Friday, 30 November 2012

When a tenant dies--what happens?

From time to time I get a call from both tenants and landlords about the significance of a death of a tenant in an apartment.  The death of a tenant can raise several issues that most landlords and tenants have never considered.  For example, if a tenant has died--who has the right to enter the apartment?  If the landlord is asked to grant access to the rental unit, to a family member, is there any liability if that family member turns out to not have legal authority but nevertheless cleans out the valuables in the unit (from jewelry to family heirlooms)?  What about the situation where the deceased tenant had a spouse who was not on the lease---must that spouse move out?--can the landlord insist that the spouse move out (suppose the rent is way below market rent).  What can a landlord do about pets in the unit if the tenant has died?  What about perishable items?


As you can see the death of a tenant can raise a number of complicated issues.  For many years, the landlord and tenant legislation in Ontario contained nothing of help to assist in solving these issues.  Fortunately, we now have section 91 of the Residential Tenancies Act which provides some guidance on the effect of the death of a tenant on a tenancy.  The law now provides that when a tenant dies, and there are no other tenants in the rental unit, the tenancy is deemed to be terminated 30 days after the death of the tenant.  It does not appear that the termination is at the end of a term--rather it is a straight 30 days after the tenant's death.

The 30 day time period is a busy time for the landlord depending on how much family was involved with the tenant.  Where the tenant had few people in his or her life, it may be that it will take time to locate next of kin to inform them of what has happened.   During this period of time, the landlord is required, by law, to preserve the property of the tenant--subject to removing and disposing of things that are unsafe or unhygienic (i.e. food in fridge, garbage).  Things like pets, where there is no one to care for them, should be turned over to the local Humane Society.  The locks should be changed to control access (where there are no other tenants in the unit).

Once contact is made with the deceased tenant's family, a landlord should be seeking contact with the executor or administrator of the tenant's estate.  It is unlikely and virtually impossible for the deceased tenant's executor to have a obtained a Certificate of Appointment of Estate Trustee (formerly known as Probate).  Hence, the landlord is unlikely to have the comfort of a Court issued certificate that confirms what person has the lawful right to deal with the deceased's property.

The Residential Tenancies Act attempts to deal with this problem by directing the landlord to afford not only an executor and administrator access to the rental property for the purpose of removing the tenant's property but also to a member of the tenant's family.  While helpful, this part of the law (s. 91(2)(b)) should not be read as absolving the landlord from his obligation to preserve the tenant's property.  The landlord should exercise due caution in opening the door to the rental unit to just any family member.  It would be helpful to confirm that the family member to whom the door is being opened (i.e. access to the deceased's property) is named in a Will as executor (get a copy).  Confirm with other family members, if possible, that the person to whom the door is being opened has the authority.  Get and make a copy of the identification of the person to whom access is granted.  Perhaps make a photographic inventory of the apartment--especially of the valuables.  Control access to the unit and make it clear, in writing signed by the family member, that they are responsible for the contents of the unit.

While the tenancy terminates 30 days after the death of the tenant, there is nothing preventing the landlord from agreeing to extend the termination--or preferably renting the unit to the family as a storage unit for an additional period of time beyond the 30 days.  Care should be taken to get the agreement in writing and liability for the cost should be clearly set out and payment recieved in adavance.

Of the other issues raised above, the one that sometimes causes concern is when there is a surviving spouse who is not, technically, a tenant.  Does that tenant have to move out?  The short answer is no.  How that happens is by virtue of a Regulation passed under the Residential Tenancies Act--specificaly O. Reg. 516/06 s.3.  That Regulation provides that when a tenant dies without giving a notice of termination, and the rental unit is the principal residence of the tenant's spouse, the spouse is included in the definition of "tenant".  Hence the spouse, who was not named on the lease as a tenant, by virtue of the death is deemed to be a tenant. 

Of course, a spouse may not wish to become a tenant, or in other special circumstances, there are exceptions to the application of O.Reg. 516/06 s. 3 under certain conditions.  If a spouse does not wish to be deemed a tenant they need to move out of the rental unit within 30 days of the death.  Other ways that this regulation will not apply is where the housing is exempted housing, a care home, or unit to which section 6 of the regulation applies.  The regulation may be found here.

