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Abandonment of a rental unit, Can a landlord exercise self help in this circumstance and how does a landlord proceed? 


When a landlord believes that a tenant has abandoned a unit, the landlord has two options to officially retake possession of the unit, a landlord can apply for a determination by the Landlord and Tenant Board (the “Board”) that the unit is abandoned or the Landlord can provide notice of termination to the tenant and the Board without a formal Board ruling.  


How does a landlord determine if a unit can be considered abandoned? 


Abandonment is an action by a tenant giving up possession of the rental unit without proper notice of the termination of their tenancy.  A rental unit can only be considered abandoned if the tenant is in arrears.  Where the tenant is not in arrears, section 2.(3) of the Residential Tenancies Act (RTA) provides that the unit cannot be considered abandoned, even if vacant. 


Even when the tenant is in arrears, substantial evidence of abandonment is required   The tenant may have told the landlord or a superintendent they are moving out, the tenant may be seen moving out and all personal belongs and furniture may be removed, this would be clear evidence supporting a finding of abandonment.    Sometimes it may not be so clear,  but the evidence may suffice - where the tenant has taken employment in another city and mail has not been collected in some weeks and personal belongings have been removed.   


Prior to making a finding of abandonment, a Landlord should proceed cautiously.  Reasonable attempts to contact the tenant to determine their intentions must be made, and these attempts must be documented.  


Once the Landlord has reasonable grounds to believe a rental unit has been abandoned, the Landlord can apply to the Landlord and Tenant Board ( the “Board”) for a finding the unit was abandoned and the tenancy terminated under section 79 of the RTA,  OR the landlord can give notice to the tenant and the Board, which notice will also include a notice that the Landlord will dispose of any property not claimed within 30 days. 


The Landlord can dispose of anything unsafe or unhygienic immediately,  after 30 days the Landlord may dispose of any personal belongings of the tenant.  A tenant is entitled to claim their belongings within the 30 day period if the tenant pays the arrears and any reasonable costs of moving, storing, selling and securing the tenant’s property.    If the Landlord sells the property, the tenant has six months from the date of either the Board order terminating the tenancy or the date the Landlord gave notice to claim the proceeds of the sale, less rent arrears and any costs incurred by the Landlord in preserving and disposing of the property.  

 

For specific circumstances, the ability of a Landlord to have a rental unit deemed abandoned can save thousands of dollars in lost rent.  There is some risk to the Landlord in following this route, and a landlord is encouraged to follow best practices and exercise caution.  As set out in TST-46922-14-RV,   when the landlord makes a determination the tenant has abandoned a rental unit , the landlord does so at its own risk: 


“..19.   The reasonableness of the Landlord’s belief that the Tenant abandoned the rental unit is not relevant to the issue of whether or not the Landlord’s actions constitute a breach of the Act. One of the primary purposes of modern landlord and tenant law is to protect a tenant’s right to security of tenure. This is why s. 37(1) says: “A tenancy may be terminated only in accordance with this Act.” Section 39 says:


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.  

20.   Section 79 says that if a landlord believes a tenant has abandoned a rental unit it may make an application to the Board for a declaration of abandonment.

21.   What the wording of s. 37(1)(a) means is that this Landlord was not entitled to go back into possession based on its belief that the Tenant had abandoned the rental unit because she did not in fact abandon it. Abandonment is a question of intent on the part of the tenant. The Landlord here was entitled to go back into possession as a result of the Board’s order but only in accordance with the terms of the order which required the Landlord to use the Court Enforcement Office (Sheriff) for enforcement purposes. The entire notion behind security of tenure is that landlords are not entitled to self-help themselves to regain possession. And when and if they do so based on a belief that the tenant has abandoned the tenancy, they do so at their own risk.



Best practices would include: 


  1. The use of a legal advisor, like a paralegal, to review the evidence and provide a legal opinion.  Reliance on a written legal opinion can provide an additional level of protection for a Landlord.  A legal opinion about whether or not an application to the LTB is required can give a Landlord piece of mind.  


  1. Obtaining solid evidence of abandonment and gathering/retaining evidence to support this finding, preferably with a third party. 


  1. Use all possible avenues open to contact the tenant regarding your concerns and document all efforts. 


  1. Exercise caution with any belongings you have to dispose of and consider the use of third parties to dispose of the property at arms length to avoid valuation disputes and provide you with a clear paper trail, ensure all disposal methods and costs are “commercially reasonable”. 



Resources


Tribunals Ontario, Landlord and Teant Board, Interpretation Guideline 4

Residential Tenancies Act (“R.T.A.”)

https://www.canlii.org/en/on/onltb/doc/2016/2016canlii38259/2016canlii38259.html



 


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