Using the Indutsry Standard Notice to Enter a Rental Unit May be Costly to Landlords

In Wrona v. Toronto Community Housing Corporation, the landlord gave written notice it would be conducting annual smoke alarm checks in the tenant’s unit between 8:00 AM and 5 PM. It appears the notice was the industry standard notice. Mr. Wrona had permitted the agents to enter his apartment to carry out an annual inspection of smoke detector equipment.  The tenant filed an abatement application on the basis that the landlord’s entry to the unit was illegal because the notice gave too large a “window” for entry and should have been more specific as to time.

Who won? 

Here is what section 27(3) of the Residential Tenancies Act says:

Contents of notice

(3)  The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m.

Section 26 of the Residential Tenancies Act permits entry into a rental unit without notice where the tenant consents to the entry at the time. 

Entry without notice, emergency, consent

26.  (1)  A landlord may enter a rental unit at any time without written notice,

(a) in cases of emergency; or

(b) if the tenant consents to the entry at the time of entry.

The Ontario Rental Housing Tribunal found there was no illegal entry. The Tenant appealed.  The Divisional court agreed with the Tenant. 

The Court said the common sense reading of the language of the section requires the notice to specify a time of entry and not as was done here, a nine hour period within the window during which an entry would be made.  The Court went on to say that the notice provisions are drawn to protect the rights of the tenant and they cannot be waived (see section 3 of the Residential Tenancies Act.

The Court ordered the landlord to pay $1000.00 abatement as “compensation” plus $544.10 in costs.

 This decision is binding on Landlord and Tenant members. 

LESSON LEARNED:

1.    If you are giving written notice of entry under s. 27 of the Residential Tenancies Act you must be “reasonably” specific.  The decision makes it makes clear that the landlord is required to give notice providing as close to the exact time of entry as possible. The level of exactitude that will be required is unclear.  What is know is that neither “between 8 a.m. and 8 p.m.,” nor a nine nor six-hour window will be acceptable. While these may create problems in scheduling trades people it appears that, at most, a narrow window of time would be permitted.

2.    The amount of rent abatement is very substantial, especially in light of what appears to be a relatively technical breach of the statute. It was undisputed that the landlord did give notice and the tenant permitted the entry. The sizeable penalty underscores the importance of complying with the notice requirements.

3.    It is difficult to understand why the Court held that the tenant’s consent did not validate the entry. The Court did not refer to clause 20(1)(b) of the Tenant Protection Act (which was in effect at the time), now section 26(1)(b) of the Residential Tenancies Act, 2006, which specifically permits entry without notice “if the tenant consents to the entry at the time of entry.”