Can A Tenant Or Concierge Refuse A Showing?

Business | June 12, 2020


You’re in the middle of a pandemic.

You have two small children, and you and your partner both work from home.

Your landlord calls you and says, “The house is going up for sale, and we’re going to have people through; probably a lot of contractors/builders/renovators who will walk the lot, and will want to check out the layout on the inside.”

What do you do?

Well, I told a client of mine, “Explain to your landlord that we’re in the middle of a pandemic, and that you don’t want construction workers trudging through your home.”

Yeah, I know I’m insinuating that construction workers are somehow dirty or dirtier than John & Jane Buyer, but, well, they are.  Two guys wearing muddy boots, drywall-dusted plaid jackets, greasy fingers, maybe even reeking of cigarettes, who knows.  I type-cast, I’ll admit.  But I do this because I’m taking the side of my client, and trying to win an argument.

Do you want these guys trekking through your house every day, during a pandemic?

My clients didn’t.  And they told their landlord exactly that.

With their lease coming to an end shortly, there was no real reason why the landlord couldn’t wait, and have unfettered access to the home, with nobody to bother, and nobody to potentially get sick.

Since the state of emergency was declared on March 17th, there’s been no shortage of discussions about access to properties, specifically when access should be allowed, what precautions should be taken, and what process the parties should put in place and follow.

In late-March, some brokerages were not allowing any in-person showings at all!  Viewings were all “virtual” and offers were conditional upon viewing.

As COVID has slowed down, as panic has declined, and as agents have been diligent in providing hand sanitizer, masks, and gloves at properties, and ensuring there are no double-bookings on showings, access has been made easier.

But what about tenanted properties?

What rights to tenants have?

And what about condominium management?  Can they “ban” showings in a certain building?

Before I give you my two cents, here’s a letter that the President of the Ontario Real Estate Association sent out to our members this week:

 


 

Hi David,

At OREA we are working hard to provide Members with the information they need to transact safely during this COVID-19 State of Emergency.

As part of our We Have Your Back – COVID-19 Relief Plan, OREA has provided members with guidance on the use of videographers and other real estate services, open houses, virtual open houses, in-person business and most recently guidance on real estate transactions during stage one of Ontario’s re-opening.

On that note, I want to share with you a recent legal opinion OREA has obtained on real estate showings.

Are Real Estate Showings Prohibited in Condominiums or Tenanted Properties?

It was recently brought to our attention that certain condominium buildings are refusing to permit real estate showings of listed properties.

Let’s be clear. Members should endeavour to use digital tools and remote interaction with clients wherever possible. However, if needed, Members should know that there are simply no prohibitions in Ontario law, including the State of Emergency Orders, against in-person showings.

In order for private showings to proceed they must comply with all recommendations, advice, directives and instructions from public health officials (including local public health officials), especially with respect to physical distancing, use of personal protective equipment (such as masks and gloves), cleaning and disinfecting before and after the showing.

To help members navigate real estate transactions safely during stage one of Ontario’s re-opening of the provincial economy read OREA’s Guidance on Real Estate Transactions in Stage One of Ontario’s Framework for Reopening the Province.

Can a Tenant or Condo Manager Refuse a Showing?

Ontario’s Residential Tenancies Act, 2006 (the “RTA”) provides landlords the rights to enter the rental unit in certain circumstances when the landlord follows the procedures set out in the “RTA”.

Section 27(2) of the RTA provides that the landlord, or, with the landlord’s written authorization, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit provided that they have given written notice to the tenant at least 24 hours before they enter to allow a potential purchaser to view the unit.

In any case where at least 24 hours written notice has been given to the tenant, the written notice must set out:

• The reason for entry;

• The date the landlord will enter; and

• The time of entry between 8:00 a.m. and 8:00 p.m.

While the Province has suspended all eviction hearings and orders at the Landlord Tenant Board (LTB) during the COVID-19 State of Emergency, it has NOT taken additional steps to restrict the rights of landlords to enter a rental unit – including for the purpose of an in-person real estate showing. Landlords continue to be legally permitted to enter a unit for the purposes outlined under section 27(2) of the RTA.

OREA strongly encourages landlords and REALTORS® to work with their tenants to accommodate their needs, do virtual showings wherever possible and ensure they are not in the property during showings. No one with an underlying health condition should be forced to permit strangers into their home during the COVID-19 state of emergency. In these instances, it is critically important that REALTORS® work proactively and positively with tenants to accommodate their concerns around health and safety.

Where in-person showings are essential, REALTORS® should ensure that they along with their clients are wearing personal protective equipment, sanitizing surfaces after each showing, limiting the number of people in units and following all OREA’s guidelines for stage one real estate transactions.

