CHAPTER L.7

Commercial Tenancies Act

Amended by: 1992, c. 19, s. 25; 1993, c. 27, Sched.; 1994, c. 2, ss. 1-7; 1994, c. 4, ss. 1-13; 1997, c. 24, s. 213; 1999, c. 6, s. 9.

As of August 2, 2002.

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CONTENTS

Definitions

1.  In this Act,

Application

2.  This Act does not apply to tenancies and tenancy agreements to which the Tenant Protection Act, 1997 applies. 1997, c. 24, s. 213 (3).

PART I

Relation of landlord and tenant

3.  The relation of landlord and tenant does not depend on tenure, and a reversion in the lessor is not necessary in order to create the relation of landlord and tenant, or to make applicable the incidents by law belonging to that relation; nor is it necessary, in order to give a landlord the right of distress, that there is an agreement for that purpose between the parties. R.S.O. 1990, c. L.7, s. 3.

Remedies available to assignees of reversion

4.  All persons being grantees or assignees of the Queen, or of any person other than the Queen, and the heirs, executors, successors and assigns of every of them, shall have and enjoy like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and also shall have and enjoy all and every such like and the same advantage, benefit, and remedies, by action only, for the non-performance of other conditions, covenants, or agreements, contained and expressed in the indentures of their said leases, demises or grants against all and every of the said lessees and grantees, their executors, administrators, and assigns as the said lessors or grantors themselves, or their heirs or successors, might have had and enjoyed at any time or times. R.S.O. 1990, c. L.7, s. 4.

Lessee's covenant to run with reversion

5.  Rent reserved by a lease and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein contained shall be annexed and incident to and shall go with the reversionary estate in the land or in any part thereof, immediately expectant on the term granted by the lease, despite severance of that reversionary estate, and shall be capable of being recovered, received, enforced and taken advantage of by any person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. R.S.O. 1990, c. L.7, s. 5.

Grantee of reversion may enforce covenants

6.  The benefit of every condition of re-entry or forfeiture for a breach of any covenant or condition contained in a lease shall extend to and be enforced and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased, although that person became, by conveyance or otherwise, so entitled after the condition of re-entry or forfeiture had become enforceable. R.S.O. 1990, c. L.7, s. 6.

Action of covenant, etc., against assigns of grantors and lessors

7.  All lessees and grantees of lands, tenements, rents, portions, or any other hereditaments for term of years, life or lives, their executors, administrators, and assigns shall and may have like action, advantage, and remedy against all and every person who shall have any gift or grant of the Queen, or of any other persons, of the reversion of the same lands, tenements and other hereditaments so let, or any parcel thereof, for any condition, covenant, or agreement, contained or expressed in the indentures of their leases as the same lessees or any of them, might and should have had against their said lessors, and grantors, their heirs, or successors. R.S.O. 1990, c. L.7, s. 7.

Lessor's covenant to run with reversion

8.  The obligation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, despite severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise, and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, such obligation may be taken advantage of and enforced against any person so entitled. R.S.O. 1990, c. L.7, s. 8.

Apportionment of conditions on severance, etc.

9.  Despite the severance by conveyance, surrender or otherwise, of the reversionary estate in any land comprised in a lease, and despite the avoidance or cessor in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry and every other condition contained in the lease shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. R.S.O. 1990, c. L.7, s. 9.

On subdemise title to leasehold reversion not to be required

10.  (1)  On a contract to grant a lease for a term of years to be derived out of a leasehold interest, with a leasehold reversion, the intended lessee does not have the right to call for the title to that reversion. R.S.O. 1990, c. L.7, s. 10 (1).

Saving

(2)  This section applies only if and as far as the contrary intention is not expressed in the contract, and has effect subject to the terms of the contract and to the provisions therein contained. R.S.O. 1990, c. L.7, s. 10 (2).

Effect of lease where there is a deviation from terms of the power to demise

11.  Where, in the intended exercise of any power of leasing, whether derived under a statute or under an instrument lawfully creating such power, a lease has been, or is hereafter granted that is, by reason of the non-observance or omission of some condition or restriction or by reason of any other deviation from the terms of such power, invalid as against the person entitled, after the determination of the interest of the person granting such lease, to the reversion, or against other the person who, subject to any lease lawfully granted under such power, would have been entitled to the land comprised in such lease, such lease, in case it was made in good faith and the lessee named therein, the lessee's heirs, executors, administrators, or assigns have entered thereunder, shall be considered a contract for a grant at the request of the lessee, the lessee's heirs, executors, administrators, or assigns of a valid lease under such power, to the like purport and effect as such invalid lease, except so far as any variation may be necessary in order to comply with the terms of such power, and all persons who would have been bound by a lease lawfully granted under such power are bound by such contract; but no lessee under any such invalid lease, the lessee's heirs, executors, administrators, or assigns, are entitled by virtue of any such contract to obtain any variation of the lease, where the persons who would have been bound by the contract are willing to confirm the lease without variation. R.S.O. 1990, c. L.7, s. 11.

