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One Man's Trash Is Another Man's Treasure

When Is It Ok To Remove Goods Left Behind by a Former Commercial Tenant?

Sometimes a landlord might find personal belongings – goods, equipment or inventory (aka chattels) left behind in their commercial unit after a tenant has vacated, whether at the legitimate end-date of their lease, as part of a “midnight move” or because of a landlord’s termination for rental arrears. Understandably, the landlord and property manager will want to clear and re-rent the premises as quickly as possible. But before that happens, there remains a legal burden on the landlord to be certain that the tenant has given up any claim to the items left behind. Otherwise the landlord may face the legalities of “Conversion.”

Conversion and Abandonment of Property

Typically, when a landlord is accused of conversion it is because they “jumped the gun” and disposed of or liquidated the tenant’s chattels in opposition to the rightful owner’s wishes. The landlord will predictably defend these actions by saying the subject items were “abandoned.” But assuming they were abandoned is not enough. Court precedent states that:

“the party relying on the Defense of Abandonment bears the onus of proof and must demonstrate that the owner intended to abandon their property.”[1]

The Tenant’s Options

If a tenant vacates a property and is then prevented from re-entering in order to remove their chattels immediately after vacating, they will have to be diligent in asserting their right of ownership. This is done by communicating clearly, often, and preferably in writing, the desire to retrieve the items. The vacated ex-tenant must describe each item and state its value along with when and how they intend to reclaim them.

Time is of the essence. The ex-tenant must contact the landlord, the landlord’s agent, or the landlord’s bailiff as soon as possible to communicate the intention to retrieve the items. An even better alternative would be for the tenant to remove the items prior to, or at the moment of departure. If that is not possible, they should place notes of possession and intent to return on each item, photograph them and schedule/announce a return visit as quickly as possible.

The Landlord’s Obligations

Before any actions of liquidation/sale take place, the landlord must:

  • Take inventory of and photograph the chattels in question.
  • Move and store them if necessary. (If the items can remain where they are for a short period until the ex-tenant returns for pickup, this will help avoid the trouble and expense of moving and storage.)
  • Prepare and deliver written notice that identifies the items, and states clearly and reasonably the time frame allowed for them to be retrieved.
  • Provide as many points of contact as possible, such as phone number, text/SMS, email, social media addresses, and postal mailing address.
  • Send a second and then Final Notice to the ex-tenant with a minimum additional 5 days for them to respond after the prior notice has expired.

Court Precedent

In previous case law, some of the determining factors as to whether an item is “abandoned” or not have been:

  • Passage of time
  • Nature of the transaction
  • Parties’ conduct
  • Nature and value of item

The most important thing for a landlord to keep in mind is that the action of leaving by a tenant should never be interpreted as carte blanche for a landlord to take possession of and liquidate the goods. There are many conditions that should be met, and it is advisable that the landlord obtain advice from a lawyer or qualified bailiff before any action is taken, and ideally well before anything, such as a “midnight move” occurs.

[1] 1083994 Ontario v. Kotsopoulos 2012ONCA 143

WHAT IS AN ONTARIO BAILIFF?

There are two types of bailiffs in Ontario

  1. Provincial Correctional Service Bailiffs who escort prisoners, and
  2. private sector bailiffs.

Napier Bailiffs Ltd. is a private corporate Civil Enforcement Agency appointed by the Ontario Government to act on behalf of business, individuals, or municipalities to seize or repossess property and Commercial Landlords to evict Tenants. Pursuant to regulations within the Personal Property Security Act, Repair Storage Lien Act, Commercial Tenancies Act and Municipal Tax Act.

DISCLAIMER: We are not a law firm, the information provided is not intended to substitute for legal advice. Always seek appropriate legal counsel for your unique circumstances.


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