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
Wednesday, 13 March 2013
39 comments:
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.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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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?
ReplyDeleteHI: 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.
DeleteGood Luck
Michael K. E. Thiele
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.
ReplyDeletemy tenant moved out as per the agreement but his some stuff stays in the unit and some garbage so what do I do
ReplyDeleteHi Michael,
ReplyDeleteMy 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
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.
DeleteAnyway, 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
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...
ReplyDeleteHi: 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.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Same thing happened to me!! I left the house spotless and put all my garbage NEAT and TIDY and ORGANIZED in the one room closest to the driveway/door. I left my landlord a voicemail the day I was scrambling to move out (a day early I might add, since they wanted to paint, so I said I'd leave early!!), saying I could either come back on garbage day to put everything out or they could put it to the curb themselves.
DeleteTwo days later, I woke up at my boyfriends house at 6am to go to work and found the entire driveway covered in my stuff (and some stuff that wasn't even mine) that they had obviously just thrown all over, to cover every inch of the driveway!!
I didn't even live with my boyfriend, but they knew his last name and decided that they'd just dump it there since they didn't have my new address. My car was in the garage, so they didn't even know I was there and I couldn't get my car out of the garage to go to work.
What is wrong with people?? I was an amazing tenant the entire time I lived there and this is their goodbye???
Who knows - maybe it was the same landlord as you had!! Can't see too many people being awful enough to do that.
What if you were living with someone for a few years. Then they went to work one
ReplyDeleteday 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?
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.
DeleteIf 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
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?
ReplyDeleteJohn in ottawa
My tenant has advised that she has a new place. She has left some furniture and a TV, motorcycle (in the dining room) and a camping trailer in the yard. When I asked her to please remove the remaining items she advised that she didn't have to until we evicted her. She has indeed moved out as per her notice, are we able to classify the property abandoned and what do we do with a camper? Should we call the police? Or does this also qualify as abandoned property and follow the steps set out by the LTB?
ReplyDeleteHi: Following the RTA rules is a reasonable thing to do. However, for your own protection I'd make extraordinary effort to get her to pick up the stuff and make it very clear to her, repeatedly--via email etc., that you are going to dispose of her things. It's already clear that she has no intention of picking these things up (presumably she has no space at the new place?), so documenting your attempts and warnings is so that you can prove how reasonable you were if she decides later to sue you for disposing of her things.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
I was hoping for some advice here.
ReplyDeleteI trashed tenants property (all) after 72+ hours since they got evicted by the sherrifs. No contact was made what so ever from the tenats before 96 hours, that was the first contact. Was i right in desposing the property or was that against the law. I had called tenant board before taking the decision though and they said you can do anything with the property if they dont make any contact in 72 hours.
Please advise if i need to worry about anything or I am good and should not be taking any stress. Thanks
Hi: The blog article above sets out the law that is still current. Unfortunately, you did not receive the best advice from the Landlord and Tenant Board. While the Residential Tenancies Act sets out clear rules the Courts will still judge your behaviour and impose financial penalties if what you did is considered unreasonable. In my experience, throwing away junky things that are easily replaced after the 72 hour period--after a sheriff eviction--is most likely going to be considered reasonable behaviour. No liability for that.
DeleteHowever, if in the things you threw out there were clearly very personal things--such as picture albums, medical equipment, personal items, family heirlooms, then you may indeed have liability. If you were looking at a bunch of things--sentimental in nature or inherently valuable and expensive--then you should not just throw these things away. You (or any landlord), should make an effort to contact the tenant and arrange for them to pick it up. Alternatively, if the valuable and sentimental items are small or you have some storage space--preserve it for a little longer to give the tenant a chance.
While a landlord may not have much sympathy for a tenant they have just evicted, it is worth bearing in mind that the tenant is now possibly homeless and struggling. Throwing out all of their personal and sentimental heirlooms because they were evicted and are unable to function well at the moment--is rather punitive.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I had a friend die about 3 months ago. He was a good bike mechanic and I often brought my bike to him to be tuned. He passed away while my bicycle was in his possession. He is estranged from his next of kin. His next of kin refuse to sign any papers. The landlord has cleaned out the apartment and put everything in storage.
