RTA section 27 requires 24 hours' written notices of entry between 8 am and 8 pm for specified reasons for entering the rental unit, but not for entering common areas.
LTB Interpretation Guideline 6 ("Tenant Rights") also states:
"A landlord does not need to serve the tenant with a notice of entry to enter common areas like hallways in apartment buildings or kitchens in rooming houses: TET-59931-15-RV (Re), 2016 CanLII 38298 (ON LTB), CET-52759-15 (Re), 2015 CanLII 92967 (ON LTB), TEL-74345-16 (Re), 2017 CanLII 49018 (ON LTB), SWL-83420-15 (Re), 2016 CanLII 44349 (ON LTB)."
So the answer to this question lies in whether or not the yard is part of the rental unit. If the yard is in the tenant's exclusive use and is part of the rental unit, the landlord has to respect RTA sections 25 ("privacy"), 26 ("entry without notice") and 27 ("entry without notice") in regards to that area.
The status of the yard should be specified in the tenancy agreement (which could be written, verbal or implied, see RTA section 2).
Let's look at some rulings:
"11. It is not unlawful for the Landlord to take pictures of the outside premises. However, the Landlords are required to provide written notice in accordance to section 27 of the Residential Tenancies Act, 2006 (the ‘Act’) to enter the rented premises which includes entering onto the grounds. The grounds are part of the rented premises. It is reasonable to expect that a landlord cannot use the grounds for purposes that have not been set out under the terms of the tenancy agreement."
"50. Although AG provided a rationale for his crossing the Tenants’ backyard to check on a neighbor, he did not have a satisfactory explanation for stopping to take a photograph of the Tenant’s trampoline.
51. In determining the appropriate remedy for these illegal entries, I have given consideration to the reasoning by the Divisional Court’s decision in Wrona v. Toronto Community Housing Corporation (January 24, 2007) Toronto Docket No. 374/06, [2007] O.J. No. 423 (Div.Ct.). That case involved a history or pattern of illegal entry, the giving of notices not in compliance with the Act, and a tenant who acquiesced to illegal entries. The Court ordered an abatement of $1,000.00.
52. In this case there was only one entry to the interior of the rental premises. However, there was sufficient intrusion into the backyard that the police advised the Tenants to install a surveillance camera which resulted in the Tenants’ discovery that AG entered their yard and took a photograph of their trampoline."
"13. In an instance such as this the appropriate remedy would be to order the landlord not to enter the rental unit or the back yard without giving lawful notice, however as the Tenant and her family have already vacated, I find that the Landlords unlawfully entered the backyard on two occasions but did not actually gain entry to interior of the rental unit therefore there was no illegal entry there.
14. The Tenant is entitled to nominal abatement of 1 day’s rent for two unlawful entries to the back yard. The lawful rent is 1750.00 the per diem is $59.65. The total amount the Tenant is entitled to receive is $119.30. "
"26. The Tenants testified that the Landlord illegally entered their yard on July 23, 2017. They said they were having a barbeque and the Landlord’s entry interfered with the reasonable enjoyment of themselves and their guests.
27. The Landlord did not deny coming onto the Tenants’ yard on this date and said he was merely trying to have a conversation on this date.
28. The Landlord breached section 27 of the Act by failing to provide the Tenants with notice of entry. The impact to the Tenants was minimal in this case, therefore an abatement is not appropriate."
"The Issue Concerning the Backyard
2. Although this application raises a number of issues, the primary dispute between the parties concerns whether or not the enclosed yard beside and behind the residential complex constitutes part of unit 1 or not. The Tenants take the position that these areas are part of the rental unit and therefore the Landlord cannot use them for its own purposes and must give proper notice of entry if it wishes to enter onto the grounds. The Landlord takes the position that the disputed areas should be considered analogous to exclusive use common areas as is the case in condominium complexes.
