Can a landlord legally discard possessions left behind by a former tenant?
There exist precise regulations outlining the rights and responsibilities of a landlord when dealing with the disposal of belongings left behind by a former tenant. These rules vary depending on whether the tenant vacated or abandoned the rental unit. Furthermore, individuals aiding a landlord in improper disposal may face legal liability.
An informative guide on determining and comprehending the legal circumstances under which a landlord is permitted to consider a tenant's belongings as abandoned.
When a tenant moves out, it’s not uncommon for them to leave behind various unwanted belongings. If the tenant has vacated the unit and abandoned their possessions,
In such cases, the landlord is authorized to presume ownership and may proceed to sell or dispose of the belongings, contingent upon certain conditions.
The Law
Before classifying a tenant’s belongings as abandoned, a landlord must verify that the rental unit is genuinely vacated or legally considered abandoned.
In assessing whether a rental unit is abandoned, the initial consideration is whether the tenant is behind on rent payments. If the tenant is up-to-date with rent, the landlord is prohibited from deeming the rental unit as abandoned. Consequently, the landlord cannot treat any items within the rental unit (including any storage unit) as abandoned. This interpretation is articulated in the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, at section 2(3).
2 (3) For the purposes of this Act, a tenant has not abandoned a rental unit if the tenant is not in arrears of rent.
Applicable Rules When Premises Vacated With Items Abandoned
Shemesh Legal Offices offers legal help to landlords with a variety of legal issues including matters arising from tenant disputes involving various forms of housing such as single-family dwellings, basement apartments, multi-residential high-rise buildings, among others.
41 (1) A landlord may sell, retain for the landlord’s own use or otherwise dispose of property in a rental unit or the residential complex if the rental unit has been vacated in accordance with,
(a) a notice of termination of the landlord or the tenant;
(b) an agreement between the landlord and the tenant to terminate the tenancy;
(c) subsection 93 (2); or
(d) an order of the Board terminating the tenancy or evicting the tenant.
(2) Despite subsection (1), where an order is made to evict a tenant, the landlord shall not sell, retain or otherwise dispose of the tenant’s property before 72 hours have elapsed after the enforcement of the eviction order.
(3) A landlord shall make an evicted tenant’s property available to be retrieved at a location close to the rental unit during the prescribed hours within the 72 hours after the enforcement of an eviction order.
(4) A landlord is not liable to any person for selling, retaining or otherwise disposing of a tenant’s property in accordance with this section.
(5) A landlord and a tenant may agree to terms other than those set out in this section with regard to the disposal of the tenant’s property.
41 (1) A landlord may sell, retain for the landlord’s own use or otherwise dispose of property in a rental unit or the residential complex if the rental unit has been vacated in accordance with,
(a) a notice of termination of the landlord or the tenant;
(b) an agreement between the landlord and the tenant to terminate the tenancy;
(c) subsection 93 (2); or
(d) an order of the Board terminating the tenancy or evicting the tenant.
(2) Despite subsection (1), where an order is made to evict a tenant, the landlord shall not sell, retain or otherwise dispose of the tenant’s property before 72 hours have elapsed after the enforcement of the eviction order.
(3) A landlord shall make an evicted tenant’s property available to be retrieved at a location close to the rental unit during the prescribed hours within the 72 hours after the enforcement of an eviction order.
(4) A landlord is not liable to any person for selling, retaining or otherwise disposing of a tenant’s property in accordance with this section.
(5) A landlord and a tenant may agree to terms other than those set out in this section with regard to the disposal of the tenant’s property.
Interestingly, as indicated above, the rights provided to, and duties imposed upon, a landlord differ when the rental unit is vacated rather than is abandoned. Interesting, as statutorily prescribed per section 2(3) as provided above, a landlord, or even the Landlord Tenant Board, is unable to deem a rental unit as abandoned unless rent is in arrears.
Improper Disposal
If a landlord disposes of the belongings of a former tenant who vacated a rental unit and the Landlord Tenant Board deems that the disposal was wrongful, the Landlord Tenant Board may impose various consequences upon the landlord. Specifically, section 41(6) of the Residential Tenancies Act, 2006, states:41 (6) If, on application by a former tenant, the Board determines that a landlord has breached an obligation under subsection (2) or (3), the Board may do one or more of the following:
1. Order that the landlord not breach the obligation again.
2. Order that the landlord return to the former tenant property of the former tenant that is in the possession or control of the landlord.
3. Order that the landlord pay a specified sum to the former tenant for,
i. the reasonable costs that the former tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the former tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach, and
ii. other reasonable out-of-pocket expenses that the former tenant has incurred or will incur as a result of the landlord’s breach.
4. Order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.
5. Make any other order that it considers appropriate.
As indicated at section 41(6)4 of the Residential Tenancies Act, 2006, in addition to compensation to the tenant, the Landlord Tenant Board may also issue an Order for an administrative fine up to the limit of the Small Claims Court. Whereas the limit of the Small Claims Court is currently $35,000 such a fine could be quite substantial.
Improper Disposal
If a landlord disposes of the belongings of a former tenant who vacated a rental unit and the Landlord Tenant Board deems that the disposal was wrongful, the Landlord Tenant Board may impose various consequences upon the landlord. Specifically, section 41(6) of the Residential Tenancies Act, 2006, states:Another Person Involved
Another concern for careful thought and review involves circumstances, although likely rare, where a landlord may be assisted by another person in to a former tenant. Of course, in most circumstances, if a landlord unlawfully disposes of the belongings of a former tenant,
Conversion Explained
The tort of conversion was well explained in the case of BMW Canada Inc. (Alphera Financial Services Canada) v. Mirzai, 2018 ONSC 180 which stated:[17] The tort of conversion involves the wrongful interference with the goods of another, such as taking, using or destroying those goods in a manner inconsistent with the owner’s right of possession: DaimlerChrysler Canada Inc. v. Associated Bailiffs & Co. Ltd., 2005 CanLII 24234 (ON SC).
