Illegal Lockout (Landlord Changes Locks)

See Also: Trespass to Property (LTB)

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

22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household.

24 A landlord shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without giving the tenant replacement keys.

35 (1) A tenant shall not alter the locking system on a door giving entry to a rental unit or residential complex or cause the locking system to be altered during the tenant’s occupancy of the rental unit without the consent of the landlord.

(2) If a tenant alters a locking system, contrary to subsection (1), the landlord may apply to the Board for an order determining that the tenant has altered the locking system on a door giving entry to the rental unit or the residential complex or caused the locking system to be altered during the tenant’s occupancy of the rental unit without the consent of the landlord.

(3) If the Board in an application under subsection (2) determines that a tenant has altered the locking system or caused it to be altered, the Board may order that the tenant provide the landlord with keys or pay the landlord the reasonable out-of-pocket expenses necessary to change the locking system. 2006, c. 17, s. 35 (3).

37 (1) A tenancy may be terminated only in accordance with this Act.

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.

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.

233 A person is guilty of an offence if the person knowingly,

(b) alters or causes to be altered the locking system on any door giving entry to a rental unit or the residential complex in a manner that contravenes section 24 or 35;

(f) recovers possession of a rental unit without complying with the requirements of sections 48.1, 52, 54 and 55;

(g) coerces a tenant to sign an agreement referred to in section 121;

235 (1) Any landlord or superintendent, agent or employee of the landlord who knowingly harasses a tenant or interferes with a tenant’s reasonable enjoyment of a rental unit or the residential complex in which it is located is guilty of an offence.

238 (1) A person, other than a corporation, who is guilty of an offence under this Act is liable on conviction to a fine of not more than $25,000.

(2) A corporation that is guilty of an offence under this Act is liable on conviction to a fine of not more than $100,000.

TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)

3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.

7. The Tenants vacated the rental unit on September 3, 2009 as a result of the N12 Notice. The Tenants initially told the property management company retained by the Landlord that they would vacate the rental unit by August 31, 2009. However, the Tenants were not finished packing by August 31, 2009. The property management company agreed to extend the deadline until September 1, 2009. On September 2, 2009 the Tenants were still loading their van. GB, who works for the property management company, changed the locks on the rental unit on September 2, 2009 without giving the Tenants a key, but told the Tenants they could have access to the rental unit for the rest of the day to finish packing. He asked the Tenants to call him when they were finished packing. Not having heard from the Tenants, he returned to the unit at approximately 2 a.m. and discovered that the Tenants were still inside the rental unit. He asked them to leave, and then locked the door. The Tenants spent the rest of night in their truck parked outside of house.

Determinations:

2. The Landlord’s agent altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenants replacement keys.

3. The Landlord’s agent entered the rental unit illegally

4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.

TST-54122-14 (Re), 2015 CanLII 69365 (ON LTB)

25. I am also satisfied that the Landlords breached section 24 of the Act by changing the locking mechanism to the common facilities and did not provide the Tenants with a replacement key. I am satisfied that the Tenants’ use of the facilities were part of the agreement the Tenants had with the Landlord TR from the beginning of the tenancy.

30. Based on the Landlords’ conduct, namely the conduct of Landlord AP, and its effect on the Tenants, I find a fine in the amount of $500.00 against the Landlords is warranted in the circumstances. This fine is levied in order to discourage the Landlords from engaging in a similar conduct in the future.

27. Based on the impact of the Landlord’s breaches on the Tenants, I am satisfied that an abatement of rent in the amount of $825.00 is warranted. This represents approximately 25% abatement for two months.

TST-57059-14-RV (Re), 2015 CanLII 36970 (ON LTB)

33. The only evidence offered by either party with respect to a replacement key was a statement by the Tenant that when she first spoke to the Cleaner about what happened she asked for her locker back. There is no other indication she asked for another locker or a replacement key. The Landlord also led no evidence to indicate that after it realised what had happened it provided or offered to her a replacement key or locker.

34. What this means is that there is actually no dispute between the parties that the Landlord changed the lock on the locker in question and failed to provide a replacement key. Rather, the Landlord argues that the Tenant was not entitled to the locker she was using; it was not included as a service in her tenancy agreement.

35. It is true that access to a locker is not explicitly included in the Tenant’s tenancy agreement but it would appear that is the norm for this residential complex; that is the reason why the locker clear out project was necessary. Lockers were not explicitly assigned; they were given away on a first come first serve basis.

