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

106 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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    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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    6. If the person dies, who is responsible to clean out the remains of the body, to get rid of the smell and to clean the apartment, if the body had deteriorated after 2 weeks. I was in that issue where the landlord refused to take action even when there was a foul toxic stench of death that came outside the apartment , into the hallway, intoxicating the other tenants, which I ended up dealing with the issue. Which the landlord had said it was the responsibility of the family to deal with it.

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    7. Hi: This is an unfortunate circumstance but not entirely uncommon. In the context of your question it is the landlord's responsibility to take action and clean the apartment. The tenancy was terminated 30 days after death and any continuing issue beyond that date is certainly he landlord's problem. During the 30 day period I would say it is still the landlord's "problem" but the cleaning is arguably chargeable to the estate of the deceased (but even this is not guaranteed). One thing though is absolutely clear---you as a tenant in the building have no obligation to fix this.

      Michael K. E. Thiele
      www.ottawalawyers.com

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    8. I've live with my father for a few years but was never added as a tenant. Now that he has passed away the landlords want me to vacate the premises within 30 days. Is there anything that can be done about this

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    9. Good day - Is it correct / legal to make a claim against the deceased tenants estate for the clean-up of the bodily fluids and the related repair. Part of the flooring had to be removed / disposed of and the section will need to be replaced.

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    10. It is indeed legal to assert a claim against an estate for damages caused by the tenant in life. The damage needs to have been caused wilfully or negligently to be recoverable under the Residential Tenancies Act as tenant are explicitly liable for damages so caused. If there is "damage" that is wilfully or negligently caused it must also be "undue" (as per section 62 Residential Tenancies Act). It is through the word "undue" that we get the notion that tenants are not liable for damage that arises through ordinary wear and tear. If you then begin to ask what is "ordinary wear and tear" you will find the best definition to be "you know it when you see it". It might indeed be difficult to argue that a tenant, by dying, causes damage wilfully or negligently. Indeed, the manner in which the damage was caused is perhaps within the contemplation of the concept of "ordinary wear and tear" if one considers that dying at home is not unnatural and there is an "ordinary" aspect to that function. I suppose another way to think about it is that a tenant has a duty to maintain the rental unit to a standard of "ordinary cleanliness" (section 33 RTA). If that responsibility is breached a landlord may indeed suffer damages and expenses in returning the unit to an acceptable standard of cleanliness. The same kinds of arguments can be raised again.

      Query, what do people think about an estate being responsible to pay for the costs associated with a deceased's death in the circumstances you describe? I imagine, that the notion that the estate would pay the cost (presuming the estate is not insolvent) would not be shocking. I do imagine that sensitivity is required in how the charge is levied.

      That being said, do remember that the cost of repair and the standard to which it is repaired would be subject to the usual deductions for improvement and betterment (at least I think that would be reasonable).

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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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    2. Hello. How fast are the locks changed out. And how do the family members get access to the unit?

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    3. The speed with which a landlord changes the locks isn't a uniform practice nor is there any legal requirement with respect to changing the locks. In my view, a landlord should change the locks immediately upon learning of the death of a tenant and then perhaps put a notice on the door for any person seeking access to contact the landlord's office. The landlord has a legitimate interest in preventing unauthorized people from accessing the rental unit and it may be unclear whether other people have a duplicate key for the rental unit. The unfortunate reality, in my experience, is that the worst bits of human nature can come out when a person dies. Aside from outright theft there is a sense of entitlement that creeps into some people that is shocking given their otherwise honourable disposition. Hence, changing the locks asap is a good idea. If you are the family member that is handling the estate or it is otherwise clear that you are the person in charge of the estate the landlord should provide you with a key to the unit once assured that you are properly authorized to be dealing with the tenant's estate. If you are "just" a family member but are not in charge of the estate the landlord should not be granting you access to the rental unit.

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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

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  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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    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

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  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).

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    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

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    2. We have a tenant that passed away & was found 8 days later.
      The executor of the will contracted out a cleaning & air cleaning company & they now asking that we the landlords pay for it. Who's responsibility is it to have the unit clean?
      Thank you.

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    3. We have a tenant that passed away & was found 8 days later.
      The executor of the will contracted out a cleaning & air cleaning company & they now asking that we the landlords pay for it. Who's responsibility is it to have the unit clean?
      Thank you.

      Delete
    4. Hi: I would be interested to know why the estate is asking for a refund of these payments. Perhaps there is a reason outside of the Residential Tenancies Act context that grounds the request for a refund. I can't imagine what that might be but it is odd the estate would pay and not wants to be paid back.

      In the context of the Residential Tenancies Act (RTA) I think that the cost of cleaning is a proper expense of the estate. The RTA does not specifically address the circumstance you describe. Therefore I would simply extrapolate/apply the sections of the RTA that speak to cleaning and cleanliness. Pursuant to section 33 RTA the tenant is obliged to maintain the unit to a standard of ordinary cleanliness. Nothing about this section is about "fault" or whether the tenant meant to or not. Whether a tenant who has died and by that act has caused the unit to fall below the standard of ordinary cleanliness should get some kind of break from the obligation is not an idea that I see supported in the RTA. The law, I think, clearly provides that if the tenant in whatever manner causes the unit to be below a standard of ordinary cleanliness then he tenant is responsible for getting it back to standard. In this case, as you describe, the estate decided to contract out the job. This seems reasonable enough.