What may be deemed a confirmation of invalid lease

12.  Where, upon or before the acceptance of rent under any such invalid lease, any receipt, memorandum or note in writing confirming the lease is signed by the person accepting the rent, or some other person thereunto lawfully authorized by the person, such acceptance shall, as against the person so accepting the rent, be deemed a confirmation of the lease. R.S.O. 1990, c. L.7, s. 12.

Duty of lessee to accept confirmation

13.  Where, during the continuance of the possession taken under any such invalid lease, the person for the time being entitled, subject to such possession, to the land comprised in the lease, or to the possession or the receipt of the rents and profits thereof, is able to confirm the lease without variation, the lessee, the lessee's heirs, executors, or administrators, or any person who would have been bound by the lease if it had been valid, upon the request of the person so able to confirm it, is bound to accept a confirmation accordingly, and the confirmation may be by memorandum or note in writing signed by the persons confirming and accepting or by some other persons by them thereunto lawfully authorized, and, after confirmation and acceptance of confirmation, the lease is valid and shall be deemed to have had from the granting thereof the same effect as if it had been originally valid. R.S.O. 1990, c. L.7, s. 13.

Effect of invalid leases if grantor continues in ownership

14.  Where a lease granted in the intended exercise of a power of leasing is invalid by reason that, at the time of granting the lease, the person granting the lease could not lawfully grant the lease, but the estate of such person in the land comprised in the lease has continued after the time when the lease, or the like lease, might have been granted by the person in the lawful exercise of such power, the lease takes effect and is as valid as if it had been granted at such last mentioned time, and all the provisions of sections 11 to 16 apply to every such lease. R.S.O. 1990, c. L.7, s. 14.

What shall be deemed an intended exercise of a power

15.  Where a valid power of leasing is vested in, or may be exercised by, a person granting a lease, and, by reason of the determination of the estate or interest of such person or otherwise, the lease cannot have effect and continuance according to the terms thereof independently of such power, the lease shall for the purposes of sections 11 to 14 be deemed to be granted in the intended exercise of such power although such power is not referred to in the lease. R.S.O. 1990, c. L.7, s. 15.

Saving the rights of the lessees under certain covenants and the lessor's right of re-entry

16.  Nothing in sections 11 to 15 extends to, prejudices or takes away any right of action, or other right or remedy to which, but for sections 11 to 15, the lessee named in any such lease, the lessee's heirs, executors, administrators or assigns would or might have been entitled under or by virtue of any covenant for title or quiet enjoyment contained in the lease on the part of the person granting the lease, or prejudices or takes away any right of re-entry or other right or remedy to which, but for such sections, the person granting the lease, the person's heirs, executors, administrators or assigns, or other person, for the time being entitled to the reversion expectant on the determination of the lease, would or might have been entitled for or by reason of any breach of the covenants, conditions, or provisos contained in the lease, and on the part of the lessee, the lessee's heirs, executors, administrators or assigns to be observed and performed. R.S.O. 1990, c. L.7, s. 16.

Effect of surrender or merger of reversion expectant in certain cases

17.  Where the reversion expectant on a lease of land merges or is surrendered, the estate which for the time being confers as against the tenant under the lease the next vested right to the land shall, to the extent of and for preserving such incidents to and obligations on the reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the lease. R.S.O. 1990, c. L.7, s. 17.

Rights of re-entry

Re-entry on non-payment of rent

18.  (1)  Every demise, whether by parol or in writing and whenever made, unless it is otherwise agreed, shall be deemed to include an agreement that if the rent reserved, or any part thereof, remains unpaid for fifteen days after any of the days on which it ought to have been paid, although no formal demand thereof has been made, it is lawful for the landlord at any time thereafter to re-enter into and upon the demised premises or any part thereof in the name of the whole and to have again, repossess and enjoy the same as of the landlord's former estate. R.S.O. 1990, c. L.7, s. 18 (1).

Re-entry on conviction of tenant, disorderly house

(2)  Every such demise shall be deemed to include an agreement that if the tenant or any other person is convicted of keeping a disorderly house within the meaning of the Criminal Code (Canada) on the demised premises or any part thereof, or carries on or engages in, on the demised premises or any part thereof, any trade, calling, business or occupation for which a licence is required under a by-law passed under section 224 or 225 of the Municipal Act without that licence, it is lawful for the landlord at any time thereafter to re-enter into the demised premises or any part thereof and to have again, repossess and enjoy the same as of the landlord's former estate. R.S.O. 1990, c. L.7, s. 18 (2).