36. The Tenant says that the superintendent gave her access to the locker when she was an occupant living in the previous unit. That superintendent was never called by the Landlord to testify so I accept this is true even though the Tenant was not a tenant in the residential complex at the time; merely an occupant. There was also no evidence to refute the Tenant’s statement that when she signed the lease for the current rental unit no one asked her for the locker back.

37. Under these circumstances it is not open to the Landlord to claim now that the Tenant had no rights with respect to her locker. That would be the equivalent of permitting the Landlord to benefit after the fact from its own carelessness in granting access to lockers without keeping track of who had one and who did not.

38. So I am satisfied that the Landlord breached section 24 of the Act. I would point out that changing the lock to the locker alone is not a breach of section 24; rather a landlord is free to change a lock – the breach only occurs where the landlord fails to provide a replacement key after the lock is changed.

45. The application seeks abatement of the rent in the amount of $238.00. The monthly rent is $1,265.00. So the abatement requested is about 19% of one month’s rent. Given my knowledge of previous cases before the Board I believe this is not an unreasonable nominal amount for abatement given the Landlord’s breach here. An order shall issue accordingly.

TST-78142-16 (Re), 2016 CanLII 88280 (ON LTB)

3. The residential complex is a rooming house with four floors. There are three units on the third floor, a unit on the second floor and a unit in the basement. The rental unit is on the third floor. It has a bathroom but shares a kitchen with three other units.

6. At the hearing, the Landlord provided his reasons for locking the Tenant out, including complaints from other tenants that the Tenant smoked marijuana in his car. However, section 24 is an absolute ban on a landlord locking a tenant out and it does not allow for any justifications. The Landlord could have availed himself of other notices and procedures at the Board to address the Tenant’s offending behaviour. In fact, the Landlord was aware of this option because he served an N5 Notice of Termination on the Tenant but he did not take further steps because he did not want to pay the application filing fee.

7. Accordingly, I find that by denying the Tenant access to the residential complex on September 27, 2016 and changing the locks to the building without giving the Tenant a key, the Landlord violated section 24 of the Act. I also find that by locking the Tenant out, the Landlord substantially interfered with the Tenant’s reasonable enjoyment of the residential complex or rental unit contrary to section 22 of the Act. In support of his allegation that the Landlord harassed him, the Tenant’s only evidence was a text message the Landlord sent him on September 20, 2016 saying that the Tenant had one week to move out before the Landlord changed the locks. However, I am not satisfied on a balance of probabilities that this text rises to the level of harassment.

HOT-03127-18-AM (Re), 2018 CanLII 141506 (ON LTB)

5. A few days prior to the lock out, the Landlord had left the Tenant a letter dated July 27, 2018 (although he may have intended it to be dated June 27, 2018), stating that the Tenant would no longer have access to the rental unit after 11:59 p.m. on June 30, 2018 due to non-payment of rent and “other tenancy issues”. The letter further states that the Tenant’s use of the rental unit as an Airbnb/short term rental was against the tenancy agreement. The letter also states that the locks would be changed by 8:00 a.m. on July 2, 2018.

6. The Tenant believes she was locked out pursuant to the Landlord’s letter. The Tenant was not aware of any order of the Board, terminating the tenancy. The Tenant had not received a notice of termination or an application to terminate the tenancy at the time she was locked out. Further, on July 2, 2018, the Tenant was not intending to move out of the rental unit. The Tenant moved out on August 28, 2018. There were no other lock-outs after July 2, 2018.

7. Based on the evidence before me, I am satisfied on a balance of probabilities that the Landlord breached section 24 of the Residential Tenancies Act, 2006 (the “Act”) by altering the lock on the door to the rental unit during the Tenant’s occupancy without giving the Tenant replacement keys. Even if the Tenant was not paying her rent or was causing other issues in her tenancy, the Landlord was required to follow the procedures for terminating the tenancy in the Act, instead of circumventing them. The tenancy could only be terminated in accordance with the Act, as provided by section 37, but in this case the Landlord attempted to do so unilaterally and contrary to the provisions of the Act.

TST-80082-16 (Re), 2017 CanLII 9501 (ON LTB)

4. There is no dispute between the parties that the Tenant initially moved into room number 3. On December 29, 2014, he paid a last month’s rent deposit of $500.00.

