LTB Decision – John and Maria Saraiva v Paul Bunyan Trailer Camp – DissectedAdvice for the Mobile and Seasonal RV Campers

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Opinions of the Author in Blue

Direct Quotes from somewhere in Red

Purposes of Act (RTA)

From The RTA : The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes. 2006, c. 17, s. 1.
From Mathews v Algoma Timberlake : The purpose of the legislation is to provide protections to tenants. There is no reason to exclude tenants who have a penchant for recreation and spending time with their families in the outdoors. Indeed, if it had been the legislature’s intention to exclude recreational units from the Act, it could have added living accommodation occupied for “recreational” purposes to the s. 5 list of premises to which the Act does not apply.
From Mathews: The Honourable R. Roy McMurtry, the Attorney General at the time, explained that the purpose behind extending the application of these protections to mobile homes (and later to land lease sites) was to provide tenants of those premises with security of tenure and other protections that had been available to other tenants. [See Note 3 below] To ensure that protection, the legislation provided a broad definition of a “rental unit”.

(a) Rental unit: [ 24] The definition of a “rental unit” in s. 2(1) contains two components. First, the unit must be “living accommodation”. Second, it must be used or intended for use as “rented residential premises”. As I have indicated, s. 3(1) provides that the Act applies despite any term in the lease to the contrary and s. 4 provides that “a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void”. Section 202 requires the Board to “ascertain the real substance of the activities” relating to the rental unit and to do so disregarding “the outward form of [the] transaction”. Accordingly, a term in the lease providing that a site is not residential nor a rental unit will not have the effect of avoiding the application of the Act, provided that the premises otherwise fit within the statutory definition of a “rental unit”.Statutory Definition of Rental Unit from the RTA: “rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises. This definition has no conditional riders that would limit the effective meaning to recreational, seasonal or temporary period.

References:
Putnam v Grand River Conservation Authority
Mathews v Algoma Timberlake
Residential Tenancy Act

Order under Section 9(2)
Residential Tenancies Act, 2006
File Number: SWT-65538-14
In the matter of: LOT 339 IRONWOOD, 75559 LIDDERDALE STREET BLUEWATER ON NOM1GO
Between
John Saraiva Tenants, Maria Saraiva
and
Paul Bunyan Trailer Camp Limited Landlord
John Saraiva and Maria Saraiva (the ‘Tenants’) applied for an order to determine whether the Residential Tenancies Act, 2006 (the ‘Act’) applies.This application was heard in Goderich on December 12, 2014. The Tenants, Mr. S Hanley, the Tenant’s Legal Representative and Mr. J. Boere, and officer of the Landlord company and Ms. K. Ley, the Landlord’s Legal Representative .Paul Bunyan Trailer Camp Limited (the ‘Landlord’) attended the hearing.

For reasons attached:
1. I ﬁnd that the Act does not apply.
It is ordered that:
1. The application is dismissed.
February 9,2015
Date issued .

Robert Murray
Member, Landlord and Tenant Board
South West-RO
150 Dufferin Avenue, Suite 400, 4th Floor
London ON N6A5N6
lf you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234.
Order Page 1 of1

Landlord and Tenant Board

File Number: SWT-65538-14

REASONS
1. This application concerns an agreement regarding the use of land and other facilities at a trailer park. The landowner enters into two or three different types of agreements with those who wish to occupy land on its property.

Orbiter

2. One agreement covers those persons who wish to remain in the park throughout the whole of the year. There are a limited number of these agreements in the complex. The second type of agreement allows for seasonal use on the land, while the third type covers very short term use (weekends, a couple of weeks in the season etc.).

Orbiter
3.The agreement at issue here is of the second type; called a “Seasonal Licence of Occupation 2014” (see page 37 of the Respondent’s Document Brief). The applicant submits that in essence this is a lease and that the relationship between the parties is that of landlord and tenant.