Michael K. E. Thiele
Lawyer
Ottawa, Ontario, Canada
Quinn Thiele Mineault Grodzki LLP
mthiele@pqtlaw.com

51 comments:

  1. If the tenant past away and the rent is paid up does the landlord has to give the last month rent ?

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    Replies
    1. Hi: The tenancy terminates 30 days after the death of the tenant. Rent is owed for this period. If this period is paid up and there is still a Last Month's Rent deposit then a refund is in order if the estate doesn't want to have any extra time. If there is damage in the unit there is always a possibility of a claim against the estate for the damage. If there really isn't anything to claim against the estate and it is clear that money is owed to the estate make sure that you pay the estate trustee and not just any relative. Making the cheque payable to the Estate of ________ will also be helpful in ensuring that you don't end up having to pay twice.

      Hope that helps

      Michael K. E. Thiele

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    2. Hi Michael,

      What happens if after the death of the tenant the representative of the estate gives the landlord instructions to apply the last month deposit to the following month and the landlord doesn't follow these instructions and takes an automatic withdrawal anyways? How soon should they return the last months deposit to the estate?

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    3. Hi: The tenancy is terminated 30 days after the death of the tenant pursuant to section 91 of the RTA. On the assumption that you are in a position to remove all of the deceased's possessions and are ready to turn the unit back to the landlord within that time then there is no need to negotiate extra time to deal with the estate. Accordingly, the landlord should not have charged the rent and should have applied the LMR to the last 30 days with a refund for any extra paid days. It is likely that the death happened within a paid rental period so the tenancy will be deemed terminated in the middle of the next rental period. That means that there will be a refund due even from the Last Month's Rent Deposit.

      You should expect the refund immediately, but it would be reasonable to wait until you return possession of the rental unit to the landlord. I presume that the landlord didn't charge the rent as some kind of sneaky thing to do. The Landlord's system probably just automatically debited the account. Changing the auto-debit system can take some time and if the death and rent was close in time then the landlord was perhaps unable to fulfill your direction. That being said, the authority to debit the account should be suspended.

      Michael Thiele

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    4. Hi Michael,
      Do I understand correctly; if a tenant in a condo complex dies, then the tenancy agreement is terminated 30 days after the tenant's death and during this 30 day period rental money is to be paid to the landlord ? There was no first and last rent collected I beleive.

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    5. Hi: Yes, I do think you understand the issue correctly. If the person who dies is a tenant, covered by the Residential Tenancies Act, then it doesn't matter if the rental unit was in a condominium or elsewhere. There is no "free" rent period and the estate would be liable to the landlord for any unpaid rent.

      Michael K. E. Thiele

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  2. is there any law regarding how long the apartment must be left vacant before the unit can be rented again?

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    1. Hi: The simple answer is "no". If the landlord has lawfully regained possession of the unit it may be re-rented at the earliest opportunity.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  3. If someone were to die in a fire in a legal or illegal basement apartment could the landlord be held legally responsible?

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    1. Hi: The short answer is yes. Whether or not the landlord would be held responsible depends on the specific facts of the case. But in general a landlord could be held responsible--civilly for the death of a person in a fire. Note that my comment is limited to a civil claim. I have no idea about criminal responsibility.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  4. My tenant died with no will no relatives and no last months rent. What do I do with his stuff. I have post dated cheques can I continue to cash them until I am contacted by a probate lawyer. I have no idea how to proceed

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    1. Hi Caroline:

      The residential tenancies act (RTA) addresses the issue of the death of a tenant in sections 91 and 92. The tenancy is deemed terminated 30 days after the tenants death. Section 91 imposes an obligation to keep the property safe until the tenancy is terminated except that you may dispose of unhygienic or unsafe items. After the termination of the tenancy but with an apartment still full of stuff you look to section 92 RTA which speaks to the issue of disposing of property. Note that you are responsible to the estate for the value of the items minus your reasonable costs minus rent arrears. That time period is at least 6 months---i.e. you can be responsible to the estate for the value of the property for at least 6 months after termination of the tenancy.