ReplyDeleteEven though I have proof of ownership, the landlord will not give my bike back to me. I feel that this is my property, not my friends, therefore I am entitled to get it back. I have emailed the landlord a copy of my bill of sale.
What is my next step?
Hi: While this might seem like a Landlord and Tenant law matter, it is not. The RTA will not be helpful nor will the Landlord and Tenant Board. If you came to me with this problem I would write a clear demand letter to the landlord to return the bike to you, make ownership clear, and include a copy of the bill of sale. I'd tell the landlord to make sure he preserved the bike and did not get rid of it. I'd give maximum 48 hours for a response. Failing the bike being returned, I'd sue the landlord in small claims court for an Order requiring the return of the bike and alternatively damages equal to the value of the bike. Then, if you're in a rush, I'd bring a motion for that relief as the outcome, based on the facts you've provided, is obvious.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
I had an order from the board that stipulated I was to pay my rent before the 10th of each month as per the tenancy agreement (even though I had been doing this, my landlord was insisting I pay on the 1st). Unfortunately, I breached this order due to financial hardship and fell into arrears. My landlord sold the house during this period of time and gave me notice to vacate within 60 days. At the same time he filed with the LTB due to the breach of the order. The previous order was stayed and we were before the LTB again. The LTB lifted the stay of the order immediately, however did not provide an eviction date. During this time, due to the issuance of the N12, I was beginning to remove items from the unit in preparation for the closing of the sale of the house and at the same time trying to secure the funds to pay the arrears. When the order was issued, my landlord proceeded to change the locks on the door to the unit and deemed it as abandoned saying that the neighbor had seen me move out approximately 3 weeks prior and that my neighbor had not seen me recently, even though I still had many belongings in the unit and this was not the case. When I arrived to collect more of my things, as I had been staying with a friend for a few days, I was unaware that he had changed the locks and could not access the unit. He came to the unit and let me in, threatened me, called me names and lunged at me. I was able to remove some of my things, but not everything because I only had my car as I was not expecting to be locked out of the unit. I advised him when I left the unit that day, only to discover that 2 days later he had disposed of the rest of my belongings. I have filed a T2 with the LTB for the illegal eviction and changing of the locks. Am I justified in trying to recover items? I understand that I was in arrears but do not think he was within his rights to deem the unit abandoned and dispose of my personal belongings without an eviction date and the sheriff's office being involved. Please advise. Thanks so much!
ReplyDeleteHi: A landlord takes a big risk to treat a unit as abandoned. Taking possession of a unit on the basis of abandonment--but being wrong about it--exposes the landlord to liability no matter how "reasonable" the landlord thinks he's being. In your case, you returned to the unit before the landlord even disposed of your stuff. That is a big problem for the landlord. Until you are evicted in accordance with an Order and by the Sheriff the landlord can't just exclude you from the premises.
DeleteBased on what you've written here I do think that your application is justified.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
The previous tenant had moved out as his contract ended and moved on elsewhere. He left the dishwasher behind (purchased himself) and is now expecting compensation from either the landlord or the new tenants. Do they have any ability to collect compensation or request the diswasher be returned to them?
ReplyDeleteHi: There are a few ways to look at this. From one perspective, abandoned tenant's property is something that the landlord can throw away, use as you see fit, or even give away. Abandoned property is often junk and a landlord can sue a former tenant for the cost of cleaning up and disposing of abandoned property/junk. From this perspective, and without inquiring about the circumstances of the dishwasher being present in the home, the former tenant is not entitled to anything.
DeleteHowever, what is the other side of the story? Why did the former tenant install a dishwasher in the rental unit? Did he replace a broken dishwasher? Did he replace the broken dishwasher because you told him to? Did he just randomly install a dishwasher, without permission, cut the countertop or make alterations to the kitchen that made removal of the dishwasher impractical? Depending on the circumstances, the tenant may have a claim for the cost of the dishwasher or perhaps not. It really does matter on why the dishwasher is there. If the tenant, without permission, installed the dishwasher for their own benefit and then abandoned it when they moved out, then their claim for compensation is very limited. In fact, some landlords would be quite upset to have a dishwasher installed without permission as the subsequent tenants would now be entitled to require a working dishwasher. Further, dishwasher's can use more water and of course electricity--which matters if utilities are included in the rent. Lastly, if the rental unit is in a larger building the installation of a dishwasher can cause problems with the buildings water supply (hot water supply if hot water is centrally provided) and waste pipes.
