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).
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
Quinn Thiele Mineault Grodzki LLP
Wednesday, 13 March 2013
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