What Can a Landlord Do With Belongings Abandoned By a Former Tenant?
The Rules Applicable to How and When a Landlord May Dispose of Belongings Abandoned By a Former Tenant Differ Depending Upon Whether the Rental Unit Was Vacated or Abandoned By the Tenant.
Understanding When a Landlord May Treat Belongings of a Tenant As Abandoned Without Liability Risk
Following the move out of a tenant, it is common that a landlord will discover that various belongings were left behind. In such circumstances, If the rental unit was indeed legally vacated, then the landlord is entitled to assume, sell, or dispose, of the belongings, subject to conditions.
A landlord must first ensure that the rental unit is indeed vacated or legally deemed abandoned prior to treating the belongings of a tenant as abandoned. When determining whether a rental unit is abandoned, a landlord should first review is whether the tenant is in arrears of rent. Where the rent is current, the landlord must refrain from treating the rental unit as abandoned; and therefore must also refrain from treating any belongings of the tenant as abandoned. This requirement is stated within the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 at section 2(3) which says:
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
Where a tenant vacates the rental unit leaving belongings within, the Residential Tenancies Act, 2006 provides the landlord with the right to assume the belongings for the ownership and use by the landlord, to sell the belongings, or to dispose of the belongings, if the tenant vacated the unit in such circumstances as are stated at section 41 which says:
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.
Interestingly, per section 41(2) and section 41(3), where the Sheriff enforces an eviction Order, a landlord must wait at least seventy-two (72) hours to allow for a tenant to return to retrieve any belongings left behind.
Furthermore, per section 41 of the Residential Tenancies Act, 2006, whereas such addresses the various rights and duties imposed upon a landlord when a rental unit is vacated in circumstances described within section 41(1), additional rights and duties apply when a tenant simply abandons a rental unit in circumstances that are other than as described within section 41(1). As indicated, where a tenant abandons the rental unit, rather than vacates the rental unit, the landlord must obtain an Order from the Landlord Tenant Board to formally terminate the tenancy or to issue a Notice of Intent to Dispose of the belongings. In either circumstance, the landlord may only take ownership and use of the belongings, sell the belongings, or dispose of the belongings, after thirty (30) days following receipt of the Order terminating the tenancy or thirty (30) days after providing the tenant with the Notice of Intent to Dispose of the belongings. These requirements are prescribed within section 42 of the Residential Tenancies Act, 2006 which specifically says:
42 (1) A landlord may dispose of property in a rental unit that a tenant has abandoned and property of persons occupying the rental unit that is in the residential complex in which the rental unit is located in accordance with subsections (2) and (3) if,
(a) the landlord obtains an order terminating the tenancy under section 79; or
(b) the landlord gives notice to the tenant of the rental unit and to the Board of the landlord’s intention to dispose of the property.
(2) If the tenant has abandoned the rental unit, the landlord may dispose of any unsafe or unhygienic items immediately.
(3) The landlord may sell, retain for the landlord’s own use or otherwise dispose of any other items if 30 days have passed after obtaining the order referred to in clause (1) (a) or giving the notice referred to in clause (1) (b) to the tenant and the Board.
(4) If, before the 30 days have passed, the tenant notifies the landlord that he or she intends to remove property referred to in subsection (3), the tenant may remove the property within that 30-day period.
(5) If the tenant notifies the landlord in accordance with subsection (4) that he or she intends to remove the property, the landlord shall make the property available to the tenant at a reasonable time and at a location close to the rental unit.
(6) The landlord may require the tenant to pay the landlord for arrears of rent and any reasonable out-of-pocket expenses incurred by the landlord in moving, storing or securing the tenant’s property before allowing the tenant to remove the property.
(7) If, within six months after the date the notice referred to in clause (1) (b) is given to the tenant and the Board or the order terminating the tenancy is issued, the tenant claims any of his or her property that the landlord has sold, the landlord shall pay to the tenant the amount by which the proceeds of sale exceed the sum of,
(a) the landlord’s reasonable out-of-pocket expenses for moving, storing, securing or selling the property; and
(b) any arrears of rent.
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.
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:
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.
Per the applicable sections of the Residential Tenancies Act, 2006, as detailed above, a landlord may perceive rigidity to the conditions applicable to retrieval of belongings by the tenant. For example, the Residential Tenancies Act, 2006, speaks to making the belongings available for retrieval by the tenant without stating a necessity to make the belongings available for retrieval by other persons who may be acting on behalf of the tenant. Furthermore, the Residential Tenancies Act, 2006, prescribes a seventy-two (72) hour deadline. However, a landlord that fails to provide reasonable flexibility and disposes of tenant belongings based upon a rigid application of the Residential Tenancies Act, 2006, may nonetheless be held liable. The requirement for reasonableness in accommodating a tenant with the removal of belongings was explained in the case of Billion v. Vaillancourt, 2016 ONSC 5820, wherein it was said:
 This decision must be viewed in light of its underlying and unique facts. In Mputu v. Wright,  O.J. No. 6055 (S.C.J.) Wilson J. held at paragraph 41 that: “Landlords that fail to act reasonably in the circumstances face risk of liability.” She further held at paragraph 39 that circumstances of the case before her that, “reasonable positive steps should be taken to make arrangements for the tenants to remove their belongings.” While the Member in this case appears to have misquoted Mputu somewhat, her decision is fully consistent with the principles established in that case. A landlord must act reasonably. A landlord cannot simply ignore attempts on behalf of the tenant to contact him or turn a blind eye to what he knows is not simple abandonment of property. The landlord’s conduct in this case was egregious and easily meets any test for abuse of process. Such a finding is also supported by the case law, see Mputu v. Wright; Cruickshank v. Mobal Khan Enterprises,  O.J. No. 3355 (S.C.J.); Maturell v. Dunelm Holdings  O.J. No. 1880 (S.C.J.).
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 disposing of property belonging to a former tenant. Of course, in most circumstances, if a landlord unlawfully disposes of the belongings of a former tenant, it is most likely that the former tenant would pursue legal rights only against the landlord; however, where another person is involved and the former tenant wishes to pursue legal rights against that other person, the tort of conversion may apply. Such other person could be a family member of the landlord, a property manager, a superintendant, a disposal company, or others.
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:
 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).
 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.).
 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),  3 SCR 727 at para. 31. Diplock L.J. asserted this principle in Marfani & Co. v. Midland Bank, Ltd.,  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.
 In Westboro Flooring and Decor Inc. v. Bank of Nova Scotia, 2004 CanLII 59980 (ON CA),  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.
 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.
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.