Sorry for no definitive answer--but context really does matter. Note that aside from the context, timing of the claim also matters as there will be a time limit on the claim for reimbursement. If the dishwasher was installed by the former tenant quite some time ago and it is now essentially an "old" or "older" dishwasher the value of it is questionable. It certainly wouldn't be the "new" value. Also, with the passage of time it is possible that the tenant's right to claim reimbursement has expired (limitation periods).
Michael K. E. Thiele
www.ottawalawyers.com
Hello, I have an extremely problematic tenant issue.
ReplyDeletethe tenancy has been terminated by the courts for may 31st 2019, they have stayed beyond that period, I got an order from the sheriff's office to have them removed july 14, they left after receiving the order on the 4th, they have been gone for a week, and i was in on the 9th to change to locks.
they now want back in to get some junks they left behind, what do I do? do I allow them back in to get there stuff? they are threatening to break the door down. I have offered to meet with them to let them in to get whatever they left behind but they are saying they have until the 14th. have I extended there stay be filling the order with the sheriff?
Hi.
DeleteThere are a few statements you make in this question that do not entirely make sense to me. I am either misunderstanding you or you are using phrasing that does not aptly apply to the situation. Nevertheless, I will provide a general comment, but you should seek confirmation from a lawyer or paralegal who can look at your documents.
If my landlord client has in his/her possession an Order of the Ontario Landlord and Tenant Board terminating the tenancy as of a specific date (say May 31), and that Order contains an enforcement provision that the Order may be filed with the Court Enforcement Office on or after the termination date in the Order (in this example May 31), then I would look to the Residential Tenancies Act for guidance on my client's legal position. For this purpose, I will assume that the eviction Order is not under Review, nor under Appeal, and that it has not been stayed or set aside. The assumption therefore is that it is an enforceable LTB Order.
The thing to understand from the RTA is the limitation on recovery of possession of the rental unit. The first section to look at is section 39 RTA. It provides that a landlord shall not recover possession of a rental unit subject to a tenancy unless, a) the tenant has vacated or abandoned the unit; or b) an order of the Board evicting the tenant has authorized the possession.
On the facts you state, you have in fact legally recovered possession in accordance with a) in that the tenant has vacated. Being in lawful possession, the tenant has no lawful right to reoccupy the premises. If the tenant believes that they have a right to re-occupy (and say police were called and they were standing on the doorstep), the tenant can bring an application to the LTB to be allowed to re-enter on the premises. In the mean time, the police should prohibit the tenant's re-entry based on the LTB Order which shows they should not be in possession after May 31, 2019.
In the situation where the tenants do not vacate, notwithstanding an "order of the Board evicting the tenant", the RTA then provides the mechanism for regaining possession in section 85. That section states: An order evicting a person shall have the same effect, and shall be enforced in the same manner, as a writ of possession.
The Writ of Possession process is the Court Enforcement process operated through the Superior Court of Justice. The Landlord and Tenant Board does not enforce its own Orders. The RTA and other statutes make the LTB Order enforceable through the Court processes. Section 85 provides the direct instruction that eviction is to be enforced through the Sheriff. Caselaw has further determined that the instruction of section 85 prohibits self help eviction. This means that the police are not supposed to enforce the LTB eviction Order nor are you able to do it yourself nor are you able to hire a bailiff to enforce the eviction for you. The sole enforcer of LTB eviction Orders is the Sheriff (Court Enforcement Officer).
Around the province of Ontario the time it takes for a sheriff to enforce an eviction Order varies widely. In your situation it looks like you instructed the sheriff to enforce shortly after June 1, 2019, and the Sheriff posted a Notice to Vacate on the 4th of June, 2019, and the Notice to Vacate states that the Sheriff will return to enforce the Order on July 14, 2019.