Notice prerequisite to re-entry or forfeiture

Definitions, ss. 19 to 22

19.  (1)  In this section and in sections 20 to 22,

Content of notice

(2)  A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease, other than a proviso in respect of the payment of rent, is not enforceable by action, entry, or otherwise, unless the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money to the satisfaction of the lessor for the breach. R.S.O. 1990, c. L.7, s. 19 (2).

Relief against re-entry or forfeiture

20.  (1)  Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or for other cause, the lessee may, in the lessor's action, if any, or if there is no such action pending, then in an action or application in the Ontario Court (General Division) brought by the lessee, apply to the court for relief, and the court may grant such relief as, having regard to the proceeding and conduct of the parties under section 19 and to all the other circumstances, the court thinks fit, and on such terms as to payment of rent, costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future as the court considers just. R.S.O. 1990, c. L.7, s. 20 (1).

Where re-entry or forfeiture is under a statute

(2)  This section and section 19 apply, although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of a statute. R.S.O. 1990, c. L.7, s. 20 (2).

Lease until breach

(3)  For the purposes of this section, a lease limited to continue only as long as the lessee abstains from committing a breach of covenant is and takes effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. R.S.O. 1990, c. L.7, s. 20 (3).

When proceeding may be stayed

(4)  Where the proceeding is brought to enforce a right of re-entry or forfeiture for non-payment of rent and the lessee, at any time before judgment, pays into court all the rent in arrear and the costs of the proceeding, the proceeding is forever stayed. R.S.O. 1990, c. L.7, s. 20 (4).

Position of lessee

(5)  Where relief is granted under this section, the lessee shall hold and enjoy the demised premises according to the lease thereof made without any new lease. R.S.O. 1990, c. L.7, s. 20 (5).

Application of section

(6)  This section applies to leases made either before or after the commencement of this Act and applies despite any stipulation to the contrary. R.S.O. 1990, c. L.7, s. 20 (6).

Exceptions

(7)  This section does not extend,

Condition for relief for non-insurance

(8)  Where the right of re-entry or forfeiture is in respect of a breach of a covenant or condition to insure, relief shall not be granted if at the time of the application for relief there is not an insurance on foot in conformity with the covenant or condition to insure except, in addition to any other terms that the court may impose, upon the term that the insurance is effected. R.S.O. 1990, c. L.7, s. 20 (8).

Protection of under-lessees, re-entry or forfeiture under superior lease

21.  Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso or stipulation in a lease, the court, on motion by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof, in the lessor's action, if any, or in any action or application in the Ontario Court (General Division) brought by such person for that purpose, may make an order vesting for the whole term of the lease or any less term the property comprised in the lease, or any part thereof, in any person entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rents, costs, expenses, damages, compensation, giving security or otherwise as the court in the circumstances of each case thinks fit; but in no case is any such under-lessee entitled to require a lease to be granted to him, her or it for any longer term than the under-lessee had under the original sub-lease. R.S.O. 1990, c. L.7, s. 21.

Who must be parties to an action to enforce right of re-entry or forfeiture

22.  Where a lessor has commenced an action to enforce a right of re-entry or forfeiture under a covenant, proviso or stipulation in a lease, every person claiming any right, title or interest in the demised premises under the lease, if it is known to the lessor that the person claims such right or interest or if the instrument under which the person claims is registered in the proper land registry office, shall be made a party to the action. R.S.O. 1990, c. L.7, s. 22.

Licence to assign not to be unreasonably withheld

23.  (1)  In every lease made after the 1st day of September, 1911, containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing of the land or property leased without licence or consent, such covenant, condition or agreement shall, unless the lease contains an express provision to the contrary, be deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. R.S.O. 1990, c. L.7, s. 23 (1).

Application to court where consent to assignment or subletting withheld

(2)  Where the landlord refuses or neglects to give a licence or consent to an assignment or sub-lease, a judge of the Ontario Court (General Division), upon the application of the tenant or of the assignee or sub-tenant, made according to the rules of court, may make an order determining whether or not the licence or consent is unreasonably withheld and, where the judge is of opinion that the licence or consent is unreasonably withheld, permitting the assignment or sub-lease to be made, and such order is the equivalent of the licence or consent of the landlord within the meaning of any covenant or condition requiring the same and such assignment or sub-lease is not a breach thereof. R.S.O. 1990, c. L.7, s. 23 (2).

Licence to do act otherwise a forfeiture, etc.