      That being said, you should take some extra time to locate things that are personal and sentimental and that may be considered family heirlooms. Don't throw this out, don't sell them (they often aren't worth anything), but keep them to the side and wait for family to show up to claim them. While the RTA insulates you from being sued it is fairly clear that the Court's have found a way to impose continued obligations on landlords even after the time periods set out in the RTA expire.

      When you go into the unit do take pictures of everything and try to create a rough inventory before you start packing and moving things (presuming no family shows up to deal with the things). You may of course sell the property, but keep track of what you sold and for how much, so that you can account for your dealings with the tenants property.

      You may find the RTA sections at this link (cut and paste into your browser)

      http://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html#Death_of_Tenant__198955


      Good luck
      Michael K. E. Thiele
      www.ottawalawyers.com

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  5. Can the landlord show the unit during the 30 days without notice to the executor or family member?

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    1. Hi: An interesting question and a new one for me. The entry without notice provisions are in section 26 of the RTA. Section 26(3)(a) allows a landlord to enter a rental unit without notice to show the unit to prospective tenants if "the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other".

      Does any part of s.26(3)(a) apply to your situation? If so, then the landlord may enter without notice. If not, and the tenancy is only being terminated in accordance with the RTA's death of tenant provisions then I don't think there is any statutory authority to enter the rental unit without notice.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. The landlord gave us a letter after we informed them of the family member's death stating we had 30 days to clear his personal property. The letter made no mention of terminating the lease or showing the apartment. We received no phone calls to let us know.

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  6. What happens if a tenant is in an accident and in a coma in the hospital, not expected to be out of the hospital for at least a few months and the other tenant died in the house a week later from a non-related incident? As landlords, are we obligated to hold the apartment for the person in the hospital?

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    Replies
    1. Hi: If the rent is being paid then you have no legal basis to terminate the tenancy. If the rent has fallen into arrears then you will need to proceed to terminate the tenancy in accordance with the usual rules (N4--Notice of Termination--Non-Payment of Rent). Knowing that neither of the tenants are able to look after the rental unit--presently--you should enter the unit and secure it. If there are pets etc., take steps to deal with them, perhaps throw out things that might spoil. Document what you do. Try to contact next of kin or whoever is helping the tenant who is in a coma. Perhaps you can get some insight into the anticipated length of the coma--prognosis etc..

      In applying to the Landlord and Tenant Board you will need to bring to the members attention that the tenant you are seeking to evict (terminate tenancy) is in a coma in hospital. Being in a coma makes that person incompetent and unable to represent their own interests. In these circumstances you will want to explore the possibility of a litigation guardian for the tenant. Presumably that person might be the same person looking after the tenant at the hospital. If not, this will be a tricky case for the Board as the litigation guardian provisions are not very well developed for Landlord and Tenant Board proceedings. Given that any notice you serve will not actually come to the notice of the tenant in a coma and that the relief provisions in the Order (i.e. pay and stay) will be something the tenant is not capable of understanding or doing anything about because they are in a coma you can imagine that the legal process will be considered quite unfair if you simply proceed and don't identify the "coma" issue. Certainly, if the tenant recovers and then discovers that they have lost their home and in the mean time you have called in the sheriff, taken possession and disposed of their worldly belongings in accordance with the RTA, they will be upset. In my opinion they will have a very strong case against you for serious damages if steps were not taken to appoint a litigation guardian or at the very least the tenant's property was not preserved. If it is impossible to get someone to appear for the tenant I'd make sure to bring to the Board's attention in writing and orally that the tenant is in a coma, that voiding of an eviction order based on non-payment of rent is highly unlikely (given the health of the tenant) and therefore seek the direction of the adjudicator in the Order. That won't be a perfect solution but it will go a long way to protecting you in case the tenant recovers and wants to go home. Lastly, regardless of what the RTA says about disposing of tenant's property, I'd make sure to inventory the property and preserve all of those things that are unique, family heirlooms or items of sentimental value. Put the things in storage if you must in order to re-rent the unit. The loss of personal items that are sentimental in value can be quite devastating and motivating for lawsuits against landlords. The rest will likely seem reasonable behavior on your part. You can always recover the storage and packing fees from the tenant or the estate in the future (presuming the tenant has an estate of value).

