Wednesday, 13 March 2013

TENANT'S STUFF LEFT BEHIND

After a tenant has left a rental unit most landlords find themselves at the door of the unit wondering what will greet them on the other side of the door.  Will the place be a disaster?  Will it look just like the day the tenant moved in?  The fact is that you never quite know how a tenant will leave a unit when they move out.  This blog, today, is about finding stuff, personal effects, property--from couches, to clothing, to picture albums, to junky things that belong to the tenant that left.  What do you--as the landlord--do with these things?

What to do with these items is a common question.  The answer is a little more complicated than you might imagine---and the ultimate answer is a whole lot less satisfying than what you would like.  To begin answering this question you need to consider how you regained possession of the rental unit from the tenant.  It makes a difference.

If you regained vacant possession of the rental unit from the tenant based on a notice of termination, an agreement to terminate, ending a super's employment, or an Order of the Board terminating the tenancy---then in accordance with section 41 of the Residential Tenancies Act the landlord may sell, retain for their use, or otherwise dispose of the property that was left behind in the rental unit.  According to this section of the RTA, there is no waiting period, there is no obligation to keep anything for the tenant.  You can simply do what you like with the stuff left behind.  Most of the time this means throwing it in the garbage.

If, however, you regained vacant possession of the rental unit as a result of enforcing an eviction Order through the Court Enforcement Office (i.e. the Sheriff), then the rules are different.  The applicable section of the Residential Tenancies Act is still section 41 but now you are under section 41(2) & (3) which states that you must make the tenant's property available to them for a period of 72 hours at the property or a location close to the rental unit.  The hours between which you must make the property available to the tenant is between 8:00 a.m. and 8:00 p.m.  If you are looking for the legal basis for these hours you will find them set out in O.Reg 516/06 section 46.

After the expiration of the 72 hours section 41 seems to suggest that a landlord may sell, retain, or otherwise dispose of the tenant's property.

If, as the landlord, you fail to make the property available to a tenant or you make it difficult or impossible for the tenant to contact you to make arrangements to retrieve the property, then you could face an application to the Landlord and Tenant Board by the tenant for the costs of replacing the property, returning the property, repairing the property, out of pocket expenses, and anything else that the Board considers fair.

Other circumstances in which a landlord may be left dealing with a tenant's property is in the case of the death of the tenant and there being no other occupants.  The Residential Tenancies Act has specific provision for such circumstances in section 92 of the Act.  In summary, the RTA allows a landlord to dispose of unsafe or unhygienic items immediately.  For the other property, the Act provides that the landlord may dipose of the property of the tenant who has died after the deemed termination of the tenancy as set out in section 91---i.e. the tenancy is deemed terminated 30 days after the tenants death.

Again, with respect to disposing of the property of tenants, the Act may be seen as providing a very clear cut set of rights and obligations.  In my experience it is best to remember that following the strict letter of the law will win you few favours and in fact a Court may still go out of its way to compensate a tenant (at the landlord's expense) if the landlord's behaviour is not reasonable---notwithstanding that it is technically legal under the RTA.  A simple example of what I mean is as follows.  Imagine a tenant, retired gentlemant, rent always paid on time.  He passes away in his unit.  He has no family in the country, close relatives have pre-deceased him.  Following his death it has taken a few weeks for next of kin to be located.  Turns out they live some where in the USA.  They can't come to Canada to deal with the estate for a couple of weeks.  By the time they get here it will be 7 weeks post death (well after the time period set out in the RTA allowing a landlord to dispose of the deceased's property).  Going through the rental unit you find a well appointed unit, valuable property and generaly nice things.  It would be very risky, under these circumstances, for a Landlord to simply dispose of the deceased's property.  No Court would condone such behaviour as it is quite likely that the estate would have voluntarily paid additional rent until the executors managed to get organized.

Please note that in the case of the death of a tenant, the RTA further considers the obligations of a landlord in disposing of property and a duty to compensate or return property that has been retained in section 92(3)&(4).

SUMMARY

In all dealings with a tenant's personal property--whether abandoned, left behind because a sheriff enforced eviction, or because of the death of the tenant, the provisions of the RTA should be considered, to be a safe but minimum guideline to be adhered to by the landlord.  Sometimes this will be difficult as the tenant was removed from the property under trying circumstances.  Nevertheless, a Landlord who disposes of valuable property--especially sentimental property like wedding albums, baby pictures, movies, heirlooms and other irreplaceable items---risks a significant damages award against them by the Court.

While the RTA provides protection to a landlord disposing of ordinary property, junky stuff, under "normal" circumstances, the protection provided by the Act will still be judged against a standard of behaviour based on the common decency scale.

Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario

11 comments:

  1. my step-daughter went away for the weekend telling us she'd be back in a 'couple of days' she now advises she will not be returning, what do I do with the apartment of stuff she moved into my home when she fled from there to here? is there a time limit for me to hold this stuff that's clogging up my house?