24.  Where a licence to do any act that, without such licence, would create a forfeiture, or give a right to re-enter under a condition or power reserved in a lease, is given to a lessee or the lessee's assigns, every such licence, unless otherwise expressed, extends only to the permission actually given, or to any specific breach of any proviso or covenant, or to the actual assignment, under-lease or other matter thereby specifically authorized to be done, but does not prevent a proceeding for any subsequent breach unless otherwise specified in the licence, and all rights under covenants and powers of forfeiture and re-entry in the lease remain in full force and virtue, and are available as against any subsequent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorized or made dispunishable by such licence, in the same manner as if no such licence had been given, and the condition or right of re-entry remains in all respects as if the licence had not been given, except in respect of the particular matter authorized to be done. R.S.O. 1990, c. L.7, s. 24.

Restricted operation of partial licences to assign, etc.

25.  Where in a lease there is a power or condition of re-entry on assigning or underletting or doing any other specified act without licence, and a licence has been or is given to one of several lessees or co-owners to assign or underlet his, hers or its share or interest, or to do any other act prohibited to be done without licence, or has been or is given to a lessee or owner, or any one of several lessees or owners, to assign or underlet part only of the property, or to do any other such act in respect of part only of the property, the licence does not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co-lessees or owner or owners of the other shares or interest in the property, or by the lessee or owner of the rest of the property, over or in respect of such shares or interest or remaining property, but such right of re-entry remains in full force over or in respect of the shares or interests or property not the subject of the licence. R.S.O. 1990, c. L.7, s. 25.

Restriction of effect of waiver of covenant

26.  Where an actual waiver of the benefit of a covenant or condition in a lease, on the part of a lessor or the lessor's heirs, executors, administrators or assigns, is proved to have taken place in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which the waiver specially relates, nor to be a general waiver of the benefit of any such covenant or condition unless an intention to that effect appears. R.S.O. 1990, c. L.7, s. 26.

Covenant to pay taxes not to include taxes for local improvements

27.  (1)  Unless it is otherwise specifically provided in a lease made after the 1st day of September, 1897, a covenant by a lessee for payment of taxes shall not be deemed to include an obligation to pay taxes assessed for local improvements. R.S.O. 1990, c. L.7, s. 27 (1).

Effect of altering form of covenant

(2)  In the case of a lease made under the Short Forms of Leases Act where the words "except for local improvements" are struck out or omitted from the covenant number 3 in Schedule B of that Act, such striking out or omission shall be deemed to be a specific provision otherwise made within the meaning of subsection (1). R.S.O. 1990, c. L.7, s. 27 (2).

Notice to quit in case of weekly or monthly tenancies

28.  A week's notice to quit and a month's notice to quit, respectively, ending with the week or the month, is sufficient notice to determine, respectively, a weekly or monthly tenancy. R.S.O. 1990, c. L.7, s. 28.

Penalty on tenant receiving originating process for recovery of land and not notifying his landlord

29.  Every tenant to whom an originating process in an action for the recovery of land has been delivered, or to whose knowledge it comes, shall forthwith give notice thereof to the tenant's landlord, or to the landlord's bailiff or receiver, and, if the tenant omits so to do, the tenant is answerable to the tenant's landlord for all damages sustained by the landlord by reason of the failure to give the notice. R.S.O. 1990, c. L.7, s. 29.

Exemption of goods, seizure under execution and by distress

30.  (1)  The goods and chattels exempt from seizure under execution are not liable to seizure by distress by a landlord for rent, except as hereinafter provided. R.S.O. 1990, c. L.7, s. 30 (1).

Monthly tenancies

(2)  In the case of a monthly tenancy, the exemption only applies to two months arrears of rent. R.S.O. 1990, c. L.7, s. 30 (2).

Selection of exempted goods

(3)  The person claiming the exemption shall select and point out the goods and chattels that the person claims to be exempt. R.S.O. 1990, c. L.7, s. 30 (3).

Exemption of goods from seizure, not tenant's property

Definition

31.  (1)  In this section, subject to section 32,

Goods on premises not property of tenant to be exempt

(2)  A landlord shall not distrain for rent on the goods and chattels of any person except the tenant or person who is liable for the rent, although the same are found on the premises; but this restriction does not apply in favour of a person claiming title under an execution against the tenant, or in favour of a person whose title is derived by purchase, gift, transfer, or assignment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods or chattels on the premises in the possession of the tenant under a contract for purchase, or by which the tenant may or is to become the owner thereof upon performance of any condition, nor where goods or chattels have been exchanged between tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor does the restriction apply where the property is claimed by the spouse, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of the tenant's, if such other relative lives on the premises as a member of the tenant's family, or by the same-sex partner of the tenant, or by any person whose title is derived by purchase, gift, transfer or assignment from any relative of the tenant's to whom the restriction does not apply. R.S.O. 1990, c. L.7, s. 31 (2); 1999, c. 6, s. 9 (2).

