Is it illegal to evict someone who is incarcerated? and sell thier belongings?
Auction
I am a member of a board of directors for a housing Co-op in Ontario. Under our by-laws we had occasion to evict a member who had repeatedly broken them and following our procedures gave her an eviction notice. She appealed to the general membership under out procedures and her appeal was also defeated, but before her eviction date came she found herself incarcerated. We have given her two extensions on her eviction date in hopes she would gain the aid of some associates to remove her belongings from her unit…is has now been over two months and her unit is still full of furniture and clothing. We had given her until February 28 to remove her items and told her we would put them in storage until the time that the cost of storage reached the value of her items at which point we would sell them at public auction to recover our storage costs. Can we do this?
Answers see additional comments below.
You can do that and should have on the date you said you would.~
I’m not familiar with co-ops. I’m assuming that this wouldn’t fall under the purview of the Residential Tenancies Act?
This sort of conundrum is more common than you’d think, and there’s no straightforward answer in the law. (I earned myself a nice little reference letter from a legal aid supervisor in law school for a memorandum on exactly this question with the conclusion that “It’s bloody complicated and not entirely certain.”)
At common law, there’s a doctrine called “distress”, by which a landlord can seize and sell a tenant’s belongings to satisfy arrears.
But when you’re not talking about arrears, just about a tenant not clearing their stuff out, then you get into more complicated questions. Has the tenant ‘abandoned’ the goods? Maybe, maybe not. It’s very fact specific, but when the failure to collect the goods is based on incarceration, I’d lean towards “no”.
So what is your legal relationship in relation to the goods? The goods are a bailment; you are in custody of somebody else’s property, and you take certain obligations of care in respect of that property. You can’t destroy it, and disposing it can expose you to some risk as well.
Being an “involuntary bailee”, your obligations are somewhat less, and could probably dispose of the goods with reasonable notice to the owner.
But what about the “Repair and Storage Liens Act”? Does that apply? That gives a bailee for compensation rights and obligations in respect of bailed goods, including a set process for disposing of the goods. And since an involuntary bailee can make a claim that they’re entitled to compensation by virtue of having cared for the goods, does that move the involuntary bailee out of the realm of “gratuitous bailee” and into the realm of “bailee for compensation”?
I’m not sure the RSLA applies to involuntary bailments. There was conflicting case law, last I checked. But if I were in such a position, I would immediately start planning the sale. I would give notice that would be sufficient under the RSLA that I intended to auction the goods off if the owner didn’t collect them, providing payment for any costs incurred to date in respect of the goods.
Tricky issue. Good luck.