RTA: “tenancy agreement” means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit;

The Board disagrees for the reasons that follow.
4.Two sections of the Residential Tenancies Act (the “Act”) are particularly relevant to this application. Section 5 of the Act sets out exemptions from the Act; in other words the Act does not apply to these exemptions.. Section 5.(a) exempts living accommodations
intended to be occupied for a seasonal or temporary period, including those in a trailer park.

This is and LTB interpretation of Rule 5(a) and is contrary to that provided in Putnam v Grand River Conservation Authority and Mathews v Algoma Timberlakes. The LTB flatly refuses to acknowledge these decisions.

The listing of places where this seasonal or temporary accommodation is to take place clearly is a listing of places, owned by private persons or businesses, which appeal to the general public as vacation spots or places to stay when one is away from home. They represent accommodation for travellers, for vacationers, for anyone who needs temporary accommodation provided by someone other than themselves.

5. Section 202.(1) of the Act directs the Board to ascertain the real substance of all transactions and activities related to” a rental unit or in this case when determining whether the agreement creates a landlord and tenant relationship over which the Board may exercise its jurisdiction. In so doing the Board looks ﬁrst to the written agreement between the parties. RTA 202(b): (may disregard the outward form of a transaction . To me this means disregard the content of the lease and look at what the lease means, and what effect it has on both parties.)

Again the LTB ignores the sections that they don’t like and focus on those areas that conform to their own interpretation and agenda.
ie: 202(1)(b) asks the board to regard the pattern of activities relating to the rental unit., which they have ignored. 202 makes no mention of the written agreement, which is void if it conflicts with the RTA, but to look at all transactions and activities.

transactions and activities encompass a lot more than just the written agreement and only those sections not conflicting with the RTA are relevant

From The RTA:202. (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit. 2006, c. 17, s. 202.

The Board has failed to look at or provide a list of activities that is inconsistent with a rental unit

6. This agreement, between “Owner and Occupant, “which is similar to all the preceding annual agreements spanning some 18 years, sets out in its ﬁrst section that the license is for seasonal occupation of the licensed site only. In the same section the season is deﬁned as April 25 to October 15 of the calendar year.

RTA: 4. (1) Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4.

7. In addition, the invoice for the fee for the licence (page 39 of the Respondent’s Document Brief) gives the occupants three options. The ﬁrst two are a single payment for the annual fee (one option is discounted for early payment) and the third gives the occupant the right to pay the fee in six monthly installments over the season as deﬁned in the licence. There is a separate invoice sent for storage of the trailer after the season until the commencement of the next year if the occupant wishes to renew the agreement. For example the storage fee for the off-season was a flat fee of $200.00 in 2013.

RTA: “rent” includes the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit and for any services and facilities and any privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the rental unit, whether or not a separate charge is made for services and facilities or for the privilege, accommodation or thing. The winter storage fee is part of the “rent”, and as such the rent is paid for 12 months.

8. It should be noted, that there is no supply of water to the trailer in the off-season; that at the completion of the season as set out in the agreement, the water supply to the trailer iscut off, the pipes are blown clear until for following commencement of the season, assuming that the licensee wishes to renew. The water connection to the unit is not designed nor intended for use in the winter months; the piping is not buried beneath the frost line nor is the connection winterized.

9. Access to the applicant’s unit in winter by plowed road is partially and only serendipitously available as the plow to clear the road for the permanent resident units in the complex has to pass part of the road in front of one side of the applicant’s trailer. The owner of the land does not provide this service to seasonal licensees.

Mathews:[28] In my view, occupants of residential units are entitled to the protection of the Act, whatever they do inside or outside of their premises during their waking hours. The Act applies whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.
10.The applicant argues that notwithstanding the clear language with respect to the seasonal nature of the license, the relationship is that of landlord and tenant for a number of reasons. The ﬁrst is that the agreements each of a year in duration have been in place for some 18 years and this fact along with others is indicative of a landlord and tenant relationship. [This paragraph should end here. What follows is pure spin on the part of the member] The argument seems to suggest that the licensee can claim some sort of equitable remedy akin to the concept of adverse possession. As the husband now wishes to retire, the applicants seek to avail themselves of what they see as this prescriptive remedy, move to the trailer and live there all year-round as tenants of the landowner.

