Is My Rental Actually Abandoned? An Ontario Landlord's Guide

Introduction

Morning everybody. Here we are again for another episode for Ontario Landlords. Today we’re just going to have some conversation about two situations, maybe three if we have enough time, that were brought up in some groups that people were going through, and we just want to talk about some odd situations that could come up and how we have to deal with them, or what the best way to move forward is. Today we’re joined again with Mr. Robert Di Lisi from Stonegate Legal Services. Good morning, how are you?

Understanding True Abandonment

Good morning, Kevin. Thanks for having me on again.

Yeah, no, for sure — as always, your expertise and insight into these issues is great information for all of our listeners out there. So let’s start with something like abandonment. This is something we’ve heard a little bit about as people are vacating units — how do you know they’ve vacated for sure? Did they give proper notice? Probably not. Now there are just keys being left there, or whatever the different situations are. I’m going to bring up something from one of our landlord groups — this is a question that was asked, and I’m just going to read it as it goes: the landlord believes the tenant has left the unit but left behind her pregnant, underage granddaughter of 16 and the granddaughter’s boyfriend of 15. The rent is still getting paid, and the landlord sees the lady every once in a while, one or two times a month, coming in to check on them. The unit, though, has been destroyed — holes in the walls, dog feces everywhere, up against glass. They’ve been smoking in the unit, breaking windows, unplugging all the smoke alarms, so now there’s a hazard issue as well, and supposedly they’re causing problems with other tenants in the building. What is this landlord to do? What are her options — with safety issues, other tenants, and this one unit?

Okay, so this is not abandonment, just so you know. And the first thing I’m going to say is occupancy has nothing to do with tenancy. You said something important — you said the rent is still being paid even though the person on the lease is not living there, and I believe the granddaughter is living there, is that correct? Yeah, someone who wasn’t originally on the lease is now staying there. Okay, so those people staying there are considered occupants, guests. I don’t see anything illegal or wrong here from what you’re telling me. For abandonment, there’s a two-part test you need to consider: number one, are there belongings there, and number two, is the rent being paid. So in this situation, even though the tenant is not residing there, the rent is still being paid and there’s someone occupying the property — this is not abandonment. In regards to what the landlord can do, the options are quite limited. If they’re making a disturbance, you can give a notice for disturbing other people there — but remember, to get to the board these days you’re looking at four to six months and then two months to get the order, so I’m not sure that’s a plausible option, but this is not abandonment. And there’s no issue with a 16- and 15-year-old living there — neither is an adult, but because she’s checking in and still paying rent, everything is okay there. They may not be of the age of majority, but you don’t know what the full situation is; they say they don’t see the tenant there often but that she’s checking in. Again, the people living there are not tenants, they’re occupants. Because they’re underage, you can call family services or whatever it’s called to do a checkup, but I don’t see a problem here.

No, like you said, the rent’s being paid, they definitely have belongings there, her granddaughter is still there, and the rent is being paid, so that’s the main thing. All right, I’m going to throw a quick, easy one at you — let’s say the tenants have left the place, moved out, and leave belongings behind, some stuff in the unit, but also a car on the driveway. It’s been weeks since they turned over keys and the place has been vacant. How long do we have to wait? What’s the process for any of this?

Abandoned Property Protocol

Okay, what’s important is — because you jumped around a bit — were the keys surrendered to the landlord?

No, left behind in the unit.

Okay, so you have to be careful, because again, for this to be abandonment you have to consider the two-part test: is there belongings there, and is the rent being paid. Let me give you a scenario — what if they just went on vacation, went to Europe? You don’t know if they’ve really abandoned the unit. So the landlord should exhaust all efforts to try to get a hold of the tenant. The last thing you want is to change the locks, remove their belongings, and have them come back and say, no, we went to Italy for a couple months and didn’t have access to my phone — now the landlord would be responsible for those belongings. So that would not be considered abandonment. More importantly, we cannot arbitrarily say this is abandonment — technically, the board has to determine abandonment, and they’ll go through the two-part test. If there’s belongings there and they’re paying the rent, then you don’t know if they’ve really abandoned the unit, so landlords need to be careful, because there could be some liability.

Okay, this one I think is going to take a little more to dive into — there’s going to be some parts to this. Let’s say a landlord has signed a lease with a new tenant where they’re going to move in December 1st and required last month’s rent as a deposit before moving in. On December 1st, they’re then told by the tenant that they don’t plan on moving in until January 1st, but they’d still like the keys because the lease that everybody signed said December 1st, and it’s their right to the property because that’s what the lease says — and they threaten to call a locksmith if they don’t get the keys from the landlord. But they haven’t paid a penny, no last month’s rent, no rent for December either. What’s the process there? How would they go about doing that properly?