      In short, in my view the responsibility for cleaning the unit rests with the tenant's estate.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  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

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  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.

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    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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    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

    ReplyDelete
  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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    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?

    ReplyDelete
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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

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    2. Hi Michael,

      This is the closest situation to my current experience. I am on disability and I had been subletting and living with my mom who had passed away in January. I am not named on the rental agreement with the property owner, so I assume that I am therefore not a legal tenant as defined by Ontario law.

      I had acquired this apartment for my mom back in 2000. (I had even paid the first and last month's rent on behalf of my mom out of my summer earnings.) However, I chose not to be named on the rental agreement because I was moving away to attend university. I returned home to live with my mom at least ten years ago and failed to add my name to the rental agreement.

      I am the executor of my mom's will as well as the sole beneficiary, not that she had any major assets. I had not notified the landlord of my mom's passing. My intentions were to find a new apartment and to dispose of my mom's personal belongings before notifying the landlord to terminate the lease. However, my neighbour approached me in the hall yesterday and asked me point blank if my mom had died. After telling her that my mom had passed away last month, she said the landlord had asked her if she knew if my mom had died because he saw the obituary in the news paper.

      I received a letter addressed to my mom's estate slipped under the apartment door today stating that the lease is null and void 30 days after her death and that they intend to change the locks on our unit on March 1st. I have yet to find a new apartment. I have yet to go through my mom's possessions and I have yet to start packing because I had undergone neurosurgery on January 31st and cannot do any heavy housework such as packing for at least six weeks after surgery. Is there any way that I can be protected from eviction on March 1st? I would like to remain in this apartment until at least May 1st so that I can recover from surgery, pack-up everything and move to an apartment that I can afford on my own. Because the surgery was so soon after my mom's passing, I haven't really dealt with much else. I don't know what to do. I don't even have copies of my mom's death certificate to deal with things like Revenue Canada. The death certificates have yet to be released from our Indian Band. The funeral director said the death certificates go directly to the band so they can recoup money from CPP for the funeral expenses before they can be released to me as executor of my mom's estate.

      Is there anything I can do? Any advice would be greatly appreciated.

      Sincerely,

      David Walker

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    3. HI David: I am very sorry for your loss. It seems, quite understandably, that you are grieving the loss of your mom and that everything is rather over-whelming at the moment. I hope you can find comfort and support from friends and your community and certainly speak with your doctor if it seems to all be too much to handle.

      I appreciate the facts you have provided here. The residential tenancies act does terminate a tenancy 30 days after the date of death of a tenant--if the tenant was the sole tenant in the unit. There are additional exceptions for spouses etc..

      Based on what you have set out here I don't think we should assume that you are not a tenant. I'd want to analyze quite closely whether you are indeed a tenant with RTA protections. Don't concede this point to the landlord and don't assume that you are not a tenant as defined in the RTA. This is something that the Landlord and Tenant Board should likely decide. In the mean time, changing your locks would be illegal.

      I'm afraid that saying a whole lot more in this response is very difficult because there are a lot of unanswered questions and your strategy moving forward depends on what you want. For instance, can you afford the rent and do you want to stay? Does the landlord like you well enough? Can you afford the rent on your own? Can you afford what would be the new market rent? Will the landlord negotiate with you? Will the landlord negotiate with you if there is a legal fight brewing?

      The answers to these questions, and others, are necessary for a lawyer or paralegal to decide how to represent you. I do hope that you are able to get representation. Try a local community legal clinic or local lawyers or paralegals that have experience with landlord and tenant law. I don't know where in Ontario you are located but hopefully you have access to experienced legal representation---the key being "experienced". If the local clinic is unable to help you--or it's beyond their immediate resources--ask them if they can arrange for a legal aid certificate that you can use to retain a private lawyer. I don't use this blog to "get clients" as my purpose here is to share information and not to be conducting business---however, if you are near me then know I would help you. If you are not near me but have a lawyer or paralegal that would like to speak with me I'd be happy to give them my thoughts about what to explore on your behalf.

      Good luck David.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  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.

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    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

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  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
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    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

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  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
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    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

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  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
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    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

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  23. My husband and I share joint tenancy for our rental. If one of us passes away does the other HAVE to complete the term of the lease or can they vacate after 30 days without penalty? I ask because just one of us could not afford to carry the monthly rent alone.

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    Replies
    1. Hi: In Ontario that has, historically, been very little guidance in the residential tenancies law about the death of a tenant. We have more guidance now with section 91 and the regulations and spouses are in fact tenants by definition if they wish to be when the named residential tenant passes away. However, you are describing a somewhat different situation. You are both named tenants on the lease. The effect of this is that the normal rule that a tenancy ends 30 days after the death of a tenant is not applicable. The law simply makes you the sole tenant (arguably the common law assignment of the tenancy to you applies). If you need to terminate the tenancy after the death of your spouse then that is something to work out with the landlord.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  24. Hi Michael,

    If a tenant dies and the family or executor cannot remove all the personal belongings, is the property manager make a claim against the estate for the removal costs?

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    Replies
    1. Hi: The best answer I can give is to take a look at section 92 of the Residential Tenancies Act. This section allows the landlord to dispose of the property once the tenancy is terminated. Presumably in the disposal there will be some value and things that are valuable should not just be thrown away by the landlord. Notwithstanding the direction in the RTA, a landlord should preserve clearly sentimental items and things that can not be easily replaced for a more reasonable period of time than after the termination of the tenancy. Selling or throwing out should really only be done once the family is contacted or serious attempts of contact have been made. While the RTA says liability does not attach to a landlord once the tenancy ends, the Courts have looked at this differently.

      As you can see from section 92, a landlord can charge an estate for the costs against the proceeds from selling and dealing with the stuff. This arises when the family or executor approaches the landlord for the proceeds of sale or the return of the property.

      However, what if no one shows up? Can a landlord charge the estate? The RTA is silent on this question. However, I think charging an estate is next to impossible if no-one shows up to administer the estate. Who do you claim against if there is no executor? You already have all the assets in the apartment? How do you actually get paid if there is only a deceased tenant and no executor? I suppose, it is theoretically possible for a landlord to sue an estate, have an estate trustee appointed, and get compensation that way. The expenses better be extraordinary though because proceeding that way will take a lot of legal expense.

      Michael K.E. Thiele

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  25. Hi Michael, what would happen if the tenant had dependable family members and had died while being the bread winner of the family, thereby, leaving the dependable family members with no income in the apartment. Would they be forced to leave after 30 days?

    ReplyDelete
    Replies
    1. Hi: If the lease only contains the name of a single family member as the tenant then the tenancy will terminate 30 days after the date of death of the named tenant. If there are other family members named as tenants then the lease continues. If there is a spouse of the deceased tenant living in the rental unit then that spouse has an option to continue the tenancy or vacate. The applicable Rules are in O.Reg. 516/06 section 3, and section 91 of the Residential Tenancies Act.

      Otherwise, the dependents would have to vacate the rental unit after the termination of the tenancy. Deals of course can be worked out and if agreeable, the 30 day time limit can be extended with the landlord's agreement (usually if the rent is paid).

      Michael K.E. Thiele

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  26. Do you have to inform your landlord of the death of your roommate (suicide) who is not named as a tenant on lease for the rental property?

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    Replies
    1. Hi: I presume from your question that this has happened to you and for that you have my sympathy. Please make sure to reflect on how this has impacted you and to speak with someone about the traumatic impact of your roommate dying by suicide.

      I presume that under the circumstances police, paramedics, coroner, and other "officialdom" was notified of the death, they attended, and all was properly resolved. Beyond that, there is no specific obligation in the Ontario Residential Tenancies Act to notify the landlord of this event. Accordingly, there is no basis for termination or eviction in the RTA for the failure to inform the landlord of the incident. If you are in a multi-tenant building, the other tenants will presumably be aware and will probably inform the landlord anyway.

      If there is a particular reason why you are worried about the landlord finding out about this death please feel free to say so. If you are worried about the roommate not being on the lease, or something of that nature, you may be surprised to learn that the landlord (for example) has not right to restrict who your roommates are.

      I hope that helps. If there are specific concerns that you would like to ask please feel free to email me privately and I will respond (no charge).

      Michael K.E. Thiele
      www.ottawalawyers.com

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  27. What is the law if i lost my father and he had a temporary roomate who is not on the lease? I do not want this person there when i go to deal with my dads things, and do not trust this person necessarily either.

    ReplyDelete
    Replies
    1. Hi:

      Firstly, my condolences to you.

      The roommate has no legal status in the property vis a vis the landlord. Your dad's tenancy terminates 30 days from the date of his death. The roommate's occupation of the premises is subject to the agreement he had with your father but it conveys no more rights than what your father had. Under the circumstances, you can ask the roommate to vacate the premises. Not liking him and not trusting him is unfortunate. However, that on it's own without any additional proof or evidence is not, in my view, enough to ask him to leave immediately and without notice. I think you still need to give the roommate a reasonable notice to get out. Given that you have to vacate the premises within 30 days of the date of death you can see that the notice period will not be very long.

      If the roommate wants to make a deal to rent the unit from the landlord that is up to them.

      Michael K.E. Thiele
      www.ottawalawyers.com

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  28. Hi,
    What is the procedure if my mom passed away outside of Canada. She was leaving alone and she hadn't have a will. The landlord didn't let me to enter my mom's apartment.

    ReplyDelete
    Replies
    1. Hi: I'm sorry for your loss. What to do when a tenant passes away is problematic for landlords in that they are concerned about giving access to a tenant's apartment to someone who shouldn't have access. The RTA does provide some guidance but many landlord's are still uncomfortable. If this is an ongoing matter try getting help from the Housing Enforcement Unit--they may be able to convince the landlord to give you access.

      Otherwise, you are left filing an application to the Landlord and Tenant Board. I think you would qualify as a tenant (as the heir), and you could ask for an Order granting access. In the mean time you would ask the landlord to preserve the rental unit and the items in it. If there is no satisfactory response from the landlord ask for an expedited hearing or alternatively an interim order pending the hearing.

      Depending on where in the province you are, you may wish to go to a local community legal clinic or even to duty counsel at the Board for assistance.

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

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  29. A tenant passed away and their account is in arrears. Am I understanding that the unit can not be rented out until the 30 day period is over (thus incurring even more arrears)?

    ReplyDelete
    Replies
    1. Hi: The "death of a tenant" provisions (section 91 RTA), are there to bring clarity to what happens to an otherwise valid tenancy when a tenant dies. Under section 91, the tenancy terminates 30 days after the death of the tenant. The section says nothing about requiring the tenancy to continue until 30 days after the death of the tenant. Nothing in the section prohibits a unit from being re-rented if you have lawful vacant possession of the unit. A tenancy, where the tenant has died, may indeed be terminated earlier with the agreement of the estate.

      The rent arrears owed and the rent for the next 30 days after death are owed by the estate. Of course, if the estate has no assets that is cold comfort.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  30. Thanks. My understanding of that section was you could not re-rent the unit until the 30 day period is over since the tenancy is only terminated on day 30, how do you rent out a unit that still has a tenancy in place.

    ReplyDelete
    Replies
    1. Hi: Nothing prevents you from terminating the tenancy earlier with the cooperation of the estate. I don't know the circumstances of your specific tenancy. However, if the deceased tenant does not have family or anyone looking to handle the estate then the 30 days is somewhat arbitrary. If the unit has very little in it, very little of value, and no one is showing up to claim the personal property or take steps to clean out the unit, then you might consider going in and documenting the contents of the unit, packing up anything of value, cleaning the unit and simply re-rent. Store the personal possessions until such time as it is claimed by relatives or it becomes clear that no one will ever claim them. If the deceased tenant does have family and there is someone acting on behalf of the estate you could speak with them, agree to terminate earlier, etc. etc.. The rent arrears and rent for the 30 day period are debts of the estate and if the estate has any assets you are entitled to be paid before there is any distribution to the beneficiaries. Hence, it is in the interests of the estate to return vacant possession of the unit to you as soon as possible. If they return it sooner--then arguably the rent obligation stops as of that earlier date. Given you are in arrears anyway, it is probably just as well that you get possession as quickly as possible.

      If you are concerned about the statutory authority for what I've said above regarding agreement to terminate earlier etc., take a look at section 92(5) RTA. It provides:

      Agreement
      (5) A landlord and the executor or administrator of a deceased tenant’s estate may agree to terms other than those set out in this section with regard to the termination of the tenancy and disposal of the tenant’s property. 2006, c. 17, s. 92 (5).

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Thank you, Michael. I guess in my mind the unit is exclusively theirs until the tenancy is terminated, and the tenancy is only terminated after the 30 days.

      Thank you for clarifying.

      Delete
  31. My mother passed away recently. We are currently cleaning out her apartment. There has been considerable amount of damage done to the floors by her animals. My concern is can the management go after family members to cover damages in her absence. She lived by herself, but I live directly across the hall. She had no will or estate. Please clarify. Thanks

    ReplyDelete
    Replies
    1. Hi:

      I am sorry for your loss.

      The debts and obligations of a deceased person are not "inherited" by the children. This means that debts owed by the deceased or other obligations--like paying for damage caused by pets in an apartment--is not passed on to the next of kin. The liability, if any, remains with your mother's estate.

      The question is whether your mother's estate will be administered or not. If there is no Will and no one has been appointed as Estate Trustee then it is possible that the estate has no appointed legal representative. In that case, the landlord will not really have anyone to go after. However, if the estate does have a legal representative, then the landlord would submit the claim to that representative. The representative (normally called an Estate Trustee), would administer the estate. That means collecting in all of the assets, applying for government benefits, preparing and filing tax returns and getting clearance certificates. While collecting the assets the estate trustee would also take steps to determine the liabilities of the estate--everything from credit card debts, to funeral expenses, professional fees etc. etc. etc.. If it looks like the debts will exceed the assets then it gets a bit tricky. Certain debts have a priority for payment and other debts remain part of the remaining pool of debt that will be paid on a proportional basis after the priority debts are paid.

      Getting some help, in administering an estate makes the most sense. Having an accountant and a lawyer can be most helpful in determining exactly what to do.

      The key, in answering the point of your question, is that you have no personal liability for debts in dealing with the estate. An exception can be, however, if estate assets are distributed to beneficiaries without first dealing with the debts. Note again, this can be tricky given priorities and the estate trustee's right to compensation for doing the work.

      Estate administration is a big job and a lot more complicated than it seems. If you are thinking of taking this on (beyond just cleaning up your mother's place) consider getting some legal and accounting advice.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  32. My husband passed away 3 yrs ago, both names were on lease. I am now being told I need to provide a death certificate to have him taken off lease?

    ReplyDelete
    Replies
    1. Hi:

      Firstly, please let me say that I am sorry for your loss.

      Unfortunately, the Residential Tenancies Act (RTA) does not have much to help you. In fact, adding, deleting, and swapping names on tenancy agreements is something that the RTA is silent on. A co-tenant moving out, a new person moving in, or as in your case a co-tenant (and spouse) passing away, these circumstances are not addressed in the RTA vis a vis adding or deleting names from a continuing tenancy.

      As you have likely determined, the passing of your husband has had no effect on the legality of your tenancy continuing. Even if you had not been named on the lease you would have been included in the definition of tenant and would have had the right to continue the tenancy. At this stage, with three years having passed you are legally a tenant in a myriad of ways.

      I'd be curious to know if the continued inclusion of your husband's name on the lease is causing you any particular "problem". Certainly in any legal proceeding against your husband, if that was intended, the landlord etc., would need to proceed against the estate and not your husband. It is difficult to see how the estate continued any liability beyond the date of death and the passage of 3 years now has likely barred claims in any event. Hence, I presume that your concern isn't legal liability but if it is, please let me know.

      If your goal in removing your husband's name is to relieve against "reminders" (perhaps on legal forms served such as Notice of Rent Increases etc.), then the easiest thing to do is to provide the landlord with a death certificate. The landlord may accept the certificate from the funeral director if you still have that. Alternatively, you can order a death certificate from the Province of Ontario for a small fee. It can be ordered on-line through Service Ontario.

      Of course, it would be nice if your landlord would simply accept your word that your husband has passed and do the decent thing and remove his name. I will presume though that your landlord is a rather large corporate entity and that "knowing" the tenants is beyond their ability. Presumably, if the landlord "knew" you and your husband then they would simply proceed to remove his name. I say this because there is absolutely no legal prohibition to removing your husband's name. Said another way, the law does not require the provision of a death certificate to remove a person's name from a lease.

      I hope that assists you somewhat.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  33. If no family has claimed apartment belongings of a deceased friend and doesnt want anything to do with the belongings and are ignoring the situation can a friend step in and claim the belongings? In ontario

    ReplyDelete
    Replies
    1. Hi: Thank you for this somewhat complicated question and my condolences to you on the loss of your friend. You would think the answer would be straight forward but there are indeed some curves to this.

      As the article/blog indicates the tenancy of a tenant who dies is terminated in accordance with section 91 of the Residential Tenancies Act (RTA). That is 30 days after the date of death of the tenant or such other time as agreed. Section 92 of the RTA sets out how a landlord may dispose of the property of a deceased tenant. A very general summary of section 92 is that the landlord may immediately dispose of anything that is unsafe or unhygienic. For the rest of the property the landlord may sell, retain for own use, or otherwise dispose of property after the tenancy is terminated in accordance with section 91. On this wording you could say that the RTA authorizes the landlord to sell, throw out, or keep the deceased's tenants property on the day after the tenancy is terminated (i.e. the 31st day after death).

      It is a little more complicated though. Section 92(3)&(4) provide that any property that the landlord sells or keeps must be returned (cash or actual item) to the estate or family if they make the demand within 6 months of the death of the tenant. The landlord may deduct selling expenses or other out of pocket expenses for moving, storing or securing the property.

      Presumably, 6 months after the date of death recourse against the landlord becomes more difficult. While the RTA reads in a way that liability against the landlord should be foreclosed after the 6 month period, I don't doubt that any property retained or funds held after 6 months could be characterized in a civil action as a bailment, trust, or support a claim on other equitable grounds.

      With the foregoing, let's get to your question. Can you as a friend claim the deceased's belongings. In my opinion you have zero claim to the property arising from your capacity as the deceased's friend. It is not a status that is recognized in the RTA. That being said, I know that many landlords find dealing with the property of a tenant to be a headache. It can be expensive to collect and throw things out, Some items, being valuable, should also be sold and some items having obvious sentimental value only should not be disposed of (at least not immediately) in order to give the family a chance to recover these items (think--heirlooms, photo albums, mementos, family heritage items). To that end, you might find the landlord receptive if you offer to clean out the unit, agree to sell the valuable items and make the money available to the estate (less your expenses if asked), agree to keep heirlooms and mementos for a reasonable time for family members and seek to distribute these to the family, and lastly, in exchange for you being able to retain some of the items for your own use. The landlord might just find an offer like this to be too good to refuse and I think, keeping in mind section 91 & 92 that this could be a reasonable course of action for the landlord to take.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  34. Hi Michael,
    My husband passed away,and when I informed the office, 3 days after his death, and I guess I told them that I'm taking over, they gave me an application paper to fill it up, and they want to have it asap. My worry is that is that gonna be like a new application and then they will gonna charge me the new rate? I didn't gave them yet the paper, and im worried that if I'm going to pay the rent this month,they will not accept me and try to evict me

    ReplyDelete
    Replies
    1. Hi: I am sorry for your loss and I hope that you are finding support and comfort from family and friends. I'm glad that you found this article because you can see that you are already a tenant by virture of being the spouse of the tenant. You could email the landlord and tell them that you are continuing to live in the unit and that the same terms of the tenancy continue. If they disagree or take issue with what you're saying you could show them this article or tell them to look up the sections of the Residential Tenancies Act that are cited in the article.

