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
Ottawa, Ontario, Canada
Quinn Thiele Mineault Grodzki LLP