Employment contract allowed superintendents the option of staying and becoming regular tenants if employment was terminated
It is not uncommon for an apartment building or condominium to employ at least one superintendent. It is also not uncommon for a superintendent to receive a free or discounted apartment in the building where she works as a component of her remuneration, on the condition that she remain employed as the building’s superintendent.
What happens if the superintendent is suddenly no longer employed with the building owner or manager either by resignation or dismissal? Is the superintendent obligated to vacate the apartment?
In Ontario, the answer rests on the proper interpretation of the wording of ss. 93(1) and (2) of the Residential Tenancies Act, 2006, which states the following:
“(1) If a landlord has entered into a tenancy agreement with respect to a superintendent’s premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.
(2) A tenant shall vacate a superintendent’s premises within one week after his or her tenancy is terminated.”
The act provides that a superintendent whose employment has been terminated, must vacate the premises within seven days; however, the right for the building owner to evict is not absolute. The act allows for an alternate agreement to supersede s. 93 whereby it states “unless otherwise agreed.”
In the recent decision of Ramgoolam and 1815212 Ontario Inc., a dispute arose after the employment of the co-superintendents, Rookmatie Ramgoolam and Gowcharan Rooplal, were suddenly terminated without cause. At the time of the termination, Ramgoolam and Rooplal were cohabitating as common law spouses. As part of their compensation, they received a rent-free apartment at the building in which they were employed.
By way of the termination letter, the employer demanded that Ramgoolam and Rooplal vacate the premises within 13 days. However, the couple refused to leave. The employer applied to the Landlord and Tenant Board for an eviction order.
At the hearing, counsel for Ramgoolam and Rooplal argued that the employees had entered into an employment agreement at the time of hire. Of particular interest was the first paragraph of the employment agreement which stated:
“Should this agreement be terminated by any reason by either party the employee hereby agree that they shall vacate their assigned apartment and parking spot within two weeks or the employee may elect to apply and become a tenant of their assigned apartment subject to the standard review, and agree to pay full rent at the then current market rate.”
The central factual dispute between the parties was whether or not the employees elected to apply for their unit. The employer unsuccessfully argued that no formal written request had been submitted. Counsel for the employees argued that through their actions, Ramgoolam and Rooplal had demonstrated that they wanted to stay in the building as regular tenants. For example, the employees refused to leave the apartment when demanded by the employer to do so, they submitted cheques to the landlord to pay for two months of rent, and the employees communicated to the board their desire to stay in the apartment.
The board decided that a formal written request for an application was not necessary. Furthermore, it was not even necessary to use the phrase “can we have an application form.” The board found that the actions of the employees were sufficient to conclude that they wished to remain in the rental unit as regular tenants.
The contract satisfied the requirements for “unless otherwise agreed” pursuant to ss. 93(1) of the act and so the employer was not entitled to evict the former superintendents, subject to the standard of review which the board decided was nothing more than a credit check.
The board ruled that the employer had essentially agreed through the employment contract that the former superintendents could remain in the rental unit even if their employment was terminated, provided they wanted to and were able to pay market rent. In other words, the wording of the employment contract eliminated the employer’s ability to exercise its right to evict the former superintendents. Therefore, the employer’s legal rights pursuant to s. 93 of the act are not absolute and can be contracted out.
Accordingly, the board dismissed the employer’s application and allowed the former superintendents to remain in their apartment as regular tenants.
For more information see:
