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
Saturday, 26 January 2013
28 comments:
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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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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??
ReplyDeleteHi Dennis:
DeleteFrom 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
Dear Sir
DeleteI 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
Hi:
DeleteWhen 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
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.
ReplyDeleteBrent: 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.
DeleteYou 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
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?
ReplyDeleteThanks
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.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Very good! Thanks a lot Michael. I appreciate the quick reply.
DeleteDan
Hi, Michael
ReplyDeleteMy 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
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).
DeleteWith 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
I rent out a few rooms in my house. Recently one of the tenants has refused to pay rent, and also refuses to vacate.
ReplyDeleteIn the past I haven't had issues having a non paying tenant removed from my home by the police. Unfortunately this time the police dispatch told me it is a civil matter, and there is nothing they could/would do.
I thought if a tenant shares a kitchen and/or bathroom with the Landlord that they could be evicted at anytime?
Help?!!! Now that the other tenants know she is getting away with non payment I believe they all plan on following suit.
The police should be helping. As soon as you ask the person to leave and you are living with the tenant then the tenant becomes a trespasser and police should remove them. Unfortunately, if police are unwilling to do anything and you are not prepared to "self help" then the next thing to do is to bring an application to the Superior Court asking for a Writ of Possession. This process is likely not something you can do on your own. You will need a lawyer--and unfortunately, you can expect significant legal fees.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy tenant has owed 3-month rent in addition to other circumstances such as non-maintenance of the property, causing issues to the reasonable life enjoyment for the other tenant (separate unit in the same house).I have filed with LTB for eviction, we have received a hearing date which is 2 months from now. In the meantime, our tenant told us she will be moving out and promised to vacate the premises. It's been weeks after weeks and she's still coming to the house, her children and most of her personal belongings are gone. Last weekend we have visited the house with a prior notice and were told by the tenant she'll vacate completely by Sunday. Today 5 days passed and I have received a call from my other tenant who is renting the upstairs unit at the same house, telling me that there's trespassers - someone else has moved in and seems to be living at the property. The tenant upstairs is concerned for her personal safety and has asked us to come to the house (called it an emergency). In this case, will police be able to help us to evict the unauthorised occupants/squatters/ trespassers from the property, given the situation. I believe there's no formal agreement of sublease between my tenant and these people, in fact the agreement that we had, that has in fact expired, not permitting of sublets without our (landlord's) written agreement. Our tenant didn't ask us if she could sublet the property either. In sch case, will police be able to evict and allow us to change locks of the common entry to the house, since the entrance is shared with another tenant, who is fearing for her safety?
Thank you very much,
Tatiana
Hi: Let me see if I understand correctly what you are saying. You have a former tenant to whom you gave a Notice of Termination and you applied to the LTB for an eviction hearing. Prior to the hearing she advised that she was moving out. She took her time but ultimately vacated. After she vacated some random people showed up one night and occupied the empty unit. The other tenant informed you of this. Certainly there is no explicit sub-let or assignment of the tenancy. No one asked your permission for these strangers to occupy the unit. It is unclear whether these strangers are connected to the tenant who moved out.
DeleteOn these facts--will the police help. Yes, they should. The people who took possession have no legal right to be present. If the former tenant returned possession of the unit to you then there presence is illegal. If the unit was not yet returned to you and these people are present at the invitation of the former tenant then the situation is a little less clear. Until you get vacant possession from the tenant or the Board grants you an Order and you enforce it through the Sheriff the tenant may still technically occupy the rental unit.
However, by vacating and then putting in new people there is an unauthorized transfer of occupancy which would allow you to file an application with he Board to evict. If this is the circumstance then you might want to consider filing an A2 application (see the LTB website) which is the application to evict unauthorized occupants. (this is the step to take if the police won't help)
Good luck to you
Michael K. E. Thiele
www.ottawalawyers.com
Ltb issued eviction, sherif is scheduled to evict on sept 5 th.
ReplyDeleteTennant files claim of poor service to rental unit and hearing at LTB is set on 3 rd of September as per ltb notice I have recieved .
What are my choices?
Can I ask sherif to expedite eviction before ltb hearing ?
What will be the outcome of such hearing after eviction is issued ?
Hi: What you can do is set out in the LTB Order and there isn't anything that you can do to change the scope of the Orde--at least not before the scheduled eviction date. If there is a problem with the Order you could 1) Request a Review, or 2) Appeal to Divisional Court. Neither of these two options are practical or useful for you given that you are looking for "speed". A Request to Review will date at least a month or two. A Divisional Court Appeal will take years. There are no other amendment procedures for anything substantive in the Order.
DeleteAsking your local sheriff to enforce sooner is highly unlikely to work. I have only ever seen it happen once and those circumstances were extraordinary. Given that the Sheriff has given Notice already to the tenant (presumably a Notice to Vacate has been posted), it would be quite something if the Sheriff showed up earlier to evict. The tenant would likely have grounds of complaint against you and the Sheriff if the Sheriff just arrived a few days sooner.
As for the tenant application. It will stand on it's own. Can the tenant application affect your eviction Order? Typically I would say "no". However, if the circumstances being alleged by the tenant are serious enough there would certainly be authority under the RTA to stay an eviction (even in another application) even if only by ordering you to not evict and directing the sheriff to not enforce any outstanding Orders for eviction. That would be an extraordinary remedy and I don't think there isa much of a chance of that--but it really depends on how serious the allegations are and what the tenant proves.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Wondering what rights I mite have, I was behind on rent and was brought to ltb well there I spoke with my landlord I explained my position financially and understood hers so I agreed to leave the home 4months later, I have paid all arrears when my new rental fell threw I asked my landlord for an extension and that I would replace the last months rent as I used it for the month prior she agreed that was fine, unfortunately she has since changed her mind after I already gave some of the payment for the rent and I unfortunately agreed at our Ltb hearing to an eviction order as I thought I had plenty of time to accomplish moving, now I dont know what my rights are? Can she file for eviction when she agreed to allow the stay? She took payment for rent then told me she changed her mind and would be keeping the funds. I need to know if she can enforce the eviction and how long would I have till the sheriff comes and locks me out.
ReplyDeleteHi: Any half decent answer to this inquiry requires a look at the eviction Order and then the communication between you and the landlord about letting you stay, the payment, and the discussions backing away from the agreement continuing the tenancy. What I am wondering, depending on what the evidence reveals, is whether a new tenancy has been created with the agreement reached between you and the landlord. If one has, then the landlord trying to get out of the deal isn't something she can do without your consent. This is very much the same as she did not have to allow you to stay longer (i.e. her consent was required). Whether there is a new tenancy agreement is one possibility. It is also possible that the eviction was maintained but the termination was delayed by agreement and payment made. If it is an extension then based on agreement and payment this too is an enforceable contract. How this goes really depends on the words of the agreement. I don't see, based on what you say, the eviction Order being enforceable without regard to the agreement you've made with her---the exchange of money makes that (in my opinion) impossible.
DeleteYou will need to retain a lawyer, paralegal, get help from a community legal clinic, or hope that duty counsel is keen to work with you. I would consider, to make this enforceable, a T2 application and I'd seek an emergency scheduling of the hearing if the possible eviction date is pending. I don't know where in the province you are but if you are in Eastern Ontario this is one I'd take to the counter and speak with the clerk there--the reason being that scheduling is brutally slow these days and you may not get a hearing until it is too late. What you are looking for is a T2 hearing date before the eviction, or getting a duty adjudicator to stay the eviction Order (in your T2 application), pending the hearing. Getting such a Stay can be tricky as the LTB doesn't typically have motion procedures but this is something you could do at the counter and with a clearly explained T2 the Board may just grant the Stay. If this all falls apart, then I think you are looking at filing a Request to Review (with an extension of time request), to revisit the terms of the consent given the new agreement. Some might advise to go with the Request to Review instead of the T2 Application. I think both work.
Hope that helps. Make sure to see a lawyer or paralegal or clinic lawyer as soon as possible. I'll urge you to see the lawyer before setting out your position in writing in any application to the LTB.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Good morning, Michael;
ReplyDeleteWanting to remove a roommate from my property, and just wondering if I can get the sheriff involved to evict as we have a roommate agreement and not a lease.
Thank you;
Marleen
Hi Marleen: The "Sheriff" also known as the Court Enforcement Officer will (as far as I know) only accept your requisition for enforcement if there is an underlying Court Order or Landlord and Tenant Board Order. I presume, in your case, that the Residential Tenancies Act does not apply and as such you can't get an Order from the Landlord and Tenant Board. Therefore, if the police won't help and you are trying to get Sheriff help I imagine that you will first need to go to Court to obtain what is called a Writ of Possession. That process, unfortunately, is very complicated and expensive and it is unlikely that you could do it yourself without a ton of work. I do think that your answer likely lies with the police if you can establish that you are the lawful owner or tenant and that the roommate has no RTA protection and no other lawful right to occupy.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Micheal
ReplyDeleteI am an "occupant" on the lease of a rental apartment, which i currently live, The leaseholder is a close friend who doesn't live in the apartment anymore but comes to visit once a month and is fine with his name still on the lease.
I rented out the second room to a random person (No lease agreement)and we share a bathroom and kitchen but he has not been paying rent for 3 months so i told him to move out but he didnt.
Can i apply to the Board to LTB Board to evict? I'm i the landlord in this context if i call the police to evict? what are my options?
Thanks very much
What a wonderfully convoluted set of facts. A comprehensive answer would take a while and more facts are needed. Your first paragraph describes an unauthorized transfer of occupancy (most likely option). Presumably the landlord is unaware that your friend (not a spouse?) no longer lives at the unit. The reason to have this arrangement is that the rent is likely low (affordable) compared to what the rent would be now if the unit was re-rented. The question then is what is your status in the apartment. If the landlord is aware of the unauthorized transfer of occupancy and has done nothing to evict you then it is possible that you are now the lawful tenant of the rental unit. If you want to read the law on this point start reading at section 100 RTA. Once the landlord knows you are living there alone then the landlord has 60 days to bring an application to terminate and evict. Failing that, it is possible for the lease to be deemed assigned to you. (see the RTA sections starting at 100 for a few other options).
DeleteOnce you are the tenant--either because the landlord has agreed that you are the tenant or a deemed assignment then you have "rights" in the unit. Any person that you bring into the rental unit is a roommate and that roommate has no rights under the RTA. You can simply ask the person to leave. The typical notice period for a non-RTA covered tenant is one rental period--but that can be reduced to zero depending on the reason for terminating. The remedy, if the person refuses to move is to call the police and have them removed as a trespasser. Of course, that is much easier to do if you are the tenant (and not an unauthorized occupant).
As far as recourse to the LTB as a tenant or occupant to remove a roommate--there is simply no process for that. The LTB has no jurisdiction over roommates and there is no application that a tenant can bring against a roommate to remove them from the rental unit. You are truly relying on the police and the Trespass to Property Act. If by chance the police refuse to do anything then you are in the unenviable position of having to go to the Superior Court of Justice for a Writ of Possession (in my view). Now some will argue (and there is authority) that your relationship with the roommate is a commercial tenancy and hence those rules apply--I don't subscribe to that view though.
I rented my legal basement in Feb thos year. My daughter has acute asthama by birth, the lease says no smoking inside but the tenant smokes inside. For months, I politely tried to stop him but he lies everytime that he doesnt smoke. Ultimately, I got angry and things become strained. He stopped paying rent, talking to me or responding back.
ReplyDeleteAt this point, I fear for my family safety and LTB wait time is at least 8 months. For my daughter and my family, I am ready to break the law and self-help. Can someone explain what will be the maximum consequences of changing locks??
It is extraordinary to me that we haven't heard more comments like yours. The LTB backlog is untenable and there does not seem to be a end in sight to the delays you describe.
DeleteI do have to urge you to not take matters into your own hands. That being said, it is clear that you do already know that this isn't the proper way to proceed and you are wanting to know the penalty for breaking the law. Without endorsing self help, I can tell you this. Changing the locks and not providing the tenant with a key is illegal and contrary to the RTA. The Landlord and Tenant Board (LTB) could be asked to make an Order putting the tenant back into possession of the rental unit enforceable by the Sheriff. The LTB could be asked for a rent abatement and other assorted remedies (see the T2 Form). For example, if you locked the doors and the tenant had no clothes and had to eat out and take a hotel then those costs could be claimed. Note that the LTB's maximum jurisdiction is $35,000 (at this time---it follows the jurisdiction of the Small Claims Court).
