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Lease terminations continue to be a prominent issue for residential landlords, often leading to legal complications if not handled correctly. One of the most crucial—but frequently overlooked—steps in the termination process is identifying who the tenant is under the lease and the Residential Tenancies Act, 2006 (Ontario) (the “RTA”). At first glance, the answer may seem clear-cut. However, failing to properly define the relationship between the landlord and the individuals residing in the rental unit can lead to significant legal challenges, including the potential for a failed application for a termination order from the Landlord and Tenant Board (the “LTB”), leaving landlords stuck with unwanted occupants.
Tenant vs. Occupant
Under the RTA, tenants and occupants have distinct rights and obligations, and understanding these differences is vital when navigating lease terminations.
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. Essentially, the tenant is the individual (or individuals) with whom the landlord has a direct legal relationship, and who is bound by the terms of the lease agreement.
On the other hand, the RTA does not explicitly define the term “occupant” or “roommate.” However, these terms are generally understood to refer to individuals who share the rental unit with the tenant but are not party to the lease. Occupants may be friends, family members, or roommates who live in the unit and benefit from the tenant’s right to occupy the space. It is important to note that if an occupant is the legal spouse of the tenant, different rules may apply, as outlined in Section 3 of Ontario Regulation 516/06 made under the RTA.
While landlords are legally bound by the RTA to uphold various obligations toward tenants, they do not owe the same responsibilities to occupants. Occupants’ relationship is solely with the tenant, not the landlord. As a result, landlords do not need to give formal consent for the tenant to have occupants. Furthermore, disputes between the landlord and an occupant (or between a tenant and an occupant) fall outside the jurisdiction of the LTB and must be resolved through the courts.
Terminating a Tenancy with Occupants
When a tenant’s lease expires, or the landlord has served a termination notice, the tenant is required to vacate the rental unit by the specified date. Any occupants are expected to vacate as well. However, problems arise when an occupant refuses to leave the unit after the tenant has vacated.
If an occupant does not vacate the rental unit at the end of the lease term, they are considered an unauthorized occupant. In such cases, the landlord may apply to the LTB under Section 100 of the RTA to evict the unauthorized occupant.
However, timing is crucial. The landlord only has 60 days after discovering the unauthorized occupancy to initiate the eviction process. If the landlord fails to act within this timeframe, the occupant may be deemed a tenant under the RTA, and the landlord will lose the ability to evict them without a full legal process. Once an occupant is considered a tenant, they gain all the rights and protections afforded to tenants under the RTA, including the protection against unlawful eviction (as outlined in Section 100(2)).
This is a critical point for landlords: failing to take timely action to evict an occupant can lead to significant legal complications. If the unauthorized occupant is deemed a tenant, the landlord may have to navigate the full eviction process, which can be time-consuming and costly.
Conclusion
While lease terminations may seem like a straightforward procedure, the presence of unauthorized occupants can complicate matters significantly. Unlike commercial leases, residential tenancies in Ontario are governed by the Residential Tenancies Act, which provides strong protections for tenants. Landlords cannot simply “contract out” of the tenant’s right to have occupants in the rental unit. The RTA’s comprehensive consumer protection measures are designed to safeguard tenants from illegal evictions and ensure due process is followed.
For landlords, understanding the distinction between tenants and occupants, and ensuring that the proper steps are followed when terminating a lease or evicting an occupant, is essential to avoid legal pitfalls. Failing to follow the correct procedure can lead to prolonged disputes and unwanted tenants in the unit.
As always, it is advisable for landlords to seek legal counsel when navigating the complexities of lease terminations.
— Landlord Pro Legal SPC
Ph: 226-620-1324
Email: ze@landlordprolegal.ca
Website: http://landlordprolegal.ca\
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