      Hope that helps identify some of the issues for you. Simply taking the unit back without legal process because the tenant is in a coma is taking an enormous risk and it would be illegal to do so.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  7. When a tenant has died without a will and his only family (2 grown daughters) live in Europe, what should the daughters present to gain access to the unit? They are applying for a certificate of appointment of estate trustee but that process will take months. So they only have the death certificate and certificate of proof of death (with their names on as next of kin). Please advise. Thank you.

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    1. Hi:

      The answer to your question lies in section 91 of the Residential Tenancies Act. Please take a look at section 91(2)(b) . The section provides that if there is no executor (no will no executor) and no administrator (no certificate of appointment of estate trustee without a will) then the landlord is to allow a member of the tenant’s family reasonable access to the rental unit and the residential complex for the purpose of removing the tenant’s property.

      In my view, a copy of your identification, passport, etc., and the documents that you have are more than enough to grant you access and the right to remove property.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      This is the link to cut and paste to get to section 91(2)--Death of a Tenant: http://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html?autocompleteStr=resid&autocompletePos=1#Death_of_Tenant__198955

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  8. I had a tenant agreement with my tenant. My tenant moved in her boyfriend 6 weeks after she took up residency. My tenant then threw out her boyfriend one week ago because of domestic violence. Several times the police were called to the building. Then this week my tenant was found dead in her apartment. The boyfriend showed up and has moved back in. Does he have the right to be there? This apartment was no longer his principal residence. Three days before her death, I had served her with an early termination notice because of the violence, the fact that my elderly tenants were awoken one night with the police kicking in the wrong apartment door and the fact that all my tenants were living in fear of this man due to his extensive criminal past (which I have just found out about).

    ReplyDelete
    Replies
    1. Hi: Nothing in what you describe suggests to me that the boyfriend ever became a tenant. In fact, he now sounds like a trespasser to me who is illegally in the rental unit. Will the police help? Ask them to remove the guy as he has no right to be there.

      If there are additional circumstances that make his presence in the unit somewhat less of break and enter criminal and more unauthorized occupant then the application to file to the Board is in Form A2. This is the application that you use if a tenant transfers a tenancy to another person without the landlord's permission. Such a transfer is an illegal assignment or sublet and therefore you do not have to accept the person's presence there. Note their are strict timelines to follow otherwise you risk the person becoming a tenant.

      These application are a little more difficult than normal. You would be wise to retain a lawyer or paralegal experience in Landlord and Tenant law to assist you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you for your help. Much appreciated.

      Delete
  9. Hi there,
    my dad died last month in the first week of June and I was told by his landlord to vacate his apartment by the end of the month. I emptied it all out of his personal effects, except for the few pieces of furniture that I could not carry (not to mention had no dolly and a very small elevator). I received a phone call today from one of the rental agents in the office saying that it has to be completely emptied as the superintendent won't be carrying anything.
    To be more specific... the only things left in there are one love seat couch, two tables, two chairs, entertainment unit with an old bulky tv.
    Can you please let me know what my legal obligations are? That is my dad's apartment, but my dad did not have a will or power of attorney.

    Thank you,
    Agatha

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    Replies
    1. Hi Agatha:

      You personally do not have any legal obligations. If you were appointed as the estate trustee you would have obligations in your capacity as estate trustee--meaning your decisions would affect the estate. Arguably, the failure to clean out the apartment at the end of the lease would force the landlord to incur the expense of moving things to the garbage. The landlord could render an invoice to the estate and if the estate did not pay then the landlord could sue the estate. If the estate has nothing, or if the estate does not have an estate trustee then it will be difficult and likely pointless for the landlord to sue the estate. You do not "inherit" the debts of your father.

      Your entry into the unit and taking items out of the unit do not make you an executor. Under section 91(2)(b) you were entitled to access the unit as a member of the tenant's family and the same section permitted you to remove property from the unit.

