Tenant required to give 60 days notice, should also sign agreement to terminate

QUESTION:

I am currently renting an apartment on a month-to-month basis. In mid-November, I landed my dream job, which requires me to move to Toronto, and start work on Jan. 2. I gave my landlord written notice that I would be ending my tenancy on Dec. 31.

My landlord replied by saying that I did not give him enough notice required by the Residential Tenancies Act. He went on to say that he will try to rent out the apartment for Jan. 1 and if he is able to, then my rent deposit will be used for December. If he isn’t able to rent it out for Jan. 1, then I will be responsible to pay January’s rent.

He also wanted me to sign an agreement to terminate the tenancy on Dec. 31. I asked him why and he didn’t tell me; and so, I refused to sign. Why would he want me to sign an agreement after I already gave him written notice? What should I do now?

ANSWER:

Your landlord was correct in indicating that your notice was short. The Residential Tenancies Act (“RTA”) requires 60 days notice, which meant notice by Nov. 1 (since December has 31 days). Your landlord also set out the legal situation correctly in his reply, except for part of his final point.

The RTA provides that if a tenant vacates after giving short notice, rent is owing until the date which is the earliest date for which proper notice could have been given. In your case that would have been Jan. 31. You need to pay your rent for December by Dec. 1.

However, the RTA also requires landlords to attempt to mitigate their loss by re-renting the rental unit as soon as possible, that is on Jan. 1 or as soon as possible thereafter. Your landlord’s letter said that he was going to rent for Jan. 1. However, if there is no new tenant for Jan. 1, your landlord is still obliged to try to find a tenant to start partway through the month. If he does, you would be entitled to the return of some of your last month’s rent deposit, less any extra advertising costs your landlord has incurred.

It is unfortunate that your landlord did not tell you why he wanted the agreement to terminate effective Dec. 31, and that you did not sign the agreement. To rent to a new tenant effective Jan. 1, your landlord may have wanted it to be crystal clear that the apartment would be empty and ready for the new tenant then.

Your landlord might well have been concerned that since you may have to pay rent for January, you may decide to stay in the unit or take your time about moving out your belongings. That could leave the landlord with two tenants for the same rental unit for January, which is bad for everyone.

The better view of the law is that since the landlord is obliged to mitigate by trying to rent for Jan. 1, you are not allowed to go back on your notice and attempt to stay. At the very least, a tenant should not be able to go back on their notice if the landlord has rented the unit to a new tenant.

What you should do now is to contact your landlord immediately, and tell him that you will sign the agreement to terminate. Hopefully, that will enable him to rent the unit at Jan. 1. If he succeeds in doing that, then you will not have to pay rent for January.