz v. Fuss: Divisional Court Rules on Rent Arrears and Stay of Eviction
Court orders tenants to pay $20042 in arrears and ongoing rent to maintain eviction stay during appeal
Summarized by RentZenLast updated: August 16, 2024
Case Summary
Decision in favor of
landlord
Balance Owed to Landlord
$20,042
Dispute Categories
Notices Sent
Agree with the ruling?
Timeline
Application Date (Estimate)
Nov 2020
Hearing Date
Feb 2021
Order Date
Feb 15, 2021
We estimate Application Date using rent arrears.
Dispute Summary
The Landlord sought an order requiring the Tenants to pay all rent arrears and ongoing rent as a condition of maintaining the statutory stay of eviction enforcement pending their appeal of LTB orders. The Landlord also requested security for costs. The Tenants had a history of late and non-payment of rent since August 2019, leading to multiple LTB proceedings and consent orders.
Determinations
- Tenants must pay outstanding rent arrears
- Tenants must pay ongoing monthly rent
- Tenants must perfect their appeal by a specified date
- Stay will be lifted if Tenants fail to comply with payment orders
- Security for costs not ordered
Case Study
The court found that the Tenants' failure to pay rent for five months while under the protection of a statutory stay amounted to an abuse of process. The court ordered the Tenants to pay outstanding arrears and ongoing rent to maintain the stay. The request for security for costs was dismissed due to the Tenants' financial constraints and the priority of rent payments.
Arguments and Actions
Landlord
Arguments
The Landlord argues that the Tenants are abusing the statutory stay to live rent-free and that this constitutes an abuse of process.
Actions
The Landlord has repeatedly sought LTB orders for eviction due to persistent non-payment and late payment of rent.
Tenant
Arguments
The Tenants claim they are temporarily short of cash due to pandemic-related business interruptions and are on the verge of a financial turnaround.
Actions
The Tenants have not paid rent for October, November, December 2020, or January and February 2021. They admitted to making discretionary commitments to others, including family members, instead of paying rent.
Aggravating Factors
Repeated failure to pay rent on time, history of defaulting on payment agreements, using statutory stay to avoid rent payments
Decision Summary
The court ordered the Tenants to pay $20,042.15 in outstanding rent arrears by February 28, 2021, and to pay $5,208.43 on the first day of each month thereafter until their appeal is disposed of. The Tenants must perfect their appeal by March 15, 2021. If the Tenants fail to comply with the payment orders, the Landlord may move to have the stay lifted. The motion for security for costs was dismissed.
Adjudicator Details
Divisional Court
Total Orders
5
Landlord Favorable
100.0%
Tenant Favorable
0.0%
Mutual Agreement
0.0%
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Financial Details
Lawful Rent
$5,208
Rent Arrears
$20,042
Total Owing
$20,042 (Owed to Landlord)
Source
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