This article was originally written for and published by the Alberta Residential Landlord Association Rental Gazette Newsletter.
What to do when your tenant is AWOL: Abandonment and Residential Tenancies (Part 1)
This article is the first in a two part series relating to abandoned units; it will focus on your legal obligations with regard to tenancies ending by reason of tenant abandonment. In the next part, to appear in the next issue of the Rental Gazette, the focus will shift to abandoned goods.
Abandoned units can pose a problem because they leave a landlord in a position of uncertainty. So if you’re a landlord standing at the door of a possibly abandoned unit, what do you do?
The starting point is to recognize that when a landlord enters into a residential tenancy agreement or lease with a tenant, the essential aspects of the bargain between the parties is that the tenant will receive certain property rights to the leased premises (including the right to occupy them) and the landlord will receive rental payments. The property rights which the tenant receives include the ability to exclude others from the leased premises. When we own property, the right to exclude others from that property is one of the most important aspects of property ownership that we have, it’s the entire basis of the notion of trespass to property. We value it highly but think of it infrequently (at least in this way).
If I have a house I get to decide who can come to into my house and when they can do that. If I rent that house to a tenant then the tenant gets to exercise that right. The exception to that is that the tenant cannot exclude me provided that I give proper notice in accordance with the requirements of the Residential Tenancies Act, SA 2004, c R-17.1 (the “Act”). Giving notice can sometimes seem like a real inconvenience or even a hassle to a landlord, but because the tenant has the right to exclude it, is very important. Whether or not the landlord agrees with its importance, the courts certainly do and for this reason a landlord should always operate to the letter of the law when entering a unit.
What does this mean?
Well, if a tenant comes to the door and provides you access then it’s clear that the unit is not abandoned.
If a tenant comes to the door and refuses access then it’s also clear that the unit is not abandoned but that you will have to give notice to enter in accordance with the Act.
If no tenant comes to the door then the unit could be abandoned or the tenant could be at work, getting groceries, on vacation… There can be many reasons why a tenant is not in a unit at any given time. The Act does permit a landlord to enter a lease premises without notice when the landlord has reasonable grounds to believe that the tenant has abandoned the unit. This is where care and caution must be exercised because “reasonable grounds” seems to be an open ended proposition. Here are some tips on how to approach that:
1. Think about the indicator that you are taking as a sign of abandonment; consider whether it could also lead to some other conclusion. For example, if your tenant has not paid rent for two months it would be just as plausible to conclude that they have not paid rent because cash flow is an issue (a common situation) as it would be to conclude that the premises are abandoned.
2. Flowing from #1, since some indicators could lead to more than one conclusion it is best practice not to conclude that there has been abandonment unless there is significant evidence pointing to that fact (i.e. the neighbouring tenant told you they saw this tenant moving boxes out of the unit all last week, the keys are taped to the door or provided to another tenant, mail is overflowing from the mailbox, etc.).
3. When in doubt, give 24 hours’ notice before entering. If upon proper notice you enter the suite, make notes and take pictures as to what you see. This is an opportunity for you to gather further information which you can use to decide if a residence is abandoned or not (i.e. the major furniture is all gone and the fridge appears to have been cleaned out, etc.). This will become important if you need to determine whether or not to change the locks.
This brings up the question of whether or not you can change the locks. The Act is clear, neither the landlord nor the tenant can change the locks without the consent of the other party. If the landlord does need to change the locks they must provide the tenant with a copy of the new key immediately. However, the Act also provides landlords with remedies where there is a “repudiation of the tenancy”. If the landlord believes, on reasonable grounds, that the tenant has abandoned the premises then they have the option to (1) accept the repudiation as termination of the agreement or (2) to refuse to accept it and continue the tenancy. (Note: to repudiate an agreement means to show an intention not to be bound by the agreement).
Most landlords will pick option #1 which means that they can change the locks and also pursue the tenant for unpaid rent which will be determined in accordance with the circumstances. However, again, the issue will be one of whether or not the landlord has reasonable grounds to believe that the tenant has abandoned the premises so landlords are cautioned to tread lightly. It is difficult to assess what award a court would make where there were not reasonable grounds for concluding abandonment but the time and effort in defending action (whether or not you have legal counsel) should serve as a real deterrent to any landlord who might otherwise conclude “good enough” where reasonable grounds are in question.
In the next issue of the Rental Gazette consideration will be given to what to do with abandoned goods. ∎
If you have questions or would like advice, reach out to our Real Estate Team.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.