DeleteTo be clear, I am assuming what you are calling the "order on the 4th" is simply the Sheriff's Notice to Vacate. This is not technically an Order---it is, instead, the enforcement process for the LTB Order. The Sheriff's Notice to Vacate with an enforcement date of July 14 does not give the tenant the right to remain in the premises until that date. There is no extension of the termination date in the LTB Order by the Sheriff's delay.
Of course, the delay to July 14 might in practical effect seem like an extension of time because the law prohibits you, or anyone other than the Sheriff from enforcing the Board Order. The only thing that gets you possession sooner (and legally so) is if the tenants vacate the rental unit voluntarily.
In this case, it appears to me that the tenants did indeed vacate voluntarily and therefore you have recovered possession of the unit lawfully. They are not, in my opinion, entitled to re-occupy the premises.
Whether the tenants are entitled to return to pick up their personal property is dealt with elsewhere in this blog and of course there are explicit sections in the RTA dealing with that question.
For your purposes, I would suggest caution simply because you appear to have reason to think they will re-occupy the space and never leave. Accordingly, it would make sense to remove their personal property from the rental unit. Put it in a garage, a common area, or somewhere outside of the rental unit. You can invite them to pick it up. With a threat of "kicking in the door", I would be inclined to seek the assistance of the police and inform them that the tenants have indicated an intention to break and enter in the property. The police can (and often will), attend at the rental unit to keep the peace while the tenants pick up their stuff. The police will also ensure that the tenants "leave" after getting their stuff.
Lastly, whatever you do, do not cancel the sheriff. You have already paid. Get the sheriff to come out and formally return possession to you with the document that they provide confirming the enforcement of the Writ of Possession. This piece of paper is the proof of trespassing and illegal entry if the tenants show up. Sometimes (at least here in Ottawa), where the tenants have vacated the premises and the landlord is back in possession, the sheriff will expedite the turn over of the unit and confirm that possession is returned to the landlord much sooner than the date on the Notice to Vacate. I suspect that whether you can get this depends on how busy the sheriff is and the local practice of wherever you are.
Good luck to you. Note that I have answered your question in general terms. You should really have a lawyer or paralegal look at your documents for advice that is specific to your circumstances.
Michael K. E. Thiele
www.ottawalawyers.com
P.S. My comment about allowing the tenants to pick up their personal property is not intended to imply that they have the right to do so. The law is a bit messy on this point as the RTA will suggest that you have very little obligation to allow them to pick up their stuff (in the circumstances described) and that you are free to do as you wish. Caselaw from the Courts suggest otherwise, and there is a line of cases stating that even after the RTA authorizes you to dispose of, throw away, etc., that the law of bailment can still make you responsible to safeguard and return property to tenants. This is a topic all on its own. In the big picture, though, I tend to advise landlords that the most appropriate thing to do is to return tenant property and facilitate the pick up regardless of the technical timelines provided in the RTA.
DeleteHi !! I rented a semi February 1st 2019 and I signed a 1 year lease. In that lease specific items were named on the lease which include the following: washer, dryer, fridge, stove, microwave and dishwasher. I was told by the landlady at the time of the tour of the house that she was intending on leaving some stuff behind and asked me if I wanted the items. If I didn’t want the items, i was told to do what I wanted with them. Now 5 months later , the landlady decides that she wants to sell the semi and asked me what my intentions are. I can decide to stay until the end of my lease, or she could serve me with a N12 form to terminate our lease agreement. When she came to my home to discuss her intentions of selling the semi, she said that she wanted all the stuff that she left here back. This is the stuff that she left here and told me to do as I wished with it, stuff she left me because she said that she didn’t want it anymore. She wants it so that she can sell it, so my question to you is this, am I obligated to give the stuff back ? Since she said I can have it ? All the items that she wants back are not written on the lease, these are all items that she left here for me to deal with.
ReplyDeleteI look forward to hearing back from you
Dianne
Hi Dianne:
DeleteBefore getting to the question about the "stuff left behind", I'd like to clarify that the options the landlady put to you are inaccurate. The landlady may only serve an N12 under very specific conditions. Wanting to sell is not one of them. If the landlady is selling the property you have the right to remain, as a tenant, to the end of your lease and on a month to month basis and even with a new owner as landlord. The N12 may be served for the purchaser if the purchaser wishes to occupy the premises for residential purposes. However, if the property is purchased for investment etc., then the new owner may not intend to occupy the premises and an N12 may not be available.