      As for giving them the application form that they gave to you I wonder if they are not just looking for details about you for the purposes of knowing who you are--if they did not have this information on file. I think it would be fine to give them information--such as your name, telephone number. I don't see the point in giving them other information such as credit and references as you are already a tenant. If you pay the rent by direct deposit you may need to change the banking information.

      Ultimately, in however you deal with the landlord simply make it clear that you intend to continue to rent the unit. If the landlord disagrees (for whatever reason) they will have to apply to the Landlord and Tenant Board at which time you can make the arguments based on the law. From what you have written I don't see how the landlord would have any grounds to terminate and evict you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  35. I have a unique situation:
    My sister-in-law's father recently passed away, and he was the only one named on the lease. He had a girlfriend who was also living with him but was not named on the lease, and my sister-in-law does not want to renew the lease.
    There was no will left, so there were no instructions as to what to do for her father. Everything falls to my sister-in-law.
    We need to write a notice to the girlfriend of her father to notify her about vacating the apartment, even though my sister-in-law is not on the lease, would not be considered the landlord, nor the leaser. How would she notify the girlfriend to remove herself from the apartment?

    ReplyDelete
    Replies
    1. Hi: The deceased's girlfriend could legally be considered a tenant in the rental unit. While the deceased (father of sister-in-law) was the only person named on the lease the Residential Tenancies Act could include the deceased's girlfriend in the definition of tenant. A "spouse" of a tenant can have the right to occupy a rental unit, as a tenant--that is what the Article above was all about. The question then is whether a "girlfriend" is a "spouse". The definition of spouse is NOT limited to people who are married to each other and is therefore a bit more expansive. Take a look at section 2(1) of the Residential Tenancies Act to see if the expanded definition applies.

      If the "girlfriend" does not fit within the definition of tenant then the landlord can take steps to recover possession of the apartment if it wishes to do so. If the landlord does nothing and the girlfriend remains and pays rent then quite possibly there will be a deemed assignment of the lease to her.

      I think that the most that your Sister in law needs to do is to inform the landlord of her father's passing. Beyond that it is up to the landlord to deal with the "girlfriend". If you are indifferent to the girlfriend staying in the apartment then there is really nothing for you to do. The girlfriend can make her own arrangements with the landlord.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  36. Hi Michael,My husband passed away, and we lived together.As a spouse can i continue living in this apartment ? And we fill up form before that its shows that he added me already that i can live this apartment .

    ReplyDelete
    Replies
    1. HI: I am sorry for your loss. In Ontario the definition of "tenant" includes a spouse when the tenant spouse passes away and the tenant spouse who dies was the only tenant on the lease. If, as the surviving spouse, you want to remain in the rental unit then you are entitled to do so on the same terms (same rent) as you were paying before your husband passed. You do not have to sign a new lease nor qualify to rent the unit again.

      If you are indeed a named tenant on the lease then you have the right to continue regardless of your status as a spouse. You simply have the right to continue because the lease recognizes you as a tenant.

      It seems to me that you are a tenant, with the right to stay, either as a spouse of a tenant or as a named tenant in the amended lease.

      If you need more information or want to read about the "spouse as tenant" provisions cut and paste this link into your browser and read section 3.

      https://www.canlii.org/en/on/laws/regu/o-reg-516-06/latest/o-reg-516-06.html#sec3subsec1

      May peace be with you.

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete
  37. Hi, my dad and I lived in this apartment in toronto for 25 years (since I was a child). We're both on ODSP and the apartment is subsidized. Will I be evicted when my father passes? If not, will the apartment still be subsidized for me?

    ReplyDelete
    Replies
    1. Hi: With a rent subsidy I'm going to presume that you live in a non-profit housing corporation property. Presumably the tenancy is subject to the Housing Services Act and there is a level of government acting as a "service manager" to your landlord. When this is the case the standard Residential Tenancies Act rules and sections don't always apply. Entire parts and sections of a tenancy, in the circumstances described, are exempted from the Residential Tenancies Act. The most significant exemptions are with respect to the rules relating to rent, subletting, and assignment.

      What your rights are is unclear from your question. I imagine that your income is considered in the calculation of the rent of the household (it would normally have to be). Given the circumstances and the length of the tenancy, it would be worthwhile to see if you acquired rights as a tenant or became a tenant along the way. This tenancy has lasted through a few different legal regimes and different governing legislation and it might be worth going through the "tenant file" (i.e. get a copy), to see your status in the unit over the years. This is likely best done by a lawyer or paralegal and given your receipt of ODSP you should qualify for the services of a community legal clinic without charge.