3. According to the Tenant who testified before me, when the unit was originally rented it was understood between the previous landlord and the Tenants that the exterior back and gated side entrance were for the exclusive use of the Tenants of unit 1. The Tenants entered into evidence the original advertisement for the rental unit that was posted by the previous landlord. It describes the unit, the number of bathrooms and bedrooms and says: “walkout to Deck/Garden (Exclusive Use)”. Unlike most yards the one at issue here is locked with a gate and cannot be accessed by anyone without a key. Unit 1 is also the only unit with a door leading out to the yard. It occupies the first floor of the building and the basement; the main bedroom has an exterior door exiting directly into the backyard.
4. The Tenants also entered into evidence an e-mail from the agent who represented the previous landlord confirming that the Landlord’s agent was told during negotiations that the tenancy agreement for unit 1 included a provision whereby the yard and shed were for the exclusive use of the Tenants. They also provided an e-mail from the previous landlord from before the sale wherein she gave notice that she was planning on entering the yard, the shed in the backyard, and the furnace room. According to the Landlord’s representative and Witness the Landlord was never told during the sale that the disputed areas were part of the rental unit and not to be accessed without proper notice; however, the e-mails filed show that the new Landlord did recognise the areas were for the Tenants’ “exclusive use” but disputed what that meant in terms of rights to access and notice.
5. As the previous landlord was not called as a witness by either party and as the Tenants’ evidence was substantiated by the original advertisement for the unit, I accept their evidence that when the tenancy agreement was entered into the Tenants were told that the yard and side areas were for their exclusive use. I also accept that until the property was sold that meant the Tenants were routinely given notice of entry whenever the previous landlord needed to access the areas in question. I say this even though the original lease is silent on the issue because it is not unusual in residential tenancies for a written lease to be silent on some aspect of the agreement between the parties. In fact section 202 of the Residential Tenancies Act, 2006 (the 'Act') explicitly addresses the idea that the terms of a written lease should not be determinative in any dispute. It says: “In making findings on an application, the Board shall ascertain the real substance of all transactions and activities … and in doing so … may disregard the outward form of a transaction… and… may have regard to the pattern of activities relating to the residential complex or the rental unit.”
6. The definition of “landlord” under subsection 2(1) of the Act includes “successors in title” and section 18 says covenants run with the land. What these provisions mean is that when the property was sold the Landlord stepped into the shoes of the previous owner with respect to the tenancy agreement and was bound by its terms.
7. So the issue that must be addressed is what rights did the respective parties have regarding the disputed areas under the Act, given the fact that the tenancy agreement gave the Tenants’ exclusive possession of them?
8. The definition of “rental unit” in subsection 2(1) of the Act “means any living accommodation used or intended for use as rented residential premise” and includes a site for a mobile home and a room in a rooming house. As the definition of rental unit includes a “site for a mobile home” it is not apparent or obvious that just because an area is outside walls rather than inside means that it is not a part of the rental unit. This distinguishes rental units from the normal situation in condominium complexes where there is a clear demarcation in ownership and rights based on what is inside the walls and what is outside. In condominium corporations it is not unusual for a roof deck or balcony to be for the “exclusive use” of an owner, but the area itself is actually owned by the condominium corporation which thereby has rights of access by virtue of being the owner of those areas.
9. Given the definition of “rental unit” in the Act, I do not believe the situation here is analogous to that of balconies or roof tops in condominium complexes. Rather what the definition means is that “rental unit” includes any areas intended by the parties to be used for residential purposes. As cooking, entertaining and relaxing are all normal parts of residential activities and those things can be done in a yard as well as inside, I see no immediate reason for accepting the Landlord’s proposition that the disputed area in question here should not be considered part of the rental unit.
10. In the Act the definition of “rental unit” is different from that of “residential complex”. “Residential complex” is the phrase used to describe the entire building and grounds including the rental units within it. Subsection 2(1) says “residential complex” “means a building or related group of buildings in which one or more rental units are located, a mobile home park or land lease community, a site that is a rental unit, a care home, and includes all common areas and services and facilities available for the use of its residents.” [Emphasis added.] In other words, all rental units are part of and included in the definition of residential complex, but something can be part of the residential complex and yet not a part of any rental unit. This is particularly important in the context of this application because the privacy provisions of the Act only refer to the “rental unit” but contain no restrictions with respect to a landlord’s right to access the “residential complex”.