11 .The Board rejects this assertion as having no basis in law. Because the occupants unilaterally wish to alter a one year seasonal agreement and live there on a year-round basis, confers no right to do so regardless of the number of seasonal licenses that have been executed between the parties.

The wording of the license should have no bearing on this decision. The RTA is clear on what is covered by the RTA in their definitions of land lease home, and land lease community.

The RTA makes no distinction between Full Time Residence or Seasonal. It provides a definition of land lease home and land lease community that do apply here. If the tenant adds a deck to convert his trailer into a permanent structure and as such a land lease home, then it is definitely germane to this issue.

RTA:“land lease home” means a dwelling, other than a mobile home, that is a permanent structure where the owner of the dwelling leases the land used or intended for use as the site for the dwelling;

RTA:“rental unit” means any living accommodation used or intended for use as rented residential premises, and “rental unit” includes,
(a) a site for a mobile home or site on which there is a land lease home used or intended for use as rented residential premises

Mathews: [28] In my view, occupants of residential units are entitled to the protection of the Act, whatever they do inside or outside of their premises during their waking hours. The Act applies whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.

13.The enhancements accrued to the value of the trailer, owned by the applicants and not the owner of the land and while it may be true that if the applicants decided to pull up stakes and remove the trailer, it would be logistically impossible to recoup the value of the deck and so on, that is a decision made by the owners of the trailer when they decided to do the work and not the owner of the land. In addition enhancement of the trailer is not germane to the issue of the seasonal nature of the agreement.

Not germane to any section of the RTA or this issue

14. It strikes the Board that this argument with respect to the enhancement of the trailer is analogous to that of a gardener who decides to tether an annual bloom to an ornamental stake to enhance its appearance and then argues that the bloom has thus become a perennial. (LTB Member Out to Lunch)
15.The applicants argue that the trailer is of an age that removal from the site is not a viable option; that the trailer would fall apart. While this may be so, again the decision to leave the unit at the site while it ages to the point at which removal becomes questionable is not a decision made by the land owner, but by the applicants and has no bearing on the nature of the agreement with the owner of the land.

Not applicable to the RTA or this issue

16.This is not to suggest that the applicants are without a financial remedy; that is they may wish to sell the aged, decked, fire-pitted unit to someone who wishes to use it in accordance with a seasonal licensing agreement. However, this is not determinative of the issue before the Board.

Not applicable to the RTA or this issue

17. The final argument of substance put forward by the applicants is that Mathews v. Algoma Timberlakes Corp., 2010 ONCA, 468 determined the issue with respect to these “seasonal use” contractual relationships in ﬁnding that they are in essence that of landlord and tenant. The Board disagrees.

I have been unable to locate any reference to “seasonal use” contractual relationships in Mathews v. Algoma Timberlakes. They would not be valid anyway.

RTA: 4. (1) Subject to section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4.

18.While that Algoma case so found, the facts that gave rise to that decision bear little resemblance to those in this matter and thus the Algoma case is clearly distinguishable.

The Algoma decision hinged on the fact that the cottages were living accommodations as defined by the RTA and as such is NOT distinguishable.