7. The parties agreed at the beginning of the tenancy that the monthly rent would be $550.00

26. As a result, I am satisfied that the Landlord changed the locks and refused to give the Tenant a replacement key. This is a breach of section 24 of the Act.

27. After the events of November 30, 2016, the Tenant started living in a shelter. He is looking for a new place to live because he does not want to return to the rental unit. But he does want his stuff back. He was able to collect some of his possessions from the rental unit but because he is in a shelter he does not have room for many of his things so there are still possessions belonging to him in the rental unit.

3. The Landlord shall pay to the Landlord and Tenant Board an administrative fine in the amount of $2,600.00 by January 31, 2017.

7. The Landlord shall also pay to the Tenant $3,000.00 for compensatory damages.

8. The Landlord shall also pay to the Tenant $467.50 for abatement of the rent.

9. The total amount the Landlord owes the Tenant is $3,985.09.

CET-67363-17 (Re), 2017 CanLII 93939 (ON LTB)

57. It is undisputed that the Tenant vacated the rental unit as of August 2016 as requested by the Landlords so that necessary repairs could be effected. The Landlords submitted an order to remedy unsafe building issued on July 19, 2016 from the City of Barrie Building Services Department which states that the Landlords are required to restrict access to the damaged units and perform remedial work to make the building safe for occupancy.

58. The Landlords refused to provide the Tenant with replacement keys because they believed that either the rental agreement was frustrated, there was a fundamental breach that relieved the Landlords from performance and/or the Tenant abandoned the rental unit. I have not found that the tenancy agreement was frustrated nor that there was a fundamental breach nor that the Tenant abandoned the rental unit. Therefore the Tenant remained entitled to occupancy of the rental unit and the Landlords contravened section 24 of the Act by failing to provide the Tenant with replacement keys.

Illegal lockout remedies

59. The Tenant seeks an order restoring possession of the rental unit to her. In the alternative, the Tenant seeks increased rent for one year.

60. Subsection 31(3) of the Act states that if the Board determined that the landlord has altered the locking system on a door giving entry to the rental unit/complex without giving the tenant replacement keys and if the Board is satisfied that the rental unit is vacant, the Board may order that the landlord allow the tenant to recover possession of the rental unit.

61. It is not appropriate to issue an order allowing the Tenant to recover possession of the rental unit. The Landlords have re-rented the unit to other Tenant who have been in possession of the rental unit as of July 1, 2017.

68. Therefore the Tenant is entitled to increased rent paid for a one year period from June 1, 2017 until May 1, 2018. The Tenant is entitled to $11,105.70 calculated as follows:

July 1, 2017 – September 8, 2017 $625 x 10 weeks – [1] = $3,728.40

October 13, 2017 – May 1, 2018 $2000/month = $7,377.30

70. The Tenant is entitled to storages expenses for the period from June 8, 2017 until October 10, 2017 of $4,500.00. The Tenant submitted invoices in support of the amount claimed.

SOT-68533-16-RV (Re), 2016 CanLII 44359 (ON LTB)

1. The Tenant’s application alleged that the Landlord locked the Tenant out of the rental unit and disposed of the Tenant's property while he was hospitalized.

2. While he was hospitalized, the Tenant's spouse and co-tenant provided the Landlord with notice of her intention to terminate the tenancy, which the Landlord accepted. She did not inform the Tenant of her intention. It was only upon leaving the hospital that the Tenant found out. By then, the Landlord had retaken possession of the rental unit.

3. After a contested hearing, the hearing member dismissed the Tenant's application. Central to his reasoning for doing so was a determination that the tenancy had been properly terminated by the Tenant's spouse, and that the Landlord had acted lawfully in taking possession of the rental unit.

6. The "English approach," as Vice-Chair Gascoyne described it, was summed up by Lord Neuberger of the Supreme Court of the United Kingdom in Sims v Dacorum Borough Council (2014) UKSC 63, at paragraphs 1 and 2:

1. Where a tenancy of land is held by more than one person, those persons hold the tenancy jointly. In Hammersmith and Fulham LBC v. Monk (1992) AC 478 (“Monk”), the House of Lords unanimously held that, where such a tenancy is a periodic tenancy, which can be brought to an end by a notice to quit, the common law rule is that, in the absence of a contractual term to the contrary, the tenancy will be validly determined by service on the landlord of a notice to quit by only one of the joint tenants. (This was not a revolutionary decision: it had long been assumed to be the law: see eg Doe d Aslin v Summersett (1830) 1 B & Ad135, 140 per Lord Tenterden CJ).

