It used to be that when there was a problematic tenancy, where the parties couldn’t stand each other due to the ongoing dysfunction in the relationship, there were solutions that involved ending the tenancy by making a deal.
The risk in the system was shared by both parties, and that provided an incentive to deal. The tenant feared a quick eviction with no money in their pockets, and a damaged credit score. Better to leave with first and last in your pocket for the next tenancy. The landlord was concerned about mounting debt or additional damage, plus stress and time away from work. Everyone had an interest in getting out of each other’s lives for fear of the consequences. And they were willing to compromise a bit to make the problem disappear.
But that was then, and this is now. In most types of civil litigation, the damages are fixed and final when the parties finally get to court. With landlord and tenant litigation, the damages continue to grow as the matter goes through the court system. Physical damage becomes worse if the tenant is prone to such behaviour, and rent arrears increase monthly as tenants stop paying rent.
In my days as an LTB adjudicator, matters would often get to the Board 3 weeks after the landlord filed their rent application. Today it’s about 3 months minimum, and up to 6 months in some areas. That’s AFTER the N4 notice is served and the mandatory waiting period has exhausted. But that’s just for the first appearance. The LTB statistics show “time to hearing“, but that’s just the first appearance. If the parties have to go home without their matter being heard because of over-booking, it’s another several months before the return date.
And over-booking is rampant. The opening canned speech from adjudicators routinely warn the public that they may not get heard, that mediation may be the only way to get the matter resolved, and that they may be there the entire day until 4:30 to find out whether their matter will be completed. This is unacceptable. People have their right to their day in court.
There are lots of reasons this is happening. The LTB is a tenant-centred Board that often fails to use common sense. Also the increased complexity of this area of the law caused by appellate decisions, the lack of cost consequences for the loser removing risks to frivolous litigation, the almost automatic granting of tenant review requests and the new online hearing system that needing some tweaking are all big contributors.
For rent arrears matters, tenants are laughing at offers of three months rent forgiveness in exchange for an end to the tenancy. Why make a deal with the landlord when the LTB process takes much longer? Add the Sheriff time to evict, and 6 weeks is tacked on. Add a review, and it’s another 6 weeks delay. Add an appeal to the Divisional Court, and it could be 6 months or a year for delay.
Behaviour can be predicted, shaped and molded. Economists can predict and shape consumer behaviour by adjusting variables.
Anyone seriously looking at the LTB’s system today will agree that the variables in place guarantee frivolous matters being filed, frivolous delay requests, and irrational decision-making behaviour by the parties to the litigation.
For evictions based on the sale of a property where the purchaser wants to move in, the eviction process is even more unfair. A real estate closing usually takes 60 or 90 days. If a tenant refuses to move after being served with an N12 notice, then the landlord needs to schedule a hearing at the LTB. If the hearing takes 2 weeks for a response after filing (that’s normal right now), 3 months for a hearing date, a month to get the order (sadly, also common right now) and 6 weeks for the Sheriff (also common), that’s 24 weeks, almost half a year. Look no further than these stats to understand why so many sellers are panicking and buyers are refusing to close, subsequently suing the seller for breach of the agreement of purchase and sale.
The alternative is that tenants in this situation know that they have the landlord between a rock and a hard place. Negotiating 6 months free rent is not at all uncommon, I’ve seen settlements of $30,000 paid to a tenant in order to get them to move out and allow the real estate deal to close.
Something has to give here. The process is unfair, and almost guarantees failure.