[23] In this case, s. 1 of the Act provides that one of the legislation’s primary purposes is to protect residential tenants from unlawful rent increases and evictions. The Honourable R. Roy McMurtry, the Attorney General at the time, explained that the purpose behind extending the application of these protections to mobile homes (and later to land lease sites) was to provide tenants of those premises with security of tenure and other protections that had been available to other tenants. [See Note 3 below] To ensure that protection, the legislation provided a broad definition of a “rental unit”.
(a) Rental unit

[24] The definition of a “rental unit” in s. 2(1) contains two components. First, the unit must be “living accommodation”. Second, it must be used or intended for use as “rented residential premises”. As I have indicated, s. 3(1) provides that the Act applies despite any term in the lease to the contrary and s. 4 provides that “a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void”. Section 202 requires the Board to “ascertain the real substance of the activities” relating to the rental unit and to do so disregarding “the outward form of [the] transaction”. Accordingly, a term in the lease providing that a site is not residential nor a rental unit will not have the effect of avoiding the application of the Act, provided that the premises otherwise fit within the statutory definition of a “rental unit”.
19. For example in the Algoma case, the contractual agreements were “leases” covering an initial 20 year less one day period for the land on which the lessees erected cottages which were designed for and used as year-round, second homes. Moreover, the land owner arbitrarily sought to alter the lease agreements to licenses. Rent was payable under the leases on a year-round basis and access to the units was provided by the landowner on a year-round basis.

See 18 above
20. None of these factors apply to the case before the Board; the licences are annual, and not only refer to but define their seasonal nature. The fee for the use of the land is payable over the season only as deﬁned in the agreement. A separate storage fee is assessed if the licensee wishes to store his or her unit on the land in the off season.

Winter storage fee is rent and as such rent is paid for the full year, whether or not the tenant is on site.
In my opinion, the decision made in Putnam v Grand River Conservation Authority CLEARLY discounted rule 5(a) from being used for land lease homes, which this unit is. Even if it is, the permanent nature of the facility would exclude it from 5(a) as per the definitions of campground and trailer park provided by Termium Plus, the Canadian Government official terminology database.

From Termium Plus:

Campground: A portion of land made of a number of campsites; it may include facilities such as roads, parking lots, sanitary and water utilities.

Campsite:An area which provides a tent site or a trailer space for campers, and which may be equipped with a picnic table and a fire ring.

Trailer Park: [A campground] equipped with running water, electricity, and other facilities, for accommodating automobile trailers.

21 .The landowner provides no access to the seasonal licensee in the off-season and no water supply available to the licensee in the off season.

A Flower Analogy representing the land lease home in a park that closes for the winter would be Perennial, where the site is used by the same tenant year after year, and the roots stay in the ground over the winter.

Mathews:[28[ In my view, occupants of residential units are entitled to the protection of the Act, whatever they do inside or outside of their premises during their waking hours. The Act applies whether the occupants spend their days at work or at leisure, whether they live in their accommodation 52 weeks a year or some lesser amount of time, and whether the unit in question is their primary or secondary residence.

22. ln light of all of the evidence before me, I find that the applicant’s unit is intended to be occupied for a seasonal or temporary period, and as a result, exempted under section 5(a) of the Act. The Act therefore does not apply. (The applicant’s unit(Site) is occupied all year long)

A feature or rule of a TRUE SEASONAL park is: (Could Using the flower analogy – an Annual Park)

Annual: Permanent installations (i.e. decks) are not permitted and all equipment must be removed from the park at the end of the season.
http://www.pc.gc.ca/eng/pn-np/nb/fundy/activ/camping/saisonier-seasonal/regles-rules.aspx

Not a valid argument for the reasons indicated above. The LTB’s main purpose in life is to adjudicate issues pertaining to the RTA and protect the rights of the Tenant. They have obviously reversed this philosophy, as they have stressed many items that favour the campground over the tenant that really should have gone the other way, asnd ignored items that were definitely in favour of the tenant.

The Board member stresses over and over the fact that the license agreement refers to seasonal occupancy, neglecting the terms in the RTA that over ride these issues.

The only item in the RTA that refers to seasonal or temporary period is in exclusion rule 5(a), which has been removed from the equation by both Putnam and Mathews. (Also look at Termium Plus definitions of campground and trailer park)

More Comments available in 6 Reasons Why the Exclusion Rule 5(a) is not applicable to a Land Lease Home.