Can a Tenant Deny Realty Sale Showings of a Rental Unit During Covid 19?

A Tenant Holds a Right to Privacy Within a Rental Unit. A Landlord, Generally, Holds Limited Rights of Entry. The Rights of Entry Are Silent Regarding Health and Safety Risks That May be Present During a Pandemic Such as Covid19. In Unprecedented Circumstances Common Sense Should Prevail.
Other Questions About Landlord Tenant Issues Include:

  • Does a Tenant Have a Right to Deny Inspection of a Rental Unit Because of Covid19?
  • If I Am Self-Isolating Can My Landlord Inspect My Apartment?
  • Should a Landlord Avoid Inspecting a Rental Unit During Covid19?
  • Can a Tenant Deny Showings of a Rental Unit During Covid 19?
  • During Covid19 Is a Landlord Allowed to Show a Tenanted Unit?

A Helpful Guide On How to Determine the Best Approach for Handling Rental Unit Entry Concerns As Arising From Covid-19

Residential Tenancy Lease Document The Covid19 Crisis gives rise to many concerns, including legal issues with potential to instigate disputes, between landlords and tenants.  Among these concerns is the limited right of entry held by a landlord in accordance to section 25 through section 27 of the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, which provides for entry for purposes such as emergency, maintenance and repairs, inspection, or for showings to prospective tenants or prospective buyers when the landlord is selling the property.  The rights of entry are limited and conditional such as where a landlord, or realtor acting with authorization of a landlord, is required to provide twenty-four (24) hours notice of an intent to show the rental unit and whereas such a showing must scheduled for a time between 8:00am and 8:00pm.

However, with the above said, the concern arises whereas the various sections of the Residential Tenancies Act, 2006 which grant limited entry rights are silent in respect of the unique circumstances of serious health and safety risks arising from a pandemic such as Covid19.  Accordingly, it appears that law makers were without forethought and attention to the issue of a pandemic and thus how rights of entry are affected are unknown.  Furthermore, as the pandemic is unprecedented, and thus prior legal cases for reference are also absent from the law, it seems that a clear answer as to how rights of entry are affected remains, unfortunately, unknown.

While some landlords may take the position that the Residential Tenancies Act, 2006, provides for rights of entry, it is necessary to bear in mind that if a landlord pushed the issue to a Landlord Tenant Board hearing, which would currently be long delayed due to the current shut down of most operations of the Landlord Tenant Board as well as delays when the Landlord Tenant Board reopens and must deal with a deluge of backlogged matters, the Landlord Tenant Board will need to balance the rights of the landlord and tenant.  Although the Residential Tenancies Act, 2006 does appear to expressly provide certain rights of entry, and does so without expressly stating any exceptions allowing a tenant to deny access due to pandemic concerns, the Landlord Tenant Board will need to consider that the Charter of Rights and Freedoms is supremely paramount to all laws including the Residential Tenancies Act, 2006.  In particular, section 7 of the Charter provides that, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"; and accordingly, the right to security of the person per the Charter likely stands forefront to a right of entry per the Residential Tenancies Act, 2006.  Of course, while it is a legal technicality that a private landlord is without a duty to abide by the Charter, and thus a duty to refrain from breaching the Charter rights of a tenant, the Landlord Tenant Board is subject to making decisions per the Residential Tenancies Act, 2006, that do avoid breaching Charter rights.

Refrain From Contact
Performing Maintenance Only When Absolutely Necessary

It should go without saying that during the Covid19 crisis avoiding contact whenever possible is imperative for the health and safety of the landlord as well as tenant, among others.  Of course, various situations may still arise that do require some interaction.  When these situations do arise, follow the advice and guidance of health practitioners as to how to limit potential exposure and thereby how to best protect yourself and others.  Where direct interactions are absolutely necessary, take all appropriate precautions very seriously.

As the Covid19 crisis is unprecedented and little, if any, information is therefore available to confirm how the Landlord Tenant Board or appeal courts will decide these newly unique legal issues, clearly 'black and white' legal information is impossible to provide or obtain; thus using common sense appears as the best rule of thumb.  Accordingly, it seems logical that minor repairs and unimpairing maintenance issues should be postponed.  For serious issues genuinely requiring prompt attention, landlords should dispatch only contractors who understand and appreciate the severity of the coronavirus and who are taking, and will take, the appropriate precautions when entering the rental unit of a tenant.  Additionally, tenants should make every effort to appreciate that availability of certain services may be difficult for the landlord to obtain.  This effort should include the tenant avoiding presumptions.  For example, a tenant should appreciate that just because a type of service is listed as an essential service and is currently permitted to operate despite the Covid19 shutdown, such fails to mean that a landlord is able to reach and hire maintenance services in the same timely manner that would usually occur.

