Ten­ant’s mis­rep­re­sen­ta­tion of­fers land­lord the pos­si­bil­ity of ter­mi­nat­ing lease

Ottawa Citizen - - HOMES - BY DICKIE & LYMAN LLP

Q: I own a side-by-side dou­ble in Ottawa. I live in one side and rent out the other. I re­cently rented to a per­son who told me his name was James Smith. I did a ref­er­ence check with the per­son Smith said was his cur­rent land­lord. The ref­er­ence check was fine and I signed a lease with Smith. A few days ago, the po­lice in­ter­viewed me, and I learned that the ten­ant’s name is com­pletely dif­fer­ent from James Smith and that he has a lengthy crim­i­nal record. I pre­sume the “for­mer land­lord” was a friend he had coached to pro­vide the ref­er­ence. If I had known the man was ly­ing to me and had a crim­i­nal record, I would have never rented to him. Is there any­thing I can do?

A: Peo­ple with crim­i­nal records need to live some­where. If that is­sue mat­ters to you, then you should have checked govern­ment is­sued photo ID, and done a crim­i­nal records check be­fore you rented your unit.

In many cases a land­lord has lit­tle re­course if a ten­ant bends the truth or even lies on a rental ap­pli­ca­tion.How­ever, in your case, if the crim­i­nal record is prob­lem­atic the Land­lord and Ten­ant Board will prob­a­bly not be sym­pa­thetic to your ten­ant, and you may be able to evict him us­ing one of sev­eral dif­fer­ent ap­proaches.

The rst is to take the po­si­tion that the ten­ant is an unau­tho­rized oc­cu­pant. The ar­gu­ment would be that your of­fer to rent was made to James Smith and so you never agreed to rent to this per­son (let’s call him X). There­fore, the meet­ing of minds that is re­quired to make a valid agree­ment never took place.

X could ar­gue that he has given you rent, and you have taken it. He would ar­gue that you agreed to rent to him, the per­son talk­ing to you, even though the lease is in the wrong name. While each case at the board is de­cided in­di­vid­u­ally, and X’s ar­gu­ment might suc­ceed, you are more likely than not to win with your ar­gu­ment.

Gen­er­ally, a land­lord has to ap­ply to the board within 60 days of dis­cov­er­ing an unau­tho­rized oc­cu­pancy. How­ever, in this case you need to ap­ply be­fore you ac­cept rent from X (know­ing that he is not James Smith). If you ac­cept rent, you will prob­a­bly cre­ate ate nancy with X.

The sec­ond ap­proach would be to say that the ten­ant has sub­stan­tial in­ter­fered with your law­ful rights and in­ter­ests, since you had a right to re­ceive truth­ful in­for­ma­tion to de­cide whether to en­ter into the ten­ancy agree­ment. This sit­u­a­tion is un­usual in that the in­ter­fer­ence is usu­ally be­hav­iour that takes place dur­ing the ten­ancy and not be­fore it. The ten­ant could ar­gue that when he com­mit­ted his wrong­ful act, you were not his land­lord and he was not your ten­ant.

The third ap­proach is to ar­gue that the ten­ant com­mit­ted an il­le­gal act by giv­ing the false name in or­der to de­fraud you by ob­tain­ing a ser­vice (namely the rental agree­ment).

The way to pre­vent such prob­lems is to per­form a thor­ough ref­er­ence check, go­ing back at least two land­lords, check­ing a prospec­tive ten­ant’s govern­ment is­sued photo identi cation and ver­i­fy­ing the prospec­tive ten­ant’s in­come with their em­ployer. A land­lord can only ask about a prospec­tive ten­ant’s in­come if the land­lord also asks for credit ref­er­ences, rent his­tory and credit checks.

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