    ReplyDelete
    Replies
    1. HI: From your question it sounds like your step-daughters stuff is in your house--meaning if she was there she would be sharing a kitchen and/or bathroom with you. If so, your step-daughter is not in a landlord and tenant relationship with you that is covered by the Residential Tenancies Act. If the RTA does not apply then you have no obligations towards her or her stuff as set out in the legislation. So, if there is no RTA coverage--what do you do? The safest way to deal with this is to advise her, several times in writing (email, text, fax) that she must come and pick up her stuff. The need to notify and warn is increased if the stuff looks like it has any real value. Take pictures of it all. If she refuses to pick it up, fails to make arrangements to pick it up, then offer to put the stuff in storage for her if she sends you the money--rent the locker in her name and send her the key. If all of that fails, tell her that you are going to sell it, throw it out, etc., by a specific date and then proceed. Keep track of all the steps you take. The point is to be "reasonable" from an objective perspective. Imagine her suing you in small claims court for disposing of all of her property. In that circumstance, what "facts" would you like to be able to tell the judge? That is your standard.

      Good Luck

      Michael K. E. Thiele

      Delete
  2. My tenant left his motorcycle behind after giving his notice and moving out. Does this mean it is legally mine? How would that work because I do not have the ownership. He also owes me a half months rent. Can I lock up the bike or do whatever I want with it since he has not paid that rent? He also still has my key and did not return it.

    ReplyDelete
  3. my tenant moved out as per the agreement but his some stuff stays in the unit and some garbage so what do I do

    ReplyDelete
  4. Hi Michael,

    My tenant is threatening to leave a large couch in the the basement rental unit because it was very difficult to get in. He is leaving July 31. We do not want to have to deal with this. Do we have any recourse?

    Thank you

    Mike

    ReplyDelete
    Replies
    1. Hi: If your tenant leaves the couch you will have no choice but to deal with it. I understand the issue with difficult access. Sometimes it seems that the architects who design houses--especially modern ones--have never actually lived in one. I have humorous memories of trashing the drywall all the way down the stairs into a basement of one of my former partners' homes with a couch. As I recall he abandoned filing cabinets in the basement when he eventually sold because they just couldn't come out without destroying the drywall on the stairs.

      Anyway, in your circumstances you can tell the tenant that you want him to deal with it--but frankly, if he doesn't, it becomes your problem. Once the tenant goes you can pay someone to remove it or do it yourself. Whether it is worth the cost to you or not you can sue the tenant for the costs of cleaning up the garbage.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  5. What can I do if I cleaned my last rental unit up to immaculate condition but garbage day there wasnt for another 4 days so I bagged everything and tagged everything and left it there for them to put out on the next garbage day and they came and through everything on my new rental properties driveway making a huge mess and causing embarassment for me...

    ReplyDelete
    Replies
    1. Hi: The ignorance of your former landlord is simply astounding. I presume of course that you made arrangements with the landlord before leaving that the garbage should be thrown out on garbage day etc.? Even if you didn't it doesn't justify the boorish behavior. I take it that you cleaned up the mess and it is now all sorted. While I appreciate that you might want to exact some revenge for this stupidity I think you should consider being the bigger person and simply letting things lie. If your only damage is a bit of embarrassment and some time spent cleaning I'm inclined to recommend that you let it go and be happy that you're away from your former landlords.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  6. What if you were living with someone for a few years. Then they went to work one
    day and didn't come back. Have tried to email and go through someone to contact them to get their stuff with no response. How long do I legally have to store their stuff in my home?

    ReplyDelete
    Replies
    1. Hi: In Ontario there is no statute that sets out a clear set of rules for circumstances such as this. The law that I think would apply is the law of bailment. Generally speaking, (and context is everything), you should make efforts to inform the person to pick up their stuff and explain what you will do with their stuff if they don't pick it up by a certain date. You might want to invite them to contact you through a third person or a lawyer or in whatever way they are comfortable. Going to work one day and simply not coming home is an unusual way for a relationship to end and it suggests that there is a lot more going on than your comment reveals.

      If the items left in your home are valuable then the option of just throwing them in the garbage seems improper. If after due warning has been given and the person simply refuses to deal with the issue then you might consider selling or sending to auction the stuff you have. Again, it matters what kind of stuff it is and how valuable it is--a higher value, rareness or family heirloom imposes a greater obligation on you to look after the stuff properly. For example, if you have picture albums those may have a high sentimental value and zero market value. It would be wrong to throw them out unless there is really truly nothing else you can do and there is no corner in which you can store them. I'd consider--if you know someone that this other person knows (i.e. family or close friend)--asking permission of that person to simply drop the stuff off at their house--especially things of sentimental value.

      In the cases that I've seen over the years the analysis always seems to turn on reasonable behaviour and real attempts to get the property into the hands of the rightful owner. Certainly, if you incur expenses there is a basis to claim those as well. In the end, the property is not yours and if it is valuable it should be reunited with the owner if at all possible.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  7. Tenant was evicted by n12 may 12th 2017. They left on the 14th, house is completely empty,but garage and driveway has some stuf/junk behind. Tenant says he's coming to get it but only gets a small amount, lots left. Locks are changed but left access to garage. House is heavily damaged, appliances stolen, and no rent since nov. I have an L9 order to pay over 4k, but I'll never see it. How should I proceed re his stuff?
    John in ottawa

    ReplyDelete

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.