With respect to the abandoned "stuff". You don't say what the items are but I presume they are not the items that were included in the lease (i.e. the appliances). The words you generally impute to the landlady ("do what you want with them") along with the statement of intending of leaving stuff behind and asking you if you wanted the items, is in my view strong evidence of "abandonment" at a minimum and perhaps a gift or intentional transfer of ownership to you. Sticking to "abandonment" of the stuff you have to ask yourself if the nature of leaving the stuff behind constitutes:
“a giving up, a total desertion, and absolute relinquishment” of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property.
This definition of abandonment was adopted by the Ontario Court of Appeal in a case called Simpson v. Gowers. The definition is important because "abandonment" is a defence to a claim by the former owner of the "stuff" for conversion which is the civil version of theft or taking and converting to your own use someone else's property.
If you can prove "abandonment", which it sounds to me you can, the stuff no longer belongs to the landlord and you can do what you please with it.
As an aside, please note that the Residential Tenancies Act gives absolutely no guidance on this topic. If you were working only within the RTA and looking for a remedy, you could take the position that the landlord's junk is interfering with your reasonable enjoyment of the premises. You could go to the LTB asking the landlord to remove the stuff/junk and seek a rent abatement or your costs for having to dispose of the items yourself. Alternatively, if the "junk" is not junk but valuable items that the landlord wants you to effectively store and retain for them, you could again apply to the LTB for an order requiring the landlord to remove the items from your rented space.
Michael K.E. Thiele
www.ottawalawyers.com
My roommate is out of town and has read but not replied when asked if they will be back in time to pay rent on august 1.
ReplyDeleteWhat are my next steps? How long do I need to store their belongings?
Any help will be greatly appreciated!
Hi Lisa: When you say "roommate" do you mean "roommate" or co-tenant? If the person truly is a roommate, and has no rights as a co-tenant under the Residential Tenancies Act, then your relationship with the "roommate" is governed by your own agreement/contract. If your agreement is vague, unwritten, or just implied from what is happening in the world, then the governing rule is going to be "reasonableness". You could give the roommate notice to leave (typically, fair notice is the length of one rental period--so if they pay rent monthly then one month, weekly then one week, etc.).
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteA week ago a roommate of mine who I was sharing a lease with handed me the keys and left without warning. They took some of their stuff and left. I let them know I would move the remaining items to the garage so they can come get them at their leisure. I have run out of storage room and there has been no contact. I need to find a new roommate in order to pay rent. What can I do with their stuff?
Hi: As you were "sharing a lease" with the roommate the roommate is likely also a tenant. Simply leaving does not remove the roommate from the lease and it does not absolve them from their financial responsibilities (that is vis a vis the landlord). There is another legal relationship and that is the one between the two tenants (you and your roommate). You will have had some kind of agreement on sharing the expenses, rent, utilities etc.. Perhaps you have agreed that you will take over the lease and hold the roommate harmless from any future claims by the landlord?
DeleteI set out the foregoing simply to demonstrate that there are several "legal" relationships ongoing and obligations to the landlord and to each other are based on separate agreements. In the context of all of this wouldn't it be wonderful if the Residential Tenancies Act ("RTA") set out a scheme of duties and responsibilities for co-tenants. Unfortunately, the RTA is completely silent and doesn't even hint at the fact of legal issues arising between co-tenants. The RTA (and hence residential landlord and tenant law), doesn't help you at all.
Presumably your roommate agreement (which possibly is just a handshake over beers late at night) is silent on this issue of moving out and dealing with left behind personal property. So what are you to do? The short answer is to proceed reasonably. Reasonableness in this context should be considered from an "objective" perspective---meaning an "ordinary" person test.
