I've started to get calls from (student) tenants who are worried by the fact that their roommates are moving out at the end of the semester without any apparent concern for the ongoing obligations under the lease with the landlord. Many of these callers are in for a truly nasty surprise.
The legal position of the tenant who remains in the unit depends on the nature of the relationship between/amongst the tenants and the relationship between the tenants and the landlord. The kinds of relationships can include the following:
- The occupants of the apartment all signed the same lease, for a fixed term (usually a year), and all are listed as tenants.
- Of the occupants of the apartment only one signed as the tenant with the landlord. Everyone else in the apartment is a roommate or is listed as an occupant on the lease. There is an agreement between the occupants and the named tenant that deals with the obligations (i.e. rent etc.,) of the tenant towards the landlord. This relationship often arises unintentionally amongst students as the lease gets signed incrementally and some of the intended tenants never get around to meeting with the landlord and signing the lease.
- Each of the occupants of the apartment has a separate agreement with the landlord respecting rent for a room in the house. There are "rules" for the house. It is run as a rooming house.
If the situation you are in is in the nature of #1 above, then you need to understand that the landlord has the right to enforce all of the obligations against all or any of the tenants named in the lease. This means that the landlord can look to any one of the tenants for the entirety of the rent, for the entirety of the costs of any damage, or for any of the obligations under the lease or breaches thereof. This applies regardless of whether there is an agreement amongst the tenants that each of them share in paying the rent equally. The landlord does not have to concern itself with the agreement amongst the tenants and it is not a defence for any one tenant to say that they have paid their "share" of the rent.
If one of the tenants leaves early, pulls a midnight move, simply fails to pay their share of the rent, or causes damage etc., the landlord will look to be paid by the remaining tenant(s). The landlord will normally look to the tenant who is in the best position to pay to recover what is owed. The tenant who ends up covering the share or portion of the rent/damages of the tenant who disappeared may pursue a claim against the co-tenant--but not at the landlord and tenant board.
The Landlord and Tenant Board does not have the jurisdication to adjudicate claims as between co-tenants. Hence, if the claim is worth less than $25,000.00 the appropriate forum in which to litigate the claim is the Small Claims Court. Where there are co-tenants on a lease and the arrangement with respect to the obligations of that lease can be demonstrated (i.e. share rent equally, or some other proportion), and a breach of that arrangement can be demonstrated, then the Court will likely make an award against the breaching tenant---i.e. grant a judgment against the tenant who did not pay, pulled the midnight move etc.. The award will likely include an amount for costs and interest.
There is an interesting issue that can arise when a co-tenant absconds within a fixed term of a lease (for example--when there are 8 months left before a Notice of Termination can be given to the landlord). Is the tenant who absconded automatically liable to the co-tenant for the full rent of the remaining term of the lease? Or, is the remaining tenant required to mitigate losses (i.e. reduce the damages) by seeking a replacement roommate or perhaps even trying to sublet or assign the tenancy to someone who will cover the whole cost of the tenancy? If the remaining tenant is required to seek a roommate (to reduce the damages)--how fussy can they be, what would constitute a reasonable mitigation?
There is some law that suggests that in a co-tenancy arrangement for a fixed term that a co-tenant may not terminate the tenancy before the expiry of the term. The co-tenant who does not breach the lease may require the co-tenant to perform the obligations under the lease for the entire fixed term. The logic for this position is that the co-tenants entered into the fixed term on a common venture and they agreed to be bound for this period of time to each other.
This changes when the fixed term expires and the lease continues on a month to month basis. The law does not presume that co-tenants, after the expiry of a fixed term, intend to remain bound to each other for an indefinite period. Therefore, in a month to month tenancy either or any of the co-tenants are permitted to give the requisite Notice of Termination of the Tenancy to the landlord to terminate the tenancy. If the remaining tenants do not wish to remain in the property it is open to them to enter into a new landlord and tenant relationship with the landlord.
If you are the tenant, described in scenario 2 above, then you are entirely and solely responsible under the lease to meet all of the obligations towards the landlord. This includes rent, damage, ordinary cleanliness---basically everything that may be required of a tenant. This is the case regardless of what your roommates do as it is no lawful excuse to say that you didn'd do it---it was your roommate.
Being the only named tenant in the lease imposes great obligations--only on you. However, it also provides the benefit of being able to control the rented premises. If any of your roommates misbehave, are unruly or simply unreliable, you can require them to vacate the premises on rather short notice simply by calling police and asking them to remove the roommate.