      There are different subsidy arrangements and subsidy programs entirely separate from typical Housing Services Act covered programs. This might include your father's tenancy. If so, then the rules will again be completely different. The only way to know this for sure is to get a copy of the file (a copy of the lease is a great place to start), and if you have copies of the Household forms that are usually required to be filled out (annually) the should give an indication of what program(s) you are under. Again, you'd be best served by seeing a legal clinic and bringing this documentation with you.

      Lastly, my experience with the vast majority (though not all) social housing providers is that they are bound by rules and policies. The purpose of social housing providers is to "house" people and they exist not to evict and make people homeless. Therefore policies tend to be generous and there is flexibility that favours the purpose of them. Because of this, I'd certainly be inclined to reach out to the housing provider to get your questions answered and the issues sorted. If the answer is "bad news" then at least you know. If the answer is good news then fantastic. OR, quite possibly, the answer will be that you need to fill out paperwork, make applications, or take other administrative steps to ensure that you will have subsidized housing when your father passes. If it is this last possibility it would be best to get started as soon as possible.

      I encourage you to call a local community legal clinic or a local housing support organization. They will know the rules in your local community and likely already have contacts within your landlord's office to speak with.

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

      Delete
  38. I know you have dealt with this topic above but I want to be sure as both of my siblings are asking this.

    My husband of 6 years is elderly (89) and his name only is on the lease of our apartment in Toronto.

    Should he pass away, can I still remain in the apartment at the rent he was paying. In other words, can the rent be increased to full market value or can I still pay the lower rent he was paying.

    Thanks

    Karen

    ReplyDelete
    Replies
    1. Hi Karen:

      In general terms, spouses of tenants who pass away are entitled to continue the tenancy and are deemed to be tenants pursuant to section 3 of O.Reg. 516/06. To ensure that the law applies to your situation you should read the section or consult with a lawyer or paralegal who can ask you additional questions to confirm the applicable facts. An example of a question to be asked is whether the rental unit is also your principal residence---typically one presumes that it is but it is not necessarily the case as spouses can have different principal residences from each other. The reason this matters is that it is a requirement of section 3's applicability to you. You can cut and paste this link to get to the section (sorry I can't live link in comments on this platform) : https://www.canlii.org/en/on/laws/regu/o-reg-516-06/latest/o-reg-516-06.html#sec3subsec1

      With respect to the rent that your husband pays, I presume that this is a market rent in a non-subsidized apartment. If there is any kind of rent subsidy that is income dependent then you can't presume that the rent will stay the same. Your question raises an interesting query and that is whether the apartment is in a social housing project--typically operated under the Housing Services Act. If it is, I imagine that the tenancy would end--though I confess that this is not immediately apparent from the typical exemption sections. If this apartment is in a social housing project or operates under some other program let me know and I'll research that question. Otherwise, if it is a regular private market property then there should be no issue. The rent will remain the "same" and not increase to market rent.

      I hope that assists you. It does get a bit complicated but I hesitate to give a categorical "yes" or "no" as minor changes in the facts can change the outcome. You may wish to consider a 30 minute consult with a an experienced landlord and tenant lawyer or paralegal--wherein you can be asked the questions needed for a firm answer.

      Good luck
      Michael K. E. Thiele

      Delete
  39. Hi! If a tenant dies and the landlord rents the paratment exactly after 30 days period, are they obliged to let the new tenant know that there has been a death in this room? As a tenant, do I have the right to know if there has been a death recently?

    ReplyDelete
    Replies
    1. Hi: There is nothing in the Residential Tenancies Act that requires a landlord to disclose this kind of information. For the most part, and I think most of the time, there would be no basis for a claim or other action arising from this non-disclosure. Of course, if you asked the landlord and the landlord lied about it (prior to renting) then there may indeed be recourse.

      That being said, I don't want to be categorical about there not being a right of action against the landlord. A death in a property, the manner of death, and in fact any activity in the property that is particularly notorious may attach a stigma to that property. The stigma attaching to the property may have a particular impact on its future use and therefore the failure to disclose what happened there may be grounds for some kind of relief. If there is anything particularly unusual about your situation and it is causing some kind of unexpected difficulty you may wish to consult a lawyer or paralegal with more specifics of your situation to see if something can be done.

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

      Delete
  40. Hi. I been living with my dad ( hes ill i keep care of him ) only him and my mom are 9n lease ( she passsed years ago) when my dad sadly eventually passes. Id like to continue renting apt. Will i be allowed? Ty so much for yur expertise!

    ReplyDelete
    Replies
    1. As a surviving child of a tenant you do have any special status that would entitle you to remain as a tenant in the rental unit. The law, quite cruelly in my view, terminates the tenancy 30 days after death without regard to the fact that the child who looked after the tenant has no place to go. That the child, as caregiver, may be grieving terribly and not really be position to pack up the rental unit and find a new home after dealing with the funeral etc., seems to be of no concern in the Residential Tenancies Act. The RTA does permit a landlord and an estate to agree to a different termination date--but it does not require it.