      Hope that is what you needed to know. I'm sorry for your loss.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  10. A new blog entry? The RTA addresses a tenant's death; it appears totally silent on the subject of the landlord's death. Doesn't this mean there's a jurisdictional issue (e.g. LTB can't issue final orders because estate law takes over? at least until the title has been changed or executor appointed/confirmed?) Wouldn't the Succession Reform Act or other statute take over during the time where properties are in legal limbo? I'd think an LTB Member would be leery about making a final eviction order unless s/he was confident the person purporting to be the landlord had title or formal Executor documentation -- particularly if there's no evidence that the tenant has done anything wrong and there's no harm in letting the tenancy continue until the legal limbo is over. Otherwise (evicting a no-fault tenant or tenants without court-approved probate order authorizing one person to speak for and make decisions on behalf of all the heirs) would allow any one of several heirs to seize the property and disenfranchize the others, wouldn't it?

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    Replies
    1. Hi: This is an interesting question in the context of facts of a specific case. Trying to set out the applicable rules to a hypothetical is practically impossible. For the most part this is not a problem. An executor under Will takes his power from the Will and not probate. There are unlikely to be competing estate representatives. However, if there are then it is possible that the Board would recognize a representative for the interests of the estate pending the appointment of an estate trustee---like a litigation guardian, guardian ad litem. Again, its easier to consider this with specific facts.

      The second part of your question assumes that the tenancy would be over for some reason. That is not the case. The death of the landlord would not matter and the tenancy would continue until there are grounds for termination under the RTA (death of a landlord is not a ground for termination).

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  11. The tenant next door passed away and his body was left for maybe 4 days. While my heart goes out to his son and I'm really sad about it as well (my husband and I chatted with said tenant a few times), it really smells around his unit now. They removed the body two nights ago and the chair he passed in was also removed, but we can smell the smell in our unit next door. It's only been two days since, but does the landlord have the right to go in there and clean the smell up? I have to keep my windows and doors shut because we can smell the horrible dead body smell and we don't have A/C. Is the landlord able to do this before the tenant's things are removed? I'm not trying to sound insensitive at all, please don't mistake me. It's just really horribly smelly.

    ReplyDelete
    Replies
    1. Hi: I am sorry for the circumstances that you are dealing with. It must be terribly upsetting. The issue you are facing is contemplated by the Residential Tenancies Act. The operative sections are section 91 and 92. For the issue you raise, I think this is the legal authority you are looking for:

      92. (1) The landlord may sell, retain for the landlord’s own use or otherwise dispose of property of a tenant who has died that is in a rental unit and in the residential complex in which the rental unit is located,

      (a) if the property is unsafe or unhygienic, immediately; and

      (b) otherwise, after the tenancy is terminated under section 91. 2006, c. 17, s. 92 (1).


      As you can see the landlord has the right to deal with unhygienic things "immediately". Dealing with the smell or the things that might be causing the smell is, in my opinion, and immediate obligation of the landlord for the benefit of neighbouring tenants such as yourselves.

      For the full range of statutory powers in relation to the death of a tenant simply google "Ontario residential tenancies act" and look at section 91 & 92.

      Michael K. E. Thiele
      www.ottawalawyers

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  12. My grandfather lived in an apartment in Toronto for 8 years. He was primary tenant and my mother (his eldest daughter) is the only other occupant named on the lease and has been living there the entire time he lived there. My grandfather passed away 2 weeks ago in his home. The landlords knew my grandfather quite well, as well as my mother and even sent my mother a condolences card. They told her to take her time with coming to the rental office downstairs to work out what can be done re: her potentially moving into a smaller unit (current unit is 3 bdrm. Now ideally seeking 1 brdm in same building).

    She has her appointment at the end of this week and all they asked her to bring with her, thus far, is a copy of his death certificate. The official executor of his estate is my aunt (my mothers younger sister) and they have a good relationship. Do you believe she would also need to go?

    Please let me know if you believe my mother will have to go through the standard application process to be approved for a 1 bdrm apartment in same unit and what, if ANY, rights she has as the occupant. Since she is not his "spouse" as you referred to in an earlier question, I don't know that she would automatically become the "tenant" in this regard.

    Any information prior to her meeting would be very helpful. Thank you.