11. One of the things that the Landlord’s Witness said during the hearing was that she had discussed the status of the disputed areas with the real estate agent who had represented the Landlord during the purchase and sale and that he had agreed with her that the proposition put forward by the Tenants was “silly”. I took this to be a submission that the Tenants’ position was so impractical in its implications that the Act should not be interpreted in a manner that created an absurdity. Now it seems to me that if the area in question had not been gated and locked as was the case here then that argument might have some merit. In that situation the area would probably constitute a common area or facility as anyone could access it at any time and it would be impractical for anyone to try and claim exclusive possession of it regardless of an agreement to the contrary. However, that is not the case here. As the area in question is securely locked it would not be absurd in any way for the Board to find that it constitutes part of the rental unit. In addition, in this case the Landlord and Tenants both agreed that the disputed areas were not “common areas…available for the use of residents” because only the occupants of unit 1 were supposed to have use of the yard.
12. As the disputed areas are not common areas, services or facilities but are indisputably part of the residential complex the logical result is that they must be part of the rental unit. As a result of all of the above, I accept the Tenants’ argument that the exterior areas like the back yard, walkway and shed were included in their tenancy agreement and comprised part of rental unit 1.
Illegal Entry
13. The necessary result that flows from this conclusion is that every time the Landlord’s representative and Witness entered the disputed areas without proper notice as required under section 25 of the Act, they were in breach of their legal obligations. There was really no dispute between the parties that entry without notice occurred a number of times and that the Tenants routinely asserted their right to notice of entry. Nor was there really any dispute that the Landlord felt that the Tenants should not have exclusive possession of the backyard despite any agreement to the contrary.
14. On January 26, 2011 the Tenant who appeared before me was woken by the Landlord’s representative who was in the backyard showing it to a prospective tenant who was considering renting unit 3 when it became available. Access to the backyard was being offered to the prospective tenant as part of the tenancy agreement. The Tenants then wrote to the Landlord’s Witness, who is one of the owners of the corporate Landlord, and explained the backyard and shed were included in their tenancy agreement. They provided her with a copy of the original advertisement and referred her to the real estate agent involved in the original lease negotiation. She wrote back saying she would “try her best” to give notice in advance and that she did not have to access the backyard at all to do yard work if the Tenants wanted “to hire a landscape professional and pay for it”.
15. This uneasy state of affairs worsened in the spring when the Landlord’s representative started storing his bicycle inside the locked garden gate along the path leading from the front into the backyard. The Tenants suggested alternative places where the bike could be stored like in front of the residential complex attached to a pole, or under the stairs. Nonetheless the Landlord’s representative entered the locked gate at the side of the residential complex to leave his bike inside on a daily basis between May 18, 2011 and the end of June or July 1, 2011. According to the Tenants this was an unwelcome intrusion because the side walkway had windows looking directly into their unit and the opening of the gate was somewhat noisy. On May 20, 26, 28, June 14, 2011 the Tenants sent e-mails asking the Landlord to stop leaving the bicycle behind the gate. In return the Landlord’s Witness made vague promises to move it but did not. On or about June 7, 2011 the first-named Tenant confronted the Landlord’s representative about his presence in the backyard who stated that if the Tenants did not stop complaining about it he would remove the gate so anyone could access it. Then on June 29, 2011 the Landlord’s representative opened the gate to store his bicycle on the walkway after 11 p.m. and woke one of the Tenants. They complained again and alleged in an e-mail they had called the police (which they did not in fact do). After that the Landlord’s representative moved his bicycle to one of the places suggested by the Tenants: namely, the area under the stairs which leads to one of the entrances to the residential complex.
16. That being said, the problem with the Landlord’s agents repeatedly entering the backyard continued. On July 31, 2011 the Landlord’s Witness sent the Tenant who appeared before me a long e-mail detailing her position about the many issues concerning the tenancy that had arisen by that point in time. It stated in part: “Just to clarify the backyard for the future: it is not officially yours and it is not included in the lease, you can use it because there is nobody else except you who would wish to use it but I am not considering it part of your apartment… I am not open for discussion re this issue…”
[...]