      I suppose one benefit of the Landlord and Tenant Board's current inefficiencies is that it will take a very long time for the landlord to get and Order evicting an over-holding child or co-occupant in the rental unit. Hence, if you don't leave within the 30 days then the Landlord needs to get an Order and right now (January 2023) that is likely to be no sooner than 6 months down the road (and likely longer).

      Of course, the landlord can choose to rent to you. If you have a good relationship with the landlord and you are willing to sign onto a new lease (at a new market rent or close to it) the landlord might be quite pleased to make a deal with you. However, the landlord is not required to do so.

      There is another alternative, of course, and that is to try to get on the lease now and to be recognized as a tenant--now. Do not wait until your father passes. Contact the landlord now, get your dad to agree, and get yourself signed on as a tenant now. The landlord may be willing to add your name to the lease but if not, at least you will know where you stand when the time comes.

      Delete
  41. My sibling has passed away (without a will) and I’m the executor I am in the process of clearing out the unit and the property manager will be onsite to do an inspection of the unit The landlord is asking me to sign an N9 notice to vacate. Why is this even necessary? The tenancy agreement was with my sibling, not me.

    ReplyDelete
    Replies
    1. An N9 is a tenant's Notice to Terminate. The form is delivered with a minimum 60 days Notice to the end of term (meaning the last day specified in the lease or if the tenancy is month to month then at least 60 days hence with the last day of the rental period (day before rent is payable) typically being the end of the month). The landlord is asking you to sign this form as the landlord believes that the tenancy is continuing or the landlord is offering you the N9 as a way of demonstrating what time you might need to clean up the apartment and move things out of the unit. If your sibling lived alone (sounds like it), then the tenancy ended 30 days after death by operation of the Residential Tenancies Act (RTA). Often enough, 30 days is not a reasonable amount of time to do all that is necessary. The RTA does allow the estate and the landlord to agree to a different timeline for moving out. Perhaps the landlord asking for an N9 is the easier way, without getting into a discussion, of saying--when is it convenient for you to leave?

      Delete
  42. My parents both passed in July 2022. They signed a 6 month lease a few weeks before their death. Is the estate still responsible for the remainder of the lease? Or only 30 days? My sister also went ahead and had the lease renewed on the estate's behalf for another 6 months. It's a 2 bedroom apartment, and I'm curious if the estate is responsible for that 25k+ in rent, or if it should come out of my sisters half of the residue estate? Is there a set time to clear out the rental property of the deceased? Or am I on the hook to cover half the rent because the executor took forever to empty the apartment?

    ReplyDelete
    Replies
    1. I am sorry for your loss.
      The tenancy terminated 30 days after the death of your parents regardless of the fixed term lease. Absent an agreement with the landlord, the time to remove the tenant's property from the rental unit is that 30 day period. Of course, you can imagine that the 30 days, in some circumstances, will be woefully inadequate. For this reason, the Residential Tenancies Act does allow the landlord and executor to agree to different terms including extending the lease. The Residential Tenancies Act does not deal with the reasonableness of extending the lease and it certainly would have no view about your sister extending the lease for another 6 months or longer. The Residential Tenancies Act has no comment or view about estate administration in the context you describe.
      You may have cause to complain and indeed you are entitled to question the trustee in how the trustee executes the duties if you are a beneficiary. For that you should consult your own lawyer.
      Best of luck.

      Delete
  43. Hey would love your thoughts on this. A loved one passed and she had previously paid first and last month rent so family had plenty of time to clean and move things out. We offered to be out in under 30 days and landlord refused and kept the extra last month rent… no biggie for us however while we still had keys in our possession and still had two weeks left with in the last month rent we went to collect the remaining belonging and found that they had started major renovations on the apartment while we still had some belonging in there still in possession of keys and still more then 2 weeks left in the last month rent. The landlord did not give us any notice and no approval to be in the apartment. Any help would be greatly appreciated

    ReplyDelete
    Replies
    1. I think it's rather clear from the facts you give that what the landlord did is wrong and contrary to the law. The RTA terminates the tenancy 30 days after death. It would make sense for him to keep any rent payable for that period of time. Hence, offering to move out sooner than 30 days doesn't get you a proportionate refund. That being said, you've paid for the entire 30 days and therefore the space is yours for that period. If the landlord enters early then at a minimum he owes you a rent abatement for those days and arguably something for illegal entry.

      As for the 2nd rent or LMR, that needs to be returned. He was not entitled to keep it. If possession was returned on or before 30 days after death then he doesn't have an argument.

      On the issue of items in the unit. It is always a tricky issue for a landlord to dispose of items in a unit. While the Residential Tenancies Act can lead one to believe that at a certain time the stuff can be disposed of, the law is more complicated than that and the law of bailment can apply---thereby imposing an obligation on the landlord for a much longer period than what the RTA says.

      Ultimately, the question for you will be whether it is worth your time and trouble to commence and pursue legal proceedings. Is there enough money at stake to be worth it? Maybe the landlord is counting on it not being worth your time. You also have the issue of having standing to pursue the claim on behalf of the estate (it does not sound like you are the estate trustees?).

      Good luck

      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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