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  13. Somewhat similar situation as in the post above. My mother and I have lived in an apartment in a small three story building in Toronto for over thirty years. Recently, she became seriously ill and has been transferred to palliative care. As hard as it is dealing with the prospect of losing my mother, I also worry about the possiblity of losing my home soon after. What I’d like to know is what rights I have as the son of a deceased tenant. As for a lease, as far as I know there was never a lease, it has always been a month-to-month tenancy agreement. Any correspondence from the landlord, including the annual rent increase statement, lists only my mother as the tenant, though I have lived with her the entire time she has lived there, as did my father till his death in 1997. Upon my mother’s death, will I be evicted? If not, will I have to apply for the apartment? As you might imagine, the rent is well below current market rate. If I am allowed to stay,. will I be allowed to continue to pay the lower rent, or will it immediately be raised to current market level. Haven’t discussed any of this with the landlord yet who, I must say, has always been a good landlord and good to us over the years re repairs, etc. Any information you could provide would be greatly appreciated. Thank you.

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    Replies
    1. Hi: This is a very delicate situation. You should really go see a lawyer/paralegal who is familiar with the caselaw. This could be very helpful in determining your status in the rental unit. While you may not be a named tenant on the lease (from 30 years ago), your presence throughout that time may allow an argument to be made that you are a tenant. A strict reading of the RTA does not allow for the tenancy to be transferred to you. Where a tenant dies and a spouse exists the spouse may be deemed to be a tenant even if not listed on the tenancy agreement. The same kind of tenancy transfer does not exist for children of tenants. A tenancy will end 30 days after the date of death.

      Once you've met with a lawyer to review all of the facts of your presence in the premises over the years you will have a better idea of whether you are indeed a tenant. That may make it worthwhile to approach the landlord sooner than later. If your landlord likes you then perhaps you could agree to be made a tenant now, perhaps you could agree to enter into a new tenancy agreement upon your mother's passing. The situation does not need to be one of conflict. Knowing your exact legal rights based on an analysis of all of your facts is the key and is the first thing that you should do. Based on what you've said in your comment you are unlikely to be a tenant---but don't take this as the answer as there are lots of little things that could change that opinion.

      Good luck to you

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you for replying to my post so soon I will certainly take your advice.

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    5. My uncle is currently in the same situation. He and my grandmother have lived in a apartment together for over 15 years. My grandmother was the only name on the rental agreement and has just passed away.

      We would like to argue that my uncle is a tenant. He wants to stay under the same conditions (month to month, same rent). Property management has been aware he lived there, he has received mail, and his car is registered to park there in a rented parking spot. Doesn't the Residential Tenancies Act state for the definition - ""tenant" includes 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." Isn't my Uncle the tenant's heir? What other information could we need to prove he was/is a tenant?

      Many thanks. JY.

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  14. Hi - my mother's partner of over 20 years passed away about recently. They were sharing the same 2 bedroom apt for over 10 years, of which he was the leaseholder. I understand that had they been married, she would automatically take over the tenancy ? What then happens in situations like hers? They were not married, but I suppose would be considered "common law". Does the landlord have the right to refuse her monthly rent payment and terminate her tenancy? The lease is not up yet. Thank you.

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    1. Hi Dylan: Your question turns on the definition of "spouse" under the Residential Tenancies Act and the regulations thereto. As you appear to be aware, when a tenant dies a surviving spouse is considered to fall within the definition of tenant and has the rights of a tenant if that spouse so elects. Section 3 of O.Reg. 516/06 sets out the rules.

      With respect to the definition of "spouse" we need to turn to section 2 of the RTA. "Spouse" includes more than a married partner--it includes the concept of a common law spouse, parents of children and people who have entered into a cohabitation agreement under section 53 of the Family Law Act. It is worthwhile to go to the exact definition to see if your mother's partner falls within it. View the Residential Tenancies Act at this link (you will need to cut and paste): http://www.canlii.org/en/on/laws/stat/so-2006-c-17/latest/so-2006-c-17.html#sec2subsec1

      Good luck

      I hope that helps.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  15. Hi - I understand that if a leaseholder passes away, their spouse (whom they've been living with) would automatically take over the tenancy? What if they were not married? A common law relationship, for example. Does the same rule apply? Can the landlord refuse rental payments and terminate the tenancy even if the lease is not up? Thanks

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  16. HI My MIL said that the manager of the property where she rents a 1 bedroom apartment has left papers under every door of the building she lives in. It is a two building complex with more than 30 apartments per building. It is not a retirement home or nursing home, simply a building which "caters" to a senior age bracket.