2. Thus, in common law, one of a number of joint periodic tenants can bring the tenancy to an end against the wishes, even without the knowledge, of his or her co-tenant or co-tenants, by serving a notice to quit on the landlord.

8. In contrast, the principle that one joint tenant may serve a termination notice that binds other joint tenants has been accepted by Canadian courts for many decades, including in the following cases:

Burrows v. Michelson (1904) 1904 CanLII 127 (MB QB), 14 Man.R. 739 (K.B.);

Balemba and Balemba v. Louis, (1945) A.J. No. 81 (S.C.);

Andreason v. Clarke, (1945) A.J. No. 10 (S.C.);

Dudiak v. Holzer, 1950 CanLII 133 (SK QB); and

Soucy v Milton Heights Inc., 2015 SKQB 126 (CanLII)

10. In my view, the hearing member did not err by concluding that the tenancy was properly terminated by the notice of only one joint tenant. Such a conclusion was amply supported by law.

11. Another element of the Tenant's position warrants comment. The Tenant relied on the reasons of the Court of Appeal for Ontario in Hansen Estate v. Hansen 2012 ONCA 112 in support of his position that the termination notice served by his co-tenant should only have served to convert the joint tenancy into a tenancy in common, and that he should continue as a tenant.

14. Unlike judges of the Superior Court of Justice, members of this Board do not have jurisdiction to sever tenancies. This Board is a creature of statute, and members of this Board may only exercise powers conferred on them by statute. There is no statutory authority empowering Board members to sever tenancies.

Police Involvement

CET-10092-11 (Re), 2011 CanLII 27008 (ON LTB)

5. The facts of this matter are simple. After a five month tenancy, on January 10, 2011 the Landlord visited the Tenants and demanded rent payment. A heated argument ensued and police were called by the Tenants, who ended the incident.

6. The next day, on January 11, 2011 the Landlord reported to the Barrie police that he has two “unwanted persons” at his residence who were his former “friends and room mates”. The Landlord was “adamant to have the two unwanted guests removed from his residence” (all quotes from Barrie Police Services Arrest Report dated January 11, 2011).

7. Two officers arrived at the scene and entered the unit while the Landlord remained outside in his car. They explained to the Tenants that contrary to their opinion, they had “no right to reside there against the complainant’s wishes”. According to the report, the Tenants were unable to “comprehend plain English” because of “their extremely high level of intoxication”. Within minutes they were arrested under section 2(1)(b) of the Trespass to Property Act, placed in a cruiser in handcuffs and delivered to the nearest Tim Horton’s, where they were released. This being around 10 pm, one of the Tenants was in his pyjamas.

8. The Arrest Report ends with the following observation: “Both parties do in fact, rent a room and there is no lease agreement in place and both parties do not fall under the jurisdiction of the Landlord and Tenant Tribunal. As such, the complainant did have every right to have both males removed from his premises”.

9. Starting from the morning of January 12, 2010 the Tenants have made repeated attempts to get access to their belongings, clothes, documents, car keys, etc. which all remained inside the apartment. The Landlord demanded the payment of $1,300.00 before allowing any access. After police intervention, the Tenants were able to remove their belongings on January 17, 2011. They were never permitted to return to the apartment to continue their tenancy.

14. Not only did RM initiated (which means, carried out) an illegal eviction in the middle of the night, but then stubbornly refused to provide access for the Tenants. On top of this he tried to create an appearance that the apartment was shared accommodation on the day the eviction took place.

15. The only issue remaining is the size of compensation. The Tenants asked for the actual costs pf $4,470.00 associated with this attack on their rights and supported them with bills and invoices. They never asked for compensation related to stress, disruption of their lives, being left without clothing, etc. for a week in winter and other losses. I find that for these losses they are entitled to compensation of $5,365.00.

16. The total compensation the Landlord shall pay to the Tenants is $9,835.00.

17. I considered whether, in view of the egregious disregard for the law, the Landlord shall pay a fine to the Board. I considered Guideline 16 of the Interpretation Guidelines of the Board which deals with fines. I decided that in the circumstances described above a fine in the amount of $2,000.00 is appropriate.