Saturday, 26 January 2013

Police, Self-help & the Sheriff--Evicting the tenant

This week I had two similar phone calls each involving a the process by which a tenant is removed from the property after they have 1) agreed to move and 2) after they have been ordered to move.  These landlords were seeking to confirm that they could just change the locks and remove the tenants from the unit themselves.  One landlord had "friends" who would help in the eviction while the other mentioned getting the police involved if necessary.

There is a real misconception out there that once a tenant has given notice to leave that a landlord is empowered by that notice to carry out the eviction themselves.  The fact is, that unless the tenant vacates voluntarily, any agreement or notice from a tenant that they are terminating the tenancy can not be enforced unless the landlord applies to the Landlord and Tenant Board and obtains an eviction order.  Even with the eviction Order in hand, the landlord can only enforce the eviction through the Court Enforcement Office (i.e. the Sheriff's office).  No self help, no "big friends", no changing locks, no police enforcement, is available to remove a tenant from a rental unit.  Such self help remedies are indeed illegal notwithstanding the existence of a valid Order or agreement to terminate.

A landlord who enforces an Agreement or Eviction Order with a self help remedy risks being sued by the tenant for an illegal eviction, the associated damages, as well as charges under the Residential Tenancies Act prosecuted in Provincial Offences Court.

Eviction is serious business and the province has made it quite clear that only the Sheriff (Court Enforcement Office) is empowered to remove a tenant from a rental unit.

Michael K. E. Thiele
Lawyer
Ottawa Ontario

11 comments:

  1. My brother and I have lives together for a year now. I lived in his basement. There was no door separating the upstairs from the down. Today the police show up and tell me that they can evict me because there is no door dividing the two units. So low and behold I was told I could leave or face charges. So my gf who is 7 months pregnant and I are living at a motel. How can the police evict me. I was told that a verbal agreements mean nothing. What do I do??

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    Replies
    1. Hi Dennis:

      From what you describe it sounds like the police made a judgment call that your relationship with your brother was not covered by the Residential Tenancies Act. I'm guessing they are saying that you shared a kitchen and/or a bathroom with your brother. This is one of the significant exemptions under the RTA. If your relationship is not covered by the RTA then you have no recourse to the Landlord and Tenant Board for anything. If you disagree with the determination that you are not covered by the RTA you could file an application to the Landlord and Tenant Board in Form A1 to ask the Board to determine whether or not the RTA applies. If it does not apply and you had a contractual arrangement with your brother---and you can prove that the contract was breached--you may have a civil claim against him. Otherwise, you will have to get on with it and try to find a new home for you and your girlfriend as you have a family to provide for. I'm not sure where you live, but if you're in any of the urban centres there are housing assistance organizations and processes for applying for social housing. If you are unaware of how to locate them, contact your councillors office, the town or city government, or a community legal clinic and tell them that you need assistance in finding housing, that you are living in a motel.

      Best of luck.

      Michael K. E. Thiele

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    2. Dear Sir
      I have been evicted today...I live in Orangeville On..How long will a sheriff take...I have a place in 3 days...I am going to ask for the extra 3days

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    3. Hi:

      When you say "evicted today" I have to ask what you mean by that. The Landlord may have served you with a Notice of Termination that contains a termination date. Sometimes people consider that as an eviction date. In fact, you do not need to move out by the date in the Notice of Termination. You may require the landlord to apply to the Landlord and Tenant Board, based on the Notice of Termination, and then you could go to a hearing to argue about termination or the termination date. Certainly, the Board would listen to your request about timing of the eviction, especially if it is just about a number of days.

      The other possibility is that you went to a hearing, lost, and the Board has ordered you evicted as of a specific date. That order will provide that if you do not move out by a specific date that the landlord can file the order with the Court Enforcement Office (Sheriff) for it to be enforced by the Sheriff. Sometimes the Order requests an "expedited" eviction and sometimes it is silent on the point. The reality about eviction enforcement by the Sheriff is that it is different across the province. How quickly the Sheriff shows up to effect enforcement depends on how busy the Sheriff is in that location. In Ottawa, a standard and typical enforcement happens within a week or so of filing with the Sheriff with the Sheriff providing a tenant about 7 days notice that they are coming to enforcement the eviction. In an expedited eviction the Sheriff will still give the tenant notice but it is less. I am not aware of any places in the province where it happens quicker than this.

      Hope that helps you figure it out. If you have details of the "eviction" let me know.

      Michael K .E. Thiele

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  2. Hello, I have fallen behind on my rent. My landlord has sent me a hand written 2 week notice saying vacate or pay within 15 days or they will change my locks. I have explained and provided all the legal info about this, how she can be charged/fined and was told they don't care. What can I do to prevent this from happening? Any advice would be great.

    ReplyDelete
    Replies
    1. Brent: Here is a link to the Investigations Branch of the Ministry of Housing. http://www.mah.gov.on.ca/Page1177.aspx (you will need to cut and paste it into your browser). It is through them that charges may be laid under the RTA if they are feel it worthwhile to proceed in this way. They will also, often, contact the landlord to warn them about appropriate conduct under the RTA.

      You may also consider filing an application under the RTA. Try a Form T2, harassment & intimidation, and ask the Board to order the landlord to comply with the RTA and for an abatement for the stress this has caused you. You can get the T2 form on the Landlord and Tenant Board website.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  3. I have an eviction order for today, April 1; if my tenant has moved out but hasn't returned the keys and "given me back the unit", can I enter and change the locks or is she still in " possession" where I need to go through the sherriff?

    Thanks

    ReplyDelete
    Replies
    1. Hi: This is always a bit of a judgment call as there is no absolutely correct or absolutely incorrect answer. If the tenant has vacated in accordance with the Order then you may take possession of the unit without going to the sheriff. Not returning the keys does not mean that possession has not been returned and in other circumstances it might be considered an abandonment of the unit if it is clear that the tenant has moved out by the absence of personal property in the unit. If the apartment is empty of personal property then it is easy and you can proceed to take possession of the unit and change the locks. If the unit is still full of personal property and you can't reasonably reach the conclusion that the tenant doesn't live there anymore then you should consider going the Sheriff route. Of course, if you see the tenant, have a cell phone number, or the number of an emergency contact, try to reach them to ask.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Very good! Thanks a lot Michael. I appreciate the quick reply.

      Dan

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  4. Hi, Michael

    My tenant has owed 3-month rent and I received the eviction order from the Landlord and Tenant board. If the tenant chooses to stay after Mar.29, I need to file an order with the Sheriff. What can I do with his two dogs and his belongs. I doubt he will move out voluntarily.

    Thank you very much,
    Kelly

    ReplyDelete
    Replies
    1. Hi Kelly: The Residential Tenancies Act has rules for dealing with an evicted tenant's belongings. Those rules are start at section 41 of the RTA. For an evicted tenant the RTA provides that you are required to make his property available to him for 72 hours after the eviction is enforced. The RTA gives you broad discretion to dispose of, keep, sell, etc., property that has not been claimed in accordance with the RTA (see section 42). The best advice though, is to keep any heirlooms or clearly valuable or sentimental items available to the tenant even beyond the 72 hours period. It is important to take pictures of the stuff before disposing of it to be able to prove the value of what the tenant failed to pick up (in case he sues you later).

      With respect to the animals the only thing to do, I think, is to call the humane society and have them there to pick up the animals. It is likely that the sheriff will also inquire about the presence of animals and it may be that they will require the animals to be taken into the custody of the humane society if the tenant has not removed them from the property. The tenant can always go and claim his animals from the humane society.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.