    The papers make a demand for a copy of the tenant's will and power of attorney to be provided to the building manager. This feels like an invasion of privacy and a gross overreach of authority. I have told my MIL to just send in the names of her next of kin and their contact information while we bid for time getting this answer.

    Is this an overreach or does my MIL have to provide copies of these documents?

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    Replies
    1. Hi: Wow, now I have heard everything! The demand is outrageous. Your advice to your MIL was just fine. Landlord's Ontario have no right to this information. If the Landlord insists (I can't imagine that they would) simply ignore the demand and either retain counsel to write a very stern letter and/or file an application to the Landlord and Tenant Board for harassment.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  17. I know, right? Darn, just when I thought I had heard just about everything! What makes me more incensed than his audacity, is knowing that there are residents in this complex who do not know what their rights are and may be intimidated by this letter.

    It's an egregious violation of their trust.

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  18. Hi- my mother has passed after living in her apartment for ten years last October. MY sister who is on disability has lived with her the entire time. Nothing has happened yet and the rent has been paid the entire time. Now the management company is asking for proof of death and proof of executorship nine months later
    . We are not sure what what they are up to. Should we be worried?

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    1. Hi Mark:

      Firstly, I am sorry for your loss.

      I have to assume that your sister wishes to continue living in the apartment? As your sister has been there the entire time query whether she is a tenant--as legally defined. Not being named on the lease is not necessarily determinative of the question. If she is named as a tenant on the lease then that is conclusive. If she is a tenant then she has the right to continue living there. If she is a tenant, then the landlord's questions about proof of death and proof of executorship are quite frankly none of their business.

      Why would the landlord be asking these questions? Presuming there is a purpose to the questions I would GUESS that they are only now finding out about your mother's passing or alternatively they are trying to make it appear like they are only now finding out about your mother's passing.

      As the article describes, a tenant's death operates to terminate a tenancy. Exceptions are granted to spouses if they wish to continue the tenancy. Your sister does not qualify for any automatic right to continue the tenancy.

      What is interesting though is that the occupation of a rental unit on an ongoing basis may indeed create a tenancy or deem an assignment of a tenancy. In this regard I'm thinking about the unauthorized occupancy provisions at section 100 of the RTA. Your sister has clearly continued to occupy the premises past the termination date of the tenancy. The landlord has continued to accept rent from, presumably, your sister? Is there evidence that the landlord was aware of your mother's passing? A landlord is required to take action against unauthorized occupants within 60 days of becoming aware of their occupation of a rental unit. After that time, a tenancy may be deemed to exist or be deemed assigned. Asking for a death certificate etc., may be an attempt to create a "date of notice of death" that the landlord then says terminates the tenancy--i.e. they may claim they didn't know of the death until they got the death certificate etc..

      Ultimately, should you be worried? The questions they are asking this long after your mother's passing does suggest that the landlord is up to something. I can't imagine it being anything other than trying to assert that the tenancy is terminated and that your sister must move out. Accordingly, be careful in how you interact with them. I wouldn't refuse a death certificate (as anyone can order it--it is a public document). However, I would supply these documents with a covering letter commenting how they knew that your mother passed away and that this is confirmation. Or you could write back asking why they need it as they knew your mother died 9 months ago. Maybe confirm condolences received from Landlord staff?

      Ultimately, if they are trying to get the unit back--you need to take at least a two pronged defence--your sister has always been a tenant (so the passing of your mother doesn't terminate the tenancy) or alternatively, if your sister wasn't a tenant then the passage of time and her occupation of the unit for over 9 months post passing of your mother deems her to be a tenant as the landlord was aware of the occupation of the unit by your sister after your mother's death.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com
      Quinn Thiele Mineault Grodzki LLP

      Delete
  19. My Dad was diagnosed with stage 4 lung cancer 1 year ago. Up until now, he was still living very well on his own but took a turn for the worse a little over a week ago.
    Long-story-short, my Dad is no longer capable of living on his own and will now be transferred to a hospice where he will spend the rest of his days until his time comes.