42. In terms of the illegal entries it was the evidence before me that dozens of illegal entries occurred during the period in question. As a result, the tenants are entitled to abatement of the rent. I say this because abatement is designed to address the idea that I a tenant is paying rent in exchange for a bundle of goods and services and does not receive everything being paid for then the tenant is entitled to rent abatement in proportion to the difference between what is being paid for and what is being received. Here the Tenants were paying for a private backyard and side entrance and were not getting it so abatement should be awarded.
43. In terms of quantum, the Tenants acknowledged in their submissions that the entries that occurred into the backyard and side area were not as intrusive as an entry into the interior living space would have been. That being said the entries were intrusive particularly during the period when the Landlord’s representative entered daily to leave and collect his bike. The side area where the Landlord originally left the bike has windows that did not have blinds or curtains because the space was supposed to be private. The Tenants could clearly see and hear the Landlord’s representative pass by those windows and photographed him doing so. In August, 2011 the Landlord not only entered the backyard repeatedly to access the shed but left used toilets, parts and debris lying around. Sometimes the Board will determine quantum by looking at the number of entries and assess a percentage of the rent as abatement for each illegal entry. Here, the breaches were so frequent as to be almost on-going and certainly the impact of the breaches was felt by the Tenants in terms of lingering nervousness during the entire period as they never knew when the Landlord would walk in or not. As a result, I am of the view that the appropriate abatement of the rent should cover the entire period of January 26, 2011 to August 31, 2011. However, the entries only occurred with respect to unit 1 and had nothing to do with unit 3 so the abatement should be calculated solely on the rent charged for unit 1. In terms of percentage, because the rest of the rental unit was usable at all times it seems to me that a reasonable abatement of rent would be 5% of the rent charged or:
• For the period up to May 31, 2011 (because the rent increased effective June 1): 5% x ($1,686.28 x 12 months/year ÷ 365 days/year x 125 days) = $346.50; and
• For the period June 1 to August 31, 2011: 5% x ($1,698.08 x 12 months/year ÷ 365 days/year x 92 days) = $256.81;
• For a total of $603.31."
"12. The Landlord attended the rental unit without written notice on June 5, 2015 to burn items in the yard. The Landlord re-attended the rental unit again notice in mid June 2015 to temporarily hide a Honda in the yard because of “family issues”.
13. The Landlord attended the rental unit without notice yet again on September 15, 2015 with the Fire Chief. The Landlord’s girlfriend remained at the rental unit with the Tenants during the time period that the Landlord left to purchase smoke detectors.
14. The Landlord’s repeated attendance at the rental unit without written proper notice was illegal.
15. The Landlord’s continued breach of subsection 27(1) of the act and the Landlord’s unannounced presence substantially interfered with the Tenants’ reasonable enjoyment of their rental unit."
"Yard Work
43. For example, the application complains that the second-named Landlord was always around on the property doing yard work.
44. Regardless of how the Tenant felt about it, this is not a breach of the privacy provisions of the Act. The provisions refer only to the “rental unit” and not the residential complex. So they only apply to the rental unit.
45. Here, the rental unit was the upper levels of the house the Tenant had exclusive possession of. As part of the tenancy agreement included the first-named Landlord living occasionally in the basement, the Tenant did not have exclusive possession of the entirety of the home including the yard and exterior areas. These common areas form part of the residential complex but not the rental unit. So the second-named Landlord was free to do yard work and exterior maintenance and the Landlords were not obligated to give notice to the Tenant when he did."
"Gardens
The Tenants testified that at some point during the tenancy it was agreed that the Landlord would care for the flower gardens and the Tenants would cut the grass. The Landlord said that she was responding to complaints from the neighbours that the property was not being properly cared for. In any event because the Landlord now had the care of the gardens she began to come to the property unannounced to work in the yard. The Tenants resented this; they believed that they had the right to notice and further understood notice to be more in the nature of a request for access that they had the right to refuse. On one occasion when the Landlord came the police were called."
"Illegal entry
8. The Tenants testified that TN illegally entered the backyard on or about July 10, 2017 and destroyed their vegetable garden by removing the fabric under the soil, surrounding rocks and damaging their plants. The Tenant submitted photos to support this testimony.