Goods in store managed by agent who is in default

(3)  Nothing in this section exempts from distress goods or chattels in a store or shop managed or controlled by an agent or clerk for the owner of the goods or chattels where the clerk or agent is also the tenant and in default, and the rent is due in respect of the store or shop or premises rented therewith and thereto belonging, if the goods or chattels would have been liable to seizure but for this Act. R.S.O. 1990, c. L.7, s. 31 (3).

Exemption of goods from seizure, property of under-tentant, etc.

Definition

32.  (1)  In this section,

Declaration by boarder, under-tenant, or lodger that immediate tenant has no property in goods distrained

(2)  If a superior landlord distrains or threatens to distrain any goods or chattels of an under-tenant, boarder or lodger for arrears of rent due to the superior landlord by the superior landlord's immediate tenant, the under-tenant, boarder or lodger may serve the superior landlord, or the bailiff or other person employed by the superior landlord to levy the distress, with a statutory declaration made by the under-tenant, boarder or lodger setting forth that the immediate tenant has no right of property or beneficial interest in such goods or chattels, and that they are the property or in the lawful possession of the under-tenant, boarder or lodger, and also setting forth whether any and what amount by way of rent, board or otherwise is due from the under-tenant, boarder or lodger to the immediate tenant, and to the declaration shall be annexed a correct inventory, subscribed by the under-tenant, boarder or lodger, of the goods and chattels mentioned in the declaration, and the under-tenant, boarder or lodger may pay to the superior landlord, or to the bailiff or other person employed by the superior landlord, the amount if any, so due, or so much thereof as is sufficient to discharge the claim of the superior landlord. R.S.O. 1990, c. L.7, s. 32 (2).

Penalty for improper levy

(3)  If the superior landlord, bailiff or other person, after being served with the declaration and inventory, and after the under-tenant, boarder or lodger has paid or tendered to the person the amount, if any, which by subsection (2) the under-tenant, boarder or lodger is authorized to pay, levies or proceeds with a distress on the goods or chattels of the under-tenant, boarder or lodger, the superior landlord, bailiff or other person is guilty of an illegal distress, and the under-tenant, boarder or lodger may replevy the goods or chattels in any court of competent jurisdiction, and the superior landlord is also liable to an action, at the suit of the under-tenant, boarder or lodger, in which the truth of the declaration and inventory may be inquired into. R.S.O. 1990, c. L.7, s. 32 (3).

Effect of payments by under-tenant, boarder or lodger

(4)  Any payment made by an under-tenant, boarder or lodger under subsection (2) is a valid payment on account of the amount due from the under tenant to the immediate tenant. R.S.O. 1990, c. L.7, s. 32 (4).

Duty of tenant claiming exemption under s. 30 to surrender premises

33.  (1)  A tenant in default for non-payment of rent is not entitled to the benefit of the exemption provided for by section 30 unless the tenant gives up possession of the premises forthwith or is ready and offers to do so. R.S.O. 1990, c. L.7, s. 33 (1).

To whom offer of surrender to be made

(2)  The offer may be made to the landlord or to the landlord's agent, and the person authorized to seize and sell the goods and chattels, or having the custody of them for the landlord, shall be considered an agent of the landlord for the purpose of the offer and surrender to the landlord of possession. R.S.O. 1990, c. L.7, s. 33 (2).

Seizure of exempted goods

34.  (1)  A landlord that desires to seize exempted goods shall, after default has been made in the payment of rent and before or at the time of seizure, serve the tenant with a notice (Form 1). R.S.O. 1990, c. L.7, s. 34 (1).

Effect of surrender of possession

(2)  The surrender of possession in pursuance of the notice is a determination of the tenancy. R.S.O. 1990, c. L.7, s. 34 (2).

Right to set off rent against debt

35.  (1)  A tenant may set off against the rent due a debt due to the tenant by the landlord. R.S.O. 1990, c. L.7, s. 35 (1).

Notice

(2)  Notice of the claim of set off (Form 2) may be given before or after the seizure. R.S.O. 1990, c. L.7, s. 35 (2).

Effect of notice

(3)  When the notice is given, the landlord is entitled to distrain, or to proceed with the distress, only for the balance of the rent after deducting any debt justly due by the landlord to the tenant that is mentioned in the notice. R.S.O. 1990, c. L.7, s. 35 (3).

Service of notices to quit, for seizure of exempt goods, to set off rent

36.  (1)  Service of notices under sections 28, 34 and 35 shall be made either personally or by leaving the same with a grown-up person in and apparently residing on the premises occupied by the person to be served. R.S.O. 1990, c. L.7, s. 36 (1).

