Interference with Lawful Right (Tenant denies lawful entry)

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

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

Entry with notice 27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:

1. To carry out a repair or replacement or do work in the rental unit.

2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.

3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.

4. To carry out an inspection of the rental unit, if,

i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and

ii. it is reasonable to carry out the inspection.

5. For any other reasonable reason for entry specified in the tenancy agreement. 2006, c. 17, s. 27 (1).

Same (2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. 2006, c. 17, s. 27 (2).

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Contents of notice (3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3).

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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SWL-15637-18 (Re), 2018 CanLII 88614 (ON LTB)

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Incidents Detailed in the Second N5 Notice

9. The second Notice to End the Tenancy for Interfering with Others (Form N5) was served on the Tenant on March 19, 2018. The notice alleges that the Tenant has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant. The Landlord’s Agent testified to the incidents outlined in the second N5 Notice.

10. The Landlord’s Legal Representative produced a Board order, SWL-08244-17 issued on November 16, 2017. In SWL-08244-17, the presiding Member found that the Tenant had altered the locking system on a door giving entry to the rental unit without the Landlord's consent, and failed to give the Landlord a replacement key. The Tenant was ordered to provide a replacement key to the Landlord.

11. The Landlord’s Agent testified that the Tenant did give him a replacement key for the Tenant’s unit. However, in February 2018, after providing the Tenant with proper written notice of entry, when the Landlord’s Agent attempted to enter the Tenant’s rental unit, the key did not fit the lock. The Landlord’s Agent then tried to use the master key, and that key also did not fit the lock.

12. The Landlord’s Agent testified that he has tried to communicate with the Tenant and request a working key to the rental unit, but the Tenant refuses to engage in conversation with the Landlord’s Agent. The Landlord’s Agent attended the Tenant’s rental unit again on the morning of the hearing, after providing proper written notice of entry, to re-test the key. The Landlord’s Agent testified that he saw an adult female who he believed to be the Tenant in the rental unit as he approached the front door. Despite knocking on the door for several minutes, no-one came to the door. The Landlord’s Agent tried both the key provided by the Tenant and his master key, and was unable to unlock the Tenant’s rental unit.

13. The Landlord’s Agent testified that the Landlord has not been able to enter the Tenant’s rental unit since the summer of 2017. As a result, the Landlord has not been able to complete routine tasks in the rental unit such as conducting annual maintenance, testing the smoke alarms or testing the furnace.

Analysis:

14. The first N5 notice was served pursuant to section 64 the Residential Tenancies Act, 2006 (‘the Act’). That section sets out that a landlord can give a notice of termination if the conduct of the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant. That section also provides that the notice of termination is voided if the tenant stops the offending conduct during the seven days following the service of the notice; in this case from October 26 to November 1, 2017.

15. The Landlord’s Agent testified that after the first N5 notice was served, he received no new complaints about the Tenant’s conduct. I am satisfied that the Tenant voided the first Form N5.

16. The second N5 notice was served pursuant to section 68 of the Act. That section entitles the Landlord to serve a non-voidable N5 if the Tenant voided the first N5 and within the following six months there is another incident. As there is no ability to void second N5 notices, the Landlord was entitled to file the application to evict the Tenant.

17. I accept the uncontested testimony of the Landlord’s Agent, and find that the Landlord proved, on a balance of probabilities, that the Tenant and her guests have substantially interfered with the Landlord's and the other tenants' reasonable enjoyment of the residential complex by harassing the Tenant’s neighbour, and that the Tenant has interfered with the lawful rights of the Landlord by disregarding an order of the Board by not providing the Landlord with a working replacement key to her rental unit.

Relief from Eviction:

18. Having found the Landlord has proven the allegations in its application, I will turn my mind to relief from eviction, as required under section 83 of the Act.

19. The Landlord’s Agent testified that the Tenant was advised several months ago that the rental unit key she provided was not working, and yet she refuses to communicate with the Landlord to resolve this issue. The Tenant’s actions are preventing the Landlord from meeting his obligations to repair and maintain the rental unit as required under section 20 of the Act. Considering this and all other disclosed circumstances, I find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

20. This order contains all of the reasons for this matter, and no other reasons will issue.

It is ordered that:

1. The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before June 25, 2018.

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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...

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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TSL-84025-17 (Re), 2017 CanLII 60021 (ON LTB)

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Analysis – No valid notice of entry served during voiding period

9. The Landlord did not specify the time for entry in the notice provided for the visit on April 6, 2017 as required in section 27(3) of the Act, and the Tenants did not consent to the entry. The Tenants were entitled to refuse entry to the property appraiser on April 6, 2017 as they had not been served with a valid, lawful notice. Therefore, the Tenant’s refusal to allow entry into the unit on April 6, 2017 cannot constitute substantial interference with the reasonable enjoyment or lawful right, privilege or interest of the Landlord. As there were no other alleged incidents during the period April 5, 2017 through April 12, 2017, I must find that the Tenants voided the N5 notice pursuant to section 64(3) of the Act. The Board cannot terminate a tenancy on the basis of a voided notice of termination and therefore the Landlord’s application must be dismissed.

10. While I am dismissing the Landlord’s application, I will also address the issue underlying the Landlord’s application, the appraiser’s attempts to take pictures of the interior of the rental unit, in the hopes it will provide some guidance to the parties.

11. Section 27 does not specifically address the issue of entry for the purpose of photographs,. The Divisional Court has previously stated that the fact that a landlord wants to take photographs does not, by itself, constitute an infringement of a tenant’s privacy rights. It would only constitute an infringement if it was done for an improper purpose. The Court also specifically approved of a landlord entering a rental unit pursuant to a notice of entry for the purpose of taking photographs to be used in defence of an application brought by a tenant before the Board. (Nickoladze v. Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII)).

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