9. The Tenants also testified that TN is responsible for grass cutting however he came into the backyard on August 16, 2017 and rode around on the riding mower but was not cutting the grass and instead watching the Tenants. The Tenants said no notice was given.
10. TN did not deny interfering with the Tenants’ garden and said the backyard was not included as part of the tenancy and that a farm was where vegetables are grown. He said that he told the Tenants that the rain water was entering the basement because the garden was too close to the window. TN said the Tenants were only permitted to use the deck but not the grass. TN also said he was cutting the grass on August 16, 2017.
11. Subsection 2(1) of the Act defines rental unit as any living accommodation used or intended for use as rented residential premises.
12. Section 27 of the Act provides that a landlord may enter a rental unit in accordance with written notice given at least 24 hours prior to entry. Section 26 of the Act permits entry without notice in cases of emergency.
13. The Landlords illegally entered the residential complex on or about July 10, 2017 and interfered with the Tenants’ garden. The evidence supports a finding that the Tenants were permitted the use of the backyard as part of their tenancy. There are two text messages dated June 13 and June 17, 2017 from TN in which he objects to the Tenants’ garden. TN does not state that the Tenants are not permitted to use the backyard but only objects to the garden.
14. The Tenants claim the costs for their damaged plants of $42.88 and provided a receipt dated June 2, 2017 to support the amount paid. The Tenants are entitled to the amount claimed.
15. There was insufficient evidence to establish illegal entry regarding the August 16th incident. The Tenants did not provide details regarding the arrangement between the parties regarding grass cutting and I am not convinced that TN was not cutting the grass and instead riding around on the lawn mower."
"The Incident of October 9, 2013, and the Disputes About Entry
43. One thing that flows from the finding above that the Landlord was responsible for exterior maintenance is that the Landlord had no obligation to give the Tenants notice of entry when doing yard work. This is because the privacy provisions found in sections 25 to 27 of the Act only apply to entries into the “rental unit”. They do not apply to the rest of the residential complex.
44. Here the Tenants had “exclusive use” of the yards as against the other tenants in the basement, but the exterior grounds were un-gated, unlocked and easily accessible, and the Landlord was responsible for maintaining them. As a result, the Tenants did not have exclusive possession of those areas as against the Landlord; they did not form part of the rental unit; rather they were part of the residential complex as that term is defined in s. 2(1) and the Landlord had no obligation to provide notice prior to doing lawn work."
"The Landlord shall only enter the rental unit or the backyard intended for the Tenants’ exclusive use when it is genuinely required and she must first serve a written notice of entry in accordance with section 27 of the Act except in an emergency or if the Tenants consent to the entry."
"78. The privacy provisions in the Act are found in sections 25, 26 and 27. For my purposes here it is important to note that these provisions refer to the rental unit; they do not refer to the residential complex. So tenants have privacy rights with respect to the rental unit itself but not for other areas of the property.
79. A number of the allegations in the Tenant’s application involve the Landlord attending the property to do lawn work. This activity on the part of the Landlord occurred outside, so the question is whether or not the exterior grounds were part of the rental unit or part of the residential complex.
80. The definition of “residential complex” in the s. 2(1) of the Act defines residential complex to include “all common areas”.
81. There is actually no dispute here that the Landlord retained the right to use the garage on the property. He kept a car parked there. That means the Tenant did not in fact have exclusive use of the exterior grounds as the Landlord had to traverse some portion of them to reach the shared garage. In other words, the exterior grounds would appear to be part of the residential complex as they were “common areas” and not part of the rental unit.
82. As a result, I am not prepared to make a finding that the Landlord was obliged to give formal notice of entry pursuant to s. 27 of the Act when he went to the garage or to mow the lawns."
Other types of areas (boiler room, laundry room, kitchen, hallways, stairwells, garage, etc):
"Illegal Entry
14. This claim arises as a result of the Landlord, or their agents, entering the boiler room of the residential complex, without prior notice to the Tenant. Specifically, the Tenant states that the Landlord entered the boiler room on October 19, 2018 and on February 25, 2019. The question before the Board is whether the Landlord was required to provide notice of entry pursuant to s. 27 of the Act, when entering or accessing the boiler room.