Posting up notice instead of service

(2)  If the tenant cannot be found and the tenant's place of abode is not known, or admission thereto cannot be obtained, the posting up of the notice on some conspicuous part of the premises is good service. R.S.O. 1990, c. L.7, s. 36 (2).

Formal defects not to invalidate steps under ss. 33 to 36

37.  No step taken under sections 33 to 36 shall be rendered invalid by any defect in form. R.S.O. 1990, c. L.7, s. 37.

Lien of landlord in bankruptcy, etc.

38.  (1)  In case of an assignment for the general benefit of creditors, or an order being made for the winding up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the preferential lien of the landlord for rent is restricted to the arrears of rent due during the period of three months next preceding, and for three months following the execution of the assignment, and from thence so long as the assignee retains possession of the premises, but any payment to be made to the landlord in respect of accelerated rent shall be credited against the amount payable by the person who is assignee, liquidator or trustee for the period of the person's occupation. R.S.O. 1990, c. L.7, s. 38 (1).

Rights of assignee

(2)  Despite any provision, stipulation or agreement in any lease or agreement or the legal effect thereof, in case of an assignment for the general benefit of creditors, or an order being made for the winding up of an incorporated company, or where a receiving order in bankruptcy or authorized assignment has been made by or against a tenant, the person who is assignee, liquidator or trustee may at any time within three months thereafter for the purposes of the trust estate and before the person has given notice of intention to surrender possession or disclaim, by notice in writing elect to retain the leased premises for the whole or any portion of the unexpired term and any renewal thereof, upon the terms of the lease and subject to the payment of the rent as provided by the lease or agreement, and the person may, upon payment to the landlord of all arrears of rent, assign the lease with rights of renewal, if any, to any person who will covenant to observe and perform its terms and agree to conduct upon the demised premises a trade or business which is not reasonably of a more objectionable or hazardous nature than that which was thereon conducted by the debtor, and who on application of the assignee, liquidator or trustee, is approved by a judge of the Ontario Court (General Division) as a person fit and proper to be put in possession of the leased premises. R.S.O. 1990, c. L.7, s. 38 (2).

Lien of landlord in bankruptcy, etc., further provisions

Election to surrender

39.  (1)  The person who is assignee, liquidator or trustee has the further right, at any time before so electing, by notice in writing to the landlord, to surrender possession or disclaim any such lease, and the person's entry into possession of the leased premises and their occupation by the person, while required for the purposes of the trust estate, shall not be deemed to be evidence of an intention on the person's part to elect to retain possession under section 38. R.S.O. 1990, c. L.7, s. 39 (1).

Rights of sub-tenants

(2)  Where the assignor, or person or firm against whom a receiving order has been made in bankruptcy, or a winding up order has been made, being a lessee, has, before the making of the assignment or such order demised any premises by way of under-lease, approved or consented to in writing by the landlord, and the assignee, liquidator or trustee surrenders, disclaims or elects to assign the lease, the under-lessee, if the under-lessee so elects in writing within three months of such assignment or order, stands in the same position with the landlord as though the under-lessee were a direct lessee from the landlord but subject, except as to rental payable, to the same liabilities and obligations as the assignor, bankrupt or insolvent company was subject to under the lease at the date of the assignment or order, but the under-lessee shall in such event be required to covenant to pay to the landlord a rental not less than that payable by the under-lessee to the debtor, and if such last mentioned rental was greater than that payable by the debtor to the said landlord, the under-lessee shall be required to covenant to pay to the landlord the like greater rental. R.S.O. 1990, c. L.7, s. 39 (2).

Settlement of disputes

(3)  In the event of any dispute arising under this section or section 38, the dispute shall be disposed of by a judge of the Ontario Court (General Division) upon an application. R.S.O. 1990, c. L.7, s. 39 (3).

Distress for rents seck

40.  Every person has the like remedy by distress and by impounding and selling the property distrained in cases of rents seck as in case of rent reserved upon lease. R.S.O. 1990, c. L.7, s. 40.

Distress for arrears on leases determined

41.  A person having any rent due and in arrear, upon any lease for life or lives or for years, or at will, ended or determined, may distrain for such arrears, after the determination of the lease, in the same manner as the person might have done if the lease had not been ended or determined, if the distress is made within six months after the determination of the lease, and during the continuance of the landlord's title or interest, and during the possession of the tenant from whom the arrears became due. R.S.O. 1990, c. L.7, s. 41.

Right of persons entitled to rent during life of another to recover same after death

42.  A person entitled to any rent or land for the life of another may recover by action or distress the rent due and owing at the time of the death of the person for whose life such rent or land depended as the person might have done if the person by whose death the estate in such rent or land determined had continued in life. R.S.O. 1990, c. L.7, s. 42.