I expect that an ordinary person would have you giving the former owner warnings, emails, phone calls, text messages. You would give a reasonable deadline to pick up the stuff--the deadline being contextual. If you don't get a response and decide to start throwing things out I imagine you will throw out the cheapest things first and retain the valuable and sentimental items the longest. After a while, you can throw them out or sell them as you see fit. If the items are indeed valuable and clearly not something that your roommate intended to abandon and you have doubts that the roommate is aware of your need to make room---perhaps you rent a storage unit for a month or so and put the stuff there. Your roommate would be responsible for the cost and you could charge it to him/her as a condition of ultimately getting the property back. If the roommate still takes no steps to claim their property I think it is reasonable to consider it abandoned at that point and you can sell it, pitch it, keep it, etc..
Hope that assists you. Sorry that the answer isn't clean and simple but these things rarely are.
Michael K. E. Thiele
www.ottawalawyers.com
Hi, my sister lived in a dorm and the landlord basically didn't communicate with their cleaners and threw her stuff out before her move out date. She went through the property assessment with the landlord but they are keeping the compensation low by saying her stuff doesn't worth that much with depreciation. My sister had to find accommodation from her friends, but technically they should have compensated her for lodgings, but they said because she found free living accommodations they don't need to compensate her.
ReplyDeleteI feel like they are taking advantage of her vulnerability as a student in this case. What's the best approach to this situation?
Thanks
Hi Helen:
DeleteThe rules really depend on the law that applies. You state that your sister lived in a "dorm". That suggests that she is a student which likely means that the Residential Tenancies Act does not apply as there is an exemption for academic institutions (see section 5(g) RTA for nature of the exemption). If the RTA does not apply then the favourable rules for tenants, as set out in the RTA, are not applicable.
Without the RTA being applicable you are left with the rooming contract and failing the contract dealing with the circumstances of what happened the "common law" would apply. Is you sister only entitled to the depreciated value of what was thrown out or is she entitled to the replacement cost? That is a debate that happens in cases like this all the time--even with insurers after incidents that damage personal property. You can even argue about what "replacement" cost means---replace with "new" or replace with the same age (even though this might cost more than the value the item).
If the landlord has acknowledged that they were wrong to throw out her stuff then the negotiation about value and compensation is normal. It is true that some people are better negotiators than others. Is the amount at stake worth hiring a lawyer to fight? If not, you end up just doing the best you can. If this is not RTA covered, and the compensation offered is simply too low, then perhaps you do hire a lawyer and proceed to Court (Small Claims Court in Ontario goes up to $25,000).
As for the "free" living accommodations it appears that the Landlord (School?) is relying on the legal principle that a person suffering damages has a duty to mitigate their losses. This means that your sister had a legal obligation to reduce her losses arising from them taking her accommodations from her. She did so very effectively by staying for free with friends. If she has no associated expenses arising from staying with friends then the argument the landlord is making is based in law. The law only compensates actual losses (past, current or future) but not notional ones that could have happened but didn't.
You ask about the best approach. Again, it all depends on how much is at stake. For smaller numbers (i.e. ones that don't justify Court action and hiring representation), people tend to do the best they can and move on as throwing good money at a bad situation is usually not worth it.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI have a contract to purchase a tenant occupied property in which it stipulates that vacant possession is to be provided by the seller. The current owner made an application to evict based on the new owners moving in which was denied by the LTB. Two weeks before the hearing, the tenant provided notice through email that he would be leaving. The email does not state the address and only states “found a new place and will be moving out August 10, will return the keys that day.” The tenant did not return the keys and has not responded to multiple attempts by the seller to contact him via phone and email. As a result, the current owner entered the unit to find that most of the tenants things were moved out but several non essential items and clothing were left behind. The locks were changed and the items have been placed in storage. The sellers are considering the house as vacant and want to close on the original date. My concern is that if I close and accept this as vacant, I accept responsibility for the tenant coming back and claiming rights to the unit. Would the tenant have any legal rights to the home or is it safe to consider the unit as vacant and proceeding with closing the sale?
Hi: This issue is something to discuss with your real estate lawyer and to get an opinion from him/her. Whether or not the unit is "vacant" is one question, but I'd be interested to know from a real estate lawyer perspective whether there is any indemnity or remedy available to you, from the seller, if there is a future problem from these tenants. Whether there is some kind of indemnity may inform whether you accept the circumstances in which this unit is now, apparently, vacant.
