Can my landlord keep my late father's belongings if I can't get to the apartment?

The situation

My father passed away unexpectedly on January 15th here in Ontario, and he was renting a small studio apartment. I am the executor of his estate, but I have been travelling for work and couldn't get back to his building until last week. I spoke with the landlord yesterday, and he told me that because the unit was left in a bit of a mess and some food had spoiled, he had already cleared out the apartment and sold several items, including a vintage mahogany desk and a collection of old books, to cover the cleaning costs and the unpaid rent of $1,200. He claimed that since the items were considered clutter, he didn't need to wait for me. I tried to explain that I am his legal representative, but he insisted the sale was final. I am now worried because I only found out about this two months after his death. I need to know if I can still get any money back from the sale of those items, especially since the desk was worth quite a lot, or if the landlord is allowed to keep all the cash to pay for the cleaning and the rent arrears. What are my rights regarding his personal property?

Detailed Analysis

Under Ontario law, a landlord has specific rules to follow when a tenant dies. When your father passed away on January 15th, the tenancy was deemed to be terminated 30 days later^[2]. Before that termination, the landlord was required to "preserve any property of a tenant who has died... other than property that is unsafe or unhygienic"^[2]. While the landlord can dispose of unsafe or unhygienic items immediately, the desk and books do not automatically fall into that category just because they were near spoiled food.

Even though the landlord has already sold the items, you have rights as the executor. The law states that "If, within six months after the tenant’s death, the executor... claims any property of the tenant that the landlord has sold, the landlord shall pay to the estate the amount by which the proceeds of sale exceed the sum of... the landlord’s reasonable out-of-pocket expenses... and any arrears of rent"^[1].

In your case, since you are acting within two months of his death, you are well within the six-month window. The landlord is allowed to use the money from the sale to cover the $1,200 in unpaid rent and any reasonable costs for cleaning or selling the items. However, if the mahogany desk and books were sold for more than the $1,200 rent plus the cleaning costs, the landlord cannot keep that extra money; it must be paid to your father's estate.

It is uncertain exactly how much the landlord's "reasonable out-of-pocket expenses" for cleaning and selling the items will be, which will determine the final amount owed to you.

Statutory Citations

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