Distress to be reasonable

43.  Distress shall be reasonable. R.S.O. 1990, c. L.7, s. 43.

Right to distrain cut or loose grain, etc.

44.  A person having rent due and in arrear upon any demise, lease, or contract may seize and secure any sheaves or cocks of grain, or grain loose, or in the straw, or hay, lying or being in any barn or granary or otherwise upon any part of the land charged with such rent, and may lock up or detain the same in the place where the same is found, for or in the nature of a distress until the same is replevied, and in default of the same being replevied, may sell the same after appraisement thereof is made; but such grain or hay so distrained shall not be removed by the person distraining, to the damage of the owner thereof out of the place where the same is found and seized, but shall be kept there, as impounded, until it is replevied or sold in default of replevying. R.S.O. 1990, c. L.7, s. 44.

Right to distrain cattle, livestock, standing crops

Distress of cattle or livestock

45.  (1)  A landlord may take and seize, as a distress for arrears of rent, any cattle or livestock of the landlord's tenant feeding or pasturing upon any highway, or on any way belonging to the demised premises or any part thereof. R.S.O. 1990, c. L.7, s. 45 (1).

Distress of standing crops

(2)  Subject to subsection (4), a landlord may take and seize standing crops as a distress for arrears of rent, and may cut, gather, make, cure, carry and lay up the same, when ripe, in the barns or other proper place on the demised premises and, if there is no barn or proper place on the demised premises, then in any other barn or proper place which the landlord hires or otherwise procures for that purpose as near as may be to the premises, and may in convenient time appraise, sell or otherwise dispose of the same towards satisfaction for the rent for which the distress is made, and of the charges of the distress, appraisement and sale in the same manner as other goods and chattels may be seized, distrained and disposed of, and the appraisement thereof shall be taken when cut, gathered, cured and made and not before. R.S.O. 1990, c. L.7, s. 45 (2).

Tenant's right to notice of place of keeping

(3)  Notice of the place where the goods and chattels so distrained are lodged or deposited shall, within one week after the lodging or depositing thereof, be given to the tenant or left at the tenant's last place of abode. R.S.O. 1990, c. L.7, s. 45 (3).

Satisfying distress of standing crops

(4)  If, after a distress of standing crops so taken for arrears of rent, and at any time before the same are ripe and cut, cured or gathered, the tenant pays to the landlord for whom the distress is taken the whole rent then in arrear, with the full costs and charges of making the distress and occasioned thereby, then, upon such payment or lawful tender thereof, the same and every part thereof shall cease, and the standing crops so distrained shall be delivered up to the tenant. R.S.O. 1990, c. L.7, s. 45 (4).

Sale of standing crop

(5)  Where standing crops are distrained for rent they may, at the option of the landlord, be advertised and sold in the same manner as other goods, and it is not necessary for the landlord to reap, thresh, gather or otherwise market them. R.S.O. 1990, c. L.7, s. 45 (5).

Liability of purchaser of standing crops

(6)  Any person purchasing standing crops at such sale is liable for the rent of the land upon which they are standing at the time of the sale, and until they are removed, unless the rent has been paid or has been collected by the landlord, or has been otherwise satisfied, and the rent shall, as nearly as may be, be the same as that which the tenant whose goods were sold was to pay, having regard to the quantity of land, and to the time during which the purchaser occupies it. R.S.O. 1990, c. L.7, s. 45 (6).

Conditional exemption of certain beasts

46.  Beasts that gain the land and sheep shall not be distrained if there are other chattels sufficient to satisfy the demand. R.S.O. 1990, c. L.7, s. 46.

Where Distress May Be Taken

Chattels not to be distrained off the premises

47.  Save as herein otherwise provided, goods or chattels that are not at the time of the distress upon the premises in respect of which the rent distrained for is due shall not be distrained for rent. R.S.O. 1990, c. L.7, s. 47.

Fraudulent Removal

Landlords may distrain goods fraudulently carried off the premises

48.  (1)  Where any tenant, for life or lives, term of years, at will, sufferance or otherwise, of any messuages, lands, tenements or hereditaments, upon the demise or holding whereof any rent is reserved, due, or made payable, fraudulently or clandestinely conveys away, or carries off or from the premises the tenant's goods or chattels to prevent the landlord from distraining them for arrears of rent so reserved, due, or made payable, the landlord or any person lawfully empowered for that purpose by the landlord, may, within thirty days next ensuing such conveying away or carrying off, take and seize such goods and chattels wherever they are found, as a distress for such arrears of rent, and sell or otherwise dispose of them in such manner as if they had actually been distrained by the landlord upon such premises for such arrears of rent. R.S.O. 1990, c. L.7, s. 48 (1).