REALTORS® should take every care not to put tenants at risk and to try and schedule showings to limit the amount of times people are going through the property. In particular, REALTORS® should work with landlords to get to know the tenant and if they have any underlying health issues.

There are, however, some limitations on the ability to do showings of properties REALTORS® should be aware of. They include but are not limited to the following:

• If the property is a condominium property, the owner of the property may be subject to condominium rules that prohibit real estate showings;

• The Landlord Tenant Board has specifically contemplated showings of tenanted properties and noted that landlords are strongly advised to follow the guidance of the Real Estate Council of Ontario (RECO) and avoid in-person showings;

• Even where there is permission pursuant to section 27(2) of the RTA, the Ontario Human Rights Code (HRC) still applies and requires accommodation for persons with disabilities. Persons with illnesses who could be endangered by an in-person showing should, in accordance with the Ontario HRC, be accommodated; and,

• Commercial, institutional and industrial tenancies have no specific permissions for landlords to conduct showings under the RTA and neither do owned or life lease residential properties.

If you have questions or comments about any of the above information please do not hesitate to reach out to me at President@orea.com.

Thank you and stay safe everyone.

Sincerely,

Sean Morrison
OREA President

 


 

So that is OREA’s stance on this, and as with any political statement, it provides a basic opinion and then scales it back with all kinds of qualifiers.

The bottom line is this: access is still permitted legally.  But practically, it’s not always going to be.

There will be tenants who refuse access.  And as I showed above, I’m all for it.  In some cases.

In others, I’m not.

Call me a hypocrite, but I’m doing my job, and looking after my clients, whether they’re buyers, sellers, or tenants.

I have a listing in downtown Toronto condo, and after a full month of preparation, including a massive renovation, we were set to list.

Then right as were about to go to market, property management emailed us to say that, “at this time, showings are not permitted.”

I was stunned.  Absolutely stunned!

How could this be?  Who made this decision?  How long had this been in effect, and what would have to transpire for this restriction to be lifted?

So I sent the property manager and the superintendent the following email:

 

Hi (Names)

I received the email below from the owners of Suite # (redacted) regarding real estate showings.

This news comes as a tremendous surprise and disappointment to (Owners Names) who own Suite # (redacted), and are preparing for a sale.

As an active agent in the downtown core, I can tell you that there are only a handful of buildings that have this no showing policy, and those are typically buildings by the waterfront with senior citizens as primary occupants.

There is nothing in the provincial emergency order that precludes condominiums from permitting real estate showings.  This has been confirmed by the Toronto Real Estate Board and the Ontario Real Estate Association.

Could you kindly provide some clarification?

Specifically:

1) Is the decision to not allow property showings in the building the decision of Royale Grande Property Management Ltd or the TSCC (redacted)’s Board of Directors?

2) Notwithstanding the above, is this a policy for all properties managed by Royale Grande Property Management Ltd.?

3) Unit #1538 was just listed for sale today with the note: “Easy To Show With Lockbox Located At Front Desk.”  Can you please clarify why this unit is permitted to conduct showings, but we are not?

Your help in this matter is greatly appreciated.

David.

And guess what?

The next day, the property manager called me and said, “Okay, we’ll let you do showings, but don’t tell anybody.”

WTF?

What is the policy in this building?

Is it possible that a squeaky-wheel like myself sent a stern email and they just backed down?

What if the next agent doesn’t follow up?  Will that agent be forced to wait until July or August?

The property manager couldn’t even tell me if the decision was the Board of Directors’ or not.  She didn’t know where the order had come from.  It seemed as though she was making it up on the spot.

She said, “I think we’re going to wait for the state of emergency to be lifted, but I don’t know.”

I would really, really hate to think that they’re running this building, and enforcing rules, on a case-by-case basis.

I am of the opinion that, provided buyers and agents will wear a mask and gloves, that a property owner should be permitted to list their property for sale, and have buyers and agents come into the building.

I understand that we’re in a pandemic and that these are tough times, people are sick and dying, and that precautions must be taken, but is it legal for a condominium, whether the Board of Directors, or the property manager, to “ban” real estate showings?

I don’t think it is.

What about banning dog-walkers, cleaners, and delivery-people?  Are there buildings that aren’t accepting Amazon packages?  Were there, say, in early-April?

Yup.  All of the above.

But whether or not any of this is “legal” is still up for debate, and I think ten real estate lawyers, ten human rights lawyers, and ten employment lawyers would give you thirty different explanations of their answers.

For now, there are tenants that are saying “no” to real estate showings.

