Lease terminations remain a hot topic for residential landlords. One step in the termination process that may seem basic, but can result in serious pitfalls, is determining who the tenant is under the lease and the Residential Tenancies Act, 2006 (Ontario) (the “RTA”). On its face, the answer to this question may seem obvious. However, a failure to properly characterize the nature of the relationship between the landlord and the individual(s) residing in the rental unit can result in a failed application for a termination order from the Landlord and Tenant Board (the “LTB”) and the landlord being stuck with an unexpected tenant.
Tenant vs. Occupant
Tenants and occupants have different rights and obligations under the RTA, as well as different legal relationships with the landlord. Section 2(1) of the RTA defines a “tenant” as a “person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives”. In contrast, the RTA does not define the term “occupant” or “roommate”. Notwithstanding that “occupant” and “roommate” are undefined, they are generally understood to be someone who shares a room in a rental unit with the tenant. Please note that there are certain exceptions that are not contemplated in this article where the occupant is the legal spouse of the tenant (see Section 3 of Ontario Regulation 516/06 made under the RTA).
While the landlord has many obligations to the tenant under the RTA, the landlord does not have any direct obligations to occupants, as the occupants’ relationship is solely with the tenant. As such, occupants are not protected under the RTAand are only permitted to remain in a rental unit at the tenant’s discretion. As the landlord has no direct legal relationship with the occupant, tenants do not require the landlord’s consent to have occupants. Further, any disputes between the landlord and the occupant, or the tenant and the occupant fall outside of the LTB’s jurisdiction and must be addressed in court.
Terminating a Tenancy with Occupants
At the expiration or earlier termination of the tenant’s lease, any occupants are required to vacate the rental unit at the same time as the tenant. If the occupant fails to vacate the rental unit, then the occupant is deemed to be an unauthorized occupant, and the landlord can apply to the LTB under Section 100 of the RTA to evict them.
However, once the lease term has expired or the landlord has delivered a termination notice to the tenant, the landlord only has 60 days after discovering the unauthorized occupancy to evict the occupant. If the landlord fails to evict the occupant during that period, then the occupant will be deemed to be the tenant under the lease. Once an occupant is deemed to be the tenant, they are entitled to all of the tenant protections in the RTA (see Section 100(2)). Therefore, it is essential for landlords to ensure that they meet the deadlines to evict any occupants once a lease has expired or a termination notice has been issued to the tenant.
Conclusion
While residential lease terminations may seem straightforward at first glance, they can easily become more complicated once you look beneath the surface. Unlike commercial leases, which can be contracted out of, residential tenancies are governed by the RTA and any lease provisions that are contrary to the RTA are deemed to be void. As such, landlords cannot contract out of the tenant’s right to have an occupant. Further, the RTA is comprehensive consumer protection legislation intended to, among other things, protect tenants from unlawful evictions. Accordingly, landlords should ensure that the correct steps are taken when terminating a residential lease and evicting a tenant. Soloway Wright’s Commercial Leasing and Litigation groups can help guide landlords through every step of the termination process.
Author Bio: Vanessa Carment is an Associate in Soloway Wright LLP’s Commercial Leasing group. Working with both landlords and tenants, Vanessa drafts, reviews, and interprets leases and advises her clients on all forms of commercial tenancies. She is also adept at commercial lease enforcement, working with her clients to resolve these matters amicably, where possible, while maintaining her client’s rights. Vanessa also practices in Soloway Wright’s Real Estate and Development and Condominium Law groups.
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DISCLAIMER: This article is for general information purposes only and is not (and should not be construed as) legal advice. The information contained herein summarizes only certain aspects of the subject matter and is not a comprehensive review of applicable law. All of the foregoing is subject to legal and accounting advice based on the particular circumstances of each potential client