In addition to the LTB making the orders described the changing of locks is also a violation of the Residential Tenancies Act and in some circumstances the Housing Enforcement Unit may become involved and charges can be laid under the Provincial Offences Act. To see the offences take a look at section 233 of the RTA. The maximum penalties are described at section 239 ($50K for an individual and $250K for a corporation). There is no period of imprisonment set out in the RTA.
Good luck with your situation. I do think you should serve the appropriate notices, file the applications and ask for expedited hearings--if for nothing else to demonstrate that you were seeking a resolution in the proper way.
Hello,
ReplyDeleteI am having trouble finding the information I need.
My boyfriend rented a room to his daughter. Under the RTA, they are exempt from it as both the bathroom and the kitchen is shared.
He told her a year ago, verbally, that it was time for her to leave, as he and I would like to move in together, with my children and I moving to his location. She has not vacated and has made no effort in finding a new home.
He now has a paper eviction notice ready to go and will include a reasonable amount of time, minimum 30 days.
Given her behaviour so far, I am certain she will not move by the date he puts in the notice. Also because of her behaviour, I feel that him doing the eviction personally would be a bad idea.
How can he get appropriate legal help to get her out, should she refuse to move by the date he gives her? The application to involve the sheriff is for issues that fall under the RTA and this doesn't.
Thank you
Based only on what you've said in your question I think that there are only two approaches here (presuming that self help is off the table). The Residential Tenancies Act applies to most tenancies in Ontario. However, there are specific exemptions in the RTA (mainly found in section 5). The exemption that you are citing is in section 5(i)--where the tenant is required to share a kitchen and/or bath with the landlord. Where that is the circumstance the exemption is a full exemption (as opposed to a partial exemption). The effect is that the Ontario Landlord and Tenant Board will have no useful remedy for you and no application other than an A1 application (an application to determine whether the Act applies) that you would even consider bringing.
DeleteSo what do you do in the circumstances you describe?
1. The daughter is a trespasser under the Trespass to Property Act. Your boyfriend, presumably is in a position to prove that he is the owner of the property (or the tenant--in which case there is still an exemption but differently). Collect that evidence. Then take a trip to the local police station and speak with an officer there advising that he is seeking police help to remove his daughter from his home as a trespasser. This should be the end of it. Now, if can be a disappointing experience asking the police for help in this kind of thing. Sometimes the police will be reluctant to do anything and will suggest that a Court order is needed. Such a statement flies in the face of the plain wording of the Trespass to Property Act--but, you can sometimes argue yourself blue in the face of the police are unwilling to do anything. That being said, in my experience, the police are more willing to remove a person from a property in which the Homeowner is also residing. That seems to be more straightforward and they do tend to be willing to enforce the Trespass to Property Act and remove the trespasser. Note, the legislation sets out how one becomes a "trespasser"--and that basically is when one refuses to leave after being asked to.
2. If the police refuse to take action then there is really only one path left to get the assistance from law enforcement. That is to apply to the Superior Court for a Writ of Possession. Unfortunately, this is a very costly process and time consuming. It is highly unlikely that your boyfriend could bring such an application on his own and he will need a lawyer as opposed to a paralegal. That process results in the Court ordering the occupant removed through the issuance of a Writ of Possession and a direction for the Sheriff to enforce it.
Good luck.
Michael Thiele
www.ottawalawyers.com
Thank you for replying. Since I asked my question, she is still living in the house and refusing to move, or even look for a new home. He had a text-based conversation with her in January of this year where she agreed to be out by his birthday in mid-May. She didn't leave. That led to a verbal agreement that she would leave by mid-June. Not only did she make no move to leave, she moved her then boyfriend in. My boyfriend gave her a paper Notice to Quit in July, dated for the end of the month. She ignored it.
DeleteAll attempts to get her to leave have resulted in arguments and her stating that she will leave when she's ready and when she has found a place. However, she spends her days sitting in the bedroom, doing nothing. She feels that she is untouchable.
We have prepared another paper Notice, which will give her one week from when we pull in the driveway (he works four hours away). He has already told her via texting that she has approximately three weeks from today to find somewhere to live, to which she replied that she will move when she finds a place. Needless to say, we already know how that will go.
Before giving her the notice, we will be talking to the local OPP detachment (small town, no local police force). We are hoping to avoid having to remove her ourselves.