    What type of notice do I need to give the landlord to advise that my Dad will no longer be residing in the apartment? Is it still 60 days since he hasn't passed away, or does the 30 days notice still apply to this case?

    If it is 60 days... and my Dad happens to pass away next week, can I then give the 30 days notice, even though I already gave 60 days?

    Thanks a lot for your help.

    ReplyDelete
    Replies
    1. Hi: I'm sorry for the difficult time that you are having. Bless you for looking after your dad. At the present time you would still give a 60 day notice in a Form N9 (available on the Landlord and Tenant Board website). If during the notice period your father passes I do believe that would trigger the 30 day termination and the tenancy would finish sooner if within the 60 day period. If your father passes towards the end of the 60 day period the notice period would not be extended as a valid notice to termination will already have been given.

      Take care.

      Yours very truly
      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  20. Can an executor make me leave the premises when me and my boyfriend lived together for four years? They took the car now they want me to leave the house :(

    ReplyDelete
    Replies
    1. Hi: You don't give me enough facts to understand your situation. If it is your landlord who died and your tenancy was covered by the RTA then you continue to have the protections of the Residential Tenancies Act. The death of a landlord does not terminate a tenancy.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  21. My landlady has just recently passed away, they were renting the house and subletted a single room to me in the house. What are My rights? She left a husband, but his name was not on my lease!

    ReplyDelete
    Replies
    1. Hi Russ: It is unclear from the facts you describe whether you are covered by the Residential Tenancies Act or not. If you were renting a room in a house owned by the landlord and you shared a kitchen and/or a bath with her, then you are not covered by the Residential Tenancies Act. If you were in a house owned by the landlord but the landlord did not live there and other persons occupied other rooms then you are likely a tenant in a rooming house with Residential Tenancies Act protections. If your landlady was a tenant in a house owned by her landlord and you rented a room for her (i.e. you rented from a tenant), then you are likely not covered by the Residential Tenancies Act as you are a "roommate".

      If your relationship with your landlord/landlady is covered by the Residential Tenancies Act then you do have significant rights even after the landlord/landlady dies. The death of a landlord does not terminate a residential tenancy in Ontario. The estate would become your landlord and eventually any purchaser of the property from the estate or any beneficiary to whom the property is transferred would become your landlord on the same terms and conditions as with the deceased.

      If your relationship is not covered by the RTA your rights were rather limited in the first place. While the contract between you and the landlady is still a valid contract (death does not likely frustrate the contract), you might find that there is no willingness to continue the relationship between the estate and yourself. As a non-RTA covered occupant you do not have a lot of rights to remain in the premises.

      It is important for you to figure out whether you are RTA covered or not. That will be the key to the answer to your question.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  22. I have a quick question about LMR deposit and the passing of a tenant. My father in law passed away and my husband is the next of kin. There is no will, executor or administrator of the estate. His rent is paid up so only the LMR remains. What are the obligations of the landlord in this situation and whom is the LMR deposit payable to?

    ReplyDelete
    Replies
    1. Hi: The Residential Tenancies Act does not specifically set out what happens with the Last Month's Rent deposit after a tenant passes away. If the rent is paid up until the deemed termination date of the tenancy then the LMR will have to be returned to the tenant--which in your situation will be the estate. A landlord could decide to make a cheque payable to the Estate of XXXX. Of course, if the relationship with the landlord is reasonable and presumably the landlord has been dealing with your husband as the estate representative--i.e. you presumably cleaned out the apartment--then it would be reasonable for the landlord to make the cheque payable to your husband. The landlord, I think, could reasonably ask for a letter confirming that you are receiving this money on behalf of the estate and if there is any claim from the estate for it that your husband will pay it. As the sum is not likely to be a large amount of money this would be the most reasonable way to proceed.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.