Exception

(2)  No landlord or other person entitled to such arrears of rent shall take or seize, as a distress for the same, any such goods or chattels that have been sold in good faith and for a valuable consideration, before such seizure made, to any person not privy to such fraud. R.S.O. 1990, c. L.7, s. 48 (2).

Right of landlord to break open houses where goods fraudulently secured

49.  Where any goods or chattels fraudulently or clandestinely conveyed or carried away by any tenant, the tenant's servant, or agent, or other person aiding or assisting therein, are or are believed to be in any house, barn, stable, outhouse, yard, close or place, locked up, fastened or otherwise secured so as to prevent them from being taken and seized as a distress for arrears of rent, the landlord or the landlord's agent may take and seize, as a distress for rent, such goods and chattels, first calling to the landlord's assistance a peace officer who is hereby required to aid and assist therein, and, in case of a dwelling house, oath being also first made of a reasonable ground to believe that such goods or chattels are therein, and, in the daytime, break open and enter into such house, barn, stable, outhouse, yard, close or place and take and seize such goods and chattels for the arrears of rent as the landlord might have done if they were in an open field or place upon the premises from which they were so conveyed or carried away. R.S.O. 1990, c. L.7, s. 49.

Penalty for fraudulently removing, or assisting to remove, goods

50.  If a tenant so fraudulently removes, conveys away or carries off the tenant's goods or chattels, or if any person wilfully and knowingly aids or assists the tenant in so doing, or in concealing them, every person so offending shall forfeit and pay to the landlord double the value of such goods or chattels, to be recovered by action in any court of competent jurisdiction. R.S.O. 1990, c. L.7, s. 50.

How distrained beasts, goods, etc., may be kept

Beasts distrained not to be driven out of the municipality

51.  (1)  Beasts or cattle distrained shall not be removed or driven out of the municipality in which they were distrained, except to a fitting pound or enclosure in the same county or district not more than three miles distant from the place where the distress was taken. R.S.O. 1990, c. L.7, s. 51 (1); 1993, c. 27, Sched.

Impounding in one place only

(2)  No cattle or other goods or chattels distrained or taken by way of distress for any cause at one time shall be impounded in several places. R.S.O. 1990, c. L.7, s. 51 (2).

Penalty

(3)  Every person contravening this section shall forfeit to the person aggrieved $20 in addition to the damages sustained by the person aggrieved. R.S.O. 1990, c. L.7, s. 51 (3).

Where goods may be impounded

(4)  Any person lawfully taking any distress for any kind of rent may impound or otherwise secure the distress so made in such place or on such part of the premises chargeable with the rent as is most fit and convenient for that purpose, and may appraise, sell and dispose of the same upon the premises, and it is lawful for any person to come and go to and from such place or part of the premises where any distress for rent is so impounded and secured to view, appraise and buy, and to carry off or remove the same on account of the purchaser thereof. R.S.O. 1990, c. L.7, s. 51 (4).

Pound breach or rescue

52.  Upon any pound breach or rescue of goods or chattels distrained for rent, the person offending or the owner of the goods distrained in case they are afterwards found to have come to the owner's use or possession shall forfeit to the person aggrieved $20 in addition to the damages sustained by the person aggrieved. R.S.O. 1990, c. L.7, s. 52.

Sale of distress, when it may be made

53.  Where any goods or chattels are distrained for any rent reserved and due upon any demise, lease or contract, and the tenant or owner of them does not, within five days next after such distress taken and notice thereof, with the cause of such taking, left at the dwelling house or other most conspicuous place on the premises charged with the rent distrained for, replevy the same, then, after the distress and notice and the expiration of such five days, the person distraining shall cause the goods and chattels so distrained to be appraised by two appraisers, who shall first be sworn to appraise them truly, according to the best of their understandings, a memorandum of which oath is to be endorsed on the inventory, and after such appraisement the person so distraining may lawfully sell the goods and chattels so distrained for the best price that can be got for them towards satisfaction of the rent for which they were distrained and of the charges of the distress, appraisement and sale, and shall hold the overplus, if any, for the owner's use and pay it over to the owner on demand. R.S.O. 1990, c. L.7, s. 53.

Irregularities not to make distress void from the beginning

54.  Where a distress is made for any kind of rent justly due, and any irregularity or unlawful act is afterwards done by the person distraining, or by that person's agent, or if there has been an omission to make the appraisement under oath, the distress itself shall not be therefore deemed to be unlawful, nor the person making it be deemed a trespasser from the beginning, but the person aggrieved by the unlawful act or irregularity may recover by action full satisfaction for the special damage sustained thereby. R.S.O. 1990, c. L.7, s. 54.