Should a Landlord Provide a Notice of Entry With Some Indication of a Time?

A Landlord Is Required to Provide a Tenant With a Reasonable Window of Time For When the Landlord or Agent of the Landlord Will Enter a Unit.

Understanding the Requirements of Proper Notice of Entry As Required Prior to Entry Into a Rental Unit By a Landlord

Residential Lease Document The world is a busy place where, generally, people lead very busy lives with daily tasks and schedules. Accordingly, when a landlord or others acting for the landlord, such as a superintendent or maintenance workers, among others, including perhaps a real estate agent needing to show the rental unit, need access to the rental unit, the landlord is required to provide at least twenty-four (24) hours advance notice of a reasonable timeframe that the entry will occur. Furthermore, the entry must happen within the twelve (12) hour period between 8:00AM and 8:00PM.

The right of entry, and the notice duties required in advance of entry, are prescribed within section 27 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 which also provides the condition that the entry must occur between 8:00AM and 8:00PM; however, the Residential Tenancies Act, 2006 is silent about whether the landlord may provide a broad notice that entry will occur at some point during the 8:00AM to 8:00PM period.  Specifically, section 27 says:

27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:

1. To carry out a repair or replacement or do work in the rental unit.

2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.

3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.

4. To carry out an inspection of the rental unit, if,

i. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and

ii. it is reasonable to carry out the inspection.

5. For any other reasonable reason for entry specified in the tenancy agreement.

(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit.

(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.

Whereas the statute law, being the Residential Tenancies Act, 2006 is silent, meaning lacking details, about whether a specific window of time during the 8:00AM to 8:00PM period is necessary, the common law, being previous legal decisions, provides the answer per the case of Wrona v. Toronto Community Housing Corporation, 2007 CanLII 3228 wherein it was stated:

[3]  In order to obtain entry, the landlord was required to give Mr. Wrona written notice pursuant to s.21 of the TPA.  Section 21(2) of the TPA states in part that the notice “… shall specify the reason for entry, the date of entry and a time of entry between the hours of 8:00 a.m. and 8:00 p.m.”  In our opinion, a common sense reading of the language of ss.2 requires the notice to specify a time of entry within the twelve hour window, not as was done here, a nine hour period within the window during which an entry would be made.

[4]  In that regard, we agree with the finding of Member Graham of the Tribunal in his Decision in file #TNT-04362, a proceeding between these same parties that:

I do not accept that a landlord is required to specify the exact hour and minute of a required entry into a rental unit and although the hours of entry set out in this notice are clearly between 8:00 a.m. and 8:00 p.m., I do not find that a six-hour entry period complies with the requirement that the Landlord specify a time of entry between 8:00 a.m. and 8:00 p.m.

Accordingly, per section 27(3) of the Residential Tenancies Act, 2006 as well as the Wrona case, generally, a landlord is required to provide notice of entry with reasons for the entry and reasonable window of time for the entry within the hours of 8:00AM and 8:00PM.

Yard Area

Where a "rental unit" includes yard areas, among other features, such as a garden, pool, shed, among other things, a landlord is required to provide proper notice of entry just the same as when the landlord intends to enter the structural living space.  Such a duty arise whereas the "rental unit" is defined within the Residential Tenancies Act, 2006 in such a manner as to comprise of the entire area of the rented premise that is intended for the exclusive residential use of the tenant.  Such was well stated in the case of P.S., et al v. LandlordTST-18802-11 (Re), 2012 CanLII 36291, it was said:

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.

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.

Summary Comment

For various reasons, a landlord may issue a Notice of Entry providing 24 hour notice of intent to enter the unit of a tenant.  The landlord, unless an emergency or other rare exception, must enter a unit between 8:00AM and 8:00PM; however, the twelve (12) hour period for entry within which a landlord may enter is without an entitlement for the landlord to simply state that the entry will occur at some point during that period.  A landlord is required to provide a reasonable window of the time within which the entry will take place.

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Notice of Entry

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