Lease Agreement Issues

So contractually you have a lease agreement starting December 1st, but part of that would be collecting first and last month’s rent. Even though they’re not planning to move in until January 1st, if they want to take possession December 1st, that’s fine, but they have to give first and last month’s rent upfront. That’s it, it’s very simple — why would you let them in if they haven’t paid first and last month’s rent? Contractually speaking, yes, they have the right to move in, but you’re not going to let them in until — and it’s not just first and last month’s rent, this is also the time to confirm they have insurance, that utilities are set up, everything set up before they enter the property. Because once they’re in the property, they’re considered a tenant — before they enter the property, it’s not a tenancy, it’s a contract.

So let’s add something here while we’re on the topic of utilities — how can we enforce that? What can happen if tenants aren’t paying bills, water, gas, obviously we can’t shut those off if they’re not paying.

Utility Bills & Legal Options

Right, I hear this all the time — I’m Italian, and a lot of my Italian clients say, well, if they’re not paying the utilities or the rent, I’m going to shut off the gas or electricity. You cannot do that — those are considered vital services. If you have a tenant not paying their bills, the first thing you should do is notify them of the bill and how much it is, and provide a copy of the bill — that’s step number one, letting them know what’s owed. If they still don’t do anything, you can pursue an application to the board for non-payment of utilities — this is separate from non-payment of rent. Non-payment of rent is the N4, non-payment of utilities is the N5. The unfortunate part is you’re still looking at four to six months to get to the board, and then two months to get the order. What I’m seeing, and this is just my personal experience, on utilities it doesn’t always get you an eviction — so if the goal is to get an eviction, the N5 might not necessarily get you that goal, and I want everyone to know that.

Do the N5 and the N4 counteract each other — let’s say we have a tenant who’s not paying rent, a month or two behind, but now they also have a massive water bill, which is a must-have utility for anybody — can’t live without water or heat in Canada. So the water bill is huge, they haven’t paid rent in a couple months — landlord serves the N4 or the N5, can they do them both at the same time? Can they do them differently? Do they even matter?

No, you can do them both at the same time — one is for non-payment of rent, the other for utilities. It’s not a problem to do them at the same time. What I see some landlords do is add the utilities onto the N4 for non-payment of rent — that’s incorrect, they’re separate applications or notices, and even your order will be different. Like I said, the N5 doesn’t necessarily guarantee an eviction, whereas the N4 is a factual notice, a factual application, and hopefully you do get an eviction. One thing I’ll note — if you don’t pay the utilities, a lot of utility companies are now putting it on the property taxes or onto the landlord. But I’ll say this: in the wintertime, you want the gas working, because you don’t want your pipes to freeze — so it’s actually in the landlord’s benefit, believe it or not, to keep the heat working. Is it fair? No, it’s not, but you have to go through the proper channels of going to the board, and that could be four to six months, unfortunately.

Yeah, process is the process, right — and until that process gets corrected or adjusted to be a little more balanced and fair for everybody, these are going to be the issues we’re constantly faced with. But we have to follow the right course of action in different situations, so that when the time comes, the adjudicators see that everything was done properly on our end, and hopefully side with the landlord. Yep, and at the end of the day it is the adjudicator’s decision — even what we’re talking about now, someone might say, well Rob said this, but it’s what the adjudicator decides at the hearing, and they’re all individuals. One might say yes, one might say no, from the exact same situation, from what I’ve experienced.

Yeah, and that’s the problem we’re seeing — there are good adjudicators and not-so-good adjudicators, and some of them don’t always follow the rule of law, they interpret it their own way. Sadly that’s like everything — they say 20% is good, 80% is average or bad, at every single profession.

Oh yeah, yep, it’s people. Exactly — and we’re here to help guide, advise, and consult, so everybody understands at least what their options are in different situations, so they can make the best informed decision for their specific situation. I hope you guys got a little something from that today about where we are with landlords and what we have to do with a couple of not-so-common or unique situations. As always, Rob, thanks so much for joining us and sharing — we’ll talk to you guys soon.

Bye for now. Take care.

Please remember, while we are professionals, this podcast is for informational and entertainment purposes only. The advice shared may not apply to your unique situation. Always seek personalized advice from a qualified professional before making any investment decisions. Hey everybody, thanks so much for joining us this week. I hope you enjoyed the episode. If you’re finding it informative and useful, make sure to like, subscribe, share with a friend so that we can keep getting the information out there to Ontario landlords, and keep on joining us.

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