If you are the roommate of a tenant it is sometimes disquieting to discover that your tenant/roommate is rather arbitrary and imposes rules without consultation for his/her apartment and threatens to throw you out and change the locks when you leave the apartment. If your tenant/roommate actually does throw you out there is very little to nothing you can do to get back into the apartment as you do not have a legal right to live in the unit--regardless of whether you have a written agreement with your tenant roommate. The most you will have is the right to sue the tenant for her/his conduct in throwing you out.
As the tenant in this scenario it is important to consider the relationship with your roommates. If the roommates are simply "company", a bit of fun to have around, and their financial contribution to the house is nice--but unnecessary (i.e. you don't care if they come or go from a contributing to the rent perspective), then the need for a carefully worded roommate agreement, though desirable, is less important. In these circumstances it will be more important to draft an agreement where you retain the authority you have as a tenant in the property and not cede to much control--via contract--to your roommates.
If, however, you as the tenant need your roommates to help cover the rent and you can't make it without them then it is indeed necessary to have a tightly worded roommate agreement to ensure that the roommates obligations are clearly set out. Roommates, who are not on the actual lease, will often take the position that they have no obligation to remain in the premises and hence simply have to pay for the space they use and pay nothing if they move out. Because the Residential Tenancies Act imposes no obligations on "roommates" a roommate could in fact escape liability of the lease obligations if there is no clearly worded roommate agreement.
Even with the most strictly worded roommate agreement, the only person liable to the landlord is the named tenant.
In Scenario 1 your claim against an absconding co-tenant is clearer as the obligations are set out in the lease agreement and the responsibilities of each co-tenant under the lease are presumptively shared equally. However, where there is only one tenant and all the rest are roommates there is no presumption that the roommates are on the hook to the end of the lease. If it is the intention that the tenant and the roommates are sharing the responsibilities of the lease--to the end of the term---it is imperative that the tenant and the roommates sign a document setting out the expectations of the parties. Without such a document no tenant can be sure of the responsibilities of their roommate.
A claim against a roommate (or by a roommate against a tenant) by the tenant would take place in the Small Claims Court for claims under $25,000.00. There is no jurisdication in the Landlord and Tenant Board to adjudicate such claims. Assessing how the case will turn out in the Court will depend greatly on what can be proven. If there is no written agreement the Court will look to the evidence of what the parties did--for example copies of cancelled cheques, emails sent, messages sent, photographs, and basically anything that helps inform the issue. If there is no written agreement, and the documentary evidence is inconclusive, the oral testimony is contradictory, and there is no obviously logical conclusion to be drawn, the Court may have to rely on the burden of proof to decide that the plaintiff (i.e. the person who is doing the suing) while entirely believable did not establish on a balance of probabilities that they are entitled to what they are claiming.
Without a written agreement the outcome may be rather harsh for the tenant who was relying on their friends and roommates to share the responsibilities. To be clear, a written agreement is not only of benefit to the tenant. A roommate who is asked to move out part way through a lease---for no good reason---or who is asked to pay an equal proportion for a benefit that was not equally receieved--may have little recourse in Court if they can't prove that there was an agreement that would only permit termination of the roommate arrangment on reasonable notice for good cause, or that they would pay a smaller portion of the rent because their room was the smallest in the house. Suffice it to say that clearly written terms are desirable in litigation.
In University and College towns this scenario plays out often enough. To be clear, I'm not talking about purpose build rooming houses but larger houses where the landlord rents out the bedrooms and basically tells the tenants that they have to get along with with everyone and share the kitchen and bathrooms. Sometimes that landlord will maintain the common areas and sometimes the landlord will require the tenants to make a schedule. These informal rooming houses are most often unlicenced and sometimes just kind of happen without any clear direction or intention. Sometimes a group of friends rent a house and the landlord deals with each person individually, receives rent from them individually, and assigns rooms individually.
If that is the situation it is quite probable that the rent liability is capped for each occupant at what they pay for their room and not the global amount of the rent that the landlord expects for the whole unit. A landlord could not, in this kind of relationship, expect the other tenants in the house to make up the shortfall if one of the tenants moves out.
If you have a roommate or co-tenant who has moved out, caused damage, or is somehow not pulling their weight, or you are the roommate (i.e. not the tenant) and your tenant roommate is defaulting on the rent to the landlord or has wrongfully kicked you out, it is most important to examine the legal nature your relationship with the roommate, tenant, or landlord. Your responsibilities (to pay) and your ability to be paid vary greatly depending on how the legal relationship is characterized.
You should note that in the scenarios described above, the difference in the legal relationship is not necessarily apparent in how people are living in the rental unit. In fact, most often, there is very little in the outward form of how people are living in the unit that would give any clue of whether they are a tenant, a roommate, or a boarder. A careful analysis of all of the facts and documents is necessary to defintively conclude what all of the responsibilities are.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada