Summary:
1. Divergent LTB rulings
2. Landlord's Self-Help Centre's position and guidance for landlords
3. Steps to Justice's position and guidance for tenants
RTA section 35 prohibits a tenant from altering the locking system of a door giving entry to a rental unit. Subsection 35(3) further states that if a tenant alters the locking system without the landlord’s consent the Board may order that “the tenant provide the landlord with keys or pay the landlord the reasonable out-of-pocket expenses necessary to change the locking system.”
However, it does not say anything about chain locks. Technically, a chain lock may still allow entry as long as the tenant opens the door. So does installing a chain lock qualify as "altering the locking system" in violation of RTA section 35 or not?
The question does not seem to have a very clear answer. Here are a few issues:
1 - Tenants are liable for any *undue damage* they cause willfully or negligently (RTA section 34), but it is unclear whether adding a chain lock would qualify as undue damage (it would likely depend on the installation, etc).
2 - Tenants cannot bar their landlords' access to the unit when the entry is done in accordance with the RTA, but it does not automatically follow that adding a chain lock denies entry (assuming the tenant opens the door).
3 - Importantly, does adding a chain lock technically qualify as "altering the locking system" (under RTA section 35) or not?
1.
LTB rulings seem divergent on the issue:
Claudette Leslie's ruling states that it doesn't qualify as a violation of RTA section 35:
"5. In this case, I find that while the Tenant installed a safety mechanism on the inside of the door, the Tenant did not change the locking system, and therefore could not be expected to provide the Landlord with replacement keys, in compliance with the Act.
6. By installing a safety, chain lock, the Tenant essentially secured the unit while the unit was occupied, which would not prevent the Landlord from accessing the unit with the use of his key while the Tenant/occupants were away from the unit; or with proper notices of entry when they were in the unit.
7. The Landlord stated that he changed the lock because he had lost his key. Changing the lock would not prevent the Tenant from using a safety, chain lock on the inside of the door, and in my view this does not constitute a finding that the Tenant altered the locking system.
8. I find no grounds for allowing the Landlord’s application."
Jana Rozehnal's ruling treats it as a violation of RTA section 35:
"10. Furthermore, the Landlord has a right to have a key to the rental unit. In other words, the Tenant may not change the locking mechanism to his rental unit without providing the Landlord with a key. The Tenant in effect changed the locking mechanism by installing a chain lock and not providing a key to the Landlord. This contravenes the Residential Tenancies Act, 2006 (the “Act”)."
"24. With respect to the Landlord’s removal of the secondary locking system, while R.H. seemed to imply that interior chain was added without the Landlords’ consent, this was far from clear on the evidence. The chain may well have been present when the Tenants moved into the rental unit, installed by the prior landlords or someone else entirety.
25. In BPMI. v. B. [2004] O.J. No. 1452 (‘B.’), the Ontario Divisional Court considered a situation in which tenants had installed a secondary lock on the door of their apartment and were still residing in their unit.[2] Other tenants had moved into units in which secondary locks had already been installed by a previous tenant. There was evidence that the superintendent had consented to the installation of these locks. The Court held that this section of the Act must be read in conjunction with the then subsection 23(2) of the Tenant Protection Act, 1997 (the ‘TPA’),[3] which prohibits tenants from changing the lock to the rental unit or the complex without the landlord’s consent. A landlord’s consent, once given, binds the landlord for the duration of the occupancy of the tenant. In turn, a successor landlord would also be bound by the consent offered by the initial landlord.
26. The Court in B. clarified that the relevant issue is not a matter of ownership of the removed device, but one of consent:
The Tribunal determined that the landlord did not have the right under section 23(1) to remove the secondary locks because they were tenants’ property. The issue of whether these secondary locks were fixtures or not is irrelevant. This Court finds that while the Tribunal did consider the question of consent, it erred in concluding that the interpretation to be given to section 23(1) and (2) is governed by the ownership of the locks. We are of the view that the focus should have been on whether there was consent given by the Landlord to a Tenant to alter the locking system in any given tenancy. The result will depend on the facts of each particular tenancy.[4]
27. Since there was no evidence that the tenants installed this chain with or without out the consent of the Landlords either past or present, section 35 does not apply to the present facts and therefore offers no defence to the Landlords.