Other than genuinely necessary maintenance and urgent repair concerns, common sense dictates that interactions be avoided and that unless entry is crucially necessary, entry into a rental unit be avoided.  Furthermore, and while presently it appears that the law remains without a precedent decision of the Landlord Tenant Board, the recent injunction case to stop contractors hired by a condominium unit owner from performing renovation work due to concerns for other residents within the condominium complex appears to show that the justice system will favour the desire of residents to avoid health risks.  As was said in the case of York Condominium Corporation No. 419 v. Black, 2020 ONSC 2098:

[1]  I heard counsel for the applicant and Ms. Black at an urgent case conference this afternoon on very little notice. As set out in my initial endorsement:

[1]  The applicant condominium corporation sues for an order requiring the respondents to stop renovating their condominium unit. The condominium corporation asks for an urgent injunction prohibiting the respondents from having third party trades people attending in the building on an interim basis during the global COVID-19 pandemic. There is also an issue as to whether the renovations are being properly conducted in accordance with the condominium’s declaration, by-laws, and the applicable law.

[2]  This is a matter of great urgency. A majority of the condominium building’s residents are seniors.

.....

[5]  On consent therefore, the application is adjourned until June 1, 2020 to be spoken to. There will not be a full hearing that day. Rather, the case will be re-scheduled along with all of the other cases that are being deferred due to the pandemic.

[6]  As a term of this adjournment, the court orders, on consent, that the respondents allow no one to enter into their condominium unit until further order of the court. This order does not preclude the parties from authorizing entry upon the external patio and yard exclusive use common areas This order also does not apply to government first-responders who may enter the unit in the event of an emergency. If the applicant wishes to exercise a right to enter the unit, if it has such a right, then the parties are to attempt to reach agreeable terms for such a visit or seek a case conference with  judge to help them do so.

Avoiding Showings

Specific to realty showings, the Ontario Real Estate Association ("OREA") recently issued an urging to realtor members to stop showing tenanted properties wherein OREA specifically stated:

"The Ontario Real Estate Association (OREA) is urging Ontario’s REALTORS® to stop all face-to-face business, including open houses, agent and public office hours, and in-person showings, particularity of tenant-occupied homes, during the Province’s COVID-19 State of Emergency. In these unique situations, where a property listed for sale is occupied by tenants, the health and safety of those tenants, the Realtors and their clients is of utmost priority."
Source:  Ontario Real Estate Association

The Real Estate Council of Ontario ("RECO"), as governing body for realtors has echoed the sentiments of the Ontario Real Estate Association and has said:

"Tenant-occupied properties pose particular challenges. Though tenants and landlords have respective rights under the Residential Tenancies Act, administered by the Landlord and Tenant Board, particular attention must be paid to the tenant’s health and safety.
Though buyers may want to see the home in-person before committing, you could reduce the number of in-person showings required by asking buyers to assess their interest through virtual options first. If they remain interested, you could work out a plan to safely view the property. Viewings should only occur with the tenant’s consent, however."

Source:  Real Estate Council of Ontario

Similarly, and specific to inspections, among other things, the Government of Ontario is urging that landlords seek to enter a rental unit only where urgently necessary.  Specifically, the government says:

"During this unusual time, patience and understanding from landlords and tenants is necessary to help stop the spread of COVID-19. Landlords are encouraged to request entry only in urgent situations and to follow physical distancing guidelines."
Source:  Government of Ontario

Furthermore, it is reported that Rachel Widakdo as media relations spokesperson for the Ministry of Municipal Affairs and Housing, confirms the Ministry is denouncing showings of tenanted units during the current pandemic.  Specifically, it is reported that the Ministry said:

"No landlord should show a tenant-occupied unit that will put the health and safety of the tenant at risk. Landlords should put the safety of their tenants ahead of all other considerations. ... Immediate concerns and questions should be directed to the Ministry of Municipal Affairs and Housing’s Rental Housing Enforcement Unit at 1-888-772-9277."
Source:  The Lindsay Advocate

Summary Comment

In these unprecedented times, unprecedented issues are surely to arise.  Without clear law, whereas the laws are silent on addressing many of these 'never before events', it is unknown exactly how the law will address various issues when conflicts do arise.  In respect of balancing the rights of a tenant to feel safe and secure during a pandemic and the rights of limited entry held by a landlord, common sense suggests that the safety and security of the tenant will prevail.  Accordingly, it seems most reasonable, and therefore presumed and expected, that the law will, eventually when cases are heard, lean in favour of the tenant; and thus, it is suggested that landlords refrain from entry into tenanted units unless a genuine emergency exists or the tenant provides very clear consent.

Where the law, being both the statutory provisions within the Residential Tenancies Act, 2006 as well as the case law of prior decisions is silent or lacking on the issue of how entry concerns should be addressed during a pandemic, it seems reasonable that indicators should come from informed organizations as well as good old fashioned common sense.

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