DeleteHas the tenancy ended? I presume that the N12 (Purchasers own use) application that was dismissed by the LTB was dismissed due to some technicality and not because the tenant resisted and disputed the good faith of the application or you were otherwise disentitled to a termination order? If you lost on the merits (as opposed to a technicality), then that certainly raises a concern. Presumably the tenant moved based on the N12 (Notice of Termination) and now an application based on it has been dismissed. Was the N12/L2 application dismissed because the N12 could not be used to terminate? This is unclear from your comment. There is no right to vacant possession simply because you bought the property. You need to be eligible under section 49 RTA. If the application was dismissed because you were not entitled to possession then this is a potential problem as the tenant may assert having relied on a Notice of Termination that turns out to have been invalid. The tenant having moved, based on an invalid notice, might be inclined to seek damages (typically a rent differential (new place versus old place) moving costs, utilities expenses). I can't say whether the tenant would be successful and am not suggesting that the tenant would be successful. This is just a possibility that you may want to explore more fully with your real estate lawyer.
If a tenant has vacated a rental unit the unit may be considered abandoned if the rent is also unpaid (or in arrears). The landlord takes a risk in considering a rental unit as abandoned and simply taking possession. It is possible (though perhaps unlikely) that the tenant will come back looking to take possession. In the caselaw where the landlord has wrongly assumed that the tenant abandoned the unit the law is not favourable to the landlord. The guidance, if a tenant is appears to have abandoned a rental unit, is to apply to the Landlord and Tenant Board for an Order terminating the tenancy. The statutory basis for the application is section 79 Residential Tenancies Act and the application is brought to the Landlord and Tenant Board in Form L2 (see the grounds on page 3 of 7 of the L2 application available on the LTB website). That application would presumably result in an Order from the LTB terminating the tenancy.
DeleteThe application based on abandonment is not an application that I see very often. Most of the time a landlord will enter the unit and see that the tenant's property is gone and there are rent arrears and then make the reasonable assumption that the tenant has vacated. Sometimes, a landlord will be cautious and change the locks and wait to hear from the tenant. If nothing is heard it becomes clear that the tenant is not coming or going from the unit which further suggests that they are not living there. At that point, most landlords simply take possession and proceed without an Order. In the facts you describe, you have the above along with a note from the tenant advising that he was leaving. Query what this likely means? Of course, what it likely means and what is actually is--is the risk the seller is asking you to take (hence the question at the beginning about indemnity, a holdback, etc.).
While it is probably safe to assume that the tenant has vacated the fact remains that you do not have an Order terminating the tenancy nor any agreement to terminate. Without an Order to terminate the tenancy there is always a risk that the tenant may file an application. That being said, I don't want to sound alarmist as the risk is likely small. Further, the tenant's application window is one year at the LTB and the LTB is, in the context of litigation generally, notoriously tight fisted when it comes to monetary awards.
And lastly, your question asks whether the tenant has any legal rights to the home. By this, I assume you mean possession. The cases of tenant being put back in possession are few and usually only when there has been an unlawful eviction and the unit is vacant. The law does not contemplate evicting a new occupant to put an old tenant back in possession. Once the unit is occupied by a new person you can safely assume that the only remedy the former tenant can get is monetary.
I hope that this is helpful. I can't tell you whether to proceed with the sale or not. The best I can suggest is to speak with your real estate lawyer and decide based on a fulsome discussion of all of the facts how to proceed.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi ! We are with Ottawa housing,our son and girlfriend lived with us for couple months until they found a place in Gatineau.We asked for a transfer for a one bedroom and soon or later we are moving,we are on the waiting list.
ReplyDeleteWe asked our son and girlfriend to pick up the rest of their belongings,they keep having excuses and lies they don't have time with work or don't have space,into their on appartment.The moment we moved,we are not carrying their belongings with us,into a smaller yunit.
What would-be do ? Thank you !
Well, family can be difficult! It is quite unfair for your son and girlfriend to put you in this position. You have no great responsibility for their stuff. I think if you at least write to them (text or email) a deadline to pick up the stuff and several reminders and then a warning that the stuff is going out on garbage day that you have done what you can. If there is actually anything valuable in their belongings you could also try selling it. You would not be entitled to keep the money but you should at least be paid your expenses for arranging the sale of the stuff.
Delete