However, it is questionable whether a secondary latch and chain would qualify as a “locking system” within the narrow definition implied by the wording of section 24 of the Act. While this phrase is not actually defined anywhere in the Act or the Regulations, the wording of section 24 strongly suggests that the provision relates to locks operated by keys. While a chain and latch can undoubtedly secure a door, the section relates to alterations in which the landlord has failed to offer the tenant a replacement key. As chains and latches do not use keys, the Landlords on the present facts could not cure the breach of the chain’s removal by providing a replacement key. Theoretically, the Landlords could only prevent a breach by replacing the entire chain and latch, an option not contemplated by the provision at all."
"2. The Landlord also submitted that the Tenant wilfully or negligently caused undue damage to his unit door by replacing the lock and adding a chain lock to the inside of the door.
3. The Landlord claimed that by installing the new locks, the Tenant compromised the ‘fire rated’ door such that it had to be replaced. In the notice, the amount claimed for replacement of the door was $1,073.50. The Landlord ordered a new door in June 2017 at a cost of $542.00. Based on the evidence before me, I am not satisfied that the Tenant wilfully or negligently caused undue damage to the door by changing the locks. The Landlord’s statement that the door is ‘fire rated’ and must be replaced is not sufficient for me to conclude that the entire door had to be replaced due to the Tenant installing a new lock. There is nothing in the replacement order or on the old door itself to confirm the door’s specific designation or under what circumstances the entire door must be replaced. No evidence was led about replacing the locking mechanism or the cost of doing so. The application related to this ground shall be dismissed.
4. The Landlord also filed an L8 regarding the installation of the locks. There is insufficient evidence that the addition of the chain lock is contrary to the RTA or the tenancy agreement. The Tenant did change the exterior lock without providing the Landlord a key. The Tenant has since provided a copy of the key to the exterior lock to the Landlord. As such, the order regarding the L8 application, will be for payment of the filing fee only."
______________________________
2.
Landlord's Self-Help Centre's position is that this qualifies as a violation of the RTA and provides some guidance for landlords on this issue:
"I gave 24-hour notice for scheduled maintenance, I couldn’t enter due to a chain lock, what can I do?
- It is an offence under the Residential Tenancies Act for a tenant to change the locks and bar the landlord’s access to the rental unit. A landlord may write a letter to the tenant requesting that the chain lock be removed. If the tenant does not comply, a landlord may contact the Rental Housing Enforcement Unit of the Ministry of Housing at 416-585-7214 or toll-free 1-888-772-9277. They can notify the tenant that he/she is committing an offence under the Act and can be fined."
"Our tenant has changed the locks to their unit, has not provided us with keys, and is preventing us from entering the unit by using a chain lock on the door. What can we do?
- It is an offence under the Residential Tenancies Act for a tenant to change the locks and bar the landlord’s access to the rental unit. A landlord may write a letter to the tenant requesting that the chain lock be removed. If the tenant does not comply, a landlord may contact the Rental Housing Enforcement Unit at the Ministry of Housing at 416-585-7214. They can notify the tenant that he or she is committing an offence under the Act and can be fined. Read more about the process at this link: https://www.ontario.ca/page/solve-disagreement-your-landlord-or-tenant
If that does not get the tenant’s attention, you can serve an N5 Notice to Terminate Tenancy. When you issue the N5, you have to be as detailed as possible when describing the issues and include dates and times for when the incidents are occurring. The N5 is a 20-day notice but the tenants have the first 7 days to correct the problems (by giving you keys or changing the lock back, in this case). If the problems are not corrected in 7 days, you can file an L2 application at the Landlord and Tenant Board to go to a hearing and ask for termination of the tenancy."
______________________________
3.
Steps to Justice / CLEO Legal Rights provides some guidance for tenants on this issue:
"If you are concerned about your safety or privacy in your home, you might want to change or add a lock. But the law says that you are not allowed to change or add a lock without your landlord's permission.
If you do, your landlord could ask the Landlord and Tenant Board to make you give your landlord a key, change the lock back, or pay to have it changed back. If you refuse, the Board can even evict you.
Also, you could be responsible if there is an emergency such as a flood, and damage is caused because your landlord can't get into your place.
If the landlord is not respecting your privacy, there are other ways to deal with it than changing your lock.
If you are worried about other people coming in or breaking in, you should ask your landlord to change the lock or to put a better lock on your doors."
Disclaimer:
You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.
Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.
No comments:
Post a Comment