Application for Abandonment (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2024
Page Categories:	[Hearing Process (LTB)]
Citation:	Application for Abandonment (LTB), CLNP 2024, <https://rvt.link/1u>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/02/08

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

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. 2006, c. 17, s. 2 (3).

...

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

(2) If a notice of termination is given in accordance with this Act and the tenant vacates the rental unit in accordance with the notice, the tenancy is terminated on the termination date set out in the notice. 2006, c. 17, s. 37 (2).

...

39 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. 2006, c. 17, s. 39.

...

40 No landlord shall, without legal process, seize a tenant’s property for default in the payment of rent or for the breach of any other obligation of the tenant. 2006, c. 17, s. 40.

...

79 If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy. 2006, c. 17, s. 79.

SWT-86973-16 (Re), 2016 CanLII 44311 (ON LTB)

12. The Courts have consistently held that a landlord’s reasonable belief that the tenant has abandoned the rental unit, however genuine, is not sufficient authority to recover possession under the Residential Tenancies Act, 2006 (the 'Act'). Pursuant to section 79 of the Act, a landlord may apply for an order from the Board determining that the tenant has in fact abandoned the rental unit. The Landlord in the present case never sought such an order. Given the Tenant’s uncontested evidence that he informed P.S. on February 22, 2016 that he intended to remain in his room and continue the tenancy, on the balance of probabilities, I do not find that P.S.’s purported belief that the Tenant had abandoned the rental unit was even reasonable.

13. Section 39 of the Act limits the Landlord’s ability recover possession of the rental unit:

39. 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.

14. Pursuant to subsection 39(b), a landlord may recover possession of the unit if the Board has issued an order authorizing possession. Section 79 of the Act reads as follows:

79. If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy.

15. Since the Landlord never obtained an order from the Board authorizing possession, her only lawful route to recover of the unit must lie in subsection 39(a) of the Act. As the Ontario Divisional Court explained in George V Apartments v. Cobb, the terms “vacated or abandoned” in subsection 39(a) effectively have the same meaning. “Vacant” implies entire abandonment and a state of non-occupancy for any purpose while “abandonment” means that the Tenant no longer intends to reside in the rental unit. Abandonment within the context of the Act therefore requires both an intention to abandon and clear evidence that this has in fact occurred.

16. This avenue to recovery is considerably more precarious for the landlord than obtaining an order from the Board and requires clear and unambiguous evidence that the tenant has permanently vacated the rental unit and has no intention of returning. As the Court noted in George V Apartments:

Abandonment by the tenant is not established until some action is taken by the landlord. When faced with an empty unit, a landlord re-takes possession pursuant to s. 41(a) at some risk. The tenant may be working or vacationing elsewhere, sometimes for a considerable period. The landlord must be satisfied the tenant has left the unit and obviously has no intention of returning. Non-payment of rent is certainly a factor to be considered. The safest course for the landlord is to bring an application under s. 78 [now section 79]…

17. While section 79 is discretionary in that the landlord may apply to the Board for an order terminating the tenancy, pursuant to subsection 37(1) of the Act, a tenancy may be terminated only in accordance with the Act. In other words, absent some action by the landlord, such as seeking an order under section 79 of the Act, the fact of abandonment does not terminate the tenancy.

18. As the Superior Court held in Borges v. Amici Holdings Ltd., when a landlord has direct knowledge of a tenant’s intent to remain in the rental unit, as in the present case, the only proper method to retake possession is through an order.

Chartwell Tranquility Place v Bonyun, 2021 CanLII 125902 (ON LTB)

5. Section 79 of the Residential Tenancies Act, 2006, (the ‘Act’) says if a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy. In order for a landlord to apply under section 79 of the Act, the tenant must be in arrears of rent.

Lacey v Kossar, 2021 CanLII 106419 (ON LTB)

4. Section 79 of the Residential Tenancies Act, 2006 (the ‘Act’) states: “If a landlord believes that a tenant has abandoned a rental unit, the landlord may apply to the Board for an order terminating the tenancy.” The Board’s Interpretation Guideline 4 provides guidance as follows:

“Although section 79 explains how the landlord may receive an order terminating the tenancy in cases where the tenant has abandoned the unit, it is not mandatory for this type of order to be issued for the landlord to treat the unit as abandoned. However, there is a substantial risk in re-renting the unit without such an order unless it is clear that the tenant has vacated and does not intend to continue the tenancy.”

5. I am not convinced that it was clear that the Tenant vacated the unit and did not intend to continue the tenancy. No evidence was led that the Tenant told the Landlords that he was moving out or that the Tenant had been seen in the process of moving out. In my view, the fact the Tenant had personal effects in the rental unit suggests the contrary.

6. I find no merit to the Landlords’ claim that they would have provided the Tenant with a replacement key had he asked for one. I say this because the handwritten letter from the Landlords’ cleaner indicates that all the Tenant’s belongings were removed from the unit at the direction of the Landlords. The cleaner indicates that he threw out some of the Tenant’s belongings and placed his clothes in garbage bags and put them in storage. In my view, had the Landlords simply intended to replace a damaged lock they would not have removed the Tenant’s belongings.

SWT-94108-16 (Re), 2016 CanLII 100344 (ON LTB)

13. While section 79 of the Act is discretionary in that the landlord may apply to the Board for an order terminating the tenancy, pursuant to subsection 37(1) of the Act, a tenancy may be terminated only in accordance with the Act. In other words, absent some action by the landlord, such as seeking an order under section 79 of the Act, the fact of abandonment in and of itself does not terminate the tenancy. In other words, even where a tenant has abandoned the rental unit, this alone does not result in termination of the tenancy.

14. As R.B. chose not to neither obtain a finding of abandonment from the Board nor serve the Tenant with notice of entry pursuant to section 27 of the Act, I find that his entry on August 31, 2016 was illegal. Similarly, he lacked the authority to dispose of the Tenant’s possession found in the rental unit.