And for now, there are still condominiums downtown that aren’t allowing any agents to show properties either.

There’s no rhyme or reason here; it’s all case-by-case, as we figure out, collectively as a society, how to move forward in this interesting new world…

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32 Comments

  1. jeanmarc

    at 7:06 am

    Basically called YMMV. OREA’s politically correct message is to cover their ass for any legal liabilities. Interesting how this topic was chosen for today’s discussion. I just looked at the listings in my area last night and noticed an open house (listed as a new build with tarion warranty) for tomorrow. On RECO’s website, it clearly states:

    Government of Ontario Update: Open houses prohibited
    Effective Saturday, April 4 at 11:59 p.m.
    “Every person who is responsible for a business that provides real estate agent services shall ensure that the business does not host, provide or support any open house events.”

    Any thoughts?

    1. David Fleming

      at 9:26 am

      @ jeanmarc

      No way, no how, no open houses.

      Cut and dry.

      I would be shocked to see an agent hosting a true “public” open house, Saturday/Sunday, 2-4pm. It’s been clearly banned by the real estate bodies.

      If you see a public open house, report them. I’m not one for narc’ing, but I take this seriously. Here’s the link: https://www.reco.on.ca/file-a-complaint-form/

    2. Adam

      at 9:38 am

      I don’t see why you couldn’t have an open house, as long as the people coming in had some form of ppe on. It would be easy to limit the people coming into the home, eg. 1 family at a time, lock the door behind you, the rest wait outside in a line like you do at every store these days. I went to a store yesterday that was like this. The other option is for the homeowner/realtor to provide the PPE so they know what the prospective buyers are wearing is sufficient. Beyond that, as long as you can still have scheduled showings, I don’t see this affecting the market drastically; as anyone truly serious about purchasing will likely go that route anyways.

    1. jeanmarc

      at 8:32 am

      Interesting. A friend of mine rents a property in Bradford and had no issues finding renters. Four potential renters lined up in less than one week all wanted to rent. Even bumped up the rent by $200.

      1. Jean John

        at 8:57 am

        Wow, rents are going up great news, if you’re sick in the head.

      1. jeanmarc

        at 8:50 am

        My friend has multiple properties (one in 416 as well). Never seem to have an issue finding renters. And that’s without using an agent. Must carry a horseshoe around 🙂

      2. J G

        at 9:06 am

        Yes it really depends on the rent. If you go a bit below market, you’ll have no problem getting tenants. But investors expect top dollar rent in their calculation, but if that doesn’t always happen.

    2. Caprice

      at 9:34 am

      The media keeps talking about falling rents, this doesn’t affect existing leases. Nobody is talking about the effect of recent interest rate drops. Those with variable/adjustable mortgages, are enjoying some nice extra cash flow or principal build-up. I’m in this boat and all my tenants are dutifully paying rent 😉

      1. J G

        at 10:19 am

        Keeps on talking about falling rent? How about just the last 2 months.

        Also, nobody ever talks about losing investments.

        During this entire pandemic, I don’t recall a SINGLE landlord poster who said they didn’t get their full rent (except for myself). I’m sure every bull on this site lost a grand total of $0 on rent received over the past 3 month, hehe.

      2. Appraiser

        at 5:14 pm

        Same boat here. In fact I have some long term tenants that are paying way below market rent and only one that is paying at peak. Existing landlords are mostly laughing and can’t wait for existing tenants to vacate.

        Bears have so little to cling to.

          1. Chris

            at 10:43 pm

            Both his and Scott Ingram’s quotes in that article are pretty reasonable. While the headline is “bear baiting” the article itself is more middle of the road.

            “Toronto real estate is suddenly doing very well at a time when few things are. Will it last for months and years? No one knows. Just as no one knows how long the pandemic itself will last.

            But, in the meantime, you’d better believe the rebound is real.”

            Sounds fair to me.

        1. J G

          at 6:39 pm

          Haha Appraiser, as soon as you bring rent to market value, people stop lining up to rent.

          You always push people to buy, have you bought any investment property yourself in last 12 months? Lol

          1. Fearless Freep

            at 1:01 am

            I’ve never bought an investment property. Because I can’t afford to. And I’ll never be able to afford to. Guess that makes me a loser too.

  2. Not Harold

    at 9:28 am

    I’ve seen a building where the policy enacted by the board bans everyone but residents from access to the common elements. The only exception is for emergency repairs.

    Deliveries are stopped at the front desk – the pile of Amazon boxes makes it look like Christmas morning every day and there are always food delivery bags/LCBO sitting on tables in the lobby. Concierge will deliver to suites for vulnerable residents and those under medical isolation. I think the doctors who live in the building are also getting deliveries to keep them out of the elevators as much as possible.

