Interference with Lawful Right (Tenant denies lawful entry)

[[Category:Interference of Reasonable Enjoyment (LTB) ]]

SWL-40708-12 (Re), 2013 CanLII 17701 (ON LTB)

Determinations:

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5. The Tenant, through her Agent refused entry to the Landlord pursuant to lawful notice of entry given on September 19, 2013 for entry September 20, 2013.

6. This conduct substantially interferes with a lawful right of the Landlord.

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10. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction subject to the condition(s) set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act.

It is ordered that:

1. The Landlord’s application for eviction of the Tenant is denied on the condition that:

2. For a period of 1 year from the date of this order, the Tenant shall permit entry to the rental unit pursuant to lawful notice of entry served by the Landlord.

3. If the Tenant fails to comply with the conditions set out in paragraph 2 above, then, within 30 days of the breach, the Landlord may apply under section 78 of the Residential Tenancies Act, 2006 (the ‘Act’) for an order terminating the tenancy and evicting the Tenant.

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TSL-06307-19 (Re), 2019 CanLII 134534 (ON LTB)

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3. There is no dispute between the parties that the lock to the rental unit was changed by the Tenant, without the permission or consent of the Landlord in February of 2019.

4. The Landlord testified that on February 28, 2019, the Landlord’s employees and a Municipal Standards Officer attended at the rental unit, having provided notice of entry to the Tenant, in order to inspect the radiators. When the Landlord’s employee attempted to gain access to the unit they found the lock on the unit door had been changed. The Tenant did not have permission from the Landlord to install or change the lock on his rental unit and had not provided the Landlord with a key to the new lock.

5. The Landlord testified that he spoke to the Tenant in the evening of February 28, 2019 and requested a key from the Tenant for the new lock.

6. The parties do not dispute that the Tenant refused to provide a key for the new lock to the Landlord and had not provided a key to the date of the hearing.

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9. The Landlord testified that they had contracted to have pest control treatments performed throughout the building, including in the Tenant’s apartment, and despite having provided the Tenant with 24 hours’ notice of entry for the pest control treatments, they were unable to enter the rental unit to perform the pest control treatments on the following dates:

March 10, 2019 April 11, 2019 April 17, 2019 April 25, 2019

10. Subsection 64(1) of the Act permits a landlord to give a tenant a notice of termination of the tenancy where the conduct of the tenant substantially interferes with the reasonable enjoyment of the residential complex or substantially interferes with another lawful right, privilege or interest of the landlord.

11. The N5 notice provides the Tenant with a 7-day period to stop the activities or correct the behavior alleged. In the present case, the Tenant had between March 26, 2019 and April 1, 2019 to correct the alleged behavior. The Landlord advised that the Tenant did not correct the alleged behavior within the voiding period.

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15. On the evidence before the Board, I am satisfied that the Tenant changed the lock on the rental unit without the consent of the Landlord and has failed to provide a key to the Landlord in breach of subsection 35(1) of the Act. There is no termination of the tenancy pursuant to s.35(1) of the Act, nor has the Landlord filed a s.35 application. Therefore, I turn my mind to whether there is substantial interference with reasonable enjoyment on the facts of this application.

16. I find that the Tenant has substantially interfered with the Landlord’s lawful rights, privilege or interest by preventing several pest control treatments to the rental unit, preventing the Landlord from carrying out his maintenance obligations in accordance with his maintenance schedule. Nonetheless, for the reasons that follow, I find that termination of the tenancy is not appropriate in this case.

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