15. The Landlord and the Tenant dispute what areas are contained within, and form a part of, the Tenant’s rental unit. The Tenant stated that the boiler room is part of his rental unit. The Landlord disputes this assertion and states that the boiler room is part of the common arears of the complex and does not form part of the Tenant’s renal unit. Neither party submitted the rental agreement to clarify the boundaries of the Tenant’s rental unit.
16. The evidence before the Board was that the boiler room contains the residential complex’s boiler and other equipment. It is located between the Tenant’s rental unit and the shared laundry room and can be accessed through locked doors at either end, leading into the Tenant’s kitchen and on the opposite end into the shared laundry room. There are also shelves within the boiler room that both the Landlord and the Tenant store their property on. The Tenant testified that as his kitchen door provides entry into the boiler room it must constitute part of his unit. The Landlord testified that he maintains access to the boiler room as this is necessary for maintenance and repair issues for the boiler/equipment. Having considered the evidence of the parties we find the evidence of the Landlord to be more reasonable as the boiler room contains equipment that would require access by the Landlord on a regular basis.
17. We are satisfied that the boiler room does not form part of the Tenant’s rental unit for their exclusive use and is in fact a common area of the residential complex. The Landlord’s entry into the boiler room therefore does not constitute illegal entry into the Tenant’s rental unit. This claim is dismissed."
"108. I would also point out at this juncture that the tenancy agreement between the parties was for shared common areas. The privacy provisions of the Act apply to the “rental unit” which in this case is the Tenant’s room. They do not apply to shared common areas like hallways in apartment buildings or kitchens in rooming houses. So even if it were true that the Landlords entered the kitchen of the residential complex after the Tenant left, that is not a breach of s. 25 of the Act."
"Illegal Entry
Section 25 of the Act provides that a landlord can only enter a rental unit in the circumstances described in sections 26-27 of the Act.
14. The Tenant alleged that the Landlord illegally entered part of her rental unit, specifically the laundry room. The Tenant also testified that the laundry room was shared with the Landlord who resides in the upper unit, as per their tenancy agreement. Both the Tenant and Landlord had access to the laundry through separate door entrances. The Tenant felt that her basket of clothing and/or belongings were slightly moved.
15. I do not find that the Landlord illegally entered her rental unit as the laundry was shared space. Under the terms of the tenancy agreement the Landlord was entitled to enter this shared space at his own discretion and without notice to the Tenant in order to access the laundry facilities. Further, in the event the Landlord did slightly move her clothing and/or belongings while he was in the laundry room there was not a significant impact upon the Tenant."
"The T2 Application – Illegal Entry
22. The Tenant says that KS routinely comes into the rental unit illegally and has done so since the Tenant moved in several years ago. The Tenant says this has happened hundreds of times over the years.
23. Based on the evidence before me, I am satisfied that the Landlord is not actually entering the rental unit, but is instead routinely inspecting the residential complex, and this is entirely within the restrictions of the Residential Tenancies Act, 20016 (the ‘Act’), and not a violation of section 25 of the act.
24. The Tenant’s actual complaint is that KS comes into the house and inspects the kitchen, hallways and stairwells. There was nothing in the Tenants application or testimony to suggest that KS routinely comes into the bedroom that the Tenant is renting.
25. The privacy provisions in sections 25, 26 and 27 of the Act are with respect to a “rental unit”. In a boarding house situation the “rental unit” is the bedroom rented by the Tenant. The shared areas are common areas and the privacy provisions do not apply.
26. Based on the evidence before me, the Landlord has not breached his responsibilities under the Act by frequently entering the residential complex. I am not satisfied that the Landlord is entering the Tenant’s rental unit and, as a result this portion of the Tenant’s application must be dismissed."
"17. Since the tenancy agreement permitted the Landlord to use part of the garage, and he arranged the entry with the Tenant, SB, in advance, I find that written notice for entry of the garage was not required and the Landlord’s entry of the shared garage area on April 28, 2015 did not constitute an illegal entry of the rental unit. No abatement or other remedy is warranted."