[18] The crux of the tort of conversion is the defendant committing a wrongful act with respect to the property. Evidence must show or permit an inference to be drawn that the defendant acted in such a way as to deny the Plaintiffs title or possessory right. (Simpson v. Gowers (1981), 1981 CanLII 1884 (ON CA), 32 OR (2d) 385 (C.A.) at 387, per MacKinnon A. C. J. O.).
[19] The tort is one of strict liability, and accordingly, it is no defence that the wrongful act was committed in all innocence. The defendant cannot claim contributory negligence or some fault on the part of the plaintiff: Boma Manufacturing Ltd. V. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 SCR 727 at para. 31. Diplock L.J. asserted this principle in Marfani & Co. v. Midland Bank, Ltd., [1968] 2 All E.R. 573, at pp. 577-78:
. . . the moral concept of fault in the sense of either knowledge by the doer of an act that is likely to cause injury, loss or damage to another, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part.
[20] In Westboro Flooring and Decor Inc. v. Bank of Nova Scotia, 2004 CanLII 59980 (ON CA), [2004] O.J. No. 2464, the Court of Appeal confirmed that all that is required re intent is the defendant acts in a manner that is inconsistent with the owner’s title or possessory right, and any blameworthy conduct beyond that is not essential (at para. 14 – 16, per Simmons, J.A.). The philosophy behind strict liability is that a defendant cannot use or convey anything which is no title to use or convey.
[21] There are four essential elements for the tort of conversion.
i. The defendant commits a wrongful act;
ii. Involving the Plaintiff’s chattel;
iii. By handling or disposing of the chattel;
iv. With the intention of denying or negating the Plaintiff’s title or other possessory interest.
Interestingly, as stated in BMW Canada, the tort of conversion arises regardless of wrongful intentions and may occur innocently. Accordingly, where a person assists a landlord in wrongfully disposing of the belongings of a former tenant, the person may become liable for the tort of conversion even if the person genuinely and fully believes that the disposal is legal.
Summary Comment
A landlord may dispose of the belongings of a former tenant subject to specific rules that differ whether the former tenant vacated the rental unit or abandoned the rental unit. Additionally, if a person other than the landlord participates in wrongful disposal of the belongings of a former tenant, such other person may also become liable. Shemesh Legal Offices provides affordable services for clients located in Hamilton,
Niagara Falls, Stoney Creek, Caledonia, Ancaster, among other places.
[17] The tort of conversion involves the wrongful interference with the goods of another, such as taking, using or destroying those goods in a manner inconsistent with the owner’s right of possession: DaimlerChrysler Canada Inc. v. Associated Bailiffs & Co. Ltd., 2005 CanLII 24234 (ON SC).
[18] The crux of the tort of conversion is the defendant committing a wrongful act with respect to the property. Evidence must show or permit an inference to be drawn that the defendant acted in such a way as to deny the Plaintiffs title or possessory right. (Simpson v. Gowers (1981), 1981 CanLII 1884 (ON CA), 32 OR (2d) 385 (C.A.) at 387, per MacKinnon A. C. J. O.).
[19] The tort is one of strict liability, and accordingly, it is no defence that the wrongful act was committed in all innocence. The defendant cannot claim contributory negligence or some fault on the part of the plaintiff: Boma Manufacturing Ltd. V. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 SCR 727 at para. 31. Diplock L.J. asserted this principle in Marfani & Co. v. Midland Bank, Ltd., [1968] 2 All E.R. 573, at pp. 577-78:
. . . the moral concept of fault in the sense of either knowledge by the doer of an act that is likely to cause injury, loss or damage to another, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part.
[20] In Westboro Flooring and Decor Inc. v. Bank of Nova Scotia, 2004 CanLII 59980 (ON CA), [2004] O.J. No. 2464, the Court of Appeal confirmed that all that is required re intent is the defendant acts in a manner that is inconsistent with the owner’s title or possessory right, and any blameworthy conduct beyond that is not essential (at para. 14 – 16, per Simmons, J.A.). The philosophy behind strict liability is that a defendant cannot use or convey anything which is no title to use or convey.
[21] There are four essential elements for the tort of conversion.
i. The defendant commits a wrongful act;
ii. Involving the Plaintiff’s chattel;
iii. By handling or disposing of the chattel;
iv. With the intention of denying or negating the Plaintiff’s title or other possessory interest.
Interestingly, as stated in BMW Canada, the tort of conversion arises regardless of wrongful intentions and may occur innocently. Accordingly, where a person assists a landlord in wrongfully disposing of the belongings of a former tenant, the person may become liable for the tort of conversion even if the person genuinely and fully believes that the disposal is legal.
Summary Comment
A landlord may dispose of the belongings of a former tenant subject to specific rules that differ whether the former tenant vacated the rental unit or abandoned the rental unit. Additionally, if a person other than the landlord participates in wrongful disposal of the belongings of a former tenant, such other person may also become liable. Shemesh Legal Offices provides affordable services for clients located in Hamilton,
Niagara Falls, Stoney Creek, Caledonia, Ancaster, among other places.
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