    Theoretically guests aren’t allowed but the concierges aren’t enforcing that rule, not that you’ll be able to prove it.

    As to the legality – well you can always sue. When courts are open. In a month or two. When the case will be moot, not to mention that it won’t be heard for 3 years anyways. Damages are going to be minimal, can easily be argued that preventing a showing HELPED the owners by forcing them into a stronger market and getting them a higher price, and was a reasonable action on the part of the tenant/building management/board of directors.

    Overall it’s just “force majeure” and roll with the punches. Everyone has more than enough stress in their lives thanks to COVID, China, a cratered economy, and everything else. No need to let showings on a tenanted property add to the stress. If clients are trying to sell the condo they live in to close another transaction then it might be worth pushing back on the board/property management.

    1. Not Harold

      at 9:33 am

      Forgot to mention that “common elements” encompasses the lobby and elevators and are directly under the board’s control which makes fighting the rule VERY hard and effectively impossible until the courts reopen. A fun detail that trips people up when they find out that “their” balcony isn’t actually “theirs” but rather an “exclusive use common element” and the board can set rules on use like no bike storage or no BBQs. People are of course very happy that their balcony isn’t “theirs” when it comes time to make repairs and it’s covered by the reserve fund or the building gets a loan to cover repairs rather than having to personally hire contractors and write a $50k or whatever cheque.

  3. Clifford

    at 12:32 pm

    We’re not allowed to have visitors. It’s locked down over here. 2 to an elevator max and deliveries are left with concierge. IMO if you are wearing masks, I don’t see what the problem is. Hell, mandate gloves if you have to.

  4. Katie

    at 6:27 pm

    Plain and simple. All tenants have a right to have reasonable enjoyment of their “paid for” space. Any intrusion on the part of the landlord by himself,cleaning people,real estate or potential buyers is definately an intersion and an interferance of reasonable enjoyment. My opion, the space belongs to the tenant that pays alot of money for that space. If you want to sell it,you pay the rent then you can dictate even 1 intrusion and yes 1 is an intrusion unless you paid for it.

      1. J G

        at 9:22 am

        If I am a tenant, and the greedy landlord raises rent on me every year, I’m going to be a dick about it.

        Does the landlord really want to get into a bad relationship with the tenant? You should know if you’re a landlord.

        1. Appraiser

          at 10:26 am

          Nothing wrong with raising the rent every year. Last time I looked the annual taxes and other expenses went up again.

          Gotta keep pace with expenses. Not all about greed.

          1. Chris

            at 11:35 am

            One of the rare times I agree with you. Especially if your property is subject to rent control, raising rent by the maximum allowable, which is tied to inflation, makes sense.

            As to intrusions, in normal times it’s not unreasonable to enter to show the home. However, during a pandemic, I wouldn’t blame a tenant for not wanting strangers coming and going. Virtual showings would probably be a better alternative.

      2. Lowlipop

        at 7:27 pm

        It may be that a tenant can’t legally prevent the landlord from showing the place to buyers but if the tenant refuses, what can the landlord do? Take the tenant to the LTB and/or court,I guess. How long would that take? IMO, landlords who want to sell should try to come to an agreement with their tenant, ideally leading to them leaving voluntarily before the sale process begins.

  5. Royale Tenant

    at 1:26 am

    Typical Royale Grande. I live in a building they manage and maintenance is generally ok however every interaction with the company is a coin toss of whether there even will be an answer. And that’s how they treat residents, not rea’s or people interested in buying in.

  6. Enza

    at 8:55 am

    We also have a condo that is listed in downtown Toronto and our Property Manager has been refusing in person showings as well. In our case, they just suddenly stopped allowing in person showings without notifying owners/residents. Crossbridge Condominium Services is the Management company in our building. To make matters worse, our confirmed showings got turned away at the front desk because they failed to inform owners/residents of this no in person showing policy. They were just refused entry to our unit. We found out through our realtor that this was happening. Property Manager hides behind the condo board and just says it’s a board decision. For over two months Prospective buyers have been getting turned away and showings appointments have been getting cancelled. These condo boards and property managers think they are above the law. Condo boards/property managers are responsible for ensuring public safety under Section 117 of Condo Act. However, Provincial legislation and Public Health gives guidelines on how to do so safely with proper sanitization procedures, proper PPE and social distancing. Condo buildings that are not allowing in person showings are clearly abusing their power at owner’s expense. This just screams lawsuit…

  7. Pingback: Can A Tenant Or Concierge Refuse A Showing? | Raavi's Ontario Experience
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