Does Opening the Door to a Rental Unit Count as Entering the Unit?
Even just opening the door to the rental unit qualifies as entering the unit:
"8. The Landlord did not deny unlocking the door and opening it. That is sufficient for a finding that the Landlord entered the rental unit. Once a landlord or their agent opens the door, they can see inside the rental unit.
9. The Landlord did not establish that this situation was an emergency. The Landlord gave no medical evidence regarding her gardening injury.
10. As there was no emergency and the Landlord did not give the Tenants 24 hours’ written notice of entry for August 18, 2018, I find that this entry into the unit was illegal, as it was not in accordance with either s.26 or s.27 of the Act."
"14. Based on the evidence adduced at the hearing, I find that the Landlords illegally entered the unit on November 4, 2016 and July 26, 2017. The Landlords did not provide the Tenants with proper notice to enter on November 4, 2016. I say this because the Landlords’ email of October 31, 2016 which was copied to the Tenants, speaks to entering the unit on November 3, 2016 and to co-ordinate the entry with the Tenants. There was insufficient evidence from the Landlords that there was any notice to the Tenants to enter the unit on November 4, 2016. The Landlords did not provide the Tenants with any notice that they would be checking the locks and opening the unit door on July 26, 2017. By opening the door, the Landlords have illegally entered the unit."
"15. At the hearing on January 6, 2017 SR testified that when he came home from work one day some time between July 1 and July 10, 2016, he noticed an envelope sticking out of the side of the rental unit door. SR testified that he could not pull the envelope out of the door without opening the door. SR testified that he videotaped himself attempting to pull the envelope out of the door. At the hearing SR showed a video recording of himself trying to pull an envelope out of the side of the rental unit door and not being able to pull it out because it is stuck. SR testified that he shot this video with his phone as soon as he came home and discovered the envelope sticking out of his door; he had not yet opened his door.
16. SR testified that after he shot the video he opened the unit door, retrieved the envelope, opened it and discovered that it was a notice from the Landlord for a different tenant in another unit.
17. SR submitted that the only reasonable conclusion is that an employee of the Landlord opened the rental unit door then placed the envelope and then closed and locked the door.
18. EN testified that in July 2016 notices to tenants were being served by the assistant building manager, who was new to the position at the time. EN testified that there are no mail slots in the tenants’ doors so notices are served by slipping them under the door or through the side of the door. EM testified that if the Landlord’s staff are unable to fit a document under the door or through the side of the door they will put it in the tenant’s mailbox. EM testified that the assistant building manager does not have keys to the tenants’ units but that she does have access to the keys.
19. The Tenants’ evidence with respect to this incident is direct. SR testified that he came home and saw the envelope sticking out of his door. SR’s video shows him trying unsuccessfully to pull it out. By contrast, the Landlord’s evidence on this point is indirect and circumstantial. The person who served the notice did not testify. EN testified as to what the staff are supposed to do. As the Tenants’ evidence is direct and bears directly on what happened with respect to this particular incident, I find the Tenants’ evidence to be stronger than the Landlord’s evidence. I am therefore satisfied, on a balance of probabilities, that SR came home one day in early July 2016 to find a notice stuck in his door. Given the video footage that shows how the document could not be pulled out of the door, it is more likely than not that the rental unit door was opened in order to put the document into it. I therefore find, on a balance of probabilities that an employee of the Landlord opened the rental unit door without giving written notice of entry.
20. As the Landlord’s staff opened the rental unit door without giving proper notice, the Landlord has illegally entered the unit, even if the Landlord’s staff did not step over the threshold. Once the unit door was opened, the Tenant’s privacy interests were engaged. The Landlord’s staff person was able to see inside the unit and had full access to the unit.
21. The entry in this case was nominal, in the sense that there was no evidence that the Landlord’s staff person did anything other than open the door, put a notice in the doorframe, and then close the door. The impact on the Tenants was minor. SR testified that he was upset that his door had been opened.
22. Based on the nature of the issue, my knowledge of similar cases at the Board, and the impact on the Tenants, I find that the Tenants are entitled to a lump sum rent abatement of $100.00 for the illegal entry."
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