I-Blawg – Homeowner’s Right to Self-Help Eviction
I-Blawg – On Homeowner’s Evicting Room Rental Occupants
Similar Questions About Cases Include:
- How can I evict roomer?
- Is a Sherriff required?
- Who has the right to possession?
- Is a court Order needed to evict?
- In a recent decision of the court Newman v. Glanville, 2019 the court seems to imply that where the Rental Tenancies Act (RTA) the Commercial Tenancies Act automatically applies. The inference taken by some is that a homeowner does not have a right to self-help evictions and can not evict a person renting a room in their home without getting an Order from the court and engaging a sheriff. While respecting the decision and the legal knowledge and experience of the court, this dicta sent my legal ‘spidey-senses’ into a frenzy.
THE SHORT ANSWER ... is YES. In this this author's opinion, landlords do have the right of self-help under the Trespass to Property Act after the tenant has been given reasonable notice to vacate. The RTA does not apply and, although this is controversial, the CTA does not apply. My reasoning is outlined here.
In legal theory all land belongs to the King. Derived from the feudal system whereby the King 'let' nobles have a section of land in exchange for fealty, money and soldiers in war. The nobles 'sub-let' the use of the land to others (peasants, knights etc.) The 'rights' are given as what is 'called' ownership in 'fee-simple' either 'joint-tenants' or 'tenants in common' depending on if the equity is 'merged' as in a husband and wife (all property jointly owned - both own 100% together) or property is owned as a kind of partnership - each owns 50%. Rights in land are numerous. The dominant paradigm is that of sticks bundle of rights – each stick being a right - like the right to cross over land, to minerals in the earth, harvest the crops, or the right to stay on the land. A person essentially ‘lets-to’ another one or more of those sticks. The rights to land are derived or granted by someone that holds those rights in a hierarchy of rights that leads back to the King. Such rights (rights in contract) can be rescinded, even arbitrarily, at the potential risk a later Judgement for damages to be sure, but rescinded all the same.
The idea of trespass is fundamental in English law. http://mn.gov/law-library-stat/archive//urlarchive/a101596.pdf . Historically, there was originally ‘trespass to property’ and ‘trespass to person’. The modern day assault and/or battery derives from these. This highlights the importance that the courts/society puts on the ‘quiet possession’ of your own property. The right to that property has been given indirectly by agreement with the King. It is no coincidence that the Trespass to Property Act requires someone to leave the property ‘immediately’ (with reasonable notice) when demanded to do so.
The legal cliche ‘a man’s home is his castle’ https://en.wikipedia.org/wiki/Castle_doctrine does have meaning and legal effect in English law. So, the power of a judge to separate a person from their property is circumspect and one which is only authorized by strict rule of law. The right of ‘self-help’ is sanctioned by law. The right to protect your person and property through the concept of self-defense is a valid and viable legal defence to assault for example. That includes the use of ‘reasonable’ minimal force. Of course, this is a very last resort and what is reasonable is fact specific, measured, in part, to the ‘good’ or ‘bad’ that results or could result. It is always very dicey to ‘take matters into your own hands’ and competent counsel will generally advise against doing so ... as do I ... emphatically. Better to call police to resolve the matter peacefully as is their duty.
Considering the preamble to the Canadian Constitution the ‘POGG’ (Peace, Order and Good Government) clause, the first priority for police is to ‘keep the peace and uphold the law’. In a potential conflict situation, the police ‘should’ remove the cause of the conflict and attempt to resolve the situation ‘civilly’. The matter is a civil one not of a criminal or even quasi-criminal nature. The person evicted can seek redress in a civil court and be compensated for by money. That is how civil matters are resolved.
It has been suggested that a boarder that is locked out (assuming reasonable notice) can use power tools to re-enter the home and retake possession. This is an absurdity and the law does not give effect to absurdities. https://en.wikipedia.org/wiki/Plain_meaning_rule . Remembering the law is seem-less and covers all situations, consider then if the homeowner then called the police. Could it be that the police would stand and watch the boarder drill holes in the door in order to affect entry? If what the boarder is doing is legal then they would have to no less than if the homeowner himself was drilling the holes.
The dicta derived in Newman v. Glanville, 2019 is not what it has been purported to be. The dicta has been taken to mean that the where the RTA does not apply, then the CTA applies. The conclusion derived from this is that a homeowner that rents a room must wait obtain an Order from the court before evicting such a 'roomer'. I do not consider this conclusion to be 'good' law.
It would appear that this conclusion is based on one statement in the Newman decision but the context is overlooked. First, the landlord was not a party to the action. It was a case against the police by the tenant. The judge based his verdict on the timing of the arrest of the tenant and made reference to the CTA as the default law that applied when the RTA did not. This is the crux of the error in law. The judge did not need to rely on the CTA to obtain reach the decision made because the TPA filled any gap left by the RTA. The judge made no inquiry regarding the legislative purpose of the CTA and so did not consider elements that would indicate the CTA did not apply.
According to the CTA ... the LL can distrain the TT's chattel.
It is because of that incongruency that it would appear the legislative intent was that homeowners renting a room are not covered by the CTA. The LL can not evict a roomer without notice even after 15 days rent unpaid or legally distrain the TT’s chattel as is stated in the CTA. The LL can, therefore, rely on the TPA and so can lock out a roomer with 'reasonable notice' for ANY reason. Once the notice is given and the reasonable time has past the TT then becomes a trespasser and can be removed. Reasonable would be such time as required to remove the chattel and vacate the premises 'immediately' after notice is given the Trespass to Property Act. If they try to re-enter by 'using power tools' the police will charge them with Trespass and/or B&E and if not then the homeowner can do so by laying a private 'information' with the local JP.
If asked, I would advise my clients of the Newman case dicta but clarify that it was the police that lost that case because they arrested the TT before the tenant was given notice to vacate and so made a false arrest. Regardless, the homeowner LL should act reasonably anyways as a matter of simple proper conduct but in the end the LL owner has a higher 'right' to the property and so can withdraw the 'equitable right' as tenant at any time.
On quick summary, and again, without the benefit of further research, and despite my respect for the court in Newman v. Glanville, 2019, I can not follow the line of argument that says that a homeowner can not evict a boarder ‘immediately’ with reasonable notice as per the Trespass Act. It goes against fundamental principles English common law of trespass, property law, the POGG preamble, the right of self-help and self-defense. A Superior Court judge can be wrong, that’s decided on appeal. I don’t believe the quoted case here should be seen as the definitive legal statement on this matter.